Human Rights Bill

Chapter 4

Enforceable Discrimination Determinations - Access and Equity

Introduction

4.1 The Committee heard considerable evidence on the impact that the Human Rights Legislation Amendment Bill will have on a person's capacity to obtain an enforceable determination in a discrimination matter. In particular the Committee heard evidence on the advantages and disadvantages of conferring jurisdiction for these matters on the Federal Court.

Advantages of the Federal Court

4.2 The Committee heard evidence that registered general support for the proposal that contested discrimination matters be heard in the Federal Court.

4.3 Dr Jocelynne Scutt, a member of the Victorian Bar, who gave evidence to the Committee on behalf of the Women for Workplace Justice Coalition, gave three reasons in support of discrimination matters being heard in the Federal Court. First, in her view, human rights matters will be regarded more seriously if heard by a court rather than by a specialist tribunal. In this regard, she told the Committee that "it is high time human rights were given equal regard to property rights and, therefore, by placing this jurisdiction in the Federal Court there is an opportunity for that to occur".

4.4 Secondly, she noted that related heads of claim, such as common law negligence and occupational health and safety claims, could be drawn into Federal Court proceedings under cross-vesting legislation.

4.5 Thirdly, in her view, parties would be more likely to comply with procedural directions and timetables in the Federal Court than in HREOC proceedings. In Dr Scutt's view parties will be less likely to waste time litigating minor procedural matters.

4.6 Ms Chris Ronalds, a member of the New South Wales Bar, who gave evidence for the National Children's and Youth Law Centre and the National Pay Equity Coalition, also spoke favourably of the Federal Court. She told the Committee:

I have practised in the Federal Court, obviously, and in a number of other areas, and I find them, I must say, the best court to appear in. Their short timetables, the professional approach of the registrar, the way the directions hearings are run in front of the judges, the way the orders are made, and the supervision of the matters that are usual in the Federal Court, mean professional control which, in my view, other jurisdictions could greatly benefit from.

4.7 The Registrar of the Federal Court, Mr Warwick Soden, told the Committee that the Chief Justice of the Federal Court has taken a "very keen and personal interest" in the discrimination jurisdiction as proposed in the Bill. Mr Soden also advised that a special Committee of judges has been established to oversee the implementation of the new legislation. He added:

As well - and it is probably the most significant way in which we will accommodate the human rights work in terms of the processing - as part of the individual docket system the judges will be asked to nominate their interest or speciality. Those who do will be put in panels, and human rights cases will be one of those panels. So it will be the judges around Australia who have expressed a particular interest in this area and have an expertise that will be allocated these cases on a random basis as they are commenced. Together with that [the Chief Justice] is looking at merging our cultural awareness and gender issues committees to bring a broader focus to human rights matters. The Practice and Procedure Committee of the court is looking at general practice and procedure changes, and the Chief Justice has asked them to include human rights specifically in those considerations.

Disadvantages of the Federal Court

4.8 Although several witnesses commented favourably on practices and procedures in the Federal Court, some witnesses identified specific disadvantages with discrimination matters being heard in that court.

4.9 In this regard, the Committee was referred to proposed s.46PO of the Bill, which provides that in relation to discrimination matters the Federal Court will not be bound by technicalities or legal forms, subject to Chapter III of the Constitution.

4.10 Ms Rosemary Hunter of the University of Melbourne Law School described the requirement in the Bill that the Federal Court not be bound by technicalities or legal forms as "minimalist" and "a rather slender basis for such necessary modifications". Ms Hunter emphasised that a fundamental feature of human rights legislation is that "it cannot be treated simply as the province of lawyers". She indicated that the human rights legislation needs to be accessible to "ordinary people" and that the proposed Bill as it currently stands will make the legislation less accessible.

4.11 In her submission, Ms Hunter highlighted the advantages of the current procedures of HREOC, and recommended that the Bill be amended to give to the Federal Court powers and duties similar to those currently exercised by HREOC.

4.12 Similarly, the Welfare Rights and Legal Centre also registered strong support for the current HREOC procedures. The Centre added that the Federal Court is known for its formality and "an abundance of robed barristers", which it argued will deter people from seeking to enforce their rights, especially if they are representing themselves.

4.13 Submissions from the Disability Discrimination Law Advocacy Service and the Federation of Community Legal Centres expressed similar views.

4.14 The Registrar of the Federal Court, Mr Warwick Soden, commented on the practices and procedures of the Federal Court, and in particular the "user-friendly" nature of this jurisdiction. He said:

I think there are some anecdotal misconceptions about the way people are treated before the Federal Court because of the way they might be treated before some other institutions. We do enjoy a reputation for courteousness and politeness. We will set up, as I said in my earlier letter, special parts of the registry to deal with people coming to the counter, keeping in mind that nearly all of the people will have been at HREOC in the first place. There are provisions which enable HREOC officers to assist applicants before they come to the court with the application and similarly we will have specially trained people to assist them in the human rights registry of the court.

4.15 Support for HREOC's procedures, however, was not universal. For example, the Legal Aid Office (Queensland) expressed the view that HREOC's current processes lack structure and direction. The Office expressed the hope that the Federal Court will apply case management processes, such as directions hearings, as it does in other matters.

4.16 Another issue was Federal Court forms. Associate Professor Phillip Tahmindjis of the Queensland University of Technology Faculty of Law argued that the Federal Court forms for initiating proceedings will be confusing and alienating for anti-discrimination litigants. In addition, he noted that there is no requirement that they be in plain English.

4.17 However, HREOC gave evidence that a joint committee comprising senior staff from HREOC and the Federal Court was developing user-friendly forms for these matters. The Registrar provided the Committee with a copy. HREOC also advised that discussions are taking place between HREOC and the Federal Court about additional rules of court to ensure the maximum amount of informality in these proceedings.

4.18 The rules of evidence were also of concern. For example, Associate Professor Tahmindjis argued that although s.46PO provides that the Federal Court will not be bound by technicalities and legal forms, it is not clear whether the Court will be bound by the laws of evidence. The Associate Professor expressed the view that the decision of Spender J in Aldridge v. Booth indicated that the rules of evidence would apply despite this clause.

4.19 Similarly, the National Federation of Blind Citizens of Australia told the Committee that it has received legal advice that the Evidence Act 1995 will apply to discrimination proceedings in the Federal Court. The Federation argued that "it would be next to impossible in these circumstances for a complainant to represent him or herself or for community lawyers or people with some legal expertise . . . instead of experienced Counsel". The Federation suggested that the Bill be amended to exempt discrimination matters from the "onerous" requirements of the Evidence Act "while satisfying the constitutional requirements to achieve a fair hearing".

4.20 The Legal Aid Office (Queensland) and HREOC also commented on issues relating to the rules of evidence.

4.21 In response to these concerns, the Attorney-General's Department advised that the Evidence Act 1995 has greatly simplified and clarified the law of evidence and expanded the range of admissible evidence in civil proceedings. The Department also noted that s.190 of the Evidence Act together with Order 33 Rule 3 of the Federal Court Rules enabled the court to dispense with the rules of evidence in the Act if their application would cause unnecessary expense or delay.

Problems of Access and Equity

4.22 Although several witnesses registered general support for the proposal that the Federal Court hear discrimination matters, concerns were raised about access to and equity in the Federal Court. Seven matters were raised with the Committee. These are:

• court fees;
• legal costs;
• legal aid;
• representative complaints;
• representation in the Federal Court;
• Federal Court facilities;
• Federal Court orders and systemic discrimination.

Court Fees

4.23 Federal Court fees were seen by several witnesses as an impediment to bringing discrimination complaints in the Federal Court.

4.24 Federal Court fees are set out in the Federal Court of Australia Regulations. Where the applicant is an individual, rather than a company, they include:

• filing initiating proceedings $500
• issuing a subpoena $40
• setting down a proceeding for hearing $1,000
• daily hearing fee (after first day) $400

4.25 The regulations provide for the waiver of fees in certain matters, such as industrial and criminal cases. There are also provisions for the waiver of fees where a person holds a health or concession card, is in receipt of legal aid, AUSTUDY or ABSTUDY, is under the age of 18 years or, in the opinion of the Registrar, is suffering financial hardship. Fees can also be deferred in cases of urgency.

4.26 The Committee questioned the Registrar of the Federal Court about the waiver of fees and, in particular, whether there might be more need to waive fees in the discrimination jurisdiction. He said:

I think we are expecting a greater occurrence of waiving of fees as a result of this legislation for these types of matters. I think that is the best way to answer it. It is because of ... the capacity of the people to pay and those who would be entitled to the waiving of fees. I think it would follow that, if they are the kinds of people who traditionally are the applicants in this work, yes, there would be a lot of fee waiving.

4.27 Even though there are provisions for waiver in some situations, a number of submissions expressed concern over the level of Federal Court fees. For example, Ms Barbara Buick of the Women's Electoral Lobby submitted:

This could deter most complainants from bringing complaints of discrimination. WEL's knowledge of the process in Western Australia is that nearly 100% of complainants are of very modest means.

4.28 Ms Rosemary Hunter, of the University of Melbourne Law School, argued that the fees were a disincentive to people enforcing their rights under discrimination legislation. She said:

The fact that the filing fee may be waived for certain classes of applicants - broadly, those in receipt of Legal Aid or dependent on social security - does not adequately deal with the objection.

4.29 Ms Hunter suggested that the Federal Court filing fee be waived altogether for human rights complaints. Similar comments and suggestions were made by other witnesses.

4.30 HREOC told the Committee that it had written to the Attorney-General recommending that the Federal Court Regulations be amended to exempt discrimination matters from court fees. HREOC advised that, if this recommendation is not accepted, it considers that the registrar's powers to waive fees in individual cases should be extended to allow the registrar discretion to postpone, temporarily or indefinitely, any fees that might be payable.

4.31 The Committee referred these proposals to the Attorney-General's Department for comment. The Department advised the Committee that after careful consideration the Government has decided that the usual rules in relation to fees should apply to human rights matters, and that the existing provisions in relation to waiver of or exemption from fees is a sufficient safety net. The Department noted that currently a fee is payable if an applicant seeks to enforce a HREOC determination in the Federal Court. The Department also noted that, as is currently the case, there will be no fee for lodgement of a complaint with HREOC.

Legal Costs

4.32 Before reviewing evidence on legal costs it is useful to clarify the meaning of three terms used in evidence.

4.33 First, "costs following the event" means that the party that loses the action pays the successful party's costs.

4.34 Secondly, where costs follow the event, the losing party is generally obliged to pay the "party/party costs" of the successful litigant. Generally party/party costs work out to be less than the costs actually charged to successful party by that party's solicitors, which are known as solicitor/client costs.

4.35 Thirdly, a "no cost" situation is where each party pays its own legal costs, regardless of the outcome.

4.36 Two issue arose in relation to legal costs in the Federal Court. The first is whether costs should follow the event in the Federal Court.

4.37 The second issue is whether a solicitor acting for an applicant in Federal Court proceedings should be allowed to charge to their client solicitor/client costs at a market rate, or whether they should be restricted to party/party costs in accordance with the relevant Federal Court scale.

Costs Following the Event

4.38 Currently, in inquiries conducted by HREOC, each party pays its own legal costs, regardless of the outcome.

4.39 Under the provisions of the Human Rights Legislation Amendment Bill, the Federal Court may make such orders as it thinks fit if it is satisfied that there has been unlawful discrimination. These orders may relate to costs. This provision is consistent with s.43 of the Federal Court Act, which provides that the award of costs is generally at the discretion of the judge. It is usual that "costs follow the event".

4.40 The prospect of the rule that costs follow the event being adopted in the Federal Court attracted comment in some submissions. For example, the Disability Discrimination Law Advocacy Service argued that the possibility of costs being awarded against complainants will deter them from pursuing their rights in the Federal Court. Similarly, Dr Marian Sawer of the Women's Electoral Lobby maintained that:

the costs barriers created by this legislation will weight the whole system of complaint-handling in favour of respondents, who characteristically can command greater resources than complainants.

4.41 These concerns were reiterated by the National Federation of Blind Citizens of Australia. The Federation expressed the following view:

There is little chance that people with disabilities, primarily on pensions, will take cases to the Federal Court, largely regardless of the merits of the case, because no legal representation can or will guarantee the outcome of a case and there is no way the costs could be paid.

4.42 Witnesses and submissions suggested alternative approaches to the rule that costs follow the event. The Committee was told that:

• each party should bear their own costs in contested discrimination matters;
• costs should only be awarded against a party if their application or defence is unreasonable, having regard also to the means of the party;
• each party generally pay their own costs, but the Federal Court have discretion to award costs in exceptional circumstances, as is the case under s.117 of the Family Court Act;
• ordinarily costs follow the event but, before the hearing, the applicant would be able to seek a direction that each party bear their own costs, which the Court would normally agree to, except in the case of a frivolous or vexatious complaint;
• ordinarily each party pay its own costs, but before the hearing the applicant would be able to seek a direction that costs follow the event;
• the entitlement of an applicant to damages could be expanded so that damages include legal costs.

4.43 On the other hand, other witnesses and submissions supported, with varying degrees of enthusiasm, the usual rule that costs follow the event.

4.44 The Australian Bus and Coach Association supported costs following the event, because it would encourage complainants "to closely examine the merits of their case before launching court action".

4.45 Despite reservations, HREOC advised the Committee that it did not oppose the rule that costs follow the event. HREOC maintained that if, in the Federal Court, each party pays its own legal costs, lawyers will be reluctant to take on speculative actions on behalf of clients who are unable to pay legal costs.

4.46 HREOC also noted that only a few matters would ultimately be affected by costs orders:

[In] 1995-96, 231 discrimination matters (including a few matters under the HREOC Act) were referred for public hearing by the Commission. In the same year, 27 decisions were handed down. The complainants were unsuccessful in only 15 of these and therefore at risk of any costs order. To place these statistics further in context, in 1995-96 there were just over 2,500 complaints lodged under the Commonwealth anti-discrimination legislation.

4.47 The Attorney-General's Department advised that the question of costs is a difficult one. However, the Department is of the view that the rule that costs ordinarily follow the event will encourage solicitors to undertake cases on the basis of a speculative action. This may not be the case if the Court does not have the power to award costs. The Department added that there is "nothing so different about these sorts of cases that would merit special measures regarding costs". The power to award costs may mitigate against frivolous and vexatious claims by applicants and deliberate delay or obstruction by respondents.

4.48 The Department advised the Committee that there are initiatives in the Bill to reduce the level of legal costs that may be incurred in the Federal Court.

Conclusion:

The Committee is of the view that it is appropriate that costs follow the event in discrimination matters heard in the Federal Court.

Party/Party Costs

4.49 As indicated above, the second issue concerning legal costs relates to whether a solicitor acting for a complainant should be confined to charging this client party/party costs.

4.50 In its evidence, HREOC recommended that a solicitor acting for a complainant should only charge party/party costs to this client. HREOC further recommended that a complainant should not be charged any solicitor/client costs that may be in excess of party/party costs.

4.51 The Registrar of the Federal Court advised the Committee that he had had 20 years experience in the assessment of costs in courts throughout Australia, both in the Federal and State jurisdictions. On the basis of this experience and recent consultations with Federal Court officials he was of the view that solicitor/client costs are usually 25 to 35 per cent in excess of party/party costs.

4.52 The Attorney-General's Department was concerned that solicitors will be reluctant to represent parties, especially in more complex matters, if they could only charge party/party costs to their clients. The Department noted that in high volume jurisdictions such as workers' compensation, where there are a large number of solicitors practicing, it was arguably appropriate to confine solicitors to party/party costs. However, the Department considered that the proposal was less compelling in relation to the human rights matters.

Conclusion:

The Committee is of the view that there is no public policy reason why lawyers acting in discrimination matters should be limited to charging their clients party/party costs.

Legal Aid and Assistance

4.53 The Bar Association of Queensland argued that the level of filing fees and other costs in the Federal Court raises the question of whether appropriate legal aid resources will be available.

4.54 The Committee notes that proposed s.46PR in the Bill provides that a complainant or respondent in Federal Court proceedings may apply to the Attorney-General for the provision of assistance. Such assistance may be granted if (a) it will involve hardship to that person to refuse the application and (b) in all the circumstances it is reasonable to grant the application.

4.55 Associate Professor Phillip Tahmindjis of the Queensland University of Technology Faculty of Law emphasised that, this provision of the Bill is discretionary and the key elements of "hardship" and "reasonableness" are not defined.

4.56 Ms Chris Ronalds argued that the requirements of (a) hardship and (b) the circumstances of the case in s.46PR should be in the alternative, rather than cumulative. She explained:

It should be alternative, so there can be federal government legal assistance provided where public interest intervenes. The government, in my submission, cannot push its responsibility for administering the legislation and making sure it works on to the legal profession to act on a spec basis in cases. By saying that only impecunious people under 46PR(2) can run cases with the support of federal government assistance is too narrow and is denying the reality of many discrimination complaints. It is also probably a breach of the relevant international conventions.

4.57 Legal Aid Western Australia also argued that the Attorney-General's discretion was too uncertain and that Legal Aid Commissions should be provided with additional funding to implement a human rights section using the Legal Aid WA's Human Rights Service as a model.

4.58 The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) expressed concern that proposed cuts in federal funding for State and Territory legal aid will result in far fewer grants of legal aid for discrimination matters. The Group informed the Committee that the Victorian and NSW legal aid commissioners have announced that they will no longer grant legal aid for discrimination complaints.

4.59 The Committee sought information from the Attorney-General's Department on the provision of legal aid in general and also specifically in discrimination matters. The Department advised that legal aid is also available through State and Territory Legal Aid Commissions, subject to means and merit tests and the Commissions' priorities.

4.60 The Department also advised that an annual budgetary allocation is made for the Department to fund the provision of legal aid in respect of 20 statutory schemes and six non-statutory schemes. Claims under proposed s.46PR will also be paid out of the annual allocation to this fund. During the year in 1995-96 $5.878 million was allocated to the fund, and $5,806,711 was spent, including $15,919 in relation to the Disability Discrimination Act, $61,391 in relation to the Racial Discrimination Act and $14,830 in relation to the Sex Discrimination Act.

4.61 The Committee also notes that the Commonwealth also provides funding to Commonwealth Community Legal Centres, and to Disability Discrimination Act Legal Services, which provide free legal advice.

4.62 In relation to the discretionary nature of grants of legal aid under proposed s.46PR, the Attorney-General's Department argued that "any grant of aid provided by a legal aid commission is also ... discretionary".

Representative Complaints

4.63 Subsections 46P(1) and (2) of the Bill provide:

(1) A written complaint may lodged with the Commission, alleging unlawful discrimination.

(2) The complaint may be lodged:

(a) by a person aggrieved by the alleged unlawful discrimination:

(i) on that person's own behalf; or

(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

(b) by 2 or more persons aggrieved by the alleged unlawful discrimination:

(i) on their own behalf; or

(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.

4.64 Subsection 46PA(1) provides that:

(1) A representative complaint may lodged under section 46P 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.

4.65 Therefore, under the Bill:

• a representative complaint in the nature of a class action could be lodged with HREOC by an aggrieved person or persons on their own behalf and on behalf of other affected persons (s.46P(2)(a) and (b) and s.46PA); and
• a representative complaint may be lodged with HREOC by a person or trade union on behalf of one or more other persons aggrieved by unlawful discrimination (s.46P(2)(c) and s.46PA).

Class Actions

4.66 Three issues were raised in relation to class actions. These are:

• the number of complainants or applicants constituting a class action in HREOC or the Federal Court respectively;
• possible impediments to class actions; and
• replacing complainants in class actions.

The Number of Complainants/Applicants Constituting a Class Action

4.67 Under the provisions of the Bill a class action can be brought in HREOC where there are two or more people in the group. Concerns were expressed that if that class action is terminated by the President of HREOC different rules will apply if that class action is pursued in the Federal Court.

4.68 In order to appreciate these concerns it is useful to set out ss.33C and 33L of the Federal Court of Australia Act:

33C. Commencement of proceeding

(1) Subject to this Part, where:

(a) 7 or more persons have claims against the same person; and

(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and

(c) the claims of all those persons give rise to a substantial common issue of law or fact;

a proceeding may be commenced by one or more of those persons as representing some or all of them.

(2) A representative proceeding may be commenced:

(a) whether or not the relief sought-

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would require individual assessment; or

(iv) is the same for each person represented; and

(b) whether or not the proceeding :-

(i) is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or

(ii) involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

33L. Situation where fewer than 7 group members

If, at any stage of a representative proceeding , it appears likely to the Court that there are fewer than 7 group members, the Court may, on such conditions (if any) as it thinks fit:

(a) order that the proceeding continue under this Part; or

(b) order that the proceeding no longer continue under this Part.

4.69 The Queensland Council of Civil Liberties and Legal Aid Western Australia argued that the provisions of the Federal Court Act should be amended, at least in respect of discrimination complaints, to reflect the proposed provisions in the Bill.

4.70 HREOC suggested a different approach. It argued that s.33L of the Federal Court Act should be amended to make it clear that the Court has discretion to allow class actions to be commenced even when there are less than seven group members at the time of commencement.

4.71 In response to these concerns the Attorney-General's Department advised that, at this stage, no change should be made either the Federal Court of Australia Act or the Human Rights and Equal Opportunity Commission Act "although the issue might be revisited in the context of a consolidation of human rights legislation being worked on". Specifically, the Department advised that the effect of the difference between the provisions will be ameliorated by the fact that the Federal Court could order "in the normal way" that proceedings be joined.

4.72 In subsequent correspondence to the Committee the Department further advised that there "is nothing inherently different about representative proceedings in human rights/anti-discrimination matters which would justify a separate regime" and that there "is no reason for the minimum numbers for a representative proceeding in the Federal Court and a representative complaint under the Bill to be the same". The Department added that the lower figure in the Bill for a class action in HREOC "is a number which represents an assessment that the balance of convenience for a representative complaint favours a smaller number".

4.73 The Committee notes the advice from the Attorney-General's Department that the Federal Court is able to join two or more proceedings alleging discrimination. In these circumstances, however, the Committee presumes that each individual applicant may be liable for a filing fee.

Possible Impediment to Class Actions

4.74 The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) raised another concern with these provisions of the Bill and, in particular, s.46PA. It should be noted that this section of the Bill provides that a class action may be lodged with HREOC under s.46P if all the complaints are in respect of, or arise out of, the same, or similar or related circumstances, and give rise to a substantial common issue of law or fact.

4.75 This group was concerned that class actions, particularly involving people with disabilities, may not be possible if the circumstances vary from complainant to complainant. The group maintained that this was a particular problem for people with disabilities seeking different remedies.

4.76 The Attorney-General's Department responded:

The fact that a person with a disability may require a slightly different remedy/reasonable adjustment does not affect whether a number of complaints may proceed as a representative complaint in the Commission. The relevant question is whether the various complaints involve common issues of fact or law arising out of the same or similar circumstances.

Replacing Complainants in Class Actions

4.77 The Bill provides that a class member in a representative complaint may, by notice in writing to HREOC, withdraw from a representative complaint at any time before the President terminates the complaint under s.46PE.

4.78 The Bill, however, does not provide for representative complainants to be replaced. As a result, there was concern that the withdrawal of the complainant on the record would result in the complaint lapsing. The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) did not support what it saw as the effective repeal of sections of the Disability Discrimination Act 1992, Sex Discrimination Act 1984 and Racial Discrimination Act 1975, which it said allow for the replacement of complainants.

4.79 The Attorney-General's Department advised that this issue would require further consideration by the Government.

Recommendation No. 10:

Representative Complaints By Unions Etc

4.80 Under proposed s.46P(2)(c) of the Human Rights Legislation Amendment Bill 1996, a person or trade union, who is not personally aggrieved by a discriminatory act, will be able to bring a complaint in HREOC on behalf of an aggrieved person or persons.

4.81 However, proposed s.46PL of Bill provides that only "an affected person in relation to the complaint" may make an application to the Federal Court alleging unlawful discrimination. The Bill provides that "an affected person" is a person on whose behalf a complaint was lodged., which would not cover a union or person not personally aggrieved.

4.82 The Disability Discrimination Law Advocacy Service and others suggested that there should be a consistent approach on this matter between HREOC and the Federal Court.

4.83 The Attorney-General's Department advised the Committee that it had "concerns" about proceedings being commenced in the Federal Court by a person or body on someone else's behalf, except in class action situations where the Federal Court Act makes specific provision. The Department advised that this "would lead to the prospect of orders being made affecting the rights and obligations of parties who may not have participated to any degree in the proceedings". The Department also noted that the inconvenience attaching to this could be ameliorated by s.46PN in the Bill that enables a person to be represented by someone other than a lawyer. In this way the initial representative complainant could presumably continue assisting in a matter, albeit not as a party. The Department also drew the Committee's attention to provisions in the Federal Court Rules relating to special representation for mentally disabled persons.

Representation in the Federal Court

4.84 The Bill provides that a party in Federal Court proceedings relating to discrimination may appear in person, or be represented by a barrister or a solicitor, or be represented by another person, unless the Court is of the opinion that it is inappropriate for the other person to appear.

4.85 The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) submitted that the Federal Court Rules should be amended to recognise that some people with disabilities require a support person to assist, rather than represent, them in certain matters. Support could include "advocating or speaking on their behalf or just being present while they advocated for themselves".

4.86 In response, the Attorney-General's Department advised that:

to allow for more informal support to be given, the Court may develop procedures that will promote fair and informal litigation. Although these are ultimately a matter for the Court, it could, for example, allow a support person to sit with an unrepresented applicant in order to explain what is happening in the proceedings or give assistance where a person is physically disabled.

Federal Court Facilities

4.87 Associate Professor Tahmindjis was concerned that there was nothing in the Bill to require the Federal Court to provide interpreters, facilities for people with disabilities or child care.

4.88 Similarly, the Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) submitted that the Federal Court Rules should be amended to ensure that all courts in which discrimination matters are to be heard are fully accessible and interpreters, including AUSLAN interpreters are available. The Disability Discrimination Advocate of the Launceston Community Legal Centre also suggested that the rules be amended so that court rooms, witness boxes and toilet facilities are accessible by wheelchair.

4.89 In response to these concerns the Attorney-General's Department advised that it is currently undertaking a disability access audit of the Federal Court premises to ensure that they comply with the Commonwealth disability strategy. In relation to the provision of interpreters, the Department advised that this is a matter for the Court, but noted that the Bill provides that a person may be represented by a non-legal advocate, unless that is considered inappropriate in the circumstances. This would enable a person with a speech or hearing impediment to appear with an assistant.

Federal Court Orders and Systemic Discrimination

4.90 Proposed s.46PL in the Bill provides that the Court may make such orders as it thinks fit if it is satisfied that there has been unlawful discrimination, including a number of possible listed orders.

4.91 The listed orders focus on the parties to the proceedings and not on other persons, such as fellow employees of the respondent, who also may be affected. The Human Rights and Discrimination Committee of the Combined Community Legal Centres' Group (NSW) submitted that in order to address the issue of systemic discrimination, the Federal Court should be able to make general orders relating to a respondent's policies and practices, and not merely orders confined to the parties.

4.92 The Committee raised this issue with the Attorney-General's Department. The Department advised the Committee that:

The Court's orders are only binding between the parties to the proceedings. However, it may be that the practical impact of those orders goes beyond the individual(s) alleging discrimination. That is, the decision of the Court will have precedent value and should encourage a respondent to change any discriminatory policy or practice - or risk further action from other people aggrieved by the same policy or practice.