INTRODUCTION

Historical background

6.1 The Act, when enacted in 1977, initially established a Counsellor for Equal Opportunity to investigate and conciliate complaints and an Anti-Discrimination Board with both judicial and education/research functions. In 1980 it was amended to establish the Office of the Director of Equal Opportunity in Public Employment. It was amended again in 1981 to establish the Equal Opportunity Tribunal to take over the judicial role of the Anti-Discrimination Board. An amendment in 1982 abolished the office of the Counsellor whose functions were taken over by the Anti-Discrimination Board.

The present structure

6.2 The Act, in its present form, has established three bodies which are responsible for various aspects of enforcement of the Act. They are:

• the Anti-Discrimination Board (“the Board”) - mainly responsible for the administration and promotion of equal opportunity in New South Wales; administered by the President of the Board who is responsible for investigating and conciliating complaints about discrimination.
• the Equal Opportunity Tribunal (“the Tribunal”) - responsible for conducting inquiries into complaints that are referred to it under the Act; these are mainly complaints which are beyond conciliation.
• the Office of the Director of Equal Opportunity in Public Employment (“the Director’s Office”) - primarily responsible for ensuring that all State Government Departments and statutory authorities prepare and implement equal opportunity management plans.

How does the Act assist those calling on it for help?

6.3 Although the Board, the Tribunal and the Director’s Office each have a role in enforcing the Act, the Board and the Tribunal are the main dispute resolution arms of the Act. The Director’s Office, though required to enforce the principles of the Act in Government Departments, is not responsible for, or involved in, dispute resolution. The flow chart on the next page (adapted from the CCH Australian and New Zealand Equal Opportunity Law and Practice with the permission of CCH Australia Limited) depicts the involvement of the Board and the Tribunal in resolving a complaint of discrimination.

THE ANTI-DISCRIMINATION BOARD

The structure of the Board

6.4 Part 8 of the Act establishes the Anti-Discrimination Board. The Board consists of a full-time member, who is the President of the Board, and four part-time members. The President is the head of approximately 35 staff based in offices in Sydney, Wollongong and Newcastle.

[Link to text only version of table]

The functions of the Board

6.5 The objectives of the Board are to eliminate discrimination and promote equality and equal treatment of all human beings. To achieve these objectives Division 4 of Part 9 of the Act sets out the functions of the Board. They are:

• to carry out investigations, research and inquiries relating to discrimination and in particular discrimination on the grounds of , and characteristics appertaining to persons on the grounds of age, religious or political conviction, mental disability and membership or non-membership of a trade union;
• to research and formulate policy on discrimination and human rights issues;
• to arrange and co-ordinate community education programs, consultations, discussions and seminars;
• to review the laws of New South Wales to ensure that they do not have a discriminatory effect;
• to improve the Board’s services to disadvantaged groups by consulting with Government, business, industrial and community groups; and
• to hold public inquiries and to inquire into any matter that the Minister refers to it regarding conflicts or potential conflicts between laws and practices and the Anti-Discrimination Act.

Part 9A of the Act provides that the Director of Equal Opportunity in Public Employment may also refer matters regarding equal opportunity management plans to the Board for investigation.

As stated earlier, the President of the Board is ultimately responsible for investigating and conciliating complaints.

How does the Board operate?

A complaint must be made

6.6 If a person has been discriminated against, nothing can be done unless a complaint is made in writing to the President of the Anti-Discrimination Board. The complaint must normally be made within six months after the date on which the discriminatory act occurred, but the President may accept a complaint outside the six month period “on good cause being shown”.

6.7 Complaints can be made in any language, including braille. It is because a complaint must be made that the Act is said to operate on a “complaints-based” model. The Board does not have self-initiating powers whereby it can proceed without a complaint. It has been pointed out that there are limits inherent in a complaints-based model, the most important being that systemic discrimination cannot be addressed unless a person is prepared to make a complaint. Disadvantaged persons often fear that they will suffer further disadvantage if they complain and consequently do not complain.

Who can make a complaint?

6.8 Discrimination can be experienced by a person or a group of persons. A complaint can be made by the person discriminated against (ie an individual action) or by two or more persons either on their own behalf or on behalf of themselves and others (ie a representative action). A complaint may also be made by a person or persons under the age of 18. However, a complaint cannot be made by a trade union on behalf of one or more of its members.

6.9 A group action is also called a representative action, ie an action on behalf of a number of individuals, each of whom alleges unlawful discrimination in the same or similar circumstances against the same respondent. A person who lodges a representative complaint is not precluded from lodging an individual complaint as well. However, the powers of the Tribunal in the case of group or representative actions are limited. Consequently, in practice, most complaints are made by individuals.

6.10 Although the Act does allow representative actions, it does not allow class actions, that is, an action brought by an individual or a group of individuals on behalf of a class of persons beyond those named in the complaint. Some of the class will be persons discriminated against in the past, while others will be discriminated against in the future. In one sense a representative action is a limited form of class action, the limitation being that in representative actions the only member of the class that can claim damages is the person(s) named in the complaint. In the case of class actions, the whole class can recover damages.

Complainant must be affected

6.11 The person(s) making the complaint must be affected by the alleged discrimination. Thus, a person not affected by the alleged discrimination cannot make a complaint on behalf of an affected person, unless the affected person is “intellectually handicapped” as defined by the Act. Even then, the Act requires that the person with the intellectual handicap “desires” that the complaint be lodged on his or her behalf. There is no provision allowing a parent or guardian to make a complaint on behalf of a child.

Investigation of the complaint

6.12 When a complaint is received, the President is required to investigate the complaint. Investigation of a complaint is not necessarily limited to the two parties. It may involve as many people as is necessary to properly assess the discriminatory matter; for instance, it may involve the examination of policies and practices of relevant government agencies. The President can decline to entertain the complaint if, on investigation of the complaint, the President finds that it is frivolous, vexatious or lacking in substance, or that for any other reason it should not be entertained; for instance, if the ground of discrimination alleged is not covered by the Act; or the complainant is not the affected party; or the time period has lapsed. If the complaint is declined, the President must inform the complainant in writing of the reasons for declining.

Conciliation of the complaint

6.13 New South Wales, like most other States, has adopted a conciliation model which uses this process as the first stage of dispute resolution, in the hope that recourse to the Tribunal can thereby be avoided. Accordingly, if on investigation of the complaint, the President believes it may be resolved by a process of conciliation, the President must endeavour to do so. The conciliation officers in the Board’s Conciliation Branch are the staff primarily involved in the conciliation process.

Features of the conciliation model

6.14 The following are some of the notable features of the conciliation model.

• The most important feature of the conciliation model is that it is an informal process aimed at reaching a settlement acceptable to both parties. Neither the complainant nor the respondent needs to be represented by a lawyer. Parties cannot be so represented unless the President allows it.
• Any agreement must be reached by the parties themselves. The conciliator is not an advocate for one or other of the parties; the emphasis is not on who is right or wrong but rather on educating the parties about their obligations under the Act and establishing a workable resolution to the conflict.
• The legislation does not prescribe the procedures or conduct to be adopted in the conciliation process. However, the legislation does impose a requirement of confidentiality of the conciliation process.
• The President can require either or both parties to appear separately or together.
• The President can request the inspection of documents but cannot require the production of documents.

6.15 The conciliation process is traditionally justified on the grounds that it is inexpensive, speedy and informal. The confidentiality of the process also encourages co-operation between the parties. Confidentiality can also be advantageous for certain complainants who find it difficult to speak about the incident complained of in public. However, it has been suggested that it has significant disadvantages in that the outcome is invisible and is only of relevance to the parties; it cannot be used as a model for others, or as a means of developing a lobby group to change policy for the benefit of the community at large. Lack of knowledge of comparable cases has been said to disadvantage the plight of complainants even further. As Margaret Thornton stated in “Equivocations of Conciliation: the Resolution of Discrimination Complaints” (1989) 52 (6) Modern Law Review 733:

[t]he secrecy surrounding conciliation precludes group empowerment to a marked degree, particularly in the case of stigmatised groups involving grounds which are conceptually and probatively problematic, such as physical and intellectual impairment ... As a strategy, deformalisation is a double-edged sword. On the one hand, it encourages victims of discrimination to file complaints because of the guarantees of privacy and confidentiality, factors which also encourage respondents to co-operate. On the other hand, it precludes public scrutiny.

Remedies at the conciliation level

6.16 The legislation does not contain any provisions as to how a dispute might be resolved. Nor does it impose any limits on the type of agreements that can be reached at the conciliation stage. Thus it is possible that a complainant could claim damages in excess of the Tribunal’s upper limit of $40,000 and be paid the sum claimed, if the respondent agrees to do so.

6.17 The voluntary nature of the remedies reached by conciliation would probably preclude a respondent from challenging the agreement at a later stage. A complainant may be able to challenge the agreement on the basis that he or she was forced to agree because of pressure from the respondent. However, in keeping with the voluntary nature of the remedies, unlike orders made by the Tribunal, there are no penalties for non-compliance with the agreement reached at the conciliation level. Another important aspect of the conciliation process is the confidentiality attached to it. This is a particular advantage to complainants who do not favour public awareness of their complaints.

When does the President refer matters to the Equal Opportunity Tribunal?

6.18 There are four circumstances when the President can refer matters to the Equal Opportunity Tribunal for resolution. They are:

(i) when the President believes that the complaint cannot be resolved by conciliation;

(ii) when the President has endeavoured to resolve the complaint by conciliation but has failed;

(iii) when the President believes that the nature of the complaint is such that it should be referred; and

(iv) when the President has informed the complainant that he or she has declined to entertain the complaint, but the complainant serves notice in writing on the President within 21 days, which requires referral to the Tribunal. This does not apply where the reason for declining was the complainant’s failure to disclose or allege contravention of the Act.

6.19 When referring matters to the Tribunal the President must provide a report to the Tribunal of the investigations made. However, in keeping with the requirement of confidentiality of conciliation proceedings, evidence of anything said or done during the proceedings is not admissible in the Tribunal proceedings. The President must inform the parties if the matter is being referred to the Tribunal and a copy of the report can be made available to the parties.

6.20 In circumstances where a breach of the Act may result in irreparable damage to the complainant and time is of the essence, the President can apply to the Equal Opportunity Tribunal to issue an interim order even before the complaint is referred to it. The interim order can be made to preserve the existing situation of the parties, or the rights of the parties, until the complaint has been resolved by the President or the Tribunal. For instance, if it is alleged that an employer is about to dismiss an employee on a discriminatory ground, an interim order can be sought to prevent the dismissal until the matter is determined by the President or the Tribunal. Although the Act is silent as to the principles to be followed in applying for interim orders, the courts have held that the principles applicable under the general law are to be followed.

Issues for consideration
• Complaints-based model

Question 192

It has been suggested that the model based on individual complaints is not designed to remedy systemic discrimination.

(a) Should the Act continue to be complaints-based?

(b) Should the complaints-based approach be supplemented?

(c) If so, how?

Question 193

The Commissioners appointed to administer the federal discrimination legislation have the power to proceed as if a complaint had been lodged, if it appears to the Commission that a person has acted unlawfully under the respective legislation. Some states, though not New South Wales, have similar provisions in their legislation.

Should the President of the Board (in NSW) have self-initiating powers, whereby the process of investigation and conciliation can proceed in the absence of a complaint?

Question 194

Although there are cases before the Tribunal where the estate of the deceased is pursuing a discrimination action, the issue of whether a complaint will lapse with the death of the complainant has not yet been determined. It has been suggested that the problem of discrimination goes beyond the affected party to policies and practices that must be considered and reviewed. If a complaint lapses with the death of the complainant, discriminatory practices which caused the discriminatory conduct will inevitably continue. Additionally, it can have the effect of encouraging respondents to delay, particularly if the complainant is ailing.

Should the Act be amended to specifically allow a complaint to be pursued after the death of the complainant?

Question 195

Should any person with a genuine private concern, or a body with a charter to uphold social justice matters and undertake advocacy roles, have a right to complain under the Act?

• Method of making a complaint

Question 196

Should complaints be able to be made other than in writing?

Question 197

(a) Should the Act clarify what is meant by expressing a “desire” to complain in the case of persons with an intellectual disability?

(b) How should it be clarified?

Question 198

(a) Should the Act be amended to allow complaints to be made on behalf of people whose disability prevents them from expressing a “desire” to complain?

(b) If so, should there be some guidance on who could represent such persons?

Question 199

Should the Board be given authority to accept complaints on behalf of persons with certain disabilities?

Question 200

It has been pointed out that some disadvantaged people, particularly those who have a physical disability, find it difficult to make contact with the Board by telephone or in person, let alone in writing.

Should the Board be required in exceptional circumstances to attend at a disadvantaged person’s home to conduct a preliminary investigation?

• Complainants

Question 201

Should unions be able to make complaints on behalf of their members?

Question 202

Should parents or guardians be allowed to make complaints on behalf of children under 18 years of age?

• President’s discretion

Question 203

The President has a discretion to decline to entertain a complaint. However that discretion can be negated at the option of the complainant, by the complainant requiring the President to refer the complaint to the Tribunal, except where the complainant does not disclose any contravention of the Act.

Is the provision regarding the President’s discretion unnecessary in the light of the complainant’s right to require reference to the Tribunal?

• Investigation of the complaint

Question 204

Section 89 of the Act requires the President to “investigate each complaint lodged”. It appears that there is some uncertainty as to what is involved in the process of investigation.

(a) Should the President inquire into the complaint and into the merits of any response to the complaint or merely exchange allegations and replies between the parties?

(b) Does the investigation involve advocating for the complainant?

(c) If the resources of the Board do not permit proper investigation, what benefit will the mandatory requirement to investigate provide to the complainant?

(d) Should it be discretionary for the President to investigate a complaint as is the case with conciliation?

• The conciliation process

Question 205

It appears that the concept of conciliation is not understood by many complainants and respondents. It has also been said that it is hard to determine when the investigation process ceases and the conciliation process begins. This can have far-reaching implications in relation to an inquiry into a complaint in terms of admissibility of certain statements made, and documents given, to a conciliator.

(a) Should there be some clarification of what is meant by conciliation and the distinction between the processes of investigation and conciliation under the Act?

(b) Should conciliation proceedings continue to be confidential?

(c) What are the possible alternatives?

Question 206

The priority given to the process of conciliation irrespective of the ground of discrimination is also seen as a problem. This is said to be most evident in the case of discrimination on the ground of race, where the process of conciliation treats racism as an individual, personal act and overlooks the institutional racism which impacts profoundly on society.

Should conciliation continue to be given priority irrespective of the ground of discrimination?

Question 207

The legislation does not specify how complaints are to be conciliated. There have been cases that have discussed the actual conduct of conciliation proceedings, but different decisions have been reached as to whether or not rules of “natural justice” (fairness) should be observed.

Should the procedure and conduct of conciliation proceedings be prescribed by legislation?

Question 208

(a) Should the President be given authority to require the production of documents and the provision of information at the conciliation level?

(b) If so, should a time limit be fixed within which the parties must respond?

(c) Should such a time limit be subject to penalties?

• Legal representation

Question 209

There is no right to legal representation at the conciliation stage except by leave of the President. Even if the President allows legal representation, legal aid is not available for proceedings before the Board; the Legal Aid Commission will only grant legal aid if a complaint is referred to the Tribunal.

Consequently, complainants without funds to pay a private solicitor will have no access to legal representation during conciliation proceedings.

Should legal representation be allowed as of right in conciliation conferences?

• Remedies at the conciliation level

Question 210

The legislative scheme imposes certain limits regarding the type of remedies that can be ordered by the Tribunal. No such limits operate at the conciliation level. Thus, it is possible for a complainant to seek a settlement at the conciliation level that is expressly or impliedly precluded from the orders open to the Tribunal; for instance it is possible to make an offer of settlement for $60,000 when the Tribunal is bound by an upper limit of $40,000. On the other hand, respondents have been known to make inadequate counter offers which complainants feel pressured to accept, because of the power imbalance that invariably exists between the two parties.

Should there be some limits on the types of agreements that can be sought at the conciliation level, including a provision for minimum and maximum damages ?

• Time limit for complaints

Question 211

The statutory time limit for lodging a complaint with the Board is currently six months from the date of occurrence of the discriminatory act. It has been submitted that the Act’s relatively recent enactment means, that despite conscious efforts by the Board to educate the community, there are still many segments of the community that are unaware or unsure of the concepts established by the Act or its scope of operation. (For instance, in the case of pregnancy discrimination, the time limit may often co-incide with the birth of the baby, making it awkward for a person to proceed with a complaint.) Although the President currently has a wide discretion to accept late complaints (“on good cause being shown”), it has been submitted that there is considerable delay in considering whether or not to accept late complaints, which can prejudice the complainant.

(a) In view of the above, and the fact that the statutory time limit for civil actions involving damages for personal injury is three years, should the time limit for lodging a complaint with the Board be extended?

(b) If so, what should the time limit be?

(c) If the time limit is extended, should the President continue to have a wide discretion to accept late complaints?

(d) Whether or not the time limit is extended, should there be a limitation imposed on the cut-off date for entertaining late complaints?

(e) Should “good cause” be defined?

(f) Alternatively, should it be a requirement that certain listed factors be considered in determining whether good cause has been shown?

Question 212

If good cause has been shown for accepting a late complaint, the President is under no obligation to give the respondent reasons for such a decision. It has been suggested that in the absence of such reasons being provided, it is difficult for the respondent to have a fair opportunity to appeal the decision.

Should the President be required to provide reasons for the decision to accept late complaints in writing to the respondent?

Question 213

How should the time limit be determined when the discriminatory conduct is a continuous course of conduct?

• Time limit for investigation and conciliation

Question 214

A major criticism of the Board’s operation is the delay in investigating and conciliating a complaint.

(a) Is this criticism justified?

(b) Should the process be subject to a strict and enforceable timetable?

Question 215

The President of the Board has no statutory time period within which an unresolved complaint must be referred to the Tribunal.

(a) Should such a time limit be imposed?

(b) If so, what should the time limit be?

(c) Should the time limit be subject to special circumstances which permit deferral of unresolved complaints?

(d) If so, should the special circumstances be defined?

• Penalties

Question 216

There are various specific offences which attract penalties under the Act. For instance, failing to comply with a notice requiring appearance before the President for the purpose of attempting to resolve the complaint by conciliation is an offence punishable with a penalty of $500. Wilful obstruction of the President in the exercise of power is an offence punishable by a penalty of $1000. However, none of the penalties prescribed under the Act make a distinction between offending corporations/departments and individuals.

Should such a distinction be made by imposing different penalties on corporations/departments and individuals?

Question 217

The maximum level of the penalties imposed under the Act is $1000.

Should the level of penalties for some/all offences be increased or decreased?

• Administrative matters

Question 218

(a) Should the Anti-Discrimination Board have more branch offices?

(b) If so, where?

Question 219

(a) Is the Board’s effectiveness in administering the legislation limited by its current level of resources?

(b) If so, in what areas?

THE EQUAL OPPORTUNITY TRIBUNAL

The structure of the Tribunal

6.21 Part 7A of the Act establishes the Equal Opportunity Tribunal. The Tribunal presently consists of a senior judicial member, three judicial members and seven non-judicial or lay members. All Tribunal members are appointed by the Governor on the advice of the Executive Council of the New South Wales Cabinet and work part-time on the Tribunal. Usually three members, comprising a judicial member and any two lay members, sit for any one hearing. However, the senior member or any judicial member can sit alone to decide a question of law or procedure or on an application for an interim order. The Tribunal is administered by a registrar who provides procedural and administrative support to the judicial and lay members.

The functions of the Tribunal

6.22 The Tribunal is responsible for conducting inquiries into each discrimination complaint referred to it and is required to examine all the material before reaching a conclusion. If the Tribunal finds that the complaint is substantiated it can make certain orders. If the complaint is not substantiated the Tribunal can dismiss the complaint. If a complaint has been settled after the matter was referred to the Tribunal, it must formally dismiss the complaint. Complaints can be referred to the Tribunal either by the President of the Anti-Discrimination Board, in the circumstances referred to above, or by the Minister.

How does the Tribunal operate?

Matter must be referred

6.23 First, a matter must be referred to the Tribunal by:

• the Board in one of the circumstances set out at para 6.18, together with a referral report (which provides the Tribunal with background information on the matter being referred); or
• the Minister, who may refer any matter for inquiry as a complaint.

Parties must be informed

6.24 When a complaint is referred to the Tribunal, it must inform each party to the inquiry (except someone to whom it grants leave to appear as a party) of the time and place of the inquiry. The parties to any inquiry are the complainant, the respondent, any person joined by the Tribunal and any person to whom the Tribunal grants leave to appear as party. A party to an inquiry, may, by leave of the Tribunal, be represented by a solicitor, counsel or agent.

First directions hearing

6.25 The first directions hearing is the initial hearing at which preliminary matters, such as whether the parties are being legally represented, are clarified. It is the stage at which the President’s referral report is released to the parties. The Tribunal also sets a timetable for the filing (that is, lodging documents with the Tribunal) of points of claim and defence, replies and affidavits. There is no legal provision in the Act regarding the filing of these documents, but it is common practice to do so.

6.26 Points of claim, which should usually be filed by the complainant within three weeks after the first directions hearing, contain information regarding the ground(s) and area of discrimination, details of alleged discriminatory acts, and particulars of the loss suffered and remedies sought.

6.27 The respondents are usually directed to file points of defence to the points of claim within three weeks after the points of claim document is filed, admitting, denying or not admitting the allegations made in the points of claim. The points of defence will also contain information regarding any statutory defences or exceptions on which the respondent seeks to rely.

6.28 The complainant can file points in reply to the defence, usually within three weeks after the defence is filed. The complainant’s and respondent’s affidavits must be filed within four weeks and any further affidavits within two weeks.

6.29 The timetable set out above can vary depending on the complexity of the case. If the case is mainly concerned with the interpretation of the Act, rather than a dispute over the facts, the parties may be directed to prepare an agreed statement of facts. There are, however, instances when the parties may be directed to prepare an agreed statement identifying what facts, law and issues are in contention.

Second directions hearing

6.30 A second directions hearing is sometimes arranged, to clarify any other preliminary matters, before the matter is set down for a final hearing.

Conciliation encouraged

6.31 The emphasis on conciliation is not limited to the Board alone. It is extended to dispute resolution in the Tribunal whereby the Tribunal has a responsibility to try to resolve complaints by conciliation. The Act requires the Tribunal to take all reasonable steps to effect an amicable settlement and in doing so may adjourn an inquiry at any stage to facilitate such a settlement. Often a settlement is reached either at the preliminary stages, after the first directions hearing and before the commencement of the final hearing, or at the commencement of the final hearing.

The Tribunal hearing

6.32 The main characteristic of a Tribunal hearing is that it is meant to proceed with as little formality and legal technicality as possible. The Act specifically states that the Tribunal is not bound by rules of evidence. In conducting a hearing, the Tribunal may “inform itself of any matter it thinks fit” and must act “according to equity, good conscience and the substantial merits of the case” (s 108). It is possible for the Tribunal to have an officer of the Board assist it in conducting the inquiry. As a general rule hearings are held in public. However, the Tribunal has the power to direct that all or part of an inquiry must be held in private.

Procedure at Tribunal hearing

6.33 There are no formal rules or regulations regarding the procedure to be adopted at Tribunal hearings. However, certain procedures have evolved over time that tend to follow the procedures adopted in the Supreme Court. These procedures relate to the filing of documents like the points of claim and defence, and the examination and cross examination of witnesses.

6.34 The Tribunal is required to give each party to an inquiry “reasonable opportunity” to call or give evidence, examine or cross-examine witnesses and make submissions to the Tribunal. It is also required to determine as a preliminary matter whether the complaint before it should be dealt with as a representative complaint in terms of the criteria prescribed by the Act (s 103).

Onus and standard of proof

6.35 The complainant must establish the facts which support the complaint. The Act requires the respondent to prove any exceptions that are relied on. The Tribunal must be satisfied on a balance of probabilities that the events complained of occurred and that they amount to a breach of the Act.

Decision of the Tribunal

6.36 The Tribunal can dismiss any complaint because it has not been substantiated, decline to take any further action in the matter or make certain orders if a complaint has been substantiated. The orders that a Tribunal can make will depend on whether the action is an individual complaint, a racial vilification complaint, a representative complaint or a matter referred by the Minister as a complaint.

6.37 In the case of individual complaints, if the complaint is substantiated, the Tribunal can make an order for one of the following:

• Damages - that the respondent pay the complainant damages not exceeding $40,000 for loss or damage suffered;
• Injunction - that the respondent be prohibited from continuing or repeating any conduct considered unlawful under the Act;
• Redress - that the respondent perform any reasonable act or course of conduct to redress the loss or damage suffered by the complainant;
• Voidance of contract or agreement - that the whole or part of a contract or agreement that contravenes the Act is void unless, as stated in s 54 of the Act, it is done in pursuance of another Act, regulation, rule or ordinance, order of the Tribunal or any court or industrial agreement.

6.38 In the case of racial vilification complaints if the complaint is substantiated the Tribunal has the additional special powers to order the following:

• Publication of an apology or retraction (or both) - that the respondent publish an apology or retraction (or both) regarding the subject of the complaint in accordance with the Tribunal’s directions as to the form and manner of publication.
• Implementation of non-discriminatory policy - that the respondent develop and implement a program or policy aimed at eliminating unlawful discrimination.

6.39 If the complaint is lodged by two or more complainants, the Tribunal cannot order an aggregate of more than $40,000 for the one public act of racial vilification.

6.40 In the case of representative complaints and complaints referred by the Minister the Tribunal does not have the power to order damages or redress. The only remedies that the Tribunal has power to order are limited to an injunction and voidance of a contract.

6.41 The Federal Court of Australia Act 1976 (Cth) was amended in 1991 to provide an extended representative procedure. The new Part IVA of the Act headed “Representative Proceedings” allows an action to be brought by a group covering all members of the class, unless a member “opts out” of the group. It also allows the Federal Court to order damages in group actions thereby allowing liability and damages to be resolved at the same time in appropriate cases. The Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) passed in December provides for representative complaints contained in the federal racial, sex and disability discrimination legislation to be brought closely in line with provisions relating to representative actions contained in the Federal Court of Australia Act 1976 (Cth).

6.42 Apart from the substantive remedies which are dealt with in s 113 of the Act, the Tribunal can, on application by the President of the Board, make an interim order pending the determination of the complaint, to preserve the status quo between the parties or the rights of the parties to the complaint (s 112).

6.43 The Tribunal is not compelled by law to give reasons for its decisions. However, if a party to an inquiry makes a formal request for the reasons, the Tribunal is bound to give its reasons.

Compliance with orders

6.44 Unlike the position with remedies at the conciliation level which are voluntary in nature and are consequently not statutorily enforced, it is an offence to fail to comply with the Tribunal’s orders of injunction, redress, publication of apology/retraction, implementation of a program/policy aimed at eliminating unlawful discrimination or its interim orders. Failure to comply with any such orders attracts a penalty of $1000. An amount ordered by the Tribunal to be paid as a result of the inquiry, for instance by way of damages, may be registered as a judgment debt in the appropriate court.

Costs

6.45 Parties to an inquiry are required to pay their own costs unless:

• the Tribunal dismisses the complaint because it is “frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained” (s 111); or
• “there are circumstances that justify” a costs order (s 114).

Consequently, even if the complaint is substantiated, the complainants must generally meet their own costs.

Appeals

6.46 A party aggrieved by a decision of the Tribunal can appeal to the Administrative Law Division of the Supreme Court (if the judicial member of the Tribunal is not a judge) or to the Court of Appeal (if the judicial member of the Tribunal is a District Court judge). An appeal can only be made on a question of law within the time period prescribed by s 118 of the Act. Currently appeals on questions of fact are not allowed.

Issues for consideration
• Parties

Question 220

Under s 98 and s 100 of the Act, if the Tribunal is of the opinion that a person ought to be joined to the inquiry, it has the power to do so by notice in writing to that person.

Should those so joined by the Tribunal be included in the definition of “respondent”?

• Conduct of hearing

Question 221

The conduct of the hearing in the Tribunal is meant to proceed in an informal manner. However, it has been suggested that informality can work to the disadvantage of parties.

If so, how can this problem be avoided?

Question 222

Should the Tribunal have a more interventionist role, whereby, for instance, it takes part in determining the evidence necessary to resolve matters?

• Onus of proof

Question 223

It is clear that the onus of proof lies entirely on the complainant to substantiate the complaint whether it be as a result of direct or indirect discrimination.

In England, although there is a similar formal burden on the complainant, if the complainant shows less favourable treatment in prohibited circumstances, such as employment, the respondent is then required to provide an explanation. A similar rule exists in the United States. The Anti-Discrimination Act 1991 (Qld) provides that in a case involving indirect discrimination, the onus is on the respondent to prove, on the balance of probabilities, that a term complained of is reasonable. The Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia, “Half Way to Equal” has recommended that the Sex Discrimination Act 1984 (Cth) be amended to place the burden of proof on the respondent in indirect discrimination cases. The reasoning behind this recommendation was that it is the respondent that would be in possession of evidentiary material that could justify the discriminatory provision. As one submission to the Inquiry stated:


The employer (or other alleged discriminator) who applied the requirement or condition is the person most likely to be able to say why it is reasonable. It may have had consideration to industrial or other issues affecting its workforce as a whole, of which the individual complainant would have no knowledge.



If the recommendation is implemented by an amendment to the Commonwealth Act, the result will be an inconsistency between Commonwealth and NSW legislation relating to onus of proof with regard to sex discrimination.

Should these considerations be taken into account when reviewing the onus of proof under the Act?
• Legal representation

Question 224

Although legal representation is not “a right”, if a party requests it, the Tribunal seldom refuses. It has been pointed out that this causes an imbalance, indirectly making legal representation essential for the other party, usually the complainant, to be able to counter the legally represented party, usually the respondent. This could sometimes be a problem for the complainant, who may not have the resources to be legally represented and yet may not qualify for legal aid.

(a) Should there be strict guidelines for granting legal representation to parties?

(b) If legal representation is granted to one party, should there be facilities for provision of subsidised legal advice to the other?

Question 225

In Canada, if a complaint is taken to a Tribunal it is brought “by” the State Equal Opportunity Agency, given that human rights are regarded as a public law matter.

(a) Should a similar system be devised in NSW?

(b) Alternatively, would the provision of a public “counsel” within the Anti-Discrimination Board, with particular expertise in anti-discrimination law, to present the case of the unrepresented party eliminate some of the difficulties?

• Damages

Question 226

It has been suggested that the $40,000 limit on damages (which has existed for the last six years) is inadequate and acts as a disincentive to pursuing complaints and penalises complainants. The Commonwealth discrimination legislation has no limits on damages while the maximum amount of damages that can be awarded in the District Court will be $250,000 from 1 July 1993.

(a) Should there be an upper limit on the damages that can be awarded?

(b) If there should be an upper limit, what should the upper limit be?

Question 227

The Act vests a general discretion in the Tribunal to award damages “by way of compensation for any loss or damage suffered”. It is silent as to whether exemplary damages (ie damages over and above compensatory damages awarded as a mark of disapproval, aimed at punishing the wrongdoer) can be awarded.

Should the Tribunal be specifically allowed to order exemplary damages particularly in the following circumstances:


- where the respondent persistently offends against the Act;

- where there is evidence of victimisation of the complainant by the respondent; or

- where the respondent has unreasonably rejected settlement offers causing delay and hardship to the complainant?

Question 228

In the United States, the concept of “front pay” is a remedy that has been developed in discrimination cases. If a person can establish that he/she would have been employed if not for the unlawful discrimination, the person will be paid a future wage until he/she can be employed. It has been suggested that the wording “compensation for any loss or damage suffered” does not preclude the notion of front pay although the upper limit of $40,000 does.

Should the concept of “front pay” be considered if the limit on damages is either increased or removed?

Question 229

There have been instances when parties have attempted to circumvent the ceiling on damages imposed on the Tribunal, by pleading each incident in a course of conduct as a “complaint”.

Should the definition of “complaint” be amended to avoid this situation?

Question 230

Should the present limitation whereby the Tribunal is precluded from making an award to anyone but the complainant be removed?

• Order to require change in policies

Question 231

If a discriminatory policy has adversely affected a complainant, but also others, should the Tribunal be empowered to order the respondent to change the policy as it affects everyone instead of only in respect of the complainant? In other words, should the Tribunal be empowered to make orders regarding policies and practices which go beyond an individual complaint, if that complaint identifies broader discrimination?

• Class actions

Question 232

At present, in a representative complaint, the Tribunal can only deal with liability. It cannot order damages or action for redress. Thus, even if an order as to liability is made in favour of the complainants, they will be unable to obtain any damages or action for redress unless each of the complainants pursue an individual action. It has been submitted that this method of obtaining relief is unnecessarily costly and time consuming for the parties, the Board and the Tribunal. It has also been pointed out that the limitation in respect of the non-availability of the remedies of damages and redress in representative actions is a deterrent to bringing group actions. It would also appear to be in conflict with the established legal principle that a court will always refuse an injunction to restrain the commission of a wrong if it is satisfied that damages are a sufficient remedy.

Should the Tribunal have the same powers to make orders for class actions that it has in respect of individual complaints namely, power to order damages and redress?

Question 233

Should the Anti-Discrimination Act be amended to incorporate a similar class action provision to that contained in the Federal Court of Australia Act 1976 (Cth) and adopted by the recently passed Sex Discrimination and Other Legislation Act 1992 (Cth) into federal discrimination legislation (ie whereby complaints can be lodged by a group of individuals on behalf of a class which covers all members of the class) to allow the Tribunal to resolve liability and damages/redress at the same time?

• Costs

Question 234

As stated above, the Tribunal, though empowered to award costs (ie to order that one party - usually the losing party - pay the other's costs of attending and participating in the hearing) in some circumstances, usually does not do so unless the circumstances are exceptional. Instead the Tribunal orders that each party to an inquiry must pay their own costs.

Should the circumstances in which costs may be awarded be more wide-ranging? For instance, should the Tribunal be able to award costs to the complainant if the complainant has made reasonable settlement offers that the respondent has unreasonably refused?

Question 235

It has been suggested that a system similar to the “offer of compromise” system available in the District and Supreme Courts should be available under the Act. (An offer of compromise system provides that, if the amount of the settlement offer made by the complainant is either met or exceeded by judgment, the respondent must pay the complainant’s solicitor/client costs.)

Should such a system be available under the Act?

Question 236

In AIS v Banovic (1989) 169 CLR 165, the High Court allowed the respondent leave to appeal on the basis that it indemnify the complainants for costs, whether the respondent won or lost because it was considered a “test” case.

If the respondent is defending a matter because it is viewed as a test case by the respondent, should the complainant be awarded costs?

Question 237

Hilary Astor and Christine Chinkin in their book “Dispute Resolution in Australia” adverted to the fact that the nature of discrimination disputes is such that “they are very likely to be disputes between parties of unequal power” involving “respondents who are more powerful than the complainant by virtue of status and access to financial and other resources ...”

(a) Should the Tribunal be required to pay more attention to the financial status of the parties when making orders for costs, if, for instance, the respondent is a large corporation and the complainant is an already disadvantaged individual of little financial means?

(b) Should the result of the inquiry (ie the success or otherwise of the complaint made) have some relevance to whether or not the complainant is liable for costs?

Question 238

At present, in terms of s 51 of the Income Tax Assessment Act 1936 (Cth), a corporate respondent’s legal costs are a tax deductible expense when the litigation is pursued in the course of defending or producing assessable income. It has been pointed out that this can operate as an incentive to prolong an inquiry. Conversely, a successful complainant may be subject to a higher rate of taxation through receipt of damages representing lost income. This can be a disincentive to complainants approaching the Tribunal.

(a) Should the taxation implications of inquiries and awards be reviewed?

(b) How should these issues be resolved?

• Incentives to settle

Question 239

It has been submitted that the matters raised above show that the Act provides respondents with disincentives rather than incentives to settle. (These include: complainant unlikely to obtain costs; ceiling on award of damages; no provision for exemplary damages; no pre-judgment interest payable on damages awarded by Tribunal; and some litigation costs tax deductible for corporate respondent.) It has also been submitted that complainants are consequently seriously prejudiced by delays in the resolution of conflicts.

Should the Act provide incentives for respondents to settle?

• Tribunal’s powers

Question 240

The Tribunal’s powers are limited to dismissing a complaint or finding a complaint substantiated. Although withdrawal of a complaint is often a desirable way of resolving a complaint before the Tribunal there is no provision for a complainant to withdraw a complaint.

How should this anomaly be addressed?

• Penalties

Question 241

There are specific penalties set out in the Act for offences relating to the Tribunal. They are:

- presence at a private Tribunal hearing without direction [s 101B(5)];

- failure to obey directions regarding publication/disclosure/broadcast of proceedings of Tribunal [s 110A(1),(3)];

- failure to comply with Tribunal order [s 116]; and

- obstruction of Tribunal [s 124].

All the above offences attract a penalty of $1000. However, none of these offences makes a distinction with regard to whether the offender is a corporation, department or an individual.

(a) Should there be such a distinction?

(b) Should the penalties be increased?

• Tribunal rules

Question 242

There has been some concern about the lack of Tribunal Rules to govern the procedure at Tribunal hearings.

(a) What are the advantages/disadvantages of having such rules?

(b) Alternatively, should the Tribunal merely adopt some of the District Court Rules or have some informal guidelines on procedure?

(c) If rules should be drafted, what should be included in such rules?

• Appeals

Question 243

It has been pointed out that there has been a marked difference in the interpretation of the provisions and policy of the Act between the Tribunal and the Supreme Court on appeal.

How can this problem be resolved?

Question 244

At present, a party can only appeal on a point of law from a decision of the Tribunal to the Supreme Court. Prior to 1981, it was also possible to appeal on questions of fact. It has been suggested that appeals on questions of fact should be resumed.

Should appeals on questions of fact be allowed?

• Delays in resolving complaints

Question 245

A constant criticism of the Tribunal has been that there are serious delays in determining complaints. The Tribunal has suggested that the main reasons for such delays are the lack of full-time members and insufficient administrative support.

Should the Tribunal consist of some full-time members?

Question 246

Should a time limit be imposed for the production of documents, provision of information or response to communication and subject to penalties, if breached?

Question 247

The following suggestions have been made with a view to reducing delays and making the Tribunal more efficient in the handling of disputes:


- the Tribunal Registrar to conduct mentions/directions hearings and issue and sign subpoenas (except in situations where there is some doubt as to whether a subpoena should issue);

- the Judicial Member for a particular matter to hand down a decision or dismiss a complaint sitting alone (except where the issue of costs is to be argued at the same time);

- the Senior Judicial Member to be able to delegate powers to one of the Judicial Members to accommodate absences;

- the Tribunal to be given specific power to make orders in chambers in the absence of the parties if the parties consent and the Tribunal considers it expedient; and

- the Tribunal to be given specific power to punish for contempt.

Should these suggestions be considered and implemented by legislative amendment?

Question 248

Would the costs and delays be reduced by allowing for the admission of more written rather than oral evidence, and by setting a time limit within which decisions must be made?

• Tribunal membership

Question 249

(a) Should it be mandatory that the Tribunal consist of representatives from each of the disadvantaged groups identified under the Act?

(b) Are there other interests that should be represented in the Tribunal membership?

• Administrative matters

Question 250

Is the Tribunal’s effectiveness in enforcing the legislation limited by its current level of resources?

Question 251

Some Government Departments have within their structure a complaints unit which receives and investigates complaints. However, there is no provision within the Act for the transfer of complaints about discrimination between such agencies and the Tribunal.

Should there be a formal referral process whereby agencies such as complaints units can directly refer investigated complaints to the Tribunal for inquiry?

OFFICE OF THE DIRECTOR OF EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT

What is equal employment opportunity?

6.47 Equal employment opportunity is a concept that has been developed to address the problems of the historical exclusion of disadvantaged groups from the workplace. It has been suggested that affirmative action is the means of achieving such equal opportunity. Affirmative action principles recognise that certain steps aimed at promoting equality in employment need to be undertaken to eliminate discriminatory practices and policies to ensure that the employment system is fair to all employees and applicants for employment.

The focus of Part 9A

6.48 As stated in Chapter 1 of this Paper, one of the aims of the Anti-Discrimination Act 1977 (NSW) as set out in its Preamble is to “promote equality of opportunity”. Part 9A of the Act deals with equal opportunity in public employment.

6.49 The Act as a whole is based on the recognition that individual and group actions which perpetuate patterns of unlawful discrimination need to be changed for the benefit of the affected individuals and the community as a whole. Thus, the Act is structured to provide legal rights and remedies for specified groups by making certain actions and behaviour unlawful to eliminate existing discrimination. This does not, however, overcome the effects of past discrimination entrenched in employment policies and practices which have a continuing discriminatory impact on the community. To deal with this aspect of the ill-effects of discrimination the Act was amended in 1980 to introduce the concept of equal opportunity in public employment by adding Part 9A to the Act. The Director’s Office was established to administer Part 9A of the Act.

Objects of the Part

6.50 The objects of Part 9A are:

(a) to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and physical impairment; and

(b) to promote equal employment opportunity for women, members of racial minorities and physically handicapped persons,

in the authorities to which this Part applies.

6.51 Part 9A applies to:

• all departments specified in certain schedules to the Public Sector Management Act 1988 (NSW);
• all declared authorities under the Public Sector Management Act 1988 (NSW);
• all higher education institutions in New South Wales, except the Catholic College of Education and the NSW Conservatorium of Music;
• the Police Service; and
• other persons, groups of persons or bodies declared by the Governor to be relevant authorities.

How are the objects of the Part achieved?

6.52 The objects of Part 9A are achieved through the work of the Director’s office which was established to administer the Part. The Charter and Mission Statement of the Director’s Office is based on the functions of the Director listed in s 122I of the Act. It is set out in the Director’s Report for the year ended 30 June 1991 as follows:

On the basis of Part IXA of the NSW Anti-Discrimination Act 1977 and other legislation dealing with equal opportunity in public sector employment-

The Office of the Director of Equal Opportunity in Public Employment on behalf of the Government, is to see to it that -


public sector employers devise, implement and maintain employment management practices which are free of unlawful discrimination on the grounds of race, sex, marital status and physical impairment;

all persons engaged in public sector employment enjoy effective and genuine equality in the conduct of their daily work and in the pursuit of their working life goals;

in particular, employment opportunities for women, Aboriginal people, people of non-English speaking background and people with physical disabilities, are promoted by public sector employers.


Our role is to monitor and provide advice to public sector organisations to assist them generate and foster change to ensure equitable access to jobs, career paths and training and equitable conditions of employment for EEO group members.

6.53 Crucial to achieving the objects of the Part is the preparation and implementation of equal employment management plans by every organisation to which the Part applies (s 122J).

What is an equal employment management plan?

6.54 An “equal employment opportunity management plan” is a document which contains an organisation’s action plan for achieving equal employment opportunity within the work force. Guidance on the matters to be included in such a plan are provided in s 122J and relate to the following:

• devising of policies and programs to achieve the objects of the Part;
• the communication of those policies and programs to persons within the organisation;
• the collection and recording of appropriate information;
• the review of the organisation’s personnel practices to identify discriminatory practices;
• the setting of goals and targets to assess the success of the plan;
• other means of evaluating the policies and programs devised;
• revision and amendment of the plan; and
• the appointment of persons within the organisation to implement the management plan.

6.55 In addition to preparing and implementing the management plans, organisations are also required to review the plans annually and provide a copy of the plan to the Director together with other information regarding activities undertaken in keeping with the plan, and results of such activities (s 122L).

Director’s functions in relation to management plans

6.56 The Director is required to assist and advise authorities in drafting management plans and to evaluate the effectiveness of the plans in achieving the objects of the Part. In so doing, if the Director is dissatisfied with any matter relating to the preparation, implementation or amendment of a plan, the matter can be referred to the Anti-Discrimination Board for investigation.

6.57 At the conclusion of an investigation, the Board can make recommendations to the Director on the matter referred and/or furnish a report to the Minister with or without recommendations. The Minister can then direct an authority to amend its management plan in a specified manner.

Issues for consideration
• Objects and focus

Question 252

The objects of Part 9A cover discrimination on the specified grounds of race, sex, marital status and physical impairment. The Part does not cover the other prohibited grounds of discrimination, namely, intellectual impairment or homosexuality. Nor does it make any reference to the prohibition of compulsory retirement on the ground of age.

(a) Should Part 9A cover all grounds and unlawful conduct covered by the Act?

(b) What is the justification for not doing so?

Question 253

Should the focus of the Act, which is to “render unlawful [certain nominated] types of discrimination and to promote equality of opportunity between all persons” be achieved at any cost or should the means of achieving these objects be balanced against business profitability, resource implications and other similar criteria?

Question 254

It has been pointed out that the reporting system required by Part 9A of the Act with regard to monitoring proposed activities and programs to eliminate discrimination and promote equal opportunity is time consuming and labour intensive.

(a) Should the system be simplified?

(b) If so, how can it be simplified while still satisfying the objects of the Act?

• Application

Question 255

The State Owned Corporations Act 1989 (NSW) (“the Act”) makes provision for the establishment and operation of Government enterprises as State owned corporations. While the provisions of the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) are specifically adopted by the Act, the provisions of Part 9A do not apply to State owned corporations.

(a) Should Part 9A apply to State owned corporations?

(b) Are there other agencies that should be covered by Part 9A?

• Penalties

Question 256

It is an offence punishable by a penalty to obstruct the Director in the exercise of functions under the Act. The penalty does not make a distinction between departments and individuals.

Should different penalties be imposed on departments and individuals?

• Compliance and enforcement

Question 257

If the Director is dissatisfied with a management plan, the matter is referred for investigation to the Anti-Discrimination Board.

Should the Director have more powers in ensuring compliance with objects of the Part?

Question 258

Is the Anti-Discrimination Board the appropriate agency to conduct the investigation?

Question 259

Recent legislation amending the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) provides that companies that fail to comply with affirmative action legislation will be denied funding and contracts with the Department of Administrative Services.

(a) Is it appropriate for similar measures to be considered in NSW for failure to comply with Part 9A?

(b) Are there other methods by which compliance could be encouraged?

• Interaction between enforcement mechanisms: the Board, the Tribunal and the Director’s Office

Question 260

Part 9A of the Act is administered by the Premier, while the rest of the Act is administered by the Attorney General.

Is the division in terms of administration of the Act appropriate and/or necessary?

Question 261

(a) Should principles relating to equal opportunity in employment to be dealt with in the Anti-Discrimination Act or in a separate Act?

(b) If it is appropriate that Part 9A remain within the Act, should there be more interaction between Tribunal decisions and the assessment of the effectiveness of management plans by the Director’s Office? For instance, should the Director’s Office be required to follow-up work practices of organisations which have been a party to a Tribunal decision?

BACKGROUND READING

The Act’s enforcement mechanisms

Articles and Books

ASTOR, H and CHINKIN, C “Conciliation of Discrimination Disputes” in Dispute Resolution in Australia (Butterworths, Sydney, 1992)

AUSTRALIA. PARLIAMENT. HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS [Chairman: Mr M Lavarch] Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992)

AUSTRALIAN AND NEW ZEALAND EQUAL OPPORTUNITY LAW AND PRACTICE, Vols 1 and 2 (CCH Australia Ltd)

BRYSON, D “Mediator and Advocate: Conciliating Human Rights Complaints” (1990) 1 (3) Australian Dispute Resolution Journal 136

MULCAHY, N “Conciliation and Race Complaints” (1992) 3 (1) Australian Dispute Resolution Journal 21

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Annual Reports 1978 to 1991-1992

NILAND, C “Managing Diversity”, paper presented at the Equal Opportunity and Anti-Discrimination in Employment ’91 Conference on 27 September 1991

SADURSKI, W “The Second Generation of American Affirmative-Action Decisions” (1989) 12 (1) Sydney Law Review 159

THORNTON, M “Anti-Discrimination Remedies” (1984) 9 Adelaide Law Review 235

THORNTON, M “Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia” (1989) 52 (6) Modern Law Review 733

WILENSKI, P “Equal Employment Opportunity - Widening The Agenda” (1985) 12 (1) Canberra Bulletin of Public Administration 42

WILLS, S “Big Visions and Bureaucratic Straitjackets” (1986) 96 Australian Left Review 23