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Beth Gaze[*]
This article looks at recent and proposed changes to Commonwealth anti-discrimination laws. The proclaimed aim of the changes is to remedy the problem of lack of enforceability that has affected federal anti-discrimination laws since 1986. It will be argued that the changes may not reduce, and may instead increase, the already high barriers to bringing a successful claim of discrimination in the federal jurisdiction. As a result, complainants may be further deterred from pursuing claims under federal anti-discrimination laws. Claims may not be brought at all, or may be brought instead under State legislation. The overall effect may be a reduction rather than an improvement in legal protection against discrimination.[1]
Human rights law has been a poor relation in Australia. Although governments have ratified many international human rights conventions, few have been given any domestic legal effect. Only in anti-discrimination law has the Commonwealth government given legislative remedies to individuals for breaches of human rights obligations. The three federal laws (Racial Discrimination Act 1975, Sex Discrimination Act 1984, and Disability Discrimination Act 1992, referred to in this article as RDA, SDA and DDA) rely primarily on the exercise of the Commonwealth’s external affairs power in implementing international human rights conventions for their constitutional support.[2]
But although federal and State governments have, over the last three decades, introduced and expanded laws prohibiting discrimination and requiring limited affirmative action, commitment of resources has lagged behind, and in recent years has been reduced significantly.[3] Persistent problems in enforceability at the federal level have been neglected, and other barriers to successful claims have not been addressed, so that the laws have promised far more than they can deliver. Rights that exist in legislation can be illusory if they are very difficult or prohibitively expensive to enforce. Unless anti-discrimination rights are reasonably able to be actually enforced and enjoyed, claims that society is fairly structured to provide equal opportunity to every member ring hollow, and may come to sound like a legitimation of current arrangements whereby inequitable access to benefits and power between different groups has traditionally been overlooked.[4] Now the government has acted to deal with the problem of enforceability, but the chosen method may fail to overcome the problem because of the existence of other barriers, such as lack of legal aid, the threat of paying legal costs, low damages awards for litigating, an under-resourced agency to receive and investigate complaints, and the technical and narrow approach to the law demonstrated by some judges.
The Human Rights Legislation Amendment Act (No 1) 1999 (Cth) (HRLA Act (No 1)) and the Human Rights Legislation Amendment Bill (No 2) 1999 (HRLA Bill (No 2)) significantly reshape the enforcement procedure in federal anti-discrimination law and the organisation and functions of the Human Rights and Equal Opportunity Commission respectively. Both were reviewed as bills by the Senate Legal and Constitutional Legislation Committee,[5] and their main provisions are well known.
The HRLA Act (No 1) makes the President of the Human Rights and Equal Opportunity Commission (HREOC) responsible for investigation and conciliation of discrimination complaints under the RDA, SDA and DDA instead of the Race, Sex and Disability Discrimination Commissioners, and transfers the hearing function where a dispute cannot be settled from HREOC to the Federal Court. This change to a jurisdiction where costs are usually awarded to the winner has had most publicity, but several other changes which have received little attention could also have a significant impact. The Act amends the three anti- discrimination acts as well as ancillary legislation that refers to HREOC. It repeals substantial parts of the RDA, SDA, and DDA relating to the functions of the Race, Sex and Disability Discrimination Commissioners in receiving, investigating and attempting to conciliate complaints of discrimination under the RDA, SDA and DDA, as well as HREOC’s hearing procedures. The new procedures, which came into effect on 14 April 2000, are found in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) whose provisions for discrimination complaints handling and hearings apply to complaints under all three discrimination acts. The President can delegate aspects of complaints handling to staff, but not to the specialist commissioners or deputy presidents with expertise in these areas: s.19(2A), (2B) HREOC Act.
The Human Rights Legislation Amendment Bill (No 2) 1999 (HLRA Bill No 2), will, if passed, make further changes to HREOC which will have far reaching practical and symbolic effects. Its name will be changed to the Human Rights and Responsibilities Commission, and its structure and functions will be changed by removing all the specialist commissioners (for Race, Sex and Disability Discrimination, Human Rights, and Aboriginal and Torres Strait Islander Social Justice), replacing them with three Deputy Presidents with combined areas of responsibility, but no involvement in complaints handling or conciliation. Associated legislation has separated the Privacy Commissioner from HREOC, and set up a Federal Magistrates Court (FMC) which is expected to be in operation by the middle of 2000, with jurisdiction in family law, administrative law and human rights.[6] It is expected that most discrimination cases will be heard in the FMC, although at the time of writing no information on its relationship with the Federal Court in anti-discrimination law has been released.
The primary problem which the legislative changes purport to address is the past lack of enforceability of HREOC decisions. Associated with this, however, are a number of other barriers to exercising anti-discrimination rights, most of which have not been dealt with by this legislative change. Many of these problems fundamentally relate to the formal legal system’s inability to take account of social, organisational and economic inequalities which lead to differential access both to the legal system and to other social goods.
For example, complainants in anti-discrimination cases are very often from members of disadvantaged groups who may have language or cultural difficulties operating in the court system, or may just not have enough money to be able to afford legal advice. In this situation, the inadequate funding of the federal agency HREOC has limited its ability to assist such people when they make a discrimination complaint by providing quick attention, and assistance with formulating a complaint, which can be very important to complainants who have never dealt with the legal system. Beyond this, HREOC’s role has been interpreted narrowly, as neutrally administering the system of receiving and trying to conciliate complaints, rather than advocating and assisting the observance of human rights to be protected from discrimination.
Lack of legal aid funding and the low priority given to discrimination claims has made it more likely that the disadvantaged complainant will be unrepresented against a respondent who may be a large organisation or even a government department with a deep pocket to fund legal representation. Pro bono legal assistance schemes help, but often do not provide legal representation, leaving untouched the problems of the unrepresented litigant in a court or tribunal.[7] It is difficult for judges who are supposed to be impartial within the formal adversarial legal system to properly protect the interests of unrepresented litigants without acknowledging that actual inequality in access to justice exists, which they are bound to overlook in acting on the legal system’s basic premise of equality before the law. Judicial efforts to avoid overstepping the boundary of impartiality may limit the assistance an unrepresented litigant is given.
Well-resourced respondents have been able to challenge HREOC decisions in favour of complainants, with the result that what legal precedents exist tend to favour respondents. Complainants, in deciding whether to go to HREOC for adjudication of their claim, have had to assess the risk of having to pay legal costs in the Federal Court if they are forced to defend a HREOC decision against a challenge by the respondent which they lose. Lack of legal aid funding and fear of the risk of costs in the Federal Court also means that few actions have been brought to obtain an enforceable order from the Federal Court. There has not been sufficient litigation which is adequately resourced on both sides to develop the principles of this area of law adequately. Some of these barriers are considered below in more detail.
Anti-discrimination law poses a particular problem in a legal system based on overlooking any actual characteristics of parties to litigation. Anti-discrimination legislation is concerned with denial of access to benefits, and less favourable treatment, because of precisely those grounds which the legal system normally refuses to take into account because they are seen as irrelevant. It is difficult for judges accustomed to doing this to begin to appreciate the effect of femaleness, minority and disadvantaged racial or ethnic origin, or disability in the life of an individual, and to begin to take account of them in anti-discrimination law, especially when the judges are so often drawn from privileged social groups and are unlikely to have their own first-hand experience of discrimination. This is an area where experience is a great educator.
Because the current legislative changes have not dealt with any of these associated problems which have made enforcing anti-discrimination claims difficult, it might be expected that their impact on the barriers to succeeding with a claim may not be great. Indeed, there is concern that forcing all adjudication into a system where costs are awarded against the loser, where the law is both unclear and unfavourable to the complainant, will worsen the situation and that fewer people who believe they have experienced unlawful discrimination will be able to pursue their claims.
Enforcement of federal anti-discrimination laws has been unsatisfactory since 1986 when the Human Rights Commission Act 1981 expired in accordance with its five-year sunset clause and was replaced by the Human Rights and Equal Opportunity Commission Act 1986. The HREOC was given not only the function of receiving and conciliating complaints, but also the role of hearing and deciding discrimination disputes which could not be resolved either at conciliation or by negotiation between the parties. Because of the public interest in protecting human rights it was thought better to have a less intimidating and expensive avenue for resolving discrimination matters than the normal court system, and the two-part structure of attempted conciliation and then a hearing before an informal, specialist tribunal was chosen. HREOC has never had power to award costs against a losing party or in favour of a winning party. This was to reduce disincentives to bringing claims by removing the fear of having to pay costs if a claim was unsuccessful, and recognised the community interest in an individual being able to claim their right to protection from discrimination. However, for parties who used legal representation — an increasing trend — this meant that an award to cover their legal costs could not be obtained. By contrast, many State anti-discrimination tribunals have a discretion to award costs in particular cases.
The spanner in the works is the separation of powers principle under the Commonwealth Constitution, which prevents a non-judicial body (such as an administrative tribunal like HREOC) exercising judicial power (which in this situation amounts to making a binding and legally enforceable decision). Thus the RDA, SDA and DDA provided that if a complainant won their claim in HREOC, but the respondent failed to comply with HREOC’s order, then the complainant had to go to the Federal Court to seek an order for enforcement. Since the Federal Court could not merely rely on HREOC’s decision as a basis for granting an order, this could involve a rehearing of the entire case (Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1) at which the respondent could introduce new evidence (Maynard v Nielsen (1988) EOC 92-226). In 1992 the federal Labour government tried to improve this situation, and amended the legislation to allow a complainant who succeeded at HREOC to register the decision with the Federal Court, and unless the respondent took legal action within 28 days, it would become as effective as an enforceable order of the Court. This scheme was held constitutionally invalid for infringing the separation of powers in Brandy v Commonwealth [1995] HCA 10; (1995) 127 ALR 1, as an attempt to confer enforceability on decisions of HREOC.
The immediate response to Brandy was to reinstate the situation which had applied prior to the 1992 amendments. The only long-term resolution to this problem at the federal level is to ensure that anti-discrimination cases are decided by a judicial body exercising judicial power (which normally entails staff appointed for life terms — until age 70 — subject to dismissal for cause). To resolve this situation, the Human Rights Legislation Amendment Bill 1996 would have transferred anti-discrimination decision-making jurisdiction from HREOC to judicial registrars in the Federal Court. This legislation was reintroduced in 1997, 1998 and 1999, but during this period of delay, the Attorney-General decided to alter the framework for dispute resolution by setting up a lower level federal court, the Federal Magistrates Court (FMC), and giving it jurisdiction in discrimination cases (as well as other ‘less complex’ federal matters including family law, trade practices, judicial review and so on: see Federal Magistrates (Consequential Amendments) Act 1999 Schedule 16).
As mentioned above, complainants who succeeded in HREOC have faced barriers to legally enforcing its decisions. This has been especially the case where respondents were large organisations such as governments and big companies. Because they have many employees and may be repeat players, and because they have extensive resources, they may be willing to spend a large sum on legal representation to fight a case, and to pursue a challenge to an unfavourable HREOC decision in the Federal Court. On the other hand, some large organisations may also be concerned about their public image, and, having decided not to challenge a HREOC decision, may have been more likely to implement it without the need for a Federal Court order.
In cases where the government was a respondent, no problem of lack of enforceability arose under the previous legislation, and there was no need to resort to the Federal Court for an order to enforce a HREOC determination. Although the RDA, SDA and DDA specifically provided that determinations of HREOC were not binding between the parties, they also provided (from 1992, and subject to challenge in the Federal Court to the determination) that HREOC determinations and orders against government agencies were to be complied with, subject to AAT review of an order for damages.[8] These provisions reflected the principle that all government departments and agencies should act within the law by complying with legislation, and represented the government’s 1992 commitment to honour its obligations under the anti-discrimination laws as determined by HREOC. Thus HREOC orders were only non-binding against non-government respondents. By moving all discrimination claims to the Federal Court, the government has given itself a substantial additional level of protection from discrimination claims: where previously a HREOC order against it was sufficient, complainants will now have to bring Federal Court proceedings even though they gain no advantage in terms of greater enforceability.
Closely associated with the lack of enforceability has been exposure of complainants to the risk of loss in the Federal Court with a costs order made against them. This undermined the original intention not to deter complainants from seeking to enforce their rights, and permits respondents with deep pockets to ‘scare’ unrepresented complainants away by big spending and technical argument, procedural obstruction and delay. While it could occur both when a complainant sought an order for enforcement and when a respondent challenged a decision of HREOC in favour of a complainant, the former was rare, so in practice the threat was largely from respondents’ challenges. The only mechanism available for such a challenge was to seek review under the Administrative Decisions (Judicial Review) Act 1977. While such a challenge is suitable for matters of government administration, it is entirely unsuitable as an appeal process in what is essentially a civil adjudication. This mechanism, together with the technical approach of Federal Court judges to such appeals, has made decisions very vulnerable to challenge, as any error of law will result in the decision being set aside. Since anti-discrimination law has become a technical and conceptually complex area of law, legal errors have frequently been discerned in the reasons of HREOC decisions. The remedy available under the ADJR Act is to set the erroneous decision aside and remit it back to the Tribunal with directions to rehear according to the law properly interpreted. Thus, unlike a normal civil appeal, complainants would not even have their matter resolved on appeal, but would be put back at ‘start’, usually with a costs order against them arising from the ‘mistake’ made by HREOC in deciding their case. Challenges have had a high success rate, which encouraged respondents with deep pockets to continue to seek review.
The new procedures remove the need to use administrative law to challenge decisions, as appeals will be available to the Full Federal Court on a point of law within the Federal Court of Australia Act 1976 (Cth).
The funding of HREOC has been reduced by over 40% since 1997 (see ref 3). HREOC has lost a great deal of its human resources as staff numbers have been reduced. Staff shortages have slowed the process of investigation and conciliation of complaints and increased the wait for a case to be heard. Cases are no longer heard by a multi-member panel, and all claims heard by a single member (who must be a lawyer) do not have the benefit of access to non-legal expertise and perspectives. As a result, in many reported cases of the last few years the overall process has taken an unreasonably long time, which discourages the bringing of claims and creates strong pressures to choose other avenues such as State anti-discrimination laws or remedies under the Workplace Relations Act 1996, even where the alternative action will not adequately deal with the discrimination issues raised by the complaint.
Changed administrative arrangements preceding the legislative changes will make it more difficult for complainants to get advice in person. HREOC now has an office only in Sydney, and has terminated all co-operative arrangements with the States whereby federal complaint handling would be dealt with by the State agency on behalf of HREOC. Complainants outside Sydney can communicate with HREOC only by phone, letter or email. It is hard to see how adequate advice and assistance in deciding on a course of action and formulating a claim can be given in such circumstances. While HREOC cannot give specific legal advice to a complainant, there is clear role apart from that in providing a complainant with enough information and assistance to adequately cover the technical requirements such as specifying grounds, areas and sufficient facts for their claim. This may become increasingly important if the Federal Court takes a technical approach to construing s.46PO(3) which requires that the unlawful discrimination alleged in the application to the Court must be the same (or the same in substance) as the unlawful discrimination that was the subject of the terminated complaint and must arise out of the same (or substantially the same) acts, omissions or practices as were the subject of the terminated complaint.
Anti-discrimination complainants are very often members of disadvantaged groups who have little earning power or financial resources, and may not have a background which enables them to feel comfortable within the formal legal system. Although originally the human rights jurisdiction was intended to be informal and open to unrepresented litigants, they are nevertheless at a major disadvantage when faced by a respondent who may be a repeat player or represented by a barrister, or merely in presenting a case where the onus of proof is on them. Legal costs are tax- deductible for most respondents who are operating a business, but not for many complainants, which means that lawyers actually cost them more.
Complainants are unlikely to be able to afford legal representation from their own pockets, but access to legal aid for anti-discrimination cases is difficult. In response to reduced federal funding of legal aid, anti-discrimination cases are a low priority in legal aid, where they are seen as civil claims relatively unimportant compared to criminal or family law issues such as a possibility of imprisonment or the loss of access to children. But discrimination may involve the limitation of opportunities at work or in other areas of life for reasons outside the individual’s control which can occur repeatedly in a person’s life and limit their opportunities in a way which could have just as much impact on the individual affected.
The legal aid guideline for anti-discrimination cases required not only a test of strong prospects of success, but also since 1997 required a prospect of ‘substantial benefit being gained not only by the applicant but also by the public or any section of the public’.[9] This extra requirement is in addition to those for other types of civil claims, and it also suggests that a discrimination claim does not inherently involve the public interest. This is paradoxical, since anti-discrimination claims by their nature involve the public interest in protecting human rights as well as the private right of the individual who is disadvantaged by the alleged discrimination. It can never be unimportant that a person or group is subjected to less favourable treatment because of their irrelevant characteristics or attributes. The claim is itself related to group characteristics which affect many others.
The public interest in anti-discrimination claims was recognised in each of the anti-discrimination laws by the provisions for the grant of legal assistance on application to the Attorney-General. It is not known how many applications have been made under these provisions, but statistics compiled by a Senate Committee on amounts of aid granted show that they have contributed virtually nothing to access to justice in this area.[10] An equivalent provision is now found in s.46PU of the HREOC Act, and was relied on in debate on the Bill by government Senators and the Australian Democrats in the Senate as a basis for claiming that moving hearings from HREOC to the Federal Court would not disadvantage complainants despite the lack of access to legal aid. There was, however, no indication that increased funds will be made available for expenditure.
One further avenue for the provision of legal aid in disability discrimination cases has been the provision of funding for specialist disability discrimination legal services on a community legal centre model by the Commonwealth. A recent review of these services for the Attorney-General’s Department supported them, although they cannot meet demand in the area. This model facilitates development of expertise, and funding on this model for specialist race and sex discrimination advocacy services would be an economical and efficient way of making assistance available in these areas given the practical inaccessibility of traditional casework legal aid. An alternative avenue for reform, and perhaps a more efficient way of spending the money available for legal aid would have been the introduction of a system whereby legal assistance including representation is provided in selected cases by staff of the human rights agency, as operates in Western Australia and Canada.
Supporters of the move to Federal Court hearings have argued that when a successful complainant can get an award of costs, lawyers will be prepared to take the case on a speculative (no win no fee) basis. It is difficult to see how this can solve the problem of disincentive for complainants created by the fear of a costs order against them, which may be significant in a discrimination case. The disincentive may be stronger for a disadvantaged applicant as they will risk losing proportionately more of what they have than a wealthier litigant. Court attitudes leading to technical interpretations of the law and making it difficult to succeed, as well as strong legal resistance by some government and corporate respondents add to disincentives.[11] It will be necessary to see whether the ability to obtain speculative legal assistance outweighs the risk of costs in complainants’ decision making. Relevant to this is the potential return they can expect if successful. In evaluating this aspect it must be remembered that what is obtained by a successful discrimination action is merely the avoidance of unfair treatment, not any special advantage.
Damages awards in the human rights jurisdiction are low by comparison with other areas of law.[12] For example, awards of $135,000 to complainants who had lost their careers and suffered significant health effects are record-breaking in this area, where they would hardly raise an eyebrow in defamation or personal injuries law.[13] HREOC had no power to award costs to a complainant who won, unlike State tribunals which have discretion to order payment of costs where a party’s conduct of its case has been unreasonable. Although HREOC can award aggravated damages as compensation, this cannot be used as an avenue to award additional compensation to cover legal costs incurred in pursuing a claim.[14] As a result, a successful complainant may be considerably out of pocket even if they win.
It is not clear whether the Federal Court will make larger damages awards, or whether the possibility of speculative legal assistance will encourage complainants to bring court proceedings and overcome their concerns about losing and being ordered to pay costs. To overlook the latter concerns is to overlook the broad structural inequalities that exist between protected (but often poor) groups such as Aborigines, women, people with a disability or people from a minority ethnic background, and employer and service provider organisations.
In exercising its jurisdiction in anti-discrimination cases until now, the Federal Court has been ready to identify detailed legal errors in HREOC’s decisions, but has been much less willing to defer either to the specialist expertise of HREOC in anti-discrimination law, or to its having heard evidence and assessed credibility at first hand. Nor has the Federal Court grappled with the underlying problem of judicially reviewing a tribunal created by legislation which indicated that a less formal mechanism than a court was intended. That this has not been used to counterbalance the extremely detailed standards of review the Court has applied for technical legal errors, which experienced counsel have been able to identify,[15] has undermined any possibility of a less legalistic forum for resolution of human rights claims. Some judges have also failed to put aside their reluctance (or inability) to look beyond the ‘neutral individual’ of the rule of law to take account of the effect of sex, race and disability on the lives of those who are disadvantaged by these attributes.
Recently the High Court set aside a finding of discrimination against a recruit discharged from the Defence Force when testing showed he was HIV positive, on the basis that HREOC construed ‘inherent requirements’ of the job in s.15(4) of the DDA too narrowly, so that the exception did not apply to protect the employer: X v Cth (Department of Defence) [1999] HCA 63, (1999) 167 ALR 529, (2000) EOC 93-054. In dissent, Kirby J commented:
Once again this court has before it an appeal which concerns the operation of anti-discrimination legislation … Once again, the complainant has succeeded under the legislation, only to have victory taken away by a judicial determination that the favourable decision was flawed by error of law ... [The appeal] relates to the approaches adopted respectively by the primary decision-maker for the HREOC (on the one hand) and the judges of the Federal Court (on the other hand) as they reviewed the primary decision for error of law. [paras 114-115]
The [DDA] is a modern statute of the Australian Parliament. It is designed to secure large changes in employer thinking as well as action. The Commissioner recognised this. So, to a large extent, did Cooper J. In my view, the Full Court did not. Nor did the Commonwealth … [para 165]
When judges interpret anti-discrimination legislation as if it were any other piece of legislation and embodied no significant underlying principles, such as acknowledgment of social inequality and the need to reduce it, they act in accordance with the rule of law and the legal tradition of treating individuals as neutral (though in practice this might amount to assuming others share the judges’ values and understandings). But anti-discrimination legislation explicitly acknowledges attributes of the individual and seeks to remedy disadvantage specifically based on or related to them. Perhaps the judges’ difficulty in seeing these factors or attributes, and understanding their significance, explains their apparent inability to see that disadvantage could be based on these attributes. There is no reason to believe that this will be any different under the new federal procedures, although gradual judicial education may help.
As human rights laws, anti-discrimination laws protect both the public interest in eliminating unfair discrimination from society, and the private interest of individuals in not being treated in a discriminatory way. In Australia’s adversarial and liberal/individualistic legal system, the former tends to be overlooked. In the political climate of the 1990s, the idea of public interest has contracted, to leave a greater expanse for private interest. Many issues are regarded as only of private concern to consumers, rather than issues of public or community concern for citizens or equals. When human rights legislation relies on individuals taking action to enforce their rights, it is only too easy to see it as providing just another civil remedy for those who are sufficiently motivated to pursue. The recent changes to the anti-discrimination laws appear to be based on this assumption.
There appears to be a fundamental inconsistency between the rationale of anti-discrimination law and the basis of the amending legislation and its remedy for the problem of enforceability. Experience over the next few years with the new procedures will provide some evidence either confirming or refuting this inconsistency.
References
[*] Beth Gaze teaches law at Monash University.
I would like to thank Rosemary Hunter and Simone Elias for their comments on a draft of this article.Email: Beth.Gaze@law.monash.edu.au
[1] With Rosemary Hunter of the Justice Research Centre and Griffith University, I am conducting a research project which aims to assess the effect of the changes brought about by this legislation through collection of data about the experiences and decision making of parties both before and after the change.
[2] See eg. Koowarta v Bjelke-Petersen [1982] HCA 27; (1982) 153 CLR 168, Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1.
[3] Senator Bolkus (Labor) noted in Senate debate on the Act that HREOC’s funding had been reduced by 40% from 1996-97 to 1998-99 financial year. Senate Hansard, Monday 20 September 1999, 8345-6.
[4] See, for example, Freeman, Alan, ‘Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay’, (1988) 23 Harvard Civil Rights–Civil Liberties Law Review 295, quoted in J. O’Donohue, Foundations and Employment Discrimination Law, Oxford University Press, 1997; Allen, Rodney, ‘Equal Opportunity’, (1996) 5(2) Res Publica 16.
[5] Senate, Legal and Constitutional Legislation Committee, Provisions of the Human Rights Legislation Amendment Bill (No 2) 1998, 17 February 1999, Parl. Paper 155/99; Human Rights Legislation Amendment Bill 1996, 26 June 1997, Parl Paper 139/97.
[6] Federal Magistrates Act 1999, Federal Magistrates (Consequential Amendments) Act 1999, Privacy Amendment (Office of the Privacy Commissioner) Act 2000 (Cth).
[7] See Australian Law Reform Commission, Managing Justice; A Review of the Federal Civil Justice System, Report No 89, 2000, at 1.49, 1.58-1.59, and 359-364.
[8] See RDA ss. 25Z(2), 25ZD-25ZI; SDA ss.81(2), 84A-84F; DDA ss. 103(2), 106A-106F (all repealed by the HRLA Act (No 1) 1999.
[9] Quoted at Senate, Legal and Constitutional References Committee, Inquiry into the Legal Aid System, Third Report, June 1998, para 7.29.
[10] Senate, Legal and Constitutional References Committee, above, Appendix 6 at 265, which shows that from 1990-91 to 1997-98 a total expenditure had occurred of $175,487 under the SDA, $236,725 under the RDA, and $15,381 under the DDA.
[11] Offenberger, Sharon and Banks, Robin, ‘Wind out of the Sails — New Federal Structure for the Administration of Human Rights Legislation’, (2000) 6 AJ Human Rights 239.
[12] See for example, the comparative table of damages in Australian and New Zealand Equal Opportunity Law and Practice, CCH at 89-950, 960.
[13] See, for example, Hickie v Hunt and Hunt (1999) EOC 92-910 (HREOC, unreported, 7 March 1998); Garity v Cth Bank (1999) (EOC) 92-966 (HREOC); Offenberger and Banks, above, ref 11.
[14] Ronalds, Chris, Discrimination Law and Practice, Federation Press, 1998, 196-7; Gray v Victoria (1999) EOC 92-996 (VCAT).
[15] See, for example, Commonwealth Bank of Australia v HREOC [1997] FCA 1311; (1997) 80 FCR 78, 150 ALR 1, setting aside a finding of sex discrimination during a bank reorganisation in a case brought by the Finance Sector Union.
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