Posted on 09 Aug. 2017
Important changes to anti-discrimination legislation you should know about
By Slater and Gordon
The Commonwealth Parliament has recently passed important amendments to the Australian Human Rights Commission Act 1984 (‘the Act’) through the passage of the Human Rights Legislation Amendment Act 2017 (‘the Amending Act’).
The effect of the amendments is to significantly alter the role of the Australian Human Rights Commission (‘AHRC’) in conciliating and resolving complaints of discrimination as well as narrowing the timeframe in which complaints should be brought before the Commission.
Below we highlight some key changes.
Reduced timelines – 12 months down to 6 months
Whilst there is no strict time limit for the bringing of a discrimination complaint to the AHRC, the Act conferred a broad discretion upon the President of the AHRC to decline to deal with a complaint that was brought 12 months after the alleged discrimination took place.
The 12 month period has now been reduced to 6 months for events occurring after 13 April 2017.
The Amending Act has not introduced a strict limitation period, however complainants should assume that they will have great difficulty having their case heard if they do not bring the complaint within the new 6 month period.
What are the requirement for particulars and a reasonably arguable case?
Because of the nature of the jurisdiction, the AHRC had previously adopted a fairly informal process for the submission of complaints to it for investigation.
The Amending Act alters that position and makes it harder for persons to access the jurisdiction by imposing additional hurdles to the acceptance of a complaint.
The amendments have the effect of giving to the AHRC significant powers to decline to deal with complaints that it considers do not meet the new thresholds.
The Amending Act imposes, amongst other things, a two-fold requirement for a successful submission of a complaint to the AHRC.
The first is that the complaint made to the Commission must demonstrate a reasonably arguable position that the alleged acts, omissions or practices are unlawful discrimination. The fact that the complaint must disclose a reasonably arguable position will mean that persons seeking to access the jurisdiction will need to spend considerable time and care in presenting a complaint; otherwise it will be declined.
The second change is that the complaint must set out, as fully as practicable, the details of the alleged acts, omissions and practices which are said to be discriminatory.
These requirements are likely to lead to unrepresented complainants or simply complainants unfamiliar with the jurisdiction, failing to fully particularise their complaint and as a result the AHRC may terminate the complaint.
For the reasons outlined above, the drafting and careful submission of a complaint is now of significant importance.
How do the changes impact the role of a lawyer or union official?
The AHRC process is built upon a mediation model, with the AHRC attempting to facilitate resolution of complaints through mediation.
Traditionally this process has involved a representative of the AHRC convening a conference of the parties and facilitating discussions designed to resolve the complaint. A complainant was entitled to be represented in those conferences.
The Amending Act now states that a complainant is not to be represented by another person at the mediation conference unless the person chairing the conference (the representative of the AHRC) consents. This is a significant change. It is likely to leave people exposed. It will likely discourage complainants from coming forward in circumstances where they have to sit alone with the person who they accuse of discriminating against them.
It is hoped that the AHRC will take a liberal view about the application of the discretion and permit representatives.
However the new position is something that those who represent parties in cases before the AHRC should note.
It would be remiss not to note that there is some variance to the rule in circumstances where a person has a disability.
Who determines costs and settlement offers?
The Court is now expressly empowered to consider offers to settle that were made during the AHRC process when considering whether to award costs against a complainant.
How does the Leave of the Court affect the claims process?
The standard practice has always been that following the termination of the complaint by the AHRC (i.e. that a conciliated outcome could not be achieved), a complainant could file an application with the Federal Court or Federal Circuit Court to progress the claim. This was generally a matter of right.
That position has now changed significantly.
In order to progress an application (with some limited exceptions), leave of the Court will be required to progress. It is not known what form of leave will be required.
The requirement for leave is to place an additional hurdle in front of complainants coming out of the AHRC process. It will increase costs and lead to delay in having cases resolved in Court.
We do note that one of the exceptions to the requirement to gain leave is where the complaint is terminated by the AHRC on the basis that there is no reasonable prospect of the case being settled by conciliation. Those advising complainants should focus on having the complaint terminated for those reasons (this usually occurs when a mediation process has failed to resolve the complaint).
It is not entirely clear at this stage how the Courts intend to deal with the new leave requirements that have been imposed.
How will the recent changes affect the claims process?
The changes to the jurisdiction are significant. The interpretation and effect of the changes lies with the AHRC and we will have to wait and see how strictly it applies the new requirements under the Act. Arguments about whether a claim discloses a reasonably arguable position are always fraught with danger and it is hoped that the AHRC does not take a strict view, as to do so would deny many legitimate complaints from being resolved.
If you think you have been discriminated against and you wish to explore your legal options, contact us today and speak to one of our discrimination lawyers.
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