Last Updated 17 August 2021

If the president of the Australian Human Rights Commission (AHRC) terminates a complaint, any person affected can make an application to the Federal Court or the Federal Circuit Court alleging unlawful discrimination (s 46PO Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)). The application must be made within 60 days of the president issuing a written notice of termination (s 46PO(2) AHRC Act). The court has the power to extend the time for making an application.

The application to the court must not be made unless the court concerned grants leave to make the application, or the complaint was terminated by the president because (s 46PO(3A) AHRC Act):

  • the president is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court
  • there is no reasonable prospect of the matter being settled by conciliation.

The application is limited to the same unlawful discrimination as was alleged in the terminated complaint, or it must arise out of the same acts, omissions or practices as the subject of the terminated complaint (s 46PO(3) AHRC Act). Additionally, the AHRC may assist a person to prepare the forms for making an application to the court (s 46PT AHRC Act). Applications are to be made by a particular form that is available from a registry of the court. Similarly, a form exists for defending an application. In both cases of application and defence, an accompanying affidavit is required. An application fee will apply, but parties can apply for a waiver or deferral of the fee.

Which court to choose

The jurisdictions of the Federal Court and the Federal Circuit Court are identical in relation to human rights matters. There are no monetary jurisdictional limits in either court.

Transfer between the courts

The Federal Court rules specifically deal with whether a matter should be transferred between the Federal Court and the Federal Circuit Court (order 27.12 Federal Court Rules). A party to a proceeding can apply to have a matter transferred from the Federal Circuit Court to the Federal Court and vice versa.

The factors that will be considered include:

  • whether the proceeding is likely to involve questions of general importance so it would be desirable that it be considered by the Federal Court
  • whether it is likely to be less expensive and more convenient for the parties if transferred
  • whether the proceeding is likely to be heard and determined earlier in the Federal Circuit Court
  • the wishes of the parties.