An Act to establish the Australian Human Rights Commission, to
make provision in relation to human rights and in relation to equal opportunity
in employment, and for related purposes
Part I—Preliminary
1
Short title [see Note
1]
This Act may be cited as the Australian
Human Rights Commission Act 1986.
2
Commencement [see Note
1]
This Act shall come into operation on a
day to be fixed by Proclamation.
3
Interpretation
(1) In this Act, unless the contrary
intention appears:
Aboriginal person means a person of the
Aboriginal race of Australia.
act means an act done:
(a) by or on behalf of the
Commonwealth or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a Territory; or
(d) 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 unlawful
discrimination means:
(a) in relation to a complaint—the
acts, omissions or practices that are alleged in the complaint and that would,
if proven, constitute unlawful discrimination; and
(b) in relation to an application to
the Federal Court or the Federal Magistrates Court under Division 2 of
Part IIB—the acts, omissions or practices that are alleged in the
application and that would, if proven, constitute unlawful discrimination.
appointed member means the President or the
Human Rights Commissioner.
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:
(a) in relation to the Commonwealth:
(i) a body (whether
incorporated or unincorporated) established for a purpose of the Commonwealth
by or under a Commonwealth enactment;
(ii) an incorporated
company over which the Commonwealth is in a position to exercise control;
(iii) 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));
(iv) 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;
(b) in relation to a State:
(i) a body (whether
incorporated or unincorporated) established for a purpose of the State by or
under a law of the State;
(ii) an incorporated
company over which the State is in a position to exercise control;
(iii) 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;
(iv) a local government body
in the State; or
(v) 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
(c) in relation to a Territory:
(i) 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;
(ii) an incorporated
company over which the Administration of the Territory is in a position to
exercise control;
(iii) 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
(iv) 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.
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.
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:
(a) 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;
(b) 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
(c) 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.
Disability Discrimination Commissioner means
the Disability Discrimination Commissioner appointed under the Disability
Discrimination Act 1992.
discrimination, except in Part IIB,
means:
(a) 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
(b) any other distinction, exclusion
or preference that:
(i) has the effect of
nullifying or impairing equality of opportunity or treatment in employment or
occupation; and
(ii) has
been declared by the regulations to constitute discrimination for the purposes
of this Act;
but does not include any distinction, exclusion or
preference:
(c) in respect of a particular job
based on the inherent requirements of the job; or
(d) 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.
instrument includes a rule, regulation or by‑law.
instrumentality, in relation to a State,
includes:
(a) a person holding or performing the
duties of an office established by or under a law of that State;
(b) a person employed in the public
service of that State; and
(c) 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) a Judge of a court created by the
Parliament or of a court of a State; or
(b) 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:
(a) in relation to a State—a Minister
of the Crown of that State; and
(b) in relation to the Australian Capital Territory or the Northern Territory—a Minister of that Territory.
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.
practice means a practice engaged in:
(a) by or behalf of the Commonwealth
or an authority of the Commonwealth;
(b) under an enactment;
(c) wholly within a Territory; or
(d) 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) a proposed law introduced into the
Parliament of the Commonwealth or the legislature of a Territory;
(b) a proposed law prepared on behalf
of:
(i) the Government of the
Commonwealth or the Administration of a Territory;
(ii) a Minister of State of
the Commonwealth; or
(iii) a body established by
law that has the function of recommending proposed laws of the Commonwealth or
of a Territory; or
(c) 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.
relevant international instrument means an
international instrument in respect of which a declaration under section 47
is in force.
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.
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:
(a) an association of employees that
is registered as an organisation, or recognised, under the Fair Work
(Registered Organisations) Act 2009; or
(b) a trade union within the meaning
of any State Act or law of a Territory; or
(c) any other similar body.
unlawful discrimination means any acts,
omissions or practices that are unlawful under:
(aa) Part 4 of the Age
Discrimination Act 2004; or
(a) Part 2 of the Disability
Discrimination Act 1992; or
(b) Part II or IIA of the Racial
Discrimination Act 1975; or
(c) Part II of the Sex
Discrimination Act 1984;
and includes any conduct that is an offence under:
(ca) Division 2 of Part 5 of
the Age Discrimination Act 2004 (other than section 52); or
(d) Division 4 of Part 2 of
the Disability Discrimination Act 1992; or
(e) subsection 27(2) of the Racial
Discrimination Act 1975; or
(f) section 94 of the Sex
Discrimination Act 1984.
(2) 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.
(3) In this Act:
(a) a reference to, or to the doing
of, an act includes a reference to a refusal or failure to do an act; and
(b) 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.
(4) In the definition of human rights
in subsection (1):
(a) 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
(b) the reference to the rights and
freedoms recognised or declared by any relevant international instrument shall:
(i) 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
(ii) 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.
(5) 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.
(6) 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.
(7) A reference in this Act to a person
acting on behalf of the Commission is a reference to:
(a) a person, or each of a body of
persons, acting pursuant to a delegation under section 19; or
(b) an instrumentality of a State
performing a function of the Commission pursuant to an arrangement in force under
section 16.
(8) 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.
(9) 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.
4
Operation of State and Territory laws
(1) 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.
(2) If:
(a) a law of a State or Territory
deals with a matter dealt with by this Act; and
(b) 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.
5
Extension to external Territories
This Act extends to every external
Territory.
6
Extent to which Act binds the Crown
(1) This Act binds the Crown in right of the
Commonwealth and of Norfolk Island but, except as otherwise expressly provided
by this Act, does not bind the Crown in right of a State.
(1A) Part IIB binds the Crown in right of
the States.
(2) Nothing in this Act renders the Crown in
right of the Commonwealth, of a State or of Norfolk Island liable to be prosecuted
for an offence.
6A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code
sets out the general principles of criminal responsibility.
Part II—Australian Human Rights Commission
Division 1—Establishment and Constitution of Commission
7 Australian
Human Rights Commission
(1) There is established by this Act a
Commission by the name of the Australian Human Rights Commission.
(2) The Commission:
(a) is a body corporate, with
perpetual succession;
(b) shall have a common seal;
(c) may acquire, hold and dispose of
real and personal property; and
(d) may sue and be sued in its
corporate name.
(3) 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.
(4) Any real or personal property held by the
Commission is held for and on behalf of the Commonwealth.
(5) Any money received by the Commission is
received for and on behalf of the Commonwealth.
(6) To avoid doubt, a right to sue is taken
not to be personal property for the purposes of subsection (4).
8
Constitution of Commission
(1) The Commission shall consist of:
(a) a President; and
(b) a Human Rights Commissioner; and
(c) the Race Discrimination
Commissioner; and
(ca) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
(d) the Sex Discrimination
Commissioner; and
(e) the Age Discrimination
Commissioner; and
(f) the Disability Discrimination
Commissioner.
(2) The members must act in a way that
promotes the collegiate nature of the Commission.
(6) The functions of the Commission under
paragraphs 11(1)(aa), 11(1)(ab), 11(1)(f) and 31(b) and the functions of the
Commission under paragraphs 11(1)(p) and 31(k), 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.
(7) 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
or Disability Discrimination Commissioner.
8A The
President
(1) The President is to be appointed by the
Governor‑General as a full‑time member or a part‑time member.
(2) The President is the senior member of the
Commission.
(3) The President is responsible for managing
the administrative affairs of the Commission.
8B The
Human Rights Commissioner
(1) The Human Rights Commissioner is to be
appointed by the Governor‑General as a full‑time member.
(2) A person is not qualified to be appointed
as the Human Rights Commissioner unless the Minister is satisfied that the
person has appropriate qualifications, knowledge or experience.
9
Arrangement for appointment of the holder of a judicial office of a State
(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.
(2) 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.
10
Appointment of Judge as member not to affect tenure etc.
(1) The appointment of the holder of a
judicial office as a member, or service by the holder of a judicial office as a
member, does not affect the person’s tenure of that judicial office or the
person’s rank, title, status, precedence, salary, annual or other allowances or
other rights or privileges as the holder of that judicial office and, for all
purposes, the person’s service as a member shall be taken to be service as the
holder of that judicial office.
(2) In this section, judicial office
means:
(a) an office of Judge of a court
created by the Parliament; or
(b) an office the holder of which has,
by virtue of holding that office, the same status as a Judge of a court created
by the Parliament.
Division 2—Duties, functions and powers of Commission
10A
Duties of Commission
(1) It is the duty of the Commission to
ensure that the functions of the Commission under this or any other Act are
performed:
(a) with regard for:
(i) the indivisibility and
universality of human rights; and
(ii) the principle that
every person is free and equal in dignity and rights; and
(b) efficiently and with the greatest
possible benefit to the people of Australia.
(2) Nothing in this section imposes a duty on
the Commission that is enforceable by proceedings in a court.
11
Functions of Commission
(1) The functions of the Commission are:
(a) such functions as are conferred on
the Commission by the Age Discrimination Act 2004, the Disability
Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex
Discrimination Act 1984 or any other enactment; and
(aa) to inquire into, and attempt to
conciliate, complaints of unlawful discrimination; and
(ab) to deal with complaints lodged
under Part IIC; and
(b) such functions as are to be
performed by the Commission pursuant to an arrangement in force under section 16;
and
(c) such functions as are expressed to
be conferred on the Commission by any State enactment, being functions in
relation to which the Minister has made a declaration under section 18;
and
(d) the functions conferred on the
Commission by section 31; and
(e) to examine enactments, and (when
requested to do so by the Minister) proposed enactments, for the purpose of
ascertaining whether the enactments or proposed enactments, as the case may be,
are, or would be, inconsistent with or contrary to any human right, and to
report to the Minister the results of any such examination; and
(f) to inquire into any act or
practice that may be inconsistent with or contrary to any human right, and:
(i) where the Commission
considers it appropriate to do so—to endeavour, by conciliation, to effect a
settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission
is of the opinion that the act or practice is inconsistent with or contrary to
any human right, and the Commission has not considered it appropriate to
endeavour to effect a settlement of the matters that gave rise to the inquiry
or has endeavoured without success to effect such a settlement—to report to the
Minister in relation to the inquiry; and
(g) to promote an understanding and
acceptance, and the public discussion, of human rights in Australia; and
(h) to undertake research and
educational programs and other programs, on behalf of the Commonwealth, for the
purpose of promoting human rights, and to co‑ordinate any such programs
undertaken by any other persons or authorities on behalf of the Commonwealth;
and
(j) on its own initiative or when
requested by the Minister, to report to the Minister as to the laws that should
be made by the Parliament, or action that should be taken by the Commonwealth,
on matters relating to human rights; and
(k) on its own initiative or when
requested by the Minister, to report to the Minister as to the action (if any)
that, in the opinion of the Commission, needs to be taken by Australia in order
to comply with the provisions of the Covenant, of the Declarations or of any
relevant international instrument; and
(m) on its own initiative or when
requested by the Minister, to examine any relevant international instrument for
the purpose of ascertaining whether there are any inconsistencies between that
instrument and the Covenant, the Declarations or any other relevant
international instrument, and to report to the Minister the results of any such
examination; and
(n) to prepare, and to publish in such
manner as the Commission considers appropriate, guidelines for the avoidance of
acts or practices of a kind in respect of which the Commission has a function
under paragraph (f); and
(o) where the Commission considers it
appropriate to do so, with the leave of the court hearing the proceedings and
subject to any conditions imposed by the court, to intervene in proceedings
that involve human rights issues; and
(p) to do anything incidental or
conducive to the performance of any of the preceding functions.
(2) The Commission shall not:
(a) regard an enactment or proposed
enactment as being inconsistent with or contrary to any human right for the
purposes of paragraph (1)(e) by reason of a provision of the enactment or
proposed enactment that is included solely for the purpose of securing adequate
advancement of particular persons or groups of persons in order to enable them
to enjoy or exercise human rights equally with other persons; or
(b) regard an act or practice as being
inconsistent with or contrary to any human right for the purposes of paragraph (1)(f)
where the act or practice is done or engaged in solely for the purpose referred
to in paragraph (a) of this subsection.
(3) Notwithstanding paragraphs (1)(a),
(d) and (f), the functions of the Commission do not include inquiring into an
act or practice of an intelligence agency, and, where a complaint is made to
the Commission alleging that an act or practice of such an agency is
inconsistent with or contrary to any human right, constitutes discrimination,
or is unlawful under the Racial Discrimination Act 1975, the Sex
Discrimination Act 1984, the Disability Discrimination Act 1992, or
the Age Discrimination Act 2004, the Commission shall refer the
complaint to the Inspector‑General of Intelligence and Security.
(4) A reference in subsection (3) to an
intelligence agency is a reference to the Australian Secret Intelligence
Service, the Australian Security Intelligence Organisation, the Office of
National Assessments, that part of the Defence Department known as the Defence
Signals Directorate (including any part of the Defence Force that performs
functions on behalf of that part of the Department), that part of the Defence
Department known as the Defence Imagery and Geospatial Organisation (including
any part of the Defence Force that performs functions on behalf of that part of
the Department) or that part of the Defence Department known as the Defence
Intelligence Organisation.
13
Powers of Commission
(1) The Commission has power to do all things
that are necessary or convenient to be done for or in connection with the
performance of its functions.
(2) The Commission may at any time report to
the Minister on any matter arising in the course of the performance of its
functions and shall report to the Minister on such a matter if requested by the
Minister to do so.
14
Form of examinations or inquiries to be at discretion of Commission etc.
(1) For the purpose of the performance of its
functions, the Commission may make an examination or hold an inquiry in such
manner as it thinks fit and, in informing itself in the course of an
examination or inquiry, is not bound by the rules of evidence.
(2) Where the Commission considers that the
preservation of the anonymity of a person:
(a) who has made a complaint to the
Commission; or
(b) who:
(i) has furnished or
proposes to furnish information; or
(ii) has produced or
proposes to produce a document; or
(iii) has given or proposes
to give evidence; or
(iv) has
made or proposes to make a submission;
to
the Commission or to a person acting for or on behalf of the Commission;
is necessary to protect the security of employment, the
privacy or any human right of the person, the Commission may give directions
prohibiting the disclosure of the identity of the person.
(3) The Commission may direct that:
(a) any evidence given before the
Commission or any information given to the Commission; or
(b) the
contents of any document produced to the Commission;
shall not be published, or shall not be published except
in such manner, and to such persons, as the Commission specifies.
(4) Where the Commission has given a
direction under subsection (3) in relation to the publication of any
evidence or information or of the contents of a document, the direction does
not prevent a person from communicating to another person a matter contained in
the evidence, information or document if the first‑mentioned person has
knowledge of the matter otherwise than by reason of the evidence or information
having been given or the document having been produced to the Commission.
(5) In deciding whether or not to give a
direction under subsection (3), the Commission shall have regard to the
need to prevent such of the following as are relevant to the circumstances:
(a) prejudice to the security, defence
or international relations of Australia;
(b) prejudice to relations between the
Commonwealth Government and the Government of a State or between the Government
of a State and the Government of another State;
(c) the disclosure of deliberations or
decisions of the Cabinet, or of a Committee of the Cabinet, of the Commonwealth
or of a State;
(d) the disclosure of deliberations or
advice of the Federal Executive Council or the Executive Council of a State;
(e) the disclosure, or the
ascertaining by a person, of the existence or identity of a confidential source
of information in relation to the enforcement of the criminal law;
(f) the endangering of the life or
physical safety of any person;
(g) prejudice to the proper
enforcement of the law or the protection of public safety;
(h) the disclosure of information the
disclosure of which is prohibited, absolutely or subject to qualifications, by
or under another enactment;
(j) the unreasonable disclosure of
the personal affairs of any person;
(k) the unreasonable disclosure of
confidential commercial information.
(6) In having regard to the matters mentioned
in paragraphs (5)(a) to (k), inclusive, the Commission shall try to
achieve an appropriate balance between the need to have regard to those matters
and the desirability of ensuring that interested persons are sufficiently
informed of the results of the Commission’s examination or inquiry.
(7) A person
shall not contravene a direction given by the Commission under subsection (2)
or (3) that is applicable to the person.
Penalty: 10 penalty units.
(7A) Subsection (7) is an offence of strict
liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(8) In subsection (1), function
does not include a function conferred on the Commission by the Sex
Discrimination Act 1984, the Disability Discrimination Act 1992, or
the Age Discrimination Act 2004.
15
Commission may engage in consultations
For the purposes of the performance of
its functions, the Commission may work with and consult appropriate persons,
governmental organisations and non‑governmental organisations.
16
Inter‑governmental arrangements
(1) The Minister may make an arrangement with
a Minister of a State for or in relation to:
(a) the performance on a joint basis
of any functions of the Commission;
(b) the performance by that State or
by an instrumentality of that State on behalf of the Commonwealth of any
functions of the Commission; or
(c) the performance by the Commission
of functions on behalf of that State relating to human rights or to
discrimination in employment or occupation.
(2) An arrangement under this section may
contain such incidental or supplementary provisions as the Minister and the
Minister of the State with whom the arrangement is made think necessary.
(2A) An act done
by or in relation to a State, or an instrumentality of a State, acting (whether
on a joint basis or otherwise) under an arrangement made under this section
shall be deemed, for the purposes of this Act, the Racial Discrimination Act
1975, the Sex Discrimination Act 1984, the Disability
Discrimination Act 1992 and the Age Discrimination Act 2004, to have
been done by, or in relation to, the President.
(3) The Minister may arrange with the
Minister of a State with whom an arrangement is in force under this section for
the variation or revocation of the arrangement.
(4) An arrangement under this section, or the
variation or revocation of such an arrangement, shall be in writing, and a copy
of each instrument by which an arrangement under this section is made, varied
or revoked shall be published in the Gazette.
18
Declarations by Minister
Where the
Minister is satisfied that a function expressed to be conferred on the
Commission by a State enactment could conveniently be performed by the
Commission, the Minister may, by notice in writing published in the Gazette,
so declare.
19
Delegation
(1) The Commission may, by writing under its
common seal, delegate to a member of the Commission, a member of the staff of
the Commission or another person or body of persons all or any of the powers
conferred on the Commission under this Act.
(2) A member may, by writing signed by the
member, delegate to:
(aa) a member of the Commission; or
(a) a member of the staff of the
Commission; or
(b) any
other person or body of persons;
approved by the Commission, all or any of the powers
exercisable by the member under this Act.
(2A) Subsection (2) does not allow the
President to delegate to another member of the Commission any of the
President’s powers under Part IIB or IIC.
(2B) Subsection (2) does not allow the
President to delegate any of the President’s powers relating to:
(a) functions of the Commission under
paragraphs 11(1)(f) and 11(1)(p) that are to be performed by the President
because of subsection 8(6); or
(b) functions of the Commission under
paragraphs 31(b) and 31(k) that are to be performed by the President because of
subsection 8(6);
to a member of the Commission other than the Human Rights
Commissioner.
(2C) The requirement in subsection (2) for
approval by the Commission does not apply to a delegation by the President.
(5) Subject to
any provision in the instrument of delegation, a person to whom a power of the
Commission has been delegated under subsection (1) may, for the purposes
of the exercise of that power, exercise any power conferred on a member of the
Commission by this Act.
(6) In subsection (1), power
does not include a power conferred on the Commission by the Racial
Discrimination Act 1975, the Sex Discrimination Act 1984, the
Disability Discrimination Act 1992, or the Age Discrimination Act 2004.
(7) In this section, unless the contrary
intention appears, member means a member of the Commission.
Division 3—Functions relating to human rights
19A
Division applies to victimisation offences
In this Division, a reference to an act
or practice that is inconsistent with or contrary to any human right includes a
reference to an act that is an offence under subsection 26(2).
20
Performance of functions relating to human rights
(1) Subject to subsection (2), the Commission
shall perform the functions referred to in paragraph 11(1)(f) when:
(a) the Commission is requested to do
so by the Minister; or
(b) a complaint is made in writing to
the Commission, by or on behalf of one or more persons aggrieved by an act or
practice, alleging that the act or practice is inconsistent with or contrary to
any human right; or
(c) it appears to the Commission to be
desirable to do so.
(2) The Commission may decide not to inquire
into an act or practice, or, if the Commission has commenced to inquire into an
act or practice, may decide not to continue to inquire into the act or
practice, if:
(a) the Commission is satisfied that
the act or practice is not inconsistent with or contrary to any human right; or
(b) the Commission is satisfied that
the person aggrieved by the act or practice does not want the Commission to
inquire, or to continue to inquire, into the act or practice; or
(c) in a case where a complaint has
been made to the Commission in relation to the act or practice:
(i) the complaint was made
more than 12 months after the act was done or after the last occasion when an
act was done pursuant to the practice; or
(ii) the Commission is of
the opinion that the complaint is frivolous, vexatious, misconceived or lacking
in substance; or
(iii) where
some other remedy has been sought in relation to the subject matter of the
complaint—the Commission is of the opinion that the subject matter of the
complaint has been adequately dealt with; or
(iv) the Commission is of
the opinion that some other more appropriate remedy in relation to the subject
matter of the complaint is reasonably available to the person aggrieved by the
act or practice; or
(v) where the subject
matter of the complaint has already been dealt with by the Commission or by
another statutory authority—the Commission is of the opinion that the subject
matter of the complaint has been adequately dealt with; or
(vi) the Commission is of
the opinion that the subject matter of the complaint could be more effectively
or conveniently dealt with by another statutory authority; or
(vii) the Commission is
satisfied that the complaint has been settled or resolved.
(3) The Commission shall, before the
expiration of the period of 2 months commencing when a complaint is made to the
Commission in respect of an act or practice, decide whether or not to inquire
into the act or practice.
(4) Where the Commission decides not to
inquire into, or not to continue to inquire into, an act or practice in respect
of which a complaint was made to the Commission, the Commission shall, unless
the complaint has been transferred under subsection (4A), forthwith give
notice in writing to the complainant of that decision and of the reasons for
that decision.
(4A) Where:
(a) a complaint has been made to the
Commission in relation to an act or practice; and
(b) because
the Commission is of the opinion that the subject‑matter of the complaint could
be more effectively or conveniently dealt with by the Information Commissioner in
the performance of the functions referred to in paragraph 27(1)(a) or 28(1)(b)
or (c) of the Privacy Act 1988, the Commission decides not to inquire,
or not to continue to inquire, into that act or practice;
the Commission shall:
(c) transfer the complaint to the Information
Commissioner;
(d) forthwith give notice in writing
to the complainant stating that the complaint has been so transferred; and
(e) give to the Information
Commissioner any information or documents that relate to the complaint and are
in the possession, or under the control, of the Commission.
(4B) A complaint transferred under subsection (4A)
shall be taken to be a complaint made to the Information Commissioner under
Part V of the Privacy Act 1988.
(5) Where it appears to the Commission that:
(a) a person wishes to make a
complaint to the effect that another person has done an act, or engaged in a
practice, that is inconsistent with or contrary to any human right; and
(b) that
person requires assistance to formulate the complaint or to reduce it to
writing;
it is the duty of the Commission to take reasonable steps
to provide appropriate assistance to that person.
(6) A person who is detained in custody (in
this subsection and subsection (7) referred to as the detainee)
is entitled:
(a) upon making a request to the
person (in this subsection and subsection (7) referred to as the
custodian) in whose custody the detainee is detained, or to any other
person (in this subsection and subsection (7) referred to as a custodial
officer) performing duties in connection with the detention:
(i) to be provided with
facilities for preparing a complaint in writing under this Division, for giving
in writing to the Commission, after the complaint has been made, any other
relevant information and for enclosing the complaint or the other information
(if any) in a sealed envelope; and
(ii) to have sent to the
Commission, without undue delay, a sealed envelope delivered by the detainee to
the custodian or to a custodial officer and addressed to the Commission; and
(b) to have delivered to the detainee,
without undue delay, any sealed envelope, addressed to the detainee and sent by
the Commission, that comes into the possession or under the control of the
custodian or of a custodial officer.
(7) Where a
sealed envelope addressed to the Commission is delivered by the detainee to the
custodian or to a custodial officer for sending to the Commission, or a sealed
envelope addressed to the detainee and sent by the Commission comes into the
possession or under the control of the custodian or of a custodial officer,
neither the custodian nor any custodial officer is entitled to open the
envelope or to inspect any document enclosed in the envelope.
(8) For the purposes of subsections (6)
and (7), the Commission may make arrangements with the appropriate authority of
a State or Territory for the identification and delivery of sealed envelopes
sent by the Commission to persons detained in custody in that State or
Territory.
21
Power to obtain information and documents
(1) Where the Commission has reason to
believe that a person is capable of giving information or producing documents
relevant to a matter under examination or inquiry under this Division, a member
may, by notice in writing served on that person, require that person at such
place, and within such period or on such date and at such time, as are
specified in the notice:
(a) to give to the Commission, by
writing signed by that person or, in the case of a body corporate, on behalf of
the body corporate, any such information; or
(b) to produce to the Commission any
such documents.
(2) Where:
(a) a person is required by a notice
under subsection (1) to give information or produce a document to the
Commission; and
(b) the
information or document originated with, or has been received from, an
intelligence agency;
the person shall forthwith notify that agency of the
making of the requirement.
(3) A reference in subsection (2) to an
intelligence agency is a reference to the Australian Secret Intelligence
Service, the Australian Security Intelligence Organisation, the Office of
National Assessments, or the Defence Imagery and Geospatial Organisation, the Defence
Intelligence Organisation or the Defence Signals Directorate of the Defence
Department.
(4) Where
documents are produced to the Commission in accordance with a requirement under
subsection (1), the Commission:
(a) may take possession of, and may
make copies of, or take extracts from, the documents;
(b) may retain possession of the
documents for such period as is necessary for the purposes of the examination
or inquiry to which the documents relate; and
(c) during that period shall permit a
person who would be entitled to inspect any one or more of the documents if
they were not in the possession of the Commission to inspect at all reasonable
times such of the documents as that person would be so entitled to inspect.
(5) Where the Commission has reason to
believe that a person is capable of giving information relevant to a matter
under inquiry under this Division, a member may, by notice in writing served on
the person, require the person to attend before the member, on such date and at
such time and place as are specified in the notice, to answer questions
relevant to the matter under inquiry.
(6) A person who attends at a place pursuant
to a requirement made of the person under subsection (1) or (5) is
entitled to be paid by the Commonwealth a reasonable sum for the person’s
attendance at that place.
22
Power to examine witnesses
(1) A member may administer an oath or
affirmation to a person required to attend before the member pursuant to
section 21 and may examine the person on oath or affirmation.
(2) The oath or affirmation to be taken or
made by a person for the purposes of this section is an oath or affirmation
that the evidence the person will give will be true.
23
Failure to comply with requirement
(1) A person shall not refuse or fail:
(a) to be sworn or make an
affirmation; or
(b) to
give information or produce a document;
when so required under this
Act.
Penalty: 10 penalty units.
(2) A person commits an offence if:
(a) the person has been served with a
notice under subsection 21(5); and
(b) the person:
(i) refuses or fails to
comply with the notice; or
(ii) when attending before
a member in compliance with the notice, refuses or fails to answer a question
that is required by the member to be answered.
Penalty: 10 penalty units.
(2A) Subsections (1) and (2) do not apply
if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal
Code).
(3) Without limiting the generality of the
expression reasonable excuse in this section, it is hereby
declared for the avoidance of doubt that it is a reasonable excuse for a person
to refuse or fail to furnish information, produce a document or answer a
question when required to do so under this Act, that the information, the
production of the document or the answer to a question might tend to incriminate
that person.
24
Disclosure of information or contents of documents
(1) Where the Attorney‑General furnishes to
the Commission a certificate certifying that the giving to the Commission, or
to a person acting for or on behalf of the Commission, of information
concerning a specified matter (including the giving of information in answer to
a question) or the production to the Commission, or to a person acting for or
on behalf of the Commission, of a specified document would be contrary to the
public interest:
(a) by reason that it would prejudice
the security, defence or international relations of Australia; or
(b) by reason that it would involve
the disclosure of communications between a Minister of the Commonwealth and a
Minister of a State, being a disclosure that would prejudice relations between
the Commonwealth Government and the Government of a State; or
(c) by reason that it would involve
the disclosure of deliberations or decisions of the Cabinet or of a Committee
of the Cabinet; or
(d) by reason that it would involve
the disclosure of deliberations or advice of the Executive Council; or
(e) by reason that it would prejudice
the conduct of an investigation or inquiry into crime or criminal activity that
is currently being pursued or would prejudice the fair trial of any person; or
(f) by reason that it would disclose,
or enable a person to ascertain, the existence or identity of a confidential
source of information in relation to the enforcement of the criminal law; or
(g) by reason that it would prejudice
the effectiveness of the operational methods or investigative practices or
techniques of agencies responsible for the enforcement of the criminal law; or
(h) by
reason that it would endanger the life or physical safety of any person;
neither the Commission nor any other person is entitled to
require a person to give any information concerning the matter or to produce
the document.
(1A) In relation to the performance of functions
by the Aboriginal and Torres Strait Islander Social Justice Commissioner under
Part IIA, subsection (1) (other than paragraphs (1)(a) and (b))
has effect in relation to a certificate given by the Attorney‑General of a
State or Territory in the same way as it has effect in relation to a
certificate given by the Attorney‑General of the Commonwealth. For the purposes
of this additional effect, references to the Cabinet, a Committee of the
Cabinet or the Executive Council are to be treated as references to the
corresponding body or committee of the State or Territory concerned.
(2) Without limiting the operation of subsection (1),
where the Attorney‑General furnishes to the Commission a certificate certifying
that the giving to the Commission, or to a person acting for or on behalf of
the Commission, of information as to the existence or non‑existence of
information concerning a specified matter (including the giving of information
in answer to a question) or as to the existence or non‑existence of any one or
more documents required to be produced to the Commission, or to a person acting
for or on behalf of the Commission, would be contrary to the public interest:
(a) by reason that it would prejudice
the security, defence or international relations of Australia; or
(b) by
reason that it would prejudice the proper performance of the functions of the
Australian Crime Commission;
neither the Commission nor a person acting for or on
behalf of the Commission is entitled, pursuant to this Act, to require a person
to give any information as to the existence or non‑existence of information
concerning that matter or as to the existence or non‑existence of that document
or those documents.
(3) Notwithstanding the provisions of any
law, a person is not excused:
(a) from giving any information, or
producing a document, when required to do so pursuant to this Act; or
(b) from
answering a question that the person is required to answer by a member before
whom the person is attending in compliance with a notice served on the person
under subsection 21(5);
on the ground that the giving of the information, the
production of the document or the answering of the question:
(c) would disclose legal advice
furnished to a Minister, to a person or body that acts on behalf of the
Commonwealth, or to an authority of the Commonwealth;
(d) would contravene the provisions of
any other Act or would be contrary to the public interest; or
(e) might make the person liable to a
penalty.
(4) A person
is not liable to any penalty under the provisions of any other law by reason
of:
(a) giving information or producing a
document when required to do so pursuant to this Act; or
(b) answering a question that the
person is required to answer by a member before whom the person is attending in
compliance with a notice served on the person under subsection 21(5).
26
Offences relating to administration of Act
(1) A person shall not hinder, obstruct,
molest or interfere with:
(a) a member participating in an
inquiry or examination under this Act; or
(b) a
person acting for or on behalf of the Commission, while that person is holding
an inquiry or carrying out an investigation under this Act.
Penalty: 10 penalty units.
(2) A person who:
(a) refuses to employ another person;
or
(b) dismisses, or threatens to
dismiss, another person from the other person’s employment; or
(c) prejudices, or threatens to
prejudice, another person in the other person’s employment; or
(d) intimidates
or coerces, imposes any pecuniary or other penalty upon, or takes any other
disciplinary action in relation to, another person;
by reason that the other person:
(e) has made, or proposes to make, a
complaint to the Commission; or
(f) has alleged, or proposes to
allege, that a person has done an act or engaged in a practice that is
inconsistent with or contrary to any human right; or
(g) has furnished, or proposes to
furnish, any information or documents to the Commission or to a person acting
for or on behalf of the Commission; or
(h) has
given or proposes to give evidence before the Commission or to a person acting
on behalf of the Commission;
is guilty of an offence punishable upon conviction:
(j) in the case of a natural
person—by a fine not exceeding 25 penalty units or imprisonment for a period
not exceeding 3 months, or both; or
(k) in the case of a body corporate—by
a fine not exceeding 100 penalty units.
(3) It is a defence to a prosecution for an
offence under subsection (2) constituted by subjecting, or threatening to
subject, a person to a detriment specified in paragraph (2)(a), (b), (c)
or (d) on the ground that the person has alleged that another person has done
an act or engaged in a practice that is inconsistent with or contrary to any
human right if it is proved that the allegation was false and was not made in
good faith.
Note: Sections 136.1, 137.1 and 137.2 of the Criminal
Code deal with making false or misleading statements, giving false or
misleading information and producing false or misleading documents.
27
Commission to give opportunity for making of submissions
Where it appears to the Commission as a
result of an inquiry into an act or practice that the act or practice is
inconsistent with or contrary to any human right, the Commission shall not
furnish a report to the Minister in relation to the act or practice until it
has given a reasonable opportunity to the person who did the act or engaged in
the practice, to do, at the option of the person, either or both of the
following:
(a) to appear before the Commission,
whether in person or by a representative, and make oral submissions in relation
to the act or practice;
(b) to make written submissions to the
Commission in relation to the act or practice.
28
Nature of settlements
The
Commission shall, in endeavouring to effect a settlement of a matter that gave
rise to an inquiry, have regard to the need to ensure that any settlement of
the matter reflects a recognition of human rights and the need to protect those
rights.
29
Reports to contain recommendations
(1) Where, after an examination of an
enactment or proposed enactment, the Commission finds that the enactment is, or
the proposed enactment would be, inconsistent with or contrary to any human
right, the Commission shall include in its report to the Minister relating to
the results of the examination any recommendations by the Commission for
amendment of the enactment or proposed enactment to ensure that the enactment
is not, or the proposed enactment would not be, inconsistent with or contrary
to any human right.
(2) Where, after an inquiry into an act done
or practice engaged in by a person, the Commission finds that the act or
practice is inconsistent with or contrary to any human right, the Commission:
(a) shall serve notice in writing on
the person setting out its findings and the reasons for those findings;
(b) may include in the notice any
recommendations by the Commission for preventing a repetition of the act or a
continuation of the practice;
(c) may include in the notice any
recommendation by the Commission for either or both of the following:
(i) the payment of
compensation to, or in respect of, a person who has suffered loss or damage as
a result of the act or practice;
(ii) the taking of other
action to remedy or reduce loss or damage suffered by a person as a result of
the act or practice;
(d) shall include in any report to the
Minister relating to the results of the inquiry particulars of any
recommendations that it has made pursuant to paragraph (b) or (c);
(e) shall state in that report
whether, to the knowledge of the Commission, the person has taken or is taking
any action as a result of the findings, and recommendations (if any), of the
Commission and, if the person has taken or is taking any such action, the
nature of that action; and
(f) shall serve a copy of that report
on the person and, if a complaint was made to the Commission in relation to the
act or practice:
(i) where the complaint
was made by a person affected by the act or practice—shall serve a copy of that
report on the complainant; or
(ii) if the complaint was
made by another person—may serve a copy of that report on the complainant.
(3) Where:
(a) a complaint is made to the
Commission in relation to an act or practice; and
(b) after an inquiry into the act or
practice, the Commission finds that:
(i) the existence of the
act or practice has not been established; or
(ii) the
act or practice is not inconsistent with or contrary to any human right;
the Commission shall give a copy of a report setting out
its findings, and the reasons for those findings, to the complainant and:
(c) in a case to which subparagraph (b)(i)
applies—to the person alleged to have done the act or engaged in the practice;
or
(d) in a case to which subparagraph (b)(ii)
applies—to the person who did the act or engaged in the practice.
(4) In setting out findings and reasons in a
notice to be served or a report to be given under this section the Commission
may exclude any matter if the Commission considers it desirable to do so having
regard to any of the matters mentioned in subsection 14(5) and to the
obligations of the Commission under subsection 14(6).
(5) Where, under subsection (4), the
Commission excludes any matter from a report, the Commission shall prepare a
report setting out the excluded matter and its reasons for excluding the matter
and shall furnish the report to the Minister.
Division 4—Functions relating to equal opportunity in employment
30
Interpretation etc.
(1) In this Division:
act includes an act done:
(a) by or on behalf of a State or an
authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the
extent to which the act was done within a State.
practice includes a practice engaged in:
(a) by or on behalf of a State or an
authority of a State;
(b) under a law of a State;
(c) wholly within a State; or
(d) partly within a State, to the
extent to which the practice was or is engaged in within a State.
(1A) In this Division, a reference to an act or
practice that constitutes discrimination includes a reference to an act that is
an offence under subsection 26(2).
(2) This Division binds the Crown in right of
a State.
31
Functions of Commission relating to equal opportunity
The following functions are hereby
conferred on the Commission:
(a) to examine enactments, and (when
requested to do so by the Minister) proposed enactments, for the purpose of
ascertaining whether the enactments or proposed enactments, as the case may be,
have, or would have, the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation, and to report to the
Minister the results of any such examination;
(b) to
inquire into any act or practice, including any systemic practice, that may
constitute discrimination and:
(i) where the Commission
considers it appropriate to do so—to endeavour, by conciliation, to effect a
settlement of the matters that gave rise to the inquiry; and
(ii) where the Commission
is of the opinion that the act or practice constitutes discrimination, and the
Commission has not considered it appropriate to endeavour to effect a settlement
of the matters that gave rise to the inquiry or has endeavoured without success
to effect such a settlement—to report to the Minister in relation to the
inquiry;
(c) to promote an understanding and
acceptance, and the public discussion, of equality of opportunity and treatment
in employment and occupation in Australia;
(d) to undertake research and
educational programs and other programs, on behalf of the Commonwealth, for the
purpose of promoting equality of opportunity and treatment in employment and
occupation, and to co‑ordinate any such programs undertaken by any other
persons or authorities on behalf of the Commonwealth;
(e) on its own initiative or when
requested by the Minister, to report to the Minister as to the laws that should
be made by the Parliament, or action that should be taken by the Commonwealth,
on matters relating to equality of opportunity and treatment in employment and
occupation;
(f) when requested by the Minister,
to report to the Minister as to the action (if any) that, in the opinion of the
Commission, needs to be taken by Australia in order to comply with the
provisions of the Convention;
(g) on its own initiative or when
requested by the Minister, to examine any relevant international instrument for
the purpose of ascertaining whether there are any inconsistencies between that
instrument and the Convention, and to report to the Minister the results of any
such examination;
(h) to prepare, and to publish in such
manner as the Commission considers appropriate, guidelines for the avoidance of
acts or practices of a kind in respect of which the Commission has a function
under paragraph (b);
(j) where the Commission considers it
appropriate to do so, with the leave of the court hearing the proceedings and
subject to any conditions imposed by the court, to intervene in proceedings
that involve discrimination issues;
(k) to do anything incidental or
conducive to the performance of any of the preceding functions.
32
Performance of functions relating to equal opportunity
(1) Subject to subsections (2) and (3),
the Commission shall perform the functions referred to in paragraph 31(b) when:
(a) the Commission is requested to do
so by the Minister; or
(b) a complaint is made in writing to
the Commission, by or on behalf of one or more persons aggrieved by an act or
practice, alleging that the act or practice constitutes discrimination; or
(c) it appears to the Commission to be
desirable to do so.
(2) The Commission shall not inquire into an
act or practice, or, if the Commission has commenced to inquire into an act or
practice, shall not continue to inquire into the act or practice, if the
Commission is satisfied that the subject matter of the complaint is dealt with
under a prescribed enactment or a prescribed State enactment.
(3) The Commission may decide not to inquire
into an act or practice, or, if the Commission has commenced to inquire into an
act or practice, may decide not to continue to inquire into the act or
practice, if:
(a) the Commission is satisfied that
the act or practice does not constitute discrimination; or
(b) the Commission is satisfied that
the person aggrieved by the act or practice does not want the Commission to
inquire, or to continue to inquire, into the act or practice; or
(c) in a case where a complaint has
been made to the Commission in relation to the act or practice:
(i) the complaint was made
more than 12 months after the act was done or after the last occasion when an
act was done pursuant to the practice; or
(ii) the Commission is of the
opinion that the complaint is frivolous, vexatious, misconceived or lacking in
substance; or
(iii) where some other
remedy has been sought in relation to the subject matter of the complaint—the
Commission is of the opinion that the subject matter of the complaint has been
adequately dealt with; or
(iv) the Commission is of
the opinion that some other more appropriate remedy in relation to the subject
matter of the complaint is reasonably available to the complainant; or
(v) where the subject
matter of the complaint has already been dealt with by the Commission or by
another statutory authority—the Commission is of the opinion that the subject
matter of the complaint has been adequately dealt with; or
(vi) the Commission is of
the opinion that the subject matter of the complaint could be more effectively
or conveniently dealt with by another statutory authority; or
(vii) the Commission is
satisfied that the complaint has been settled or resolved.
33
Application of certain provisions of Division 3
Subsections 20(3), (4) and (5) and
sections 21, 22, 23, 24, 26 and 27 apply in relation to the functions of
the Commission set out in section 31, and in relation to the performance
of those functions, as if:
(a) references in those provisions to
acts or practices were references to acts or practices within the meaning of
this Division;
(b) the words “is inconsistent with or
contrary to any human right” were omitted from subsection 20(5) and the words
“constitutes discrimination” were substituted;
(c) references in section 21 to a
matter under examination or inquiry under Division 3 were references to a
matter under examination or inquiry under this Division, not being an act
mentioned in paragraph (a), (b), (c) or (d) of the definition of act
in subsection 30(1) or a practice mentioned in paragraph (a), (b), (c) or
(d) of the definition of practice in that subsection;
(d) the words “is inconsistent with or
contrary to any human right” were omitted from sections 26 and 27 and the
words “constitutes discrimination” were substituted; and
(e) a reference in any of those
provisions to another of those provisions were a reference to that other
provision as applied by this section.
34
Nature of settlements
The Commission shall, in endeavouring to
effect a settlement of a matter that gave rise to an inquiry, have regard to
the need to ensure that any settlement of the matter reflects a recognition of
the right of every person to equality of opportunity and treatment in respect
of employment and occupation and the need to protect that right.
35
Reports to contain recommendations
(1) Where, after an examination of an
enactment or proposed enactment, the Commission finds that the enactment has,
or the proposed enactment would have, the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation, the
Commission shall include in its report to the Minister relating to the results
of the examination any recommendations by the Commission for amendment of the
enactment or proposed enactment to ensure that the enactment does not have, or
the proposed enactment would not have, the effect of nullifying or impairing
equality of opportunity or treatment in employment or occupation.
(2) Where, after an inquiry into an act done
or practice engaged in by a person, the Commission finds that the act or
practice constitutes discrimination, the Commission:
(a) shall serve notice in writing on
the person setting out its findings and the reasons for those findings;
(b) may include in the notice any
recommendations by the Commission for preventing a repetition of the act or a
continuation of the practice;
(c) may include in the notice any
recommendation by the Commission for either or both of the following:
(i) the payment of
compensation to, or in respect of, a person who has suffered loss or damage as
a result of the act or practice;
(ii) the taking of other
action to remedy or reduce loss or damage suffered by a person as a result of
the act or practice;
(d) shall include in any report to the
Minister relating to the results of the inquiry particulars of any
recommendations that it has made pursuant to paragraph (b) or (c);
(e) shall state in that report
whether, to the knowledge of the Commission, the person has taken or is taking
any action as a result of the findings, and recommendations (if any), of the
Commission and, if the person has taken or is taking any such action, the
nature of that action; and
(f) shall serve a copy of that report
on the person and, if a complaint was made to the Commission in relation to the
act or practice:
(i) where the complaint
was made by a person affected by the act or practice—shall serve a copy of that
report on the complainant; or
(ii) if the complaint was
made by another person—may serve a copy of that report on the complainant.
(3) Where:
(a) a complaint is made to the
Commission in relation to an act or practice; and
(b) after an inquiry into the act or
practice, the Commission finds that:
(i) the existence of the
act or practice has not been established; or
(ii) the
act or practice does not constitute discrimination;
the Commission shall give a copy of a report setting out
its findings, and the reasons for those findings, to the complainant and:
(c) in a case to which subparagraph (b)(i)
applies—to the person alleged to have done the act or engaged in the practice;
or
(d) in a case to which subparagraph (b)(ii)
applies—to the person who did the act or engaged in the practice.
(4) In setting
out findings and reasons in a notice to be served or a report to be given under
this section the Commission may exclude any matter if the Commission considers
it desirable to do so having regard to any of the matters mentioned in
subsection 14(5) and to the obligations of the Commission under subsection 14(6).
(5) Where, under subsection (4), the
Commission excludes any matter from a report, the Commission shall prepare a
report setting out the excluded matter and its reasons for excluding the matter
and shall furnish the report to the Minister.
Division 5—Administrative provisions
36
Acting President and Human Rights Commissioner
(2) The Minister may appoint a person to act
as President:
(a) during a vacancy in the office of
President, whether or not an appointment has previously been made to the office;
or
(b) during any period, or during all
periods, when the President is absent from duty or from Australia or is, for any other reason, unable to perform the functions of the office of
President.
(3) The Minister may appoint a person to act
as Human Rights Commissioner:
(a) during a vacancy in the office of
Human Rights Commissioner, whether or not an appointment has previously been
made to the office; or
(b) during any period, or during all
periods, when the Human Rights Commissioner is absent from duty or from
Australia, or is, for any other reason, unable to perform the functions of the
office of Human Rights Commissioner.
(9) At any time when a person who is not a
member of the Commission is acting as President or Human Rights Commissioner,
the person shall be deemed to be a member of the Commission for the purposes of
sections 21, 22, 23, 24 and 26 (including those sections as applied by
section 33) and sections 42, 48 and 49.
(10) The validity of anything done by or in
relation to a person purporting to act under subsection (2) or (3) shall
not be called in question on the ground that:
(a) the occasion for the person’s
appointment had not arisen;
(b) there is a defect or irregularity
in connection with the person’s appointment;
(c) the person’s appointment had
ceased to have effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
37
Terms and conditions of appointment
(1) Subject to subsection (2), an
appointed member holds office for such period, not exceeding 7 years, as is
specified in the instrument of the member’s appointment, but is eligible for re‑appointment.
(4) An appointed member, other than a member
who is a Judge, holds office on such terms and conditions (if any) in respect
of matters not provided for by this Act as are determined by the Governor‑General.
38
Remuneration and allowances
(1) Subject to this section, an appointed
member shall be paid such remuneration as is determined by the Remuneration
Tribunal but, if no determination of that remuneration by the Tribunal is in
operation, an appointed member shall be paid such remuneration as is
prescribed.
(2) An appointed member shall be paid such
allowances as are prescribed.
(3) Subsections (1) and (2) have effect
subject to the Remuneration Tribunal Act 1973.
(4) If a person who is a Judge is appointed
as a member, the person is not, while receiving salary or annual allowance as a
Judge, entitled to remuneration under this Act.
39
Leave of absence
(1) A person appointed as a full‑time member
has such recreation leave entitlements as are determined by the Remuneration
Tribunal.
(1A) The Minister may grant a person appointed
as a full‑time member leave of absence, other than recreation leave, on such
terms and conditions as to remuneration or otherwise as the Minister
determines.
(2) The Minister may grant to a person
appointed as a part‑time member leave of absence from a meeting of the
Commission.
40
Resignation
An appointed member may resign from the
office of member by writing signed by the member and delivered to the Governor‑General.
41
Termination of appointment
(1) The Governor‑General may terminate the
appointment of a member by reason of misbehaviour or physical or mental
incapacity.
(2) If:
(a) a member becomes bankrupt, applies
to take the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit;
(b) a full‑time member engages, except
with the approval of the Minister, in paid employment outside the duties of the
office of member;
(c) a full‑time member is absent from
duty, except on leave of absence, for 14 consecutive days, or for 28 days in
any period of 12 months;
(d) a part‑time member is absent,
except on leave granted by the Minister in accordance with subsection 39(2),
from 3 consecutive meetings of the Commission; or
(e) a
member fails, without reasonable excuse, to comply with section 42;
the Governor‑General shall terminate the appointment of
that member.
(3) In subsections (1) and (2), member
means an appointed member but does not include a member who is a Judge.
(4) If an appointed member who is a Judge
ceases to be a Judge, the Governor‑General may terminate the appointment of the
member.
42
Disclosure of interests
(1) A member
who has a direct or indirect pecuniary interest in a matter being considered or
about to be considered by the Commission shall, as soon as possible after the
relevant facts have come to the member’s knowledge, disclose the nature of the
interest at a meeting of the Commission.
(2) A disclosure under subsection (1)
shall be recorded in the minutes of the meeting of the Commission and the
member shall not:
(a) be present during any deliberation
of the Commission with respect to that matter; or
(b) take part in any decision of the
Commission with respect to that matter.
43
Staff
(1) The staff necessary to assist the
Commission shall be persons engaged under the Public Service Act 1999.
(2) For the purposes of the Public Service
Act 1999:
(a) the President and the APS
employees assisting the President together constitute a Statutory Agency; and
(b) the President is the Head of that
Statutory Agency.
43A
Commission may make administrative services available to the Information
Commissioner
The Commission may make administrative
services available to the Information Commissioner for the purpose of assisting
the Information Commissioner in the performance of his or her functions under
the Australian Information Commissioner Act 2010 or any other Act.
44
Meetings of the Commission
(1) The Minister or the President may, at any
time, convene a meeting of the Commission.
(2) The President shall convene such meetings
of the Commission as, in the President’s opinion, are necessary for the
efficient performance of its functions.
(3) At a meeting of the Commission a quorum
is constituted by a number of members that is not less than one‑half of the
number of members for the time being holding office under section 8.
(4) The President shall preside at all meetings
of the Commission at which the President is present.
(5) If the President is not present at a
meeting of the Commission, the members present are to elect one of their number
to preside at the meeting.
(6) Questions arising at a meeting of the Commission
shall be determined by a majority of the votes of the members present and
voting.
(7) The person presiding at a meeting of the
Commission has a deliberative vote, and, in the event of an equality of votes,
also has a casting vote.
(8) The Commission may regulate the conduct
of proceedings at its meetings as it thinks fit and shall cause minutes of
those proceedings to be kept.
45
Annual report
(1) The Commission shall, as soon as
practicable after each 30 June, prepare and furnish to the Minister a
report of its operations during the year that ended on that 30 June, being
operations under this Act and operations under any other enactment or any State
enactment.
(2) The first report of the Commission shall
include a report of the operations of the Human Rights Commission under the Human
Rights Commission Act 1981 for the period that commenced immediately after
the end of the year to which the last report furnished by the Human Rights
Commission under that Act related and ended immediately before the commencement
of this Act.
46
Reports to be tabled in Parliament
The Minister shall cause a copy of every
report furnished to the Minister by the Commission under this Part other than
subsection 29(5) to be laid before each House of the Parliament within 15 sitting
days of that House after the report is received by the Minister.
Division 6—Corporate plan
46AA
Corporate plan
(1) The Commission must prepare corporate
plans.
(2) The first corporate plan:
(a) is to be for a period of 3 years;
and
(b) must be given to the Minister
within 12 months after the commencement of this section.
(3) Each subsequent corporate plan is to be
for a period of 3 years beginning immediately after the period of the previous
corporate plan.
(4) The Commission may review and revise a
corporate plan at any time.
(5) In performing its duties and functions,
the Commission must take account of the corporate plan then in force.
46AB
Matters to be included in corporate plan
Each corporate plan must:
(a) set out the general policies and
strategies that the Commission intends to adopt in order to perform its duties
and functions; and
(b) include such performance
indicators and targets as the Commission considers appropriate.
46AC
Corporate plans to be given to Minister
As soon as practicable after the
Commission prepares or revises a corporate plan, it must give a copy of the
plan to the Minister.
Part IIA—Aboriginal and Torres
Strait Islander Social Justice Commissioner
Division 1—Establishment and functions
46A Interpretation
In this Part:
Commissioner means the Aboriginal and Torres
Strait Islander Social Justice Commissioner.
human rights means:
(a) the rights and freedoms recognised
by the International Convention on the Elimination of All Forms of Racial Discrimination,
a copy of which is set out in the Schedule to the Racial Discrimination Act
1975; and
(b) the rights and freedoms recognised
by the Covenant; and
(c) the rights and freedoms declared
by the Declarations or recognised or declared by any relevant international
instrument.
46B
Aboriginal and Torres Strait Islander Social Justice Commissioner
(1) There is to be an Aboriginal and Torres
Strait Islander Social Justice Commissioner, who is to be appointed by the
Governor‑General.
(2) A person is not qualified to be appointed
unless the Minister is satisfied that the person has significant experience in
community life of Aboriginal persons or Torres Strait Islanders.
46C
Functions of the Commission that are to be performed by the Commissioner
(1) The
following functions are conferred on the Commission:
(a) to submit a report to the
Minister, as soon as practicable after 30 June in each year, regarding the
enjoyment and exercise of human rights by Aboriginal persons and Torres Strait
Islanders, and including recommendations as to the action that should be taken
to ensure the enjoyment and exercise of human rights by those persons;
(b) to promote discussion and
awareness of human rights in relation to Aboriginal persons and Torres Strait
Islanders;
(c) to undertake research and
educational programs, and other programs, for the purpose of promoting respect
for the human rights of Aboriginal persons and Torres Strait Islanders and
promoting the enjoyment and exercise of human rights by Aboriginal persons and
Torres Strait Islanders;
(d) to examine enactments, and
proposed enactments, for the purpose of ascertaining whether they recognise and
protect the human rights of Aboriginal persons and Torres Strait Islanders, and
to report to the Minister the results of any such examination.
Note: Functions are also conferred on the Commission
under section 209 of the Native Title Act 1993.
(2) The functions of the Commission under subsection (1)
are to be performed by the Commissioner on behalf of the Commission.
(3) In the performance of functions under
this section, the Commissioner may consult any of the following:
(a) organisations established by
Aboriginal or Torres Strait Islander communities;
(b) organisations of indigenous
peoples in other countries;
(c) international organisations and
agencies;
(d) such other organisations, agencies
or persons as the Commissioner considers appropriate.
(4) In the
performance of functions under this section, the Commissioner must, as
appropriate, have regard to:
(a) the Universal Declaration of Human
Rights, the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights, the Convention
on the Elimination of All Forms of Racial Discrimination and the Convention on
the Rights of the Child; and
(b) such other instruments relating to
human rights as the Commissioner considers relevant; and
(c) the object of the Council for
Aboriginal Reconciliation Act 1991.
Division 2—Administrative provisions
46D
Terms and conditions of appointment
(1) Subject to this Division, the
Commissioner holds office for such period, not exceeding 7 years, as is
specified in the instrument of appointment, but is eligible for re‑appointment.
(2) The Commissioner holds office on such
terms and conditions (if any) in respect of matters not provided for by this
Act as are determined by the Governor‑General.
46E
Remuneration
(1) The Commissioner is to be paid such
remuneration as is determined by the Remuneration Tribunal, but if no
determination of that remuneration by the Remuneration Tribunal is in
operation, the Commissioner is to be paid such remuneration as is prescribed.
(2) The Commissioner is to be paid such
allowances as are prescribed.
(3) This section has effect subject to the Remuneration
Tribunal Act 1973.
46F
Leave of absence
(1) The Commissioner has such recreation
leave entitlements as are determined by the Remuneration Tribunal.
(2) The Minister may grant the Commissioner
leave of absence other than recreation leave, on such terms and conditions as
to remuneration or otherwise as the Minister determines.
46G
Outside employment
The Commissioner must not, except with
the approval of the Minister, engage in paid employment outside the duties of
the office of Commissioner.
46H
Resignation
The Commissioner may resign from the
office of Commissioner by writing given to the Governor‑General.
46I
Termination of appointment
(1) The Governor‑General may terminate the
appointment of the Commissioner because of:
(a) misbehaviour; or
(b) a disability that makes the
Commissioner incapable of performing the inherent requirements of the office.
(2) The Governor‑General must terminate the
appointment of the Commissioner if the Commissioner:
(a) becomes bankrupt, applies to take
the benefit of any law for the relief of bankrupt or insolvent debtors,
compounds with creditors or makes an assignment of remuneration for their
benefit; or
(b) is absent from duty, except on
leave of absence, for 14 consecutive days or for 28 days in any period of 12 months;
or
(c) engages in paid employment outside
the duties of the office of Commissioner otherwise than with the approval of
the Minister.
46J
Acting Commissioner
(1) The Minister may appoint a person to act
as Commissioner:
(a) during a vacancy in the office of
Commissioner, whether or not an appointment has previously been made to the
office; or
(b) during any period, or during all
periods, when the Commissioner is absent from duty or from Australia, or is, for any other reason, unable to perform the functions of the office of
Commissioner.
(2) The
validity of anything done by a person purporting to act under an appointment
made under subsection (1) is not to be called in question on the ground
that:
(a) the occasion for the person’s
appointment had not arisen; or
(b) there is a defect or irregularity
in or in connection with the appointment; or
(c) the appointment had ceased to have
effect; or
(d) the occasion for the person to act
had not arisen or had ceased.
Division 3—Miscellaneous
46K
Commissioner may obtain information from government agencies
(1) If the Commissioner has reason to believe
that a government agency has information or a document relevant to the
performance by the Commissioner of functions under this Part, the Commissioner
may give a written notice to the agency requiring the agency:
(a) to give the information to the
Commissioner in writing signed by or on behalf of the agency; or
(b) to produce the document to the
Commissioner.
(2) The notice must state:
(a) the place at which the information
or document is to be given or produced to the Commissioner; and
(b) the time at which, or period
within which, the information or document is to be given or produced.
(3) A government agency must not, in response
to a requirement under this section:
(a) give information in a manner that
would reveal the identity of a particular individual; or
(b) produce
a document that reveals the identity of a particular individual;
unless the individual has consented to the giving of the
information or the production of the document.
(4) If:
(a) subsection (3) would prevent
a government agency from complying with a requirement under this section to
produce a document; and
(b) the
agency is able to provide a copy of the document that has had deleted from it
the information that would reveal the identity of the individual concerned;
the agency must comply with the requirement by producing a
copy with that information deleted.
(5) In this section:
government agency means:
(a) an authority of the Commonwealth,
or of a State or Territory; or
(b) a person who performs the
functions of, or performs functions within, an authority of the Commonwealth,
or of a State or Territory.
46L
Commissioner must give information to the Commission
The Commissioner must give to the
Commission such information as the Commission from time to time requires
relating to the operations of the Commissioner under this Part.
46M
Minister must table etc. report of Commissioner
The Minister must cause a copy of each
report received by the Minister under paragraph 46C(1)(a):
(a) to be laid before each House of
the Parliament within 15 sitting days of that House after the report is
received by the Minister; and
(b) to be sent to the Attorney‑General
of each State and Territory within 7 days after the report is first laid before
either House of the Parliament under paragraph (a).
Part IIB—Redress for unlawful discrimination
Division 1—Conciliation by the President
46P
Lodging a complaint
(1) A written complaint may be 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.
(3) A person who is a class member for a
representative complaint is not entitled to lodge a separate complaint in
respect of the same subject matter.
(4) If it appears to the Commission that:
(a) a person wishes to make a
complaint under subsection (1); and
(b) the person requires assistance to
formulate the complaint or to reduce it to writing;
the Commission must take reasonable steps to provide
appropriate assistance to the person.
46PA
Amendment of complaint
(1) Any complainant may at any time amend the
complaint, with the leave of the President.
(2) Subsection (1) does not, by
implication, limit any other power to amend the complaint.
46PB
Conditions for lodging a representative complaint
(1) A representative complaint may be 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.
(2) A representative complaint under section 46P
must:
(a) describe or otherwise identify the
class members; and
(b) specify the nature of the
complaints made on behalf of the class members; and
(c) specify the nature of the relief
sought.
(3) In describing or otherwise identifying
the class members, it is not necessary to name them or specify how many there
are.
(4) A representative complaint may be lodged
without the consent of class members.
46PC
Additional rules applying to representative complaints
(1) A class member may, by notice in writing
to the Commission, withdraw from a representative complaint at any time before
the President terminates the complaint under section 46PH.
(2) The President may, on application in
writing by any affected person, replace any complainant with another person as
complainant.
(3) The President may at any stage direct
that notice of any matter be given to a class member or class members.
46PD
Referral of complaint to President
If a complaint is made to the Commission
under section 46P, the Commission must refer the complaint to the
President.
46PE
Complaints against the President, Commission or a Commissioner
(1) This section applies to a complaint if
any of the respondents to the complaint is:
(a) the President; or
(b) the Commission; or
(c) a Commissioner.
(2) If any complainant makes a written
request to the President for termination of the complaint, the President must
terminate the complaint, if the President is satisfied that all the affected
persons agree to the termination.
(3) If the President terminates the complaint
under subsection (2), the President must comply with the notification
requirements of subsections 46PH(2) and (3).
(4) The President cannot delegate any of his
or her powers in relation to the complaint except under paragraph 19(2)(b).
46PF
Inquiry by President
(1) Subject to subsection (5), if a
complaint is referred to the President under section 46PD, the President
must inquire into the complaint and attempt to conciliate the complaint.
(2) If the President thinks that 2 or more
complaints arise out of the same or substantially the same circumstances or
subject, the President may hold a single inquiry, or conduct a single
conciliation, in relation to those complaints.
(3) With the leave of the President, any
complainant or respondent may amend the complaint to add, as a respondent, a
person who is alleged to have done the alleged unlawful discrimination.
Note: In some cases, a person is regarded as having
done unlawful discrimination by being treated as responsible for the acts and
omissions of another person. See sections 56 and 57 of the Age
Discrimination Act 2004, sections 122 and 123 of the Disability
Discrimination Act 1992, sections 18A and 18E of the Racial
Discrimination Act 1975 and sections 105, 106 and 107 of the Sex
Discrimination Act 1984.
(4) A complaint cannot be amended after it is
terminated by the President under section 46PH.
(5) The President may decide not to inquire
into the complaint, or, if the President has started inquiring into the
complaint, may decide not to continue to inquire into the complaint, if:
(a) the President is satisfied that
the person aggrieved by the alleged unlawful discrimination does not want the
President to inquire, or to continue to inquire, into the complaint; or
(b) the President is satisfied that
the complaint has been settled or resolved.
46PG
Withdrawal of complaint
(1) Any complainant to a complaint may
withdraw the complaint, with the leave of the President.
(2) The President must grant leave if the
President is satisfied that all the affected persons agree to withdrawal of the
complaint. The President cannot grant leave unless the President is satisfied
that they all agree.
46PH
Termination of complaint
(1) The President may terminate a complaint
on any of the following grounds:
(a) the President is satisfied that
the alleged unlawful discrimination is not unlawful discrimination;
(b) the complaint was lodged more than
12 months after the alleged unlawful discrimination took place;
(c) the President is satisfied that
the complaint was trivial, vexatious, misconceived or lacking in substance;
(d) in a case where some other remedy
has been sought in relation to the subject matter of the complaint—the
President is satisfied that the subject matter of the complaint has been
adequately dealt with;
(e) the President is satisfied that
some other more appropriate remedy in relation to the subject matter of the
complaint is reasonably available to each affected person;
(f) in a case where the subject
matter of the complaint has already been dealt with by the Commission or by
another statutory authority—the President is satisfied that the subject matter
of the complaint has been adequately dealt with;
(g) the President is satisfied that
the subject matter of the complaint could be more effectively or conveniently
dealt with by another statutory authority;
(h) the President is satisfied that
the subject matter of the complaint involves an issue of public importance that
should be considered by the Federal Court or the Federal Magistrates Court;
(i) the President is satisfied that
there is no reasonable prospect of the matter being settled by conciliation.
(2) If the President decides to terminate a
complaint, the President must notify the complainants in writing of that
decision and of the reasons for that decision.
(3) On request by an affected person who is
not a complainant, the President must give the affected person a copy of the
notice that was given to the complainants under subsection (2).
(4) The President may revoke the termination
of a complaint, but not after an application is made to the Federal Court or
the Federal Magistrates Court under section 46PO in relation to the
complaint.
46PI
President’s power to obtain information
(1) This section applies if the President has
reason to believe that a person is capable of providing information (relevant
information) or producing documents (relevant documents)
relevant to an inquiry under this Division.
(2) The President may serve a written notice
on the person, requiring the person to do either or both of the following
within a reasonable period specified in the notice, or on a reasonable date and
at a reasonable time specified in the notice:
(a) give the President a signed
document containing relevant information required by the notice;
(b) produce to the President such
relevant documents as are specified in the notice.
(3) If the notice is served on a body
corporate, the document referred to in paragraph (2)(a) must be signed by
an officer of the body corporate.
(4) If a document is produced to the
President in accordance with a requirement under this section, the President:
(a) may take possession of the
document; and
(b) may make copies of the document or
take extracts from the document; and
(c) may retain possession of the
document for as long as is necessary for the purposes of the inquiry to which
the document relates.
(5) While the President retains any document
under this section, the President must allow the document to be inspected, at
all reasonable times, by any person who would be entitled to inspect the
document if it were not in the possession of the President.
46PJ
Directions to attend compulsory conference
(1) For the purpose of dealing with a
complaint in accordance with section 46PF, the President may decide to
hold a conference, to be presided over by the President or by a suitable person
(other than a member) appointed by the President.
(2) The conference must be at a reasonable
time and at a reasonable place.
(3) If the President decides to hold a
conference, the President must, by notice in writing, direct each complainant
and each respondent to attend the conference.
(4) The President may also, by notice in
writing, direct any of the following persons to attend the conference:
(a) any person who, in the opinion of
the President, is likely to be able to provide information relevant to the
inquiry;
(b) any person whose presence at the
conference is, in the opinion of the President, likely to be conducive to the
settlement of the matter to which the alleged unlawful discrimination relates.
(5) A person who is directed under this
section to attend a conference is entitled to be paid by the Commonwealth a
reasonable sum for the person’s attendance at the conference.
(6) In a notice to a person under this
section, the President may require the person to produce such documents at the
conference as are specified in the notice.
46PK
Proceedings at compulsory conference
(1) The person presiding at a compulsory
conference may require a person attending the conference to produce a document.
(2) A compulsory conference is to be held in
private and, subject to this Act, is to be conducted in such manner as the
person presiding at the conference thinks fit.
(3) The person presiding at the conference
must ensure that the conduct of the conference does not disadvantage either the
complainant or the respondent.
(4) Subject to subsection (5), a body of
persons, whether corporate or unincorporate, that is directed under section 46PJ
to attend a conference is taken to attend if an officer or employee of that
body attends on behalf of that body.
(5) Unless the person presiding at a
compulsory conference consents:
(a) an individual is not entitled to
be represented at the conference by another person; and
(b) a body of persons, whether
corporate or unincorporate, is not entitled to be represented at the conference
by a person other than an officer or employee of that body.
(6) Despite paragraph (5)(a), an
individual who is unable to attend a compulsory conference because the
individual has a disability is entitled to nominate another person to attend
instead on his or her behalf.
(7) If, in the opinion of the person
presiding at the conference, an individual is unable to participate fully in
the conference because the individual has a disability, the individual is
entitled to nominate another person to assist him or her at the
conference.
(8) If a person attends a compulsory
conference on behalf of a body of persons, whether corporate or unincorporate,
any conduct by the person in attending or appearing is taken, for the purposes
of this Act, to be conduct of the body.
(9) In this section, disability
has the same meaning as in the Disability Discrimination Act 1992.
46PL
Failure to attend compulsory conference
(1) A person who has been given a direction
under section 46PJ to attend a conference must not:
(a) fail to attend as required by the
direction; or
(b) fail to attend and report from day
to day unless excused, or released from further attendance, by the person
presiding at the conference.
Penalty: 10 penalty units.
(2) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(3) Subsection (1) is an offence of
strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
46PM
Failure to give information or produce documents
(1) A person must not refuse or fail:
(a) to give information; or
(b) to produce a document;
when so required under section 46PI, 46PJ or 46PK.
Penalty: 10 penalty units.
(1A) Subsection (1) does not apply if the
person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation
to the matter in subsection (1A) (see subsection 13.3(3) of the Criminal
Code).
(2) Subsection 4K(2) of the Crimes Act
1914 does not apply to this section.
(3) It is a reasonable excuse for the
purposes of this section for an individual to refuse or fail to answer a
question or produce a document on the ground that the answer or the production
of the document might tend to incriminate the individual or to expose the
individual to a penalty. This subsection does not limit what is a reasonable excuse
for the purposes of this section.
46PN
False or misleading information
A person must not give information or
make a statement to the Commission, to the President or to any other person
exercising powers or performing functions under this Act, knowing that the
information or statement is false or misleading in a material particular.
Penalty: Imprisonment for 6 months.
Division 2—Proceedings in the Federal Court and the Federal Magistrates Court
46PO
Application to court if complaint is terminated
(1) If:
(a) a complaint has been terminated by
the President under section 46PE or 46PH; and
(b) the President has given a notice
to any person under subsection 46PH(2) in relation to the termination;
any person who was an affected person in relation to the
complaint may make an application to the Federal Court or the Federal
Magistrates Court, alleging unlawful discrimination by one or more of the
respondents to the terminated complaint.
Note: Part IVA of the Federal Court of
Australia Act 1976 allows representative proceedings to be commenced in the
Federal Court in certain circumstances.
(2) The application must be made within 60
days after the date of issue of the notice under subsection 46PH(2), or within
such further time as the court concerned allows.
(3) The unlawful discrimination alleged in
the application:
(a) must be the same as (or the same
in substance as) the unlawful discrimination that was the subject of the
terminated complaint; or
(b) must arise out of the same (or
substantially the same) acts, omissions or practices that were the subject of
the terminated complaint.
(4) If the court concerned is satisfied that
there has been unlawful discrimination by any respondent, the court may make
such orders (including a declaration of right) as it thinks fit, including any
of the following orders or any order to a similar effect:
(a) an order declaring that the
respondent has committed unlawful discrimination and directing the respondent
not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to
perform any reasonable act or course of conduct to redress any loss or damage
suffered by an applicant;
(c) an order requiring a respondent to
employ or re‑employ an applicant;
(d) an order requiring a respondent to
pay to an applicant damages by way of compensation for any loss or damage
suffered because of the conduct of the respondent;
(e) an order requiring a respondent to
vary the termination of a contract or agreement to redress any loss or damage
suffered by an applicant;
(f) an order declaring that it would
be inappropriate for any further action to be taken in the matter.
(5) In the case of a representative
proceeding under Part IVA of the Federal Court of Australia Act 1976,
subsection (4) of this section applies as if a reference to an applicant
included a reference to each person who is a group member (within the meaning
of Part IVA of the Federal Court of Australia Act 1976).
(6) The court concerned may, if it thinks
fit, grant an interim injunction pending the determination of the proceedings.
(7) The court concerned may discharge or vary
any order made under this section (including an injunction granted under subsection (6)).
(8) The court concerned cannot, as a
condition of granting an interim injunction, require a person to give an
undertaking as to damages.
46PP
Interim injunction to maintain status quo etc.
(1) At any time after a complaint is lodged
with the Commission, the Federal Court or the Federal Magistrates Court may
grant an interim injunction to maintain:
(a) the status quo, as it existed
immediately before the complaint was lodged; or
(b) the rights of any complainant,
respondent or affected person.
(2) The application for the injunction may be
made by the Commission, a complainant, a respondent or an affected person.
(3) The injunction cannot be granted after
the complaint has been withdrawn under section 46PG or terminated under
section 46PE or 46PH.
(4) The court concerned may discharge or vary
an injunction granted under this section.
(5) The court concerned cannot, as a
condition of granting the interim injunction, require a person to give an
undertaking as to damages.
46PQ
Right of representation
(1) A party in proceedings under this
Division:
(a) may appear in person; or
(b) may be represented by a barrister
or a solicitor; or
(c) may be represented by another
person who is not a barrister or solicitor, unless the court is of the opinion
that it is inappropriate in the circumstances for the other person to appear.
(2) A person, other than a barrister or
solicitor, is not entitled to demand or receive any fee or reward, or any
payment for expenses, for representing a party in proceedings under this
Division.
46PR
Court not bound by technicalities
In proceedings under this Division, the
Federal Court and the Federal Magistrates Court are not bound by technicalities
or legal forms. This section has effect subject to Chapter III of the
Constitution.
46PS
Report by President to court
(1) The President may provide the Federal
Court or the Federal Magistrates Court with a written report on a complaint
that has been terminated under section 46PH.
(2) The report must not set out or describe
anything said or done in the course of conciliation proceedings under this Part
(including anything said or done at a conference held under this Part).
(3) The President may give a copy of the
report to the applicant and the respondent, and to any relevant member of the
Commission.
46PT
Assistance by Commission
The Commission may help a person to
prepare the forms required for the person to make an application under this
Division.
46PU
Assistance in proceedings before the court
(1) A person who:
(a) has commenced or proposes to
commence proceedings in the Federal Court or the Federal Magistrates Court
under this Division; or
(b) is a respondent in proceedings in
the Federal Court or the Federal Magistrates Court under this Division;
may apply to the Attorney‑General for the provision of
assistance under this section in respect of the proceedings.
(2) If a person makes an application for
assistance and the Attorney‑General is satisfied that:
(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;
the Attorney‑General may authorise the provision by the
Commonwealth to that person, on such conditions (if any) as the Attorney‑General
determines, of such legal or financial assistance in respect of the proceedings
as the Attorney‑General determines.
46PV Amicus
curiae function of Commission members
(1) A special‑purpose Commissioner has the
function of assisting the Federal Court and the Federal Magistrates Court, as amicus
curiae, in the following proceedings under this Division:
(a) proceedings in which the special‑purpose
Commissioner thinks that the orders sought, or likely to be sought, may affect
to a significant extent the human rights of persons who are not parties to the
proceedings;
(b) proceedings that, in the opinion
of the special‑purpose Commissioner, have significant implications for the
administration of the relevant Act or Acts;
(c) proceedings that involve special
circumstances that satisfy the special‑purpose Commissioner that it would be in
the public interest for the special‑purpose Commissioner to assist the court
concerned as amicus curiae.
(2) The function may only be exercised with
the leave of the court concerned.
(3) In this section, special‑purpose
Commissioner means:
(a) the Aboriginal and Torres Strait Islander Social Justice Commissioner; and
(b) the Disability Discrimination
Commissioner; and
(c) the Human Rights Commissioner; and
(d) the Race Discrimination
Commissioner; and
(e) the Sex Discrimination
Commissioner; and
(f) the Age Discrimination
Commissioner.
Part IIC—Referral of discriminatory awards and determinations to
other bodies
46PW Referral
of discriminatory industrial instruments to the Fair Work Australia
(1) A complaint in writing alleging that a
person has done a discriminatory act under an industrial instrument may be
lodged with the Commission by:
(a) a person aggrieved by the act, on
that person’s own behalf or on behalf of that person and one or more other
persons aggrieved by the act; or
(b) 2 or more persons aggrieved by the
act, on their own behalf or on behalf of themselves and one or more other
persons aggrieved by the act; or
(c) a person or persons who are in a
class of persons aggrieved by the act, on behalf of all the persons in the
class; or
(d) a trade union, on behalf of one or
more of its members aggrieved by the act or on behalf of a class of its members
aggrieved by the act.
(2) If the Commission receives a complaint
under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the
act is a discriminatory act, the President must refer the industrial instrument
to the Fair Work Australia. However, the President need not refer the
industrial instrument if the President is of the opinion that the complaint is
frivolous, vexatious, misconceived or lacking in substance.
(4) If the President decides not to refer the
industrial instrument, the President must give notice in writing of that
decision to the complainant or each of the complainants, together with notice
of the reasons for the decision.
(5) If the President refers the industrial
instrument to the Fair Work Australia, the President must give notice in
writing of the outcome of the referral to the complainant or each of the
complainants.
(6) The President may obtain documents or
information under section 46PI for the purposes of this section.
(7) In this section:
discriminatory act under an industrial instrument
means an act that would be unlawful under:
(a) Part 4 of the Age
Discrimination Act 2004; or
(b) Part 2 of the Disability
Discrimination Act 1992; or
(c) Part II of the Sex
Discrimination Act 1984;
but for the fact that the act was done in direct
compliance with an industrial instrument.
industrial instrument means:
(a) a fair work instrument (within the
meaning of the Fair Work Act 2009); or
(b) a transitional instrument, or a
Division 2B State instrument, (within the meaning of the Fair Work
(Transitional Provisions and Consequential Amendments) Act 2009).
(8) For the purposes of the definition of discriminatory
act under an industrial instrument in subsection (7), the fact
that an act is done in direct compliance with the industrial instrument does
not of itself mean that the act is reasonable.
46PX
Referral of discriminatory determinations to the Remuneration Tribunal
(1) A complaint in writing alleging that a
person has done a discriminatory act under a determination may be lodged with
the Commission by:
(a) a person aggrieved by the act, on
that person’s own behalf or on behalf of that person and one or more other
persons aggrieved by the act; or
(b) 2 or more persons aggrieved by the
act, on their own behalf or on behalf of themselves and one or more other
persons aggrieved by the act; or
(c) a person or persons who are in a
class of persons aggrieved by the act, on behalf of all the persons in the
class.
(2) If the Commission receives a complaint
under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the
act is a discriminatory act, the President must refer the determination to the
Remuneration Tribunal. However, the President need not refer the determination
if the President is of the opinion that the complaint is frivolous, vexatious,
misconceived or lacking in substance.
(4) If the President decides not to refer the
determination, the President must give notice in writing of that decision to
the complainant or each of the complainants, together with notice of the
reasons for the decision.
(5) If the President refers the determination
to the Remuneration Tribunal, the President must give notice in writing of the
outcome of the referral to the complainant or each of the complainants.
(6) The President may obtain documents or
information under section 46PI for the purposes of this section.
(7) In this section:
determination means:
(a) a determination made on or after
19 January 1994 by the Remuneration Tribunal under the Remuneration
Tribunal Act 1973; or
(b) a variation made on or after 19 January
1994 by that Tribunal to a determination made by it under that Act before 19 January
1994.
discriminatory act
under a determination means an act that would be unlawful under Part II
of the Sex Discrimination Act 1984 except for the fact that the act was
done in direct compliance with a determination.
(8) For the purposes of the definition of discriminatory
act under a determination in subsection (7), the fact that an act
is done in direct compliance with the determination does not of itself mean
that the act is reasonable.
46PY
Referral of discriminatory determinations to the Defence Force Remuneration
Tribunal
(1) A complaint in writing alleging that a
person has done a discriminatory act under a determination may be lodged with
the Commission by:
(a) a person aggrieved by the act, on that
person’s own behalf or on behalf of that person and one or more other persons
aggrieved by the act; or
(b) 2 or more persons aggrieved by the
act, on their own behalf or on behalf of themselves and one or more other
persons aggrieved by the act; or
(c) a person or persons who are in a
class of persons aggrieved by the act, on behalf of all the persons in the
class.
(2) If the Commission receives a complaint
under this section, the Commission must notify the President accordingly.
(3) If it appears to the President that the
act is a discriminatory act, the President must refer the determination to the
Defence Force Remuneration Tribunal. However, the President need not refer the
determination if the President is of the opinion that the complaint is frivolous,
vexatious, misconceived or lacking in substance.
(4) If the President decides not to refer the
determination, the President must give notice in writing of that decision to
the complainant or each of the complainants, together with notice of the reasons
for the decision.
(5) If the
President refers the determination to the Defence Force Remuneration Tribunal,
the President must give notice in writing of the outcome of the referral to the
complainant or each of the complainants.
(6) The President may obtain documents or
information under section 46PI for the purposes of this section.
(7) In this
section:
determination
means:
(a) a determination made on or after
15 January 1996 by the Defence Force Remuneration Tribunal under section 58H
of the Defence Act 1903; or
(b) a variation made on or after 15 January
1996 by that Tribunal to a determination made by it under that section before
15 January 1996.
discriminatory act under a determination means
an act that would be unlawful under Part II of the Sex Discrimination
Act 1984 except for the fact that the act was done in direct compliance
with a determination.
(8) For the purposes of the definition of discriminatory
act under a determination in subsection (7), the fact that an act
is done in direct compliance with the determination does not of itself mean
that the act is reasonable.
Part III—Miscellaneous
47
Declaration of international instruments
(1) The Minister may, after consulting the
appropriate Minister of each State, by legislative instrument, declare an
international instrument, being:
(a) an instrument ratified or acceded
to by Australia; or
(b) a
declaration that has been adopted by Australia;
to be an international instrument relating to human rights
and freedoms for the purposes of this Act.
(2) The declaration must include:
(a) a copy of the international
instrument; and
(b) a copy of whichever of the
following is applicable:
(i) Australia’s instrument
of ratification of, or accession to, the international instrument;
(ii) the terms of any
explanation given by Australia of its vote in respect of the international
instrument.
(3) Part 6 (sunsetting) of the Legislative
Instruments Act 2003 does not apply to the declaration.
48
Protection from civil actions
(1) Subsection (2) applies in relation
to any of the following persons:
(a) the Commission;
(b) a member of the Commission;
(c) a person acting for or on behalf
of:
(i) the Commission; or
(ii) a member of the
Commission.
(2) The person is not liable to an action or other
proceeding for damages for or in relation to an act done, or omitted to be
done, in good faith in performance, or purported performance, of any function,
or in exercise or purported exercise of any power, conferred on the Commission
or the member.
(3) Where:
(a) a complaint has been made to the
Commission; or
(b) a
submission has been made, a document or information has been furnished, or
evidence has been given, to the Commission or to a person acting on behalf of
the Commission;
a person is not liable to an action, suit or proceeding in
respect of loss, damage or injury of any kind suffered by another person by
reason only that the complaint or submission was made, the document or
information was furnished or the evidence was given.
49 Non‑disclosure
of private information
(1) A person who is, or has at any time been,
a member of the Commission or a member of the staff referred to in section 43
or is acting, or has at any time acted, for or on behalf of the Commission
shall not, either directly or indirectly:
(a) make a record of, or divulge or
communicate to any person, any information relating to the affairs of another
person acquired by the first‑mentioned person by reason of that person’s office
or employment under or for the purposes of this Act or by reason of that person
acting, or having acted, for or on behalf of the Commission; or
(b) make use of any such information
as is mentioned in paragraph (a); or
(c) produce
to any person a document relating to the affairs of another person furnished
for the purposes of this Act.
Penalty: 50 penalty units or imprisonment for 1 year, or
both.
(2) A person
who is, or has at any time been, a member of the Commission or a member of the
staff referred to in section 43 or is acting, or has at any time acted,
for or on behalf of the Commission shall not be required:
(a) to divulge or communicate to a
court any information relating to the affairs of another person acquired by the
first‑mentioned person by reason of that person’s office or employment under or
for the purposes of this Act or by reason of that person acting, or having
acted, for or on behalf of the Commission; or
(b) to
produce in a court a document relating to the affairs of another person of
which the first‑mentioned person has custody, or to which that person has
access, by reason of that person’s office or employment under or for the
purposes of this Act or by reason of that person acting, or having acted, for
or on behalf of the Commission;
except where it is necessary to do so for the purposes of
this Act.
(3) Nothing in this section prohibits a
person from:
(a) making a record of information
that is, or is included in a class of information that is, required or
permitted by an Act to be recorded, if the record is made for the purposes of
or pursuant to that Act;
(b) divulging or communicating
information, or producing a document, to an instrumentality of a State in
accordance with an arrangement in force under section 16; or
(c) divulging or communicating
information, or producing a document, that is, or is included in a class of
information that is or class of documents that are, required or permitted by an
Act to be divulged, communicated or produced, as the case may be, if the
information is divulged or communicated, or the document is produced, for the
purposes of or pursuant to that Act.
Note: A defendant bears an evidential burden in
relation to a matter in subsection (3) (see subsection 13.3(3) of the Criminal
Code).
(4) Nothing in subsection (2) prevents a
person being required, for the purposes of or pursuant to an Act, to divulge or
communicate information, or to produce a document, that is, or is included in a
class of information that is or class of documents that are, required or
permitted by that Act to be divulged, communicated or produced.
(4A) Subsection (1) does not prevent the
Commission, or a person acting for or on behalf of the Commission, from giving
information or documents in accordance with paragraph 20(4A)(e).
Note: A defendant bears an evidential burden in
relation to a matter in subsection (4A) (see subsection 13.3(3) of the Criminal
Code).
(4B) Subsection (1) does not prevent a
person from making a record of, divulging, communicating or making use of
information, or producing a document, if the person does so:
(a) in the performance of a duty under
or in connection with this Act; or
(b) in the course of acting for or on
behalf of the Commission.
Note: A defendant bears an evidential burden in
relation to the matter in subsection (4B) (see subsection 13.3(3) of the Criminal
Code).
(5) In this section:
court includes any tribunal, authority or
person having power to require the production of documents or the answering of
questions.
produce includes permit access to.
49A
Information stored otherwise than in written form
If information is recorded or stored by
means of a mechanical, electronic or other device, any duty imposed by this Act
to produce the document recording that information is to be construed as a duty
to provide a document containing a clear reproduction in writing of the
information.
49B
Jurisdiction of Federal Court and Federal Magistrates Court
The Federal Court and the Federal
Magistrates Court have concurrent jurisdiction with respect to civil matters
arising under Part IIB or IIC.
49C
Compensation for acquisition of property
(1) If the application of any of the
provisions of this Act would result in an acquisition of property from any
person having been made otherwise than on just terms, the person is entitled to
such compensation from the Commonwealth as is necessary to ensure that the
acquisition is made on just terms.
(2) The Federal Court and the Federal
Magistrates Court have concurrent jurisdiction with respect to matters arising
under subsection (1) and that jurisdiction is exclusive of the
jurisdiction of all other courts, other than jurisdiction of the High Court
under section 75 of the Constitution.
50
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
Schedule 2—International Covenant on Civil and Political Rights
Section 3
The States Parties to the
present Covenant,
Considering
that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable
rights of all members of the human family is the foundation of freedom, justice
and peace in the world,
Recognizing
that these rights derive from the inherent dignity of the human person,
Recognizing
that, in accordance with the Universal Declaration of Human Rights, the ideal
of free human beings enjoying civil and political freedom from fear and want
can only be achieved if conditions are created whereby everyone may enjoy his
civil and political rights, as well as his economic, social and cultural
rights,
Considering
the obligation of States under the Charter of the United Nations to promote
universal respect for, and observance of, human rights and freedoms,
Realizing
that the individual, having duties to other individuals and to the community to
which he belongs, is under a responsibility to strive for the promotion and
observance of the rights recognized in the present Covenant,
Agree
upon the following articles:
PART I
Article
1
1. All
peoples have the right of self‑determination. By virtue of that right they
freely determine their political status and freely pursue their economic,
social and cultural development.
2. All
peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co‑operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3. The
States Parties to the present Covenant, including those having responsibility
for the administration of Non‑Self‑Governing and Trust Territories, shall
promote the realization of the right of self‑determination, and shall respect
that right, in conformity with the provisions of the Charter of the United
Nations.
PART II
Article
2
1. Each
State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
2. Where
not already provided for by existing legislative or other measures, each State
Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such legislative or other measures as may be
necessary to give effect to the rights recognized in the present Covenant.
3. Each
State Party to the present Covenant undertakes:
(a) To
ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To
ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or
by any other competent authority provided for by the legal system of the State,
and to develop the possibilities of judicial remedy;
(c) To
ensure that the competent authorities shall enforce such remedies when granted.
Article 3
The States
Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the
present Covenant.
Article
4
1. In
time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground
of race, colour, sex, language, religion or social origin.
2. No
derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may
be made under this provision.
3. Any
State Party to the present Covenant availing itself of the right of derogation
shall immediately inform the other States Parties to the present Covenant,
through the intermediary of the Secretary‑General of the United Nations, of the
provisions from which it has derogated and of the reasons by which it was
actuated. A further communication shall be made, through the same intermediary,
on the date on which it terminates such derogation.
Article 5
1. Nothing
in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the
destruction of any of the rights and freedoms recognized herein or at their
limitation to a greater extent than is provided for in the present Covenant.
2. There
shall be no restriction upon or derogation from any of the fundamental human
rights recognized or existing in any State Party to the present Covenant
pursuant to law, conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a
lesser extent.
PART III
Article
6
1. Every
human being has the inherent right to life. This right shall be protected by
law. No one shall be arbitrarily deprived of his life.
2. In
countries which have not abolished the death penalty, sentence of death may be
imposed only for the most serious crimes in accordance with the law in force at
the time of the commission of the crime and not contrary to the provisions of
the present Covenant and to the Convention on the Prevention and Punishment of
the Crime of Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court.
3. When
deprivation of life constitutes the crime of genocide, it is understood that
nothing in this article shall authorize any State Party to the present Covenant
to derogate in any way from any obligation assumed under the provisions of the
Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone
sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be
granted in all cases.
5. Sentence
of death shall not be imposed for crimes committed by persons below eighteen
years of age and shall not be carried out on pregnant women.
6. Nothing
in this article shall be invoked to delay or to prevent the abolition of
capital punishment by any State Party to the present Covenant.
Article 7
No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent
to medical or scientific experimentation.
Article 8
1. No one
shall be held in slavery; slavery and the slave‑trade in all their forms shall
be prohibited.
2. No
one shall be held in servitude.
3. (a) No
one shall be required to perform forced or compulsory labour;
(b) Paragraph
3(a) shall not be held to preclude, in countries where imprisonment with
hard labour may be imposed as a punishment for a crime, the performance of hard
labour in pursuance of a sentence to such punishment by a competent court;
(c) For
the purpose of this paragraph the term “forced or compulsory labour” shall not
include:
(i) Any
work or service, not referred to in sub‑paragraph (b), normally
required of a person who is under detention in consequence of a lawful order of
a court, or of a person during conditional release from such detention;
(ii) Any
service of a military character and, in countries where conscientious objection
is recognized, any national service required by law of conscientious objectors;
(iii) Any
service exacted in cases of emergency or calamity threatening the life or well‑being
of the community;
(iv) Any
work or service which forms part of normal civil obligations.
Article 9
1. Everyone
has the right to liberty and security of person. No one shall be subjected to
arbitrary arrest or detention. No one shall be deprived of his liberty except
on such grounds and in accordance with such procedure as are established by
law.
2. Anyone
who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.
3. Anyone
arrested or detained on a criminal charge shall be brought promptly before a judge
or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the
general rule that persons awaiting trial shall be detained in custody, but
release may be subject to guarantees to appear for trial, at any other stage of
the judicial proceedings, and, should occasion arise, for execution of the
judgment.
4. Anyone
who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay
on the lawfulness of his detention and order his release if the detention is
not lawful.
5. Anyone
who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
Article 10
1. All
persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
2. (a) Accused
persons shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their status
as unconvicted persons;
(b) Accused
juvenile persons shall be separated from adults and brought as speedily as
possible for adjudication.
3. The
penitentiary system shall comprise treatment of prisoners the essential aim of
which shall be their reformation and social rehabilitation. Juvenile offenders
shall be segregated from adults and be accorded treatment appropriate to their
age and legal status.
Article 11
No one shall
be imprisoned merely on the ground of inability to fulfil a contractual
obligation.
Article 12
1. Everyone
lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.
2. Everyone
shall be free to leave any country, including his own.
3. The
above‑mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public
order (ordre public), public health or morals or the rights and freedoms
of others, and are consistent with the other rights recognized in the present
Covenant.
4. No
one shall be arbitrarily deprived of the right to enter his own country.
Article 13
An alien
lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with
law and shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to have his
case reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent
authority.
Article 14
1. All
persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit at
law, everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The Press and the public
may be excluded from all or part of a trial for reasons of morals, public order
(ordre public) or national security in a democratic society, or when the
interest of the private lives of the parties so requires, or to the extent
strictly necessary in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice; but any judgment rendered
in a criminal case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
2. Everyone
charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
3. In
the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality;
(a) To
be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
(b) To
have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To
be tried without undue delay;
(d) To
be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it;
(e) To
examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions
as witnesses against him;
(f) To
have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not
to be compelled to testify against himself or to confess guilt.
4. In
the case of juvenile persons, the procedure shall be such as will take account
of their age and the desirability of promoting their rehabilitation.
5. Everyone
convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.
6. When
a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has
been a miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to law, unless it is
proved that the non‑disclosure of the unknown fact in time is wholly or partly
attributable to him.
7. No
one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.
Article 15
1. No one
shall be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time when the criminal offence was
committed. If, subsequent to the commission of the offence, provision is made
by law for the imposition of a lighter penalty, the offender shall benefit
thereby.
2. Nothing
in this article shall prejudice the trial and punishment of any person for any
act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations.
Article 16
Everyone shall have the right to
recognition everywhere as a person before the law.
Article 17
1. No
one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone
has the right to the protection of the law against such interference or
attacks.
Article 18
1. Everyone
shall have the right to freedom of thought, conscience and religion. This right
shall include freedom to have or to adopt a religion or belief of his choice,
and freedom, either individually or in community with others and in public or
private, to manifest his religion or belief in worship, observance, practice
and teaching.
2. No
one shall be subject to coercion which would impair his freedom to have or to
adopt a religion or belief of his choice.
3. Freedom
to manifest one’s religion or beliefs may be subject only to such limitations
as are prescribed by law and are necessary to protect public safety, order,
health or morals or the fundamental rights and freedoms of others.
4. The
States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
Article 19
1. Everyone
shall have the right to hold opinions without interference.
2. Everyone
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or
through any other media of his choice.
3. The
exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For
respect of the rights or reputations of others;
(b) For
the protection of national security or of public order (ordre public),
or of public health or morals.
Article 20
1. Any
propaganda for war shall be prohibited by law.
2. Any
advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.
Article 21
The right of
peaceful assembly shall be recognized. No restrictions may be placed on the
exercise of this right other than those imposed in comformity with the law and
which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and
freedoms of others.
Article
22
1. Everyone
shall have the right to freedom of association with others, including the right
to form and join trade unions for the protection of his interests.
2. No
restrictions may be placed on the exercise of this right other than those which
are prescribed by law and which are necessary in a democratic society in the
interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and
freedoms of others. This article shall not prevent the imposition of lawful
restrictions on members of the armed forces and of the police in their exercise
of this right.
3. Nothing
in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and
Protection of the Right to Organize to take legislative measures which would
prejudice, or to apply the law in such a manner as to prejudice, the guarantees
provided for in that Convention.
Article 23
1. The
family is the natural and fundamental group unit of society and is entitled to
protection by society and the State.
2. The
right of men and women of marriageable age to marry and to found a family shall
be recognized.
3. No
marriage shall be entered into without the free and full consent of the
intending spouses.
4. States
Parties to the present Covenant shall take appropriate steps to ensure equality
of rights and responsibilities of spouses as to marriage, during marriage and
at its dissolution. In the case of dissolution, provision shall be made for the
necessary protection of any children.
Article 24
1. Every
child shall have, without any discrimination as to race, colour, sex, language,
religion, national or social origin, property or birth, the right to such
measures of protection as are required by his status as a minor, on the part of
his family, society and the State.
2. Every
child shall be registered immediately after birth and shall have a name.
3. Every
child has the right to acquire a nationality.
Article 25
Every
citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To
take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To
vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) To
have access, on general terms of equality, to public service in his country.
Article 26
All persons
are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status.
Article 27
In those
States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with
the other members of their group, to enjoy their own culture, to profess and
practise their own religion, or to use their own language.
PART
IV
Article 28
1. There
shall be established a Human Rights Committee (hereafter referred to in the
present Covenant as the Committee). It shall consist of eighteen members and
shall carry out the functions hereinafter provided.
2. The
Committee shall be composed of nationals of the States parties to the present
Covenant who shall be persons of high moral character and recognized competence
in the field of human rights, consideration being given to the usefulness of
the participation of some persons having legal experience.
3. The
members of the Committee shall be elected and shall serve in their personal
capacity.
Article 29
1. The
members of the Committee shall be elected by secret ballot from a list of
persons possessing the qualifications prescribed in article 28 and nominated
for the purpose by the States Parties to the present Covenant.
2. Each
State Party to the present Covenant may nominate not more than two persons.
These persons shall be nationals of the nominating State.
3. A
person shall be eligible for renomination.
Article
30
1. The
initial election shall be held no later than six months after the date of the
entry into force of the present Covenant.
2. At
least four months before the date of each election to the Committee, other than
an election to fill a vacancy declared in accordance with article 34, the
Secretary‑General of the United Nations shall address a written invitation to
the States Parties to the present Covenant to submit their nominations for
membership of the Committee within three months.
3. The
Secretary‑General of the United Nations shall prepare a list in alphabetical
order of all the persons thus nominated, with an indication of the States
Parties which have nominated them, and shall submit it to the States Parties to
the present Covenant no later than one month before the date of each election.
4. Elections
of the members of the Committee shall be held at a meeting of the States
Parties to the present Covenant convened by the Secretary‑General of the United
Nations at the Headquarters of the United Nations. At that meeting, for which
two thirds of the States Parties to the present covenant shall constitute a
quorum, the persons elected to the Committee shall be those nominees who obtain
the largest number of votes and an absolute majority of the votes of the
representatives of States Parties present and voting.
Article
31
1. The
Committee may not include more than one national of the same State.
2. In
the election of the Committee, consideration shall be given to equitable
geographical distribution of membership and to the representation of the
different forms of civilization and of the principal legal systems.
Article
32
1. The
members of the Committee shall be elected for a term of four years. They shall
be eligible for re‑election if renominated. However, the terms of nine of the
members elected at the first election shall expire at the end of two years;
immediately after the first election, the names of these nine members shall be
chosen by lot by the Chairman of the meeting referred to in article 30,
paragraph 4.
2. Elections
at the expiry of office shall be held in accordance with the preceding articles
of this part of the present Covenant.
Article 33
1. If, in
the unanimous opinion of the other members, a member of the Committee has
ceased to carry out his functions for any cause other than absence of a
temporary character, the Chairman of the Committee shall notify the Secretary‑General
of the United Nations, who shall then declare the seat of that member to be
vacant.
2. In
the event of the death or the resignation of a member of the Committee, the
Chairman shall immediately notify the Secretary‑General of the United Nations,
who shall declare the seat vacant from the date of death or the date on which
the resignation takes effect.
Article 34
1. When a
vacancy is declared in accordance with article 33 and if the term of office of
the member to be replaced does not expire within six months of the declaration
of the vacancy, the Secretary‑General of the United Nations shall notify each
of the States Parties to the present Covenant, which may within two months
submit nominations in accordance with article 29 for the purpose of filling the
vacancy.
2. The
Secretary‑General of the United Nations shall prepare a list in alphabetical
order of the persons thus nominated and shall submit it to the States Parties
to the present Covenant. The election to fill the vacancy shall then take place
in accordance with the relevant provisions of this part of the present
Covenant.
3. A
member of the Committee elected to fill a vacancy declared in accordance with
article 33 shall hold office for the remainder of the term of the member who
vacated the seat on the Committee under the provisions of that article.
Article
35
The
members of the Committee shall, with the approval of the General Assembly of
the United Nations, receive emoluments from United Nations resources on such
terms and conditions as the General Assembly may decide, having regard to the
importance of the Committee’s responsibilities.
Article 36
The Secretary‑General
of the United Nations shall provide the necessary staff and facilities for the
effective performance of the functions of the Committee under the present
Covenant.
Article 37
1. The Secretary‑General
of the United Nations shall convene the initial meeting of the Committee at the
Headquarters of the United Nations.
2. After
its initial meeting, the Committee shall meet at such times as shall be
provided in its rules of procedure.
3. The
Committee shall normally meet at the Headquarters of the United Nations or at
the United Nations Office at Geneva.
Article 38
Every member
of the Committee shall, before taking up his duties, make a solemn declaration
in open committee that he will perform his functions impartially and
conscientiously.
Article 39
1. The
Committee shall elect its officers for a term of two years. They may be re‑elected.
2. The
Committee shall establish its own rules of procedure, but these rules shall
provide, inter alia, that:
(a) Twelve
members shall constitute a quorum;
(b) Decisions
of the Committee shall be made by a majority vote of the members present.
Article 40
1. The
States Parties to the present Covenant undertake to submit reports on the
measures they have adopted which give effect to the rights recognized herein
and on the progress made in the enjoyment of those rights:
(a) Within
one year of the entry into force of the present Covenant for the States Parties
concerned;
(b) Thereafter
whenever the Committee so requests.
2. All
reports shall be submitted to the Secretary‑General of the United Nations, who
shall transmit them to the Committee for consideration. Reports shall indicate
the factors and difficulties, if any, affecting the implementation of the
present Covenant.
3. The
Secretary‑General of the United Nations may, after consultation with the
Committee, transmit to the specialized agencies concerned copies of such parts
of the reports as may fall within their field of competence.
4. The
Committee shall study the reports submitted by the States Parties to the
present Covenant. It shall transmit its reports, and such general comments as
it may consider appropriate, to the States Parties. The Committee may also
transmit to the Economic and Social Council these comments along with the
copies of the reports it has received from States Parties to the present
Covenant.
5. The
States Parties to the present Covenant may submit to the Committee observations
on any comments that may be made in accordance with paragraph 4 of this
article.
Article
41
1. A State
Party to the present Covenant may at any time declare under this article that
it recognizes the competence of the Committee to receive and consider
communications to the effect that a State Party claims that another State Party
is not fulfilling its obligations under the present Covenant. Communications
under this article may be received and considered only if submitted by a State
Party which has made a declaration recognizing in regard to itself the
competence of the Committee. No communications shall be received by the
Committee if it concerns a State Party which has not made such a declaration.
Communications received under this article shall be dealt with in accordance
with the following procedure:
(a) If
a State Party to the present Covenant considers that another State Party is not
giving effect to the provisions of the present Covenant, it may, by written
communication, bring the matter to the attention of that State Party. Within
three months after the receipt of the communication, the receiving State shall
afford the State which sent the communication an explanation or any other
statement in writing clarifying the matter which should include, to the extent
possible and pertinent, reference to domestic procedures and remedies taken,
pending, or available in the matter.
(b) If
the matter is not adjusted to the satisfaction of both States Parties concerned
within six months after the receipt by the receiving State of the initial
communication, either State shall have the right to refer the matter to the
Committee, by notice given to the Committee and to the other State.
(c) The
Committee shall deal with a matter referred to it only after it has ascertained
that all available domestic remedies have been invoked and exhausted in the
matter, in conformity with the generally recognized principles of international
law. This shall not be the rule where the application of the remedies is
unreasonably prolonged.
(d) The
Committee shall hold closed meetings when examining communications under this
article.
(e) Subject
to the provisions of sub‑paragraph (c), the Committee shall make
available its good offices to the States Parties concerned with a view to a
friendly solution of the matter on the basis of respect for human rights and
fundamental freedoms as recognized in the present Covenant.
(f) In
any matter referred to it, the Committee may call upon the States Parties
concerned, referred to in sub‑paragraph (b), to supply any relevant
information.
(g) The
States Parties concerned, referred to in sub‑paragraph (b), shall
have the right to be represented when the matter is being considered in the
Committee and to make submissions orally and/or in writing.
(h) The
Committee shall, within twelve months after the date of receipt of notice under
sub‑paragraph (b), submit a report:
(i) If a solution within the terms of sub‑paragraph (e)
is reached, the Committee shall confine its report to a brief statement of the
facts and of the solution reached;
(ii) If a solution within the terms of sub‑paragraph (e)
is not reached, the Committee shall confine its report to a brief statement of
the facts; the written submissions and record of the oral submissions made by
the States Parties concerned shall be attached to the report.
In
every matter, the report shall be communicated to the States Parties concerned.
2. The
provisions of this article shall come into force when ten States Parties to the
present Covenant have made declarations under paragraph 1 of this article.
Such
declarations shall be deposited by the States Parties with the Secretary‑General
of the United Nations, who shall transmit copies thereof to the other States
Parties. A declaration may be withdrawn at any time by notification to the
Secretary‑General. Such a withdrawal shall not prejudice the consideration of
any matter which is the subject of a communication already transmitted under
this article; no further communication by any State Party shall be received
after the notification of withdrawal of the declaration has been received by
the Secretary‑General, unless the State Party concerned has made a new
declaration.
Article
42
1. (a) If
a matter referred to the Committee in accordance with article 41 is not
resolved to the satisfaction of the States Parties concerned, the Committee
may, with the prior consent of the States Parties concerned, appoint an ad
hoc Conciliation Commission (hereinafter referred to as the Commission).
The good offices of the Commission shall be made available to the States Parties
concerned with a view to an amicable solution of the matter on the basis of
respect for the present Covenant;
(b) The
Commission shall consist of five persons acceptable to the States Parties
concerned. If the States Parties concerned fail to reach agreement within three
months on all or part of the composition of the Commission the members of the
Commission concerning whom no agreement has been reached shall be elected by
secret ballot by a two‑thirds majority vote of the Committee from among its members.
2. The
members of the Commission shall serve in their personal capacity. They shall
not be nationals of the States Parties concerned, or of a State not party to
the present Covenant, or of a State Party which has not made a declaration
under article 41.
3. The
Commission shall elect its own Chairman and adopt its own rules of procedure.
4. The
meetings of the Commission shall normally be held at the Headquarters of the
United Nations or at the United Nations Office at Geneva. However, they may be
held at such other convenient places as the Commission may determine in
consultation with the Secretary‑General of the United Nations and the States
Parties concerned.
5. The
secretariat provided in accordance with article 36 shall also service the commissions
appointed under this article.
6. The
information received and collated by the Committee shall be made available to
the Commission and the Commission may call upon the States Parties concerned to
supply any other relevant information.
7. When
the Commission has fully considered the matter, but in any event not later than
twelve months after having been seized of the matter, it shall submit to the
Chairman of the Committee a report for communication to the States Parties
concerned.
(a) If
the Commission is unable to complete its consideration of the matter within
twelve months, it shall confine its report to a brief statement of the status
of its consideration of the matter;
(b) If
an amicable solution to the matter on the basis of respect for human rights as
recognized in the present Covenant is reached, the Commission shall confine its
report to a brief statement of the facts and of the solution reached.
(c) If
a solution within the terms of sub‑paragraph (b) is not reached,
the Commission’s report shall embody its findings on all questions of fact
relevant to the issues between the States Parties concerned, and its views on
the possibilities of an amicable solution of the matter. This report shall also
contain the written submissions and a record of the oral submissions made by
the States Parties concerned.
(d) If
the Commission’s report is submitted under sub‑paragraph (c), the
States Parties concerned shall, within three months of the receipt of the
report, notify the Chairman of the Committee whether or not they accept the
contents of the report of the Commission.
8. The
provisions of this article are without prejudice to the responsibilities of the
Committee under article 41.
9. The
States Parties concerned shall share equally all the expenses of the members of
the Commission in accordance with estimates to be provided by the Secretary‑General
of the United Nations.
10. The
Secretary‑General of the United Nations shall be empowered to pay the expenses
of the members of the Commission, if necessary, before reimbursement by the
States Parties concerned, in accordance with paragraph 9 of this article.
Article
43
The members
of the Committee, and of the ad hoc conciliation commissions which may
be appointed under article 42, shall be entitled to the facilities, privileges
and immunities of experts on mission for the United Nations as laid down in the
relevant sections of the Convention on the Privileges and Immunities of the
United Nations.
Article
44
The
provisions for the implementation of the present Covenant shall apply without
prejudice to the procedures prescribed in the field of human rights by or under
the constituent instruments and the conventions of the United Nations and of
the specialized agencies and shall not prevent the States Parties to the
present Covenant from having recourse to other procedures for settling a
dispute in accordance with general or special international agreements in force
between them.
Article
45
The Committee
shall submit to the General Assembly of the United Nations through the Economic
and Social Council, an annual report on its activities.
PART V
Article
46
Nothing in
the present Covenant shall be interpreted as impairing the provisions of the
Charter of the United Nations and of the constitutions of the specialized
agencies which define the respective responsibilities of the various organs of
the United Nations and of the specialized agencies in regard to the matters
dealt with in the present Covenant.
Article
47
Nothing in
the present Covenant shall be interpreted as impairing the inherent right of
all peoples to enjoy and utilize fully and freely their natural wealth and
resources.
PART VI
Article
48
1. The
present Covenant is open for signature by any State Member of the United
Nations or member of any of its specialized agencies, by any State Party to the
Statute of the International Court of Justice, and by any other State which has
been invited by the General Assembly of the United Nations to become a party to
the present Covenant.
2. The
present Covenant is subject to ratification. Instruments of ratification shall
be deposited with the Secretary‑General of the United Nations.
3. The
present Covenant shall be open to accession by any State referred to in
paragraph 1 of this article.
4. Accession
shall be effected by the deposit of an instrument of accession with the
Secretary‑General of the United Nations.
5. The
Secretary‑General of the United Nations shall inform all States which have
signed this Covenant or acceded to it of the deposit of each instrument of
ratification or accession.
Article
49
1. The
present Covenant shall enter into force three months after the date of the
deposit with the Secretary‑General of the United Nations of the thirty‑fifth
instrument of ratification or instrument of accession.
2. For
each State ratifying the present Covenant or acceding to it after the deposit
of the thirty‑fifth instrument of ratification or instrument of accession, the
present Covenant shall enter into force three months after the date of the
deposit of its own instrument of ratification or instrument of accession.
Article
50
The
provisions of the present Covenant shall extend to all parts of federal States
without any limitations or exceptions.
Article 51
1. Any
State Party to the present Covenant may propose an amendment and file it with
the Secretary‑General of the United Nations. The Secretary‑General of the
United Nations shall thereupon communicate any proposed amendments to the
States Parties to the present Covenant with a request that they notify him
whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposals. In the event that at least one third
of the States Parties favours such a conference, the Secretary‑General shall
convene the conference under the auspices of the United Nations. Any amendment
adopted by a majority of the States Parties present and voting at the
conference shall be submitted to the General Assembly of the United Nations for
approval.
2. Amendments
shall come into force when they have been approved by the General Assembly of
the United Nations and accepted by a two‑thirds majority of the States Parties
to the present Covenant in accordance with their respective constitutional
processes.
3. When
amendments come into force, they shall be binding on those States Parties which
have accepted them, other States Parties still being bound by the provisions of
the present Covenant and any earlier amendment which they have accepted.
Article
52
Irrespective
of the notifications made under article 48, paragraph 5, the Secretary‑General
of the United Nations shall inform all States referred to in paragraph 1 of the
same article of the following particulars:
(a) Signatures,
ratifications and accessions under article 48;
(b) The
date of the entry into force of the present Covenant under article 49 and the
date of the entry into force of any amendments under article 51.
Article
53
1. The
present Covenant, of which the Chinese, English, French, Russian and Spanish
texts are equally authentic, shall be deposited in the archives of the United
Nations.
2. The
Secretary‑General of the United Nations shall transmit certified copies of the
present Covenant to all States referred to in article 48.
IN
FAITH WHEREOF the undersigned, being duly authorized thereto by their
respective Governments, have signed the present Covenant, opened for signature
at New York, on the nineteenth day of December, one thousand nine hundred and
sixty‑six.