Sex Discrimination and other Legislation Amendment Act 1992 (Cth)

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Sex Discrimination and other Legislation

Amendment Act 1992

No. 179 of 1992

An Act to amend the law relating to human rights and equal opportunity

[Assented to 16 December 1992]

The Parliament of Australia enacts:

Short title

1. This Act may be cited as the Sex Discrimination and other Legislation Amendment Act 1992.

Commencement

2.(1) Subject to subsection (2), this Act commences on the 28th day after it receives the Royal Assent.

(2) An amendment of a provision of the Disability Discrimination Act 1992 commences:

(a)
on the 28th day after this Act receives the Royal Assent; or
1. (b)
  on the commencement of the relevant provision of the Disability Discrimination Act 1992;

whichever is later.

Amendment of Acts

3. The Acts specified in the Schedule are amended as set out in the Schedule.

Application of amendments

4.(1) An amendment relating to the enforcement of determinations as if they were orders of the Federal Court does not apply to:

(a)
a determination made before the commencement of the amendment; or
(b)
a determination made after the commencement of the amendment in respect of a representative complaint lodged before the commencement of the amendment.

(2) An amendment relating to the review and enforcement of determinations involving Commonwealth agencies does not apply to:

(a)
a determination made before the commencement of the amendment; or
(b)
a determination made after the commencement of the amendment in respect of a representative complaint lodged before the commencement of the amendment.

(3)

An amendment relating to representative complaints does not apply to complaints lodged before the commencement of the amendment.

(4)

The amendments relating to the review of discriminatory awards by the Australian Industrial Relations Commission:

(a)
subject to paragraph (b), do not apply to awards made before the commencement of this Act; and
(b)
extend to variations made after the commencement of this Act to awards made before the commencement of this Act.

SCHEDULE Section 3

AMENDMENT OF ACTS

Disability Discrimination Act 1992

Subsection 4(1):

Insert:

" 'class member', in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 90A;

'Commonwealth agency' means an agency within the meaning of the Privacy Act 1988;

'principal executive', in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988;".

Subsection 4(1) (definition of "representative complaint"):

Omit the definition, substitute:

" 'representative complaint' means a complaint where the persons on whose behalf the complaint was made include persons other than the complainant, but does not include:

(a)
a complaint made under paragraph 69(1)(c) on behalf of only one person; or
(b)
a complaint that the Commission has determined should no longer be continued as a representative complaint;".

After subsection 69(1):

Insert:

"(1A) In the case of a representative complaint, this section has effect subject to section 89.".

Sections 89 and 90:

Repeal the sections, substitute:

Conditions for making a representative complaint

"89.(1) A representative complaint may be lodged under section 69 only if:

(a)
the class members have complaints against the same person; and
(b)
all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

SCHEDULE—continued

(c) all the complaints give rise to a substantial common issue of law or fact.
"(2) A representative complaint under section 69 must:
(a)
describe or otherwise identify the class members; and
(b)
specify the nature of the complaints made on behalf of the class members; and
(c)
specify the nature of the relief sought; and
(d)
specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

"(3) A representative complaint may be lodged without the consent of class members.

Commission may determine that a complaint is not to continue as a representative complaint

"90.(1) The Commission may, on application by the respondent or of its own motion, determine that a complaint should no longer continue as a representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a)
the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;
(b)
the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;
(c)
the complaint was not brought in good faith as a representative complaint;
(d)
it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.
"(3) If the Commission makes such a determination:
(a)
the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent; and
(b)
on the application of a person who was a class member for the purposes of the former representative complaint, the Commission may join that person as a complainant to the complaint as continued under paragraph (a).

SCHEDULE—continued

Additional rules applying to the determination of representative complaints

"90A.(1) The Commission may, on application by a class member, replace the complainant with another class member, where it appears to the Commission that the complainant is not able adequately to represent the interests of the class members.

"(2) A class member may, by notice in writing to the Commission, withdraw from a representative complaint at any time before the Commission begins to hold an inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given to a class member or class members.".

Subsection 91(2):

Omit.

Section 92:

Repeal the section, substitute:

Class member for representative complaint not entitled to lodge individual complaint

"92. A person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter.".

Paragraph 98(1)(c):

Add "and" at the end.

Subsection 98(1):

Add at the end:
"(d) may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done.".

Section 102:

Add at the end:

"(3) A reference in this section (other than the first reference) to a party includes a reference to a class member in the case of a representative complaint.".

Subparagraph 103(1)(b)(iv):

Omit "if the complaint was not dealt with as a representative complaint—".

SCHEDULE—continued

Subsection 103(5):

Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a representative complaint:

(a)
may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commission; and
(b)
if it provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on a representative complaint, the Commission may give such directions (if any) as it thinks just in relation to:

(a)
the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and
(b)
the manner for determining any dispute regarding the entitlement of a class member to the payment.
"(7) In this section:

'complainant', in relation to a representative complaint, means the class members.".

Section 104:

Repeal the section, substitute:

Determination must identify the class members who are to be affected by the determination

"104. A determination under section 102 or 103 on a representative complaint must describe or otherwise identify those of the class members who are to be affected by the determination.

Registration of determination

"104A.(1) This section applies to a determination made under section 102 or 103, except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the determination. In this subsection, 'Registrar' has the same meaning as in section 35A of the Federal Court of Australia Act 1976.

SCHEDULE— continued

"(4) Within 7 days after the determination is registered, the Commission must give written notice of the registration to the complainant and respondent to the determination. The notice must specify the date of registration and must include a copy of the determination.

Registered determination has effect as an order of the Federal Court

"104B.(1) Upon registration of a determination under section 104A, the determination has effect as if it were an order made by the Federal Court, but subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the determination, the determination applies as follows to each class member who is described or identified in the determination as mentioned in section 104:

(a)
the class member is bound by the determination; and
(b)
the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the end of the review period.

"(4) In the case of a determination made under section 103, a failure by the respondent, during the review period, to comply with a positive requirement of the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal Court for review of the determination. The respondent's application for review must be made within 28 days after the date of registration of the determination.

"(6) In this section:

'review period' means:

(a)
if the respondent to the determination applies to the Court under subsection (5) for review of the determination—the period starting on the day the determination is registered and ending at the time when proceedings on that review are completed or otherwise terminated; or
(b)
in any other case—the period of 28 days starting on the day the determination is registered.

Review of registered determination

"104C.(1) This section applies if an application is made to the Federal Court under section 104B for review of a determination.

"(2) The parties to the review are:
(a) the applicant; and

SCHEDULE— continued

(b) the complainant to the determination, as respondent to the application for review.

"(3) The Court may at any time make an interim order that suspends the operation of the whole or any part of the determination. The order may be made on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it thinks fit (including a declaration of right). The orders may confirm a determination that is registered under section 104A.

"(7) The Court may dismiss the application for review at any time if it considers that the applicant is not prosecuting the application with due dispatch. The Court may do this either of its own motion or on the application of the respondent.".

Paragraphs 106(1)(a) and (b):

Omit the paragraphs, substitute:
"(a) has applied or proposes to apply to the Federal Court under section 104B for review of a determination; or
(b) is the respondent to such a review;".

Part 4:

After Division 3 insert:
"Division 4—Review and enforcement of determinations involving Commonwealth agencies

Application of Division

"106A. This Division applies to a determination that is made under section 102 or 103 and has a Commonwealth agency, or the principal executive of a Commonwealth agency, as the respondent.

Obligations of respondent agency

"106B.(1) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 102, the agency must comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 103:

(a) the agency must not repeat or continue conduct that is covered

SCHEDULE—continued

by a declaration included in the determination under subparagraph 103(1)(b)(i); and
(b) the agency must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 103(1)(b)(ii), (iii), (v) or (vi).

Obligations of principal executive of agency

"106C.(1) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 102, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 103, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 103(1)(b)(i); and
(c)
the performance of any act or course of conduct that is covered by a declaration included in the determination under subparagraph 103(1)(b)(ii), (iii), (v) or (vi).

Damages

"106D.(1) If a determination to which this Division applies that is made under section 103 includes a declaration that the respondent should pay damages to the complainant, the complainant is entitled to be paid the amount specified in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue and be sued, the amount is recoverable as a debt due by the agency to the complainant. In any other case, the amount is recoverable as a debt due by the Commonwealth to the complainant.

"(3) In this section:

'complainant', in relation to a representative complaint, means a class member.

SCHEDULE—continued

Review of determinations regarding damages

"106E.(1) Application may be made to the Administrative Appeals Tribunal for review of:

(a)
a declaration of the kind referred to in subparagraph 103(1)(b)(iv) that is included in a determination to which this Division applies; or
(b)
a decision of the Commission refusing to include such a declaration in a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and 2 other members who are not Judges. This subsection has effect subject to subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act.

Enforcement of determination against Commonwealth agency

"106F.(1) If a Commonwealth agency fails to comply with section 106B, an application may be made to the Federal Court for an order directing the agency to comply.

"(2) If the principal executive of a Commonwealth agency fails to comply with section 106C, an application may be made to the Federal Court for an order directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such other orders as it thinks fit with a view to securing compliance by the respondent.

"(5) An application may not be made under this section in relation to a determination under section 103 until:

(a)
the time has expired for making an application under section 106E for review of the determination; or
(b)
if such an application is made, the decision of the Administrative Appeals Tribunal on the application has come into operation.".

SCHEDULE— continued

Human Rights and Equal Opportunity Commission Act 1986

Before section 20:

Insert the following section in Division 3 of Part II:

Division applies to victimisation offences

"19A. In this Division, a reference to an act or practice that is inconsistent with or contrary to any human right includes a reference to an act that is an offence under subsection 26(2).".

After subsection 30(1):

Insert:

"(1A) In this Division, a reference to an act or practice that constitutes discrimination includes a reference to an act that is an offence under subsection 26(2).".

Industrial Relations Act 1988

After paragraph 45(1)(ec):

Insert:
"(ed) a decision of the Commission to vary, or not to vary, an award that has been referred to the Commission under section 50A of the Sex Discrimination Act 1984;".

After paragraph 45(3)(ba):

Insert:
"(bb) in the case of an appeal under paragraph (1)(ed)—by a party to the review of the award under section 111A;".

After section 111:

Insert:

Hearings in relation to discriminatory awards

"111A.(1) If an award is referred to the Commission under section 50A of the Sex Discrimination Act 1984, the Commission must convene a hearing to review the award.

"(2) In a review under this section:
(a)
the parties to the proceeding in which the award was made are parties to the proceeding on the review, and are entitled to notice of the hearing; and
(b)
the Sex Discrimination Commissioner is a party to the proceeding.".

SCHEDULE—continued

After subsection 113(2):

Insert:
"(2A) If:
(a)
an award has been referred to the Commission under section 50A of the Sex Discrimination Act 1984; and
(b)
the Commission considers that the award is a discriminatory award;

the Commission must take the necessary action to remove the discrimination, by setting aside the award, setting aside terms of the award or varying the award.

"(2B) Subsection (2A) does not require the Commission to take action that the Commission considers would not be in the public interest.

"(2C) Before taking action under subsection (2A) in relation to a certified agreement, the Commission must give the parties to the agreement an opportunity to amend the agreement so as to remove the discrimination.".

Section 113:

Add at the end:
"(5) In this section:

'discriminatory award' means an award that:

(a)
has been referred to the Commission under section 50A of the Sex Discrimination Act 1984; and
(b)
requires a person to do any act that would be unlawful under Part II of the Sex Discrimination Act 1984, except for the fact that the act would be done in direct compliance with the award.

For the purposes of this definition, the fact that an act is done in direct compliance with the award does not of itself mean that the act is reasonable.".

Paragraph 134L(1)(b):

After "provided in" insert "subsection 113(2C) or".

After paragraph 134L(1)(d):

Insert:
"(da) the Commission may take action in relation to the agreement under subsection 113(2A); and".

SCHEDULE— continued

Racial Discrimination Act 1975

Subsection 3(1):

Insert the following definitions:

" 'class member', in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 25MA;

'Commonwealth agency' means an agency within the meaning of the Privacy Act 1988;

'principal executive', in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988;

'representative complaint' means a complaint where the persons on whose behalf the complaint was made include persons other than the complainant, but does not include a complaint that the Commission has determined should no longer be continued as a representative complaint;".

After section 19:

Insert:

Part applies to victimisation offences

"19A. In this Part, a reference to an act that is unlawful under a provision of Part II includes a reference to an act that is an offence under subsection 27(2).".

After subsection 22(1):

Insert:

"(1A) In the case of a representative complaint, this section has effect subject to section 25L.".

Sections 25L and 25M:

Repeal the sections, substitute:

Conditions for making a representative complaint

"25L.(1) A representative complaint may be lodged under section 22 only if:

(a)
the class members have complaints against the same person; and
(b)
all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and
(c)
all the complaints give rise to a substantial common issue of law or fact.
"(2) A representative complaint under section 22 must:

SCHEDULE—continued

(a)
describe or otherwise identify the class members; and
1. (b)
  specify the nature of the complaints made on behalf of the class members; and
(c)
specify the nature of the relief sought; and
1. (d)
  specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

"(3) A representative complaint may be lodged without the consent of class members.

Commission may determine that a complaint is not to continue as a representative complaint

"25M.(1) The Commission may, on application by the respondent or of its own motion, determine that a complaint should no longer continue as a representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a)
the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;
(b)
the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;
(c)
the complaint was not brought in good faith as a representative complaint;
(d)
it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.
"(3) If the Commission makes such a determination:
(a)
the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent, unless the complainant is a trade union; and
(b)
on the application of a person who was a class member for the purposes of the former representative complaint, the Commission may join that person as a complainant to the complaint as continued under paragraph (a).

SCHEDULE—continued

Additional rules applying to the determination of representative complaints

"25MA.(1) The Commission may, on application by a class member, replace the complainant with another class member, where it appears to the Commission that the complainant is not able adequately to represent the interests of the class members.

"(2) A class member may, by notice in writing to the Commission, withdraw from a representative complaint at any time before the Commission begins to hold an inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given to a class member or class members.".

Subsection 25N(2):

Omit.

Section 25P:

Repeal the section, substitute:

Class member for representative complaint not entitled to lodge individual complaint

"25P. A person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter.".

Paragraphs 25V(1)(a) and (c):

Add "and" at the end.

Subsection 25V(1):

Add at the end:
"(d) may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done.".

Section 25Y:

Add at the end:

"(3) A reference in this section (other than the first reference) to a party includes a reference to a class member in the case of a representative complaint.".

Subparagraph 25Z(1)(b)(iv):

Omit "except where the complaint was dealt with as a representative complaint—".

SCHEDULE—continued

Subsection 25Z(5):

Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a representative complaint:

(a)
may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commission; and
(b)
if it provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on a representative complaint, the Commission may give such directions (if any) as it thinks just in relation to:

(a)
the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and
(b)
the manner for determining any dispute regarding the entitlement of a class member to the payment.
"(7) In this section:

'complainant', in relation to a representative complaint, means the class members.".

Section 25ZA:

Repeal the section, substitute:

Determination must identify the class members who are to be affected by the determination

"25ZA. A determination under section 25Y or 25Z on a representative complaint must describe or otherwise identify those of the class members who are to be affected by the determination.

Registration of determination

"25ZAA.(1) This section applies to a determination made under section 25Y or 25Z, except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the determination. In this subsection, 'Registrar' has the same meaning as in section 35A of the Federal Court of Australia Act 1976.

SCHEDULE— continued

"(4) Within 7 days after the determination is registered, the Commission must give written notice of the registration to the complainant and respondent to the determination. The notice must specify the date of registration and must include a copy of the determination.

Registered determination has effect as an order of the Federal Court

"25ZAB.(1) Upon registration of a determination under section 25ZAA, the determination has effect as if it were an order made by the Federal Court, but subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the determination, the determination applies as follows to each class member who is described or identified in the determination as mentioned in section 25ZA:

(a)
the class member is bound by the determination; and
(b)
the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the end of the review period.

"(4) In the case of a determination made under section 25Z, a failure by the respondent, during the review period, to comply with a positive requirement of the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal Court for review of the determination. The respondent's application for review must be made within 28 days after the date of registration of the determination.

"(6) In this section:

'review period' means:

(a)
if the respondent to the determination applies to the Court under subsection (5) for review of the determination—the period starting on the day the determination is registered and ending at the time when proceedings on that review are completed or otherwise terminated; or
(b)
in any other case—the period of 28 days starting on the day the determination is registered.

Review of registered determination

"25ZAC.(1) This section applies if an application is made to the Federal Court under section 25ZAB for review of a determination.

"(2) The parties to the review are:
(a) the applicant; and

SCHEDULE— continued

(b) the complainant to the determination, as respondent to the application for review.

"(3) The Court may at any time make an interim order that suspends the operation of the whole or any part of the determination. The order may be made on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it thinks fit (including a declaration of right). The orders may confirm a determination that is registered under section 25ZAA.

"(7) The Court may dismiss the application for review at any time if it considers that the applicant is not prosecuting the application with due dispatch. The Court may do this either of its own motion or on the application of the respondent.".

Paragraphs 25ZC(1)(a) and (b):

Omit the paragraphs, substitute:
"(a) has applied or proposes to apply to the Federal Court under section 25ZAB for review of a determination; or
(b) is the respondent to such a review;".

Part III:

After Division 3 insert:

"Division 4—Review and enforcement of determinations involving Commonwealth agencies

Application of Division

"25ZD. This Division applies to a determination that is made under section 25Y or 25Z and has a Commonwealth agency, or the principal executive of a Commonwealth agency, as the respondent.

Obligations of respondent agency

"25ZE.(1) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 25Y, the agency must comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 25Z:

(a) the agency must not repeat or continue conduct that is covered

SCHEDULE— continued

by a declaration included in the determination under subparagraph 25Z(1)(b)(i); and
(b) the agency must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 25Z(1)(b)(ii), (iii), (v) or (vi).

Obligations of principal executive of agency

"25ZF.(1) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 25Y, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 25Z, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 25Z(1)(b)(i); and
(c)
the performance of any act or course of conduct that is covered by a declaration included in the determination under subparagraph 25Z(1)(b)(ii), (iii), (v) or (vi).

Damages

"25ZG.(1) If a determination to which this Division applies that is made under section 25Z includes a declaration that the respondent should pay damages to the complainant, the complainant is entitled to be paid the amount specified in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue and be sued, the amount is recoverable as a debt due by the agency to the complainant. In any other case, the amount is recoverable as a debt due by the Commonwealth to the complainant.

"(3) In this section:

'complainant', in relation to a representative complaint, means a class member.

SCHEDULE— continued

Review of determinations regarding damages

"25ZH.(1) Application may be made to the Administrative Appeals Tribunal for review of:

(a)
a declaration of the kind referred to in subparagraph 25Z(1)(b)(iv) that is included in a determination to which this Division applies; or
(b)
a decision of the Commission refusing to include such a declaration in a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and 2 other members who are not Judges. This subsection has effect subject to subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act.

Enforcement of determination against Commonwealth agency

"25ZI.(1) If a Commonwealth agency fails to comply with section 25ZE, an application may be made to the Federal Court for an order directing the agency to comply.

"(2) If the principal executive of a Commonwealth agency fails to comply with section 25ZF, an application may be made to the Federal Court for an order directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such other orders as it thinks fit with a view to securing compliance by the respondent.

"(5) An application may not be made under this section in relation to a determination under section 25Z until:

(a)
the time has expired for making an application under section 25ZH for review of the determination; or
(b)
if such an application is made, the decision of the Administrative Appeals Tribunal on the application has come into operation.".

SCHEDULE—continued

Sex Discrimination Act 1984

Paragraph 3(c):

Omit "and in educational institutions", substitute ", in educational institutions and in other areas of public activity".

Subsection 4(1):

Insert the following definitions:

" 'class member', in relation to a representative complaint, means any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under section 70A;

'Commonwealth agency' means an agency within the meaning of the Privacy Act 1988;

'principal executive', in relation to a Commonwealth agency, has the same meaning as in Part V of the Privacy Act 1988;

'representative complaint' means a complaint where the persons on whose behalf the complaint was made include persons other than the complainant, but does not include a complaint that the Commission has determined should no longer be continued as a representative complaint;".

Subsection 9(1):

Insert:

" 'prescribed provisions of Division 3 of Part II' means the provisions of Division 3 of Part II other than sections 28D and 28L;"

Subsection 9(5):

Omit "28", substitute "28B".

Subsection 9(6):

Omit "Section 18", substitute "Sections 18 and 28C".

Subsections 9(8), (9), (10), (12), (14), (16), (18) and (20):

Omit "provisions of Division 3", substitute "prescribed provisions of Division 3".

Division 3 of Part II:

Repeal the Division, substitute:

"Division 3—Sexual Harassment

Meaning of "sexual harassment"

"28A.(1) For the purposes of this Division, a person sexually harasses another person (the 'person harassed') if:

(a) the person makes an unwelcome sexual advance, or an

SCHEDULE— continued

unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

"(2) In this section:

'conduct of a sexual nature' includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

Employment, partnerships etc.

"28B.(1) It is unlawful for a person to sexually harass:
(a)
an employee of the person; or
(b)
a person who is seeking to become an employee of the person.

"(2) It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

"(3) It is unlawful for a person to sexually harass:
(a)
a commission agent or contract worker of the person; or
(b)
a person who is seeking to become a commission agent or contract worker of the person.

"(4) It is unlawful for a commission agent or contract worker to sexually harass a fellow commission agent or fellow contract worker.

"(5) It is unlawful for a partner in a partnership to sexually harass another partner, or a person who is seeking to become a partner, in the same partnership.

"(6) It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace of both of those persons.

"(7) In this section:

'place' includes a ship, aircraft or vehicle;

'workplace' means a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant;

'workplace participant' means any of the following:

(a)
an employer or employee;
(b)
a commission agent or contract worker;

SCHEDULE—continued

(c) a partner in a partnership.

Members of bodies with power to grant etc. occupational qualifications etc.

"28C.(1) It is unlawful for a member of an authority or body that has power to take action in connection with an occupational qualification to sexually harass a person seeking action in connection with an occupational qualification.

"(2) In this section:

'action in connection with an occupational qualification' means conferring, renewing, extending, revoking or withdrawing an authorisation or qualification that is needed for, or facilitates:

(a)
practising a profession; or
(b)
carrying on a trade; or
(c)
engaging in an occupation.

Registered organisations

"28D. It is unlawful for:
(a)
a member of a registered organisation; or
(b)
a member of the staff of a registered organisation;

to sexually harass a member of the organisation, or a person who is seeking to become a member of the organisation.

Employment agencies

"28E. It is unlawful for:
(a)
a person who operates an employment agency; or
(b)
a member of the staff of an employment agency;

to sexually harass another person in the course of providing, or offering to provide, any of the agency's services to that other person.

Educational institutions

"28F.(1) It is unlawful for a member of the staff of an educational institution to sexually harass:

(a)
a person who is a student at the institution; or
(b)
a person who is seeking to become a student at the institution.

"(2) It is unlawful for a person who is an adult student at an educational institution to sexually harass:

(a)
a person who is an adult student at the institution; or
(b)
a member of the staff of the institution.
"(3) In this section:

'adult student' means a student who has attained the age of 16 years.

SCHEDULE— continued

Provision of goods, services and facilities

"28G. It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person.

Provision of accommodation

"28H.(1) It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, (whether as principal or agent) accommodation to that other person.

"(2) This section does not apply to anything done by a person in the course of providing, or offering to provide, accommodation to a near relative.

Land

"28J. It is unlawful for a person to sexually harass another person in the course of dealing (whether as principal or agent) with that other person in connection with:

(a)
disposing of, or offering to dispose of, an estate or interest in land to the other person; or
(b)
acquiring, or offering to acquire, an estate or interest in land from the other person.

Clubs

"28K. It is unlawful for a member of the committee of management of a club to sexually harass a member of the club or a person seeking to become a member of the club.

Commonwealth laws and programs

"28L. It is unlawful for a person:
(a)
in the course of performing any function, or exercising any power, under a Commonwealth law or for the purposes of a Commonwealth program; or
(b)
in the course of carrying out any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program;

to sexually harass another person.".

Before section 48:

Insert in Division 1 of Part III:

Part applies to victimisation offences

"47A. In this Part, a reference to an act that is unlawful under a provision of Part II includes a reference to an act that is an offence under section 94.".

SCHEDULE—continued

After paragraph 48(1)(c):

Insert:
"(ca) to deal with complaints lodged under section 50A;".

Section 49:

Omit "paragraph 48(1)(a)", substitute "paragraphs 48(1)(a) and (ca)".

After subsection 50(1):

Insert:

"(1A) In the case of a representative complaint, this section has effect subject to section 69.".

After section 50:

Insert:

Referral of discriminatory awards to the Australian Industrial Relations Commission

"50A.(1) A complaint in writing alleging that a person has done a discriminatory act under an award may be lodged with the Commission by:

(a)
a person aggrieved by the act, on that person's own behalf or on behalf of that person and one or more other persons aggrieved by the act; or
(b)
2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and one or more other persons aggrieved by the act; or
(c)
a person or persons who are in a class of persons aggrieved by the act, on behalf of all the persons in the class; or
(d)
a trade union, on behalf of one or more of its members aggrieved by the act or on behalf of a class of its members aggrieved by the act.

"(2) If the Commission receives a complaint under this section, the Commission must notify the Commissioner accordingly.

"(3) If it appears to the Commissioner that the act is a discriminatory act, the Commissioner must refer the award to the Australian Industrial Relations Commission. However, the Commissioner need not refer the award if the Commissioner is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking in substance.

"(4) If the Commissioner decides not to refer the award, the Commissioner must give notice in writing of that decision to the complainant or each of the complainants, together with notice of the reasons for the decision and of the rights conferred by subsection (5).

SCHEDULE—continued

"(5) A complainant who receives a notice under subsection (4) may, within 21 days after receipt, give a notice in writing to the Commissioner requiring the Commissioner to refer the decision to the President.

"(6) If the Commissioner receives a notice under subsection (5), the Commissioner must refer the decision to the President together with a report about the decision.

"(7) If the Commissioner refers the award to the Australian Industrial Relations Commission, the Commissioner must give notice in writing of the outcome of the referral to the complainant or each of the complainants.

"(8) The Commissioner may obtain documents or information under section 54 for the purposes of this section.

"(9) In this section:

'award' has the same meaning as in the Industrial Relations Act 1988;

'discriminatory act under an award' means an act that would be unlawful under Part II except for the fact that the act was done in direct compliance with an award made under the Industrial Relations Act 1988. For the purposes of this definition, the fact that an act is done in direct compliance with the award does not of itself mean that the act is reasonable;

'trade union' has the same meaning as in section 50.

President may review a decision of the Commissioner not to refer an award

"50B.(1) This section applies if the Commissioner refers to the President under subsection 50A(6) a decision of the Commissioner not to refer an award to the Australian Industrial Relations Commission.

"(2) The President must review the Commissioner's decision and must decide either:

(a)
to confirm the Commissioner's decision; or
1. (b)
  to set aside the Commissioner's decision and to direct the Commissioner to refer the award in accordance with section 50A.

"(3) In spite of subsection (2), the President may refuse to review the Commissioner's decision unless the complainant gives the President such relevant information as the President requires.

"(4) The President must give written notice of a decision of the President under subsection (2) to the complainant and to the Commissioner. The notice must set out the reasons for the decision.".

SCHEDULE—continued

Sections 69 and 70:

Repeal the sections, substitute:

Conditions for making a representative complaint

"69.(1) A representative complaint may be lodged under section 50 only if:

(a)
the class members have complaints against the same person; and
(b)
all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and
(c)
all the complaints give rise to a substantial common issue of law or fact.
"(2) A representative complaint under section 50 must:
(a)
describe or otherwise identify the class members; and
(b)
specify the nature of the complaints made on behalf of the class members; and
(c)
specify the nature of the relief sought; and
(d)
specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

"(3) A representative complaint may be lodged without the consent of class members.

Commission may determine that a complaint is not to continue as a representative complaint

"70.(1) The Commission may, on application by the respondent or of its own motion, determine that a complaint should no longer continue as a representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a)
the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;
(b)
the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;
(c)
the complaint was not brought in good faith as a representative complaint;

SCHEDULE—continued

(d) it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.
"(3) If the Commission makes such a determination:
(a)
the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent, unless the complainant is a trade union; and
(b)
on the application of a person who was a class member for the purposes of the former representative complaint, the Commission may join that person as a complainant to the complaint as continued under paragraph (a).

Additional rules applying to the determination of representative complaints

"70A.(1) The Commission may, on application by a class member, replace the complainant with another class member, where it appears to the Commission that the complainant is not able adequately to represent the interests of the class members.

"(2) A class member may, by notice in writing to the Commission, withdraw from a representative complaint at any time before the Commission begins to hold an inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given to a class member or class members.".

Subsection 71(2):

Omit.

Section 72:

Repeal the section, substitute:

Class member for representative complaint not entitled to lodge individual complaint

"72. A person who is a class member for a representative complaint is not entitled to lodge a complaint in respect of the same subject matter.".

Paragraphs 77(1)(a) and (c):

Add "and" at the end.

Subsection 77(1):

Add at the end:
"(d) may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done.".

SCHEDULE—continued

Section 80:

Add at the end:

"(3) A reference in this section (other than the first reference) to a party includes a reference to a class member in the case of a representative complaint.".

Subparagraph 81(1)(b)(iv):

Omit "except where the complaint was dealt with as a representative complaint—".

Subsection 81(5):

Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a representative complaint:

(a)
may provide for payment of specified amounts or of amounts worked out in a manner specified by the Commission; and
(b)
if it provides for payment in accordance with paragraph (a), must make provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on a representative complaint, the Commission may give such directions (if any) as it thinks just in relation to:

(a)
the manner in which a class member is to establish his or her entitlement to the payment of an amount under the determination; and
(b)
the manner for determining any dispute regarding the entitlement of a class member to the payment.
"(7) In this section:

'complainant', in relation to a representative complaint, means the class members.".

Section 82:

Repeal the section, substitute:

Determination must identify the class members who are to be affected by the determination

"82. A determination under section 80 or 81 on a representative complaint must describe or otherwise identify those of the class members who are to be affected by the determination.

SCHEDULE—continued

Registration of determination

"82A.(1) This section applies to a determination made under section 80 or 81, except where the respondent is a Commonwealth agency or the principal executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the determination. In this subsection, 'Registrar' has the same meaning as in section 35A of the Federal Court of Australia Act 1976.

"(4) Within 7 days after the determination is registered, the Commission must give written notice of the registration to the complainant and respondent to the determination. The notice must specify the date of registration and must include a copy of the determination.

Registered determination has effect as an order of the Federal Court

"82B.(1) Upon registration of a determination under section 82A, the determination has effect as if it were an order made by the Federal Court, but subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the determination, the determination applies as follows to each class member who is described or identified in the determination as mentioned in section 82:

(a)
the class member is bound by the determination; and
(b)
the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the end of the review period.

"(4) In the case of a determination made under section 81, a failure by the respondent, during the review period, to comply with a positive requirement of the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal Court for review of the determination. The respondent's application for review must be made within 28 days after the date of registration of the determination.

"(6) In this section:

'review period' means:

(a) if the respondent to the determination applies to the Court under subsection (5) for review of the determination—the period

SCHEDULE— continued

starting on the day the determination is registered and ending at the time when proceedings on that review are completed or otherwise terminated; or
(b) in any other case—the period of 28 days starting on the day the determination is registered.

Review of registered determination

"82C.(1) This section applies if an application is made to the Federal Court under section 82B for review of a determination.

"(2) The parties to the review are:
(a)
the applicant; and
(b)
the complainant to the determination, as respondent to the application for review.

"(3) The Court may at any time make an interim order that suspends the operation of the whole or any part of the determination. The order may be made on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it thinks fit (including a declaration of right). The orders may confirm a determination that is registered under section 82A.

"(7) The Court may dismiss the application for review at any time if it considers that the applicant is not prosecuting the application with due dispatch. The Court may do this either of its own motion or on the application of the respondent.".

Paragraphs 84(1)(a) and (b):

Omit the paragraphs, substitute:
"(a) has applied or proposes to apply to the Federal Court under section 82C for review of a determination; or
(b) is the respondent to such a review;".

Part III:

After Division 3 insert:

SCHEDULE— continued

"Division 4—Review and enforcement of determinations involving Commonwealth agencies

Application of Division

"84A. This Division applies to a determination that is made under section 80 or 81 and has a Commonwealth agency, or the principal executive of a Commonwealth agency, as the respondent.

Obligations of respondent agency

"84B.(1) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 80, the agency must comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 81:

(a)
the agency must not repeat or continue conduct that is covered by a declaration included in the determination under subparagraph 81(1)(b)(i); and
(b)
the agency must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 81(1)(b)(ii), (iii), (v) or (vi).

Obligations of principal executive of agency

"84C.(1) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 80, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to a determination to which this Division applies that is made under section 81, the principal executive must take all such steps as are reasonably within his or her power to ensure:

(a)
that the terms of the determination are brought to the notice of all members, officers and employees of the agency whose duties are such that they may engage in conduct of the kind to which the determination relates; and
(b)
that no member, officer or employee of the agency repeats or continues conduct that is covered by a declaration included in the determination under subparagraph 81(1)(b)(i); and
(c)
the performance of any act or course of conduct that is covered

SCHEDULE— continued

by a declaration included in the determination under subparagraph 81(1)(b)(ii), (iii), (v) or (vi).

Damages

"84D.(1) If a determination to which this Division applies that is made under section 81 includes a declaration that the respondent should pay damages to the complainant, the complainant is entitled to be paid the amount specified in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue and be sued, the amount is recoverable as a debt due by the agency to the complainant. In any other case, the amount is recoverable as a debt due by the Commonwealth to the complainant.

"(3) In this section:

'complainant', in relation to a representative complaint, means a class member.

Review of determinations regarding damages

"84E.(1) Application may be made to the Administrative Appeals Tribunal for review of:

(a)
a declaration of the kind referred to in subparagraph 81(1)(b)(iv) that is included in a determination to which this Division applies; or
(b)
a decision of the Commission refusing to include such a declaration in a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1), the Tribunal must be constituted by a presidential member who is a Judge and 2 other members who are not Judges. This subsection has effect subject to subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act.

Enforcement of determination against Commonwealth agency

"84F.(1) If a Commonwealth agency fails to comply with section 84B, an application may be made to the Federal Court for an order directing the agency to comply.

SCHEDULE—continued

"(2) If the principal executive of a Commonwealth agency fails to comply with section 84C, an application may be made to the Federal Court for an order directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such other orders as it thinks fit with a view to securing compliance by the respondent.

"(5) An application may not be made under this section in relation to a determination under section 81 until:

(a)
the time has expired for making an application under section 84E for review of the determination; or
(b)
if such an application is made, the decision of the Administrative Appeals Tribunal on the application has come into operation.".

[Minister's second reading speech made in—

House of Representatives on 3 November 1992
Senate on 24 November 1992

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Sex Discrimination and other Legislation Amendment Act 1992 (Cth)

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