Commonwealth Numbered Acts

SEX DISCRIMINATION AND OTHER LEGISLATION AMENDMENT ACT 1992 No. 179, 1992 - SCHEDULE

                                  SCHEDULE             Section 3

AMENDMENT OF ACTS
Disability Discrimination Act 1992 Subsection 4(1):
Insert:

" 'class member', in relation to a representative complaint, means any of the
persons on whose behalf the complaint was lodged, but does not include a
person who has withdrawn under section 90A;
'Commonwealth agency' means an agency within the meaning of the
Privacy Act 1988;
'principal executive', in relation to a Commonwealth agency, has the same
meaning as in Part V of the Privacy Act 1988;".Subsection 4(1) (definition of
"representative complaint"):
Omit the definition, substitute:

" 'representative complaint' means a complaint where the persons on whose
behalf the complaint was made include persons other than the complainant, but
does not include:

   (a)  a complaint made under paragraph 69(1)(c) on behalf of only one
        person; or

   (b)  a complaint that the Commission has determined should no longer be
        continued as a representative complaint;".After subsection 69(1):
Insert:

"(1A) In the case of a representative complaint, this section has effect
subject to section 89.". Sections 89 and 90:
Repeal the sections, substitute:Conditions for making a representative
complaint

"89.(1) A representative complaint may be lodged under section 69 only if:

   (a)  the class members have complaints against the same person; and

   (b)  all the complaints are in respect of, or arise out of, the same,
        similar or related circumstances; and

   (c)  all the complaints give rise to a substantial common issue of law or
        fact.

"(2) A representative complaint under section 69 must:

   (a)  describe or otherwise identify the class members; and

   (b)  specify the nature of the complaints made on behalf of the class
        members; and

   (c)  specify the nature of the relief sought; and

   (d)  specify the questions of law or fact that are common to the complaints
        of the class members. In describing or otherwise identifying the class
        members, it is not necessary to name them or specify how many there
        are.

"(3) A representative complaint may be lodged without the consent of class
members. Commission may determine that a complaint is not to continue as a
representative complaint

"90.(1) The Commission may, on application by the respondent or of its own
motion, determine that a complaint should no longer continue as a
representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that
it is in the interests of justice to do so for any of the following reasons:

   (a)  the costs that would be incurred if the complaint were to continue as
        a representative complaint are likely to exceed the costs that would
        be incurred if each class member lodged a separate complaint;

   (b)  the representative complaint will not provide an efficient and
        effective means of dealing with the complaints of the class members;

   (c)  the complaint was not brought in good faith as a representative
        complaint;

   (d)  it is otherwise inappropriate that the complaints be pursued by means
        of a representative complaint.

"(3) If the Commission makes such a determination:

   (a)  the complaint may be continued as a complaint by the complainant on
        his or her own behalf against the respondent; and

   (b)  on the application of a person who was a class member for the purposes
        of the former representative complaint, the Commission may join that
        person as a complainant to the complaint as continued under paragraph
        (a). Additional rules applying to the determination of representative
        complaints

"90A.(1) The Commission may, on application by a class member, replace the
complainant with another class member, where it appears to the Commission that
the complainant is not able adequately to represent the interests of the class
members.

"(2) A class member may, by notice in writing to the Commission, withdraw from
a representative complaint at any time before the Commission begins to hold an
inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given
to a class member or class members.". Subsection 91(2):
Omit. Section 92:
Repeal the section, substitute: Class member for representative complaint not
entitled to lodge individual complaint

"92. A person who is a class member for a representative complaint is not
entitled to lodge a complaint in respect of the same subject matter.".
Paragraph 98(1)(c):
Add "and" at the end. Subsection 98(1):
Add at the end:

"(d) may give such directions as to procedure as it considers are appropriate
or necessary to ensure that justice is done.". Section 102:
Add at the end:

"(3) A reference in this section (other than the first reference) to a party
includes a reference to a class member in the case of a representative
complaint.". Subparagraph 103(1)(b)(iv):
Omit "if the complaint was not dealt with as a representative complaint - ".
Subsection 103(5):
Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a
representative complaint:

   (a)  may provide for payment of specified amounts or of amounts worked out
        in a manner specified by the Commission; and

   (b)  if it provides for payment in accordance with paragraph (a), must make
        provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on
a representative complaint, the Commission may give such directions (if any)
as it thinks just in relation to:

   (a)  the manner in which a class member is to establish his or her
        entitlement to the payment of an amount under the determination; and

   (b)  the manner for determining any dispute regarding the entitlement of a
        class member to the payment.

"(7) In this section:
'complainant', in relation to a representative complaint, means the class
members.". Section 104:
Repeal the section, substitute: Determination must identify the class members
who are to be affected by the determination

"104. A determination under section 102 or 103 on a representative complaint
must describe or otherwise identify those of the class members who are to be
affected by the determination. Registration of determination

"104A.(1) This section applies to a determination made under section 102 or
103, except where the respondent is a Commonwealth agency or the principal
executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission
must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the
determination. In this subsection, 'Registrar' has the same meaning as in
section 35A of the Federal Court of Australia Act 1976.

"(4) Within 7 days after the determination is registered, the Commission must
give written notice of the registration to the complainant and respondent to
the determination. The notice must specify the date of registration and must
include a copy of the determination. Registered determination has effect as an
order of the Federal Court

"104B.(1) Upon registration of a determination under section 104A, the
determination has effect as if it were an order made by the Federal Court, but
subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the
determination, the determination applies as follows to each class member who
is described or identified in the determination as mentioned in section 104:

   (a)  the class member is bound by the determination; and

   (b)  the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the
end of the review period.

"(4) In the case of a determination made under section 103, a failure by the
respondent, during the review period, to comply with a positive requirement of
the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal
Court for review of the determination. The respondent's application for review
must be made within 28 days after the date of registration of the
determination.

"(6) In this section:
'review period' means:

   (a)  if the respondent to the determination applies to the Court under
        subsection (5) for review of the determination - the period starting
        on the day the determination is registered and ending at the time when
        proceedings on that review are completed or otherwise terminated; or

   (b)  in any other case - the period of 28 days starting on the day the
        determination is registered. Review of registered determination

"104C.(1) This section applies if an application is made to the Federal Court
under section 104B for review of a determination.

"(2) The parties to the review are:

   (a)  the applicant; and

   (b)  the complainant to the determination, as respondent to the application
        for review.

"(3) The Court may at any time make an interim order that suspends the
operation of the whole or any part of the determination. The order may be made
on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact
and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it
thinks fit (including a declaration of right). The orders may confirm a
determination that is registered under section 104A.

"(7) The Court may dismiss the application for review at any time if it
considers that the applicant is not prosecuting the application with due
dispatch. The Court may do this either of its own motion or on the application
of the respondent.". Paragraphs 106(1)(a) and (b):
Omit the paragraphs, substitute:

"(a) has applied or proposes to apply to the Federal Court under section 104B
for review of a determination; or

   (b)  is the respondent to such a review;". Part 4:
After Division 3 insert:

"Division 4 - Review and enforcement of determinations involving
Commonwealth agencies Application of Division

"106A. This Division applies to a determination that is made under section 102
or 103 and has a Commonwealth agency, or the principal executive of a
Commonwealth agency, as the respondent. Obligations of respondent agency

"106B.(1) If a Commonwealth agency is the respondent to a determination to
which this Division applies that is made under section 102, the agency must
comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which
this Division applies that is made under section 103:

   (a)  the agency must not repeat or continue conduct that is covered by a
        declaration included in the determination under subparagraph
        103(1)(b)(i); and

   (b)  the agency must perform the act or course of conduct that is covered
        by a declaration included in the determination under subparagraph
        103(1)(b)(ii), (iii), (v) or (vi). Obligations of principal executive
        of agency

"106C.(1) If the principal executive of a Commonwealth agency is the
respondent to a determination to which this Division applies that is made
under section 102, the principal executive must take all such steps as are
reasonably within his or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to
a determination to which this Division applies that is made under section 103,
the principal executive must take all such steps as are reasonably within his
or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that no member, officer or employee of the agency repeats or continues
        conduct that is covered by a declaration included in the determination
        under subparagraph 103(1)(b)(i); and

   (c)  the performance of any act or course of conduct that is covered by a
        declaration included in the determination under subparagraph
        103(1)(b)(ii), (iii), (v) or (vi). Damages

"106D.(1) If a determination to which this Division applies that is made under
section 103 includes a declaration that the respondent should pay damages to
the complainant, the complainant is entitled to be paid the amount specified
in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue
and be sued, the amount is recoverable as a debt due by the agency to the
complainant. In any other case, the amount is recoverable as a debt due by the
Commonwealth to the complainant.

"(3) In this section:
'complainant', in relation to a representative complaint, means a class
member. Review of determinations regarding damages

"106E.(1) Application may be made to the Administrative Appeals Tribunal for
review of:

   (a)  a declaration of the kind referred to in subparagraph 103(1)(b)(iv)
        that is included in a determination to which this Division applies; or

   (b)  a decision of the Commission refusing to include such a declaration in
        a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth
agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1),
the Tribunal must be constituted by a presidential member who is a Judge and 2
other members who are not Judges. This subsection has effect subject to
subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the
Administrative Appeals Tribunal Act 1975 have the same meanings as in that
Act. Enforcement of determination against Commonwealth agency

"106F.(1) If a Commonwealth agency fails to comply with section 106B, an
application may be made to the Federal Court for an order directing the agency
to comply.

"(2) If the principal executive of a Commonwealth agency fails to comply with
section 106C, an application may be made to the Federal Court for an order
directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In
the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such
other orders as it thinks fit with a view to securing compliance by the
respondent.

"(5) An application may not be made under this section in relation to a
determination under section 103 until:

   (a)  the time has expired for making an application under section 106E for
        review of the determination; or

   (b)  if such an application is made, the decision of the Administrative
        Appeals Tribunal on the application has come into operation.".
Human Rights and Equal Opportunity Commission Act 1986 Before section 20:
Insert the following section in Division 3 of Part II: Division applies to
victimisation offences

"19A. In this Division, a reference to an act or practice that is inconsistent
with or contrary to any human right includes a reference to an act that is an
offence under subsection 26(2).". After subsection 30(1):
Insert:

"(1A) In this Division, a reference to an act or practice that constitutes
discrimination includes a reference to an act that is an offence under
subsection 26(2).".
Industrial Relations Act 1988 After paragraph 45(1)(ec):
Insert:

"(ed) a decision of the Commission to vary, or not to vary, an award that has
been referred to the Commission under section 50A of the
Sex Discrimination Act 1984;". After paragraph 45(3)(ba):
Insert:

"(bb) in the case of an appeal under paragraph (1)(ed) - by a party to the
review of the award under section 111A;". After section 111:
Insert: Hearings in relation to discriminatory awards

"111A.(1) If an award is referred to the Commission under section 50A of the
Sex Discrimination Act 1984, the Commission must convene a hearing to review
the award.

"(2) In a review under this section:

   (a)  the parties to the proceeding in which the award was made are parties
        to the proceeding on the review, and are entitled to notice of the
        hearing; and

   (b)  the Sex Discrimination Commissioner is a party to the proceeding.".
        After subsection 113(2):
Insert:

"(2A) If:

   (a)  an award has been referred to the Commission under section 50A of the
        Sex Discrimination Act 1984; and

   (b)  the Commission considers that the award is a discriminatory award; the
        Commission must take the necessary action to remove the
        discrimination, by setting aside the award, setting aside terms of the
        award or varying the award.

"(2B) Subsection (2A) does not require the Commission to take action that the
Commission considers would not be in the public interest.

"(2C) Before taking action under subsection (2A) in relation to a certified
agreement, the Commission must give the parties to the agreement an
opportunity to amend the agreement so as to remove the discrimination.".
Section 113:
Add at the end:

"(5) In this section:
'discriminatory award' means an award that:

   (a)  has been referred to the Commission under section 50A of the
        Sex Discrimination Act 1984; and

   (b)  requires a person to do any act that would be unlawful under Part II
        of the Sex Discrimination Act 1984, except for the fact that the act
        would be done in direct compliance with the award. For the purposes of
        this definition, the fact that an act is done in direct compliance
        with the award does not of itself mean that the act is reasonable.".
        Paragraph 134L(1)(b):
After "provided in" insert "subsection 113(2C) or". After paragraph
134L(1)(d):
Insert:

"(da) the Commission may take action in relation to the agreement under
subsection 113(2A); and".
Racial Discrimination Act 1975 Subsection 3(1):
Insert the following definitions:

" 'class member', in relation to a representative complaint, means any of the
persons on whose behalf the complaint was lodged, but does not include a
person who has withdrawn under section 25MA;
'Commonwealth agency' means an agency within the meaning of the
Privacy Act 1988;
'principal executive', in relation to a Commonwealth agency, has the same
meaning as in Part V of the Privacy Act 1988;
'representative complaint' means a complaint where the persons on whose behalf
the complaint was made include persons other than the complainant, but does
not include a complaint that the Commission has determined should no longer be
continued as a representative complaint;". After section 19:
Insert: Part applies to victimisation offences

"19A. In this Part, a reference to an act that is unlawful under a provision
of Part II includes a reference to an act that is an offence under subsection
27(2).". After subsection 22(1):
Insert:

"(1A) In the case of a representative complaint, this section has effect
subject to section 25L.". Sections 25L and 25M:
Repeal the sections, substitute Conditions for making a representative
complaint

"25L.(1) A representative complaint may be lodged under section 22 only if:

   (a)  the class members have complaints against the same person; and

   (b)  all the complaints are in respect of, or arise out of, the same,
        similar or related circumstances; and

   (c)  all the complaints give rise to a substantial common issue of law or
        fact.

"(2) A representative complaint under section 22 must:

   (a)  describe or otherwise identify the class members; and

   (b)  specify the nature of the complaints made on behalf of the class
        members; and

   (c)  specify the nature of the relief sought; and

   (d)  specify the questions of law or fact that are common to the complaints
        of the class members. In describing or otherwise identifying the class
        members, it is not necessary to name them or specify how many there
        are.

"(3) A representative complaint may be lodged without the consent of class
members. Commission may determine that a complaint is not to continue as a
representative complaint

"25M.(1) The Commission may, on application by the respondent or of its own
motion, determine that a complaint should no longer continue as a
representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that
it is in the interests of justice to do so for any of the following reasons:

   (a)  the costs that would be incurred if the complaint were to continue as
        a representative complaint are likely to exceed the costs that would
        be incurred if each class member lodged a separate complaint;

   (b)  the representative complaint will not provide an efficient and
        effective means of dealing with the complaints of the class members;

   (c)  the complaint was not brought in good faith as a representative
        complaint;

   (d)  it is otherwise inappropriate that the complaints be pursued by means
        of a representative complaint.

"(3) If the Commission makes such a determination:

   (a)  the complaint may be continued as a complaint by the complainant on
        his or her own behalf against the respondent, unless the complainant
        is a trade union; and

   (b)  on the application of a person who was a class member for the purposes
        of the former representative complaint, the Commission may join that
        person as a complainant to the complaint as continued under paragraph
        (a). Additional rules applying to the determination of representative
        complaints

"25MA.(1) The Commission may, on application by a class member, replace the
complainant with another class member, where it appears to the Commission that
the complainant is not able adequately to represent the interests of the class
members.

"(2) A class member may, by notice in writing to the Commission, withdraw from
a representative complaint at any time before the Commission begins to hold an
inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given
to a class member or class members.' Subsection 25N(2):
Omit. Section 25P:
Repeal the section, substitute Class member for representative complaint not
entitled to lodge individual complaint

"25P. A person who is a class member for a representative complaint is not
entitled to lodge a complaint in respect of the same subject matter."
Paragraphs 25V(1)(a) and (c):
Add "and" at the end Subsection 25V(1):
Add at the end:

"(d) may give such directions as to procedure as it considers are appropriate
or necessary to ensure that justice is done." Section 25Y:
Add at the end:

"(3) A reference in this section (other than the first reference) to a party
includes a reference to a class member in the case of a representative
complaint." Subparagraph 25Z(1)(b)(iv):
Omit "except where the complaint was dealt with as a representative complaint
- " Subsection 25Z(5):
Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a
representative complaint:

   (a)  may provide for payment of specified amounts or of amounts worked out
        in a manner specified by the Commission; and

   (b)  if it provides for payment in accordance with paragraph (a), must make
        provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on
a representative complaint, the Commission may give such directions (if any)
as it thinks just in relation to:

   (a)  the manner in which a class member is to establish his or her
        entitlement to the payment of an amount under the determination; and

   (b)  the manner for determining any dispute regarding the entitlement of a
        class member to the payment.

"(7) In this section:
'complainant', in relation to a representative complaint, means the class
members." Section 25ZA:
Repeal the section, substitute Determination must identify the class members
who are to be affected by the determination

"25ZA. A determination under section 25Y or 25Z on a representative complaint
must describe or otherwise identify those of the class members who are to be
affected by the determination Registration of determination

"25ZAA.(1) This section applies to a determination made under section 25Y or
25Z, except where the respondent is a Commonwealth agency or the principal
executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission
must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the
determination. In this subsection, 'Registrar' has the same meaning as in
section 35A of the Federal Court of Australia Act 1976.

"(4) Within 7 days after the determination is registered, the Commission must
give written notice of the registration to the complainant and respondent to
the determination. The notice must specify the date of registration and must
include a copy of the determination Registered determination has effect as an
order of the Federal Court

"25ZAB.(1) Upon registration of a determination under section 25ZAA, the
determination has effect as if it were an order made by the Federal Court, but
subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the
determination, the determination applies as follows to each class member who
is described or identified in the determination as mentioned in section 25ZA:

   (a)  the class member is bound by the determination; and

   (b)  the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the
end of the review period.

"(4) In the case of a determination made under section 25Z, a failure by the
respondent, during the review period, to comply with a positive requirement of
the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal
Court for review of the determination. The respondent's application for review
must be made within 28 days after the date of registration of the
determination.

"(6) In this section:
'review period' means:

   (a)  if the respondent to the determination applies to the Court under
        subsection (5) for review of the determination - the period starting
        on the day the determination is registered and ending at the time when
        proceedings on that review are completed or otherwise terminated; or

   (b)  in any other case - the period of 28 days starting on the day the
        determination is registered Review of registered determination

"25ZAC.(1) This section applies if an application is made to the Federal Court
under section 25ZAB for review of a determination.

"(2) The parties to the review are:

   (a)  the applicant; and

   (b)  the complainant to the determination, as respondent to the application
        for review.

"(3) The Court may at any time make an interim order that suspends the
operation of the whole or any part of the determination. The order may be made
on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact
and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it
thinks fit (including a declaration of right). The orders may confirm a
determination that is registered under section 25ZAA.

"(7) The Court may dismiss the application for review at any time if it
considers that the applicant is not prosecuting the application with due
dispatch. The Court may do this either of its own motion or on the application
of the respondent." Paragraphs 25ZC(1)(a) and (b):
Omit the paragraphs, substitute:

"(a) has applied or proposes to apply to the Federal Court under section 25ZAB
for review of a determination; or

   (b)  is the respondent to such a review;" Part III:
After Division 3 insert

"Division 4 - Review and enforcement of determinations involving
Commonwealth agencies Application of Division

"25ZD. This Division applies to a determination that is made under section 25Y
or 25Z and has a Commonwealth agency, or the principal executive of a
Commonwealth agency, as the respondent Obligations of respondent agency

"25ZE.(1) If a Commonwealth agency is the respondent to a determination to
which this Division applies that is made under section 25Y, the agency must
comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which
this Division applies that is made under section 25Z:

   (a)  the agency must not repeat or continue conduct that is covered by a
        declaration included in the determination under subparagraph
        25Z(1)(b)(i); and

   (b)  the agency must perform the act or course of conduct that is covered
        by a declaration included in the determination under subparagraph
        25Z(1)(b)(ii), (iii), (v) or (vi) Obligations of principal executive
        of agency

"25ZF.(1) If the principal executive of a Commonwealth agency is the
respondent to a determination to which this Division applies that is made
under section 25Y, the principal executive must take all such steps as are
reasonably within his or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to
a determination to which this Division applies that is made under section 25Z,
the principal executive must take all such steps as are reasonably within his
or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that no member, officer or employee of the agency repeats or continues
        conduct that is covered by a declaration included in the determination
        under subparagraph 25Z(1)(b)(i); and

   (c)  the performance of any act or course of conduct that is covered by a
        declaration included in the determination under subparagraph
        25Z(1)(b)(ii), (iii), (v) or (vi) Damages

"25ZG.(1) If a determination to which this Division applies that is made under
section 25Z includes a declaration that the respondent should pay damages to
the complainant, the complainant is entitled to be paid the amount specified
in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue
and be sued, the amount is recoverable as a debt due by the agency to the
complainant. In any other case, the amount is recoverable as a debt due by the
Commonwealth to the complainant.

"(3) In this section:
'complainant', in relation to a representative complaint, means a class member
Review of determinations regarding damages

"25ZH.(1) Application may be made to the Administrative Appeals Tribunal for
review of:

   (a)  a declaration of the kind referred to in subparagraph 25Z(1)(b)(iv)
        that is included in a determination to which this Division applies; or

   (b)  a decision of the Commission refusing to include such a declaration in
        a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth
agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1),
the Tribunal must be constituted by a presidential member who is a Judge and 2
other members who are not Judges. This subsection has effect subject to
subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the
Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act
Enforcement of determination against Commonwealth agency

"25ZI.(1) If a Commonwealth agency fails to comply with section 25ZE, an
application may be made to the Federal Court for an order directing the agency
to comply.

"(2) If the principal executive of a Commonwealth agency fails to comply with
section 25ZF, an application may be made to the Federal Court for an order
directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In
the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such
other orders as it thinks fit with a view to securing compliance by the
respondent.

"(5) An application may not be made under this section in relation to a
determination under section 25Z until:

   (a)  the time has expired for making an application under section 25ZH for
        review of the determination; or

   (b)  if such an application is made, the decision of the Administrative
        Appeals Tribunal on the application has come into operation."
Sex Discrimination Act 1984 Paragraph 3(c):
Omit "and in educational institutions", substitute ", in educational
institutions and in other areas of public activity" Subsection 4(1):
Insert the following definitions:

" 'class member', in relation to a representative complaint, means any of the
persons on whose behalf the complaint was lodged, but does not include a
person who has withdrawn under section 70A;
'Commonwealth agency' means an agency within the meaning of the
Privacy Act 1988;
'principal executive', in relation to a Commonwealth agency, has the same
meaning as in Part V of the Privacy Act 1988;
'representative complaint' means a complaint where the persons on whose behalf
the complaint was made include persons other than the complainant, but does
not include a complaint that the Commission has determined should no longer be
continued as a representative complaint;" Subsection 9(1):
Insert:

" 'prescribed provisions of Division 3 of Part II' means the provisions of
Division 3 of Part II other than sections 28D and 28L;" Subsection 9(5):
Omit "28", substitute "28B" Subsection 9(6):
Omit "Section 18", substitute "Sections 18 and 28C" Subsections 9(8), (9),
(10), (12), (14), (16), (18) and (20):
Omit "provisions of Division 3", substitute "prescribed provisions of Division
3" Division 3 of Part II:
Repeal the Division, substitute

"Division 3 - Sexual Harassment Meaning of "sexual harassment"

"28A.(1) For the purposes of this Division, a person sexually harasses another
person (the 'person harassed') if:

   (a)  the person makes an unwelcome sexual advance, or an unwelcome request
        for sexual favours, to the person harassed; or

   (b)  engages in other unwelcome conduct of a sexual nature in relation to
        the person harassed; in circumstances in which a reasonable person,
        having regard to all the circumstances, would have anticipated that
        the person harassed would be offended, humiliated or intimidated.

"(2) In this section:
'conduct of a sexual nature' includes making a statement of a sexual nature to
a person, or in the presence of a person, whether the statement is made orally
or in writing Employment, partnerships etc.

"28B.(1) It is unlawful for a person to sexually harass:

   (a)  an employee of the person; or

   (b)  a person who is seeking to become an employee of the person.

"(2) It is unlawful for an employee to sexually harass a fellow employee or a
person who is seeking employment with the same employer.

"(3) It is unlawful for a person to sexually harass:

   (a)  a commission agent or contract worker of the person; or

   (b)  a person who is seeking to become a commission agent or contract
        worker of the person.

"(4) It is unlawful for a commission agent or contract worker to sexually
harass a fellow commission agent or fellow contract worker.

"(5) It is unlawful for a partner in a partnership to sexually harass another
partner, or a person who is seeking to become a partner, in the same
partnership.

"(6) It is unlawful for a workplace participant to sexually harass another
workplace participant at a place that is a workplace of both of those persons.

"(7) In this section:
'place' includes a ship, aircraft or vehicle;
'workplace' means a place at which a workplace participant works or otherwise
carries out functions in connection with being a workplace participant;
'workplace participant' means any of the following:

   (a)  an employer or employee;

   (b)  a commission agent or contract worker;

   (c)  a partner in a partnership Members of bodies with power to grant etc.
        occupational qualifications etc.

"28C.(1) It is unlawful for a member of an authority or body that has power to
take action in connection with an occupational qualification to sexually
harass a person seeking action in connection with an occupational
qualification.

"(2) In this section:
'action in connection with an occupational qualification' means conferring,
renewing, extending, revoking or withdrawing an authorisation or qualification
that is needed for, or facilitates:

   (a)  practising a profession; or

   (b)  carrying on a trade; or

   (c)  engaging in an occupation Registered organisations

"28D. It is unlawful for:

   (a)  a member of a registered organisation; or

   (b)  a member of the staff of a registered organisation; to sexually harass
        a member of the organisation, or a person who is seeking to become a
        member of the organisation Employment agencies

"28E. It is unlawful for:

   (a)  a person who operates an employment agency; or

   (b)  a member of the staff of an employment agency; to sexually harass
        another person in the course of providing, or offering to provide, any
        of the agency's services to that other person Educational institutions

"28F.(1) It is unlawful for a member of the staff of an educational
institution to sexually harass:

   (a)  a person who is a student at the institution; or

   (b)  a person who is seeking to become a student at the institution.

"(2) It is unlawful for a person who is an adult student at an educational
institution to sexually harass:

   (a)  a person who is an adult student at the institution; or

   (b)  a member of the staff of the institution.

"(3) In this section:
'adult student' means a student who has attained the age of 16 years Provision
of goods, services and facilities

"28G. It is unlawful for a person to sexually harass another person in the
course of providing, or offering to provide, goods, services or facilities to
that other person Provision of accommodation

"28H.(1) It is unlawful for a person to sexually harass another person in the
course of providing, or offering to provide, (whether as principal or agent)
accommodation to that other person.

"(2) This section does not apply to anything done by a person in the course of
providing, or offering to provide, accommodation to a near relative Land

"28J. It is unlawful for a person to sexually harass another person in the
course of dealing (whether as principal or agent) with that other person in
connection with:

   (a)  disposing of, or offering to dispose of, an estate or interest in land
        to the other person; or

   (b)  acquiring, or offering to acquire, an estate or interest in land from
        the other person Clubs

"28K. It is unlawful for a member of the committee of management of a club to
sexually harass a member of the club or a person seeking to become a member of
the club Commonwealth laws and programs

"28L. It is unlawful for a person:

   (a)  in the course of performing any function, or exercising any power,
        under a Commonwealth law or for the purposes of a Commonwealth
        program; or

   (b)  in the course of carrying out any other responsibility for the
        administration of a Commonwealth law or the conduct of a Commonwealth
        program; to sexually harass another person." Before section 48:
Insert in Division 1 of Part III Part applies to victimisation offences

"47A. In this Part, a reference to an act that is unlawful under a provision
of Part II includes a reference to an act that is an offence under section
94." After paragraph 48(1)(c):
Insert:

"(ca) to deal with complaints lodged under section 50A;" Section 49:
Omit "paragraph 48(1)(a)", substitute "paragraphs 48(1)(a) and (ca)" After
subsection 50(1):
Insert:

"(1A) In the case of a representative complaint, this section has effect
subject to section 69." After section 50:
Insert Referral of discriminatory awards to the Australian Industrial
Relations Commission

"50A.(1) A complaint in writing alleging that a person has done a
discriminatory act under an award may be lodged with the Commission by:

   (a)  a person aggrieved by the act, on that person's own behalf or on
        behalf of that person and one or more other persons aggrieved by the
        act; or

   (b)  2 or more persons aggrieved by the act, on their own behalf or on
        behalf of themselves and one or more other persons aggrieved by the
        act; or

   (c)  a person or persons who are in a class of persons aggrieved by the
        act, on behalf of all the persons in the class; or

   (d)  a trade union, on behalf of one or more of its members aggrieved by
        the act or on behalf of a class of its members aggrieved by the act.

"(2) If the Commission receives a complaint under this section, the Commission
must notify the Commissioner accordingly.

"(3) If it appears to the Commissioner that the act is a discriminatoryact,
the Commissioner must refer the award to the Australian Industrial Relations
Commission. However, the Commissioner need not refer the award if the
Commissioner is of the opinion that the complaint is frivolous, vexatious,
misconceived or lacking in substance.

"(4) If the Commissioner decides not to refer the award, the Commissioner must
give notice in writing of that decision to the complainant or each of the
complainants, together with notice of the reasons for the decision and of the
rights conferred by subsection (5).

"(5) A complainant who receives a notice under subsection (4) may, within 21
days after receipt, give a notice in writing to the Commissioner requiring the
Commissioner to refer the decision to the President.

"(6) If the Commissioner receives a notice under subsection (5), the
Commissioner must refer the decision to the President together with a report
about the decision.

"(7) If the Commissioner refers the award to the Australian Industrial
Relations Commission, the Commissioner must give notice in writing of the
outcome of the referral to the complainant or each of the complainants.

"(8) The Commissioner may obtain documents or information under section 54 for
the purposes of this section.

"(9) In this section:
'award' has the same meaning as in the Industrial Relations Act  1988 ;
'discriminatory act under an award' means an act that would be unlawful under
Part II except for the fact that the act was done in direct compliance with an
award made under the Industrial Relations  Act 1988 . For the purposes of this
definition, the fact that an act is done in direct compliance with the award
does not of itself mean that the act is reasonable;
'trade union' has the same meaning as in section 50 President may review a
decision of the Commissioner not to refer an award

"50B.(1) This section applies if the Commissioner refers to the President
under subsection 50A(6) a decision of the Commissioner not to refer an award
to the Australian Industrial Relations Commission.

"(2) The President must review the Commissioner's decision and must decide
either:

   (a)  to confirm the Commissioner's decision; or

   (b)  to set aside the Commissioner's decision and to directthe Commissioner
        to refer the award in accordance with section= 50A.

"(3) In spite of subsection (2), the President may refuse to review the
Commissioner's decision unless the complainant gives the President such
relevant information as the President requires.

"(4) The President must give written notice of a decision of the President
under subsection (2) to the complainant and to the Commissioner. The notice
must set out the reasons for the decision." Sections 69 and 70:
Repeal the sections, substitute Conditions for making a representative
complaint

"69.(1) A representative complaint may be lodged under section 50 only if:

   (a)  the class members have complaints against the same person; and

   (b)  all the complaints are in respect of, or arise out of, the same,
        similar or related circumstances; and

   (c)  all the complaints give rise to a substantial common issue of law or
        fact.

"(2) A representative complaint under section 50 must:

   (a)  describe or otherwise identify the class members; and

   (b)  specify the nature of the complaints made on behalf of the class
        members; and

   (c)  specify the nature of the relief sought; and

   (d)  specify the questions of law or fact that are common to the complaints
        of the class members. In describing or otherwise identifying the class
        members, it is not necessary to name them or specify how many there
        are.

"(3) A representative complaint may be lodged without the consent of class
members Commission may determine that a complaint is not to continue as a
representative complaint

"70.(1) The Commission may, on application by the respondent or of its own
motion, determine that a complaint should no longer continue as a
representative complaint.

"(2) The Commission may only make such a determination if it is satisfied that
it is in the interests of justice to do so for any of the following reasons:

   (a)  the costs that would be incurred if the complaint were to continue as
        a representative complaint are likely to exceed the costs that would
        be incurred if each class member lodged a separate complaint;

   (b)  the representative complaint will not provide an efficient and
        effective means of dealing with the complaints of the class members;

   (c)  the complaint was not brought in good faith as a representative
        complaint;

   (d)  it is otherwise inappropriate that the complaints be pursued by means
        of a representative complaint.

"(3) If the Commission makes such a determination:

   (a)  the complaint may be continued as a complaint by the complainant on
        his or her own behalf against the respondent, unless the complainant
        is a trade union; and

   (b)  on the application of a person who was a class member for the purposes
        of the former representative complaint, the Commission may join that
        person as a complainant to the complaint as continued under paragraph
        (a) Additional rules applying to the determination of representative
        complaints

"70A.(1) The Commission may, on application by a class member, replace the
complainant with another class member, where it appears to the Commission that
the complainant is not able adequately to represent the interests of the class
members.

"(2) A class member may, by notice in writing to the Commission, withdraw from
a representative complaint at any time before the Commission begins to hold an
inquiry into the complaint.

"(3) The Commission may at any stage direct that notice of any matter be given
to a class member or class members." Subsection 71(2):
Omit Section 72:
Repeal the section, substitute Class member for representative complaint not
entitled to lodge individual complaint

"72. A person who is a class member for a representative complaint is not
entitled to lodge a complaint in respect of the same subject matter."
Paragraphs 77(1)(a) and (c):
Add "and" at the end Subsection 77(1):
Add at the end:

"(d) may give such directions as to procedure as it considers are appropriate
or necessary to ensure that justice is done." Section 80:
Add at the end:

"(3) A reference in this section (other than the first reference) to a party
includes a reference to a class member in the case of a representative
complaint." Subparagraph 81(1)(b)(iv):
Omit "except where the complaint was dealt with as a representative complaint
- " Subsection 81(5):
Omit the subsection, substitute:

"(5) A determination by the Commission under subparagraph (1)(b)(iv) on a
representative complaint:

   (a)  may provide for payment of specified amounts or of amounts worked out
        in a manner specified by the Commission; and

   (b)  if it provides for payment in accordance with paragraph (a), must make
        provision for the payment of the money to the complainants concerned.

"(6) If the Commission makes a determination under subparagraph (1)(b)(iv) on
a representative complaint, the Commission may give such directions (if any)
as it thinks just in relation to:

   (a)  the manner in which a class member is to establish his or her
        entitlement to the payment of an amount under the determination; and

   (b)  the manner for determining any dispute regarding the entitlement of a
        class member to the payment.

"(7) In this section:
'complainant', in relation to a representative complaint, means the class
members." Section 82:
Repeal the section, substitute Determination must identify the class members
who are to be affected by the determination

"82. A determination under section 80 or 81 on a representative complaint must
describe or otherwise identify those of the class members who are to be
affected by the determination Registration of determination

"82A.(1) This section applies to a determination made under section 80 or 81,
except where the respondent is a Commonwealth agency or the principal
executive of a Commonwealth agency.

"(2) As soon as practicable after the determination is made, the Commission
must lodge the determination in a Registry of the Federal Court.

"(3) Upon lodgment of the determination, a Registrar must register the
determination. In this subsection, 'Registrar' has the same meaning as in
section 35A of the Federal Court of Australia Act 1976.

"(4) Within 7 days after the determination is registered, the Commission must
give written notice of the registration to the complainant and respondent to
the determination. The notice must specify the date of registration and must
include a copy of the determination Registered determination has effect as an
order of the Federal Court

"82B.(1) Upon registration of a determination under section 82A, the
determination has effect as if it were an order made by the Federal Court, but
subject to the following provisions.

"(2) In addition to binding the complainant and respondent to the
determination, the determination applies as follows to each class member who
is described or identified in the determination as mentioned in section 82:

   (a)  the class member is bound by the determination; and

   (b)  the class member may take action to enforce the determination.

"(3) No action for enforcement of the determination may be taken before the
end of the review period.

"(4) In the case of a determination made under section 81, a failure by the
respondent, during the review period, to comply with a positive requirement of
the determination does not count as a contravention of the determination.

"(5) The respondent to a registered determination may apply to the Federal
Court for review of the determination. The respondent's application for review
must be made within 28 days after the date of registration of the
determination.

"(6) In this section:
'review period' means:

   (a)  if the respondent to the determination applies to the Court under
        subsection (5) for review of the determination - the period starting
        on the day the determination is registered and ending at the time when
        proceedings on that review are completed or otherwise terminated; or

   (b)  in any other case - the period of 28 days starting on the day the
        determination is registered Review of registered determination

"82C.(1) This section applies if an application is made to the Federal Court
under section 82B for review of a determination.

"(2) The parties to the review are:

   (a)  the applicant; and

   (b)  the complainant to the determination, as respondent to the application
        for review.

"(3) The Court may at any time make an interim order that suspends the
operation of the whole or any part of the determination. The order may be made
on such conditions, if any, as the Court thinks fit.

"(4) In reviewing the determination, the Court may review all issues of fact
and law.

"(5) A party cannot adduce new evidence without the leave of the Court.

"(6) After reviewing the determination, the Court may make such orders as it
thinks fit (including a declaration of right). The orders may confirm a
determination that is registered under section 82A.

"(7) The Court may dismiss the application for review at any time if it
considers that the applicant is not prosecuting the application with due
dispatch. The Court may do this either of its own motion or on the application
of the respondent." Paragraphs 84(1)(a) and (b):
Omit the paragraphs, substitute:

"(a) has applied or proposes to apply to the Federal Court under section 82C
for review of a determination; or

   (b)  is the respondent to such a review;" Part III:
After Division 3 insert

"Division 4 - Review and enforcement of determinations involving Commonwealth
agencies Application of Division

"84A. This Division applies to a determination that is made under section 80
or 81 and has a Commonwealth agency, or the principal executive of a
Commonwealth agency, as the respondent Obligations of respondent agency

"84B.(1) If a Commonwealth agency is the respondent to a determination to
which this Division applies that is made under section 80, the agency must
comply with the determination.

"(2) If a Commonwealth agency is the respondent to a determination to which
this Division applies that is made under section 81:

   (a)  the agency must not repeat or continue conduct that is covered by a
        declaration included in the determination under subparagraph
        81(1)(b)(i); and

   (b)  the agency must perform the act or course of conduct that is covered
        by a declaration included in the determination under subparagraph
        81(1)(b)(ii), (iii), (v) or (vi) Obligations of principal executive of
        agency

"84C.(1) If the principal executive of a Commonwealth agency is the respondent
to a determination to which this Division applies that is made under section
80, the principal executive must take all such steps as are reasonably within
his or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that the determination is complied with.

"(2) If the principal executive of a Commonwealth agency is the respondent to
a determination to which this Division applies that is made under section 81,
the principal executive must take all such steps as are reasonably within his
or her power to ensure:

   (a)  that the terms of the determination are brought to the notice of all
        members, officers and employees of the agency whose duties are such
        that they may engage in conduct of the kind to which the determination
        relates; and

   (b)  that no member, officer or employee of the agency repeats or continues
        conduct that is covered by a declaration included in the determination
        under subparagraph 81(1)(b)(i); and

   (c)  the performance of any act or course of conduct that is covered by a
        declaration included in the determination under subparagraph
        81(1)(b)(ii), (iii), (v) or (vi) Damages

"84D.(1) If a determination to which this Division applies that is made under
section 81 includes a declaration that the respondent should pay damages to
the complainant, the complainant is entitled to be paid the amount specified
in the declaration.

"(2) If the respondent is a Commonwealth agency that has the capacity to sue
and be sued, the amount is recoverable as a debt due by the agency to the
complainant. In any other case, the amount is recoverable as a debt due by the
Commonwealth to the complainant.

"(3) In this section:
'complainant', in relation to a representative complaint, means a class member
Review of determinations regarding damages

"84E.(1) Application may be made to the Administrative Appeals Tribunal for
review of:

   (a)  a declaration of the kind referred to in subparagraph 81(1)(b)(iv)
        that is included in a determination to which this Division applies; or

   (b)  a decision of the Commission refusing to include such a declaration in
        a determination to which this Division applies.

"(2) A Commonwealth agency, or the principal executive of a Commonwealth
agency, may not apply for review without the permission of the Minister.

"(3) In exercising powers in relation to an application under subsection (1),
the Tribunal must be constituted by a presidential member who is a Judge and 2
other members who are not Judges. This subsection has effect subject to
subsection 21(1A) of the Administrative Appeals Tribunal Act 1975.

"(4) Terms used in subsection (3) that are also used in the
Administrative Appeals Tribunal Act 1975 have the same meanings as in that Act
Enforcement of determination against Commonwealth agency

"84F.(1) If a Commonwealth agency fails to comply with section 84B, an
application may be made to the Federal Court for an order directing the agency
to comply.

"(2) If the principal executive of a Commonwealth agency fails to comply with
section 84C, an application may be made to the Federal Court for an order
directing the principal executive to comply.

"(3) The application may be made by the Commission or by the complainant. In
the case of a representative complaint, 'complainant' means a class member.

"(4) On an application under this section, the Federal Court may make such
other orders as it thinks fit with a view to securing compliance by the
respondent.

"(5) An application may not be made under this section in relation to a
determination under section 81 until:

   (a)  the time has expired for making an application under section 84E for
        review of the determination; or

   (b)  if such an application is made, the decision of the Administrative
        Appeals Tribunal on the application has come into operation.".