A. R. BROWNING
Clerk of the House of Representatives

House of Representatives,
Canberra, 15 November 1985 a.m.

BE IT ENACTED by the Queen, and the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:

PART I—PRELIMINARY

Short title

1. This Act may be cited as the Australian Bill of Rights Act 1985.

Commencement

2. (1) Sections 1, 2, 3 and 50 shall come into operation on the day on which this Act receives the Royal Assent.

(2) The remaining sections (other than section 11) shall come into operation on a day to be fixed by Proclamation.

(3) Section 11 shall come into operation at the expiration of 5 years after the day fixed for the purposes of sub-section (2) of this section.

Objects

3. The objects of this Act are—

(a)

to promote universal respect for, and observance of, human rights and fundamental freedoms for all persons without discrimination;

(b)

to that end, to give effect to certain provisions of the International Covenant on Civil and Political Rights by enacting an Australian Bill of Rights;

(c)

to ensure that any person whose rights or freedoms as set out in the Australian Bill of Rights are infringed by or under any law in relation to which that Bill of Rights operates has an effective remedy; and

(d)

to promote, enhance and secure, as paramount objectives, the freedom and dignity of the human person, equality of opportunity for all persons and full and free participation by all Australians in public affairs and public debate.

Interpretation

4. (1) In this Act, unless the contrary intention appears—

"act" means an act done—

(a)

by or on behalf of the Commonwealth, a State or a Territory; or

(b)

by or on behalf of an authority of the Commonwealth, of a State or of a Territory,

being an act done—

(c)

in relation to an Australian citizen—within or outside Australia; or

(d)

in any other case—within Australia;

"Australia" includes the external Territories;

"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 State of the Commonwealth (not being an office or appointment referred to in sub-paragraph (c) (iii)); 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 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 an enactment 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 an enactment, 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; and

(c)

in relation to a Territory—

(i)

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

"Bill of Rights" means the Australian Bill of Rights set out in section 8;

"cause" includes every civil or criminal proceeding and also includes a proceeding that is incidental to another proceeding;

"Commonwealth enactment" means an Act or an instrument (other than a Territory enactment or a Northern Territory enactment) made under an Act, and includes any other legislation or rule of the common law applied (otherwise than by virtue of the Commonwealth Places (Application of Laws) Act 1970) as a law of the Commonwealth, to the extent that it operates as such a law;

"Commission" means the Human Rights and Equal Opportunity Commission established by the Human Rights and Equal Opportunity Commission Act 1985;

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

"enactment" means a Commonwealth enactment, a State enactment or Territory enactment;

"Federal Court" means the Federal Court of Australia;

"infringe" includes abrogate and abridge;

"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 an enactment of that State;

(b)

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

(c)

a person employed by a body established for a purpose of that State by or under an enactment of that State;

"law" means a law of the Commonwealth, a law of a Territory or a law of a State;

"law of a State" means any law in force in a State, including a rule of the common law but not including a law of the Commonwealth;

"law of a Territory" means any law in force in a Territory, including a rule of the common law but not including a law of the Commonwealth;

"law of the Commonwealth" means—

(a)

a Commonwealth enactment;

(b)

any other law (other than a rule of the common law) in force throughout Australia; and

(c)

any rule of the common law as it has effect in relation to or for the purposes of the operation of a Commonwealth enactment or a law referred to in paragraph (b);

"member" means a member of the Commission;

"member of the staff assisting the Commission" means a member of the staff referred to in section 43 of the Human Rights and Equal Opportunity Commission Act 1985;

"Minister" means—

(a)

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

(b)

in relation to 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;

"Parliament", in relation to the Northern Territory, means the Legislative Assembly of the Northern Territory;

"practice" means a practice engaged in—

(a)

by or on behalf of the Commonwealth, a State or a Territory; or

(b)

by or on behalf of an authority of the Commonwealth, of a State or of a Territory,

being a practice engaged in—

(c)

in relation to an Australian citizen—within or outside Australia; or

(d)

in any other case—within Australia;

"prescribed person" means—

(a)

a member;

(b)

a member of the staff assisting the Commission;

(c)

if an arrangement in force under section 45 provides for a State or an instrumentality of a State to perform functions of the Commission referred to in paragraph 25 (a) —an instrumentality of that State referred to in the arrangement; or

(d)

a person included in a class of persons declared by the regulations to be prescribed persons for the purposes of this Act;

"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;

(c)

a proposed State enactment; or

(d)

an instrument proposed to be made under a Commonwealth enactment or under a Territory enactment;

"proposed State enactment" means—

(a)

a proposed law introduced into the Parliament of a State;

(b)

a proposed law prepared on behalf of—

(i)

the Government of a State;

(ii)

a Minister of the State; or

(iii)

a body established by law that has the function of recommending proposed laws of a State; or

(c)

an instrument proposed to be made under a State enactment;

"responsible Minister" means—

(a)

in relation to a Commonwealth enactment, a Territory enactment or a proposed enactment (other than a proposed State enactment)—the Minister of State of the Commonwealth responsible for the administration of the matter to which the enactment or proposed enactment relates;

(b)

in relation to a State enactment or a proposed State enactment—the Minister of the State responsible for the administration of the matter to which the enactment or proposed enactment relates;

(c)

in relation to an act done or practice engaged in by or on behalf of the Commonwealth or a Territory or by or on behalf of an authority of the Commonwealth or of a Territory—the Minister of State of the Commonwealth responsible for the administration of the matter in connection with which the act was done or the practice was engaged in; and

(d)

in relation to an act done or practice engaged in by or on behalf of a State or by or on behalf of an authority of a State—the Minister of the State responsible for the administration of the matter in connection with which the act was done or the practice was engaged in;

"State" includes the Northern Territory;

"State enactment" means a State Act or an instrument made under a State Act and includes a Northern Territory enactment;

"suit" includes any action or original proceeding between parties;

"Territory" does not include the Northern Territory;

"Territory Act" means an Act passed by a legislature of a Territory and duly assented to;

"Territory enactment" means—

(a)

a Territory Act;

(b)

an Ordinance of a Territory;

(c)

an instrument made under such an Act or Ordinance;

(d)

any other legislation or rule of the common law applied as a law of a Territory, to the extent that it operates as such a law; and

(e)

an instrument made under legislation referred to in paragraph (d).

(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) Subject to sub-section (5), a law shall, for the purposes of this Act, be taken to be in conflict with the Bill of Rights if it—

(a)

infringes, or authorises the infringement of, a right or freedom set out in the Bill of Rights; or

(b)

makes, or authorises the making of, a provision that, according to the Bill of Rights, is not to be made by any law.

(5) Where a law—

(a)

promotes, enhances or secures a right or freedom set out in the Bill of Rights, but infringes, or authorises the infringement of, another right or freedom set out in the Bill of Rights; or

(b)

promotes, enhances or secures for a person a right or freedom set out in the Bill of Rights, but, in relation to another person, infringes, or authorises the infringement of, a right or freedom set out in the Bill of Rights,

it is the intention of the Parliament that the law shall not be determined to be in conflict with the Bill of Rights unless such a determination would further the objects of this Act, and in particular the paramount objectives referred to in paragraph 3 (d), to a greater extent than a determination that the law is not in conflict with the Bill of Rights.

(6) A reference in this Act to a right or freedom set out in the Bill of Rights is a reference to such a right or freedom limited only as permitted by Article 3 of the Bill of Rights.

(7) A reference in this Act to the date on which an enactment other than this Act came into force shall, in the case of an enactment different provisions of which came into force on different dates, be read as a reference to the date on which the provision concerned came into force.

(8) For the purposes of this Act, an Act shall be taken to have been enacted at the time when it receives the Royal Assent.

(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.

Interpretation of Bill of Rights

5. For the purposes of the interpretation of the Bill of Rights, each Article of the Bill of Rights shall be taken to be a section of this Act.

Extent to which Act binds the Crown

6. (1) This Act binds the Crown in right of the Commonwealth and of Norfolk Island.

(2) Part V, and any other provisions of this Act in their application in relation to that Part, bind the Crown in right of each State.

(3) 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.

Extension to external Territories

7. This Act extends to every external Territory.

PART II—THE AUSTRALIAN BILL OF RIGHTS

Australian Bill of Rights

8. The Australian Bill of Rights is as follows:

AUSTRALIAN BILL OF RIGHTS

Division 1—General

Article 1
Entitlement to rights and freedoms without distinction

1. Every person is entitled to equality before the law and to the human rights and fundamental freedoms set out in this Bill of Rights, irrespective of distinctions such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Men and women have the equal right to the enjoyment of the human rights and fundamental freedoms set out in this Bill of Rights.

Article 2
Effect of Bill of Rights on existing rights and freedoms

A right or freedom existing under, or recognised by, any other law shall not be taken to have been diminished or derogated from by reason only that the right or freedom is not set out in this Bill of Rights.

Article 3
Permissible limitations

1. The rights and freedoms set out in this Bill of Rights are subject only to such reasonable limitations prescribed by law as can be demonstrably justified in a free and democratic society.

2. A right or freedom set out in this Bill of Rights shall not be limited by any law to any greater extent than is permitted by the International Covenant on Civil and Political Rights.

Division 2—Non-discrimination

Article 4
Equal protection of the law

1. Every person has the right without any discrimination to the equal protection of the law.

2. Nothing in this Bill of Rights affects the operation of any earlier or later law by reason only of the fact that the law discriminates in favour of a class of persons for the purpose of redressing any disabilities particularly suffered by that class or arising from discrimination against that class.

Article 5
Rights of minority groups

Persons who belong to an ethnic, religious or linguistic minority have the right, in community with other members of their own group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Division 3—Fundamental Political Rights

Article 6
Right of participation in public life

Every Australian citizen has the right and shall have the opportunity—

(a)

to take part in the conduct of public affairs, directly or through freely chosen representatives;

(b)

to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot, guaranteeing the free expression of the will of the electors; and

(c)

to have access on general terms of equality to public employment.

Article 7
Freedom of expression

Every person has the right to freedom of expression, including the freedom of the press and other media of communication, and the freedom to seek, receive and impart ideas or information of any kind in any form, without interference and regardless of frontiers.

Article 8
Freedom of thought and conscience

Every person has the right to freedom of thought and conscience, including the right to hold opinions without interference.

Article 9
Freedom to have or adopt a religion or belief

Every person has the right to have or adopt a religion or belief of that person's choice without coercion of any kind, and to manifest that religion or belief in worship, observance, practice and teaching, whether individually or in community with others and whether in public or in private.

Article 10
Right of peaceful assembly

Every person has the right of peaceful assembly.

Article 11
Freedom of association

Every person has the right to freedom of association with others, including the right to form and join trade unions for the protection of that person's interests.

Division 4—Privacy and Family Rights

Article 12
Right to protection from arbitrary interference

1. Every person has the right to—

(a)

protection of privacy, family, home and correspondence from arbitrary or unlawful interference; and

(b)

protection from unlawful attacks on honour and reputation.

2. For the purpose of giving effect to the right referred to in paragraph 1 and without limiting the nature and extent of that right, a search or seizure is unlawful unless—

(a)

made pursuant to a warrant issued by a judge, magistrate or justice of the peace upon reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search, who or what is to be searched and what is to be seized;

(b)

made pursuant to a law authorising search or seizure where search or seizure as so authorised is a necessary element in the proper administration or enforcement of revenue, customs or quarantine laws or the reasonable regulation of an activity carried on pursuant to a licence, permit or similar authority granted under a law;

(c)

made pursuant to a law authorising search or seizure where search or seizure as so authorised is necessary to protect life or public safety;

(d)

made pursuant to a law authorising search or seizure where there is a compelling need for immediate action; or

(e)

in the case of a search—it is established that the search was made with free and voluntary consent and after the giving of a warning as to the consequences of the giving of consent to the search.

Article 13
Right to marry and to found a family

Recognising that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State—

(a)

every man and woman of marriageable age has the right to marry a person of the opposite sex and to found a family; and

(b)

no marriage shall be entered into without the free and full consent of the intending spouses.

Article 14
Rights of the child

Recognising that every child has the right to such measures of protection as are required by the child's age—

(a)

every child is entitled to the fundamental rights and freedoms set out in this Bill of Rights to the greatest extent compatible with the age of the individual child;

(b)

every child shall be registered immediately after birth and shall have a name;

(c)

every child has the right to acquire a nationality; and

(d)

the liberty of parents and legal guardians to ensure the religious and moral education of their children in conformity with their own convictions is to be respected.

Division 5—Freedom of Movement

Article 15
Rights of persons in Australia

1. Every person lawfully in Australia has the right to freedom of movement and choice of residence.

2. A person who is lawfully in Australia but is not an Australian citizen shall not be required to leave Australia except on such grounds and in accordance with such procedures as are established by law.

Article 16
Right to enter Australia

Every Australian citizen has the right to enter Australia.

Article 17
Right to leave Australia

Every person has the right to leave Australia.

Division 6—Life, Liberty and Criminal Process

Article 18
Right to life

Every human being has the inherent right to life and no person shall be arbitrarily deprived of life.

Article 19
Liberty and security of person

1. Every person has the right to liberty and security of person.

2. No law shall authorise the arbitrary arrest, detention or imprisonment of any person.

3. No person shall be deprived of liberty except on such grounds, and in accordance with such procedures, as are established by law.

4. No person shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.

Article 20
Slavery and servitude

No person shall be held in slavery or servitude or be required to perform forced or compulsory labour.

Article 21
Right to be informed of reasons for arrest and of charges

Any person who is arrested shall be informed at the time of the arrest of the reasons for the arrest, and shall be informed promptly and in detail of any charges in a language which that person understands.

Article 22
Right to consult with lawyer and to remain silent

Any person detained in custody has the right to remain silent and the right to consult with a lawyer.

Article 23
Hearings, release and trial

1. Any person arrested or detained on a criminal charge shall be brought promptly before a judge, magistrate or justice of the peace.

2. No person awaiting trial shall be unreasonably deprived of the right to release on giving a guarantee to appear for trial.

3. Any person arrested or detained on a criminal charge has the right to be tried within a reasonable time.

Article 24
Right to test lawfulness of detention

Any person deprived of liberty has the right to take proceedings before a court for the determination of the lawfulness of the detention and to be released if the court finds that the detention is not lawful.

Article 25
Presumption of innocence

Any person charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Article 26
Right to fair hearing

In the determination of any criminal charge, or of any rights or obligations in a suit at law, every person has the right to a fair and public hearing by a competent, independent and impartial tribunal.

Article 27
Rights of the accused relating to trial

Every person who is charged with a criminal offence has the right—

(a)

to be informed of the right to obtain legal assistance;

(b)

to communicate with a lawyer;

(c)

to receive legal assistance without cost if the interests of justice so require and the person lacks sufficient means to pay for the assistance;

(d)

to have adequate time and facilities to prepare a defence;

(e)

to be present at any trial relating to the offence and to present a defence;

(f)

to examine the witnesses against the person;

(g)

to obtain the attendance of, and to examine, witnesses for the person;

(h)

to have the free assistance of an interpreter if the person cannot understand or speak the language used in court;

(i)

not to be compelled to testify or confess guilt; and

(j)

in the case of a child, to be dealt with in a manner which takes account of the child's age.

Article 28
No retrospective criminal offences or penalties

1. No person shall be convicted of any criminal offence on account of any act or omission which did not constitute a criminal offence at the time when it occurred.

2. No person convicted of any criminal offence shall be liable to a heavier penalty than was applicable at the time the offence was committed.

Article 29
Right of review of conviction and sentence

Every person convicted of a criminal offence has the right to have the conviction or sentence reviewed by a higher tribunal according to law.

Article 30
No trial or punishment for same offence

No person finally convicted or acquitted of a criminal offence shall be tried or punished again for the same offence or for substantially the same offence arising out of the same facts.

Article 31
Rights when deprived of liberty

1. Every person deprived of liberty has the right to be treated with humanity and with respect for the inherent dignity of the human person.

2. So far as is practicable—

(a)

accused persons shall be segregated from convicted persons, and shall be treated in a manner appropriate to their status as unconvicted persons;

(b)

accused children shall be segregated from accused adults; and

(c)

convicted children shall be segregated from convicted adults, and shall be treated in a manner appropriate to their age and legal status.

Article 32
No torture or inhuman treatment and no experimentation without consent

1. No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

2. No person shall be subjected to medical or scientific experimentation without that person's free consent.

PART III—OPERATION OF BILL OF RIGHTS

Operation of Bill of Rights

9. (1) The Bill of Rights—

(a)

has the effect given to it by the following sections of this Part;

(b)

subject to the effect that it has as mentioned in paragraph (a), applies as a law of the Commonwealth in relation to matters arising under laws of the Commonwealth, whether enacted, made, applied or commencing to have force or effect before or after the commencement of this section; and

(c)

subject to the effect that it has as mentioned in paragraph (a), applies as a law of the Territory concerned in relation to matters arising under laws of a Territory, whether enacted, made, applied or commencing to have force or effect before or after the commencement of this section,

but, except as provided by sub-section (2), does not have any other operation.

(2) For the purposes of Part V, it is hereby declared that the rights and freedoms set out in the Bill of Rights apply in relation to acts and practices.

(3) The rights and freedoms set out in the Bill of Rights do not apply for the benefit of bodies politic or corporate.

Interpretation of legislation

10. (1) Notwithstanding anything in any other law relating to the construction or interpretation of legislation, in the interpretation of—

(a)

a provision of a Commonwealth enactment; or

(b)

a provision of a Territory enactment,

a construction of the provision that would result in the enactment not being in conflict with the Bill of Rights, or that would further the objects of this Act, shall be preferred to any other construction.

(2) Without limiting the generality of sub-section (1), in the interpretation of—

(a)

an Act that authorises the making of an instrument (including a Territory enactment but not including a Northern Territory enactment); or

(b)

a Territory enactment that authorises the making of an instrument,

a construction that would result in the Act or Territory enactment not authorising the making of an instrument that would be in conflict with the Bill of Rights shall be preferred to any other construction.

(3) If, but for this sub-section, this section would have the effect that an instrument made under an Act, or under a Territory enactment, before the enactment of this Act would be invalid, this section shall not be taken to have that effect until section 11 comes into operation.

Inconsistent prior Commonwealth Acts deemed to he repealed, &c.

11. Where an Act that was enacted before the enactment of this Act is, in whole or in part, in conflict with the Bill of Rights—

(a)

that Act shall, to the extent that it is so in conflict, be deemed to be repealed by this Act; and

(b)

any instrument (including a Territory enactment) made under that Act, to the extent that the power to make that instrument derived from that Act in so far as that Act is so deemed to be repealed, ceases to operate.

Operation of later Commonwealth Acts

12. (1) This section applies to every Act enacted after the enactment of this Act that is, in whole or in part, in conflict with the Bill of Rights.

(2) Where an Act to which this section applies provides, by express words of plain intendment, that its provisions, to the extent to which they are in conflict with the Bill of Rights, are to prevail over the Bill of Rights, then—

(a)

subject to sub-section (3), that Act operates as so provided; and

(b)

the Bill of Rights, to the extent only that that Act is in conflict with it, and for so long only as that Act is in conflict with it, does not have any operation in relation to that Act,

but nothing in this sub-section affects any other operation of the Bill of Rights under this Act.

(3) Where a provision of an Act in relation to which sub-section (2) applies is in conflict with the Bill of Rights by reason that it authorises—

(a)

the making of an instrument that infringes, or authorises the infringement of, a right or freedom set out in the Bill of Rights; or

(b)

the making of an instrument containing a provision that, according to the Bill of Rights, is not to be made by any law,

sub-section (2) has effect in relation to the operation of the first-mentioned provision but does not have effect in relation to an instrument made pursuant to that provision.

(4) Where an Act to which this section applies does not provide, by express words of plain intendment, that its provisions, to the extent to which they are in conflict with the Bill of Rights, are to prevail over the Bill of Rights, then—

(a)

that Act, to the extent only that it is in conflict with the Bill of Rights, and for so long only as it is in conflict with the Bill of Rights, does not have any operation; and

(b)

any instrument (including a Territory enactment) made under that Act, to the extent that the power to make that instrument is derived from that Act in so far as that Act does not have any operation, does not have any operation.

Operation of certain subordinate instruments

13. (1) In this section, "relevant instrument" means an instrument (including a Territory enactment but not including a Northern Territory enactment) that—

(a)

is made under an Act after the enactment of this Act; and

(b)

is, in whole or in part, in conflict with the Bill of Rights.

(2) Where—

(a)

an Act to which section 12 applies contains a provision authorising the making of instruments that are in conflict with the Bill of Rights;

(b)

by virtue of section 12, that provision operates notwithstanding that it is in conflict with the Bill of Rights; and

(c)

that provision provides, by express words of plain intendment, that such instruments, to the extent to which they are in conflict with the Bill of Rights, are to prevail over the Bill of Rights,

then—

(d)

a relevant instrument made pursuant to that provision operates notwithstanding that the instrument is in conflict with the Bill of Rights; and

(e)

the Bill of Rights, to the extent only that the instrument is in conflict with it, and for so long only as the instrument is in conflict with it, ceases to operate in relation to the circumstances dealt with by that instrument,

but nothing in this sub-section affects any other operation of the Bill of Rights under this Act.

Enactments deemed to be in force in certain cases

14. (1) The purpose of this section is to provide that—

(a)

where a court makes a finding one effect of which is that a Commonwealth enactment or a Territory enactment has not been in force during a period preceding the date of the finding—any grave public inconvenience or hardship that might follow that finding may be avoided by treating that enactment as having been in force during that period; and

(b)

where a court makes a finding one effect of which is that a Commonwealth enactment or a Territory enactment will not be in force after the making of the finding—any grave public inconvenience or hardship that might follow that finding may be avoided by treating the enactment as being in force for a period that is sufficient to enable the legislature or other body that made the enactment to take appropriate legislative measures.

(2) Where—

(a)

a court finds that an Act is, in whole or in part, in conflict with the Bill of Rights;

(b)

the Act—

(i)

by virtue of section 11, is, to the extent that it is in conflict with the Bill of Rights, to be deemed to have been repealed by this Act; or

(ii)

by virtue of sub-section 12 (4), does not, to the extent that it is in conflict with the Bill of Rights, have any operation; and

(c)

the court is satisfied that grave public inconvenience or hardship would be caused by the operation of section 11 or sub-section 12 (4), as the case may be, unless sub-section (4) of this section were to apply to that Act,

the court may, unless a court has already made a declaration under this sub-section in relation to the conflict, make a declaration that it is satisfied as mentioned in paragraph (c) and, where such a declaration is made, sub-section (4) of this section applies to the Act to the extent that the Act has been so found to be in conflict with the Bill of Rights.

(3) Where—

(a)

a court finds that a Territory Act or an Ordinance of a Territory is, in whole or in part, in conflict with the Bill of Rights;

(b)

sub-section 13 (2) does not apply to preserve the operation of the Territory Act or the Ordinance; and

(c)

the court is satisfied that grave public inconvenience or hardship would be caused by the Territory Act or the Ordinance having been inoperative unless sub-section (4) of this section were to apply to that Territory Act or Ordinance,

the court may, unless a court has already made a declaration under this sub-section in relation to the conflict, make a declaration that it is satisfied as mentioned in paragraph (c) and, where such a declaration is made, sub-section (4) of this section applies to the Territory Act or the Ordinance to the extent that it has been so found to be in conflict with the Bill of Rights.

(4) Where—

(a)

by virtue of sub-section (2) or (3), this sub-section applies to an enactment to the extent that the enactment has been found in accordance with the sub-section concerned to be in conflict with the Bill of Rights; and

(b)

if this Act had not been enacted, the enactment would have been in force during the period that is the relevant period in relation to the enactment,

the enactment, to the extent that this sub-section applies to it, shall, for all purposes except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (2) or (3), be deemed to have been in force during that period.

(5) For the purposes of sub-section (4)—

"relevant period", in relation to an enactment in respect of which a declaration has been made under sub-section (2) or (3), means the period commencing at the time that is the relevant time in relation to the enactment and ending on the day on which the declaration was made;

"relevant time", in relation to an enactment, means—

(a)

in the case of an enactment that came into force before the commencement of this section—the commencement of this section; and

(b)

in any other case—the time when the enactment came into force.

(6) Where—

(a)

by virtue of sub-section (4), an enactment is, to the extent that that sub-section applies to it, deemed to have been in force for certain purposes during a particular period; and

(b)

if this Act had not been enacted, an instrument made under the enactment, to the extent that sub-section (4) applies to the enactment, would have been in force during that period or a part of that period,

the instrument shall, for all purposes except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (2) or (3), be deemed to have been in force during that period or that part of that period, as the case may be.

(7) Where a court makes a declaration under sub-section (2) or (3) in relation to an enactment that the court has found to be in conflict with the Bill of Rights, the court may, if it is satisfied that grave public inconvenience or hardship would be caused unless sub-section (8) were to apply to that enactment, make a declaration to that effect and, where such a declaration is made, sub-section (8) applies to that enactment to the extent that it has been so found to be in conflict with the Bill of Rights.

(8) An enactment to which this sub-section applies, to the extent that this sub-section applies to it, shall, for all purposes except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (7), be deemed to be in force until—

(a)

it is repealed or amended; or

(b)

the period of 3 months commencing when the declaration is made expires,

whichever happens first.

(9) Where—

(a)

by virtue of sub-section (8) an enactment is, to the extent that that sub-section applies to it, deemed to be in force for certain purposes during a particular period; and

(b)

if this Act had not been enacted, an instrument made under the enactment, to the extent that sub-section (8) applies to the enactment, would be in force during that period or a part of that period,

the instrument shall, for all purposes except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (7), be deemed to be in force during that period or that part of that period, as the case may be.

Operation of Territory laws that further objects of Covenant

15. Notwithstanding anything in this Part, this Act is not intended to exclude or limit the operation of a law of a Territory that furthers the objects of the Covenant and is capable of operating concurrently with this Act.

Powers of courts in criminal proceedings

16. (1) Where, in proceedings against a person for a criminal offence, the court is satisfied that evidence tendered to the court was obtained in a manner that infringed a right or freedom of that person set out in Article 12 or Division 6 of the Bill of Rights, the court shall refuse to admit that evidence in the proceedings unless it is satisfied that—

(a)

admission of the evidence would substantially benefit the public interest in the administration of criminal justice; and

(b)

that benefit would outweigh any prejudice to the rights and freedoms of any person, including the defendant, that has occurred or is likely to occur as a result of the infringement or the admission of the evidence.

(2) Where, in proceedings against a person for a criminal offence, the court is satisfied that a right or freedom of that person set out in Article 12 or Division 6 of the Bill of Rights has been infringed, the court may, subject to sub-section (1), make such order as it considers appropriate and just in all the circumstances to ensure that the administration of justice is not brought into disrepute by reason of that infringement.

(3) In this section, "proceedings" means proceedings—

(a)

before a court in the exercise of federal jurisdiction;

(b)

before a court of the Northern Territory in the exercise of jurisdiction which, if the court were a court of a State, would be federal jurisdiction; or

(c)

before a court of a Territory.

No rights of action or criminal liability under Bill of Rights

17. (1) Nothing in the Bill of Rights confers on a person any right of action in respect of the doing of an act that infringes a right or freedom set out in the Bill of Rights.

(2) Nothing in this Act renders any person liable to any criminal proceedings in respect of the doing of an act that infringes a right or freedom set out in the Bill of Rights.

PART IV—REMOVAL OF CAUSES AND INTERVENTION

Removal to the Federal Court

18. (1) Any cause or part of a cause involving a matter arising under the Bill of Rights that is at any time pending in—

(a)

a federal court, other than the High Court or the Full Court of the Federal Court; or

(b)

a court of a State or Territory,

being a cause or part of a cause that is before the court in the exercise of review jurisdiction, may, at any stage of the proceedings before final judgment, be removed into the Full Court of the Federal Court under an order of the Federal Court, which may, upon application of a party for sufficient cause shown, be made on such terms as the Federal Court thinks fit, and shall be made as of course upon application by or on behalf of the Attorney-General.

(2) The reference in sub-section (1) to review jurisdiction shall be construed as a reference to—

(a)

appellate jurisdiction; or

(b)

jurisdiction to review a decision of a court, tribunal or person by way of—

(i)

the grant of an injunction;

(ii)

the grant of a prerogative or statutory writ or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(iii)

the making of a declaratory order.

(3) Subject to the Constitution, jurisdiction to hear and determine a matter to which a cause or part of a cause removed into the Federal Court by an order under sub-section (1) relates, to the extent that that jurisdiction is not otherwise conferred on the Federal Court, is conferred on the Federal Court by this section.

(4) Where an order for removal is made under sub-section (1), the proceedings in the cause and such documents, if any, relating to the cause as are filed of record in the court in which the cause was pending, or, if part only of a cause is removed, a certified copy of a record of those proceedings and a certified copy of those documents, shall be transmitted by the Registrar or other proper officer of that court to a Registry of the Federal Court.

(5) Nothing in this section affects the operation of Part VII of the Judiciary Act 1903.

Proceedings after removal

19. Where a cause or part of a cause is removed into the Federal Court under section 18, further proceedings in that cause or part of a cause shall be as directed by the Federal Court.

Remittal of causes

20. (1) Where a cause or part of a cause is removed into the Federal Court under section 18, the Federal Court may, at any stage of the proceedings, remit the whole or a part of that cause or part of a cause to the court from which it was removed, with such directions to that court as the Federal Court thinks fit.

(2) Where it appears to the Federal Court that the Federal Court does not have jurisdiction, whether by virtue of sub-section 18 (3) or otherwise, in a cause or part of a cause that has been removed into the Federal Court under section 18, the Federal Court shall proceed no further in the cause or part of a cause but shall remit it to the court from which it was removed.

Effect of interlocutory orders, &c., before removal of cause

21. Where a cause is removed in whole or in part into the Federal Court from another court—

(a)

every order relating to the custody or preservation of any property the subject matter of the cause that has been made before the removal remains in force until it is discharged or varied by the Federal Court;

(b)

any attachment or sequestration of the goods or estate of a defendant had in the cause before the removal holds the goods or estate so attached or sequestered to answer the final judgment of the Federal Court in the same manner as by law they would have been held to answer the final judgment of the court in which the cause was commenced;

(c)

all undertakings or security given by any party in the cause before the removal remain valid and effectual; and

(d)

all injunctions, orders and other proceedings granted, made or taken in the cause before the removal remain in full force and effect until the Federal Court otherwise orders.

Defence in causes removed to Federal Court

22. Where a cause is removed in whole or in part from any court into the Federal Court, the defendant may set up by way of defence any matter that he might have set up if the cause had been commenced in the Federal Court, notwithstanding that the court from which the cause was removed did not have jurisdiction to entertain the matter of defence or could not entertain it in the same cause.

Intervention by Attorney-General

23. (1) The Attorney-General may, on behalf of the Commonwealth, intervene in proceedings before the High Court or any other federal court or any court of a State or Territory, being proceedings that relate to a matter arising under the Bill of Rights.

(2) Where the Attorney-General intervenes in proceedings in a court under this section, the court may, in the proceedings, make such order as to costs against the Commonwealth as the court thinks fit.

(3) The right of the Attorney-General under this section to intervene in proceedings before a court is in addition to, and not in derogation of, any right of the Attorney-General under any other Act to intervene in those proceedings.

Notice to Attorney-General

24. (1) Where a cause pending—

(a)

in the High Court; or

(b)

in another federal court, or in a court of a State or Territory, being a cause that is before the court in the exercise of review jurisdiction,

involves a matter arising under the Bill of Rights, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause specifying the nature of the matter has been given to the Attorney-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question of intervention in the proceedings.

(2) Where a cause pending in a federal court (other than the High Court), or in a court of a State or Territory, not being a cause that is before the court in the exercise of review jurisdiction, involves a matter arising under the Bill of Rights, the court may, if it thinks fit, decide not to proceed in the cause unless and until the court is satisfied that notice of the cause specifying the nature of the matter has been given to the Attorney-General and a reasonable time has elapsed since the giving of the notice for consideration by the Attorney-General of the question of intervention in the proceedings.

(3) A reference in sub-section (1) or (2) to review jurisdiction shall be construed as a reference to—

(a)

appellate jurisdiction; or

(b)

jurisdiction to review a decision of a court, tribunal or person by way of—

(i)

the grant of an injunction;

(ii)

the grant of a prerogative or statutory writ or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(iii)

the making of a declaratory order.

(4) For the purposes of sub-section (1) or (2), a court in which a cause referred to in that sub-section is pending—

(a)

may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit; and

(b)

may direct a party to give notice in accordance with that sub-section.

(5) For the purposes of sub-section (1) or (2), a notice in respect of a cause—

(a)

shall be taken to have been given to the Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of the Attorney-General; and

(b)

is not required to be given to the Attorney-General if the Attorney-General is a party to the cause.

(6) The Attorney-General may authorise the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.

(7) Nothing in sub-section (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

PART V—FUNCTIONS OF HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

Functions of Human Rights and Equal Opportunity Commission

25. In addition to the functions of the Commission under the Human Rights and Equal Opportunity Commission Act 1985, the Commission has the following functions:

(a)

to inquire into any act or practice that may infringe a right or freedom set out in the Bill of Rights, 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 infringes a right or freedom set out in the Bill of Rights, 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;

(b)

to promote an understanding and acceptance in Australia of the rights and freedoms set out in the Bill of Rights and of the objects of this Act, and to promote the protection of those rights and freedoms in Australia;

(c)

to undertake research and educational programs, and other programs, on behalf of the Commonwealth for the purpose of promoting the rights and freedoms set out in the Bill of Rights and the objects of this Act;

(d)

to examine enactments and, when requested by the Minister, proposed enactments for the purpose of ascertaining whether the enactments or proposed enactments are, or would be, in conflict with the Bill of Rights, and to report to the Minister the results of any such examination;

(e)

on its own initiative or when requested by the Minister, to report to the Minister as to the enactments that should be made by the Parliament, or action that should be taken by the Commonwealth, on matters relating to the rights and freedoms set out in the Bill of Rights;

(f)

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

Complaints

26. (1) Where a complaint in writing is made to the Commission that a person has done an act, or engaged in a practice, that infringes a right or freedom set out in the Bill of Rights, the Commission shall, subject to section 27, inquire into the act or practice and, unless the Commission does not consider it appropriate to do so, endeavour to effect a settlement of the matter to which the act or practice relates.

(2) Where it appears to a prescribed person 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 infringes a right or freedom set out in the Bill of Rights; and

(b)

that person requires assistance to formulate the complaint or to reduce it to writing,

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

(3) A person who is detained in custody (in this sub-section and sub-section (4) referred to as the "detainee") is entitled—

(a)

upon making a request to the person (in this sub-section and sub-section (4) referred to as the "custodian") in whose custody the detainee is detained, or to any other person (in this sub-section and sub-section (4) 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 Part, 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.

(4) 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.

(5) For the purposes of sub-sections (3) and (4), 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.

Performance of functions of Commission in relation to Bill of Rights

27. (1) Subject to sub-section (2), the Commission shall perform the functions referred to in paragraph 25 (a)—

(a)

when the Commission is requested to do so by the Minister;

(b)

subject to this section, when a complaint is made to the Commission under section 26; or

(c)

when it appears to the Commission to be desirable to do so.

(2) The Commission shall not commence to—

(a)

inquire into an act done or practice engaged in by or on behalf of a State or an authority of a State; or

(b)

examine a State enactment,

unless the Minister has, after taking into account such matters as the Minister in his or her discretion considers appropriate, consented to the holding of the inquiry or the making of the examination.

(3) Before commencing to inquire, under this Act, into an act or practice, the Commission shall inform the person who appears to the Commission to be the responsible Minister in relation to the act or practice that the Commission proposes to inquire into the act or practice.

(4) 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 infringe a right or freedom set out in the Bill of Rights;

(b)

the Commission is of the opinion that the person whose rights or freedoms under the Bill of Rights are alleged to have been infringed does not desire, or that none of the persons whose rights or freedoms under the Bill of Rights are alleged to have been infringed desires, that the inquiry be held or continued; or

(c)

in a case where a complaint has been made to the Commission in relation to the act or practice—

(i)

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

(ii)

the Commission is of the opinion that the complaint was 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 complainant;

(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.

(5) Where—

(a)

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

(b)

the subject matter of the complaint has been or is the subject matter of an investigation by the Ombudsman under the Complaints (Australian Federal Police) Act 1981,

the Commission shall not inquire into the act or practice unless the Ombudsman and the Commission are both of the opinion that, having regard to all the circumstances, it would be appropriate for the Commission to do so.

(6) 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.

(7) 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 forthwith give notice in writing to the complainant or each of the complainants of that decision and of the reasons for that decision.

Powers and duties of Commission

28. (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 under this Act.

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

Form of examinations or inquiries to he at discretion of Commission, &c.

29. (1) For the purpose of the performance of its functions under this Act, 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 under this Act; 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 prescribed person in connection with, or for the purposes of, the performance of the functions of the Commission under this Act,

is necessary to protect the security of employment, the privacy, or any right or freedom set out in the Bill of Rights, 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 sub-section (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 sub-section (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 sub-section (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.

Nature of settlements

30. The Commission shall, in endeavouring to effect a settlement of a matter relating to the infringement, or an alleged infringement, of a right or freedom set out in the Bill of Rights, have regard to the need to ensure that any settlement of the matter reflects a recognition of that right or freedom and of the need to protect that right or freedom.

Power to obtain information and documents

31. (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 Act, 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 or to a prescribed person, 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 or to a prescribed person any such documents.

(2) Where—

(a)

a person is required by a notice under sub-section (1) to give information or produce a document to the Commission or to a prescribed person; 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 sub-section (2) to an intelligence agency is a reference to the Australian Secret Intelligence Service, the Australian Security Intelligence Organization, the Office of National Assessments, or the Defence Signals Directorate or the Joint Intelligence Organisation of the Department of Defence.

(4) Where documents are produced to the Commission in accordance with a requirement under sub-section (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 an inquiry under this Act, 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 inquiry.

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

(7) A person shall not be required under this section—

(a)

to give any information that the first-mentioned person acquired by reason of that person's holding or having held an office, or being or having been employed, under or for the purposes of a law of the Commonwealth relating to taxation; or

(b)

to produce a document that was furnished or obtained under or for the purposes of such a law,

unless—

(c)

the requirement is made for the purposes of an inquiry that is being held by the Commission as a result of

(i)

a complaint made to the Commission under section 26; or

(ii)

a request made to the Commission by the Minister;

(d)

in a case to which sub-paragraph (c) (i) applies—the information or document does not reveal the identity of any person to whose affairs the information or document relates other than the person who made the complaint; and

(e)

in a case to which sub-paragraph (c) (ii) applies—the information or document does not reveal the identity of any person to whose affairs the information or document relates other than a person to whom the request relates.

Power to examine witnesses

32. (1) A member may administer an oath or affirmation to a person required to attend before the member pursuant to section 31 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.

Directions to persons to attend compulsory conference

33. (1) For the purpose of inquiring into an act or practice, and endeavouring to effect, by conciliation, a settlement of the matters that gave rise to the inquiry, the Commission may, by notice in writing, direct the persons referred to in sub-section (3) to attend, at a time and place specified in the notice, a conference presided over by a prescribed person.

(2) A person who, after having been given a direction under sub-section (1) to attend a conference, without reasonable excuse—

(a)

fails to attend as required by the direction; or

(b)

fails to attend and report from day to day unless excused, or released from further attendance, by the person presiding at the conference,

is guilty of an offence punishable on conviction—

(c)

in the case of a natural person—by a fine not exceeding $1,000 or imprisonment for a period not exceeding 3 months; or

(d)

in the case of a body corporate—by a fine not exceeding $5,000.

(3) Directions under sub-section (1) to attend a conference in relation to an act or practice shall be given to—

(a)

where a complaint was made to the Commission in relation to that act or practice—the complainant, or each of the complainants, as the case requires;

(b)

the person who is, or each of the persons who are, alleged to have done the act or engaged in the practice; and

(c)

any other person who, in the opinion of the Commission, is likely to be able to provide information relevant to the inquiry or whose presence at the conference is, in the opinion of the Commission, likely to be conducive to the settlement of the matters that gave rise to the inquiry.

(4) A person who has been given a direction under sub-section (1) to attend a conference is entitled to be paid by the Commonwealth a reasonable sum for the person's attendance at the conference.

(5) The Commission may, in a notice given to a person under sub-section (1), require the person to produce such documents at the conference as are specified in the notice.

Compulsory conference

34. (1) The person presiding at a conference held under this Part may require a person attending the conference to produce a document.

(2) A conference under this Part shall be held in private and, subject to this Act, shall be conducted in such manner as the person presiding at the conference thinks fit.

(3) A body of persons, whether corporate or unincorporate, that is directed under section 33 to attend a conference shall be deemed to attend if a member, officer or employee of that body attends on behalf of that body.

(4) Except with the consent of the person presiding at a conference under this Part—

(a)

a natural person is not entitled to be represented at the conference by another person; and

(b)

a body of persons, whether corporate or unincorporate, is not entitled to be represented at the conference by a person other than a member, officer or employee of that body.

Failure to comply with requirement

35. (1) A person served with a notice under sub-section 31 (5) shall not, without reasonable excuse, refuse or fail to comply with the notice.
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, without reasonable excuse, refuses or fails—

(a)

to be sworn or to make an affirmation; or

(b)

to furnish information, answer a question or produce a document,

when so required under this Act is guilty of an offence punishable on conviction—

(c)

in the case of a natural person—by a fine not exceeding $1,000 or imprisonment for a period not exceeding 3 months; or

(d)

in the case of a body corporate—by a fine not exceeding $5,000.

Disclosure of information or contents of documents

36. (1) Where the Attorney-General furnishes to the Commission a certificate certifying that the giving to the Commission or to a prescribed person 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 prescribed person of the contents 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 a prescribed person is entitled, pursuant to this Act, to require a person to give any information concerning the matter or to produce the document.

(2) Without limiting the operation of sub-section (1), where the Attorney-General furnishes to the Commission a certificate certifying that the giving to the Commission or to a prescribed person 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 prescribed person 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 National Crime Authority,

neither the Commission nor a prescribed person 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) Where the Attorney-General of a State furnishes to the Commission a certificate certifying that the giving to the Commission or to a prescribed person 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 prescribed person of the contents of a specified document would be contrary to the public interest—

(a)

by reason that it would involve the disclosure of communications between a Minister of the State and a Minister of the Commonwealth or of another State, being a disclosure that would prejudice relations between the Government of the first-mentioned State and the Commonwealth Government or the Government of another State;

(b)

by reason that it would involve the disclosure of deliberations or decisions of the Cabinet, or of a Committee of the Cabinet, of the State;

(c)

by reason that it would involve the disclosure of deliberations or advice of the Executive Council of the State;

(d)

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;

(e)

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;

(f)

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

(g)

by reason that it would endanger the life or physical safety of any person,

neither the Commission nor a prescribed person is entitled, pursuant to this Act, to require a person to give any information concerning the matter or to produce the document.

(4) 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 sub-section 31 (5),

on the ground that—

(c)

the giving of the information, the production of the document or the answering of the question—

(i)

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;

(ii)

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

(iii)

might make the person liable to a penalty; or

(d)

the information, the production of the document or the answer to the question might tend to incriminate the person,

but the information, the giving of the information, the production of the document, the answer to the question or the answering of the question is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 37.

(5) 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 sub-section 31 (5).

(6) Sub-section (4) does not apply where the offence in respect of which information, the production of a document or the answer to a question might tend to incriminate a person is an offence with which the person has been charged and the charge has not been finally dealt with by a court or otherwise disposed of.

False or misleading information

37. A person shall not give information or make a statement to the Commission or to any other person exercising powers or performing functions under this Act, knowing that the information or statement is false or misleading in a material particular.
Penalty:

(a)

in the case of a natural person—$2,500 or imprisonment for 3 months; or

(b)

in the case of a body corporate—$10,000.

Obstructing or hindering Commission

38. A person who insults, hinders, obstructs, molests or interferes with—

(a)

a member participating in an inquiry or examination under this Part; or

(b)

a prescribed person, while that person is holding an inquiry or carrying out an investigation under this Part,

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

(c)

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

(d)

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

Commission to give opportunity for making of submissions

39. Where it appears to the Commission as a result of an inquiry into an act or practice that the act or practice infringes a right or freedom set out in the Bill of Rights, 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—

(a)

the person, or each of the persons, who did the act or engaged in the practice; and

(b)

the Minister who appears to the Commission to be the responsible Minister in relation to the act or practice, or a person nominated by that Minister for the purpose,

to do, at the option of the person concerned, either or both of the following:

(c)

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

(d)

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

Complainant to be notified of results of inquiries

40. (1) 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 does not infringe a right or freedom set out in the Bill of Rights,

the Commission shall give to the complainant a notice setting out its findings and the reasons for those findings.

(2) In setting out findings and reasons in a notice to be given under sub-section (1) the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in sub-section 29 (5) and to the obligations of the Commission under sub-section 29 (6).

Reports to contain recommendations

41. (1) Where, after an examination of an enactment or proposed enactment, the Commission finds that the enactment is, or the proposed enactment would be, in conflict with the Bill of Rights, the Commission shall—

(a)

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, in conflict with the Bill of Rights; and

(b)

furnish a copy of the report referred to in sub-section (1) to the Minister who appears to the Commission to be the responsible Minister in relation to that enactment or proposed enactment.

(2) Where, after an inquiry into an act done or practice engaged in by a person—

(a)

the Commission finds that the act or practice infringes a right or freedom set out in the Bill of Rights; and

(b)

the Commission—

(i)

has not considered it appropriate to endeavour to effect a settlement of the matters that gave rise to the inquiry; or

(ii)

has endeavoured without success to effect such a settlement,

the Commission—

(c)

shall prepare a report setting out its findings and the reasons for those findings;

(d)

may include in the report any recommendations by the Commission for the purpose of preventing a repetition of the act or a continuation of the practice;

(e)

may include in the report a recommendation by the Commission for either or both of the following:

(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;

(f)

shall furnish a copy of the report to the Minister and to the Minister who appears to the Commission to be the responsible Minister in relation to the act or practice; and

(g)

where a complaint was made to the Commission in relation to the act or practice—

(i)

if the complaint was made by a person affected by the act or practice—shall furnish a copy of the report to that person; or

(ii)

in any other case—may furnish a copy of the report to the person who made the complaint.

(3) Where, at the expiration of 60 days after a copy of a report relating to an act or practice was furnished to the Minister who appeared to the Commission to be the responsible Minister in relation to the act or practice, the Commission—

(a)

is still of the opinion that the act or practice infringes a right or freedom set out in the Bill of Rights; and

(b)

is not satisfied that reasonable steps have been taken to prevent a repetition of the act or a continuation of the practice,

the Commission shall—

(c)

prepare a further report incorporating the first-mentioned report and any document that the Commission has received, in response to the first-mentioned report, from that Minister or from any person on behalf of that Minister, and stating—

(i)

whether, to the knowledge of the Commission, any action has been or is being taken as a result of the findings set out in the first-mentioned report and, if so, the nature of that action; and

(ii)

why the Commission is not satisfied that reasonable steps have been taken to prevent a repetition of the act or a continuation of the practice; and

(d)

furnish to the Minister a copy of the further report.

(4) In setting out findings and reasons in a report to be prepared for the purposes of sub-section (2) or (3), the Commission may exclude any matter if the Commission considers it desirable to do so having regard to any of the matters mentioned in sub-section 29 (5) and to the obligations of the Commission under sub-section 29 (6).

(5) Where, under sub-section (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.

Reports to be tabled in the Parliament

42. (1) Subject to this section, the Minister shall cause a copy of every report furnished to the Minister by the Commission under paragraph 25 (d) or (e) or sub-section 41 (3) to be laid before each House of the Parliament within 15 sitting days of that House after the report is received by the Minister.

(2) Where the Commission furnishes to the Minister under paragraph 25 (d) or (e) or sub-section 41 (3) a report that relates to—

(a)

a State enactment, or proposed State enactment; or

(b)

an act done or practice engaged in—

(i)

by or on behalf of a State; or

(ii)

by or on behalf of an authority of a State,

the Minister shall forthwith furnish a copy of the report to the Attorney-General of that State.

(3) The Minister—

(a)

shall not cause a copy of a report of the kind referred to in sub-section (2) to be laid before either House of the Parliament until—

(i)

the expiration of 30 days after a copy of the report was furnished to the Attorney-General of the State concerned under sub-section (2); or

(ii)

the Minister receives from the Attorney-General of the State concerned a statement relating to the enactment, act or practice to which the report related,

whichever happens first;

(b)

shall cause a copy of the report to be laid before each House of the Parliament within 15 sitting days after the happening of the first of the events referred to in sub-paragraphs (a) (i) and (ii); and

(c)

if the event referred to in sub-paragraph (a) (ii) is the first to happen, or if, before the report is laid before either House of the Parliament pursuant to paragraph (b), the Minister receives from the Attorney-General concerned a statement of the kind referred to in sub-paragraph (a) (ii)—shall cause a copy of the statement to be attached to each copy of the report that is laid before a House of the Parliament pursuant to paragraph (b).

Delegation

43. (1) The Commission may, either generally or as otherwise provided by the instrument of delegation, by writing under its common seal, delegate to a prescribed person all or any of the powers conferred on the Commission under this Act, other than this power of delegation.

(2) A member may, for the purposes of a particular inquiry or for the purposes of inquiries included in a class of inquiries, either generally or as otherwise provided by the instrument of delegation, by writing signed by the member, delegate to another prescribed person all or any of the powers conferred under this Act on members for the purposes of inquiries under this Act, other than this power of delegation.

(3) A power delegated by the Commission under sub-section (1), or by a member under sub-section (2), when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Commission or by the member, as the case may be.

(4) A delegation under this section by the Commission, or by a member, does not prevent the exercise of a power by the Commission, or by the member, as the case may be.

Non-disclosure of private information

44. (1) A person who is, or has at any time been, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or any function or power on behalf of the Commission, being a function or power conferred on the Commission under this Act, shall not, either directly or indirectly, except in the performance of a duty under or in connection with this Act or in the performance or exercise of such a function or power—

(a)

make a record of, or divulge or communicate to any person, any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised;

(b)

make use of any such information as is mentioned in paragraph (a); or

(c)

produce to any person a document relating to the affairs of another person furnished for the purposes of this Act.

Penalty: $5,000 or imprisonment for one year, or both.

(2) A person who is, or has at any time been, a member of the Commission or a member of the staff assisting the Commission or is, or has at any time been, authorised to perform or exercise any function or power of the Commission or any function or power on behalf of the Commission, being a function or power conferred on the Commission under this Act, shall not be required—

(a)

to divulge or communicate to a court any information relating to the affairs of another person acquired by the first-mentioned person by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised; or

(b)

to produce in a court a document relating to the affairs of another person of which the first-mentioned person has custody, or to which that person has access, by reason of that person's office or employment under or for the purposes of this Act or by reason of that person being or having been so authorised,

except where it is necessary to do so for the purposes of this Act.

(3) Nothing in this section prohibits a person from—

(a)

divulging or communicating information, or producing a document, to an authority of a State in accordance with an arrangement in force under section 45; or

(b)

divulging or communicating information, or producing a document, that is, or is included in a class of information that is or class of documents that are, required or permitted by an Act to be divulged, communicated or produced, as the case may be.

(4) In this section—
"court" includes any tribunal, authority or person having power to require the production of documents or the answering of questions;
"produce" includes permit access to.

Arrangements with the States

45. (1) The Minister may make an arrangement with a Minister of a State for or in relation to the performance or exercise, by that State or by a State instrumentality, on behalf of the Commonwealth, of—

(a)

functions and powers of the Commission, and of members, under this Act relating to inquiries into acts or practices that may infringe a right or freedom set out in the Bill of Rights; or

(b)

functions and powers of the Commission under this Act relating to enactments or proposed enactments of that State.

(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.

(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 has been made, varied or revoked shall be published in the Gazette.

Protection from civil actions

46. (1) The Commission or a prescribed person is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in performance or purported performance of any function, or in exercise or purported exercise of any power, conferred on the Commission by this Act.

(2) Where—

(a)

a complaint has been made to the Commission under this Act; or

(b)

a submission has been made, a document or information has been furnished, or evidence has been given, to the Commission or to a prescribed person in connection with, or for the purposes of, the performance of the functions of the Commission under this Act,

a person is not liable to a suit in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was furnished or the evidence was given.

PART VI—SEVERABILITY

Operation of Act

47. If this Act exceeds the powers of the Parliament by reason of the inclusion in the Bill of Rights of a particular provision or particular provisions, this Act is intended to operate as if that provision, or those provisions, as the case may be, were omitted from the Bill of Rights.

Operation of Part III

48. (1) The provisions of Part III, other than section 14, are intended to operate whether or not that section is, in whole or in part, within the powers of the Parliament.

(2) If sub-sections 14 (2) to (6), inclusive, are within the powers of the Parliament, those sub-sections are intended to operate whether or not sub-sections 14 (7) to (9), inclusive, are within the powers of the Parliament.

(3) If—

(a)

sub-section 14 (4) or (6) is not within the powers of the Parliament by reason of the inclusion of the words "except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (2) or (3)"; and

(b)

that sub-section would, but for the inclusion of those words, be within the powers of the Parliament,

that sub-section is intended to operate as if those words were omitted from it.

(4) If—

(a)

sub-section 14 (8) or (9) is not within the powers of the Parliament by reason of the inclusion of the words "except the purposes of the proceedings in which the declaration in relation to the enactment was made under sub-section (7)"; and

(b)

that sub-section would, but for the inclusion of those words, be within the powers of the Parliament,

that sub-section is intended to operate as if those words were omitted from it.

(5) Nothing in this section is intended to limit the application of section 15A of the Acts Interpretation Act 1901 in relation to this Act or in relation to the Bill of Rights.

PART VII—MISCELLANEOUS

Assistance in proceedings involving Bill of Rights

49. (1) A person who has invoked the provisions of the Bill of Rights in any legal proceeding may apply to the Attorney-General for the provision of assistance under this section in respect of the proceeding.

(2) Where an application is made by a person under sub-section (1) and the Attorney-General is satisfied that—

(a)

it would involve hardship to that person to refuse the application; and

(b)

in all the circumstances, having particular regard to the public interest in having important questions as to the operation of the Bill of Rights determined by the courts, it is reasonable that the application be granted,

the Attorney-General may authorise the provision by the Commonwealth to that person, either unconditionally or subject to such conditions as the Attorney-General determines, of such legal or financial assistance in respect of the proceeding as the Attorney-General determines.

Regulations

50. The Governor-General may make regulations, not inconsistent with this Act, prescribing matters—

(a)

required or permitted by this Act to be prescribed; or

(b)

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

SCHEDULE

Section 4

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

The States Parties to the present Covenant,