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Timing is everything for unlawful discrimination complaints under federal law

Under the Australian Human Rights Commission Act 1986 (Cth), the President of the Australian Human Rights Commission has legal responsibility for handling complaints.

Since 11 September 2021, the President has the discretion to terminate a sexual harassment complaint if it is lodged more than 24 months after the alleged acts, omissions or practices took place. For other unlawful discrimination claims, the time limit is 6 months.

Why have time limits?

The key problem with delay in bringing a complaint of unlawful discrimination is that the memories of witnesses may fade or become distorted, and records may be lost. These factors make it more costly and may prolong the emotional impact of the litigation on all parties.

It may also be oppressive to a respondent for an action to be brought long after they were entitled to assume it would no longer be made against them.

Despite these factors, the longer time frame for lodging sexual harassment complaints was recommended in 2021 by Sex Discrimination Commissioner, Kate Jenkins, in the Respect@Work inquiry because of the complex reasons for an applicant’s delay in making a sexual harassment complaint immediately following an alleged incident.

What happens if the complaint is late?

The President may terminate an unlawful discrimination complaint if it is submitted outside the time limit. When the President terminates a late unlawful discrimination complaint, the complainant can apply to the Federal Court for leave to bring the unlawful discrimination claim. That application must be filed within 60 days of the date of issue of the termination notice.

The Court’s approach to leave will be to make a decision that is in the best interests of the administration of justice. In this respect, the factors the Court will consider are likely to be the same that the President has regard to in determining whether to terminate a late complaint. Those factors might include:

  • the length of delay;
  • the reasons for the delay;
  • prejudice to respondent or complainant;
  • whether other remedies have been sought and/or achieved in relation to the subject matter of the claim;
  • whether steps were taken to try to resolve the matter internally or through criminal proceedings;
  • the arguable merits of the claim;
  • whether the complainant was and/or is legally represented; and
  • adverse health and family circumstances.

Case examples of late claims

In Zou v Ong (2021), a claim of discrimination on the basis of ethnicity and disabilities between 2006 and 2008 was not lodged until July 2020.

The applicant’s reasons for delay included:

  • health issues, consisting of high blood pressure and depression;
  • lack of understanding of the legal process; and
  • lack of English skills.

The Court refused to give the complainant leave to bring the claim because it was oppressive for the respondents to face serious allegations of discrimination when they have only been made aware of the allegations more than a decade after the relevant events. This would cause the respondents to suffer substantial prejudice.

In Stepien v Department of Human Services (2018), a complainant of unlawful discrimination on the basis of gender sought leave in the Court to bring a late claim, pointing to his parental responsibilities and other personal difficulties as grounds.

The Court ruled the applicant did not provide an adequate explanation for the considerable delay in lodging his originating application. The Court noted that the circumstances relied upon still applied, yet the applicant had no difficulty in preparing a considerable amount of material for the application and presenting it in a very capable and competent manner.

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