The Parliamentary Joint Committee on Human Rights’ enquiry into freedom of speech in Australia did not reach a consensus on any reforms to s18C of the Racial Discrimination Act 1975 (Cth). However it did recommend a range of procedural changes to the Australian Human Rights Commission’s processes for handling complaints, aimed at raising the threshold for complaints and strengthening the powers of the Commission to deal with unmeritorious complaints. Many of these recommendations have now been enacted through amendments to the Australian Human Rights Commission Act 1986 (Cth).

The threshold for complaints

The amendments increase the threshold for complaints by requiring complainants to detail, as fully as practicable, the alleged acts, omissions and practices that form the basis of the alleged unlawful discrimination. The intent of the new requirement is that complaints should contain more than bare allegations of unlawful discrimination and should sufficiently substantiate why the alleged conduct constitutes unlawful discrimination. The higher threshold gives the Commission greater capacity to make an initial assessment of whether the complaint has any merit at the time it is lodged, and to dismiss those complaints that are unmeritorious before the complaints handling process is instituted.

Termination of complaints

Another significant aspect of these amendments is the circumstances in which the Commission is required, or has a discretion, to terminate complaints. The new category of circumstances in which it is mandatory for the Commission to terminate a complaint includes:

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

In addition, the time frame for the discretionary termination of complaints has been reduced from 12 months to 6 months.Where a complaint is terminated, the President must notify the complainants in writing of the termination and of the reasons for the termination, and this notification must include a statement explaining that the Federal Court and the Federal Circuit Court can award costs in proceedings.

Leave of the Court

The amendments have also added a new requirement for leave of the Court to be granted for applications filed in the Federal Court or Federal Circuit Court alleging unlawful discrimination following the termination of complaints in certain circumstances. Leave is not required where the President of the Commission considers the subject matter of the complaint involves an issue of public importance that should be dealt with by the Federal Court or the Federal Circuit Court, or where the complaint was terminated on the basis that there was no reasonable prospect of the matter being settled by conciliation.

Please contact a member of the PCS team if you require assistance in working through these new processes.