The Law Handbook 2024

Chapter 11.1: Discrimination and human rights 1003 • the complaint could be more effectively or conveniently dealt with by another statutory authority; or • the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia. The President must terminate a complaint if they are satisfied that: • the complaint is trivial, vexatious, misconceived or lacking in substance; • there is no reasonable prospect of the matter being settled by conciliation; or • there is no reasonable prospect that the Federal Court or the Federal Circuit and Family Court of Australia would be satisfied that the alleged acts, omissions or practices are unlawful discrimination. Under the AHRC Act, complainants must seek the court’s leave (i.e. permission) before bringing a case alleging unlawful discrimination. There are two exceptions to this requirement; where: • the President terminated the complaint because the subject matter involves a significant issue of public importance that should be considered by the Federal Court or the Federal Circuit and Family Court of Australia; • the President terminated the complaint because there was no reasonable prospect of the matter being settled by conciliation. In these two circumstances, the complainant is not first required to seek the court’s leave. If the court is satisfied there has been unlawful discrimination, it can make any orders it sees fit, including any of the following orders: • declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue the unlawful discrimination; • requiring the respondent to pay compensation to the applicant; • requiring the respondent to employ or re-employ the applicant; or • requiring the respondent to redress relevant loss or damage suffered by the applicant. Applications to the Federal Court or the Federal Circuit and Family Court of Australia must be made within 60 days after the date of issue of the notice to the complainant advising that the President has terminated the complaint. Representative complaints may also be lodged with the AHRC when the complaint concerns a substantial common issue affecting a class of people (see s 46PB AHRC Act). Note that where an offer to settle is made by the complainant or respondent, and this offer is rejected, the court may consider this offer in determining whether to award costs. NOTE It is unlawful, and an offence, to disadvantage a person because they have made, or propose to make, a complaint of discrimination or provided information in connection with a complaint to the AHRC. This is referred to as ‘victimisation’ (see ss 18AA, 27(2) RD Act; ss 47A, 94(2) SD Act; ss 42(2), 58A DD Act; ss 47A, 51(1) AD Act). Racial Discrimination Act The Racial Discrimination Act 1975 (Cth) (‘ RD Act ’) prohibits discrimination based on race, colour, descent, national or ethnic origin, and in some circumstances, immigrant status. The RD Act contains a prohibition on both direct and indirect racial discrimination (s 9) and a general protection of equality before the law, which can invalidate discriminatory laws (s 10). In addition to the general prohibition on racial discrimination, discrimination is unlawful in the following areas: land, housing and other accommodation; the provision of goods and services; access to places and facilities; and employment, including the right to join a trade union. The RD Act also prohibits racial hatred (also called ‘racial vilification’), which is doing something in public based on the race, colour, national or ethnic origin of a person, or group of people, that is likely to offend, insult, humiliate or intimidate (s 18C). Under the RD Act: • it is unlawful to publish or display an advertisement that indicates an intention to discriminate (s 16) or to incite others to discriminate (s 17); and • an employer or principal may be liable for the discriminatory acts of their employees or agents unless they can show that they took all reasonable steps to stop the employee or agent doing the act (ss 18A, 18E).