Guide to Human Rights Cases

This guide sets out information about human rights cases in the Federal Court and the steps involved from the commencement through to the finalisation of these types of cases.

You should always consider the relevant legislation (including the Federal Court Act of Australia 1976 (Cth) ("Federal Court Act") and the Federal Court Rules 2011 (Cth) ("Federal Court Rules").

Human rights cases fall within the Administrative and Constitutional Law and Human Rights (ACLHR) National Practice Area (NPA).

This guide is procedural advice only. You should seek your own legal advice about legal cases and procedure in the Federal Court and in this area of law. 

 

A. What is a human rights proceeding?

A human rights proceeding is a case which is brought under one of the following discrimination statutes:

The Court has power to hear these proceedings under s 46PO of the Australian Human Rights Commission Act 1986 (Cth). Normally, the Commission must have issued a Notice of Termination before the Court can begin to deal with the case.


B. What do I have to prove?

In human rights proceedings, for you to succeed you must prove, at a general level, three things:

  • what happened to you – what was done to you, and who did it;
  • that what happened to you was unlawful under one of the discrimination statutes - you must identify the area of activity (education, accommodation etc) and the reason you say you were treated as you were (eg sex, race etc); and
  • what harm or damage you have suffered because of what was done to you.

 

C. What can I ask the Court to order?

In this area, if you are successful the Court may order the person who discriminated against you to do certain things to fix the discrimination. The Court can also order that the person pay you compensation.

 

D. Steps in a human rights proceeding

The person making the complaint about discrimination is called the "applicant".

The person or organisation that the applicant says has carried out the discrimination is called the "respondent".

If you want to come to the Federal Court to defend yourself against a complaint, see section E.

1. Complaint to the Australian Human Rights Commission

  • Before you can commence a human rights claim for unlawful discrimination in the Federal Court:
    • you must first make a complaint to the Australian Human Rights Commission and the complaint must be terminated;
    • you need a copy of the termination notice from the Australian Human Rights Commission;
    • you must commence a claim within the time limits in the Federal Court - usually, it must be made within 60 days after the issue of the notice of termination.

2. Preparing your application

  • Complete the Form 116 - Originating Application under the Australian Human Rights Commission Act (r 34.163 of the Federal Court Rules) and, if required, Form 16 - the Applicant's Genuine Steps Statement (r 8.02 of the Federal Court Rules). 
  • If you are making your complaint more than 60 days after the date on the notice of termination you need to complete the "Extension of time" part of Form 116. This part of the form is where you request an extension of time for making the complaint and explain the reasons for the delay.
  • Make a copy of the complaint that you made to the Australian Human Rights Commission. Make a copy of the notice of termination. Copies of these documents must accompany the originating application.

3. Lodgment, filing & fees

  • Once your application and any supporting documents have been completed you need to get these to the Court (see Division 2.3 of the Federal Court Rules). This is called 'lodging'. If the Court accepts those documents, that is referred to as "filing". 
  • You can lodge a document at the Court in a number of ways. The Court's preference is that you eLodge using the Court's electronic eLodgment system, however you may also lodge documents at your local registry, by post or by fax. You cannot lodge documents by email. More information about how to lodge a document is available on the Court's website. 
  • Upon lodgment you must pay the application fee (if any). If you cannot afford this fee, you may be able to ask the Court to exempt you from having to pay it or to defer the time for its payment. You can get a form to ask the Court to either exempt or defer payment and information about the circumstances where an exemption or deferral can be given on the exemptions and deferral of fees page or from the Registry.
  • If the correct forms have been completed, lodged and accepted by the Court, then the Court will electronically insert, as the first page of the document, either:
    • a Notice of Filing and Hearing (if a hearing date is required) - which sets out the time and date when the people involved in the case need to come to the Court for the first case management hearing; 
    • a Notice of Filing - confirm filing of the document. 

4. Service

  • Once you have filed the required documents with the Court, you must give a copy of the stamped application with accompanying document(s), to each of the people involved in the case. This is known as "service".
  • Part 10 of the Federal Court Rules 2011 (Cth) (Rules) relates to service, including how to go about personal service. Registry can assist you about what to do.

5. Case management hearing

  • The next step will usually be a first case management hearing. The Judge who has been allocated the case will hold this hearing. You must prepare carefully for this hearing.
  • The Central Practice Note (CPN-1) and the Administrative and Constitutional Law and Human Rights Practice Note, set out what the Court expects parties to come prepared to discuss at the first case management hearing. This includes:
    • an idea of how many witnesses you intend to call; and 
    • what documents you might need to obtain from the respondent or respondents, or from anyone else.
  • If you or your representative do not come to the Court at that time, the Court may dismiss your proceeding.
  • At the first case management hearing the Judge will make orders to prepare the complaint for hearing. The Judge may order:
     the applicant provide extra information about the complaint.
    the respondent provide information (for instance by filing a defence and/or affidavit/s)
     the parties to attend a mediation to see if the matter can be resolved by agreement between the parties
     the complaint be transferred to the Federal Circuit Court of Australia.

6. Documents and discovery

  • You may be entitled to ask another party for documents relevant to your case, if all the documents have not been provided.
  • You may also be asked by another party to supply documents you have that might relate to the issues in the proceeding.
  • If you consider you need more documents, and the other party does not agree to give them to you, you must request the Court to make an order for discovery. Part 20 of the Federal Court Rules relates to discovery.
  • In human rights proceedings, discovery orders may be made more often than in administrative or constitutional law cases, but the Court decides whether discovery is appropriate if the parties cannot agree.
  • If you consider you need more documents than this, and the other party does not agree to give them to you, you can request the Court to make an order for discovery. Before making such a request, you should be familiar with:

7. Mediation

  • The Court has a broad range of options to facilitate alternative dispute resolution (ADR), including mediation (see s 53A of the Federal Court Act and Part 28 of the Federal Court Rules). 
  • A wide variety of outcomes can be achieved in mediation, often more than can be achieved by court orders, even if you are successful at trial.
  • In human rights cases, a successful mediation can result in an agreement that the respondents will do certain things to remedy the discrimination, or pay compensation, or both. A wide variety of outcomes can be achieved in mediation, often more than can be achieved by court orders, even if you are successful at trial.
  • Further information about mediation in the Federal Court is available in the Central Practice Note and on the Court's website.

8. Preparing for trial: affidavits or outlines of evidence

  • The individual Judge will decide whether she or he wants the trial to be undertaken with affidavits, or with oral evidence.
  • The Judge may prefer parties and witnesses to give oral evidence, in the witness box at the hearing. If this is the case, the Judge may order parties to provide outlines of evidence.
  • The Judge will make orders about when parties must file and serve affidavits, or outlines of evidence. Parties can put documents with affidavits if they wish those documents to form part of the evidence. They can also attach documents to outlines of evidence.
  • Parties should refer to the information relating to evidence in Part 11 of the Central Practice Note and Part 9 of the ACLHR Practice Note
  • In human rights cases, it may be necessary for each party to call expert evidence. An expert is a person who has specialised knowledge and experience about a matter that is in dispute between the parties, and who is able to give the Court her or his opinion about that matter in dispute. For example,
    • whether a person has a disability and what kind of disability may be established by calling an expert medical practitioner
    • whether a person has suffered psychological damage from unlawful discrimination for which she or he should be compensated may be established by calling a psychiatrist or psychologist to give her or his opinion about what kind of harm a person has suffered.
  • If an expert witness is retained, parties should be familiar with the Court's Expert Evidence Practice Note, including the Annexure A - Harmonised Expert Witness Code of Conduct.

9. Preparing for trial: Court Books

  • The Judge may order an applicant, or sometimes a respondent if the applicant is self-represented, to file and serve a Court Book. The Court Book contains all the necessary documents and evidence, and previous decisions, as well as the filed court documents, all in one book for easy access.

10. Preparing for trial: submissions

  • Submissions are written documents that set out what a party's case is about. They cover what a party says are the relevant facts about what happened, what law the party says applies and arguments about why the Court should make the orders the party asks the Court to make (see Part 14 of the Central Practice Note and Part 12 of the ACLHR Practice Note).
  • The Court may order a summary of submissions to be filed and served on the other parties ahead of the trial.
  • The Court may also order that the parties file and serve final submissions at or after the end of the trial.

11. The trial itself

  • The trial will be listed for one or more specified days and the Court expects parties to finish in the time that has been allocated. Trials usually start at 10:15 am with a one to one and a half hour break for lunch and finish about 4:15 pm each day.
  • The Court might place limits on how long a party can ask witnesses questions, or how long a party can make arguments for.
  • If there are expert witnesses called by both sides, the Court may order the expert witnesses to give their evidence together. This is called concurrent evidence. The Judge will explain this to you if the Judge decides this should occur in your proceeding.
  • At the hearing, the Judge will listen to the evidence of the applicant and the respondent and their witnesses (if they have any). The Judge will also listen to any submissions about the relevant law.
  • The Judge will then consider the complaint and give a final decision.
  • A transcript of the trial is always made. However a party must pay for access to the transcript. Information about how to order a copy of the transcript is set out in the Access to Documents and Transcripts Practice Notes (GPN-ACCS) and on the Court's website. Generally with the permission of the Docket Judge or Duty Registrar, you may be permitted to "inspect" a copy of the transcript at the registry, at a cost. The Registry may require you to provide an undertaking to the Court that you will not make a copy of the transcript. 

12. The Court's decision

  • The Court may make an immediate decision on your case when the case finishes and give oral reasons for the decision in open court. If this happens you will subsequently receive a copy of the transcript of those reasons and a copy of the orders made. 
  • Alternatively, the Judge may "reserve" her or his decision to think about what is the correct decision and to take some time to read and consider all the evidence, and to write reasons for the decision (judgment).
  • You will be notified when the Court is ready to hand down its decision in your case. Usually this will be done in open court. The Court will pronounce its orders and give written reasons for its decision. You will get a copy of those orders and reasons.
  • Although it is not always possible or achievable, the Court's policy is that it attempts to hand down decisions within 3 months of the final submissions being made.
  •  If your case is unsuccessful you may be able to apply to the court to appeal the decision. More information regarding the appeals process is available on the court's website, including information relating to the time limits that apply to starting an appeal.
  • If the Judge is satisfied that there has been unlawful discrimination the Judge may make some orders against the respondent. For example, the Judge may order:
    that the respondent stop the discrimination
    that the respondent pay the applicant some compensation
    that the respondent do something to address the complaint.
  • If the Judge is not satisfied that there has been unlawful discrimination the Judge will dismiss the complaint.

13. Costs

  • The Court has wide powers about costs. The orders the Court might make include:
     making an order that the unsuccessful party pay the successful party's costs (this is the most common costs order), possibly a lump sum costs order;
     making an order that the unsuccessful party pay some but not all of the successful party's costs ;
     in appropriate cases, not ordering costs even if the party loses, because for example the case was about a matter of public interest, or important legal principle;
     at the start of the proceeding, placing limits on the costs which can be ordered - sometimes called "cost capping orders". Cost capping orders can be made at the start of a proceeding and limit (or 'cap') the maximum amount of costs that the successful party (whoever that is) can recover. If you want the Court to consider a costs capping order you should raise this with the Judge early in the matter i.e. at the first case management hearing.
  • In most matters in the Federal Court, the unsuccessful party is ordered to pay part of the legal costs of the successful party. The amounts involved can be many thousands of dollars, sometimes tens of thousands or more.
  • Costs orders are enforceable and bankruptcy proceedings can be taken if orders are not complied with. For further information regarding costs, refer to the Difference between fees and costs and the Court's Costs Practice Note (GPN-Cost).
 

E. What happens if a matter is commenced against you?

  • If the applicant has made a complaint against you, the applicant must give you a copy of the documents which the applicant has filed with the Court. 
  • If you want to come to the Federal Court to defend yourself against the complaint, you need to take the following steps:

1. Preparing for Court

  • Once the forms have been filled out you need to lodge the forms together with any accompanying documents. For further information about lodging and filing documents, refer to Part D.

2. Attend Court

  • On the day of your hearing you should check the Court List which is available in each registry for the courtroom and time. You should aim to get to the Court with enough time to allow you to find the courtroom and make sure you are in court on time.
  • You should make sure that you bring a copy of all the documents that you have filed at the Court or have been served with and be prepared with any relevant material that you might need for your matter.
  • This hearing is called the first case management hearing. If you or your representative do not come to the Court at that time, the Court may still make orders which affect you.

 

F. Further information

Human Rights cases fall within the ACLHR NPA. Further information about practice and procedure in this NPA can be found:

The Court's website contains useful information to assist litigants including, attending court, how to address the Judge and a courtroom layout.