Law and Justice Legislation
Amendment Act 1993

No. 13 of 1994

An Act to amend various Acts relating to law and justice,
and for related purposes

[Assented to 18 January 1994]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Law and Justice Legislation Amendment Act 1993.

Commencement

2.(1) Subject to this section, this Act commences on the day on which it receives the Royal Assent.

(2) Section 22 is taken to have commenced on 13 January 1993.

(3) Subject to subsection (4), Part 6 commences on a day to be fixed by Proclamation.

(4) If Part 6 does not commence under subsection (3) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.

PART 2—AMENDMENTS OF THE DISABILITY DISCRIMINATION ACT 1992

Principal Act

3. In this Part, “Principal Act” means the Disability Discrimination Act 19921.

Registered determination has effect as an order of the Federal Court

4.(1) Section 104B of the Principal Act is amended by omitting subsections (3), (4), (5) and (6) and substituting the following subsections:

“(3) No action to enforce the determination may be taken before the end of the normal application and review period.

“(4) In the case of a determination under section 103, a failure by the respondent, during the normal application and review period, to comply with a positive requirement of the determination is not a contravention of the determination.

“(5) The respondent to a registered determination may apply to the Federal Court for review of the determination.

“(6) Subject to subsection (7), the respondent’s application for review must be made before the end of 28 days after the day the determination is registered.

“(7) After those 28 days, the respondent may apply for review only with the leave of the Federal Court. The Court may grant leave only in exceptional circumstances.

“(8) If the Court grants leave, it may make one or more of the following orders:

(a) an order prohibiting action, or further action, to enforce the determination during a specified period ending no later than when proceedings on the review are completed or otherwise terminated;

(b) an order staying, for such a period, action to enforce the determination that has already begun;

(c) an order that failure to comply, during such a period, with specified positive requirements of the determination is not a contravention of the determination;

(d) an order that a past failure to comply, during such a period, with such requirements is taken never to have been such a contravention.

“(9) The Court may make an order under subsection (8):

(a) on such conditions, if any, as it thinks fit; and

(b) whether or not it also makes an order under subsection 104C(3).

“(10) The Federal Court may vary or revoke an order under subsection (8).

“(11) In this section:

‘normal application and review period’ means the period starting when the determination is registered and finishing:

(a) if the respondent applies in accordance with subsection (6) for a review of the determination—when proceedings on the review are completed or otherwise terminated; or

(b) in any other case—at the end of the 28th day after the day the determination is registered.”.

(2) The amendment made by subsection (1) does not apply to a determination made before the commencement of this section.

Assistance in proceedings before the Federal Court

5. Section 106 of the Principal Act is amended:

(a) by omitting from subsection (1) “who has:” and substituting “who:”;

(b) by omitting paragraph (1)(a) and substituting the following paragraphs:

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

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

PART 3—AMENDMENTS OF THE PRIVACY ACT 1988

Principal Act

6. In this Part, “Principal Act” means the Privacy Act 19882.

Interpretation

7. Section 6 of the Principal Act is amended:

(a) by omitting from subsection (1) the definition of “representative complaint” and substituting the following definition:

“ ‘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 Commissioner has determined should no longer be continued as a representative complaint;”;

(b) by inserting in subsection (1) the following definition:

“ ‘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 38B;”.

Acts and practices of agencies etc.

8. Section 7 of the Principal Act is amended by omitting paragraph (2)(b) and substituting the following paragraph:

“(b) the Defence Intelligence Organisation or the Defence Signals Directorate of the Department of Defence; or”.

Limits on disclosure by credit providers of personal information contained in reports relating to credit worthiness etc.

9. Section 18N of the Principal Act is amended by omitting paragraph (1)(bd) and substituting the following paragraphs:

“(bd) the report or information is disclosed:

(i) to a Minister, Department or authority, of a State or Territory whose functions or responsibilities include giving assistance (directly or indirectly) that facilitates the giving of mortgage credit to individuals; and

(ii) for the purpose of enabling the Minister, Department or authority to determine the extent of assistance (if any) it will give in relation to the giving of mortgage credit to the individual concerned; or

(bda) the report or information is disclosed:

(i) to a Minister, Department or authority, of a State or Territory whose functions or responsibilities include the management or supervision of schemes or arrangements under which assistance is given (directly or indirectly) that facilitates the giving of mortgage credit to individuals; and

(ii) for the purpose of enabling the Minister, Department or authority to manage or supervise any such scheme or arrangement; or”.

Complaints

10. Section 36 of the Principal Act is amended by inserting after subsection (2) the following subsection:

“(2A) In the case of a representative complaint, this section has effect subject to section 38.”.

11. Sections 38 and 39 of the Principal Act are repealed and the following sections are substituted:

Conditions for making a representative complaint

“38.(1) A representative complaint may be lodged under section 36 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

“(2) A representative complaint under section 36 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

(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.

Commissioner may determine that a complaint is not to continue as a representative complaint

“38A.(1) The Commissioner may, on application by the respondent or on his or her own initiative, determine that a complaint should no longer continue as a representative complaint.

“(2) The Commissioner may only make such a determination if the Commissioner 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;

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

“(3) If the Commissioner 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 Commissioner may join that person as a complainant to the complaint as continued under paragraph (a).

Additional rules applying to the determination of representative complaints

“38B.(1) The Commissioner may, on application by a class member, replace the complainant with another class member, where it appears to the Commissioner 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 Commissioner, withdraw from a representative complaint at any time before the Commissioner begins to hold an inquiry into the complaint.

“(3) The Commissioner may at any stage direct that notice of any matter be given to a class member or class members.

Amendment of representative complaints

“38C. If the Commissioner is satisfied that a complaint could be dealt with as a representative complaint if the class of persons on whose behalf the complaint is lodged is increased, reduced or otherwise altered, the Commissioner may amend the complaint so that the complaint can be dealt with as a representative complaint.

Class member for representative complaint not entitled to lodge individual complaint

“39. 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.”.

Determination of the Commissioner

12. Section 52 of the Principal Act is amended:

(a) by omitting from subparagraph (1)(b)(iii) “except where the complaint was dealt with as a representative complaint—”;

(b) by inserting after subsection (1) the following subsections:

“(1A) The loss or damage referred to in paragraph (1)(b) includes injury to the complainant’s feelings or humiliation suffered by the complainant.

“(1B) A determination of the Commissioner under subsection (1) is not binding or conclusive between any of the parties to the determination.”;

“(4) A determination by the Commissioner under subparagraph (1)(b)(iii) on a representative complaint:

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

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

“(5) If the Commissioner makes a determination under subparagraph (1)(b)(iii) on a representative complaint, the Commissioner may give such directions (if any) as he or she 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.

“(6) In this section:

‘complainant’, in relation to a representative complaint, means the class members.”.

13. Section 53 of the Principal Act is repealed and the following section is substituted:

Determination must identify the class members who are to be affected by the determination

“53. A determination under section 52 on a representative complaint must describe or otherwise identify those of the class members who are to be affected by the determination.”.

14. Divisions 3 and 4 of Part V of the Principal Act are repealed and the following Divisions are substituted:

“Division 3—Registration of determinations in Federal Court

Registration of determination

“54.(1) This section applies to a determination made under section 52, except where the respondent is an agency or the principal executive of an agency.

“(2) As soon as practicable after the determination is made, the Commissioner 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 Commissioner 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

“55.(1) Upon registration of a determination under section 54, 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 53:

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

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

“(3) No action to enforce the determination may be taken before the end of the normal application and review period.

“(4) A failure by the respondent, during the normal application and review period, to comply with a positive requirement of the determination is not a contravention of the determination.