The collective dimension of federal anti-discrimination proceedings in Australia

Standing

Under the statutory framework governing federal anti-discrimination claims, the burden falls exclusively on the individual who has experienced the discriminatory conduct to pursue the matter, aligning the statutory regime with the general law requirement of having a ‘special interest’ in order to pursue litigation (Australian Conservation Foundation Inc v Commonwealth [1980] 146 CLR 493). The statutory right of action arises from the status of being an ‘aggrieved person’ (Australian Human Rights Commission Act 1986 (Cth) s 46P(2)(a)). In order to make a complaint, an individual must demonstrate objectively ‘that they have a grievance that is beyond that which will be suffered by an ordinary member of the public’ and includes a person ‘who has a genuine grievance because the action prejudicially affects their interests’ (Access for All Alliance v Hervey Bay City Council [2007] FCA 615). A grievance that arises from an intellectual or emotional concern, however, is not regarded as sufficient (Cameron v Human Rights & Equal Opportunity Commission [1993] 46 FCR 509).

Adding complexity to the standing question is the fact that the two stages of the dispute resolution framework for federal anti-discrimination claims entail different approaches to standing. There is a disjuncture between the broad capacity of individuals to lodge a complaint with the Commission and the ability to get an enforceable outcome through the court system (which relies solely on being ‘an affected person’). A written complaint may be lodged with the Commission, for example, not only by persons aggrieved by the alleged unlawful discrimination but also by a person or trade union on behalf of one or more such persons (Australian Human Rights Commission Act 1986 (Cth) s 46P(2)(c)). However, an application to the Federal Court or the Federal Circuit Court can only be made by an ‘affected person in relation to the complaint,’ being the person on whose behalf the complaint was lodged (Australian Human Rights Commission Act 1986 (Cth) ss 3, 46PO). Hence, the individual who experienced the discriminatory conduct is able to use the support of third parties in making a complaint and seeking to have the matter conciliated at the Commission, but is not able to avail themselves of such support when the matter requires litigation to resolve the complaint. A number of institutions have recommended that a consistent approach be adopted between those entitled to lodge a complaint with the Commission and those that can commence court proceedings (see Australian Human Rights Commission, 2011: para 65). This disjuncture between the two stages has also been identified as having the potential to encourage respondents not to resolve a complaint brought by a representative body at the conciliation stage, based on their awareness of this inconsistency, and of the fact that individual complainants on their own are less likely to be able to fund any subsequent court proceedings, or to run the risk of an adverse costs order (see Attorney-General’s Department, 2009, p. 113).

The two anti-discrimination cases that best illustrate the limitations of the approach adopted by Australian Courts to standing in respect of federal discrimination claims are Access for All Alliance v Hervey Bay City Council [2007] FCA 615, and IW v City of Perth (1997) 191 CLR 1. In the former case, Access for All Alliance (‘the Association’) brought a claim against the Hervey Bay City Council alleging non-compliance with the Disability Standards for Accessible Public Transport (2002), pursuant to the Disability Discrimination Act 1992 (Cth). The Council sought to have the claim summarily dismissed on the basis that the Association lacked standing to bring the proceedings. The Federal Court of Australia agreed. Justice Collier found Access for All Alliance to have merely an intellectual or emotional interest in the subject matter of the proceedings. In the Court’s findings, her Honour determined that ‘the interest of the applicant…[was] no more than that of an ordinary member of the public’, and that the applicant was ‘not affected to an extent greater than an ordinary member of the public, nor would the applicant gain an advantage if successful nor suffer a disadvantage if unsuccessful’ (Access for All Alliance v Hervey Bay City Council [2007] FCA 615: para 67).

While the remit of the Association included all members of the community, those that were at risk of not having equitable and dignified access were those of its members with disabilities. Furthermore, the fact that some members of the Association were, as the judge described (Access for All Alliance v Hervey Bay City Council [2007] FCA 615: para 73), simply concerned citizens, should not detract from the capacity of the Association to represent the interests of its members, whose access could be adversely affect by the Council’s decision-making. The judge noted (Access for All Alliance v Hervey Bay City Council [2007] FCA 615: para 73) that the individual members of the Association who were aggrieved by the conduct of the respondent could bring their own proceedings, or alternatively combine to bring representative proceedings. However, this approach simply returns the burden of pursuing the claim to the individual (or the group of individuals) affected by the conduct. In reality, the Association had no interests to represent in the litigation itself other than the interests of its members with a disability whose access could be adversely affected by the Council’s decision-making, despite the Association’s membership being broader than this group alone.

In IW v City of Perth (1997) 191 CLR 1, three members of the High Court rejected the capacity of an individual (IW) to challenge the refusal of planning permission by the Council, where approval had been sought by the association, People Living with AIDS Inc (‘PLWA’), for a drop-in centre. Overall the appeal was dismissed on a number of different bases, including that there was no refusal of service, as well as the standing issue. Despite IW’s membership of the association, and the benefits he would derive if the approval was granted, the applicant was seen as not being in a position to assert that the Council engaged in unlawful discrimination in the exercise of its discretion to grant or withhold planning approval for PLWA’s drop-in centre, as he was not the person who was, in fact, refused the service. Dawson and Gaudron JJ stated (IW v City of Perth (1997) 191 CLR 1: para 25): ‘if anyone was the recipient of treatment which might constitute discrimination, it was the PLWA, not the appellant. Accordingly, the appellant was not an “aggrieved person” within the meaning of that expression’. The obstacle to PLWA bringing the proceedings, however, was that it did not have a disability to which the refusal could be causally related. The minority judgments in IW v City of Perth shows a less artificial approach to the relationship between PLWA and its members, by recognizing (IW v City of Perth [1997] 191 CLR 1: paras 30, 77; per Toohey and Kirby JJ) that the refusal to provide services to the association was in effect a refusal to provide them to the members. In accordance with this approach, the PLWA in making the application for planning approval was viewed as making the application for the benefit of its members, including IW. Hence, the minority view saw IW as having an interest in the potential opportunity to use the premises if permission was granted, and that interest was prejudicially affected by the refusal.

Both these cases illustrate how the approach of Australian courts creates an arbitrary divide between the organization seeking to represent the interests of certain individuals and the interests of those individuals themselves. Interestingly, Australian courts have occasionally adopted a less restrictive approach to standing in the case of racial vilification claims. For example, in Executive Council of Australian Jewry v Scully [1998] 79 FCR 537 (“Scully”), the Federal Court of Australia recognized that the vice president of the Executive Council (Mr Jones) had a special interest in those matters which the representative body was empowered by its members to pursue. The membership of the Executive Council (an unincorporated association) was made up of the Jewish community councils in each of Australia’s six states and the Australian Capital Territory as well as a number of national organizations with an interest in particular aspects of Judaism. The conduct alleged to constitute racial hatred took place in Launceston (Tasmania), while the vice president of the Council of Australian Jewry lived in Sydney. In this case, the Court found that the vice president was a ‘person aggrieved’, despite the fact that he lived in Sydney, not Launceston, and that his ‘claim of special affection’ did not depend on his place of residence. The vice president had offered himself as a complainant in his role as the executive vice president of a body that represented 85% of the Jewish population of Australia, and as a senior officer of the Council, with major responsibility for the achievement of its objects. His role encompassed ‘representing Australian Jewry, including Jews resident in the Launceston district’. To describe Mr Jones’ connection with the matter simply as ‘a Jewish Australian living in Sydney’ was to ignore his ‘representative role’ (Executive Council of Australian Jewry v Scully [1998] 79 FCR 537: 549). The Scully case offers an example of how a more beneficial approach to standing could operate in federal anti-discrimination proceedings, to permit organizations to represent the collective interests of its members. However, this approach has not been replicated in other proceedings.

As a consequence of the conventional approach adopted by Australian courts to standing, public interest groups and non-government organizations (‘NGOs’) have generally been excluded from anti-discrimination proceedings on the basis that they have ‘merely an intellectual or emotional interest’ in the subject matter. Nor is there the extended standing that is made available through statute in other areas such as environmental law. For example, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 487, organizations with a demonstrated connection between the subject matter of the complaint and the objectives of the organization are recognized as able to institute complaints in their own right, in certain circumstances (see Edgar, 2011, pp. 438–439).

A number of reports, such as the parliamentary report reviewing the effectiveness of the Sex Discrimination Act 1984 (Cth) (Standing Committee on Legal and Constitutional Affairs, 2008, rec. 30), the Access to Justice Report (Attorney-General’s Department, 2011, rec. 8.10), and the Productivity commission’s review of the federal disability discrimination legislation (2004, para. 13.4), have advocated for a greater role in instituting proceedings for those organizations with a demonstrated connection to the subject matter of the dispute, as a way of achieving systemic change. However, these recommendations have not yet been adopted by Australian legislators. There has also been some support (Australian Law Reform Commission, 1996: ch 4) for open standing with respect to litigation that has a public element, but the breadth of such an approach has been open to criticism (Cane, 1999, pp. 29–35).

The liberalization of standing to include public interest groups or NGOs with an established connection to the subject matter of the dispute, along similar lines to the environmental law example above, would enable federal discrimination claims to be heard and determined without the necessity of an individual having to bear the burden of pursuing a claim, and without the risks associated with making such a claim. It would also acknowledge the broader community concerns in seeing discriminatory practices identified and addressed for those represented by such organizations. As this approach has not been forthcoming from Australian courts, statutory intervention is required to achieve this outcome.

Representative complaints

The term ‘class action’ is a generic term used to describe proceedings that are brought or conducted by a representative on behalf of a group of individuals against the same respondent (Australian Law Reform Commission, 1988, p. 1). Such proceedings are often referred to ‘as group proceedings, collective actions or representative actions’ (Legg and McInnes, 2014, p. 1). They aim to provide a mechanism for dealing with claims affecting a group of people with a common issue in an efficient manner and to facilitate access to justice by potentially diminishing the power imbalance between a respondent and individual claimants (Australian Law Reform Commission, 1988, para. 69). In the federal jurisdiction, these types of claims are referred to as ‘representative proceedings’. In the Australian commercial context, the use of representative proceedings to achieve efficient economies of scale in litigation is relatively common in certain fields, such as shareholder actions, banking practices and negligent financial advice, and tort claims involving defective medical devices or trials (see, e.g. Legg, 2008).

Since the federal regime for class actions was introduced in Australia in 1992, there has been on average fifteen class actions filed each year (Morabito, 2016, p. 6). While the processes involved with federal representative proceedings in Australia have been identified as similar to their North American counterparts, they do not require the same certification that is necessary in Canada and the United States (Morabito and Caruana, 2013, p. 579), nor is the commonality aspect as stringently applied as in the United States (McCormick, 2013). Commercially oriented representative proceedings, both in Australia and elsewhere, carry with them a strong incentive to settle prior to a full hearing (Legg, 2008, pp. 699–702). Class actions have been used in the United States to deal with some forms of systemic employment discrimination claims (McCormick, 2013, p. 388; Selmi, 2003), although mandatory arbitration clauses can prohibit such actions (Morabito and Caruana, 2013, p. 388). An Australian study (Morabito and Caruana, 2013) has shown that unions have used class actions to enforce workplace rights, although employment discrimination claims have not been a common feature of such actions. A further study (Morabito and Ekstein, 2016, pp. 87–88) shows that approximately one quarter of all federal class actions in Australia involve claims by vulnerable persons, but that such claims are unlikely to be supported by litigation funders and usually rely instead on funding by legal representatives on a ‘no win–no fee’ basis’.

In the Australian anti-discrimination arena, representative complaints have been described (Rees et al., 2014, p. 734) as ‘rarely used’, both because of their complexity and because of the limited remedies they may provide. As such, their potential impact is ‘still largely unexplored,’ due in part to the strict requirements that must be met to pursue such proceedings (Ronalds and Raper, 2012, p.175). The risk of an adverse cost order that weighs against the pursuit of individually initiated discrimination claims applies equally to proceedings of a representative nature. Lack of awareness of how discriminatory conduct may be unlawful, and of the existence of potential group members, also diminishes the likelihood of representative proceedings being initiated. Furthermore, the low level of damages traditionally awarded in anti-discrimination proceedings (Gaze, 2013, p.22) means that the same incentives to settle that exist in other, more commercially-based, class actions do not necessarily exist in the context of representative proceedings under federal anti-discrimination legislation.

To be eligible to lodge a representative complaint with the Commission under any of the federal anti-discrimination statutes, class members must all have complaints against the same person; all the complaints must be in respect of, or arise out of, the same, similar or related circumstances; and, all the complaints must give rise to a substantial common issue of law or fact (Australian Human Right Commission Act 1986 (Cth) s 3). If the matter is not resolved at the Commission, the complaint must be terminated. Then the person(s) affected can commence proceedings in the Federal Court of Australia, where provision is made for ‘representative proceedings’ through Part IVA of the Federal Court of Australia Act 1976 (Cth). Such proceedings necessitate that seven or more persons have claims against the same person, that those claims are in respect of or arise out of the same, similar or related circumstances, and that the claims give rise to a substantial common issue of law or fact (Federal Court of Australia Act 1976 (Cth) s 33C). Although it is not a requirement that each claimant must be seeking an identical remedy, each of the individual claimants must be regarded as having a sufficient interest to commence proceeding in their own right in order to satisfy the standing requirement for commencing a representative proceedings (Federal Court of Australia Act 1976 (Cth) s 33D).

Some high-profile sex discrimination proceedings in Australia that could have been representative proceedings (based on the commonality in the nature of the complaints and the large number of complaints involved) have not been initiated in this way. For example, the formative case of Australian Iron & Steel v Banovic (1989) 168 CLR 165 (‘Banovic’) was initiated under the Anti-Discrimination Act 1977 (NSW) by 34 women alleging sex discrimination in hiring and retrenchment practices at the Port Kembla steelworks in the 1980s. A significant driver for these proceedings not being instituted as representative proceedings was that, at that point in time, such proceedings under state legislation as it was then framed could only lead to a finding on liability but not to an award of damages (Durbach, 1995:236). This limitation has now been rectified (Anti-Discrimination Act 1977 (NSW), s 108). While the group experience and common disadvantage were at the core of their indirect discrimination claim, a representative claim was not a viable option for these claimants due to the limited remedial relief it offered. In a separate action, the Public Interest Advocacy Centre acted in representative proceedings on behalf of approximately 300 other women alleging similar conduct to what was alleged in the Banovic litigation, with their claims upheld by the then Equal Opportunity Tribunal of New South Wales. However, the absence of a damages award necessitated each of the individuals pursuing a claim for damages through the Anti-Discrimination Board (Public Interest Advocacy Centre, 2012). The likelihood of a trade union bringing the representative proceedings on behalf of these women was diminished by the fact that the claims challenged an established industrial practice sanctioned by the union – the ‘last on, first off’ approach to retrenchments. However, the claimants did receive substantial support from a grass roots campaign supporting jobs for women in the region. Nevertheless, it took many years of protracted negotiations – and the prospect of further proceedings – before these claims were ultimately resolved, with the parties agreeing to a confidential mediation settlement (Durbach, 1995).

Similarly to Banovic, the well-known Amery case (New South Wales v Amery [2006] 230 CLR 174), which challenged the practices adopted by the New South Wales Department of Education and Training in setting the pay scales of the State’s permanent and casual public school teachers as indirectly discriminatory on the basis of sex, was pursued by thirteen women individually, rather than as representative proceedings (although by agreement, the complaints were heard together). One of the few examples of representative proceedings under the Sex Discrimination Act 1984 (Cth) is the case of Finance Sector Union v Commonwealth Bank of Australia [1997] EOC 889, where a trade union instituted a representative complaint on behalf of a group of more than one hundred of its Western Australian members, over the implementation of a restructure of the Commonwealth Bank’s retail banking operations, which had an adverse impact on the redundancy eligibility of women on extended leave, or proposing to take leave. However, in terms of the substantive outcome, the allegations of indirect discrimination were ultimately not upheld on appeal.

The first representative proceeding under the Disability Discrimination Act 1992 (Cth) was the case of Scott & Disabled People International (Australia) Ltd v Telstra (1995) EOC 92-717. The complaint was lodged on behalf of all Australians who are deaf or had a total hearing loss, concerning access to the telecommunication network. Although Telstra had settled Mr Scott’s individual complaint by buying him the necessary adaptive technology (at that time being a telephone typewriter (Hannon, 1996)), the representative proceedings were regarded as a necessary step by the organization, Disabled People International (Australia) Ltd (‘DPI’), in order to address the broader systemic issues in the telecommunications network. These proceedings occurred at a time when the Commission itself adjudicated complaints; therefore, the strict rules for establishing the representative nature of the proceedings in the Federal Court were not applicable. Similarly, in Waters v Public Transport Corporation [1991] 173 CLR 349, representative proceedings were instituted by nine individuals and by twenty-nine community organizations representing the interests of persons with disabilities under the applicable Victorian legislation (Equal Opportunity Act 1984 (Vic) s 44). The complaints arose following a direction by the Minister for Transport to introduce a number of changes to the public transport system, including a new ticketing system and the removal of conductors from some trams. As with the Telstra litigation, these proceedings were not subject to the strict requirements for representative proceedings and standing in the Federal Court system, as they were instituted under state legislation. If the current requirements for instituting such proceedings needed to be satisfied in these cases, it is questionable whether these claims – for example, as being on behalf of all Australians who are deaf or had a total hearing loss – would be a sufficiently well-defined class to qualify as complaints ‘against the same person’, that are ‘in respect of or arise out of the same, similar or related circumstances’, and ‘give rise to a substantial common issue of law or fact’.

It has been observed (Mason, 1994) that ‘[s]uccess so far in using the [Disability Discrimination Act] to achieve broad systemic change has been achieved not through the representative complaints mechanism but through individual complaints’. While this observation dates back over two decades, it is still apposite, and continues to be reflected in the case law today. What might be regarded as ‘test cases’ on issues such as the audibility of announcements on rail services (Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36), compliance by a major bus operator with the Disability Standards (Haraksin v Murray Australia Ltd [2010] 275 ALR 520) and the inflexible application by air passenger transport services of a two seat cap for travellers with a disability (King v Jetstar Airways Pty Ltd (No 2) [2012] 286 ALR 149) have all proceeded as individual complaints.

The complex interface between the collective dimension of discriminatory practices and the individualized complaints mechanism is well illustrated in Nojin v Commonwealth of Australia [2012] FCAFC 192, which involved the determination of whether the use of a wage assessment tool for workers with intellectual disabilities employed in Australian Disability Enterprises was discriminatory conduct. This litigation commenced by way of an action described (Nojin v Commonwealth of Australia [2012] FCAFC 192, para. 1) as being ‘brought by or on behalf of two intellectually disabled men’. Their representatives in the proceedings (the mothers of the workers with intellectual disabilities) ran the risk of an adverse costs order, should the claim not succeed (Morabito and Ekstein, 2016, p. 69). Despite the Full Federal Court’s findings in favour of the workers, what followed was a long hiatus: an exemption to compliance with the Disability Discrimination Act 1992 was granted and later challenged (Gaze and Howe, 2015), a legislative scheme was introduced and amended (see Business Services Wage Assessment Tool Payment Scheme Act 2015 (Cth); Business Services Wage Assessment Tool Payment Scheme Amendment Act 2016 (Cth)) and subsequent representative proceedings were filed, which have now been settled (Duval-Comrie v Commonwealth of Australia [2016] FCA 1523; Maurice Blackburn Lawyers, 2016). In pursuing a final settlement of their claim, the litigants were faced with repeated attempts by the Federal Government over a number of years to impose a solution not in compliance with the favourable outcome achieved in the initial complaints-based proceedings. The institution of the subsequent representative proceedings was directed at ensuring that the outcome with respect to the two named individuals benefitted other individuals in a similar position and would meet community expectations of fair treatment.

The successful pursuit of representative proceedings in 2016 in the Federal Court of Australia with respect to racially discriminatory policing practices directed against Indigenous people who were resident on Palm Island, is a landmark development in Australian jurisprudence (Wotton v State of Queensland (No 5) [2016] FCA 1457, hereafter ‘Wotton’). The Wotton proceedings involved allegations of unlawful racial discrimination by the respondents, the State of Queensland and the Commissioner of the Police Service, in respect of events arising out of a death in custody on Palm Island in November 2004, and its aftermath. The Court found that the unlawful discrimination was constituted by the manner in which the investigation into the death in custody was conducted; the treatment of witnesses; the provision of inaccurate information to the coroner; the failure to suspend the officer in question; the failure to communicate appropriately with the affected community; the unwarranted declaration of an emergency situation, and the subsequent deployment of a Special Emergency Response Team; and, in the manner in which the entry and search powers of the Special Emergency Response Team were executed. The Court found that the police acted in the way they did because they were dealing with an Aboriginal community, and that they would not have taken a similar approach if the events had occurred in an isolated non-Aboriginal community. The Court characterized race as the ‘dividing line’ for this treatment (Wotton v State of Queensland (No 5) [2016] FCA 1457, para. 1456). In addition to contravening the Racial Discrimination Act 1975 (Cth), the performance by the Queensland Police Service officers of their functions differently, by reference to the race of the people they were dealing with, was described by the judge as ‘an affront to the rule of law’ (Wotton v State of Queensland (No 5) [2016] FCA 1457, para. 1806).

Compensatory damages for the three named applicants were awarded, with the prospect of further remedies for other group and subgroup members to be determined in future stages of the proceedings. No order was made with respect to the claim for exemplary damages, however the Court did foreshadow the possibility of such damages being awarded in relation to certain subgroup members (Wotton v State of Queensland (No 5) [2016] FCA 1457, paras. 1798–1803). A subsequent costs order was made in favour of the applicants (Wotton v State of Queensland (No 6) [2017] FCA 245).

The representative proceedings in Wotton were originally formulated as a complaint that included ‘all the black residents of Palm Island who were residents of the place on and between 18 and 28 November 2004’ (Wotton v State of Queensland [2009] FCA 758, para. 5). However, this was refined as the proceedings progressed. In the final iteration of the claim, the representative proceedings were stated to be with respect to Aboriginal or Torres Strait Islander residents on Palm Island as at 19 November 2004, and still resident on Palm Island as at 25 March 2010. The representative proceedings were also extended to include a sub-group of group members, consisting of Aboriginal members of the Palm Island community who were most directly affected by the arrests and raids conducted on Palm Island after the death in custody. These included persons who were apprehended or arrested in connection with the events on Palm Island on 26 November 2004, those who were present when such events occurred and those who witnessed or were present during certain raids, or who had their homes entered by police officers during the operation.

The case has been described as ‘a useful illustration of the manner in which multiple individual events can cumulatively provide evidence of a pattern of racially discriminatory conduct’ (Maschmedt, 2016). In Wotton, legal representation was provided on a pro bono basis, which overcame the funding difficulty. However, the risk of an adverse costs order should the claims not be successful still hung over the proceedings. Apart from Wotton, the only other representative proceedings on behalf of Indigenous people in Australia that has been successfully pursued in the courts is (Morabito and Ekstein, 2016) the vilification claim involving newspaper articles critical of a group of ‘fair skinned Aboriginal people’ (Eatock v Bolt [2011] FCA 1103). Ms Eatock brought that action on her own behalf, and on behalf of people like her, who have fairer (rather than darker) skin, and who (by a combination of descent, self-identification and communal recognition) are, and are recognized as, Aboriginal people.

While similar arguments could be made with respect to complaints made under the Age Discrimination Act 2004 (Cth), the absence of any successfully litigated outcomes has limited the scope for exploring this through the case law. Overall, the low success rate with respect to representative proceedings involving vulnerable individuals has been attributed in part to an absence of appropriate legal representation in conducting such proceedings (Morabito and Ekstein, 2016, pp. 76–77). The complexity of drafting pleadings in representative proceedings which satisfy the statutory requirements in terms of the group members (at least seven people, in the same or similar circumstances, and relating to a substantial common issue of law or fact) can lead to the incurring of substantial costs. The amount of compensation likely to be recovered with respect to discrimination claims is generally low, thus making representative proceedings less attractive to litigation funders or ‘no-win no-fee’ arrangements. A study of representative proceedings filed in the period 1992–2014 on behalf of vulnerable persons (Morabito and Ekstein, 2016, p. 88) found that none of these proceedings were supported by litigation funders. Nor has the Australian Law Reform Commission’s recommendation (1988) for the establishment of a class action fund ever been implemented.

These proceedings also draw attention to the lack of capacity, on the part of representative groups or relevant agencies, to institute class action proceedings where the practices of institutions such as the police are questioned, or to relieve the individuals involved of the burden of pursuing such proceedings. Some regulatory agencies, such as the Australian Competition and Consumer Commission, are specifically empowered in particular circumstances to institute representative proceedings (See Competition and Consumer Act 2010 (Cth), Schedule 2, 149). Not only does the Commission lack this specific statutory mandate, it is hampered in its operations due to the very limited nature of the regulatory powers vested in it more generally, discussed in the following section.

The role of anti-discrimination agencies

The failure to invest the anti-discrimination agencies which are involved in the oversight of Australian anti-discrimination laws with specific powers to actively engage in the litigation process diminishes the recognition of the broader community interest in redressing discriminatory practices. Such powers can include the capacity to provide advice or funding for discrimination cases when litigation is being contemplated or pursued, or agencies litigating in their own right. Involvement by an agency in the litigation process can also be confined to where the broader strategic objectives warrant such intervention. This ‘test case’ model has been described as improving outcomes, ‘by creating an exposure to liability that may otherwise have been treated as non-existent or remote’ (Legg, 2016, p. 333). The New South Wales Law Reform Commission, in its report on the Review of the Anti-Discrimination Act 1977 (NSW), observed (1999, para. 8.198):

active enforcement functions of such equal opportunity agencies, which allows them to initiate investigations on their own motion, and prosecute certain offences, tends to signify a greater commitment to compliance by the state. It is an acknowledgment, in particular, that systemic discrimination issues are unlikely to surface or be adequately addressed in private actions by individuals and that adherence to anti-discrimination principles is a matter of public interest.

This approach is in contrast to the way in which comparable Australian federal agencies, such as the Fair Work Ombudsman (‘FWO’), operate, with the capacity to initiate civil prosecutions and to impose other sanctions such as infringement notices and enforceable undertakings (Allen, 2015). Although the majority of FWO litigation relates to wages and conditions (Fair Work Ombudsman, 2017), in the past, the FWO has initiated a number of prosecutions in the field of employment discrimination, and has used its broad regulatory powers, such as entering into an enforceable undertaking, to resolve some employment discrimination matters. However, in the 2016–2017 reporting year, the FWO’s Annual Report records only one instance of civil penalty litigation being instituted involving discrimination, and none in the preceding reporting year (Fair Work Ombudsman, 2016).

A potential reform for Australian anti-discrimination law, therefore, involves an enforcement model where a regulatory agency has multi-faceted functions, including the capacity to initiate litigation where necessary. This would enable the risk that an anti-discrimination agency might commence litigation to operate as a useful source of leverage (Allen, 2016). In addition, it would allow for the strategic use of litigation as a way of dealing with particularly egregious contraventions, in order to clarify the scope and application of the relevant laws, and as a means of general deterrence. The individual complaint instituted against Railcorp by Mr Innes, the then disability discrimination commissioner, is particularly apposite in confirming the need for other mechanisms for pursing complaints, which touch on broader community concerns (see Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36). In his capacity as disability discrimination commissioner, Mr Innes had held numerous meetings with RailCorp to attempt to resolve the issue of the audibility of train announcements and the impact of this on persons with a vision impairment, but as Mr Innes had no capacity to bring proceedings in his official capacity as the disability discrimination commissioner, he had to resort to relying on his personal experience as a regular train user who has a visual impairment and initiate a number of individual complaints. Ultimately, his claim was pursued in the Federal Magistrates Court, when conciliation failed. Support for this action was provided by the Public Interest Advocacy Centre, but it was Mr Innes himself as the complainant who carried the risk of an adverse costs order, should his claim fail.

Interventions and amicus curiae

In the federal anti-discrimination sphere, the Commission has the capacity to intervene in proceedings and to exercise an amicus curiae function. Both these mechanisms do not involve the Commission taking action in its own right but enable it to have a role in proceedings commenced by others. The two processes are distinct, although they may be used for similar purposes. In the case of an intervention, once leave to intervene is granted, the intervener becomes a party to the proceedings. In the case of amicus curiae, it is about offering a submission that would assist the court, but which would not otherwise be available, or about being heard on issues that might not otherwise be put before the court (Williams, 2000). Another distinction is that an intervention involves the risk of a potential adverse costs order, whereas amicus curiae does not. The intervention role of the Commission has existed since the Human Rights and Equal Opportunity Act 1986 (Cth) came into operation on 10 December 1986, whereas the amicus function was not introduced until 1999, and came into effect in April 2000 (Fougere, 2001). These changes accompanied the end of the Commission’s hearing function. With the role of Commissioners hearing discrimination complaints at an end, the introduction of the amicus curiae function was justified as providing a means by which Commissioners could ‘argue the policy imperatives of their legislation before the Federal Court’ (Williams, 1998).

Pursuant to the Australian Human Rights Commission Act 1986 (Cth) s 46PV, the amicus function of the Commission may be exercised, by leave, where the special-purpose Commissioner thinks that the orders sought by an applicant may affect, to a significant extent, the human rights of persons who are not parties to the proceedings; where the proceedings are likely to have significant implications for the administration of the other relevant Acts; and, where it would be in the public interest for the special-purpose Commissioner to assist the Court. The Commission’s Guidelines (Australian Human Rights Commission, 2009a) on the exercise of the amicus curiae function identify areas in which these statutory criteria may be met as including cases that involve a new area of law, clarify a disputed interpretation of the law or in cases where there are significant ramifications beyond the parties to the proceedings or the human rights of a significant number of people may be affected. For example, in the Access for All Alliance litigation referred to earlier, the granting of leave to the Commission to appear as amicus curiae was determined separately from the substantive proceedings. In granting leave in those proceedings, Justice Collier acknowledged (Access for All Alliance v Hervey Bay City Council [2006] FCA 1214, para. 7) the matters of policy and principle at stake, and the potential for the proceedings to affect the human rights of non-parties. In this way the amicus curiae function corresponds with a general understanding of where the public interest warrants the involvement of a specialist Commissioner.

The exercise of the amicus curiae function has been used sparingly by Commissioners, with the Commission’s website (Australian Human Rights Commission, nd) recording only 23 cases in which the function has been used (not all of these cases progressed to a final hearing and only includes cases up to March 2013). Examples of litigated claims brought under federal anti-discrimination laws where a Commissioner has been granted leave to act as amicus curiae include a number of notable decisions, such as Kelly-Country v Beers [2004] FMCA 242 (racial vilification), Howe v Qantas Airways Ltd [2004] FMCA 242 (pregnancy and sex discrimination), Jacomb v Australian Municipal Administrative Clerical & Services Union [2004] 140 FCR 149 (special measures), Forest v Queensland Health [2007] FCA 936 (discrimination and use of assistance animals) and Haraksin v Murrays Australia Ltd [2010] FCA 1133 (disability standards). The amicus curiae function has been described (Ronnit, 2004, pp. 849, 854) as having the potential to facilitate receptiveness on the part of courts to ‘consideration of broad public interest criteria which are brought to their attention by non-parties’, but as ‘do[ing] very little to shift the burden of litigation from the potential litigant’.

The Commission is empowered by statute under each of the four principal federal anti-discrimination statutes and the Australian Human Rights Commission Act 1986 (Cth) to seek leave to intervene in proceedings that involve issues of race, sex, age and disability discrimination, human rights, and equal opportunity in employment. The Commission’s Guidelines (Australian Human Rights Commission, 2009b) specify the circumstances where interventions may arise as being where the proceedings involve the rights of one or more persons; involve an issue of the kind set out in the legislation; are such that the intervention issue is significant, and not peripheral to the proceedings; and where the intervention issue will not be adequately or fully argued by the parties to the proceedings. The interventions that the Commission has made between 1988 and May 2015 cover a broad spectrum of cases beyond anti-discrimination law, including criminal law, family law, employment law, human rights, native title and refugee law (Australian Human Rights Commission, nd). Of the approximately seventy interventions noted, around twenty of these involved an aspect of anti-discrimination law. Amongst these are a number of prominent anti-discrimination cases, such as Hurst v State of Queensland [2006] FCAFC 151 (disability discrimination in education), Qantas Airlines Ltd v Christie [1998] HCA 18 (age discrimination and inherent requirements), Maloney v The Queen [2013] HCA 28 (race discrimination involving alcohol restrictions), Baird v State of Queensland [2006] FCAFC 162 (underpayment of Aboriginal employee’s wages) and Re McBain [2002] HCA 16 (sex discrimination and access to IVF treatment). As with the amicus curiae function, interventions are relatively rare, and in the case of anti-discrimination claims have occurred on an average of less than one per year.

Amicus curiae and the power to intervene can form a useful part of the overall ‘armoury of any equality body’ (Bell et al., 2007, p. 907). Both powers can be of some utility in bringing light to aspects of a case that might otherwise not be the subject of submissions or arguments by the parties themselves. However, both amicus curiae and the intervention power cannot be exercised as of right but require leave of the court. Furthermore, their usefulness is constrained in circumstances where the relevant agency is not equipped with other powers to proactively address discrimination practices. Neither offer an opportunity to develop or challenge the law, where there is no claimant willing or able to initiate proceedings (Bell et al., 2007, p. 903). The amicus curiae power and the power to intervene will only ever achieve a limited impact, in the absence of a more robust enforcement model for Australian anti-discrimination laws.