HUMAN RIGHTS COMMISSION ACT 1999
ARRANGEMENT OF SECTIONS
Part I - PRELIMINARY
1. Short title and commencement
3. Act to bind State
4. Application of Act
Part II - HUMAN RIGHTS COMMISSION
5. Incorporation of the Commission
6. Functions of the Commission
7. Powers and duties of the Commission
8. Membership of the Commission
9. Disqualification from office
10. Conditions of appointment
11. Functions of Chairperson
12. Proceedings Commissioner
13. Meetings of the Commission
14. Funds of the Commission
15. Adequacy of funding
16. Staff of the Commission
Part III - UNFAIR DISCRIMINATION
17. Areas where unfair discrimination prohibited
18. Genuine occupational qualification
19. Genuine justification
20. Guidelines on genuine occupational qualification and genuine
21. Social justice and affirmative action
23. Employment applications and advertisements
24. Liability of employers and principals
Part IV - COMPLAINTS AND INVESTIGATIONS
25. Complaints about contraventions of human rights
26. Complaints about unfair discrimination
27. Discretion whether to investigate
28. Investigation of Commission's own motion
29. Letters from prisoners or patients
30. Investigation procedure
32. Power to require information to be provided
33. Disclosure of certain matters not to be required
34. Procedure after investigation
35. Functions of Proceedings Commissioner
37. Right of Proceedings Commissioner to appear in High Court
40. Power to make interim order
41. Substantial merits, evidence and hearings
Part V - MISCELLANEOUS
42. Annual Report
43. Delegation of functions by Commission or Commissioner
44. Nature of delegation
45. Commissioners and employees to maintain secrecy
46. Protection from suit
48. Expenses and allowances
TO CONFER FUNCTIONS ON THE HUMAN RIGHTS COMMISSION IN ADDITION TO THOSE IN THE
CONSTITUTION, TO REGULATE ITS PROCEDURE, AND FOR RELATED MATTERS
ENACTED by the Parliament of the Fiji Islands -
Part I - PRELIMINARY
Short title and commencement
- (1) This Act may be cited as the Human Rights Commission Act 1999.
(2) This Act commences on a date or dates to be appointed by the Minister by
notice in the Gazette.
(3) The Minister may appoint a different date for the commencement of different
In this Act, unless the context otherwise requires -
"Bill of Rights" means the Bill of Rights contained in Chapter 4 of the Constitution;
"Commission" means the Human Rights Commission which was established by section
42(1) of the Constitution and which has the additional functions conferred by
"Commissioner" means any member of the Human Rights Commission, except that in
Part II it does not include the Chairperson;
"Constitution" means the Constitution Amendment Act 1997;
"department" means a department in the public service;
"employment" includes -
||the employing of an independent contractor;
||the relationship between a person for whom work is done by a contract worker
pursuant to a contract and the person who supplies that worker;
||employment in the public service, including the Fiji Police Force, the Fiji
Prisons Service and the Republic of the Fiji Military Forces;
"functions of the Commission" means the functions conferred on the Commission
by section 42(2) of the Constitution, by or under this Act, or by or under any
other written law.
"human rights" means the rights embodied in the United Nations Covenants and
Conventions on Human Rights and includes the rights and freedoms set out in the
Bill of Rights;
"Minister" means the Minister responsible for human rights matters;
"Proceedings Commissioner" means the person designated as such under section
"prohibited ground of discrimination" means a ground set out in section 38(2)
of the Constitution.
Act to bind State
This Act binds the State.
Application of Act
This Act applies both within and outside the Fiji Islands.
Part II - HUMAN RIGHTS COMMISSION
Incorporation of the Commission
- (1) The Commission is a body corporate with perpetual succession
and a common seal, may enter into contracts, may sue and be sued in its corporate
name, has the power to acquire, hold and dispose of property both real and personal
and generally may do all such acts and things as are necessary for and incidental
to the performance of its functions by or under the Constitution, this Act or
any other written law.
(2) Without limiting any other provision of this Act, the Commission has the
rights, powers and privileges of a natural person of full age and capacity.
Membership of the Commission
In advising the President as to the persons to be appointed as members
of the Commission pursuant to section 42 of the Constitution, the Prime Minister
must have regard not only to their personal attributes but also to -
Disqualification from office
||their knowledge or experience of the different aspects of matters likely
to come before the Commission; and
||the desirability of having as members of the Commission persons with a diversity
of the personal characteristics referred to in subsection 38(2) of the Constitution.
A person is not qualified to be Commissioner if he or she is, and
is deemed to have vacated office if he or she becomes, -
Conditions of appointment
||a member of the House of Representatives or of the Senate;
||a member of a local authority;
||an office-holder of a political party;
||an undischarged bankrupt or insolvent; or
||a person who has been removed from public office under subsection 172(2)
of the Constitution.
- (1) A Commissioner must not -
||actively engage in politics;
||subject to subsection (2), engage either directly or indirectly in the management
or control of a body corporate, or of any other body carrying on business for
(2) Nothing in subsection (1)(b) prevents a Commissioner from -
||holding office in a professional body in relation to which his or her qualifications
are relevant; or
||engaging in the direct or indirect management or control of a body corporate,
or of any other body carrying on business for profit, if leave for such engagement
is granted by the Minister.
(3) The salary of a Commissioner is as prescribed by the Prescription of Salaries
Functions of Chairperson
The functions of the Chairperson are -
||to chair meetings of the Commission;
||to be responsible for matters of administration in relation to the Commission;
||to allocate spheres of responsibility among Commissioners;
||any other functions conferred or imposed on the Chairperson by the Constitution,
this Act or any other written law.
- (1) The Chairperson may from time to time in writing designate
a Commissioner, or the Chairperson himself or herself, to act as Proceedings
Commissioner for the purposes of this Act.
(2) A designation under subsection (1) may operate for a specified period of
time and may either be general or specify a particular case or cases or class
(3) Until a designation under subsection (1) is revoked, it continues in force
according to its terms.
(4) A designation under this section is revocable at will and no such designation
prevents the exercise of any function by the Commission as a whole.
Meetings of the Commission
- (1) Meetings of the Commission are to be held at such times and
places as the Commission or the Chairperson from time to time appoints.
(2) At a meeting of the Commission, the quorum necessary for the transaction
of business is the Chairperson and one Commissioner.
Funds of the Commission
- (1) The funds of the Commission consist of -
||any moneys appropriated by Parliament for the purposes of the Commission
and paid to the Commission;
||all other moneys lawfully received by the Commission for its purposes; and
||all accumulations of income derived from any such money.
(2) The accounts of the Commission must be audited by the Auditor General.
Adequacy of funding
- The Minister must use his or her best endeavors to ensure that
moneys appropriated by the Parliament for the Commission under section 14(1)(a)
are adequate -
Staff of the Commission
||for the performance of the functions of the Commission; and
||to maintain the Commission's independence and impartiality.
- (1) The Commission must appoint -
||a Director of the Commission; and
||any other employees, including casual and contract employees, needed for
the efficient performance of the functions of the Commission.
(2) The Director and other employees of the Commission are subject to the control
and direction of the Commission.
(3) The Director and other employees of the Commission hold office on terms and
conditions determined by the Commission after consultation with the Public Service
(4) The Director of the Commission is entitled to such remuneration determined
from time to time by the Higher Salaries Commission.
Part III - UNFAIR DISCRIMINATION
Areas where unfair discrimination prohibited
- (1) It is unfair discrimination for a person, while involved in
any of the areas set out in subsection (3), directly or indirectly to differentiate
adversely against or harass any other person by reason of a prohibited ground
(2) Without limiting subsection (1), sexual harassment, for the purposes of this
section, constitutes harassment by reason of a prohibited ground of discrimination.
(3) The areas to which subsection (1) applies are-
||the making of an application for employment, or procuring employees for an
employer, or procuring employment for other persons;
||participation in, or the making of an application for participation in, a
||the provision of an approval, authorization or qualification that is needed
for any trade, calling or profession;
||the provision of training, or facilities or opportunities for training, to
help fit a person for any employment;
||subject to subsection (4), membership, or the making of an application for
membership, of an employers' organization, an employees' organization or an organization
that exists for members of a particular trade, calling or profession;
||the provision of goods, services or facilities, including facilities by way
of banking or insurance or for grants, loans, credit or finance;
||access by the public to any place, vehicle, vessel, aircraft or hovercraft
which members of the public are entitled or allowed to enter or use;
||the provision of land, housing or other accommodation;
||access to, and participation in, education.
(4) Subsection (3)(f) does not apply to access to membership of a private club
or to the provision of services or facilities to member of a private club.
Genuine occupational qualification
- (1) It is not unfair discrimination in relation to any of the
areas referred to in paragraphs (a) to (e) of section 17(3) if the prohibited
ground of discrimination is a genuine occupational qualification.
(2) For the avoidance of doubt, adverse differentiation by reason of a prohibited
ground of discrimination is a genuine occupational qualification where a position
is for the purposes of an organized religion and the differentiation complies
with the doctrines, rules or established customs of the religion.
Adverse differentiation by reason of a prohibited ground of discrimination
in relation to any of the areas referred to in paragraphs (f) to (j) of section
17(3) is not unfair discrimination if there is genuine justification for the
Guidelines on genuine occupational qualification and genuine justification
Without limiting the Commission's power to issue guidelines on any
other matter within its jurisdiction on the Commission may, for the avoidance
of acts and practices which might amount to unfair discrimination, from time
to time issue non-binding guidelines on genuine occupational qualifications and
Social justice and affirmative action
A programme, whether provided by the Government or by the private
sector, designed to achieve for any groups or categories of persons who are disadvantaged
effective equality of access to the areas set out in section 17(3) is not unfair
discrimination, provided it complies in other respects with the Bill of Rights.
It is unfair discrimination for a person while involved in any of
the areas set out in section 17(3) to victimize any other person on the ground
that that person, or a relative or associate of that person -
Employment applications and advertisements
||intends to make use of his or her rights under this Act or the Bill of Rights;
||has made use of his or her rights, or promoted the rights of some other person,
under this Act or the Bill of Rights;
||has given information or evidence in relation to any complaint, investigation
or proceeding under this Act or the Bill of the Rights;
||has declined to do any act which would contravene this Act or the Bill of
the Rights; or
||has otherwise done anything under or by reference to this Act or the Bill
- (1) It is unfair discrimination -
||to use or circulate any form of application, or to make any of enquiry or
about any person seeking employment, which indicates, or could reasonably be
understood as indicating, an intention directly or indirectly to differentiate
adversely by reason of a prohibited ground of discrimination; or
||to publish or display, or cause or allow to be published or displayed, any
advertisement or notice which indicates, or could reasonably be understood as
indicating, an intention to differentiate adversely by reason of a prohibited
ground of discrimination.
(2) Subsection (1) does not affect the operation of sections 18, 19 and 21.
Liability of employers and principals
- (1) Subject to subsection (3), anything done or omitted by a person
as an employee of another person is, for the purposes of this Act, to be treated
as done or omitted by the other person as well as by the first - mentioned person,
whether or not it was done with that other person's knowledge or approval.
(2) Anything done or omitted by a person as the agent of another person is, for
the purposes of this Act, to be treated as done or omitted by that other person
as well as by the first-mentioned person, unless it was done or omitted without
that other person's express or implied authority, previous or subsequent.
(3) In proceedings under this Act against any person in respect of an act alleged
to have been done or omitted by an employee of that person, it is a defence for
that person to prove that he or she took all steps reasonably practicable to
prevent the employee from doing or omitting the act, or from doing or omitting
as an employee of that person acts or omissions of that description.
Part IV - COMPLAINTS AND INVESTIGATIONS
Complaints about contravention of human rights
Any person may make a complaint to the Commission, including a representative
complaint on behalf of other persons with a similar cause of complaint, about
a contravention or alleged contravention of human rights.
Complaints about unlawful discrimination
Any person may make a complaint to the Commission, including a representative
complaint on behalf of other persons with a similar cause of complaint, about
Discretion whether to investigate
- (1) The Commission must investigate any complaint received by
it, unless, before commencing or during the investigation it decides not to do
so because -
||the complaint is not within the jurisdiction of the Commission;
||the complaint is trivial, frivolous, vexatious or not made in good faith;
||the complainant, or a person acting on his or her behalf, has brought proceedings
relating to the same matter in a court or tribunal;
||the complainant has available another remedy or channel of complaint that
the complainant could reasonably be expected to use;
||the complainant has not a sufficient interest in the complaint;
||the person alleged to be aggrieved does not desire that the complaint be
||the complaint has been delayed too long to justify an investigation;
||the Commission has before it matters more worthy of its attention; or
||the resources of the Commission are insufficient for adequate investigation,
and may defer or discontinue an investigation for any of these reasons.
(2) No decision by the Commission to decline, defer or discontinue an investigation
into a complaint affects the Commission's power to inquire generally into a matter
of its own initiative.
Investigation of Commission's own motion
The Commission may investigate of its own motion any act, omission,
practice, requirement or condition which is or appears to be unfair discrimination
or a contravention of human rights or which has been referred to it by the High
Letters from prisoners or patients
Notwithstanding any written law to the contrary (other than the
Constitution), a letter written by -
||a person in custody; or
||a patient in a hospital,
and addressed to the Commission must be forwarded immediately, unopened and unaltered,
to the Commission by the person in charge of the place or institution where the
writer of the letter is detained or in which he or she is a patient.
- (1) Before investigating any matter within its jurisdiction, the
Commission must inform -
||the complainant (if any);
||the person alleged to be aggrieved, if not the complainant;
||the person to whom the investigation relates; and
||in relation to an investigation relating to a department the person holding
or performing the duties of the office of Secretary of the department, of the
Commission's intention to make the investigation.
(2) An investigation under this Act must be conducted in private.
(3) The Commission may hear or obtain information from any person whom the Commission
considers can assist in the investigation and may make whatever enquiries it
(4) Nothing in this Act requires the Commission to hold any hearing and no person
is entitled as of right to be heard by the Commission.
(5) The Commission must not in any report make any comment that is adverse to
or derogatory of any person to whom a complaint relates without -
||providing the person with a reasonable opportunity of being heard; and
||fairly setting out in the report the person's defence (if any).
(6) In conducting an investigation, the Commission is not bound by the strict
rules of evidence or procedure, but must act fairly at all times.
- (1) The Commission may, before commencing an investigation, or
during or after an investigation, call a conciliation conference of the parties
to the conciliation by formally requesting, by post, telephone, facsimile, electronic
mail or otherwise, the attendance of each party at a time and place specified.
(2) If a person fails to comply with a request made under subsection (1) the
Commission may issue a summons requiring the person to attend a conciliation
conference at a time and place specified in the summons.
(3) The objectives of a conciliation conference are to identify the matters at
issue between the parties and to use the best endeavors of the Commission to
secure a settlement between the parties on the matters at issue.
Power to require information to be provided
- (1) Subject to this section and to section 33, for the purposes
of an investigation a Commissioner may, by notice in writing, require any person
to furnish any information, or to produce any document, record or thing in the
possession or under the control of that person that is in the opinion of the
Commissioner relevant to the investigation.
(2) If a Commissioner has reason to believe that a person is able to give information
relevant to an investigation, the Commissioner may, by notice in writing, require
the person to attend before him or her, on a date and at the time and place specified
in the notice, to answer questions relevant to the investigation.
(3) For the purposes of an investigation the Commission and the Commissioner
have the same powers as a judge of the High Court in respect of the attendance
and examination of witnesses and the production of documents.
(4) Notwithstanding anything in any other written law (other than the Constitution),
a person is not excused from giving information, producing a document, record
or thing or answering a question when required to do so pursuant to this Act,
if the only ground for refusal is that the giving of the information, the production
of the document, record or thing or the answer to the question-
||would contravene a provision of a written law, would be contrary to the public
interest, or might tend to incriminate the person or make him or her liable to
a penalty; or
||would disclose legal advice furnished to a Minister or a department,
but the information, document, record, thing or answer is not admissible in evidence
against the person in proceedings other than proceedings for an offence against
(5) Subject to section 33,a person is not excused from giving information, producing
a document, record or thing or answering a question when required to do so pursuant
to this Act on the ground that -
||a claim of State privilege could be made in relation to the material concerned;
||the material is commercially sensitive.
(6) Except on the trial of any person for perjury in respect of his or her sworn
or affirmed testimony, or proceedings for an offence against section 47, no statement
made or answer given by that or any other person in the course of any inquiry
by or proceedings before the Commission or a Commissioner is admissible in evidence
against any person in any court or at any inquiry or other proceedings, and no
evidence in respect of proceedings before the Commission or a Commissioner must
be given against any person.
Disclosure of certain matters not to be required
- (1) If the Attorney General certifies that the disclosure of information
concerning a specified matter (including the furnishing of information in answer
to a question or the disclosure to the Commission or a Commissioner of the contents
of a specified document or record or the production of a specified thing) would
be contrary to the public interest because it would -
||seriously harm the commercial interests of any person or body;
||prejudice the security, defence or international relations of the State;
||involve the disclosure of deliberations or decisions of the Cabinet or of
a committee of the Cabinet,
the Commission or a Commissioner cannot require a person to give information
concerning the matter, to answer the questions concerning the matter or to produce
the document, record or thing.
(2) The Commission must withhold publication of any written material which comes
into its possession in the course of an investigation and which is the subject
of a certificate by the Attorney General under subsection (1).
Procedure after investigation
- (1) After completing an investigation, the Commission must inform
the parties of the result of the investigation and whether, in its opinion-
||the complaint does not have substance, or cannot be established to have substance
or, in relation to an investigation of the Commission's own motion, that the
matter ought not to be proceeded with; or
||the complaint has substance or, in relation to an investigation of the Commission's
own motion, that the matter ought to be proceeded with.
(2) If the Commission is of the opinion that a complaint does not have substance,
or cannot be established to have substance, but considers nonetheless that it
may be possible to reach a settlement between any of the parties concerned, the
Commission may act as a conciliator and use its best endeavors to reach a settlement
of the complaint.
(3) If the Commission is of the opinion that a complaint does not have substance,
or cannot be established to have substance, or if the Commission pursuant to
section 27(1) decides not to investigate, or investigate further, a complaint,
it must inform the complainant of the complainant's right to bring civil proceedings
before the High Court-
||in relation to a complaint of unfair discrimination - pursuant to section
36 of this Act;
||in relation to a complaint of contravention of the Bill of Rights - pursuant
to section 41 of the Constitution.
(4) If the Commission has investigated a complaint and is of the opinion that
the complaint has substance, it must act as conciliator in relation to the complaint
and use its best endeavors to effect a settlement in relation to the complaint.
(5) For the purposes of this section, "settlement" includes a satisfactory assurance
by the person to whom a complaint or investigation relates against repetition
of the conduct that was the subject - matter of the complaint or the investigation
or against conduct of a similar kind.
(6) Whether or not it takes any of the actions referred to in subsection (2),
(3) and (4), the Commission may -
Functions of Proceedings Commissioner
||advise the parties of their respective rights, including, in relation to
a complaint of contravention of the Bill of Rights, the complainant's right to
bring proceedings in the High Court under section 41 of the Constitution;
||refer to the complaint and, if it considers appropriate, the result of the
investigation to another competent authority;
||make recommendations to the competent authority, proposing amendments to
or reform of any laws, regulations or administrative provisions or practices
which have created the difficulties or hardship encountered by the complainant
or the aggrieved person;
||recommend to the relevant authority, in respect of a person who in the opinion
of the Commission has contravened human rights, either prosecution of the person
or the taking of other action, and the authority must consider
- (1) The functions of the Proceedings Commissioner include -
||in relation to a complaint or an investigation of the Commission's own motion
- deciding whether an application should be made for an order under section 40
and, if so, making the application;
||in relation to a complaint resulting from a failure by a party to observe
the terms of a settlement on a previous occasion - deciding whether to institute
proceedings against the party and, if so, instituting the proceedings;
||in a relation to a complaint or an investigation of the Commission's own
motion, if it appears to the Proceedings Commissioner that a settlement has not
been reached and that no action or further action by the Commission is likely
to facilitate a settlement - deciding whether to institute proceedings against
the person against whom the complaint was made or to whom the investigation related,
and if so, instituting the proceedings.
(2) The Proceedings Commissioner must not institute proceedings against a person
referred to in paragraph (b) or (c) of subsection (1) unless the Commissioner
has given the person an opportunity to be heard.
- (1) Civil proceedings in the High Court lie at the suit of the
Proceedings Commissioner against a person referred to in paragraph (b) or (c)
of section 35 (1) for unfair discrimination or a contravention of the Bill of
(2) The Proceedings Commissioner may, under subsection (1), bring proceedings
on behalf of a class of persons if the Commissioner considers that a person referred
to in paragraph (b) or (c) of section 35 (1) has engaged in unfair discrimination
which affects that class or has contravened the Bill of Rights in relation to
(3) If proceedings are commenced by the Proceedings Commissioner under subsection
(1), neither the complainant (if any) nor the aggrieved person (if not the complainant)
may be an original party to the proceedings, or, unless the High Court so orders,
join or be joined in the proceedings.
(4) Notwithstanding subsection (1), the complainant (if any) or the aggrieved
person (if not the complainant) may bring proceedings before the High Court if
||the Commission is of the opinion that the complaint does not have substance
or cannot be established to have substance or that the matter ought not to be
||the Commission pursuant to section 27(1) decides not to investigate, or to
investigate further, a complaint; or
||the Proceedings Commissioner would be entitled to bring proceedings, but
(i) agrees to the complainant, in the case of a complaint, or an aggrieved
person, in relation to an investigation of the Commission's own motion, bringing
(ii) decides not to take proceedings.
(5) Nothing in this section limits the right of any person to apply to the High
Court for redress for a contravention of the Bill of Rights under section 41
of the Constitution.
Right of Proceedings Commissioner to appear in High Court
- (1) The Proceedings Commissioner may appear and be heard in the
High Court, the Court of Appeal or the Supreme Court in relation to any proceedings
under section 36, whether or not the Proceedings Commissioner is or was a party
to the proceedings.
(2) With leave of the court, tribunal or arbitrator, the Proceedings Commissioner
may appear and be heard in relation to any proceedings before a court, tribunal
or arbitrator in which human rights are in issue.
(3) If the Proceedings Commissioner appears before any court, tribunal or arbitrator,
he or she may, unless the rules of procedure of the court, tribunal or arbitrator
otherwise provide -
||appear in person or by a legal practitioner;
||adduce evidence and cross-examine witnesses, unless the proceedings are by
way of appeal,
- (1) In any proceedings before the High Court brought under section
36 by the Proceedings Commissioner, a complainant or an aggrieved person, the
plaintiff may seek any or all of the remedies described in subsection (2) of
(2) If in any proceedings as mentioned in subsection (1) the High Court is satisfied
on the balance of probabilities that the defendant has engaged in unfair discrimination
or has contravened the Bill of Rights, it may grant one or more of the following
||a declaration that the defendant has engaged in unfair discrimination or
contravened the Bill of Rights;
||an order restraining the defendant from continuing or repeating the conduct
complained of or causing or permitting others to engage in conduct of the same
kind or of any similar kind specified in the order;
||an order that the defendant perform any act specified in the order with a
view to redressing any loss or damage suffered by the complainant or the aggrieved
person or to preventing conduct of a similar kind in the future;
||a declaration that a contract requiring performance of anything that constitutes
unfair discrimination or contravenes the Bill of Rights is void and unenforceable;
||such other relief as the High Court thinks fit.
(3) It is not a defence to proceedings under this section that the unfair discrimination
or contravention of the Bill of Rights was unintentional or without negligence
on the part of the defendant, but the High Court must take the conduct of the
defendant into account in deciding what remedy, if any, to grant.
(4) In any proceedings under section 36, the High Court may make such award as
to costs as it thinks fit, whether or not it grants any other remedy.
(5) If the Proceedings Commissioner is a party to proceedings, any costs in the
proceedings awarded against the Commissioner under subsection (4) must be paid
by the Commission and the Commission is not entitled to be indemnified by the
complainant or, as the case may be, the aggrieved person for such costs.
- (1) In proceedings under section 36 for unfair discrimination
or a contravention of the Bill of Rights, the High Court may award damages against
the defendant in respect of any one or more of the following -
||pecuniary loss suffered or expense incurred by the complainant or the aggrieved
person as a result of the conduct complained of;
||expenses reasonably incurred by the complainant or the aggrieved person in
seeking redress for the conduct complained of;
||loss of any benefit, whether or not of a monetary kind, which the complainant
or the aggrieved person might reasonably have been expected to obtain but for
the conduct complained of;
||humiliation, loss of dignity and injury to feelings of the complainant or
the aggrieved person.
(2) Subject to subsection (3), the Commission must pay any damages recovered
by the Proceedings Commissioner under this section to the complainant or the
aggrieved person on whose behalf the proceedings were brought.
(3) If the complainant or the aggrieved person is an unmarried minor or a person
of unsound mind the Proceedings Commissioner may, in his or her discretion, pay
the damages to the Public Trustee or to any person or trustee corporation acting
as the trustee of the property of that person.
Power to make interim order
- (1) In respect of any matter which is the subject of an investigation
by the Commission and in which the High Court has or may have jurisdiction, a
judge may make an interim order if he or she is satisfied that it is necessary
in the interests of justice to make the order to preserve the position of the
parties pending the result of the investigation and the final determination of
any proceedings resulting from the investigation.
(2) An application for an interim order under subsection (1) may be made by the
Proceedings Commissioner or, in a case to which section 36(4) applies, the complainant
or the aggrieved person.
(3) A copy of an application under subsection (3) must be served on the defendant,who
must be given an opportunity to be heard before a decision on the application
(4) If an interim order has been made, the defendant may appeal to the Court
of Appeal to rescind or vary the order, unless the order was made with the defendant's
Substantial merits, evidence and hearings
In any proceedings under this Act before the High Court, the court
Part V - MISCELLANEOUS
||must act according to equity, good conscience and the substantial merits
of the case, without regard to technicalities;
||may receive as evidence any statement, document, information or matter that
will or might in the court's opinion assist it to deal effectively with the matters
before it, whether or not it would be admissible but for this section;
||may, if it considers it desirable to do so -
(i) order that any hearing held by it be heard in private, either in whole
(ii) make an order prohibiting the publication of any report or account
of the evidence or other proceedings before it (whether heard in public or in
private) either in whole or in part;
(iii) make an order prohibiting the publication of any book or document
produced at the hearing.
- (1) Without limiting the right of the Commission to report at
any other time, the Commission must, within 3 months after the end of each financial
year, furnish to the President a report on the exercise of its functions under
the Constitution and this Act during the year, and must submit a copy to each
House of the Parliament for laying before that House and for consideration by
the relevant committee (if any) of that House.
(2) Following the tabling of the Annual Report in both Houses of the Parliament,
the Commission must hold a public meeting at a time and place it fixes to discuss
the contents of the Annual Report and the carrying out of its functions during
Delegation of functions by Commission or Commissioner
- (1) The Commission may from time to time by writing under the
hand of the Chairperson, delegate to a Commissioner any of the functions or powers
of the Commission under the Constitution or this Act, except the functions set
out in section 42(2) of the Constitution and section 6 of this Act, this power
of delegation, and the power to make any report under this Act.
(2) With the prior written approval of the Minister, any Commissioner may from
time to time, by writing under his or her hand, delegate to any employee of the
Commission any of the Commissioner's powers under this Act, except this power
of delegation and the power to make any report under this Act.
Nature of delegation
- (1) The following provisions apply to a delegation under section
||it may made to a specified person or to the holder for the time being of
a specified office or to the holders of offices of a specified class.
||It may be made subject to such restrictions and conditions as the Commissioner
or Commissioner thinks fit, and may be made either generally or in relation to
any particular case or class of cases;
||It is revocable at will and no such delegation prevents the exercise of any
function by the Commission or Commissioner, as the case may be;
||Until revoked, it continues in force according to its terms and if, in the
case of a delegation by a Commissioner, the Commissioner by whom it was made
ceases to hold office, it continues to have effect as if made by his or her successor.
(2) A person purporting to exercise any power of the Commission or of a Commissioner
by virtue of a delegation under section 43 must, when required to do so, produce
evidence of his or her authority to exercise the power.
Commissioners and employees to maintain secrecy
- (1) Subject to this section, a Commissioner or any employee of
the Commission who, either directly or indirectly and either while remaining
or after ceasing to be a Commissioner or employee, makes a record of, or divulges
or communicates to any person, any information acquired in the performance of
his or her duties under this Act, commits an offence and is liable on conviction
to a fine of $1000.
(2) Subsection (1) does not prevent a Commissioner or an employee of the Commission
from making a record of, or divulging or communicating to any person, information
acquired by the Commissioner or the employee in the performance of his or her
duties for purposes connected with the performance of the functions of the Commission
under the Constitution or this Act.
(3) Subsection (1) does not prevent the Commission from disclosing in a report
made under this Act any matter which in the Commission's opinion ought to be
disclosed in the course of setting out the grounds for the conclusions and recommendations
contained in the report.
(4) Subsection (1) does not prevent the Commission from disclosing information
or making a statement to the public or a section of the public with respect to
the performance of the functions of the Commission.
(5) The Commission must not, in disclosing information or making a statement
under subsection (4), disclose the name of a complainant or aggrieved person
or any other information that would enable the complainant or aggrieved person
to be identified unless it is fair and reasonable in all the circumstances to
Protection from suit
Neither the Commission, a Commissioner nor an employee of the Commission
is liable to an action, suit or proceeding for or in relation to an act done
or omitted to be done in good faith in exercise or purported exercise of a power
or authority conferred by the Constitution or this Act.
- (1) A person who refuses or fails, without reasonable excuse -
||to attend before the Commission or a Commissioner;
||to be sworn or make an affirmation;
||to furnish information;
||to produce a document, record or thing; or
||to answer a question,
when required to do so pursuant to this Act, commits an offence and is liable
on conviction to a fine of $1,000 and to imprisonment for 6 months.
(2) A person who -
||without reasonable excuse, willfully obstructs, hinders or resists the Commission,
a Commissioner or an employee of the Commission in the performance of their functions;
||furnishes information or makes a statement to the Commission, a Commissioner
or an employee of the Commission knowing that it is false or misleading in a
commits an offence and is liable on conviction to a fine of $1,000 and to imprisonment
for 12 months.
Expenses and allowances
The Commission may, in its discretion, pay to -
||any person by whom a complaint has been made; or
||any person who attends or who furnishes information for the purposes of an
such amounts in respect of expenses properly incurred or by way of allowances
or compensation for loss of time, as are payable under the Criminal Procedure
Code to a witness attending at a trial or an inquiry at the High Court.
The Minister may make regulations, not inconsistent with this Act,
prescribing all matters that are required or permitted by this Act to be prescribed
or that are convenient to be prescribed for carrying out or giving effect to
Passed by the House of Representatives this 3rd day of February 1999.
Passed by the Senate this 9th day of March 1999.