s 38 [HRA 37] HUMAN RIGHTS & ANTI-DISCRIMINATION COMMISSION ACT 2009 [HRA 38] Functions of Proceedings Commissioner 37 (1) The functions of the Proceedings Commissioner include— (a) 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 42 and, if so, making the application; (b) 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; (c) in 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 subsection (1)(b) or (c) unless the Commissioner has given the person an opportunity to be heard. (3) Notwithstanding anything contained in this Act or any written law, the functions, powers and duties of the Proceedings Commissioner do not extend to receiving complaints against, or investigating, questioning or challenging, the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009 or such other Decrees made or as may be made by the President. [HRA 38] Proceedings 38 (1) Civil proceedings in the High Court lie at the suit of the Proceedings Commissioner against a person referred to in section 37(1)(b) or (c) for unfair discrimination or a contravention of human rights, provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or as may be made by the President, shall be brought by the Proceedings Commissioner. (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 section 37(1)(b) or (c) has engaged in unfair discrimination which affects that class or has contravened the human rights in relation to that class, provided however that no proceeding which seeks to question or challenge the legality or validity of the Fiji Constitution Amendment Act 1997 Revocation Decree 2009, or such other Decrees made or as may be made by the President, shall be brought by the Proceedings Commissioner. (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— (a) 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 proceeded with; (b) the Commission pursuant to section 29(1) decides not to investigate, or to investigate further, a complaint; or 10,821 Job: specialist/lof/allvols/serv_0/cap3a_399501 Page: 21 Date: 21/11/2016 Time: 23:31:5 bwpageid:: 10821:: bwservice::0:: Service 0