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Human Rights Legislation Amendment Bill (No. 1) 1999

Part 2 Transitional and application provisions

Division 1 Interpretation

4   Interpretation

                   In this Part:

appropriate Commissioner means:

                     (a)  in relation to a complaint lodged under the old DDA—the Disability Discrimination Commissioner; and

                     (b)  in relation to a complaint lodged under the old RDA—the Race Discrimination Commissioner; and

                     (c)  in relation to a complaint lodged under the old SDA—the Sex Discrimination Commissioner.

Court means the Federal Court of Australia.

holding of an inquiry means a holding of an inquiry referred to in a notice given under:

                     (a)  section 83 of the old DDA; or

                     (b)  section 25E of the old RDA; or

                     (c)  section 63 of the old SDA.

new HREOCA means the Human Rights and Equal Opportunity Commission Act 1986 as amended by Schedule 1 to this Act.

old DDA means the Disability Discrimination Act 1992 before being amended by Schedule 1 to this Act.

old RDA means the Racial Discrimination Act 1975 before being amended by Schedule 1 to this Act.

old SDA means the Sex Discrimination Act 1984 before being amended by Schedule 1 to this Act.

purported complaint means a document purporting to be a complaint.

starting day means the day on which this Part commences.

Division 2 Treatment of complaints lodged before starting day

Subdivision A Treatment of complaint depends on the stage it has reached

5   Purported complaint lodged but no decision as to whether it is a complaint

             (1)  A purported complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  it was lodged with the Commission; and

                     (b)  the Commission had not decided whether it was a complaint within the meaning of the old DDA, old RDA or old SDA.

             (2)  On the starting day:

                     (a)  the purported complaint is taken to have been lodged under section 46P of the new HREOCA; and

                     (b)  the Commission must then decide whether it is a complaint within the meaning of the new HREOCA.

6   Administrative appeal on Commission’s decision as to whether complaint

             (1)  A purported complaint is treated in the way set out in subsection (2) if:

                     (a)  before the starting day, the Commission decided that it was, or was not, a complaint within the meaning of the old DDA, old RDA or old SDA; and

                     (b)  on or after the starting day, the Court makes an order under the Administrative Decisions (Judicial Review) Act 1977 to refer the matter to which the decision relates to the Commission for further consideration.

             (2)  On the day on which the order is made:

                     (a)  the purported complaint is taken to have been lodged under section 46P of the new HREOCA; and

                     (b)  the Commission must then decide whether it is a complaint within the meaning of the new HREOCA.

7   Complaint lodged but Commissioner not notified of it

             (1)  A purported complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  it was lodged with the Commission; and

                     (b)  the Commission decided that it was a complaint within the meaning of the old DDA, old RDA or old SDA; and

                     (c)  the Commission had not notified the appropriate Commissioner of it.

             (2)  On the starting day:

                     (a)  the purported complaint is taken to have been lodged under section 46P of the new HREOCA; and

                     (b)  the Commission is taken to have decided that it is a complaint within the meaning of the new HREOCA.

8   Commissioner notified of complaint but had not decided to dismiss or refer it

             (1)  A complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  the Commission had notified the appropriate Commissioner of the complaint; and

                     (b)  the appropriate Commissioner had not made a decision not to inquire, or not to continue to inquire, into the complaint; and

                     (c)  the appropriate Commissioner had not referred the complaint to the Commission.

             (2)  On the starting day, the complaint is taken to have been referred to the President under section 46PD of the new HREOCA.

9   Commissioner decided to dismiss complaint

             (1)  A complaint is treated in the way set out in subsection (2) if:

                     (a)  before the starting day, the appropriate Commissioner decided not to inquire, or not to continue to inquire, into the complaint; and

                     (b)  on the starting day, the complainant could have required the appropriate Commissioner to:

                              (i)  refer the complaint to the President under section 71 of the old DDA if that section had not been repealed by this Act; or

                             (ii)  refer the Commissioner’s decision to the President, or refer the complaint to the Commission, under section 24 of the old RDA if that section had not been repealed by this Act; or

                            (iii)  refer the Commissioner’s decision to the President, or refer the complaint to the Commission, under section 52 of the old SDA if that section had not been repealed by this Act.

             (2)  On the starting day, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note:          The President is required to give a notice of termination of the complaint under section 14 of this Act.

10   Presidential review of Commissioner’s decision to dismiss complaint

             (1)  A complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  the appropriate Commissioner decided not to inquire, or not to continue to inquire, into the complaint; and

                     (b)  the complainant required the appropriate Commissioner to refer the complaint, or the Commissioner’s decision, to the President; and

                     (c)  the President had not made a decision under whichever of the following sections is applicable:

                              (i)  section 101 of the old DDA;

                             (ii)  section 24AA of the old RDA;

                            (iii)  section 52A of the old SDA.

             (2)  On the starting day, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note:          The President is required to give a notice of termination of the complaint under section 14 of this Act.

11   Administrative review of President’s decision

             (1)  A complaint is treated in the way set out in subsection (2) if:

                     (a)  before the starting day, the President made a decision in relation to the complaint under:

                              (i)  section 101 of the old DDA; or

                             (ii)  section 24AA of the old RDA; or

                            (iii)  section 52A of the old SDA; and

                     (b)  on or after the starting day, the Court makes an order under the Administrative Decisions (Judicial Review) Act 1977 to refer the matter to which the decision relates to the Commission for further consideration.

             (2)  On the day the order is made, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note:          The President is required to give a notice of termination of the complaint under section 14 of this Act.

12   Complaint referred to Commission but inquiry not started

             (1)  A complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  the appropriate Commissioner referred the complaint to the Commission; and

                     (b)  a holding of an inquiry into the complaint had not started under the old DDA, old RDA or old SDA; and

                     (c)  the complaint had not been withdrawn under whichever of the following sections is applicable:

                              (i)  section 79 of the old DDA;

                             (ii)  section 25A of the old RDA;

                            (iii)  section 59 of the old SDA.

             (2)  On the starting day, the President is taken to have terminated the complaint under section 46PH of the new HREOCA.

Note:          The President is required to give a notice of termination of the complaint under section 14 of this Act.

13   Inquiry started

             (1)  A complaint is treated in the way set out in subsection (2) if, before the starting day:

                     (a)  a holding of an inquiry into the complaint had started under the old DDA, old RDA or old SDA; and

                     (b)  the complaint had not been withdrawn under whichever of the following sections is applicable:

                              (i)  section 79 of the old DDA;

                             (ii)  section 25A of the old RDA;

                            (iii)  section 59 of the old SDA.

             (2)  The amendments made by Schedule 1 to this Act do not apply in relation to the complaint.

Subdivision B Other rules about complaints lodged before starting day

14   Notice of termination

             (1)  If the President is taken to have terminated a complaint under section 9, 10, 11 or 12, then the President must notify the complainants in writing of the termination and the reasons for the termination.

             (2)  Subsection (1) does not apply if all the complainants requested the appropriate Commissioner not to inquire into the complaint.

             (3)  The President must give a person a copy of the notice that was given to the complainants under subsection (1) if:

                     (a)  the person was a person on whose behalf the complaint was lodged; and

                     (b)  the person requested the President for a copy of the notice.

             (4)  The President is not required to notify any person under section 46PH of the new HREOCA.

15   Work done by Commissioner is taken to have been done by President

                   Any thing done, or information obtained, by the appropriate Commissioner in relation to a complaint that is referred to the President under section 8 is taken to have been done or obtained by the President.

16   Special rules apply to proceedings to enforce a determination

                   Sections 46PQ, 46PR and 46PT of the new HREOCA apply for the purposes of proceedings in the Court:

                     (a)  for an order to enforce a determination in relation to a complaint; or

                     (b)  for an order directing a Commonwealth agency (or the principal executive of a Commonwealth agency) to comply;

if the proceedings started on or after the starting day under:

                     (c)  section 105A or 106F of the old DDA; or

                     (d)  section 25ZC or 25ZI of the old RDA; or

                     (e)  section 83A or 84F of the old SDA.

Division 3 Other transitional and application provisions

17   Protection from civil actions

                   The amendments made by items 29, 30, 81, 82, 117 and 118 of Schedule 1 do not apply to a complaint lodged before the starting day under the old DDA, old RDA or old SDA.

18   Referrals under the old SDA

                   The amendments made by items 1, 2, 83, 84, 95, 98, 120, 121, 122 and 123 of Schedule 1 do not apply to a complaint lodged before the starting day under section 50A, 50C or 50E of the old SDA.

19   Inquiries started by Human Rights Commissioner

                   The amendment made by item 51 of Schedule 1 does not apply in relation to an inquiry that the Human Rights Commissioner started before the starting day.

20   When a person cannot lodge a complaint under the new HREOCA

                   A person cannot lodge a complaint under section 46P of the new HREOCA if:

                     (a)  the person is a class member for a representative complaint in respect of the same subject matter; and

                     (b)  a holding of an inquiry into the representative complaint had started under the old DDA, old RDA or old SDA.

21   Regulations

             (1)  The Governor-General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.

             (2)  In particular, regulations may be made in relation to matters of a transitional or saving nature arising out of the enactment of this Act.

22   Transitional—powers of a Secretary

                   A thing done by the Commission before the commencement of this section in exercising powers referred to in subsection 43(2) of the Human Rights and Equal Opportunity Commission Act 1986 has effect, for the purpose of the exercise by the President after the commencement of this section of powers referred to in that subsection, as if the thing had been done by the President.