AHRC Act 1986: Complaint Process, Conciliation and Federal Court Proceedings

Structure of the AHRC Act

The Australian Human Rights Commission Act 1986 (Cth) creates the Australian Human Rights Commission and defines its responsibilities relating to the Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability Discrimination Act 1992 and Age Discrimination Act 2004 (the ‘unlawful discrimination Acts’). These Acts are central to the Commission’s work. Sexual harassment positive duty under s 47C is a key component of this.

The Act’s structure includes Part II, which establishes the Commission itself and outlines the offices of various Commissioners, including those focused on Sex, Race, Disability, Age, Aboriginal and Torres Strait Islander Social Justice, and Children’s rights. These Commissioners provide specialist expertise to the Commission.

Part IIB of the Act details the procedures for handling complaints concerning unlawful discrimination. The Commission also has broader functions, including the ability to conduct inquiries into human rights and equal opportunity in employment.

Lodging a complaint

A written complaint of unlawful discrimination may be lodged with the Australian Human Rights Commission (AHRC). This can be done by the person who experienced the discrimination (the aggrieved person), someone acting on behalf of that person, or a representative of a group of aggrieved people.

Complaints must generally be lodged within 24 months of the alleged discriminatory conduct. However, the President of the AHRC has the power to terminate a complaint if it is lodged more than 24 months after the conduct occurred. Anti-discrimination by state in Australia provides further information on state-based legislation.

The President also has the authority to terminate complaints that are considered trivial, vexatious, misconceived or lacking in substance. This also includes complaints where there is no reasonable prospect of resolving the matter through conciliation.

Inquiry and conciliation

The President of the Australian Human Rights Commission is required to inquire into a complaint received under the AHRC Act 1986 and to attempt conciliation (s 46PF). This inquiry process allows the President to gather information relevant to the complaint.

Conciliation conferences are conducted in a confidential setting and are considered ‘without prejudice’. This means that admissions made during conciliation are generally inadmissible if the matter proceeds to subsequent legal proceedings (s 46PN).

If the complaint is resolved through conciliation, the resulting terms of settlement are enforceable as a contract. The President also has the power to issue notices to obtain information and require attendance for the purpose of the inquiry (s 46PI).

Federal Court proceedings under section 46PO

Following termination of a complaint under s 46PH, a complainant retains the option of seeking a hearing before the Federal Court of Australia or the Federal Circuit and Family Court. This is facilitated by s 46PO, which allows for an application to have the matter heard and determined.

Applications under s 46PO are subject to a time limit, generally requiring submission within 60 days of the termination date. However, the court possesses the discretion to extend this timeframe.

If the court determines unlawful discrimination has occurred, it can make various orders. These may include declarations, injunctions, damages, requirements to perform reasonable acts, and reinstatement. Proceedings commenced under s 46PO are civil in nature; leave of the court is not required, except where the complaint was terminated on the grounds of being trivial, vexatious, misconceived or lacking in substance.