In the shadow of 18C: Recent changes to Federal discrimination legislation that you may have missed

What you need to know 

• Recent amendments to the Australian Human Rights Commission Act 1986 introduce significant changes to the way in which complaints of unlawful discrimination to the Australian Human Rights Commission are handled. The changes are intended to reduce the cost and effort involved in responding to unmeritorious complaints.
• Complaints must be "reasonably arguable" to meet the threshold for lodgement. The grounds for termination have been expanded and clarified, including where there are no reasonable prospects of success or an exemption applies. This will require the AHRC to consider the merits of a complaint.
• Complainants must seek leave of the Federal Court or Federal Circuit Court to progress a complaint that has been terminated by the Commission on most grounds (including no reasonable prospects of success).
• The AHRC must notify any person against whom an adverse allegation has been made, including non respondents to the complaint.

What you need to do

If you are a respondent to a complaint of unlawful discrimination: 

• be aware of the grounds for termination of the complaint, including where there are no reasonable prospects of success;
• where possible, attempt to establish that the matter should be terminated on a ground that will require the complainant to seek leave to file an application in Court; and 
• bear in mind that any person against whom an adverse allegation is made in the complaint will be informed, including non-respondents.

Recent amendments to the Australian Human Rights Commission Act 1986

The recent amendments to the Australian Human Rights Commission Act 1986 (Cth) will have a real impact on the strategy and costs of responding to unlawful discrimination complaints.

Complaints must now meet a higher threshold on lodgement

One of the aims of the amendments is to ensure that unmeritorious complaints are discouraged and dismissed at each stage of the complaints handling process.  

Previously, a bare allegation that unlawful discrimination had occurred was sufficient to meet the threshold for lodging a complaint. The amendments raise the threshold, as it must be "reasonably arguable" that the alleged conduct constitutes unlawful discrimination. A complaint must also set out details of the alleged conduct as fully as is practicable.

This will enable the Commission to make an initial assessment and dismiss complaints that are unmeritorious on lodgement.

New grounds for terminating complaints, including no reasonable prospects

The Commission will also have a greater ability to terminate unmeritorious complaints. The amendments introduce new grounds for terminating a complaint, including mandatory termination where the President is satisfied that: 

• there is no reasonable prospect that the Federal Court or Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination; or
• the President is satisfied that the complaint is trivial, vexatious, misconceived, or lacking in substance.

The President must also consider whether an exemption to unlawful discrimination applies when deciding whether to terminate a complaint.  

As a result of these amendments, the AHRC will be required to make an assessment at the beginning of the complaints handling process of whether (amongst other matters) the complaint has reasonable prospects of success, and whether an exemption applies. Where the President is satisfied that this is the case, the complaint will be terminated.

The President will be required to consider whether to terminate a complaint before commencing an inquiry or attempting to conciliate that complaint.

Shorter "limitation period"

There is no strict limitation period within which a complaint may be lodged. Prior to the amendments, the President had the discretion to terminate a claim lodged more than 12 months after the events occurred. This is still the case for events which occurred before 13 April 2017. However, for events occurring after 13 April 2017, the period has been shortened to 6 months after the events occurred.

Requirement to seek leave to file an application in the Courts in certain circumstances

There was previously no barrier to a complainant progressing their complaint before the Federal Court or Federal Circuit Court (even if the complaint had been terminated by the AHRC because it was trivial, vexatious, misconceived or lacking in substance). This meant that respondents were often exposed to significant costs in defending unmeritorious complaints.

The amendments have now significantly limited a complainant's ability to progress their complaint in the Federal Court or Federal Circuit Court where it has not been resolved before the AHRC. Complainants must now seek leave of the Court before making an application alleging unlawful discrimination, except where: 

• the President terminated the complaint because the subject matter involves a significant issue of public importance that should be considered by the Court; or 
• the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation.

Notification of persons against whom adverse allegations are made

Previously there was no legislative requirement to notify respondents to a complaint until the conciliation stage.
The amended AHRC Act now requires respondents to a complaint to be notified at the time the President decides to inquire into a complaint. Significantly, the amendments also introduce a requirement to notify any person who is the subject of an adverse allegation in a complaint, even if they are not named as a respondent (with some exceptions on safety and practicability grounds).

Other changes

The amendments also introduce provisions relating to costs to discourage unmeritorious complaints from progressing to the courts. In particular, the Courts may now consider any offer to settle made by the respondent in determining whether to award costs.

Strategy in responding to complaints

In responding to complaints of unlawful discrimination, employers should consider whether it is possible to establish to the satisfaction of the President that a complaint should be terminated on one of the grounds that require leave for the matter to progress in Court (for example, no reasonable prospects of success). It will be important to ensure that the AHRC has all relevant information before it to enable this assessment to be made.
 

Authors: Elissa Speight, Senior Associate; and Paul Vane-Tempest, Partner.