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Human Rights Commission Act 1999

Part IV - Complaints and Investigations

25. Complaints about contraventions of human rights
26. Complaints about unfair discrimination
27. Discretion whether to investigate
28. Investigation of Commission's own motion
29. Letters from prisoners or patients
30. Investigation procedure
31. Conciliation
32. Power to require information to be provided
33. Disclosure of certain matters not to be required
34. Procedure after investigation
35. Functions of Proceedings Commissioner
36. Proceedings
37. Right of Proceedings Commissioner to appear in High Court
38. Remedies
39. Damages
40. Power to make interim order
41. Substantial merits, evidence and hearings

Complaints about contravention of human rights

Any person may make a complaint to the Commission, including a representative complaint on behalf of other persons with a similar cause of complaint, about a contravention or alleged contravention of human rights.

Complaints about unlawful discrimination

Any person may make a complaint to the Commission, including a representative complaint on behalf of other persons with a similar cause of complaint, about unfair discrimination.

Discretion whether to investigate

(1) The Commission must investigate any complaint received by it, unless, before commencing or during the investigation it decides not to do so because -

the complaint is not within the jurisdiction of the Commission;
the complaint is trivial, frivolous, vexatious or not made in good faith;
the complainant, or a person acting on his or her behalf, has brought proceedings relating to the same matter in a court or tribunal;
the complainant has available another remedy or channel of complaint that the complainant could reasonably be expected to use;
the complainant has not a sufficient interest in the complaint;
the person alleged to be aggrieved does not desire that the complaint be investigated;
the complaint has been delayed too long to justify an investigation;
the Commission has before it matters more worthy of its attention; or
the resources of the Commission are insufficient for adequate investigation,

and may defer or discontinue an investigation for any of these reasons.

(2) No decision by the Commission to decline, defer or discontinue an investigation into a complaint affects the Commission's power to inquire generally into a matter of its own initiative.

Investigation of Commission's own motion

The Commission may investigate of its own motion any act, omission, practice, requirement or condition which is or appears to be unfair discrimination or a contravention of human rights or which has been referred to it by the High Court.

Letters from prisoners or patients

Notwithstanding any written law to the contrary (other than the Constitution), a letter written by -

a person in custody; or
a patient in a hospital,

and addressed to the Commission must be forwarded immediately, unopened and unaltered, to the Commission by the person in charge of the place or institution where the writer of the letter is detained or in which he or she is a patient.

Investigation procedure

(1) Before investigating any matter within its jurisdiction, the Commission must inform -

the complainant (if any);
the person alleged to be aggrieved, if not the complainant;
the person to whom the investigation relates; and
in relation to an investigation relating to a department the person holding or performing the duties of the office of Secretary of the department, of the Commission's intention to make the investigation.

(2) An investigation under this Act must be conducted in private.

(3) The Commission may hear or obtain information from any person whom the Commission considers can assist in the investigation and may make whatever enquiries it thinks fit.

(4) Nothing in this Act requires the Commission to hold any hearing and no person is entitled as of right to be heard by the Commission.

(5) The Commission must not in any report make any comment that is adverse to or derogatory of any person to whom a complaint relates without -

providing the person with a reasonable opportunity of being heard; and
fairly setting out in the report the person's defence (if any).

(6) In conducting an investigation, the Commission is not bound by the strict rules of evidence or procedure, but must act fairly at all times.

Conciliation

(1) The Commission may, before commencing an investigation, or during or after an investigation, call a conciliation conference of the parties to the conciliation by formally requesting, by post, telephone, facsimile, electronic mail or otherwise, the attendance of each party at a time and place specified.

(2) If a person fails to comply with a request made under subsection (1) the Commission may issue a summons requiring the person to attend a conciliation conference at a time and place specified in the summons.

(3) The objectives of a conciliation conference are to identify the matters at issue between the parties and to use the best endeavors of the Commission to secure a settlement between the parties on the matters at issue.

Power to require information to be provided

(1) Subject to this section and to section 33, for the purposes of an investigation a Commissioner may, by notice in writing, require any person to furnish any information, or to produce any document, record or thing in the possession or under the control of that person that is in the opinion of the Commissioner relevant to the investigation.

(2) If a Commissioner has reason to believe that a person is able to give information relevant to an investigation, the Commissioner may, by notice in writing, require the person to attend before him or her, on a date and at the time and place specified in the notice, to answer questions relevant to the investigation.

(3) For the purposes of an investigation the Commission and the Commissioner have the same powers as a judge of the High Court in respect of the attendance and examination of witnesses and the production of documents.

(4) Notwithstanding anything in any other written law (other than the Constitution), a person is not excused from giving information, producing a document, record or thing or answering a question when required to do so pursuant to this Act, if the only ground for refusal is that the giving of the information, the production of the document, record or thing or the answer to the question-

would contravene a provision of a written law, would be contrary to the public interest, or might tend to incriminate the person or make him or her liable to a penalty; or
would disclose legal advice furnished to a Minister or a department,

but the information, document, record, thing or answer is not admissible in evidence against the person in proceedings other than proceedings for an offence against section 47.

(5) Subject to section 33,a person is not excused from giving information, producing a document, record or thing or answering a question when required to do so pursuant to this Act on the ground that -

a claim of State privilege could be made in relation to the material concerned; or
the material is commercially sensitive.
Except on the trial of any person for perjury in respect of his or her sworn or affirmed testimony, or proceedings for an offence against section 47, no statement made or answer given by that or any other person in the course of any inquiry by or proceedings before the Commission or a Commissioner is admissible in evidence against any person in any court or at any inquiry or other proceedings, and no evidence in respect of proceedings before the Commission or a Commissioner must be given against any person.

Disclosure of certain matters not to be required

(1) If the Attorney General certifies that the disclosure of information concerning a specified matter (including the furnishing of information in answer to a question or the disclosure to the Commission or a Commissioner of the contents of a specified document or record or the production of a specified thing) would be contrary to the public interest because it would -

seriously harm the commercial interests of any person or body;
prejudice the security, defence or international relations of the State; or
involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet,

the Commission or a Commissioner cannot require a person to give information concerning the matter, to answer the questions concerning the matter or to produce the document, record or thing.

(2) The Commission must withhold publication of any written material which comes into its possession in the course of an investigation and which is the subject of a certificate by the Attorney General under subsection (1).

Procedure after investigation

(1) After completing an investigation, the Commission must inform the parties of the result of the investigation and whether, in its opinion-

the complaint does not have substance, or cannot be established to have substance or, in relation to an investigation of the Commission's own motion, that the matter ought not to be proceeded with; or
the complaint has substance or, in relation to an investigation of the Commission's own motion, that the matter ought to be proceeded with.

(2) If the Commission is of the opinion that a complaint does not have substance, or cannot be established to have substance, but considers nonetheless that it may be possible to reach a settlement between any of the parties concerned, the Commission may act as a conciliator and use its best endeavors to reach a settlement of the complaint.

(3) If the Commission is of the opinion that a complaint does not have substance, or cannot be established to have substance, or if the Commission pursuant to section 27(1) decides not to investigate, or investigate further, a complaint, it must inform the complainant of the complainant's right to bring civil proceedings before the High Court-

in relation to a complaint of unfair discrimination - pursuant to section 36 of this Act;
in relation to a complaint of contravention of the Bill of Rights - pursuant to section 41 of the Constitution.

(4) If the Commission has investigated a complaint and is of the opinion that the complaint has substance, it must act as conciliator in relation to the complaint and use its best endeavors to effect a settlement in relation to the complaint.

(5) For the purposes of this section, "settlement" includes a satisfactory assurance by the person to whom a complaint or investigation relates against repetition of the conduct that was the subject - matter of the complaint or the investigation or against conduct of a similar kind.

(6) Whether or not it takes any of the actions referred to in subsection (2), (3) and (4), the Commission may -

advise the parties of their respective rights, including, in relation to a complaint of contravention of the Bill of Rights, the complainant's right to bring proceedings in the High Court under section 41 of the Constitution;
refer to the complaint and, if it considers appropriate, the result of the investigation to another competent authority;
make recommendations to the competent authority, proposing amendments to or reform of any laws, regulations or administrative provisions or practices which have created the difficulties or hardship encountered by the complainant or the aggrieved person;
recommend to the relevant authority, in respect of a person who in the opinion of the Commission has contravened human rights, either prosecution of the person or the taking of other action, and the authority must consider the recommendation, take such actions as it deems appropriate and advise the Commission.

Functions of Proceedings Commissioner

(1) The functions of the Proceedings Commissioner include -

in relation to a complaint or an investigation of the Commission's own motion - deciding whether an application should be made for an order under section 40 and, if so, making the application;
in relation to a complaint resulting from a failure by a party to observe the terms of a settlement on a previous occasion - deciding whether to institute proceedings against the party and, if so, instituting the proceedings;
in a relation to a complaint or an investigation of the Commission's own motion, if it appears to the Proceedings Commissioner that a settlement has not been reached and that no action or further action by the Commission is likely to facilitate a settlement - deciding whether to institute proceedings against the person against whom the complaint was made or to whom the investigation related, and if so, instituting the proceedings.

(2) The Proceedings Commissioner must not institute proceedings against a person referred to in paragraph (b) or (c) of subsection (1) unless the Commissioner has given the person an opportunity to be heard.

Proceedings

(1) Civil proceedings in the High Court lie at the suit of the Proceedings Commissioner against a person referred to in paragraph (b) or (c) of section 35 (1) for unfair discrimination or a contravention of the Bill of Rights.

(2) The Proceedings Commissioner may, under subsection (1), bring proceedings on behalf of a class of persons if the Commissioner considers that a person referred to in paragraph (b) or (c) of section 35 (1) has engaged in unfair discrimination which affects that class or has contravened the Bill of Rights in relation to that class.

(3) If proceedings are commenced by the Proceedings Commissioner under subsection (1), neither the complainant (if any) nor the aggrieved person (if not the complainant) may be an original party to the proceedings, or, unless the High Court so orders, join or be joined in the proceedings.

(4) Notwithstanding subsection (1), the complainant (if any) or the aggrieved person (if not the complainant) may bring proceedings before the High Court if -

the Commission is of the opinion that the complaint does not have substance or cannot be established to have substance or that the matter ought not to be proceeded with;
the Commission pursuant to section 27(1) decides not to investigate, or to investigate further, a complaint; or
the Proceedings Commissioner would be entitled to bring proceedings, but -

(i) agrees to the complainant, in the case of a complaint, or an aggrieved person, in relation to an investigation of the Commission's own motion, bringing proceedings; or

(ii) decides not to take proceedings.

(5) Nothing in this section limits the right of any person to apply to the High Court for redress for a contravention of the Bill of Rights under section 41 of the Constitution.

Right of Proceedings Commissioner to appear in High Court

(1) The Proceedings Commissioner may appear and be heard in the High Court, the Court of Appeal or the Supreme Court in relation to any proceedings under section 36, whether or not the Proceedings Commissioner is or was a party to the proceedings.

(2) With leave of the court, tribunal or arbitrator, the Proceedings Commissioner may appear and be heard in relation to any proceedings before a court, tribunal or arbitrator in which human rights are in issue.

(3) If the Proceedings Commissioner appears before any court, tribunal or arbitrator, he or she may, unless the rules of procedure of the court, tribunal or arbitrator otherwise provide -

appear in person or by a legal practitioner;
adduce evidence and cross-examine witnesses, unless the proceedings are by way of appeal,

Remedies

(1) In any proceedings before the High Court brought under section 36 by the Proceedings Commissioner, a complainant or an aggrieved person, the plaintiff may seek any or all of the remedies described in subsection (2) of this section.

(2) If in any proceedings as mentioned in subsection (1) the High Court is satisfied on the balance of probabilities that the defendant has engaged in unfair discrimination or has contravened the Bill of Rights, it may grant one or more of the following remedies-

a declaration that the defendant has engaged in unfair discrimination or contravened the Bill of Rights;
an order restraining the defendant from continuing or repeating the conduct complained of or causing or permitting others to engage in conduct of the same kind or of any similar kind specified in the order;
damages
an order that the defendant perform any act specified in the order with a view to redressing any loss or damage suffered by the complainant or the aggrieved person or to preventing conduct of a similar kind in the future;
a declaration that a contract requiring performance of anything that constitutes unfair discrimination or contravenes the Bill of Rights is void and unenforceable;
such other relief as the High Court thinks fit.

(3) It is not a defence to proceedings under this section that the unfair discrimination or contravention of the Bill of Rights was unintentional or without negligence on the part of the defendant, but the High Court must take the conduct of the defendant into account in deciding what remedy, if any, to grant.

(4) In any proceedings under section 36, the High Court may make such award as to costs as it thinks fit, whether or not it grants any other remedy.

(5) If the Proceedings Commissioner is a party to proceedings, any costs in the proceedings awarded against the Commissioner under subsection (4) must be paid by the Commission and the Commission is not entitled to be indemnified by the complainant or, as the case may be, the aggrieved person for such costs.

Damages

(1) In proceedings under section 36 for unfair discrimination or a contravention of the Bill of Rights, the High Court may award damages against the defendant in respect of any one or more of the following -

pecuniary loss suffered or expense incurred by the complainant or the aggrieved person as a result of the conduct complained of;
expenses reasonably incurred by the complainant or the aggrieved person in seeking redress for the conduct complained of;
loss of any benefit, whether or not of a monetary kind, which the complainant or the aggrieved person might reasonably have been expected to obtain but for the conduct complained of;
humiliation, loss of dignity and injury to feelings of the complainant or the aggrieved person.

(2) Subject to subsection (3), the Commission must pay any damages recovered by the Proceedings Commissioner under this section to the complainant or the aggrieved person on whose behalf the proceedings were brought.

(3) If the complainant or the aggrieved person is an unmarried minor or a person of unsound mind the Proceedings Commissioner may, in his or her discretion, pay the damages to the Public Trustee or to any person or trustee corporation acting as the trustee of the property of that person.

Power to make interim order

(1) In respect of any matter which is the subject of an investigation by the Commission and in which the High Court has or may have jurisdiction, a judge may make an interim order if he or she is satisfied that it is necessary in the interests of justice to make the order to preserve the position of the parties pending the result of the investigation and the final determination of any proceedings resulting from the investigation.

(2) An application for an interim order under subsection (1) may be made by the Proceedings Commissioner or, in a case to which section 36(4) applies, the complainant or the aggrieved person.

(3) A copy of an application under subsection (3) must be served on the defendant,

who must be given an opportunity to be heard before a decision on the application is made.

(4) If an interim order has been made, the defendant may appeal to the Court of Appeal to rescind or vary the order, unless the order was made with the defendant's consent.

Substantial merits, evidence and hearings

In any proceedings under this Act before the High Court, the court -

must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities;
may receive as evidence any statement, document, information or matter that will or might in the court's opinion assist it to deal effectively with the matters before it, whether or not it would be admissible but for this section;
may, if it considers it desirable to do so -

(i) order that any hearing held by it be heard in private, either in whole or part;

(ii) make an order prohibiting the publication of any report or account of the evidence or other proceedings before it (whether heard in public or in private) either in whole or in part;

(iii) make an order prohibiting the publication of any book or document produced at the hearing.

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