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This Act may be cited as the Australian Human Rights Commission Act 1986.
This Act shall come into operation on a day to be fixed by Proclamation.
In this Act, unless the contrary intention appears:
Aboriginal person means a person of the Aboriginal race of Australia.
ACIC means the agency known as the Australian Criminal Intelligence Commission established by the Australian Crime Commission Act 2002.
act means an act done:
by or on behalf of the Commonwealth or an authority of the Commonwealth;
under an enactment;
wholly within a Territory; or
partly within a Territory, to the extent to which the act was done within a Territory.
affected person, in relation to a complaint, means a person on whose behalf the complaint was lodged.
Age Discrimination Commissioner means the Age Discrimination Commissioner appointed under the Age Discrimination Act 2004.
alleged acts, omissions or practices, in relation to a complaint, means the acts, omissions or practices that are alleged in the complaint.
See also paragraph 23(b) of the Acts Interpretation Act 1901.
appointed member means the President or the Human Rights Commissioner.
AUSTRAC means the Australian Transaction Reports and Analysis Centre continued in existence by the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006.
Australia includes the external Territories.
Australian Capital Territory enactment means an enactment of the Australian Capital Territory within the meaning of the Australian Capital Territory (Self‑Government) Act 1988, or an instrument made under such an enactment.
authority means:
in relation to the Commonwealth:
a body (whether incorporated or unincorporated) established for a purpose of the Commonwealth by or under a Commonwealth enactment;
an incorporated company over which the Commonwealth is in a position to exercise control;
a person holding or performing the duties of an office or appointment established or made under a Commonwealth enactment or by the Governor‑General or a Minister of the Commonwealth (not being an office or appointment referred to in subparagraph (c)(iii));
a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Commonwealth for the purposes of this Act;
in relation to a State:
a body (whether incorporated or unincorporated) established for a purpose of the State by or under a law of the State;
an incorporated company over which the State is in a position to exercise control;
a person holding or performing the duties of an office or appointment established or made under a law, or by the Governor or a Minister, of the State;
a local government body in the State; or
a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the State for the purposes of this Act; or
in relation to a Territory:
a body (whether incorporated or unincorporated) established for a purpose of the Territory by or under a Commonwealth enactment or a law of the Territory;
an incorporated company over which the Administration of the Territory is in a position to exercise control;
a person holding or performing the duties of an office or appointment established or made under a law of the Territory or by the Administrator of a Territory; or
a body, or a person holding or performing the duties of an office or appointment, that is declared by the regulations to be an authority of the Territory for the purposes of this Act.
children means people under the age of 18.
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 46PC.
Commission means the Australian Human Rights Commission established by this Act.
Commonwealth enactment means an Act or an instrument (other than a Territory enactment, an Australian Capital Territory enactment or a Northern Territory enactment) made under an Act, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.
complainant, in relation to a complaint, means a person who lodged the complaint, whether on the person’s own behalf or on behalf of another person or persons.
complaint, except in Part IIC, means a complaint lodged under Division 1 of Part IIB.
compliance notice means a notice mentioned in subsection 35F(1).
compulsory conference means a conference under section 46PJ.
Convention means the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958, a copy of the English text of which is set out in Schedule 1, as that Convention applies in relation to Australia.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2, as that International Covenant applies in relation to Australia.
Declarations means:
the Declaration of the Rights of the Child proclaimed by the General Assembly of the United Nations on 20 November 1959, a copy of the English text of which is set out in Schedule 3;
the Declaration on the Rights of Mentally Retarded Persons proclaimed by the General Assembly of the United Nations on 20 December 1971, a copy of the English text of which is set out in Schedule 4; and
the Declaration on the Rights of Disabled Persons proclaimed by the General Assembly of the United Nations on 9 December 1975, a copy of the English text of which is set out in Schedule 5.
Defence Department means the Department of State that deals with defence and that is administered by the Minister administering section 1 of the Defence Act 1903.
Department of Home Affairs means the Department administered by the Minister administering the Australian Border Force Act 2015.
Disability Discrimination Commissioner means the Disability Discrimination Commissioner appointed under the Disability Discrimination Act 1992.
discrimination, except in Part IIB, means:
any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
any other distinction, exclusion or preference that:
has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
has been declared by the regulations to constitute discrimination for the purposes of this Act;
but does not include any distinction, exclusion or preference:
in respect of a particular job based on the inherent requirements of the job; or
in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, being a distinction, exclusion or preference made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or that creed.
enactment means a Commonwealth enactment or a Territory enactment.
Federal Court means the Federal Court of Australia.
human rights means the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.
IGIS official means:
the Inspector‑General of Intelligence and Security; or
any other person covered by subsection 32(1) of the Inspector‑General of Intelligence and Security Act 1986.
instrument includes a rule, regulation or by‑law.
instrumentality, in relation to a State, includes:
a person holding or performing the duties of an office established by or under a law of that State;
a person employed in the public service of that State; and
a person employed by a body established for a purpose of that State by or under a law of that State.
international instrument includes a declaration made by an international organisation.
Judge means:
a Judge of a court created by the Parliament or of a court of a State; or
a person who has the same designation and status as a Judge of a court created by the Parliament.
law means a law of the Commonwealth, a law of a Territory or a law of a State.
law of a State means a State enactment or any other law in force in a State, other than a law of the Commonwealth.
law of a Territory means a Territory enactment or any other law in force in a Territory, other than a law of the Commonwealth.
law of the Commonwealth means a Commonwealth enactment or any other law in force throughout Australia.
member means a member of the Commission, and includes the President.
Minister means:
in relation to a State—a Minister of the Crown of that State; and
in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.
National Children’s Commissioner means the National Children’s Commissioner referred to in section 46MA.
Northern Territory enactment means an enactment of the Northern Territory within the meaning of the Northern Territory (Self‑Government) Act 1978 or an instrument made under such an enactment.
positive duty in relation to sex discrimination means section 47C of the Sex Discrimination Act 1984.
practice means a practice engaged in:
by or behalf of the Commonwealth or an authority of the Commonwealth;
under an enactment;
wholly within a Territory; or
partly within a Territory, to the extent to which the practice was or is engaged in within a Territory.
President means President of the Commission.
proposed enactment means:
a proposed law introduced into the Parliament of the Commonwealth or the legislature of a Territory;
a proposed law prepared on behalf of:
the Government of the Commonwealth or the Administration of a Territory;
a Minister of State of the Commonwealth; or
a body established by law that has the function of recommending proposed laws of the Commonwealth or of a Territory; or
an instrument proposed to be made under a law of the Commonwealth or under a law of a Territory.
Race Discrimination Commissioner means the Race Discrimination Commissioner appointed under the Racial Discrimination Act 1975.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant international instrument means an international instrument in respect of which a declaration under section 47 is in force.
representative application means an application under subsection 46PO(1) that is made on behalf of at least one person other than the person making the application, but does not include an application that commences a representative proceeding in accordance with Part IVA of the Federal Court of Australia Act 1976.
representative complaint means a complaint lodged on behalf of at least one person who is not a complainant.
respondent, in relation to a complaint, means the person or persons against whom the complaint is made.
Sex Discrimination Commissioner means the Sex Discrimination Commissioner appointed under the Sex Discrimination Act 1984.
State includes the Australian Capital Territory and the Northern Territory.
State enactment means a State Act or an instrument made under a State Act and includes an Australian Capital Territory enactment and a Northern Territory enactment.
systemic unlawful discrimination: see subsection 35L(2).
terminate, in relation to a complaint, means decline to inquire into the complaint, or discontinue an inquiry into the complaint.
Territory does not include the Australian Capital Territory or the Northern Territory.
Territory Act means an Act passed by a legislature of a Territory
Territory enactment means a Territory Act, an Ordinance of a Territory or an instrument made under such an Act or Ordinance, and includes any other legislation applied as a law of the Commonwealth, to the extent that it operates as such a law.
Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.
trade union means:
an association of employees that is registered as an organisation, or recognised, under the Fair Work (Registered Organisations) Act 2009; or
a trade union within the meaning of any State Act or law of a Territory; or
any other similar body.
unlawful discrimination means any acts, omissions or practices that are unlawful under:
Part 4 of the Age Discrimination Act 2004; or
Division 1, 2, 2A, 3 or 6 of Part 2 of the Disability Discrimination Act 1992; or
Part II or IIA of the Racial Discrimination Act 1975; or
Part II of the Sex Discrimination Act 1984;
and includes any conduct that is an offence under:
Division 2 of Part 5 of the Age Discrimination Act 2004 (other than section 51 or 52); or
Division 4 of Part 2 of the Disability Discrimination Act 1992 (other than section 42).
In this Act, a reference to the Governor of a State shall, in relation to the Northern Territory, be construed as a reference to the Administrator of the Northern Territory.
In this Act:
a reference to, or to the doing of, an act includes a reference to a refusal or failure to do an act; and
a reference, in relation to the doing of an act or the engaging in of a practice, to the person who did the act or engaged in the practice shall, in the case of an act done or practice engaged in by an unincorporated body of persons, be read as a reference to that body.
In the definition of human rights in subsection (1):
the reference to the rights and freedoms recognised in the Covenant shall be read as a reference to the rights and freedoms recognised in the Covenant as it applies to Australia; and
the reference to the rights and freedoms recognised or declared by any relevant international instrument shall:
in the case of an instrument (not being a declaration referred to in subparagraph (ii)) that applies to Australia—be read as a reference to the rights and freedoms recognised or declared by the instrument as it applies to Australia; or
in the case of an instrument being a declaration made by an international organisation that was adopted by Australia—be read as a reference to the rights and freedoms recognised or declared by the declaration as it was adopted by Australia.
A reference in this Act to the making of a declaration by an international organisation shall be read as a reference to the making or adopting of a declaration, proclamation or other statement by such an organisation in any way, whether by the passing of a resolution, the issuing of an instrument or otherwise.
A reference in this Act to the adoption by Australia of an international instrument being a declaration made by an international organisation shall be read as a reference to the casting by Australia of a vote in favour of the making of the declaration by the organisation at the meeting of the organisation at which the declaration was made or to the giving of some other public notification by Australia expressing its support for the declaration.
A reference in this Act to a person acting on behalf of the Commission is a reference to:
a person, or each of a body of persons, acting pursuant to a delegation under section 19; or
an instrumentality of a State performing a function of the Commission pursuant to an arrangement in force under section 16.
Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is assigned to it by the Convention) has, in this Act, for the purposes of the operation of this Act in relation to the Convention, the same meaning as it has in the Convention.
A reference in this Act to prejudice to the security, defence or international relations of Australia includes a reference to any such prejudice that might result from the divulging of information or matters communicated in confidence by or on behalf of the government of a foreign country, an authority of a government of a foreign country or an international organisation to the Government of the Commonwealth, to an authority of the Commonwealth or to a person receiving the communication on behalf of the Commonwealth or of an authority of the Commonwealth.
This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.
If:
a law of a State or Territory deals with a matter dealt with by this Act; and
an act or omission by a person that constitutes an offence against that law also constitutes an offence against this Act;
the person may be prosecuted and convicted either under that law of the State or Territory or under this Act, but nothing in this subsection renders a person liable to be punished more than once in respect of the same act or omission.
This Act extends to every external Territory.
This Act binds the Crown in right of the Commonwealth but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State.
Part IIB binds the Crown in right of the States.
Nothing in this Act renders the Crown in right of the Commonwealth or of a State liable to be prosecuted for an offence.
Chapter 2 of the Criminal Code applies to all offences against this Act.
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
There is established by this Act a Commission by the name of the Australian Human Rights Commission.
The Commission:
is a body corporate, with perpetual succession;
shall have a common seal;
may acquire, hold and dispose of real and personal property; and
may sue and be sued in its corporate name.
All courts, judges and persons acting judicially shall take judicial notice of the imprint of the common seal of the Commission appearing on a document and shall presume that the document was duly sealed.
The Commission shall consist of:
a President; and
a Human Rights Commissioner; and
the Race Discrimination Commissioner; and
the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
the Sex Discrimination Commissioner; and
the Age Discrimination Commissioner; and
the Disability Discrimination Commissioner; and
the National Children’s Commissioner.
The members must co‑operate with each other to achieve common objectives, where practicable.
Subsection (2) does not affect the operation of section 44 (which deals with meetings of the Commission).
The functions of the Commission under paragraphs 11(1)(aa), 11(1)(ab), 11(1)(f), 31(b), 35A(d) and 35L(1)(a) and the functions of the Commission under paragraphs 11(1)(p), 31(k), 35A(f) and 35L(1)(b), to the extent that they relate to the performance of the first‑mentioned functions, shall be performed by the President, and a reference in this Act to the Commission or to a member of the Commission shall, in relation to the performance of any of those functions, be read as a reference to the President.
The powers of the Commission under sections 20A, 32A and 35Q must be exercised by the President, and a reference in this Act to the Commission or to a member of the Commission must, in relation to the exercise of any of those powers, be read as a reference to the President.
The performance of the functions or the exercise of the powers of the Commission is not affected by reason only of a vacancy in the office of President, Human Rights Commissioner, Race Discrimination Commissioner, Aboriginal and Torres Strait Islander Social Justice Commissioner, Sex Discrimination Commissioner, Age Discrimination Commissioner, Disability Discrimination Commissioner or National Children’s Commissioner.
The President is to be appointed by the Governor‑General as a full‑time member or a part‑time member.
A person must not be appointed under subsection (1) as the President unless the Minister is satisfied that:
the person has appropriate qualifications, knowledge or experience; and
the selection of the person for the appointment is the result of a process that:
was merit‑based; and
included public advertising of the position.
Paragraph (1A)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the President under a previous appointment under subsection (1).
The President is the senior member of the Commission.
The President is responsible for managing the administrative affairs of the Commission.
For the purposes of the Public Governance, Performance and Accountability Act 2013, the President is the accountable authority of the Commission.
The President has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
The Human Rights Commissioner is to be appointed by the Governor‑General as a full‑time member.
A person must not be appointed under subsection (1) as the Human Rights Commissioner unless the Minister is satisfied that:
the person has appropriate qualifications, knowledge or experience; and
the selection of the person for the appointment is the result of a process that:
was merit‑based; and
included public advertising of the position.
Paragraph (2)(b) does not apply in relation to the reappointment of a person who, immediately before the start of the period of reappointment, holds office as the Human Rights Commissioner under a previous appointment under subsection (1).
The Governor‑General may, for the purpose of appointing to the Commission a person who is the holder of a judicial office of a State, enter into such arrangement with the Governor of that State as is necessary to secure that person’s services.
An arrangement under subsection (1) may provide for the Commonwealth to reimburse a State with respect to the services of the person to whom the arrangement relates.