Human Rights Legislation Amendment Act 2017
An Act to amend legislation relating to human rights, and for other purposes
1 September 2021
Includes amendments up to Act No. 13, 2021
human-rights-legislation-amendment-act-2017.pdf, p.1
3 November 2021
Compilation information and notes on amendments.
1 Short title
human-rights-legislation-amendment-act-2017.pdf, p.5
Identifies the Act as a specific legislation
The Act is the Human Rights Legislation Amendment Act 2017.
2 Commencement
1 Section 1
The Act begins on the day after it receives Royal Assent.
Temporal relationship between the Act and its commencement
13 April 2017
3 Schedules
Legislation in schedules is amended or repealed according to its terms.
1 Subsection 3(1)
Defines 'acts, omissions or practices' in relation to a complaint.
human-rights-legislation-amendment-act-2017.pdf, p.6
Establishes a class hierarchy for complaints
2 Subsection 3(1) (definition of alleged unlawful
Repeal definition of alleged unlawful discrimination
3 Subsection 8(2)
3(2) Subsection 8(2)
Members must co-operate with each other to achieve common objectives.
3(3) Subsection 8(2)
Does not affect the operation of section 44
4 After subsection 8(6)
Powers of Commission must be exercised by President
Commission's powers must be exercised by President
President must exercise Commission's powers
5 At the end of section 8A
The President has power to do all things necessary or convenient for the performance of his or her functions.
6 Paragraph 11(1)(f)
Commission to endeavour by conciliation to effect a settlement of matters that gave rise to inquiry
human-rights-legislation-amendment-act-2017.pdf, p.7
7 After subsection 19(2B)
Prohibition on delegating certain powers
Subsection (2) does not allow the President to delegate a power that can be exercised by the President because of subsection 8(6A)
The President cannot delegate this power.
Overlaps with the power that can be exercised by the President
Classifies the power as one that requires human oversight
The power is classified as one that requires human oversight.
8 After paragraph 20(2)(b)
Commission must be satisfied that inquiry is not warranted
9 After subparagraph 20(2)(c)(ii)
No reasonable prospect of settlement by conciliation
10 At the end of section 20
10(9) At the end of section 20
Act fairly in the performance of functions
10(10) At the end of section 20
Act expeditiously in dealing with a complaint and finish within 12 months.
10(11) At the end of section 20
No duty imposed on Commission by subsections (9) and (10)
10(12) At the end of section 20
Legally enforceable obligation to observe rules of natural justice
Obligation to observe rules of natural justice
Subsection (11) does not affect a legally enforceable obligation to observe the rules of natural justice.
11 After section 20
human-rights-legislation-amendment-act-2017.pdf, p.8
20A Reports to the Minister
Commission may report to Minister on inquiry into human rights issue.
12 Paragraph 31(b)
13 After paragraph 32(3)(b)
14 After subparagraph 32(3)(c)(ii)
human-rights-legislation-amendment-act-2017.pdf, p.9
15 At the end of section 32
15(4) At the end of section 32
The Commission must act fairly in the performance of its functions.
15(5) At the end of section 32
Act expeditiously and complete complaint within 12 months.
15(6) At the end of section 32
No duty imposed on Commission by subsections (4) and (5)
15(7) At the end of section 32
(7) Subsection (6) does not affect a legally enforceable obligation to observe the rules of natural justice.
16 After section 32
32A Reports to the Minister
Commission may report to Minister on inquiry into discrimination
17 Section 46
human-rights-legislation-amendment-act-2017.pdf, p.10
18 Section 46C (heading)
Repeal heading and substitute with new text.
46C Functions of the Commission that are to be performed by the
Functions of the Commission that are to be performed by the Commissioner etc.
19 Paragraph 46C(1)(a)
20 After subsection 46C(2)
20(2A) After subsection 46C(2)
Commissioner must submit reports to Minister on human rights enjoyment and exercise.
20(2B) After subsection 46C(2)
Reports to be submitted by the Commissioner regarding Native Title Act 1993 and its impact on human rights.
The Commissioner is required to submit reports
Reports must be submitted after subsection 46C(2)
Reports must be submitted after the subsection has occurred
The Commissioner submits reports regularly
20(2C) After subsection 46C(2)
Recommendations for action to ensure human rights enjoyment and exercise.
(2C) A report under subsection (2A) or (2B)
Defines a temporal interval for the report.
Implies that the State must take action.
Propagates the obligation to take action.
21 Subsections 46C(3) and (4)
22 Section 46M
Omit specified paragraph and substitute with new subsections.
23 Section 46MB
Repeal of heading and substitution with new title
46MB Functions of Commission that are to be performed by the
Functions of Commission that are to be performed by the National Children’s Commissioner etc.
human-rights-legislation-amendment-act-2017.pdf, p.11
Imposes a duty on the National Children’s Commissioner etc.
24 Paragraph 46MB(1)(a)
25 Subsection 46MB(3)
25(3) Subsection 46MB(3)
Submit reports to the Minister on human rights matters related to children in Australia.
25(3A) Subsection 46MB(3)
Recommendations for action to ensure human rights enjoyment by children in Australia
Imposes a duty on the National Children’s Commissioner
26 Subsections 46MB(4), (5) and (6)
27 Subsection 46P(1)
27(1) Subsection 46P(1)
Written complaint alleging unlawful discrimination may be lodged with the Commission.
27(1A) Subsection 46P(1)
Must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
Obligation to comply with the requirement.
The alleged acts, omissions or practices must be reasonably arguable that they are unlawful discrimination.
It is obligatory to argue that the alleged acts, omissions or practices are unlawful discrimination.
If the alleged acts, omissions or practices are reasonably arguable to be unlawful discrimination, then it must be reasonably arguable that they are unlawful discrimination.
The alleged acts, omissions or practices are reasonably arguable that they are unlawful discrimination.
It is reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination.
The requirement must be within a reasonable time frame of being unlawful discrimination.
There is a reasonable time frame between the alleged acts, omissions or practices and them being unlawful discrimination.
If the alleged acts, omissions or practices are reasonably arguable to be unlawful discrimination, then they must be reasonably arguable to be unlawful discrimination in a wider context.
There is a reasonable argument for the alleged acts, omissions or practices being unlawful discrimination in a wider context.
The requirement is a subclass of a more general concept of unlawful discrimination.
27(1B) Subsection 46P(1)
Must provide details of alleged acts, omissions or practices.
28 Paragraphs 46P(2)(a), (b) and (c)
Omit 'unlawful discrimination' and substitute 'acts, omissions or practices'
human-rights-legislation-amendment-act-2017.pdf, p.12
29 Subsection 46PC(1)
30 Subsection 46PE(3)
31 Subsection 46PF(1)
31(1) Subsection 46PF(1)
The President must consider a complaint and attempt to conciliate it.
The President must consider a complaint.
31(1A) Subsection 46PF(1)
The President may inform themselves of necessary facts and circumstances.
President has knowledge of necessary facts and circumstances
President may inform themselves with possibility of forming opinion
31(1B) Subsection 46PF(1)
Notification requirements must be complied with after terminating a complaint.
32 Subsection 46PF(3)
Omit 'alleged unlawful discrimination', substitute 'alleged acts, omissions or practices'
Prohibits alleged unlawful discrimination
Substitute 'alleged acts, omissions or practices'
33 Subsection 46PF(3) (note)
Omit 'unlawful discrimination', substitute 'acts or omissions'
34 Subsection 46PF(4)
human-rights-legislation-amendment-act-2017.pdf, p.13
35 Paragraph 46PF(5)(a)
Omit 'unlawful discrimination', substitute 'acts, omissions or practices'
36 At the end of section 46PF
36(6) At the end of section 46PF
Act fairly to complainant and respondent in dealing with complaint.
36(7) At the end of section 46PF
Must notify certain persons of a complaint
36(8) At the end of section 46PF
Notify respondent or other person upon specified events
36(9) At the end of section 46PF
Definition of adverse allegation for purposes of subsections (7) and (8)
Applies to explicit class/type/subclass hierarchies
36(10) At the end of section 46PF
The President must act expeditiously in dealing with a complaint and use best endeavours to finish within 12 months.
The President has an obligation to act expeditiously.
36(11) At the end of section 46PF
No enforceable duty on the President imposed by subsections (6) and (10)
36(12) At the end of section 46PF
(12) Subsection (11) does not affect a legally enforceable obligation to observe the rules of natural justice.
37 Before subsection 46PH(1)
human-rights-legislation-amendment-act-2017.pdf, p.14
Imposes a duty on the State to terminate complaints discretionally
38 Paragraph 46PH(1)(a)
Omit 'unlawful discrimination is', substitute 'acts, omissions or practices are'.
human-rights-legislation-amendment-act-2017.pdf, p.15
39 Paragraph 46PH(1)(b)
40 Paragraph 46PH(1)(b)
41 Paragraph 46PH(1)(c)
The President must be satisfied that an inquiry is not warranted.
41A Paragraph 46PH(1)(h)
41B Paragraph 46PH(1)(i)
42 At the end of subsection 46PH(1)
Consideration of exemption applies to determination of non-unlawful discrimination
An act, omission or practice may not be unlawful discrimination
43 After subsection 46PH(1)
43(1A) After subsection 46PH(1)
43(1B) After subsection 46PH(1)
Must terminate complaint if trivial, vexatious, misconceived or lacking in substance.
Obligation to terminate complaint if no reasonable prospect of settlement by conciliation
43(1C) After subsection 46PH(1)
Must terminate complaint if no reasonable prospect of Federal Court/Federal Circuit Court satisfaction
43(1D) After subsection 46PH(1)
Complaint may be terminated at any time.
44 Before subsection 46PH(2)
human-rights-legislation-amendment-act-2017.pdf, p.16
45 Subsection 46PH(2)
46 Subsection 46PH(2)
Omit ‘that decision’ (wherever occurring)
47 Before subsection 46PH(3)
Must include a statement about cost awards in proceedings under section 46PO.
48 Before subsection 46PH(4)
49 Sections 46PJ and 46PK
Repeal sections and substitute with new ones.
human-rights-legislation-amendment-act-2017.pdf, p.17
46PJ President may hold conferences
46PJ(1) President may hold conferences
The President may hold a conference to conciliate a complaint.
46PJ(2) President may hold conferences
The President may invite people to attend a conference.
46PJ(3) President may hold conferences
The President must require a person to attend a conference.
46PJ(4) President may hold conferences
President must provide notice with conference details and effect of subsection (5)
Notice under subsection (3) must specify place, time, and effect of subsection (5)
46PJ(5) President may hold conferences
Refusal to attend a conference after notice is an offence.
Prohibition of refusing to attend a conference after notice.
(5) A person commits an offence if: (a) the person has been given a notice under subsection (3) requiring the person to attend a conference; and (b) the person refuses or fails to comply with the requirement.
Notice overlaps with refusal to attend conference.
The refusal occurs after the notice expires.
There is an obligation to attend a conference after notice.
If the person refuses, they commit an offence.
46PJ(6) President may hold conferences
Subsection (5) is an offence of strict liability.
46PJ(7) President may hold conferences
The Commonwealth must pay a reasonable sum for the person's expenses of attendance.
The Commonwealth has an obligation to pay the person's expenses.
46PK Proceedings at conferences
human-rights-legislation-amendment-act-2017.pdf, p.18
46PK(1) Proceedings at conferences
Prevents admissibility of evidence from reconciliation proceedings in other cases. Conference proceedings must be conducted in an appropriate manner.
(1) Evidence of anything said or done by a person in the course of the conciliation of a complaint in accordance with section 46PF is not admissible in any proceedings relating to the alleged acts, omissions or practices.
Prevents admissibility within a specific time frame
Rebuts admissibility of evidence from reconciliation proceedings
Obligation to conduct proceedings appropriately.
(1) Subject to this section, a conference mentioned in subsection 46PJ(1) is to be conducted in such manner as the person presiding at the conference considers appropriate.
The person presiding must conduct the proceedings in an appropriate manner.
Conference proceedings must occur within a specific timeframe.
The conference occurs within a specific timeframe.
Conference proceedings must occur after a specific event.
The conference occurs after a specific event.
Conference proceedings must spread to other entities.
The conference spreads to other entities.
Conference proceedings must recognize specific entities.
The conference recognizes specific entities.
46PK(2) Proceedings at conferences
Conference proceedings must be conducted in private. Exemption from subsection (1) for section 46PSA.
Prohibition of public conference proceedings.
(2) The conference is to be conducted in private.
46PK(3) Proceedings at conferences
(3) The person presiding at the conference...
The person presiding must take all reasonable steps...
46PK(4) Proceedings at conferences
No representation allowed at conferences without consent.
(4) Unless the person presiding at the conference consents:
an individual is not entitled to be represented at the conference by another person;
a body (whether or not incorporated) is not entitled to be represented at the conference otherwise than by a person who is an officer or employee of the body.
Implication of consent for representation
46PK(5) Proceedings at conferences
Entitlement to nominate another person to attend on behalf of an individual with a disability.
46PK(6) Proceedings at conferences
Individuals with disabilities can nominate another person to assist at conferences.
Individuals with disabilities have a right.
Assistance occurs during the conference.
46PK(7) Proceedings at conferences
Definition of disability for purposes of this section
For the purposes of this section, disability has the same meaning as...
Disability is defined for purposes of this section
Obligation to prohibit admitting things said in conciliation
...Things said in conciliation are not admissible in evidence in certain proceedings
Certain proceedings have a prohibition on admitting things said in conciliation
Certain proceedings have a conditional prohibition on admitting things said in conciliation
Certain proceedings have a prohibition on admitting things said in conciliation within a temporal interval
50 Section 46PL
human-rights-legislation-amendment-act-2017.pdf, p.19
51 Subsection 46PM(1)
Prohibits the omission of certain phrases.
52 Paragraph 46PO(1)(a)
Substitute paragraph 46PF(1)(b) or section with ‘or’.
53 After subsection 46PO(3)
Application must not be made unless court grants leave or complaint is terminated under certain conditions.
Prohibition of making an application without court leave or termination of complaint.
54 At the end of subsection 46PO(4)
Award costs in proceedings under this section
human-rights-legislation-amendment-act-2017.pdf, p.20
55 Subsection 46PP(3)
Omit specific text from existing provision.
56 Subsection 46PS(1)
Insertion of paragraph 46PF(1)(b) after 'terminated under'
57 After section 46PS
Court may have regard to an offer to settle when deciding whether to award costs.
Offer was or is rejected during the proceedings
Proceedings have been instituted under section 46PO against a respondent to a terminated complaint
Court may consider the offer when deciding whether to award costs
Court may diffuse the offer to settle into consideration of costs
Court may use artificial intelligence to consider the offer when deciding whether to award costs
58 Application of amendments
Amendments apply in relation to inquiries made after commencement.
Obligation on the State to apply amendments.
59 Transitional—tabling of reports
Continues to apply previous section despite amendment.
human-rights-legislation-amendment-act-2017.pdf, p.22
New amendment does not affect previous section.
1 Section 209
Repeal section and substitute with new content.
human-rights-legislation-amendment-act-2017.pdf, p.23
209 Reports by Aboriginal and Torres Strait Islander Social Justice
Commissioner must report to the Commonwealth Minister about the operation of this Act or its effect on human rights.
This Act requires the Commissioner to report.
The Commissioner is responsible for reporting.
The Commissioner has a responsibility to report.
The Commissioner's responsibility includes reporting.
12 Apr
human-rights-legislation-amendment-act-2017.pdf, p.27
Consequential Amendments and Transitional Provisions
1 Mar 2021
Amendment history for Human Rights Legislation Amendment Act 2017