Human Rights Legislation (Transitional) Regulations 2000 2000 No. 301
EXPLANATORY STATEMENT
STATUTORY RULES 2000 No. 301
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
Human Rights Legislation Amendment Act (No. 1) 1999
Human Rights Legislation (Transitional) Regulations 2000
The Human Rights Legislation Amendment Act (No. 1) 1999 (the Act) amended, among other Acts, the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA). The Act changes the way complaints are dealt with because the Human Rights and Equal Opportunity Commission (the Commission) does not have the constitutional power to determine disputes. The Act transfers that function to the Federal Court of Australia and the Federal Magistrates Court.
The Act also contains transitional provisions which detail the manner in which complaints lodged with the Commission before the commencement date of the Act should be treated where various circumstances exist.
Sub-section 21(2) of the Act provides for the Governor-General. to make regulations in relation to matters of a transitional or saving nature arising out of the enactment of the Act.
The purpose of the regulations is set out the manner in which complaints lodged with the Commission before the commencement date of the Act should be treated in particular circumstances that are not dealt with by the Act.
The regulations deal with the situation where a decision of the Commission has been the subject of an application under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act) and an order is made under the ADJR Act by the Federal Court of Australia or the Federal Magistrates Court to refer the matter back to the Commission for further consideration. The regulations deem the President to have terminated, as if under section 46PH of HREOCA, such a decision made by the Commission. The regulations apply only to complaints referred back to the Commission by a Court after commencement of the regulations.
By treating complaints as if they were terminated under section 46PH of HREOCA, the regulations activate section 46P0 of HREOCA with respect to such complaints. Section 46PO provides the mechanism by which a person may make an application to the Federal Court of Australia or the Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
As the Commission cannot make enforceable decisions. the regulations allow the complaint to be deemed terminated so as to permit the complainant to make a fresh application in the Federal Court of Australia or the Federal Magistrates Court and obtain an enforceable decision. The regulations enable parties to obtain an enforceable decision in the most efficient way possible.
The transitional provision made by the regulations is consistent with other transitional provisions in the Act.
Details of the regulations are contained in the attachment.
The regulations commence on gazettal.
Attachment
Human Rights Legislation (Transitional) Regulations 2000
Regulation 1 provides the name of the regulations.
Regulation 2 provides that the regulations commence on gazettal.
Regulation 3 provides definitions.
Sub-regulation 4(1) specifies the complaints affected by the regulations. The regulations apply where the Commission has made a decision in relation to a specified complaint which has then been the subject of an application under the ADJR Act and, on or after commencement of the regulations, the Federal Court of Australia or the Federal Magistrates Court makes an order under the ADJR Act referring the matter back to the Commission for further consideration.
The effect of sub-regulation 4(2) is that, following commencement of these regulations, the President of the Commission will be taken to have terminated such a complaint under section 46PH of HREOCA on the date the order is made.
Sub-regulations 4(3), 4(4) and 4(5) make provision for the issue of notifications with respect to terminations under regulation 4.
Overview
The Human Rights Legislation Amendment Act (No. 1) 1999, along with the subsequent Human Rights Legislation (Transitional) Regulations 2000, was enacted to address the constitutional limitation preventing the Human Rights and Equal Opportunity Commission from making binding decisions in discrimination disputes. This legislation was introduced to ensure that complaints of discrimination could be effectively resolved through a judicial process. The Human Rights Legislation Amendment Act was enacted by the Parliament of Australia to transfer the function of resolving discrimination disputes from the Commission to the Federal Court of Australia and the Federal Magistrates Court. The transitional regulations, issued under the authority of the Attorney-General, detail the treatment of complaints lodged before the commencement of the Act, particularly where decisions by the Commission have been subject to judicial review and subsequently referred back to the Commission for reconsideration. These regulations aim to facilitate the transition by allowing complaints to be deemed terminated, thereby enabling complainants to apply to the Federal Court or Federal Magistrates Court for enforceable decisions.
Scope and Application
The Human Rights Legislation (Transitional) Regulations 2000 applies to complaints concerning unlawful discrimination that were lodged with the Human Rights and Equal Opportunity Commission (the Commission) prior to the commencement of the Human Rights Legislation Amendment Act (No. 1) 1999. Specifically, these regulations address situations where a decision made by the Commission on a complaint has been subject to an application under the Administrative Decisions (Judicial Review) Act 1977 and subsequently referred back to the Commission for further consideration by the Federal Court of Australia or the Federal Magistrates Court. The regulations ensure that such complaints are treated as if they were terminated under section 46PH of the Human Rights and Equal Opportunity Commission Act 1986, thereby allowing the complainant to make a fresh application in the Federal Court or the Federal Magistrates Court for an enforceable decision. The regulations operate within the Commonwealth jurisdiction and apply to the Commission, the complainants, and the relevant courts. There are no specific exclusions mentioned in the regulations, which are made under the authority of the Attorney-General to address transitional matters arising from the enactment of the 1999 Act. The regulations commence on gazettal and are consistent with other transitional provisions in the Act.
Key Provisions
The Human Rights Legislation (Transitional) Regulations 2000 (the Regulations) are instrumental in managing the transition of certain complaints from the Human Rights and Equal Opportunity Commission (the Commission) to the Federal Court of Australia and the Federal Magistrates Court, as mandated by the Human Rights Legislation Amendment Act (No. 1) 1999 (the Act). Regulation 4(1) specifies that the Regulations apply to complaints where a decision by the Commission has been subject to an application under the Administrative Decisions (Judicial Review) Act 1977 and the matter has been referred back to the Commission by the Federal Court of Australia or the Federal Magistrates Court. Regulation 4(2) then deems the President of the Commission to have terminated such complaints as if under section 46PH of the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA). This termination activates section 46PO of HREOCA, enabling the complainant to make a fresh application to the Federal Court of Australia or the Federal Magistrates Court, thus allowing for an enforceable decision to be made.
The Regulations impose specific obligations on the parties involved in complaints affected by the Act. The most significant obligation lies with the Commission, which, under Regulation 4(2), must treat the specified complaints as terminated upon the order from the Federal Court of Australia or the Federal Magistrates Court. This obligation is designed to ensure that the transition from the Commission to the Federal Court or Federal Magistrates Court is as seamless as possible. Additionally, the Regulations require the President of the Commission to notify the complainant of the termination of the complaint, as stipulated in sub-regulations 4(3), 4(4), and 4(5).
While the Regulations themselves do not explicitly outline specific offences or penalties for non-compliance, the overarching legislative framework, including the HREOCA and the ADJR Act, provides a basis for legal consequences in case of non-compliance. Non-compliance with the requirements of these Acts, including the failure to properly manage the transition of complaints as specified in the Regulations, could potentially lead to legal challenges and judicial review under the ADJR Act. The maximum penalties for breaches of the HREOCA or the ADJR Act may vary depending on the specific nature of the breach and the applicable laws at the time. The Regulations commence on gazettal, ensuring that all parties are aware of their obligations from the moment the Regulations come into effect.