GUIDELINES FOR SUPPRESSION ORDERS UNDER SECTION 14(2) OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 (CTH)
1. Grounds for a suppression order
Pursuant to s 14(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”), the Commission may give directions prohibiting the disclosure of the identity of any person (“a suppression order”) who has:
(a) made a complaint to the Commission under ss 20(1)(b) or 32(1)(b) of the HREOC Act;
(b) furnished or proposes to furnish information to the Commission in connection with such a complaint;
(c) produced or proposes to produce a document to the Commission in connection with such a complaint;
(d) given or proposes to give evidence to the Commission in connection with such a complaint; and/or
(e) made or proposes to make a submission to the Commission in connection with such a complaint
where the Commission is of the opinion that the preservation of the anonymity of that person is necessary to protect:
(a) the security of her/his employment;
(b) her/his privacy; and/or
(c) her/his human rights.
It is an offence to contravene a direction given by the Commission under s 14(2) that is applicable to a person: s 14(7) of the HREOC Act. This is a strict liability offence: s 14(7A) of the HREOC Act.
2. When can an application for a suppression order be made?
An application for a suppression order can be made by a person at any time after a complaint has been lodged with the Commission. For example:
(a) a person who has supplied documents to the Commission in connection with a complaint may seek a suppression order prior to the preliminary findings being issued by the President (or Delegate); or
(b) a person who has made a complaint to the Commission may seek a suppression order prior to the President's (or Delegate's) Report of the inquiry being sent to the Attorney-General for tabling in Parliament. This may be important at this stage as, once tabled, this Report is a public document.
3. Commission Guidelines for Suppression Orders
The Commission has developed Guidelines to assist it determine applications for suppression orders. These Guidelines outline how to make an application for a suppression order and the procedure to be adopted by the Commission if such an application is made
GUIDELINES FOR SUPPRESSION ORDERS UNDER SECTION 14(2) OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION ACT 1986 (CTH)
1. These guidelines apply to any inquiry conducted by the Commission into a complaint made pursuant to s 20(1)(b) or s 32(1)(b) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act").
2. The President
is required to perform the Commission's function of inquiring into these
complaints and exercises all of the Commission's powers under
s 14 during such inquiries: s 8(6) of the HREOC Act. The President may
delegate her or his powers relating to these inquiries to the Human Rights
Commissioner: s 19(2B) of the HREOC Act.
3. Pursuant to s 14(2) of the HREOC Act, the President, or her or his delegate, may give directions prohibiting the disclosure of the identity of a person ("a suppression order") where s/he considers that the preservation of the anonymity of that person is necessary to protect that person's security of employment, privacy or any human right.
4. A person may make an application in writing to the President, or her or his delegate, or an oral application where the President, or her or his delegate, permits, for a suppression order at any time after a complaint has been made to the Commission in accordance with s 20(1)(b) or s 32(1)(b) of the HREOC Act.
5. Where an application for a suppression order is made to the President, or her or his delegate, s/he will inform relevant parties to the complaint of the nature of that application and will seek submissions from those parties on the question of whether such an order should be made.
6. Where the President, or her or his delegate, is of the preliminary view that it is appropriate to make a suppression order of her/his own motion, s/he will advise relevant parties to the complaint of this preliminary view and the reasons for that view and will seek submissions from those parties on the question of whether such an order should be made.
7. In determining whether the preservation of a person's identity is necessary to protect that person's security of employment, privacy or human rights the President, or her or his delegate, will balance and consider the following matters:
a. whether the identity of the person in connection with the subject matter of the inquiry is already in the public domain;
b. the seriousness of the consequences for the person if such an order is not made;
c. any prejudice that would flow to relevant parties to the complaint if the order was made; and
d. the desirability of ensuring that interested persons are sufficiently informed of the results of the Commission's inquiry.
