|
Where am I now? Lawlink > Administrative Decisions Tribunal of NSW > About Us > Administrative Decisions Tribunal: Equal Opportunity Division
|
Print page
|
Administrative Decisions Tribunal: Equal Opportunity Division
The Equal Opportunity Division of the Administrative Decisions Tribunal (ADT) deals with complaints of discrimination, harassment, vilification or victimisation in employment, education, accommodation, registered clubs and the provision of goods and services. The ADT can only deal with complaints that have been referred to the ADT by the President of the NSW Anti-Discrimination Board.
You cannot lodge a complaint of discrimination, harassment, vilification or victimisation directly with the ADT. If you believe you have been discriminated against you must lodge a complaint in writing with the Anti-Discrimination Board at:
Anti-Discrimination Board
Level 4, Stockland House
175-183 Castlereagh Street
Sydney NSW 2000
Telephone: (02) 9268 5555
Facsimile: (02) 9268 5500
What sort of matters may be referred by the President Anti Discrimination Board?
Are there any decisions of the President ADB which cannot be reviewed by the Tribunal?
What can I do if the ADB declines my complaint?
What will happen to a discrimination complaint once it is received by the ADT?
Who will hear my case?
What happens if I can't attend the hearing?
What kind of decision can the ADT make?
Can a legal practitioner or agent represent me?
What do I need to do when corresponding with the Tribunal?
The ADB has told me I need leave of the Tribunal to proceed. What does this mean?
What can I do if I don't agree with the ADT's decision?
We reached agreement following conciliation at the ADB, and now the other party has not complied. What can we do?
What if the other party fails to comply with an order of the Tribunal?
What will happen to an application for review of an exemption decision once it is received by the ADT?
How do I get more information?
What sort of matters may be referred by the President Anti Discrimination Board (ADB)?
The President refers a complaint where:
- The complaint cannot be resolved by conciliation
- Conciliation has been unsuccessful
- The nature of the complaint requires referral
- All parties want the complaint referred
- A person has not provided relevant material
- A complaint is unresolved eighteen months after the date on which it was made subject to certain conditions
Are there any decisions of the President ADB which cannot be reviewed by the Tribunal?
The Tribunal cannot review a decision of the President to decline a complaint when it is made under Section 89B of the Anti Discrimination Act. This includes the situation where:
- there has been no contravention of the Act
- all or part of the conduct occurred more than 12 months before the making of the complaint
- a vilification complaint does not satisfy the requirements of S 88 of the Act
- the President is not satisfied the complaint was made on behalf of the named complainant
What can I do if the ADB declines my complaint?
If your complaint is declined the ADB will advise you in writing and give you the reasons the complaint or part of the complaint was declined.
In some circumstances you may, within 21 days after the date on which the notice was given, require the ADB to refer the complaint to the ADT. The ADB will tell you if you have this right.
The ADB has told me I need leave of the Tribunal to proceed. What does this mean?
There are certain situations where a person must seek leave (permission) of the Tribunal before the matter can be heard. These are set out in S 92(1)(a) and include where the President is satisfied that:
- The complaint is frivolous/vexatious/lacking in substance
- There is no contravention of the Act
- Further action is not warranted
- Other more appropriate remedies is being or should be pursued
- The complaint is/should be dealt with elsewhere
- Respondent has taken appropriate steps to remedy the conduct
- Not in the public interest to take further action
Leave is also required where:
- the President has declined a complaint made by a person on behalf of another
- the President is not satisfied person is acting in the best interests or retains the confidence of the person on whose behalf complaint is made
- the matter involves serious vilification and the complaint has been referred to the Attorney General
What will happen if I ask for permission for my complaint to go ahead?
You will get a letter from the ADT telling you that your case has been listed for a "leave" hearing in a few weeks' time. The ADT will decide whether to give you permission to go ahead with your complaint at that hearing. The respondent will be asked to come to the hearing as well.
The ADT will generally base that decision on the documents in the President's Report and what you and the respondent tell the ADT at the leave hearing. The main thing the ADT will concentrate on is whether you have a reasonable chance of winning your case if it is decided at a full hearing.
Generally, each party pays their own legal costs if lawyers represent them at the leave hearing. The Tribunal will only order one party to pay the other party's costs where that party has done something to justify a costs order against them. Things that could justify a costs order include delaying the hearing without a reasonable excuse or bringing a complaint that has no chance of being successful.
Of the 17 leave applications the ADT dealt with last year, leave to proceed with the complaint was given in two of those applications. In both cases the applicant was unsuccessful at the full hearing of the complaint.
If the ADT gives you permission to continue with your complaint you will be given a date for a case conference. If the ADT refuses you permission to continue with your complaint, there is no appeal to the Appeal Panel of the ADT.
There are also some circumstances where if the President of the ADB declines to refer a complaint, there is no right to have the matter referred to the Tribunal (with or without leave).
What will happen to a discrimination complaint once it is received by the ADT?
The President of the ADB will send a copy of your complaint, the respondent's response to your complaint and any other relevant information on your file that is not confidential, to the ADT. As well as this information the President will write a report of your complaint which is basically a summary of what your complaint is about.
When the ADT gets the report from the President, we will send a copy to you and the respondent and tell you when your complaint will be listed for a case conference. You should get that letter within a few days of the ADT receiving the documents from the President. The case conference will be set down for a date 3 to 5 weeks later. A case conference is not the hearing. It is a meeting with you and the respondent and a member of the ADT.
What will happen at the case conference?
At the case conference, an ADT Member will talk to you and the other relevant parties about the complaint. The purpose of the case conference is to clarify the issues in dispute. Select this link for Summary of Complaint. You will be given some options about getting legal advice if you do not already have a lawyer representing you. You will also be asked if you want to try to resolve your complaint by having a mediation, rather than a hearing. If your complaint is suitable for mediation you will be given a date for a mediation 3 to 4 weeks after the case conference. The mediation is a confidential, informal meeting where an experienced mediator helps you and the respondent come to an agreement that you are both happy with. The mediator does not take sides.
ADT Members who are trained in mediation techniques will conduct the mediation at free of charge. If the matter is resolved, the matter can be finalised. If either party does not want to have a mediation, or your complaint is not suitable for mediation, you will need to prepare your case for a hearing.
Matters that are not resolved by mediation are scheduled for a further case conference to set a timetable for the hearing. The ADT may require you and the other parties to prepare material about the complaint before the hearing to ensure the matter can be dealt with quickly and inexpensively.
The ADT member will talk about the steps that you and the other relevant parties may need to take before the hearing of the complaint. This includes a timetable for filing and service of statements.
What happens if I can't attend the case conference or the hearing in Sydney?
If you live outside the Sydney metropolitan area, or have a disability that makes it difficult for you to travel to Sydney, the case conference can be conducted by telephone. Hearings and mediations are usually conducted in Sydney but if most of the people involved lived outside Sydney, mediations and hearings can be held in regional areas of NSW.
Can a legal practitioner or agent represent me?
A complainant or respondent to proceedings before the Tribunal is entitled to appear personally. The Tribunal's procedures are designed to help people who are not legally represented. A party can be represented by a legal practitioner. To be represented by an agent you will need the Tribunal's permission. Both you and the agent should sign the Notice of Representation. The Notice must be filed in the registry and sent to the other party(ies) to the proceedings. The agent will then ask for permission from the Tribunal Member the next time the matter is listed.
Can I get legal advice from the Legal Aid Commission?
Yes. Lawyers from the Legal Aid Commission will give complainants and respondents to anti-discrimination complaints free preliminary legal advice about the complaint.
To organise an interview with a Legal Aid Commission lawyer, ring the ADT on 9223 4677. The interviews take place at the ADT in Sydney once a month. the interview can be by phone if you cannot travel to Sydney. The interviews are scheduled to last for 30 minutes, but if that is not enough time, another interview can be arranged.
Complainants can get the advice when they are deciding whether to ask the Anti-Discrimination Board to refer the complaint to the Administrative Decisions Tribunal (ADT).
Complainants and respondents can also get the advice after the complaint has been referred to the ADT either before or after the first case conference.
The advice will cover:
a) the merits of the complaint and/or the defence to the complaint;
b) whether or not the person is entitled to a grant of legal aid to represent the person at mediation and/or at a hearing;
c) whether the person will be referred to a private solicitor who will represent the person for nothing (pro bono); and
d) general procedures in the ADT.
In some cases, a person may be able to have a second interview with the Legal Aid lawyer to cover a specific topic like what to expect at mediation, how to write a statement and the documents that should be requested from the other side. Prior to the interview the person asking for advice must give permission for the Legal Aid solicitor to look at their file.
What do I need to do when corresponding with the Tribunal?
All correspondence to the Tribunal in relation to current proceedings should be addressed to the Registrar of the Tribunal. Correspondence of this kind should not be addressed to a Member of the Tribunal. A copy of all correspondence sent to the Tribunal must also be sent to each other party of the proceedings. The author should record the fact that the correspondence has been sent to the other parties by writing cc: Name of party at the end of the letter. If it has not been copied to the other party, the author must explain in writing why this has not been done. The Registrar will decide how the correspondence is to be handled.
Who will hear my case?
Three ADT Members will hear your case. One Member will be an experienced lawyer and the other two Members will have specialist knowledge in the area of discrimination involved in your case.
How many cases go to hearing and what percentage are successful?
Of the 123 complaints that were finalised last year only 30% went to a hearing. The rest was resolved at or after a mediation, or dismissed before a hearing. Of the 30% that went to a hearing half were successful and the other half were unsuccessful. In terms of numbers, 15 of 123 complaints that were referred last year resulted in a favourable outcome for the applicant at a hearing. Those outcomes included payment of damages to the applicants.
What happens at the hearing?
At the hearing, each party will be asked to present their evidence. The applicant will present their evidence first. This involves calling each witness to give their evidence in the witness box after giving an oath or affirmation. The other party will then be allowed to cross-examine each witness. The party calling the witness can then re-examine the witness by asking any questions that arise from the cross-examination. When all the evidence has been given, the parties give their submissions, that is their arguments as to why the complaint should succeed or fail. The Tribunal usually "reserves" its decision. That means it will go away and consider the evidence and submissions and give written reasons for its decision later. You will be told when the decision has been made.
You are not allowed to record what people are saying at the hearing. There is an official person whose job it is to record the proceedings. You can ask for a copy of the sound recording.
What kind of decision can the ADT make?
- Dismiss the complaint in whole or in part
- Find the complaint substantiated in whole or in part
- Award compensation up to $100,000 for loss or damage suffered
- Order the person responsible for the discrimination, harassment or vilification not to continue or repeat the action
- Order the person or company responsible to take certain actions such as reinstating a person to their job if they have been dismissed
- Order the person or company to publish an apology or a retraction
- Order the discriminatory terms in a contract or agreement to be void or altered
- Order the person or company responsible to publish an apology or to implement a program to stop future discrimination
- Review decisions by the President of the ADB about exemptions from the Anti Discrimination Act 1977
Does the loser pay the winner's costs?
Not necessarily. Generally, each party pays their own legal costs. The Tribunal will only order one party to pay the other party's costs where that party has done something to justify a costs order against them. Things that could justify a costs order include delaying the hearing without a reasonable excuse or bringing a complaint that has no chance of being successful.
What can I do if I don't agree with the ADT's decision?
You may have a right of appeal to the Appeal Panel of the ADT on a question of law. The appeal may also extend to a review of the merits of the decision if leave is granted by the Appeal Panel.
In some cases there is a right of appeal to the Supreme Court. If you are not sure of your appeal rights, contact the ADT Registry.
We reached agreement following conciliation at the ADB, and now the other party has not complied. What can we do?
Within six months of the date of the agreement you can apply to the ADT for the agreement to be registered. If the agreement is registered it can be enforced as if it is an order of the Tribunal.
You can get a copy of the application form for an agreement to be registered on the Tribunal website or from the ADT Registry.
What if the other party fails to comply with an order of the Tribunal?
In relation to a non monetary order, you can apply to the Registrar ADT for a certificate of order. The order can then be filed in the Supreme Court for enforcement.
If a monetary order is not complied with, the party can apply for a certificate from the Registrar ADT. The Certificate can then be filed as a judgement debt in the court that has jurisdiction to recover the amount.
What will happen to an application for review of an exemption decision once it is received by the ADT?
You will receive a letter from the ADT informing you that your application has been received. There will also be some information about what happens next. The government agency who made the decision will be asked to give you and the ADT a statement outlining the reason for their decision and copies of supporting documents used to make the decision.
You will also be given a date to attend the ADT. This is called a 'directions hearing' or a 'conference'. A Member of the ADT will talk to you and a representative from the ADB about the best way to deal with your application. There is a filing fee.
How do I get more information?
You can select any of the following links to find out more about the legislation or the procedures before the Equal Opportunity Division of the Tribunal. Otherwise you can telephone the ADT Registry on 9223 4677 to discuss your application.
Equal Opportunity Division - Summary of Complaint
Equal Opportunity Division – Frequently asked questions
Equal Opportunity Standard directions
Equal Opportunity Tribunal Decisions 1995-1998
Equal Opportunity Division Decisions from 1999
Legislation relating to the Equal Opportunity Division
Practice and Procedure
Australian Taxation Office Ruling on Compensation Awards under the Anti Discrimination Act
Equal Opportunity Division - mediation
Discrimination Complaint Brochure
Back to top
|
|
