An Act to establish the Human Rights and Equal Opportunity Commission, to make provision in relation to human rights and in relation to equal opportunity in employment, and for related purposes

Part I—Preliminary

1 Short title [see Note 1]

This Act may be cited as the Human Rights and Equal Opportunity Commission Act 1986.

2 Commencement [see Note 1]

This Act shall come into operation on a day to be fixed by Proclamation.

3 Interpretation

(1) In this Act, unless the contrary intention appears:

Aboriginal person means a person of the Aboriginal race of Australia.

act means an act done:

(a) by or on behalf of the Commonwealth or an authority of the Commonwealth;

(b) under an enactment;

(d) partly within a Territory, to the extent to which the act was done within a Territory.

affected person, in relation to a complaint, means a person on whose behalf the complaint was lodged.

alleged unlawful discrimination means:

(a) in relation to a complaint—the acts, omissions or practices that are alleged in the complaint and that would, if proven, constitute unlawful discrimination; and

(b) in relation to an application to the Federal Court or the Federal Magistrates Court under Division 2 of Part IIB—the acts, omissions or practices that are alleged in the application and that would, if proven, constitute unlawful discrimination.

appointed member means the President or the Human Rights Commissioner.

Australia includes the external Territories.

Australian Capital Territory enactment means an enactment of the Australian Capital Territory within the meaning of the Australian Capital Territory (Self‑Government) Act 1988, or an instrument made under such an enactment.

authority means:

(a) in relation to the Commonwealth:

(i) a body (whether incorporated or unincorporated) established for a purpose of the Commonwealth by or under a Commonwealth enactment;

(ii) an incorporated company over which the Commonwealth is in a position to exercise control;

(iii) a person holding or performing the duties of an office or appointment established or made under a Commonwealth enactment or by the Governor‑General or a Minister of the Commonwealth (not being an office or appointment referred to in subparagraph (c)(iii));

(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Commonwealth for the purposes of this Act;

(b) in relation to a State:

(i) a body (whether incorporated or unincorporated) established for a purpose of the State by or under a law of the State;

(ii) an incorporated company over which the State is in a position to exercise control;

(iii) a person holding or performing the duties of an office or appointment established or made under a law, or by the Governor or a Minister, of the State;

(iv) a local government body in the State; or

(v) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the State for the purposes of this Act; or

(i) a body (whether incorporated or unincorporated) established for a purpose of the Territory by or under a Commonwealth enactment or a law of the Territory;

(ii) an incorporated company over which the Administration of the Territory is in a position to exercise control;

(iii) a person holding or performing the duties of an office or appointment established or made under a law of the Territory or by the Administrator of a Territory; or

(iv) a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Territory for the purposes of this Act.

class member, in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 46PC.

Commission means the Human Rights and Equal Opportunity Commission established by this Act.

Commonwealth enactment means an Act or an instrument (other than a Territory enactment, an Australian Capital Territory enactment or a Northern Territory enactment) made under an Act, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.

complainant, in relation to a complaint, means a person who lodged the complaint, whether on the person’s own behalf or on behalf of another person or persons.

complaint, except in Part IIC, means a complaint lodged under Division 1 of Part IIB.

compulsory conference means a conference under section 46PJ.

Convention means the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958, a copy of the English text of which is set out in Schedule 1, as that Convention applies in relation to Australia.

Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia.

Declarations means:

(a) the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1959, a copy of the English text of which is set out in Schedule 3;

(b) the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly of the United Nations on 20 December 1971, a copy of the English text of which is set out in Schedule 4; and

(c) the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975, a copy of the English text of which is set out in Schedule 5.

Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.

discrimination, except in Part IIB, means:

(a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(b) any other distinction, exclusion or preference that:

(i) has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and

(ii) has been declared by the regulations to constitute discrimination for the purposes of this Act;

but does not include any distinction, exclusion or preference:

(d) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.

enactment means a Commonwealth enactment or a Territory enactment.

Federal Court means the Federal Court of Australia.

human rights means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.

instrument includes a rule, regulation or by‑law.

instrumentality, in relation to a State, includes:

(a) a person holding or performing the duties of an office established by or under a law of that State;

(b) a person employed in the public service of that State; and

international instrument includes a declaration made by an international organisation.

Judge means:

(a) a Judge of a court created by the Parliament or of a court of a State; or

(b) a person who has the same designation and status as a Judge of a court created by the Parliament.

law means a law of the Commonwealth, a law of a Territory or a law of a State.

law of a State means a State enactment or any other law in force in a State, other than a law of the Commonwealth.

law of a Territory means a Territory enactment or any other law in force in a Territory, other than a law of the Commonwealth.

law of the Commonwealth means a Commonwealth enactment or any other law in force throughout Australia.

member means a member of the Commission, and includes the President.

Minister means:

(a) in relation to a State—a Minister of the Crown of that State; and

(b) in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.

Northern Territory enactment means an enactment of the Northern Territory within the meaning of the Northern Territory (Self‑Government) Act 1978 or an instrument made under such an enactment.

practice means a practice engaged in:

(a) by or behalf of the Commonwealth or an authority of the Commonwealth;

(b) under an enactment;

(d) partly within a Territory, to the extent to which the practice was or is engaged in within a Territory.

President means President of the Commission.

Privacy Commissioner means the Privacy Commissioner appointed under the Privacy Act 1988.

proposed enactment means:

(a) a proposed law introduced into the Parliament of the Commonwealth or the legislature of a Territory;

(b) a proposed law prepared on behalf of:

(i) the Government of the Commonwealth or the Administration of a Territory;

(ii) a Minister of State of the Commonwealth; or

(iii) a body established by law that has the function of recommending proposed laws of the Commonwealth or of a Territory; or

Race Discrimination Commissioner means the Race Discrimination Commissioner appointed under the Racial Discrimination Act 1975.

relevant international instrument means an international instrument in respect of which a declaration under section 47 is in force.

representative complaint means a complaint lodged on behalf of at least one person who is not a complainant.

respondent, in relation to a complaint, means the person or persons against whom the complaint is made.

Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.

State includes the Australian Capital Territory and the Northern Territory.

State enactment means a State Act or an instrument made under a State Act and includes an Australian Capital Territory enactment and a Northern Territory enactment.

terminate, in relation to a complaint, means decline to inquire into the complaint, or discontinue an inquiry into the complaint.

Territory does not include the Australian Capital Territory or the Northern Territory.

Territory Act means an Act passed by a legislature of a Territory

Territory enactment means a Territory Act, an Ordinance of a Territory or an instrument made under such an Act or Ordinance, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.

Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.

trade union means:

(a) an organisation of employees that is:

(i) a registered organisation within the meaning of Schedule 1 to the Workplace Relations Act 1996; or

(ii) a transitionally registered association within the meaning of Schedule 10 to the Workplace Relations Act 1996.

(b) a trade union within the meaning of any State Act or law of a Territory; or

unlawful discrimination means any acts, omissions or practices that are unlawful under:

(aa) Part 4 of the Age Discrimination Act 2004; or

(a) Part 2 of the Disability Discrimination Act 1992; or

(b) Part II or IIA of the Racial Discrimination Act 1975; or

and includes any conduct that is an offence under:

(ca) Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 52); or

(d) Division 4 of Part 2 of the Disability Discrimination Act 1992; or

(e) subsection 27(2) of the Racial Discrimination Act 1975; or

(f) section 94 of the Sex Discrimination Act 1984.

(2) In this Act, a reference to the Governor of a State shall, in relation to the Northern Territory, be construed as a reference to the Administrator of the Northern Territory.

(3) In this Act:

(a) a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and

(b) a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice shall, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.

(4) In the definition of human rights in subsection (1):

(a) the reference to the rights and freedoms recognised in the Covenant shall be read as a reference to the rights and freedoms recognised in the Covenant as it applies to Australia; and

(b) the reference to the rights and freedoms recognised or declared by any relevant international instrument shall:

(i) in the case of an instrument (not being a declaration referred to in subparagraph (ii)) that applies to Australia—be read as a reference to the rights and freedoms recognised or declared by the instrument as it applies to Australia; or

(ii) in the case of an instrument being a declaration made by an international organisation that was adopted by Australia—be read as a reference to the rights and freedoms recognised or declared by the declaration as it was adopted by Australia.

(5) A reference in this Act to the making of a declaration by an international organisation shall be read as a reference to the making or adopting of a declaration, proclamation or other statement by such an organisation in any way, whether by the passing of a resolution, the issuing of an instrument or otherwise.

(6) A reference in this Act to the adoption by Australia of an international instrument being a declaration made by an international organisation shall be read as a reference to the casting by Australia of a vote in favour of the making of the declaration by the organisation at the meeting of the organisation at which the declaration was made or to the giving of some other public notification by Australia expressing its support for the declaration.

(7) A reference in this Act to a person acting on behalf of the Commission is a reference to:

(a) a person, or each of a body of persons, acting pursuant to a delegation under section 19; or

(b) an instrumentality of a State performing a function of the Commission pursuant to an arrangement in force under section 16.

(8) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this Act, for the purposes of the operation of this Act in relation to the Convention, the same meaning as it has in the Convention.

(9) A reference in this Act to prejudice to the security, defence or international relations of Australia includes a reference to any such prejudice that might result from the divulging of information or matters communicated in confidence by or on behalf of the government of a foreign country, an authority of a government of a foreign country or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.

4 Operation of State and Territory laws

(1) This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.

(2) If:

(a) a law of a State or Territory deals with a matter dealt with by this Act; and

(b) an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;

the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.

5 Extension to external Territories

This Act extends to every external Territory.

6 Extent to which Act binds the Crown

(1) This Act binds the Crown in right of the Commonwealth and of Norfolk Island but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.

(1A) Part IIB binds the Crown in right of the States.

(2) Nothing in this Act renders the Crown in right of the Commonwealth, of a State or of Norfolk Island liable to be prosecuted for an offence.

6A Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this Act.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

Part II—Human Rights and Equal Opportunity Commission

Division 1—Establishment and Constitution of Commission

7 Human Rights and Equal Opportunity Commission

(1) There is established by this Act a Commission by the name of the Human Rights and Equal Opportunity Commission.

(2) The Commission:

(a) is a body corporate, with perpetual succession;

(b) shall have a common seal;

(d) may sue and be sued in its corporate name.

(3) All courts, judges and persons acting judicially shall take judicial notice of the imprint of the common seal of the Commission appearing on a document and shall presume that the document was duly sealed.

8 Constitution of Commission

(1) The Commission shall consist of:

(a) a President; and

(b) a Human Rights Commissioner; and

(ca) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and

(d) the Sex Discrimination Commissioner; and and

(f) the Disability Discrimination Commissioner.

(2) The members must act in a way that promotes the collegiate nature of the Commission.

(6) The functions of the Commission under paragraphs 11(1)(aa), 11(1)(ab), 11(1)(f) and 31(b) and the functions of the Commission under paragraphs 11(1)(p) and 31(k), to the extent that they relate to the performance of the first‑mentioned functions, shall be performed by the President, and a reference in this Act to the Commission or to a member of the Commission shall, in relation to the performance of any of those functions, be read as a reference to the President.

(7) The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of a vacancy in the office of President, Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner or Disability Discrimination Commissioner.

8A The President

(1) The President is to be appointed by the Governor‑General as a full‑time member or a part‑time member.

(2) The President is the senior member of the Commission.

(3) The President is responsible for managing the administrative affairs of the Commission.

8B The Human Rights Commissioner

(1) The Human Rights Commissioner is to be appointed by the Governor‑General as a full‑time member.

(2) A person is not qualified to be appointed as the Human Rights Commissioner unless the Governor‑General is satisfied that the person has appropriate qualifications, knowledge or experience.

9 Arrangement for appointment of the holder of a judicial office of a State

(1) The Governor‑General may, for the purpose of appointing to the Commission a person who is the holder of a judicial office of a State, enter into such arrangement with the Governor of that State as is necessary to secure that person’s services.

(2) An arrangement under subsection (1) may provide for the Commonwealth to reimburse a State with respect to the services of the person to whom the arrangement relates.

10 Appointment of Judge as member not to affect tenure etc.

(1) The appointment of the holder of a judicial office as a member, or service by the holder of a judicial office as a member, does not affect the person’s tenure of that judicial office or the person’s rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of that judicial office and, for all purposes, the person’s service as a member shall be taken to be service as the holder of that judicial office.

(2) In this section, judicial office means:

(a) an office of Judge of a court created by the Parliament; or

(b) an office the holder of which has, by virtue of holding that office, the same status as a Judge of a court created by the Parliament.

Division 2—Duties, functions and powers of Commission

10A Duties of Commission

(1) It is the duty of the Commission to ensure that the functions of the Commission under this or any other Act are performed:

(a) with regard for:

(i) the indivisibility and universality of human rights; and

(ii) the principle that every person is free and equal in dignity and rights; and

(b) efficiently and with the greatest possible benefit to the people of Australia.

(2) Nothing in this section imposes a duty on the Commission that is enforceable by proceedings in a court.

11 Functions of Commission

(1) The functions of the Commission are:

(a) such functions as are conferred on the Commission by the Age Discrimination Act 2004, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 or any other enactment;

(aa) to inquire into, and attempt to conciliate, complaints of unlawful discrimination;

(ab) to deal with complaints lodged under Part IIC;

(b) such functions as are to be performed by the Commission pursuant to an arrangement in force under section 16;

(c) such functions as are expressed to be conferred on the Commission by any State enactment, being functions in relation to which the Minister has made a declaration under section 18;

(d) the functions conferred on the Commission by section 31;

(e) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, are, or would be, inconsistent with or contrary to any human right, and to report to the Minister the results of any such examination;

(f) to inquire into any act or practice that may be inconsistent with or contrary to any human right, and:

(i) where the Commission considers it appropriate to do so—to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice is inconsistent with or contrary to any human right, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement—to report to the Minister in relation to the inquiry;

(g) to promote an understanding and acceptance, and the public discussion, of human rights in Australia;

(h) to undertake research and educational programs and other programs, on behalf of the Commonwealth, for the purpose of promoting human rights, and to co‑ordinate any such programs undertaken by any other persons or authorities on behalf of the Commonwealth;

(j) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to human rights;

(k) on its own initiative or when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Covenant, of the Declarations or of any relevant international instrument;

(m) on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Covenant, the Declarations or any other relevant international instrument, and to report to the Minister the results of any such examination;

(n) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of acts or practices of a kind in respect of which the Commission has a function under paragraph (f);

(o) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues; and

(p) to do anything incidental or conducive to the performance of any of the preceding functions.

(2) The Commission shall not:

(a) regard an enactment or proposed enactment as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(e) by reason of a provision of the enactment or proposed enactment that is included solely for the purpose of securing adequate advancement of particular persons or groups of persons in order to enable them to enjoy or exercise human rights equally with other persons; or

(b) regard an act or practice as being inconsistent with or contrary to any human right for the purposes of paragraph (1)(f) where the act or practice is done or engaged in solely for the purpose referred to in paragraph (a) of this subsection.

(3) Notwithstanding paragraphs (1)(a), (d) and (f), the functions of the Commission do not include inquiring into an act or practice of an intelligence agency, and, where a complaint is made to the Commission alleging that an act or practice of such an agency is inconsistent with or contrary to any human right, constitutes discrimination, or is unlawful under the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004, the Commission shall refer the complaint to the Inspector‑General of Intelligence and Security.

(4) A reference in subsection (3) to an intelligence agency is a reference to the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Office of National Assessments, that part of the Department of Defence known as the Defence Signals Directorate (including any part of the Defence Force that performs functions on behalf of that part of the Department), that part of the Department of Defence known as the Defence Imagery and Geospatial Organisation (including any part of the Defence Force that performs functions on behalf of that part of the Department) or that part of the Department of Defence known as the Defence Intelligence Organisation.

13 Powers of Commission

(1) The Commission has power to do all things that are necessary or convenient to be done for or in connection with the performance of its functions.

(2) The Commission may at any time report to the Minister on any matter arising in the course of the performance of its functions and shall report to the Minister on such a matter if requested by the Minister to do so.

14 Form of examinations or inquiries to be at discretion of Commission etc.

(1) For the purpose of the performance of its functions, the Commission may make an examination or hold an inquiry in such manner as it thinks fit and, in informing itself in the course of an examination or inquiry, is not bound by the rules of evidence.

(2) Where the Commission considers that the preservation of the anonymity of a person:

(a) who has made a complaint to the Commission; or

(b) who:

(i) has furnished or proposes to furnish information;

(ii) has produced or proposes to produce a document;

(iii) has given or proposes to give evidence; or

(iv) has made or proposes to make a submission;

to the Commission or to a person acting on behalf of the Commission;

is necessary to protect the security of employment, the privacy or any human right of the person, the Commission may give directions prohibiting the disclosure of the identity of the person.

(3) The Commission may direct that:

(a) any evidence given before the Commission or any information given to the Commission; or

(b) the contents of any document produced to the Commission;

shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies.

(4) Where the Commission has given a direction under subsection (3) in relation to the publication of any evidence or information or of the contents of a document, the direction does not prevent a person from communicating to another person a matter contained in the evidence, information or document if the first‑mentioned person has knowledge of the matter otherwise than by reason of the evidence or information having been given or the document having been produced to the Commission.

(5) In deciding whether or not to give a direction under subsection (3), the Commission shall have regard to the need to prevent such of the following as are relevant to the circumstances:

(a) prejudice to the security, defence or international relations of Australia;

(b) prejudice to relations between the Commonwealth Government and the Government of a State or between the Government of a State and the Government of another State;

(c) the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth or of a State;

(d) the disclosure of deliberations or advice of the Federal Executive Council or the Executive Council of a State;

(e) the disclosure, or the ascertaining by a person, of the existence or identity of a confidential source of information in relation to the enforcement of the criminal law;

(f) the endangering of the life or physical safety of any person;

(g) prejudice to the proper enforcement of the law or the protection of public safety;

(h) the disclosure of information the disclosure of which is prohibited, absolutely or subject to qualifications, by or under another enactment;

(j) the unreasonable disclosure of the personal affairs of any person;

(k) the unreasonable disclosure of confidential commercial information.

(6) In having regard to the matters mentioned in paragraphs (5)(a) to (k), inclusive, the Commission shall try to achieve an appropriate balance between the need to have regard to those matters and the desirability of ensuring that interested persons are sufficiently informed of the results of the Commission’s examination or inquiry.

(7) A person shall not contravene a direction given by the Commission under subsection (2) or (3) that is applicable to the person.

Penalty:

(a) in the case of a natural person—$1,000; or

(b) in the case of a body corporate—$5,000.

(7A) Subsection (7) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(8) In subsection (1), function does not include a function conferred on the Commission by the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004.

15 Commission may engage in consultations

For the purposes of the performance of its functions, the Commission may work with and consult appropriate persons, governmental organisations and non‑governmental organisations.

16 Inter‑governmental arrangements

(1) The Minister may make an arrangement with a Minister of a State for or in relation to:

(a) the performance on a joint basis of any functions of the Commission;

(b) the performance by that State or by an instrumentality of that State on behalf of the Commonwealth of any functions of the Commission; or

(c) the performance by the Commission of functions on behalf of that State relating to human rights or to discrimination in employment or occupation.

(2) An arrangement under this section may contain such incidental or supplementary provisions as the Minister and the Minister of the State with whom the arrangement is made think necessary.

(2A) An act done by or in relation to a State, or an instrumentality of a State, acting (whether on a joint basis or otherwise) under an arrangement made under this section shall be deemed, for the purposes of this Act, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004, to have been done by, or in relation to, the President.

(3) The Minister may arrange with the Minister of a State with whom an arrangement is in force under this section for the variation or revocation of the arrangement.

(4) An arrangement under this section, or the variation or revocation of such an arrangement, shall be in writing, and a copy of each instrument by which an arrangement under this section is made, varied or revoked shall be published in the Gazette.

17 Advisory committees

(1) The Minister shall establish at least one advisory committee, and may, if the Minister considers it desirable, establish 2 or more advisory committees, to perform such of the following functions as the Minister directs:

(a) to advise the Commission in relation to the performance of the Commission’s functions;

(b) when requested by the Minister, to report to the Minister as to the action (if any) that needs to be taken by Australia in order to comply with the provisions of the Convention and, in particular, to advise the Minister in respect of national policies relating to equality of opportunity and treatment in employment and occupation.

(2) The Commission may, with the approval of the Minister, establish an advisory committee or advisory committees to advise the Commission in relation to the performance of the Commission’s functions.

18 Declarations by Minister

Where the Minister is satisfied that a function expressed to be conferred on the Commission by a State enactment could conveniently be performed by the Commission, the Minister may, by notice in writing published in the Gazette, so declare.

19 Delegation

(1) The Commission may, by writing under its common seal, delegate to a member of the Commission, a member of the staff of the Commission or another person or body of persons all or any of the powers conferred on the Commission under this Act.

(2) A member may, by writing signed by the member, delegate to:

(aa) a member of the Commission; or

(a) a member of the staff of the Commission; or

(b) any other person or body of persons;

approved by the Commission, all or any of the powers exercisable by the member under this Act.

(2A) Subsection (2) does not allow the President to delegate to another member of the Commission any of the President’s powers under Part IIB or IIC.

(2B) Subsection (2) does not allow the President to delegate any of the President’s powers relating to:

(a) functions of the Commission under paragraphs 11(1)(f) and 11(1)(p) that are to be performed by the President because of subsection 8(6); or

(b) functions of the Commission under paragraphs 31(b) and 31(k) that are to be performed by the President because of subsection 8(6);

to a member of the Commission other than the Human Rights Commissioner.

(2C) The requirement in subsection (2) for approval by the Commission does not apply to a delegation by the President.

(5) Subject to any provision in the instrument of delegation, a person to whom a power of the Commission has been delegated under subsection (1) may, for the purposes of the exercise of that power, exercise any power conferred on a member of the Commission by this Act.

(6) In subsection (1), power does not include a power conferred on the Commission by the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, or the Age Discrimination Act 2004.

(7) In this section, unless the contrary intention appears, member means a member of the Commission.

Division 3—Functions relating to human rights

19A Division applies to victimisation offences

In this Division, a reference to an act or practice that is inconsistent with or contrary to any human right includes a reference to an act that is an offence under subsection 26(2).

20 Performance of functions relating to human rights

(1) Subject to subsection (2), the Commission shall perform the functions referred to in paragraph 11(1)(f) when:

(a) the Commission is requested to do so by the Minister;

(b) a complaint is made in writing to the Commission alleging that an act or practice is inconsistent with or contrary to any human right; or

(2) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

(a) the Commission is satisfied that the act or practice is not inconsistent with or contrary to any human right;

(b) the Commission is satisfied that the person aggrieved by the act or practice does not desire that the inquiry be held or continued; or

(i) the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice;

(ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance;

(iii) where some other remedy has been sought in relation to the subject matter of the complaint—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with;

(iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the person aggrieved by the act or practice;

(v) where the subject matter of the complaint has already been dealt with by the Commission or by another statutory authority—the Commission is of the opinion that the subject matter of the complaint has been adequately dealt with; or

(vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

(3) The Commission shall, before the expiration of the period of 2 months commencing when a complaint is made to the Commission in respect of an act or practice, decide whether or not to inquire into the act or practice.

(4) Where the Commission decides not to inquire into, or not to continue to inquire into, an act or practice in respect of which a complaint was made to the Commission, the Commission shall, unless the complaint has been transferred under subsection (4A), forthwith give notice in writing to the complainant of that decision and of the reasons for that decision.

(4A) Where:

(a) a complaint has been made to the Commission in relation to an act or practice; and

(b) because the Commission is of the opinion that the subject‑matter of the complaint could be more effectively or conveniently dealt with by the Privacy Commissioner in the performance of the functions referred to in paragraph 27(1)(a) or 28(1)(b) or (c) of the Privacy Act 1988, the Commission decides not to inquire, or not to continue to inquire, into that act or practice;

the Commission shall:

(d) forthwith give notice in writing to the complainant stating that the complaint has been so transferred; and

(e) give to the Privacy Commissioner any information or documents that relate to the complaint and are in the possession, or under the control, of the Commission.

(4B) A complaint transferred under subsection (4A) shall be taken to be a complaint made to the Privacy Commissioner under Part V of the Privacy Act 1988.

(5) Where it appears to the Commission that:

(a) a person wishes to make a complaint to the effect that another person has done an act, or engaged in a practice, that is inconsistent with or contrary to any human right; and

(b) that person requires assistance to formulate the complaint or to reduce it to writing;

it is the duty of the Commission to take reasonable steps to provide appropriate assistance to that person.

(6) A person who is detained in custody (in this subsection and subsection (7) referred to as the detainee) is entitled:

(a) upon making a request to the person (in this subsection and subsection (7) referred to as the custodian) in whose custody the detainee is detained, or to any other person (in this subsection and subsection (7) referred to as a custodial officer) performing duties in connection with the detention:

(i) to be provided with facilities for preparing a complaint in writing under this Division, for giving in writing to the Commission, after the complaint has been made, any other relevant information and for enclosing the complaint or the other information (if any) in a sealed envelope; and

(ii) to have sent to the Commission, without undue delay, a sealed envelope delivered by the detainee to the custodian or to a custodial officer and addressed to the Commission; and

(b) to have delivered to the detainee, without undue delay, any sealed envelope, addressed to the detainee and sent by the Commission, that comes into the possession or under the control of the custodian or of a custodial officer.

(7) Where a sealed envelope addressed to the Commission is delivered by the detainee to the custodian or to a custodial officer for sending to the Commission, or a sealed envelope addressed to the detainee and sent by the Commission comes into the possession or under the control of the custodian or of a custodial officer, neither the custodian nor any custodial officer is entitled to open the envelope or to inspect any document enclosed in the envelope.

(8) For the purposes of subsections (6) and (7), the Commission may make arrangements with the appropriate authority of a State or Territory for the identification and delivery of sealed envelopes sent by the Commission to persons detained in custody in that State or Territory.

21 Power to obtain information and documents

(1) Where the Commission has reason to believe that a person is capable of giving information or producing documents relevant to a matter under examination or inquiry under this Division, a member may, by notice in writing served on that person, require that person at such place, and within such period or on such date and at such time, as are specified in the notice:

(a) to give to the Commission, by writing signed by that person or, in the case of a body corporate, on behalf of the body corporate, any such information; or

(b) to produce to the Commission any such documents.

(2) Where:

(a) a person is required by a notice under subsection (1) to give information or produce a document to the Commission; and

(b) the information or document originated with, or has been received from, an intelligence agency;

the person shall forthwith notify that agency of the making of the requirement.

(3) A reference in subsection (2) to an intelligence agency is a reference to the Australian Secret Intelligence Service, the Australian Security Intelligence Organisation, the Office of National Assessments, or the Defence Imagery and Geospatial Organisation, the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence.

(4) Where documents are produced to the Commission in accordance with a requirement under subsection (1), the Commission:

(a) may take possession of, and may make copies of, or take extracts from, the documents;

(b) may retain possession of the documents for such period as is necessary for the purposes of the examination or inquiry to which the documents relate; and

(c) during that period shall permit a person who would be entitled to inspect any one or more of the documents if they were not in the possession of the Commission to inspect at all reasonable times such of the documents as that person would be so entitled to inspect.

(5) Where the Commission has reason to believe that a person is capable of giving information relevant to a matter under inquiry under this Division, a member may, by notice in writing served on the person, require the person to attend before the member, on such date and at such time and place as are specified in the notice, to answer questions relevant to the matter under inquiry.

(6) A person who attends at a place pursuant to a requirement made of the person under subsection (1) or (5) is entitled to be paid by the Commonwealth a reasonable sum for the person’s attendance at that place.

22 Power to examine witnesses

(1) A member may administer an oath or affirmation to a person required to attend before the member pursuant to section 21 and may examine the person on oath or affirmation.

(2) The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

23 Failure to comply with requirement

(1) A person shall not refuse or fail:

(a) to be sworn or make an affirmation; or

(b) to give information or produce a document;

when so required under this Act.

Penalty:

(a) in the case of a natural person—$1,000; or

(b) in the case of a body corporate—$5,000.

(2) A person who, after having been served with a notice under subsection 21(5):

(a) refuses or fails to comply with the notice; or

(b) when attending before a member in compliance with the notice, refuses or fails to answer a question that is required by the member to be answered;

is guilty of an offence punishable on conviction by a fine not exceeding:

(d) in the case of a body corporate—$5,000.

(2A) Subsections (1) and (2) do not apply if the person has a reasonable excuse.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code).

(3) Without limiting the generality of the expression reasonable excuse in this section, it is hereby declared for the avoidance of doubt that it is a reasonable excuse for a person to refuse or fail to furnish information, produce a document or answer a question when required to do so under this Act, that the information, the production of the document or the answer to a question might tend to incriminate that person.

24 Disclosure of information or contents of documents

(1) Where the Attorney‑General furnishes to the Commission a certificate certifying that the giving to the Commission, or to a person acting on behalf of the Commission, of information concerning a specified matter (including the giving of information in answer to a question) or the production to the Commission, or to a person acting on behalf of the Commission, of a specified document would be contrary to the public interest:

(a) by reason that it would prejudice the security, defence or international relations of Australia;

(b) by reason that it would involve the disclosure of communications between a Minister of the Commonwealth and a Minister of a State, being a disclosure that would prejudice relations between the Commonwealth Government and the Government of a State;

(c) by reason that it would involve the disclosure of deliberations or decisions of the Cabinet or of a Committee of the Cabinet;

(d) by reason that it would involve the disclosure of deliberations or advice of the Executive Council;

(e) by reason that it would prejudice the conduct of an investigation or inquiry into crime or criminal activity that is currently being pursued or would prejudice the fair trial of any person;

(f) by reason that it would disclose, or enable a person to ascertain, the existence or identity of a confidential source of information in relation to the enforcement of the criminal law;

(g) by reason that it would prejudice the effectiveness of the operational methods or investigative practices or techniques of agencies responsible for the enforcement of the criminal law; or

(h) by reason that it would endanger the life or physical safety of any person;

neither the Commission nor any other person is entitled to require a person to give any information concerning the matter or to produce the document.

(1A) In relation to the performance of functions by the Aboriginal and Torres Strait Islander Social Justice Commissioner under Part IIA, subsection (1) (other than paragraphs (1)(a) and (b)) has effect in relation to a certificate given by the Attorney‑General of a State or Territory in the same way as it has effect in relation to a certificate given by the Attorney‑General of the Commonwealth. For the purposes of this additional effect, references to the Cabinet, a Committee of the Cabinet or the Executive Council are to be treated as references to the corresponding body or committee of the State or Territory concerned.

(2) Without limiting the operation of subsection (1), where the Attorney‑General furnishes to the Commission a certificate certifying that the giving to the Commission, or to a person acting on behalf of the Commission, of information as to the existence or non‑existence of information concerning a specified matter (including the giving of information in answer to a question) or as to the existence or non‑existence of any one or more documents required to be produced to the Commission, or to a person acting on behalf of the Commission, would be contrary to the public interest:

(a) by reason that it would prejudice the security, defence or international relations of Australia; or

(b) by reason that it would prejudice the proper performance of the functions of the Australian Crime Commission;

neither the Commission nor a person acting on behalf of the Commission is entitled, pursuant to this Act, to require a person to give any information as to the existence or non‑existence of information concerning that matter or as to the existence or non‑existence of that document or those documents.

(3) Notwithstanding the provisions of any law, a person is not excused:

(a) from giving any information, or producing a document, when required to do so pursuant to this Act; or

(b) from answering a question that the person is required to answer by a member before whom the person is attending in compliance with a notice served on the person under subsection 21(5);

on the ground that the giving of the information, the production of the document or the answering of the question:

(c) would disclose legal advice furnished to a Minister, to a person or body that acts on behalf of the Commonwealth, or to an authority of the Commonwealth;

(d) would contravene the provisions of any other Act or would be contrary to the public interest; or

(e) might make the person liable to a penalty.

(4) A person is not liable to any penalty under the provisions of any other law by reason of:

(a) giving information or producing a document when required to do so pursuant to this Act; or

(b) answering a question that the person is required to answer by a member before whom the person is attending in compliance with a notice served on the person under subsection 21(5).

26 Offences relating to administration of Act

(1) A person shall not hinder, obstruct, molest or interfere with:

(a) a member participating in an inquiry or examination under this Act; or

(b) a person acting on behalf of the Commission, while that person is holding an inquiry or carrying out an investigation under this Act.

Penalty:

(a) in the case of a natural person—$1,000; or

(b) in the case of a body corporate—$5,000.

(2) A person who:

(a) refuses to employ another person;

(b) dismisses, or threatens to dismiss, another person from the other person’s employment;

(d) intimidates or coerces, imposes any pecuniary or other penalty upon, or takes any other disciplinary action in relation to, another person;

by reason that the other person:

(e) has made, or proposes to make, a complaint to the Commission;

(f) has alleged, or proposes to allege, that a person has done an act or engaged in a practice that is inconsistent with or contrary to any human right;

(g) has furnished, or proposes to furnish, any information or documents to the Commission or to a person acting on behalf of the Commission; or

(h) has given or proposes to give evidence before the Commission or to a person acting on behalf of the Commission;

is guilty of an offence punishable upon conviction:

(j) in the case of a natural person—by a fine not exceeding $2,500 or imprisonment for a period not exceeding 3 months, or both; or

(k) in the case of a body corporate—by a fine not exceeding $10,000.

(3) It is a defence to a prosecution for an offence under subsection (2) constituted by subjecting, or threatening to subject, a person to a detriment specified in paragraph (2)(a), (b), (c) or (d) on the ground that the person has alleged that another person has done an act or engaged in a practice that is inconsistent with or contrary to any human right if it is proved that the allegation was false and was not made in good faith.

Note: Sections 136.1, 137.1 and 137.2 of the Criminal Code deal with making false or misleading statements, giving false or misleading information and producing false or misleading documents.

27 Commission to give opportunity for making of submissions

Where it appears to the Commission as a result of an inquiry into an act or practice that the act or practice is inconsistent with or contrary to any human right, the Commission shall not furnish a report to the Minister in relation to the act or practice until it has given a reasonable opportunity to the person who did the act or engaged in the practice, to do, at the option of the person, either or both of the following:

(a) to appear before the Commission, whether in person or by a representative, and make oral submissions in relation to the act or practice;

(b) to make written submissions to the Commission in relation to the act or practice.

28 Nature of settlements

The Commission shall, in endeavouring to effect a settlement of a matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of human rights and the need to protect those rights.

29 Reports to contain recommendations

(1) Where, after an examination of an enactment or proposed enactment, the Commission finds that the enactment is, or the proposed enactment would be, inconsistent with or contrary to any human right, the Commission shall include in its report to the Minister relating to the results of the examination any recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that the enactment is not, or the proposed enactment would not be, inconsistent with or contrary to any human right.

(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice is inconsistent with or contrary to any human right, the Commission:

(a) shall serve notice in writing on the person setting out its findings and the reasons for those findings;

(b) may include in the notice any recommendations by the Commission for preventing a repetition of the act or a continuation of the practice;

(i) the payment of compensation to, or in respect of, a person who has suffered loss or damage as a result of the act or practice;

(ii) the taking of other action to remedy or reduce loss or damage suffered by a person as a result of the act or practice;

(d) shall include in any report to the Minister relating to the results of the inquiry particulars of any recommendations that it has made pursuant to paragraph (b) or (c);

(e) shall state in that report whether, to the knowledge of the Commission, the person has taken or is taking any action as a result of the findings, and recommendations (if any), of the Commission and, if the person has taken or is taking any such action, the nature of that action; and

(f) shall serve a copy of that report on the person and, if a complaint was made to the Commission in relation to the act or practice:

(i) where the complaint was made by a person affected by the act or practice—shall serve a copy of that report on the complainant; or

(ii) if the complaint was made by another person—may serve a copy of that report on the complainant.

(3) Where:

(a) a complaint is made to the Commission in relation to an act or practice; and

(b) after an inquiry into the act or practice, the Commission finds that:

(i) the existence of the act or practice has not been established; or

(ii) the act or practice is not inconsistent with or contrary to any human right;

the Commission shall give a copy of a report setting out its findings, and the reasons for those findings, to the complainant and:

(c) in a case to which subparagraph (b)(i) applies—to the person alleged to have done the act or engaged in the practice; or

(d) in a case to which subparagraph (b)(ii) applies—to the person who did the act or engaged in the practice.

(4) In setting out findings and reasons in a notice to be served or a report to be given under this section the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in subsection 14(5) and to the obligations of the Commission under subsection 14(6).

(5) Where, under subsection (4), the Commission excludes any matter from a report, the Commission shall prepare a report setting out the excluded matter and its reasons for excluding the matter and shall furnish the report to the Minister.

Division 4—Functions relating to equal opportunity in employment

30 Interpretation etc.

(1) In this Division:

act includes an act done:

(a) by or on behalf of a State or an authority of a State;

(b) under a law of a State;

(d) partly within a State, to the extent to which the act was done within a State.

practice includes a practice engaged in:

(a) by or on behalf of a State or an authority of a State;

(b) under a law of a State;

(d) partly within a State, to the extent to which the practice was or is engaged in within a State.

(1A) In this Division, a reference to an act or practice that constitutes discrimination includes a reference to an act that is an offence under subsection 26(2).

(2) This Division binds the Crown in right of a State.

31 Functions of Commission relating to equal opportunity

The following functions are hereby conferred on the Commission:

(a) to examine enactments, and (when requested to do so by the Minister) proposed enactments, for the purpose of ascertaining whether the enactments or proposed enactments, as the case may be, have, or would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, and to report to the Minister the results of any such examination;

(b) to inquire into any act or practice, including any systemic practice, that may constitute discrimination and:

(i) where the Commission considers it appropriate to do so—to endeavour, by conciliation, to effect a settlement of the matters that gave rise to the inquiry; and

(ii) where the Commission is of the opinion that the act or practice constitutes discrimination, and the Commission has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry or has endeavoured without success to effect such a settlement—to report to the Minister in relation to the inquiry;

(c) to promote an understanding and acceptance, and the public discussion, of equality of opportunity and treatment in employment and occupation in Australia;

(d) to undertake research and educational programs and other programs, on behalf of the Commonwealth, for the purpose of promoting equality of opportunity and treatment in employment and occupation, and to co‑ordinate any such programs undertaken by any other persons or authorities on behalf of the Commonwealth;

(e) on its own initiative or when requested by the Minister, to report to the Minister as to the laws that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to equality of opportunity and treatment in employment and occupation;

(f) when requested by the Minister, to report to the Minister as to the action (if any) that, in the opinion of the Commission, needs to be taken by Australia in order to comply with the provisions of the Convention;

(g) on its own initiative or when requested by the Minister, to examine any relevant international instrument for the purpose of ascertaining whether there are any inconsistencies between that instrument and the Convention, and to report to the Minister the results of any such examination;

(h) to prepare, and to publish in such manner as the Commission considers appropriate, guidelines for the avoidance of acts or practices of a kind in respect of which the Commission has a function under paragraph (b);

(j) where the Commission considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve discrimination issues;

(k) to do anything incidental or conducive to the performance of any of the preceding functions.

32 Performance of functions relating to equal opportunity

(1) Subject to subsections (2) and (3), the Commission shall perform the functions referred to in paragraph 31(b) when:

(a) the Commission is requested to do so by the Minister;

(b) a complaint is made in writing to the Commission alleging that an act or practice constitutes discrimination; or

(2) The Commission shall not inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, shall not continue to inquire into the act or practice, if the Commission is satisfied that the subject matter of the complaint is dealt with under a prescribed enactment or a prescribed State enactment.

(3) The Commission may decide not to inquire into an act or practice, or, if the Commission has commenced to inquire into an act or practice, may decide not to continue to inquire into the act or practice, if:

(a) the Commission is satisfied that the act or practice does not constitute discrimination;

(b) the Commission is satisfied that the person aggrieved by the act or practice does not desire that the inquiry be held or continued; or

(i) the complaint was made more than 12 months after the act was done or after the last occasion when an act was done pursuant to the practice;

(ii) the Commission is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance;

(iv) the Commission is of the opinion that some other more appropriate remedy in relation to the subject matter of the complaint is reasonably available to the complainant;

(vi) the Commission is of the opinion that the subject matter of the complaint could be more effectively or conveniently dealt with by another statutory authority.

33 Application of certain provisions of Division 3

Subsections 20(3), (4) and (5) and sections 21, 22, 23, 24, 26 and 27 apply in relation to the functions of the Commission set out in section 31, and in relation to the performance of those functions, as if:

(a) references in those provisions to acts or practices were references to acts or practices within the meaning of this Division;

(b) the words “is inconsistent with or contrary to any human right” were omitted from subsection 20(5) and the words “constitutes discrimination” were substituted;

(c) references in section 21 to a matter under examination or inquiry under Division 3 were references to a matter under examination or inquiry under this Division, not being an act mentioned in paragraph (a), (b), (c) or (d) of the definition of act in subsection 30(1) or a practice mentioned in paragraph (a), (b), (c) or (d) of the definition of practice in that subsection;

(d) the words “is inconsistent with or contrary to any human right” were omitted from sections 26 and 27 and the words “constitutes discrimination” were substituted; and

(e) a reference in any of those provisions to another of those provisions were a reference to that other provision as applied by this section.

34 Nature of settlements

35 Reports to contain recommendations

(1) Where, after an examination of an enactment or proposed enactment, the Commission finds that the enactment has, or the proposed enactment would have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation, the Commission shall include in its report to the Minister relating to the results of the examination any recommendations by the Commission for amendment of the enactment or proposed enactment to ensure that the enactment does not have, or the proposed enactment would not have, the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.

(2) Where, after an inquiry into an act done or practice engaged in by a person, the Commission finds that the act or practice constitutes discrimination, the Commission: