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Human Rights Legislation Amendment Bill (No. 1) 1999

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1998-99

 

 

The Parliament of the

Commonwealth of Australia

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Human Rights Legislation Amendment Bill 1998

 

 

Amendments to be moved by Mr McClelland

 

(1)     Schedule 1, item 50, page 18 (lines 29 to 31), omit the item, substitute:

50  Subsection 8(6)

Omit “paragraphs 11(1)(f) and 31(b)”, substitute “subparagraph 11(1)(f)(i), paragraphs 11(1)(aa) and 11(1)(ab) and subparagraph 31(b)(i)”.

(2)     Schedule 1, item 55, page 19 (lines 18 to 30), omit subsections (2A) and (2B).

(3)     Schedule 1, after item 56, page 20 (after line 4), after item 56, insert:

56A  At the end of section 28

Add:

             (2)  The Commission must inform the parties to a conciliation or attempted conciliation of the following matters:

                     (a)  the right of the parties to settle the matter with a binding agreement; and

                     (b)  the right of the parties to apply to the Federal Court for an order enforcing the agreement.

             (3)  An agreement must be recorded in writing.

             (4)  If requested to do so, the Commissioner must assist the parties to record an agreement in writing.

(4)     Schedule 1, page 20 (after line 4), after item 56, insert:

56B  Paragraph 31(b)

After “practice”, insert, “including any systemic practices,”.

(5)     Schedule 1, page 20 (after line 4), after item 56, insert:

56D  At the end of section 34

Add:

             (2)  The Commission must inform the parties to a conciliation or attempted conciliation of the following matters:

                     (a)  the right of the parties to settle the matter with a binding agreement; and

                     (b)  the right of the parties to apply to the Federal Court for an order enforcing the agreement.

             (3)  An agreement must be recorded in writing.

             (4)  If requested to do so, the Commissioner must assist the parties to record an agreement in writing.

(6)     Schedule 1, item 58, page 22 (after lines 7 to 9), omit subsection 46PC(2), substitute:

             (2)  The President may, on application by a class member, replace the complainant with another class member, where it appears to the President that the complainant is not able adequately to represent the interests of the class members.

(7)     Schedule 1, item 58, page 26 (line 23), at the end of subsection (2), add “provided that the proceedings at a compulsory conference shall be confidential to the parties involved”.

(8)     Schedule 1, item 58, page 27 (after line 4), after subsection 46PK(5), insert:

          (5A)  Despite paragraph (4)(a), an individual who is unable to participate fully in a compulsory conference because the person has a disability is entitled to nominate another person to accompany the individual.

(9)     Schedule 1, item 5, page 27 (after line 4), after subsection (8), insert:

          (6A)  The person presiding at a compulsory conference must ensure that no person who is a party to the conference is at a disadvantage because of the representation of any other party to the conference by a legally-qualified person.

(10)   Schedule 1, item 58, page 28 (after line 9), after section 46PN, insert:

46PNA  Confidentiality of compulsory conferences

                   Any person who knowingly breaches the confidentiality of a compulsory conference, without reasonable excuse,  is guilty of an offence.

Penalty: 10 penalty units

(11)   Schedule 1, item 58, page 28 (after line 9), after Division 1, insert:

Division 1A—Complaints against Commonwealth agencies

46PNB  Application of Division

                   This Division applies to a complaint lodged under section 46P if the respondent is a Commonwealth agency.

46PNC  Interpretation

                   In this Division, Commonwealth agency means an agency within the meaning of the Privacy Act 1988 .

46PND  No appeal to Federal Court where Commonwealth agency is the respondent

                   Section 46PE and Division 2 of this Part do not apply to a complaint to which this Division applies.

46PNE  Determination or other decision of the President

             (1)  After holding an inquiry under section 46PD, the President may:

                     (a)  dismiss the complaint the subject of the inquiry; or

                     (b)  if the President finds the complaint substantiated—so find and make a determination which, if appropriate, may include any one or more of the following:

                              (i)  a declaration that the respondent had engaged in conduct, or committed an act, that is unlawful under a provision of

                                        (A)  the Sex Discrimination Act 1984 ; or

                                        (B)  the Disability Discrimination Act 1992 ; or

                                        (C)  the Racial Discrimination Act 1975 ;

                                   and should not repeat or continue such unlawful conduct;

                             (ii)  a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;

                            (iii)  a declaration that the respondent should employ or re-employ the complainant;

                            (iv)  a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

                             (v)  a declaration that the respondent should promote the complainant;

                            (vi)  a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

                           (vii)  a declaration that it would be inappropriate for any further action to be taken in the matter.

             (2)  A determination of the President under subsection (1) is not binding or conclusive between any of the parties to the determination.

             (3)  The President may, in the making of a determination under subsection (1), state any findings of fact upon which the determination is based.

             (4)  The damage referred to in paragraph (1)(b) includes injury to the complainant's feelings or humiliation suffered by the complainant.

             (5)  A determination by the President under subparagraph (1)(b)(iv) on a representative complaint:

                     (a)  may provide for payment of specified amounts or of amounts worked out in a manner specified by the President; and

                     (b)  if it provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

             (6)  If the President makes a determination under subparagraph (1)(b)(iv) on a representative complaint, the President may give such directions (if any) as it thinks just in relation to:-

                     (a)  the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and

                     (b)  the manner for determining any dispute regarding the entitlement of a class member to the payment.

             (7)  In this section:-

complainant in relation to a representative complaint, means the class members.

46PNF  Obligations of respondent agency

                   If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 46PNE:

                     (a)  the agency must not repeat or continue conduct that is covered by a declaration included in the determination under subparagraph 46PNE(1)(b)(i); and

                     (b)  the agency must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 46PNE(1)(b)(ii), (iii), (v) or (vi).

46PNG  Obligations of principal executive of agency

                   If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 46PNE, the principal executive must take all such steps as are reasonably within his or her power to ensure:

                     (a)  that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and

                     (b)  that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 46PNE(1)(b)(i); and

                     (c)  the performance of any act or course of conduct that is covered by a declaration included in the determination under subparagraph 46PNE(1)(b)(ii), (iii), (v) or (vi).

46PNH  Damages

             (1)  If a determination to which this Division applies that is made under section 46PNE includes a declaration that the respondent should pay damages to the complainant, the complainant is entitled to be paid the amount specified in the declaration.

             (2)  If the respondent is a Commonwealth agency that has the capacity to sue and be sued, the amount is recoverable as a debt due by the agency to the complainant. In any other case, the amount is recoverable as a debt due by the Commonwealth to the complainant.

             (3)  In this section:

complainant in relation to a representative complaint, means a class member.

46PNI  Review of determinations regarding damages

             (1)  Application may be made to the Administrative Appeals Tribunal for review of:

                     (a)  a declaration of the kind referred to in subparagraph 46PNE(1)(b)(iv) that is included in a determination to which this Division applies; or

                     (b)  a decision of the Commission refusing to include such a declaration in a determination to which this Division applies.

             (2)  A Commonwealth agency, or the principal executive of a Commonwealth agency, may not apply for review without the permission of the Minister.

             (3)  In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and 2 other members who are not Judges. This subsection has effect subject to subsection 21 (1A) of the Administrative Appeals Tribunal Act 1975.

             (4)  Terms used in subsection (3) that are also used in the Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act.

46PNJ  Enforcement of determination against Commonwealth agency

             (1)  If a Commonwealth agency falls to comply with section 46, an application may be made to the Federal Court for an order directing the agency to comply.

             (2)  If the principal executive of a Commonwealth agency fails to comply with section 46PNG, an application may be made to the Federal Court for an order directing the principal executive to comply.

             (3)  The application may be made by the Commission or by the complainant. In the case of a representative complaint, complainant means a class member.

             (4)  On an application under this section, the Federal Court may make such other orders as it thinks fit with a view to securing compliance by the respondent.

             (5)  An application may not be made under this section in relation to a determination under section 46PNE until:

                     (a)  the time has expired for making an application under section 46PND for review of the determination; or

                     (b)  if such an application is made, the decision of the Administrative Appeals Tribunal on the application has come into operation.

(12)   Schedule 1, item 58, page 28 (after line 20), after subsection (1), insert:

          (1A)  An application under subsection (1) may be made by a person or trade union on behalf of an affected person with the consent of the affected person.

(13)   Schedule 1, item 58, page 28 (after line 20), after subsection (1A), insert:

          (1B)  Where 2 or more persons are affected persons in relation to a complaint terminated by the President under section 46PH, in respect of which the President has given a notice to any person under subsection 46PH(2) in relation to the termination, one or more of those persons as representing some or all of them may make an application to the Federal Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

          (1C)  A representative proceeding may be commenced whether or not all the members of the representative group are seeking the same relief.

(14)   Schedule 1, item 58, page 28 (lines 21 and 22), omit the note.

(15)   Schedule 1, item 58, page 28 (after line 25), after subsection (2), insert:

          (2A)  A person who makes an application under subsection (1) must serve a copy of the application and any supporting documents on the relevant special-purpose Commissioner.

(16)   Schedule 1, item 58, page 29 (after line 3), after subsection (3), insert:

          (3A)  An application under subsection (1) may not be amended unless the amendments arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

(17)   Schedule 1, item 58, page 29 (after line 34), at the end of section 46PO, add:

             (9)  In this section, special-purpose Commissioner has the same meaning as in section 46PV.

(18)   Schedule 1, item 58, page 29 (after line 34), at the end of section 46PL, add:

           (10)  The Court may, if it thinks fit, award costs in relation to an application under this section if it is the view of the Court that the application is frivolous or vexatious. The Court may award party and party costs and solicitor and client costs.

(19)   Schedule 1, item 58, page 29 (after line 34), after section 46PO, insert:

46POA  Application to Court by special-purpose Commissioner

             (1)  If a special-purpose Commissioner becomes aware of a breach or attempted breach of:

                     (a)  this Act; or

                     (b)  the Sex Discrimination Act 1984 ; or

                     (c)  the Disability Discrimination Act 1992 ; or

                     (d)  the Racial Discrimination Act 1975 ;

in respect of which a person has not made, and is unlikely to make, a complaint, the special-purpose Commissioner may make an application to the Federal Court, alleging unlawful discrimination by a person or persons.

             (2)  The Court may appoint a conciliator to inquire into the allegation and attempt to conciliate the matter in accordance with the relevant Act.

             (3)  The Court may not appoint a particular special-purpose Commissioner as a conciliator in a matter if that special-purpose Commissioner lodged the application in respect of that matter.

             (4)  If the matter is not resolved by conciliation, the special-purpose Commissioner who made the application, or the conciliator appointed by the Court, may apply to the Court for a hearing of the matter.

             (5)  If the Court is satisfied that there has been unlawful discrimination by any respondent, the Court may make such orders (including a declaration of right) as it thinks fit, including any of the orders mentioned in subsection 46PO(4) or any order to a similar effect.

             (6)  In this section, special-purpose Commissioner has the same meaning as in section 46PV.

(20)   Schedule 1, item 58, page 30 (line 29), omit “or legal forms”, substitute,  “legal forms or the rules of evidence”.

(21)   Schedule 1, item 58, page 31 (after line 29), after section 46PU, insert:

46PUA  Federal Court fees

                   A person who makes an application to the Federal Court under this Division is exempt from prescribed fees in relation to the matter but must pay a filing fee of $50.00 except where, in the opinion of the Registrar, payment of this fee would cause the person financial hardship.

(22)   Schedule 1, item 58, page 32 (line 15), at the end of subsection 46PV(1), add:

: provided that a special-purpose Commissioner must not assist the Court, as amicus curiae , in any proceedings on a matter in relation to which he or she has received a delegation from the President under section 19.

(23)   Schedule 1, item 58, page 34 (lines 10 to 13), omit the definition of discriminatory act under an award , substitute:

discriminatory act under an award means an act that would be unlawful under Part II of:

                     (a)  the Sex Discrimination Act 1984 ; or

                     (b)  the Disability Discrimination Act 1992 ; or

                     (c)  the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with an award.

(24)   Schedule 1, item 58, page 35 (lines 20 to 23), omit the definition of discriminatory act under a determination , substitute:

discriminatory act under a determination means an act that would be unlawful under Part II of:

                     (a)  the Sex Discrimination Act 1984 ; or

                     (b)  the Disability Discrimination Act 1992 ; or

                     (c)  the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with a determination.

(25)   Schedule 1, item 58, page 37 (lines 1 to 4), omit the definition of discriminatory act under a determination , substitute:

discriminatory act under a determination means an act that would be unlawful under Part II of:

                     (a)  the Sex Discrimination Act 1984 ; or

                     (b)  the Disability Discrimination Act 1992 ; or

                     (c)  the Racial Discrimination Act 1975 ;

except for the fact that the act was done in direct compliance with a determination.

 

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