6.2.3 Representative complaints to HREOC
The HREOC Act allows a representative complaint to be made pursuant to s 46P(2)(c) of the HREOC Act in the following circumstances:
- the class members have complaints against the same person;
- all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and
- all the complaints give rise to a substantial common issue of law or fact.
‘Representative complaint’ is defined under the HREOC Act to mean ‘a complaint lodged on behalf of at least one person who is not a complainant’. ‘Class member’ is relevantly defined as ‘any of the persons on whose behalf the complaint was lodged, but does not include a person who has withdrawn under s 46PC’.
In making a representative complaint to HREOC, a complainant need not name all the class members, or specify how many members there are to the complaint.
Furthermore, the complaint may be lodged with HREOC without members’ consent. However, class members may, in writing to the President of HREOC, withdraw from a representative complaint prior to the termination of a complaint (after which they will be entitled to make their own complaint), and the President may, on application in writing by an ‘affected person’, replace ‘any complainant with another person as complainant’. The President may also, at any stage, direct that notice of any matter to be given to a class member or class members.
Representative proceedings may also be brought in the Federal Court pursuant to the Federal Court of Australia Act 1976 (Cth) (see 6.6.1(c) below).
6.6 Scope of Applications Made Under s 46PO of the HREOC Act to the FMC and Federal Court
Section 46PO(1) of the HREOC Act provides that:
(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 Federal Magistrates Court alleging unlawful discrimination by one or more of the respondents to the terminated complaint.
Accordingly, while a person can bring a complaint to HREOC on behalf of another under s 46P(2)(c) of the HREOC Act, only ‘an affected person’ is entitled to make an application to the FMC or Federal Court.
The HREOC Act defines an ‘affected person’ as being ‘in relation to a complaint, a person on whose behalf the complaint was lodged’. As noted above, a complaint to HREOC may only be lodged by or on behalf of ‘a person aggrieved’. Hence an application made to the FMC or Federal Court pursuant to s 46PO(1) will only be able to be brought by ‘a person aggrieved’ by the alleged discrimination. Further, the Court can revisit a finding by HREOC that a person is a ‘person aggrieved’ and can dismiss an application if it determines that the applicant is not a ‘person aggrieved’.
In Stokes v Royal Flying Doctor Service, Mr Stokes lodged a complaint with HREOC on behalf of the Ninga Mia Christian Fellowship and the Wongutha Birni Aboriginal Corporation. When the matter came to the FMC, McInnis FM permitted Mr Stokes to amend the application by replacing the Fellowship and Corporation as the applicants with Mr Stokes and other named individuals. McInnis FM stated that the amendment ‘does no more than to identify, with greater specificity, the individuals who are now said to be part of the group which is said to be the subject of the complaint for discrimination’. He commented that it would be ‘unduly technical in my view and inappropriate to impose, in a matter of this kind, particularly arising out of human rights legislation, an unduly technical interpretation of either corporate identity or identity of the group’.
In several cases courts have held that an application can only be brought against a person if they were a respondent to the complaint to HREOC. This means that any application that names a person who was not a respondent to a complaint can be summarily dismissed and an application to join such a person will be refused.
This issue was most recently considered by the Full Federal Court in Grigor-Scott v Jones (‘Grigor-Scott’). In this case the Court set aside an order joining Mr Grigor-Scott to the primary proceedings because it found that he was not a respondent to the complaint made to HREOC and should therefore never have been joined.
The original complaint to HREOC did not nominate any person or entity as a respondent but simply alleged that a document described as ‘Bible Believers’ Newsletter # 242’ published on a website contravened provisions of Part IIA of the RDA but it.
The President of HREOC corresponded with Mr Grigor-Scott, a Minister of the Bible Believers’ Church (‘the Church’), about the complaint. Mr Grigor-Scott also attended the conciliation conference held by HREOC in relation to the complaint. Despite this, the letter from the President to Mr Jones enclosing copies of correspondence from Mr Grigor-Scott referred to the correspondence as being from Mr Grigor-Scott ‘on behalf of the respondent’. Further the termination notice named the Church as the respondent and the President’s reasons for decision accompanying the termination notice referred to the Church as the respondent.
When Mr Jones filed his original application with the Court he named the Church as the respondent but he subsequently applied and was granted an order joining Mr Grigor-Scott as a respondent.
Mr Jones argued that when identifying the respondent to a complaint the court should consider the subject matter of the complaint and determine who the complaint in substance is about.
The Full Court whilst noting the complaint was about the website, focussed instead on consideration of whom the complainant, HREOC and the President of HREOC treated as the respondent when determining whether Mr Grigor-Scott was a respondent. On the basis of the evidence the Full Court held that the complainant, HREOC and the President treated the complaint as having being made against the Church not Mr Grigor-Scott and as such Mr Grigor-Scott was never a respondent to the original
The Full Court also dismissed the proceedings brought against the Church. It did so because, as the Church was not a legal entity, it could not be sued and
any proceedings against it were therefore incompetent.
The Federal Magistrates Act 1999 (Cth) (‘Federal Magistrates Act’) does not enable representative proceedings to be brought in the FMC. Representative
complaints can therefore only be pursued in the Federal Court.
Part IVA of the Federal Court of Australia Act 1976 (Cth) (‘Federal Court Act’) enables representative complaints to be commenced in the Federal Court by one or more of the persons to the claim as representing some or all of the other persons, if:
- (a) seven or more persons have claims against the same person;
- (b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
- (c) the claims of all those persons give rise to a substantial common issue of law or fact.
Note that while a complaint can be lodged with HREOC on behalf of a ‘person aggrieved’ (see 6.2.3 below), representative proceedings can only be commenced in the Federal Court by at least one ‘person aggrieved’ who has had their claim terminated by HREOC. As noted above, under s 46PO(1) of the HREOC Act, upon termination of a complaint by the President only ‘an affected person’ may make an application to the Federal Court. Furthermore, s 33D(1) of the Federal Court Act provides that only a person who has ‘sufficient interest’ to commence a proceeding against the respondent on his or her own behalf has standing to bring a representative
proceeding against the respondent on behalf of other persons who have the same or similar claims against the respondent.