This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Contact Officer and Copyright Details
Human Rights Legislation Amendment Bill
Date Introduced: 3 December 1998
House: House of Representatives
Commencement: Sections 1 (title), 2
(commencement), 3 (schedule) and 4 (regulations) commence on Royal
Assent. The substantive provisions commence on proclamation.
This Bill proposes two
significant structural changes to the operation of Federal
- In response to the High Court's 1995 decision in
Brandy, the Bill repeals the Human Rights and Equal
Opportunity Commission's inquiry/determination functions and
implements a scheme by which complaints not resolved through
conciliation may be continued in the Federal Court in order to
obtain an enforceable determination.
- A Federal Court judge may delegate to a judicial registrar most
of the court's human rights powers, with a view to providing as
informal and accessible court hearing as is constitutionally
possible. All registrar decisions are reviewable by a judge on
application by one party.
- The Bill removes the power of specialist Commissioners to
control complaint investigations and conciliation procedures which
arise under the Disability Discrimination Act 1992, the
Racial Discrimination Act 1975 and the Sex
Discrimination Act 1984 and centralises these powers in the
office of the President of the Human Rights and Equal Opportunity
- The Bill provides that specialist Commissioners can apply to
the Federal Court to act as amicus curiae ('friend of the
Court') in relation to an unconciliated anti-discrimination matter.
This new power is seen as partly balancing the loss of the specific
Commissioner's role in relation to conciliation.
Since the inception of the Commonwealth
anti-discrimination regime in 1975, procedures for dealing with
discrimination complaints have been the subject of regular
amendment. These amendments have generally been forged around
attempts to reconcile the at times conflicting objectives faced by
legislators in the context of anti-discrimination law - the desire
to afford equitable and accessible justice to people subject to
discrimination through alternative dispute resolution whilst at the
same time ensuring as far as possible the coercive power of the law
for anti-discrimination matters.
The Human Rights Legislation Amendment Bill 1998
similarly attempts to reconcile these objectives and has arisen in
response to both constitutional and administrative concerns.
History of the Bill
The substantive provisions of this Bill were
initially introduced in the previous Parliament on 4 December 1996
in the Human Rights Legislation Amendment Bill 1996. Debate on this
Bill was not completed before the 39th Parliament was
On 6 February 1997, the Selection of Bills
Committee recommended, and the Senate agreed, to refer that Bill to
the Senate Legal and Constitutional Legislation Committee for
consideration. After two extensions of time, the Committee tabled
its report on the Bill on 26 June 1997.(1) Although the Majority
Report supported the Bill, it made a range of recommendations for
amendment. The Opposition provided a substantial Minority Report
which, whilst broadly agreeing with the amendments concerning
repeal of the Commission's inquiry functions, disagreed with a
range of specific issues linked to Federal Court procedures and the
role of specialist Commissioners. (A detailed discussion of the
Senate Committee Report is found in the Concluding Comments
Enforcement Provisions in Anti-Discrimination
The Racial Discrimination Act 1975
(RDA) was the first Commonwealth anti-discrimination law and
provided for complaints of discrimination on specific grounds to be
made to a Race Discrimination Commissioner, who would attempt to
resolve the matter by conciliation. If conciliation failed, the
aggrieved person could initiate proceedings in a court, which could
grant such relief as the court considered just.
In 1981, the Human Rights Commission Act
1981 was enacted establishing the Human Rights and Equal
Opportunity Commission (the Commission). The Commission's functions
included inquiring into any act or practice or the Commonwealth, or
acts done under Commonwealth legislation, that may be inconsistent
with, or contrary to, the human rights and freedoms recognised in
certain international instruments.(3) Where appropriate, the
Commission was to endeavour to effect a settlement of such matters
and was empowered to serve a notice on a person of its findings,
including recommendations for the purpose of preventing a
repetition or continuation of the discriminatory act or practice.
The Commission was also required to report its findings to the
relevant Commonwealth Minister.
The Sex Discrimination Act 1984 (SDA)
expanded the Commission's role in making findings and
recommendations. The SDA provided for complaints to be made on
specific grounds in specified areas. A Sex Discrimination
Commissioner was appointed to conciliate complaints. If
conciliation failed, the Commission was empowered to conduct an
inquiry into the complaint and where appropriate make declarations
that the respondent had engaged in unlawful conduct and should
perform certain acts to remedy the situation. The determinations of
the Commission were not binding or conclusive and to obtain an
enforceable determination, the Commission or complainant could
initiate proceedings de novo in the Federal Court.(4)
The Human Rights and Equal Opportunity
Commission Act 1986 (HRA) reflected the Commission's
increasing role in the protection of human rights and empowered the
Commission to make determinations and declarations in relation to
race discrimination consistent with its powers concerning sex
discrimination. These determinations remained unenforceable.
This tripartite structure for discrimination
complaints of conciliation, an inquiry by the Commission and a
possible de novo hearing in the Federal Court met with
significant criticism on the grounds that the system was
inefficient and prone to exacerbate, rather than ameliorate, the
distress of a complainant.(5)
In light of these concerns, the question of the
status of HREOC determinations was referred to the Senate Standing
Committee on Legal and Constitutional Affairs in 1990. The
Committee considered the complex constitutional issues raised by
the separation of powers doctrine (which prohibits administrative
bodies like the HREOC exercising judicial powers, such as
enforcement of a decision) in light of the need to facilitate the
most equitable structure for people alleging discrimination. The
majority of the Committee adopted HREOC's proposal for the
registration of HREOC determinations by the Federal Court and
giving them the effect of orders of the Federal Court unless the
respondent makes an application to the Court for review. The then
Chief General Counsel advised the Committee that as the proposal
incorporated a full judicial review of a registered determination,
the enforceablity of registered determinations would not amount to
judicial power being granted to the Commission and was thereby
constitutional. However, the minority report (Senators Vanstone,
Kemp, O'Chee and Walsh), disagreed with the constitutional validity
of the scheme and proposed that the Commission should have the
powers to attempt conciliation of a complaint, but where
conciliation was unsuccessful the matter should be directly
referred to the Federal Court.
(6)In accordance with the majority report, the
Government introduced the Sex Discrimination and Other Legislation
Amendment Bill 1992(7) which, among other things, amended the newly
enacted Disability Discrimination Act 1992 (DDA), the HRA,
the RDA and the SDA to allow registration of the Commission's
determinations in the Federal Court, which would have effect as if
it were an order of the Court unless the respondent applied to the
Court with 28 days for a review of the determination. The Bill
became operative on 13 January 1993.
The enforcement procedures of the 1992 Act were
the subject of a constitutional challenge in the case of Brandy
v Human Rights and Equal Opportunity Commission.(8) Following
a complaint lodged with the Commission pursuant to the RDA, the
Commission had found that Brandy had breached the RDA and had made
a determination including payment of damages. The determination was
duly registered in the Federal Court. Brandy challenged the
constitutional validity of the determination on the basis that it
was an exercise of judicial power, which may only be conferred on a
Court and not an administrative body such as the Commission.
The High Court unanimously decided that
provisions within the RDA which allowed determinations of the
Commission to be enforced through registration in the Federal Court
offended the separation of powers and was thereby unconstitutional.
Although the High Court acknowledged that what constituted
'judicial power' was slippery, it was at least clear that the
ability to enforce decisions is an unequivocal exercise of judicial
power. Accordingly, as upon registration a determination of the
Commission would have 'effect as if it were an order made by the
Federal Court', then this function was an exercise of judicial
power, regardless of the fact that a respondent could initiate a
Federal Court review of the determination.
As the SDA and the DDA had identical enforcement
mechanisms, those provisions were also invalidated by the
the Brandy Decision
A two stage response was announced to the
Brandy decision on 27 February 1995. Firstly, the pre-1992
enforcement process was temporarily restored, therefore
implementing a schema of de novo hearings in the Federal
Court following a Commission inquiry into an unconciliated
matter.(9) Secondly, consideration of a permanent solution was
referred to the tripartite review committee (Attorney-General's
Department, Department of Finance, the Commission) which was
already considering the structure and internal operation of the
Commission. After wide consultations, the Committee recommended the
- Creation of a new Human Rights Division of the Federal
- Division of complaint handling into two stages. Firstly,
conciliation would be attempted by the Commission in the first
instance, and if a matter was unable to be conciliated, proceedings
de novo could be commenced in the Federal
- Establishment of Judicial Commissioners, appointed as officers
of the Federal Court, who would have their functions delegated by
Federal Court judges.
- Empower the relevant Commissioner to apply to appear in any
Federal Court hearing as amicus curiae ('friend of the
Court') if the order sought may have a significant affect on human
rights of specific groups generally, if the case had significant
implications for the administration of the Act or if it were in the
- An emphasis on procedures which promote access and equity, in
terms of costs, evidence and procedures, access to childcare,
interpreters and appropriate facilities for peoples with a
The previous Attorney-General, Mr Michael
Lavarch MP, announced reforms in accordance with these changes on
28 January 1996,(12) but no action was taken prior to the 1996
Federal election. The Coalition's Law and Justice policy also
reflected the Committee's recommendations and on 8 August, the
Attorney-General, Mr Daryl Williams MP, announced Cabinet agreement
to reforms to simplify dispute resolution of human rights matters
generally in accordance with the Committee's recommendations.
Human Rights Legislation Amendment Bill
(No. 2) 1998
As complementary legislation to the current
Bill, the Government introduced the Human Rights Legislation
Amendment Bill (No. 2) 1998 into the previous Parliament. The
purpose of the Bill is to:
- rename the Human Rights and Equal Opportunity Commission the
Human Rights and Responsibilities Commission
- restructure the new Commission by abolishing the five specific
commissioners responsible for Aboriginal and Torres Strait Islander
social justice, human rights and disability, racial and sex
discrimination and replacing these commissioners with three Deputy
Presidents with responsibility for:
- human rights and disability discrimination
- racial discrimination and social justice and
- sex discrimination and equal opportunity
- remove the Privacy Commissioner from the old Commission
structure and create an Office of the Privacy Commissioner
- create a requirement that the Attorney-General must grant
approval before the Commission can seek leave of a court to
intervene in a court proceeding related to human rights and
The 39th Parliament was prorogued
before debate on this could be completed. The Senate Legal and
Constitutional Legislation Committee provided an Interim Report on
the provisions of the Human Rights Legislation Amendment Bill (No.
2) 1998 which was tabled on 10 August 1998. On 12 December 1998,
the Government again referred the provisions of the Bill to the
same Senate Committee for consideration, although the Bill had not
been formally introduced into the new Parliament. The reporting
date is 17 February 1999.
In the 1996 Budget, the Government set a target
of $100 million in savings on legal aid over three years, although
this target has been revised slightly downwards.(13)
The Human Rights and Discrimination Committee of
the Combined Community Legal Centres' Group (NSW) has expressed
concern that proposed cuts in federal funding for State and
Territory legal aid will result in far fewer grants of legal aid
for discrimination matters. The Victorian and NSW legal aid
commissioners have announced that they will no longer grant legal
aid for discrimination complaints. Additionally, prior to July
1997, the test for the grant of legal aid in discrimination cases
was whether there were reasonable prospects of success. The
relevant guidelines now read:
The Commission may grant assistance for equal
opportunity/discrimination cases where there are strong prospects
of substantial benefit being gained not only by the applicant but
also by the public or any section of the public.
The Senate Legal and Constitutional References
Committee, in their Inquiry into legal aid, received evidence that
under this guideline, legal aid is now only available in
Commonwealth discrimination matters for class actions and test
cases (actions which are extremely rare.)(14)
Items 4-22 provide a
transitional framework for matters lodged with the Commission prior
to the commencement of this Bill. In general, this framework
provides that if a complaint has been lodged but an inquiry has not
commenced for whatever reason, then the proposed regime will apply.
If an inquiry has been commenced, the inquiry proceeds under the
The substantive provisions of the Bill can be
categorised under four headings:
- repeal of complaint and conciliation mechanisms from the DDA,
RDA and SDA
- restructuring of the role of the President of the
- the new structure for complaint handling and
- the role of Federal Court in terminated complaints.
Differences between provisions currently
operating in the DDA, the RDA, the SDA and the HRA and proposed
provisions are indicated where significant.
A. Repeal of
Complaint and Conciliation Mechanisms from the DDA, RDA and
Items 3-8 (DDA), 60-63 (RDA), 83-86
(SDA) repeal the definitions in the DDA, the RDA and the
SDA which relate to complaints, inquiries and conciliation (for
example, class member; complainant; compulsory conference; interim
determination; representative complaint). Items
36-48 relocate the relevant definitions in the HRA.
Items 18-24 (DDA), 67-73 (RDA) and 91-97
(SDA) repeal almost entirely each Part of the DDA, RDA and
SDA entitled 'Enquires and Civil Proceedings'. Currently, these
Parts cover inquiries by the Commissioners, inquiries by the
Commission, and enforcement of determinations in the Federal Court.
In relation to the DDA and the SDA, these Parts will be renamed
'Functions of Human Rights and Equal Opportunity Commission' and in
relation to the RDA 'The Race Discrimination Commissioner and
Functions of the Commission'. For all three Acts, the substance of
these Parts will continue to confer the following powers on the
- Promote understanding and acceptance of each Act
- Develop, conduct and foster research and educational programs
in accordance with the spirit of each Act
- Prepare and publish appropriate guidelines for the avoidance of
- Intervene where appropriate with the leave of the Court
- Make inquiries and determinations on matters referred to by the
- In relation to the DDA and the SDA, the power to grant
temporary administrative exemptions
- In relation to the DDA, the continuation of current powers in
relation to the development and monitoring of disability
Item 96 repeals the powers in
the SDA associated with the reference of discriminatory awards and
agreements to the Australian Industrial Relations Commission and
the reference of discriminatory determinations to the Remuneration
Tribunal and the Defence Force Remuneration Tribunal.
Proposed sections 46PW-46PY inserts these powers
as Part IIC of the HRA.
Items 26 (DDA), 77 (RDA) and 99
(SDA) repeal the offences in each Act which relate to
complaint handling functions of the Commission, namely the offences
relating to failure to attend a conference, failure to furnish
information, offences in relation to the Commission and issues
relating to self-incrimination. Offences related to these issues
are transferred to the HRA (discussed below). A range of offences
will still remain in each specific Act. In the DDA, the offences
remaining will relate to the provisions of false and misleading
information and the failure to provide actuarial or statistical
data. In the RDA, the offences remaining are in relation to the
administration of the Act, provision of false and misleading
information and disclosure by a member of the Commission of private
information. In relation to the SDA, remaining offences relate to
advertisements, failure to provide actuarial or statistical data,
disclosure of confidential information, provision of false or
misleading information; victimisation and obstruction of
administration of Act.
Restructuring of the Role of the President
Item 52 repeals the detailed
table in section 8A of the HRA setting out the main functions and
powers of the President conferred by the DDA, the HRA, the RDA and
the SDA and replaces it with the plenary power that the President
is responsible for managing the administrative affairs of the
Commission. Item 57 also assigns the President
responsibility for all staff.
Item 55 provides that the
President cannot delegate to another member of the Commission any
power or responsibility in relation to the handling of complaints
or referral of discriminatory awards or determinations. This is
fundamentally different to the current structure where the specific
Acts grant the role of conciliation and other complaint handling
functions to the Disability Discrimination Commissioner, the Race
Discrimination Commissioner and the Sex Discrimination Commissioner
and is a key aspect of the centralising objective of the Bill. The
proposed role of the Commissioners as amicus curiae in
Federal Court proceedings (discussed below) is linked to this
separation of Commissioners from complaint handling functions.
Notably, it is also linked to the proposal in the Human Rights
Legislation Amendment Bill (No. 2) 1998 to replace specialist
Commissioners with more generalist Deputy Presidents.
Complaint Handling Framework
Item 58 sets out the new
framework for complaint handling to be exercised by the President.
As noted above, this framework consolidates the specific frameworks
for complaint handling currently in the DDA, the HRA, the RDA and
the SDA and is primarily modelled on the DDA. As this item runs for
several pages, for ease of reading, the proposed sections will be
included in the discussion below:
Proposed section 46P:
Lodging a Complaint provides that complaints must
be lodged with the Commission in writing and must allege unlawful
discrimination. There are three categories of persons by whom a
complaint can be lodged
- A person aggrieved by the alleged unlawful discrimination,
either on their own behalf or on behalf of themselves and one or
more other persons who are also aggrieved by the alleged unlawful
- 2 or more persons aggrieved by the alleged unlawful
discrimination either on their own behalf or on behalf of
themselves and one or more other persons aggrieved by the alleged
- A person (who may or may not be aggrieved by the unlawful
discrimination) or trade union on behalf of one or more other
persons aggrieved by the alleged unlawful discrimination.
This schema extends the current law in two
instances. Firstly, in relation to the RDA and the SDA, it allows a
person who is not aggrieved by the alleged unlawful discrimination
to initiate a complaint, whereas currently only a trade union may
lodge a complaint without being an aggrieved person. Secondly, in
relation to the DDA it is clarified that a trade union is entitled
to initiate a complaint on behalf of a person or persons aggrieved.
This is not necessarily the case under current law.
Proposed section 46PA: allows
the complainant to amend a complaint at any time with the leave of
the President. (This provision was not included in the 1996 Bill
and is pursuant to issues raised in the Senate Committee inquiry).
The provision should be read in conjunction with proposed
subsection 46PF(3) which provides that a complainant or
respondent may amend the complaint to add a respondent, with the
leave of the President.
Proposed provision 46PA:
Representative Complaints provides complaints must
be against the same person and arise out of the same, similar or
related circumstances. A written complaint must describe or
otherwise identify the class members, however it is not necessary
to name them individually or specify a number and it is not
necessary to have the consent of the class members to lodge a
complaint. The President, on application in writing by any affected
person, may replace a complainant with another person as
complainant. (This power to replace a complainant was not included
in the 1996 Bill).
Commentary on these provisions is provided in
this Digest's conclusion.
Proposed section 46PE:
Complaints Against the President, Commission or
Commissioner provides a framework to deal with situations
where the respondent to a complaint is either the President, the
Commission or a Commissioner. Proposed subsection
46PE(4) provides that the President can delegate any of
the powers in relation to the complaint to a member of staff or any
other person approved by the Commissioner in such a situation.
Further, if a complainant seeks a termination of the complaint, the
President must grant such a termination if all affected persons
These proposals were not included in the 1996
Bill and are aimed at solving conflict of interest concerns.
However, it is unclear how far these proposals go in overcoming the
possibility of such a conflict.
Proposed section 46PF: Inquiry by
President mirrors current provisions in the RDA, SDA and
DDA, requiring that if a complaint is lodged, the President must
inquire into the complaint and attempt conciliation.
Proposed section 46PH: Termination of
Complaint - The President's powers to terminate a
complaint are generally modelled on those in the DDA, and extend
the current powers to decline a complaint under the RDA and the
SDA. The President's power to terminate a complaint on the grounds
that the complaint has been dealt with adequately elsewhere, that a
more appropriate remedy in relation to the complaint is reasonably
available or that the complaint would more effectively be dealt
with by another statutory authority are new grounds for termination
in relation to complaints under the RDA and SDA. The power to
terminate on the ground that the President is satisfied that the
subject matter of the complaint involves an issue of public
importance that should be considered by the Federal Court is novel
for each Act.
President's Power to Obtain Information - The
President's power to obtain information reflects the current law in
the DDA, the RDA and the SDA. The only new power of the President
is proposed section 46PI(5) which states that a
document in possession of the President must be allowed to be
inspected by any person entitled to inspect the document if it were
not in the President's possession, a power which is currently only
in the DDA.
Proposed sections 46PJ and 46PK:
Compulsory Conferences - The President's proposed power to
direct attendance at a compulsory conference and the proposed
proceedings at a compulsory conference mirror current provisions in
the DDA, the RDA and the SDA, with the exception of minor drafting
Offences: Offences against the
anti-discrimination regime will continue to be split between the
HRA and specific anti-discrimination legislation in accordance with
whether or not they are offences directly related to the complaint
Proposed sections 46PL-46PN
relate to offences in relation to a person failing to attend a
compulsory conference, failing to give information or produce
documents or providing false or misleading information, subject to
the person having a 'reasonable excuse'. These all reflect the
current law, except in one important respect. Currently, the DDA,
the RDA, the SDA and the HRA provide that it is not a reasonable
excuse in relation to the failure to furnish information or produce
documents to claim self-incrimination.
The Bill also expands the defence of
self-incrimination for a respondent or other person to the
President's range of powers to obtain information and documents.
This is discussed in the concluding comments.
Proceedings in the Federal Court
The second key structural change to the
anti-discrimination complaint handling machinery is the shift to
the Federal Court of an inquiry into a matter once conciliation has
been terminated. This shift responds to the High Court's decision
Proposed section 46PO:
Application to Court if Complaint is Terminated -
The pre-conditions to making an application to the Federal Court in
relation to an anti-discrimination matter are that:
- a complaint made to the Commission has been terminated by the
- the giving of a notice by the President to all relevant
complainants to the matter.
Once both of these pre-conditions have been met,
any person who was an affected person (a person on whose behalf a
complaint was lodged) in relation to the complaint may make an
application to the Federal Court alleging unlawful discrimination.
There is also no provision made for the respondent to make an
application to the Federal Court following the termination of a
complaint by the President. This follows logically from the
conceptual framework that a complaint to the Commission is legally
separate from an application to the Federal Court, which must be
initiated de novo. As it is the complainant's matter, it
is a matter for them to initiate such de novo
Applications must be made within 28 days of the
issue of the termination notice and the unlawful discrimination
alleged must be the same or the same in substance or must arise
from the same or substantially the same acts omissions or
practices, which were the subject of the terminated complaint. It
is unclear how far this formulation provides sufficient flexibility
to enable a complainant to redefine the grounds on which unlawful
discrimination is claimed. Not being locked into legal descriptions
formulated at the outset of a complaint is important given the
common absence of legal advice complainants will have access to
prior to lodging a complaint. Commentary is provided on this in the
Proposed section 46PP:
Interim Injunctions - Provides the Federal Court
the power to grant interim injunctions up until termination of the
complaint by the President. Application for an interim injunction
can be made by the Commission, a complainant, a respondent or any
other affected person (therefore anyone on whose behalf a complaint
is lodged). Proposed subsection 46PO(6) grants the
Federal Court the power to grant interim injunctions pending
determination of Federal Court proceedings.
Federal Court Judicial
Item 32 provides that the Rules
of the Federal Court may delegate to Judicial Registrars any of the
Court's human rights legislation powers, except for the power to
grant an interim injunction. The proposed amendments lock into
other legislation related to Federal Court judicial registrars, for
example the amendments contained in the Workplace Relations and
Other Legislation Amendment Act 1996 which, among other
things, provide any party to a proceeding the right to apply for a
review by the Federal Court of the findings of a judicial
The Bill is drafted on the assumption that the
right to apply for a Court review ensures the delegation of
judicial powers to a registrar is constitutional vis-a-vis the
doctrine of separation of powers.(16) However, the Senate Committee
Report raised concerns about this assumption. These are discussed
in the concluding comments below.
The form of the review to be taken by the Court
has been discussed both by the High Court(17) and a recent decision
of Wilcox CJ in relation to judicial registrars in the Industrial
Relations Court.(18) The majority of the High Court considered that
a review of the facts and law would be constitutional. Wilcox CJ
interpreted this to mean that the review required was not a hearing
de novo in the sense that it was conducted as if there had
never been a prior hearing, but rather the judge must conduct a
review in which the parties are not bound by the course they took
before a judicial registrar and that the judge is in no way bound
by the findings of fact. Such a framework allows the judge to
either conduct a complete rehearing (i.e. de novo), or to
conduct a rehearing on one point only.
Item 58 also sets out a range
of provisions which are aimed at ensuring the most equitable
process possible for anti-discrimination matters in the Federal
Court system. These provisions are linked to the attempt to balance
the spirit of anti-discrimination with the effects of the
Proposed section 46P(4)
requires the Commission to assist a complainant in formulating or
writing an initial complaint to the Commission and proposed
section 46PT states that the Commission may assist a
person in preparing the forms required for an application to the
Federal Court. However, this will be subject to budgetary
Proposed section 46PQ states
that as well as the right to appear in person or with a barrister
and solicitor, a party to anti-discrimination proceedings in the
Federal Court may be represented by another person who is not a
barrister or solicitor unless the Court considers it inappropriate.
This is contrary to the general Federal Court Rules on appearances,
which provide that an applicant or a respondent can only be
represented by themselves or by a solicitor,(19) and is an attempt
to ameliorate the costs of legal advice. However, given the typical
imbalance of power vis-a-vis complainants and respondents and their
different access to financial and legal resources (for example many
large corporations have in-house counsel) the equitable potential
of this provision may prove to be very limited.
This proposal also provides that unless this
representative is a barrister or solicitor, they are not entitled
to demand or receive any fee or reward for this appearance work.
This was not included in the 1996 Bill, and the Explanatory
Memorandum states that it is aimed at preventing unconscionable
behaviour by people who are not bound by the rules of the Court
(unlike lawyers). An unintended consequence however, may be that it
is impossible to attract a representative to assist for no payment,
so that a person is left with the choice of a legal officer or
Proposed section 46PR provides
that the Federal Court is not bound by technicalities (for example
rules of evidence and procedure), subject to the effect of the
Proposed section 46PU provides
that a person who has commenced proceedings in the Federal Court or
is a respondent may apply to the Attorney-General for the provision
of assistance. In order to grant assistance, the Attorney-General
must be satisfied that it is reasonable and would involve hardship
if the grant was not made. This reflects current provisions for
assistance in the DDA, the RDA and the SDA with respect to
proceedings before the Commission and the Federal Court.(20) The
Federal Court Rules also contain other equity measures in relation
Two further provisions provide a link between
the operation of the Commission and Federal Court proceedings.
Proposed section 46PS allows for the President to
provide the Federal Court with a written report on a terminated
complaint, as long as the report does not set out anything done or
said during conciliation proceedings. Although this provision
smudges the conceptual division between a complaint to the
Commission and an application to the Federal Court, it allows for
an expeditious and efficient Court hearing.
Amicus Curiae Role of
Proposed section 46PV provides
a role of amicus curiae ('friend of the Court') for the
Aboriginal and Torres Strait Islander Social Justice Commissioner,
the Disability Discrimination Commissioner, the Human Rights
Commissioner, the Race Discrimination Commissioner and the Sex
Discrimination Commissioner. These Commissioners can apply to the
Court to act as amicus curiae if they
- the orders sought, or likely to be sought, will have a
significant affect on the human rights of non parties
- proceedings have significant implications for the operation of
the relevant Act, in the relevant Commissioner's view or
- it is in the public interest.
The role of Commissioners as amicus
curiae reflects the newly defined role of Commissioners as
human rights advocates and educators rather than as officers
integrally involved in the conciliation and inquiry process.
The Bill's response to the Brandy
decision (ie removal of the Commission' inquiry power and
provisions of a scheme to apply to the Federal Court for an
unsuccessful conciliation) reflects the proposals of the previous
Government. The Commission has stated that granting the Federal
Court the power to handle unconciliated complaints is the best
outcome in the circumstances.(22)
As the Senate Inquiry permitted a detailed
analysis of the majority of the other provisions in the Bill, these
comments will highlight the key issues raised in this inquiry. It
should be noted that this inquiry did not take into account the
provisions of the Human Rights Legislation Amendment Bill No. 2
1998 in relation to abolition of specialist Commissioners and their
replacement by more generalist Deputy Presidents.
Role of Specialist Commissioners
The removal of the specialist Commissioners from
the complaints handling process attracted considerable comment. The
Government has stated that this rationalisation is to ensure a more
efficient, effective and consistent decision making process.(23)
HREOC, whilst generally supporting the rationalisation, gave
evidence that the President should be able to delegate work to a
Commissioner, as long as that Commissioner could not then act in an
amicus curiae role in possible future legal action on that
Other evidence before the Committee argued that
this proposal represented a serious downgrading of the
Commissioner's functions and would result in a significant loss of
specialised expertise concerning the various forms of
The Opposition and the Australian Democrats
opposed the proposal, stating that specialist Commissioner's powers
in relation to complaint handling should be retained, given that
their specific expertise would ensure more successful conciliation
outcomes, rendering Federal Court actions less likely. 'We believe
that the Government's arguments based on efficiency represent a
false economy.'(24) However, these parties agreed that a
Commissioner who had conciliated a matter should not be permitted
to act as amicus curiae in future litigation.
Commissioners and Proceedings in the
Evidence was given by several witnesses that
Commissioners should be given the power to initiate proceedings in
the Federal Court in individual or group matters where they think
it is appropriate. Mr John Basten QC argued that there is already a
precedent for such action, in section 80 of the Trade Practices
Act 1974, which empowers the Australian Competition and
Consumer Commission to bring proceedings in relation to a breach or
attempted breach of certain provisions of the Act.(25) The Minority
Report by the Opposition and Australia Democrats agreed to this
The Attorney-General's Department maintained
that only people affected by discrimination should have a right to
bring an action in the Federal Court.(26)
A significant problem with all
anti-discrimination legislation is that, as it is based upon an
individual complaint based model, it is acutely limited in its
ability to cope with systemic forms of discrimination. As systemic
discrimination is the root of more obvious forms of individual
discrimination, mechanisms to address systemic discrimination seem
The Bill's changes to the structure of
representative complaints may assist in addressing this problem,
however the reliance of representative complaints on a complaint
based system may still prove inadequate. One possibility is the
implementation of a non-complaints based procedure investigation
into possible systemic forms of discrimination. Recommendations
could then be presented in a report to parliament for action. This
scheme has the benefit of potentially redressing discriminatory
actions affecting a range of people, and reflects powers in the
British Sex Discrimination Act. Legislating for specific
Commissioners to have a similar role would sit well with the tenor
of the Bill, which emphasises the new role of specific
Commissioners as advocates and educators.
In response to a similar suggestion to the
Committee, the Attorney-General's Department stated that
Commissioners will have an ongoing educative role and may raise the
systemic aspects of a particular allegation of discrimination in
the exercise of their role as amicus curiae.
Additionally, the practical impact of certain Federal Court orders
may have a systemic affect.
The Minority Report of the Labor Party and the
Australian Democrats recommended that the Bill be amended to
provide Commissioner with power to address systemic
Notice of Federal Court Proceedings for
the Purpose of the Amicus Curiae Role
HREOC provided evidence to the Senate Committee
that, to ensure the most effective use of the amicus
curiae role, it was appropriate for Commissioners to be served
notice of Federal Court proceedings.
The Attorney-General's Department stated that
the President's power to provide any member of the Commission with
a copy of a termination report should serve as an appropriate alert
service, however HREOC maintained that even if a President could
prepare reports on all terminated cases within budgetary
constraints, this would not notify of impending Federal Court
Noting HREOC's concern, the Senate Committee
recommended that the Attorney-General consider whether arrangements
should be made for the Human Rights Registry of the Federal Court
to advise HREOC of the filing of discrimination applications.
Notably, there are similar powers in section 63 of the Native
Title Act 1993.
This recommendation was not accepted by the
Complaints Against Commonwealth
The DDA,(27) the RDA(28) and the SDA(29)
currently make special provision for enforcing HREOC determinations
against Commonwealth agencies, requiring that Commonwealth agencies
must comply with HREOC determinations without going to the Federal
Court. The Bill repeals and does not reproduce these provisions. As
these provisions can be conceptualised as a Commonwealth
administrative issue, rather than a judicial issue, these changes
do not appear to be required by the Brandy decision. This
appears to be supported by the comments of the Attorney-General's
Department when questioned by the Committee on the rationale for
there is no reason for imposing a separate
enforcement regime on respondents who are Commonwealth agencies ...
The Bill aims to implement a uniform regime for all respondents,
whether they are Commonwealth or non Commonwealth entities.(30)
Evidence before the Senate Committee questioned
the equity and appropriateness of these amendments. Ms Rosemary
Hunter, an expert in anti-discrimination law, argued that:
The removal of the special provisions ...
appears to absolve the Commonwealth of any heightened
responsibility for complying with its own legislation. In this way
the Bill actually reduces the promotion of human rights.(31)
The Committee's report also noted that there is
an argument that the Department's position:
raises the virtue of uniformity over the
convenience of complainants and fails to give sufficient weight to
the potential for reducing legal costs in relation to
discrimination applications against Commonwealth agencies.(32)
The Opposition and the Australian Democrats more
strongly stated that 'it is totally unacceptable that private
citizens will only be able to enforce discrimination complaints
against Commonwealth government departments and agencies through
the determination of a complaint in the Federal Court',(33) and
recommended continuation of the current provisions.
The schema for representative complaints is
based on that in the Federal Court of Australia Act 1976
(Federal Court Act), however it differs in several respects. These
differences are important given that such complaints may
potentially cross from the Commission to the Federal Court.
(i) Section 33C of the Federal Court Act
requires that for a representative action to be initiated there
must be a minimum of seven persons claiming against the same
person. This requirement is somewhat malleable. Case law suggests
that it is not necessary that the application demonstrate that at
least seven persons have associated claims, but that it is
sufficient if the evidence before the Court justifies the
assumption that at least seven persons have such a potential
claim.(34) Section 33L of the Federal Court Act also provides that
if at any stage in the proceeding it appears likely to the Court
that there are fewer than seven group members, the Court may order
the proceedings continue or discontinue.
The minimum number required in the Bill for the
initiation of a representative action in the Commission is two. If
a representative complaint of five people cannot be conciliated by
the Commission and the complainants wish to pursue the matter in
the Federal Court as a representative complaint, it is unclear how
this will occur. In order to trigger the right of a Federal Court
application, a complainant must have received a termination notice
from the President. Termination notices are given to all 'affected
persons' involved in the complaint. Therefore it would appear
impossible for a representative action involving only five people
in the Commission to be initiated as a representative action in the
Federal Court. It is possible that this difficulty could be
ameliorated under the above mentioned section 33L of the Federal
Court Act but this is unclear. It is still open to each individual
complainant to lodge a Federal Court application separately.
(ii) The standing requirements as between the
Bill and the Federal Court Act also differ. As noted above, the
Bill proposes that a complaint can be initiated by a person (who is
not necessarily a person aggrieved) or a trade union on behalf of
more than one other person. Section 33D of the Federal Court Act,
however, requires that a person who is able to initiate a
representative action must have a 'sufficient interest to commence
a proceeding on his or her own behalf against another person'.(35)
This would exclude a person who is not aggrieved or a trade union
from initiating an action in the Federal Court.
(iii) The third main difference between the Bill
and the Federal Court Act is that the originating process under the
Bill does not require specification of the common issues of law or
fact on which the representative claim is grounded, a requirement
currently in the DDA, the RDA and the SDA. The Explanatory
Memorandum states that this 'requirement will be removed because it
imposes on complainants at an early stage of complaint handling a
burden which is not justified by the nature of the inquiry and
conciliation process'. After conciliation is terminated it is
envisaged that those matters could more fully be articulated in a
complaint to the Federal Court.
The Minority Report of the Labor Party and the
Australian Democrats recommended among other things that the Bill
be amended to provide for:
- representative action to be brought by two or more people
- to allow persons alleging the same source of discrimination but
seeking different remedies to form party of the one action.
The Senate Committee received a range of
evidence in relation to the importance of being able to amend a
complaint following initial lodgement.
The Bill currently provides two avenues for
amending a complaint: any complaint or respondent may amend a
complaint to add a respondent, with the leave of the President
(proposed subsection 46PF(3)); a complainant may
generally amend the complaint with the leave of the President
(proposed subsection 46PA).
However, once a complaint has been terminated,
then it cannot be amended (proposed subsection
46PF(4)). The Bill provides that the unlawful
discrimination alleged in an application to the Federal Court must
- the same as (or the same in substance as), or
- must arise out of the same (or substantially the same)
act, omissions or practices that were the
subject of the terminated complaint.
Evidence before the Committee argued that this
test raises questions of efficiency and equity. Firstly, Mr John
Basten QC argued that if legal advice was not sought during the
HREOC stage of the complaint, then the matter may be drafted too
narrowly to properly litigate all issues which would satisfactorily
finalise a matter. Secondly, the current framework would not permit
the addition of related discrimination (such as victimisation)
which occurred after the termination of a complaint. Ms Chris
Ronald, a barrister with expertise in discrimination matters, told
the Committee that:
In my experience of complaints, victimisation
complaints which appear later should just be added at the Federal
Court stage. If you cannot conciliate the discrimination complaint
... you are not likely to be able to conciliate a later
victimisation complaint ... It is ridiculous to suggest that you
run two separate cases where the facts overlap even if they are
some years apart.(36)
The Opposition and Australia Democrats supported
this argument. On the other hand, Attorney-General's Department
stated to the Senate Committee that these proposals were
inconsistent with the Government's policy that discrimination
matters go through conciliation first, but suggested that linked
matters may be able to be expedited.
The Bill expands the current defence of
self-incrimination in the DDA, the RDA and the SDA for a respondent
or other person with regard to the President's range of powers to
obtain information and documents. Evidence before the Committee
stated that this change may cause significant detriment to a
complainant who requires access to documents held by the respondent
and is at odds with the non-judicial and confidential nature of a
Enforcing Conciliated Agreements
Evidence before the Committee argued that there
should be some mechanism to enforce conciliated agreements, for
example requiring that each conciliated agreement be set down and
signed as an enforceable agreement.
The Attorney-General's Department said that
where a respondent breaks a conciliated agreement 'the complainant
will be able to relodge the complaint with the Commission and the
complaint can be quickly terminated.'(37)
The Committee noted that 'this may not be
entirely satisfactory because the party not in default would be
obliged to litigate the whole matter or at least seek a judgement
on the deed of release or terms of settlement.' The Minority report
supported a provision which would enable a conciliated agreement to
be formally drafted as a document.
Judicial Registrars: Constitutional and
Constitutional and practical concerns can be
raised about the proposed structure of judicial registrars.
The Senate Committee raised concerns that the
power of judges to delegate matters to judicial registrars was not
as broad as was provided for in the Bill, or may be interpreted
more narrowly by a Court. In particular, the Committee was
concerned that there was uncertainty as to the type of matters, or
the extent to which matters, can be delegated to judicial
registrars. The Bill only provides that judicial registrars cannot
grant interim injunctions. As this is the only express limitation,
the Bill leaves it to judges to decide what powers and functions
can be delegated to registrars. Although this may be on the ground
that it would be unconstitutional for the Parliament to direct the
Courts what they must delegate, Peter Bailey of the ANU Law Faculty
argued that the Bill comes very close to telling the Court how to
manage its business in a different way.
What may be the result if the Court decides not
to delegate and then finds its business list lengthening? Will the
Executive then say that, to save cost, the Court should delegate to
judicial registrars? It is easy to see progressive risk to the
independence of the Judiciary arising.(38)
The Committee noted that this view gains some
support from Justice Dawson in Harris v. Calladine
(39)which states that a Federal Court must be able to exercise a
real choice for itself over those matters, if any, which are to be
delegated. Effective supervision and control will not be maintained
if there are insufficient judges for the purpose.
The Committee recommended that a preferred
approach would be to rely on the general power to delegate rather
than including a specific provision in the Bill for two
- that by specifically providing for delegation to registrars,
the Bill sets out to encourage such delegation and may be seen as
encouraging a breach of the spirit, at least of the separation of
- the impression may arise that discrimination matters are seen
as less important than other Federal Court work, such as commercial
or property matters.
This recommendation was not accepted by the
Practical Implications of Judicial
The use of judicial registrars appears to be
aimed at promoting as informal and accessible a Federal Court as is
constitutionally possible and it is likely that most matters in the
Federal Court will initially be dealt with by a judicial registrar.
Given this, then, the Bill does not necessarily move very far from
the tripartite structure for anti-discrimination matters so
criticised prior to enactment of the 1992 enforcement provisions.
Instead of having conciliation, an inquiry by the Commission whose
determination is unenforceable and then a de novo hearing in the
Federal Court, the Bill proposes a tripartite model of
conciliation, an inquiry (generally by a judicial registrar, which
although enforceable is subject to an automatic right of appeal),
and the possibility of another hearing by a Federal Court judge
(the form of the review is discussed above).
If there are to be judicial registrars and
rights of review before a Court, then it is arguable that it would
be effective for registrars to be organised in such a way that they
are able to develop a human rights expertise, a mechanism which may
serve to contain the scope of a review process. This could be
achieved by providing for specific human rights judicial registrars
and providing resources for ongoing training in human rights and
The Attorney-General's Department disagreed with
the proposition of providing resources for specialised training for
both judicial registrars and judges on workplace flexibility
Given the Court's wide jurisdiction, the
benefits of specialised knowledge must be balanced against the need
to retain the Court's ability to allocate judicial registrars
according to its changing caseload needs. This flexibility is
necessary to ensure that the Court's resources are most efficiently
Court Procedure and Evidence
Proposed section 46PR states
that the 'Court is not bound by technicalities or legal forms',
subject to the Constitution. Concerns were raised to the Committee
that this provision does not sufficiently address questions of
access to the Court for the typical applicants in discrimination
matters. Ms Rosemary Hunter described the requirement as
'minimalist' and 'a rather slender basis for such necessary
modifications', arguing that a fundamental feature of human rights
legislation is that it cannot be treated simply as the province of
lawyers, but must be accessible to ordinary people who are often in
a situation of disadvantage.(41)
Another witness, Associate Professor Tahmindjis
stated that the provision is so narrow, it was even unclear whether
it exempted the rules of evidence. This view was supported by legal
advice provided to the Blind Citizens of Australia, who argued that
the Bill should exempt anti-discrimination matters from onerous
The Attorney-General's Department replied that
in recent times, evidence rules had been simplified and clarified
and that in certain circumstances the Federal Court could dispense
with the rules of evidence if their application would cause
unnecessary expense or delay. However, this response does not deal
with equity concerns for applicants in often disadvantaged
Financial Barriers to the Federal
As previously noted, evidence before the
Committee indicated that reductions in the Commonwealth legal aid
budget would exacerbate access difficulties to the Federal Court
for many applicants. Court fees and costs in the Federal Court were
also raised as seriously inhibiting complainant access.
Federal Court fees for one day in Court are in
excess of $2,000. Federal Court Rules provide for general
provisions for waiver of fees where a person holds a health or
concession care, is in receipt of legal aid, Austudy/Abstudy, is
under 18 or in the opinion of the registrar is suffering financial
hardship. Fees can also be deferred in cases of emergency.
Despite these exceptions, evidence was provided
by a range of submissions that the imposition of court fees would
provide a very significant impediment to the lodging of a
discrimination matter in the Federal Court. Many submissions argued
that court fees be waived entirely in human rights cases, a
position also advanced by HREOC.
The Attorney-General's Department advised that
'after careful consideration the Government had decided that the
usual rules in relation to fees should apply to human rights
matters' as a matter of policy.
Alternatively, the Labor Members Minority Report
noted that one of the clear findings of the Access to Justice
Report,(42) was that most ordinary people are unable to pursue
legal matters due to prohibitive court fees. Consequently, they
recommended that given that discrimination matters typically
involve imbalances of power between the applicant and the
respondent, it was appropriate that only a nominal filing fee be
imposed on discrimination matters. This was supported by the
The Committee identified two concerns in
relation to legal costs:
- whether the usual legal rule of 'costs follow the event' should
- whether lawyers acting for applicants in discrimination matters
should be able to charge solicitor/client costs at a market rate or
be limited to party/party costs at the Federal Court scale (which
would be less expensive).
Disability groups said that for people on
disability pensions, the possibility of costs following the event
would prove an insurmountable barrier to lodging a complaint,
regardless if there was the possibility of costs not being awarded
against an applicant.
There is little chance that people with
disabilities, primarily on pensions, will take cases to the Federal
Court, largely regardless of the merits of the case, because no
legal representation can or will guarantee the outcome of a case
and there is no way the costs could be paid.(43)
Other community groups repeated this concern,
noting that the vast majority of discrimination complainants were
on modest means, or at least disadvantaged compared to the
respondent, and that 'the costs barrier will weight the whole
system ... in favour of respondents, who characteristically can
command greater resources than complainants.'(44)
In the Federal Court's native title
jurisdiction, a comparable jurisdiction to the proposed human
rights regime, section 85A of the Native Title Act 1993
provides that each party will bear their own costs (ie costs do not
follow the event).
The Attorney-General's Department has stated
that there is 'nothing so different about these sorts of cases that
would merit special measures regarding costs'. Additionally, the
Department stated that by allowing costs to follow the event,
speculative actions would be encouraged. The Committee's Minority
report by the Australian Democrats supported the view that costs
should be capable of being awarded.
Alternatively, the Labor Party Minority Report
recommended that costs should not be able to awarded by the Court
in discrimination matter, UNLESS the party had been frivolous or
vexatious in their behaviour, in which case both party/party and
solicitor/client costs could be awarded.
In terms of whether solicitors acting for a
complainant should be confined to charging their client party/party
costs, the Department stated that 'solicitors will be reluctant to
represent parties, especially in more complex matters, if they
could only charge party/party costs to their clients.' The Labor
Party Minority Report supported the Majority Report's view in
relation to lawyers being able to charge both solicitor/client and
- Senate Legal and Constitutional Legislation Committee,
Consideration of Legislation Referred to the Committee: Human
Rights Legislation Amendment Bill 1996, June 1997.
- For a more detailed discussion of these issues see Anne Twomey,
'Trimming the Tribunals: Brandy v Human Rights and Equal
Opportunity Commission', Current Issues Brief No. 40 1994/5, 30
March 1995, Parliamentary Research Service.
- In particular the International Covenant on Civil and Political
Rights, the Declaration on the Rights of the Child, the Declaration
on the Rights of Mentally Retarded Persons and the Declaration on
the Rights of Disabled Persons.
- The fact that the hearing was de novo was clarified in the High
Court case of Aldridge v Booth (1988) 80 ALR 1.
- For example, in Aldridge v Booth, a woman complaining of sex
discrimination was unable to have the matter resolved by
conciliation, and after an inquiry by the Commission was awarded
$7,000 damages. The respondent refused to pay. The complainant
received legal aid and initiated proceedings in the Federal Court,
and one year later, after a seven day trial, was awarded the
identical sum of money by the Federal Court. However, the
respondent still refused to pay on the grounds that he was
impecunious and the woman could not afford to pursue the matter
further. The former Member for Kennedy, Mr Rob Hulls MP, publicly
noted that '[t]o my mind, the whole process is an abuse of human
rights'. See academic and judicial comments noted in the Report of
the Senate Standing Committee on Legal and Constitutional Affairs,
Review of Determinations of the Human Rights and Equal Opportunity
Commission and the Privacy Commissioner, November 1992, pp. 8 - 12.
- Second Reading Speech, Sex Discrimination and Other Legislation
Amendment Bill, House of Representatives, 3 November 1992.
- (1995) EOC 2 - 662.
- Human Rights Legislation Amendment Act 1995 (Cwlth).
- See Ruth Treyde, 'Enforcing Human Rights: The Response to
Brandy', (1996) 7 Public Law Review, p. 15.
- The Federal Court was considered a suitable location for the
judicial consideration of anti-discrimination matters due to the
breadth of its jurisdiction. The creation of a new Federal Human
Rights Court was considered, however the Committee believed that
this would be an inefficient exercise given the relatively small
amount of human rights cases litigated. The Family Court and the
Industrial Relations Court were also considered as options,
however, as they both have a more specialist jurisdiction then the
Federal Court, they were considered inappropriate.
- Attorney-General Michael Lavarch MP, 'Human Rights and Equal
Opportunity Commission Overhaul', Press Release, 28 January 1995.
- Sean Brennan, 'Legal Aid and Family Services', 1998-99 Budget
Review, Department of the Parliamentary Library, 1998.
- Senate Legal and Constitutional References Committee, Inquiry
into the Australian Legal Aid System, Third Report, June 1998.
- The amendments in the Workplace Relations Act 1996 provides,
among other things, that judicial registrars must have at least 5
years experience as a legal practitioner; are eligible for
reappointment; and are not subject to direction or control when
exercising powers delegated to them.
- The use of judicial registrars in a manner which does not
offend the doctrine of the separation of powers is generally spelt
out in the High Court case of Harris v Calladine (1991) 172 CLR,
84-166. The case states that the Parliament can authorise the
delegation of power to judicial registrars so long as the judges
remain in control over what can be delegated, fulfil the primary
function of acting judicially and therefore have effective control
over the Court. If the exercise of delegated powers is subject to
review on the law and facts, or de novo, it is argued that this
does not contravene the separation of powers.
- Gibson v Bosmac Pty Ltd (1995) 60 Industrial Reports 1.
- See Federal Court Rules, O. 9 and O. 45.
- In the 1995-96 financial year, 50% of applications to the
Attorney-General received financial assistance.
- For example, see Federal Court of Australia Regulations,
Regulation 2AA (2)(g) provides, inter alia, for waiver of setting
down fees if a person is on social security benefits, is an Austudy
or Abstudy recipient, or is under 18 years old.
- Human Rights and Equal Opportunity Commission, Press Release, 7
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 17.
- Labor Party Minority Report, p. 5
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 21.
- Ibid., p. 21.
- Sections 106A-106F.
- Sections 25ZD-25ZI.
- Sections 84A-84F.
- Senate Legal and Constitutional Legislation Committee, op.
cit., p. 23.
- Labor Party Minority Report, p. 8.
- Tropical Shine Holdings Pty Ltd trading as KC Country v Lake
Gesture Pty Ltd (1993) 118 ALR 510.
- It should be noted that Order 43 of the Federal Court Rules
enables a person with a mental disability to be represented by a
committee or by a next friend, who would therefore be deemed to
have a 'sufficient interest'.
- Senate Legal and Constitutional Legislation Committee, op.
- Ibid., pp. 32-33.
- Ibid., p. 43.
- (1991) 172 CLR, 84-166.
- Ibid., p. 47.
- Ibid., p. 54-55.
- Access to Justice: An Action Plan, Access to Justice Advisory
- Ibid., p. 60.
17 February 1999
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