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of unlawful discrimination arise out of essentially the same factual circumstances. For example, an Asian woman may make a complaint to HREOC alleging that her dismissal from employment amounted to discrimination on the ground of her sex. On the basis of things said or done during the inquiry or conciliation process, the woman may form the view that her dismissal also amounted to discrimination on the ground of her race. If the complaint cannot be conciliated and is terminated, and the woman makes an application to the Federal Court in respect of the terminated complaint, this paragraph may permit her to allege racial discrimination in that application."

It appears to me that the first limb of s 46PO(3) of the HREOCA was likely to have been intended to cover situations in which, for instance, a person makes a complaint to the Commission of the doing of an act constituting unlawful disability discrimination in employment, which complaint cannot be conciliated and is terminated, and the person then makes an application to this Court in respect of the terminated complaint, claiming instead, but on the basis of the same allegations of fact, unlawful disability discrimination in contract work: see s 17 of the DDA.

[41] On the construction which I give to s 46PO(3) of the HREOCA, it is apparent that par (a) thereof provides no warrant for an applicant in a proceeding in this Court to make any allegation of fact in the proceeding different from those which were made in the applicant's earlier complaint to the Commission. On the other hand, par (b) thereof does permit an applicant in a proceeding in this Court to make allegations of fact in the proceeding different to a certain extent from those which were made in the applicant's earlier complaint to the Commission. However, I find nothing, either in the language of par (b) itself or in the example of its operation given in the Senate explanatory memorandum, insofar as that example reveals a legislative intent regarding the operation of par (b), which would support a construction of the paragraph that permitted Mr Charles to allege in the present proceeding the doing by Fuji Xerox after [the date on which the HREOC complaint was made] of any act constituting unlawful disability discrimination in employment.

[42] I add that a construction of s 46PO(3) of the HREOCA which does not permit Mr Charles to allege in the present proceeding the doing by Fuji Xerox after 3 April 1999 [the date on which the HREOC complaint was made] of any act constituting unlawful disability discrimination in employment appears to me to be consistent with the policy of the HREOCA of ensuring that there exists an opportunity for the attempted conciliation of complaints before they are litigated: compare subss 46PF(1) and (4) of the HREOCA. (A similar policy of ensuring an opportunity for attempted conciliation in the first instance was also apparent in the DDA before its amendment by the amending Act.) I note in that connection the following exchange when the Opposition sought to amend in the House of Representatives, after its second reading, the Bill which became the amending Act. The Opposition spokesman moved (see HR Hansard, 11 March 1999, p 3754) an amendment whose effect he described as being "to enable complainants to amend a complaint before the Federal Court proceedings, even though that particular issue may not have been dealt with in the commission". The justification which he offered for the proposed amendment was as follows:

"These matters of discrimination can be flexible in the sense that events can occur which are part of an ongoing process of discrimination but may not themselves have been pleaded or raised in the conciliation proceedings. So we say it is appropriate for a complainant to be able to amend the complaint after conciliation and before commencement in the Federal Court."

The Government rejected that proposed amendment, the Attorney General

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