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Where am I now? Lawlink > Law Reform Commission > Publications > Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 9
Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Appendix A: Draft Anti-Discrimination Bill 1999 - Chapter 9
Part 1 Making a complaint
93 Nature of complaint
(1) A complaint may be lodged with the President alleging that a person (the respondent) has done, or threatens to do, an unlawful act (other than an act that is an offence) under this Act.
(2) The complaint must be in writing, signed by the person making it, and may be lodged:
(a) by delivery by post or hand to the office of the Board, or
(b) by facsimile or other form of electronic transmission to the Board.
(3) The complaint:
(a) must identify the complainant and the respondent, and
(b) must describe the conduct complained of, and
(c) may but need not state why it is said the conduct contravenes or, if the conduct is threatened, will contravene the Act, and
(d) may but need not indicate the nature of the relief sought.
(4) The complaint may but need not include the material that would support the allegations and need not demonstrate a prima facie case.
94 Who may complain?
(1) A person may make a complaint on his or her own behalf.
(2) A representative body may make a complaint that Chapter 8 (Unlawful vilification) has been contravened.
(3) A member or officer of an incorporated body may make a complaint if the incorporated body is or may be affected by the conduct complained of.
(4) A legal practitioner may make a complaint, including a representative complaint, on behalf of a person affected by the conduct complained of.
(5) If a person affected by the conduct is a child, a parent or guardian may make a complaint (including a representative complaint) on behalf of the child.
(6) If a person suffers from an impairment that affects his or her ability to make a complaint (but not his or her capacity to authorise the making of a complaint), an agent authorised in that behalf may make a complaint (including a representative complaint) on behalf of that person.
(7) Any person may make a complaint on behalf of a person who lacks capacity:
(a) to make a complaint, or
(b) to authorise an agent to act on his or her behalf.
(8) In relation to a complaint about conduct affecting a person in relation to his or her work, an officer of an industrial organisation, of which the affected person is a member, may make a complaint on behalf of the person.
95 Representative complaints
A person entitled to make a complaint under section 94 may make a representative complaint on behalf of one or more other persons:
(a) if each such person is or may be affected by the conduct complained of, and
(b) if each such person made a complaint, it would arise out of, or relate to the same, similar or related circumstances, and
(c) if each such complaint were made, it would give rise to a substantial common question of law or fact.
96 Assistance with complaint
If requested, an officer of the Board must assist any person entitled to make a complaint, to formulate the complaint.
97 Complaint by President
(1) If the President becomes aware of conduct that could constitute a contravention of the Act, the President may request the Minister to refer a matter for investigation.
(2) If the Minister:
(a) believes that conduct may involve a contravention of this Act, or
(b) receives a request from the President under subsection (1),
the Minister may refer a matter to the President for investigation.
(3) If a matter is referred to the President for investigation under subsection (2), he or she must cause the matter to be reduced to writing and the document so produced is taken to be a complaint that has been accepted for the purposes of this Act.
(4) In determining whether to request the Minister to refer a matter for investigation under this section, the President is to have regard to the following:
(a) the seriousness of the possible unlawful conduct,
(b) the number of persons who may have been affected by the conduct,
(c) the period that has elapsed since the conduct occurred,
(d) the likelihood of a complaint being made in relation to the conduct,
(e) if a complaint has been made or were to be made, the ability of the actual or possible complainant to prosecute the matter efficiently and effectively,
(f) the public interest in the investigation of the conduct and the resolution of any question as to its lawfulness or otherwise,
(g) the remedies that may be available if the conduct were found to be unlawful.
(5) In considering, for the purposes of subsection (4) (c), the period that has elapsed since the conduct occurred, the President may have regard to whether or not the limitation period under section 98 has expired but may deal with the conduct under subsection (1) even though it was, in part or in whole, outside the limitation period.
Part 2 Procedure after a complaint is made
98 Acceptance
(1) If a complaint is received by the Board, the President must determine whether the complaint is to be accepted or not.
(2) The President must accept the complaint unless:
(a) no part of the conduct complained of could constitute an unlawful act under this Act, or
(b) the complaint does not provide adequate information to comply with section 93 (3), or
(c) no part of the conduct complained of falls within the period specified in subsection (3), or
(d) the complaint is not made in writing.
(3) The specified period is 12 months after:
(a) the occurrence of the conduct complained of, or
(b) if the conduct complained of is a course of conduct that takes place over a period of time - the termination of the course of conduct, or
(c) if the complainant or any other person has pursued, in respect of that conduct, any other complaint resolution process (whether formal or informal) - the termination of that process,
whichever is the latest.
(4) In considering whether to accept a complaint lodged outside the period specified in subsection (3), the President:
(a) must take into account any explanation provided by or on behalf of the complainant for the delay, and
(b) must consider whether the delay is likely to have created such prejudice to the respondent that the complaint should not be accepted, and
(c) may, in appropriate cases, seek the views of the respondent, and
(d) must not take into account the likelihood of the complainant obtaining a favourable result if the complaint is allowed to proceed, except to the extent that it is relevant in relation to the reason for delay.
(5) In determining whether or not to accept a complaint, the President may carry out such preliminary inquiries as he or she thinks necessary and appropriate.
99 Time for determining
Unless the President thinks it necessary to carry out preliminary inquiries for the purpose of determining whether to accept a complaint or not, he or she is to determine whether or not to accept the complaint within 28 days after the complaint is lodged with the Board.
100 Notifying respondent etc
If the President accepts a complaint, the Board must, so far as is reasonably practicable, notify the person who made the complaint and the respondent of the complaint and its acceptance within 28 days after its acceptance.
101 Investigating complaint
(1) If a complaint is accepted, the President is to investigate or cause the subject matter of the complaint to be investigated.
(2) For the purposes of the investigation, the person carrying out the investigation must:
(a) make such inquiries as are necessary to identify in detail the conduct complained of, the manner in which it is said to contravene this Act and the person or persons responsible for the conduct, and
(b) notify the respondent of the conduct complained of and the basis on which it is said to contravene this Act, and seek a response in writing to the complaint and to any matters identified by the person in relation to the complaint, and
(c) if it appears that a person may have a document relevant to the investigation, request the person by notice in writing to produce the document to the Board.
(3) A person requested to produce a document pursuant to subsection (2) must produce the document within the time specified for the purpose in the notice.
(4) A notice requiring production of a document within a specified time must include a statement of the consequences of failure to produce the document within the specified time.
Note. The consequences are specified in subsection (5) and, if the person to whom it is addressed is a party, in section 105.
(5) Failure to comply with a notice without reasonable excuse is an offence.
Maximum penalty: 20 penalty units.
(6) The time for production specified in the notice may be extended and, if written notice is given of the extension, the time as extended is taken to be the time specified in the notice.
102 Joint investigation of complaints
(1) The President may conduct an investigation, or cause an investigation to be conducted, into more than one complaint.
(2) The President must notify the parties if a joint investigation is undertaken.
103 Notification of investigation
The President must, as frequently as is reasonably convenient and, in any event, at periods not exceeding 60 days, notify the parties of the steps taken for the purpose of the investigation and the results of the investigation.
104 Expedited complaints
(1) A party to a complaint may request in writing that the complaint be dealt with as an expedited complaint.
(2) Within 14 days after receiving such a request, the President is to determine:
(a) whether to accept the complaint, and
(b) whether the complaint is to be dealt with as an expedited complaint.
The President is to notify the parties in writing of the determination and, if the determination is that the complaint is not to be dealt with as an expedited complaint, of the reasons for the determination.
(3) In relation to an expedited complaint:
(a) a conciliation conference must be held within 28 days after the lodgment of the complaint, and
(b) the complaint must be referred to the Tribunal on the request of a party if no settlement is achieved within 40 days after of lodgment, and
(c) the President need not undertake any independent investigation of the complaint, and
(d) the Tribunal is to hear and determine the complaint as soon as reasonably practicable after referral.
(4) In determining whether to treat a complaint as an expedited complaint, the President is to consider the following:
(a) whether it appears that the complaint can be adequately addressed without an investigation of factual matters,
(b) the need for an urgent resolution of the matter,
(c) the importance of the outcome, both to the immediate parties and in the public interest,
(d) whether speedy consideration will enhance the likelihood of a conciliated settlement.
105 Supplying documents etc
(1) The President may require the person who made the complaint or the person or persons against whom the complaint is made:
(a) to provide information (orally or in writing), or
(b) to supply documents,
within 28 days after the date of the requirement or such other period as the President determines and specifies when making the requirement.
(2) A person of whom a requirement is made under subsection (1):
(a) must provide to the President such information and such documents specified in the requirement as are in the person’s possession, custody or control within the period specified in the requirement, unless the person has a lawful excuse for not doing so, and
(b) must, if the person has a lawful excuse for not providing information or a document or documents specified in the requirement, notify the President of the excuse and the information or the document or documents to which it relates within the period specified in the requirement for providing the information or the document or documents to the President.
Maximum penalty: 50 penalty units.
(3) If the material is not so provided or supplied, the President is to notify the other party of the failure and that party may request that the matter be immediately referred to the Tribunal.
(4) If a request is received from a party by the President under subsection (3):
(a) the President must notify the other party of the request within 7 days, and
(b) the other party has a period of 14 days to show cause why the matter should not be referred to the Tribunal, and
(c) the President is to refer the matter to the Tribunal at the expiration of the 14-day period unless the President is satisfied that there is good reason not to refer the matter.
(5) The President may, by notice in writing, require a person other than a person referred to in subsection (1) to supply documents within 28 days after the date of the requirement or such other period as the President determines and specifies in the notice.
(6) A person who receives a notice under subsection (5):
(a) must provide to the President such documents specified in the notice as are in the person’s possession, custody or control within the period specified in the notice, unless the person has a lawful excuse for not doing so, and
(b) must, if the person has a lawful excuse for not providing a document or documents specified in the notice, notify the President of the excuse and the document or documents to which it relates within the period specified in the notice for providing the document or documents to the President.
Maximum penalty (subsection (6)): 50 penalty units.
106 Provision of information to conciliation officer
A person who carries out an investigation must provide the information obtained from the investigation to the conciliation officer responsible for attempting conciliation.
107 Conciliation
(1) The President must endeavour to resolve a complaint by way of conciliation.
(2) The President may delegate responsibility for conciliation under this section, but such a delegation may be made only to an officer of the Board who has not undertaken investigation of the complaint, except with the consent of the complainant and the person against whom the complaint was made.
(3) The President may, by notice in writing, require the complainant and the respondent, or either of them, to appear before the President or a conciliation officer, either separately or together, for the purpose of endeavouring to resolve the complaint by conciliation.
(4) A person must not fail to comply with the terms of a notice under subsection (3).
Maximum penalty (subsection 4): 20 penalty units.
108 Amendment of complaint
(1) If, at any time after a complaint is made and before the complaint is finally dealt with by the President:
(a) the person making the complaint seeks to amend the complaint, or
(b) the President becomes aware of information that could conveniently be dealt with as part of the complaint,
the person making the complaint is to be offered the opportunity to amend the complaint.
(2) An amendment may be made in writing but if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint.
(3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended.
109 Withdrawal of complaint
(1) A person who has lodged a complaint, other than a representative complaint, may at any time, by notice in writing lodged with the President, withdraw the complaint.
(2) If the President receives a notice under subsection (1) signed by or on behalf of the complainant or, if more than one, all the complainants, the President is to deal with the complaint under section 111.
(3) If the President receives a notice under subsection (1) signed by or on behalf of some, but not all, of the complainants, the President is to treat the notice as an amendment removing the names of those persons as complainants from the complaint.
110 Abandonment of complaint
(1) If a complainant has:
(a) failed to respond to a request for documents or information, or
(b) failed to notify the President of an address (or new address) at which he or she may be contacted,
the President may serve a notice on the complainant at his or her address last known to the President stating that, if a response is not received within 30 days, the complaint will be taken to be abandoned and dealt with under section 111.
(2) If a complaint is taken to have been abandoned under this section, it may be revived if, within 12 months after its abandonment, the complainant satisfies the President that:
(a) he or she wishes to pursue the complaint, and
(b) the failure relied on for the purpose of subsection (1) did not take place or ought reasonably to be excused, and
(c) no undue prejudice would be caused to the respondent by reviving the complaint.
111 Termination of investigation
(1) The President may terminate the investigation of a complaint after its acceptance if:
(a) the conduct alleged, if proven, would not constitute an unlawful act under this Act, or
(b) the complaint has been withdrawn or taken to be abandoned, or
(c) the complaint was lodged more than 12 months after the alleged unlawful act took place, or
(d) the complaint was frivolous, vexatious, misconceived or lacking in substance, or
(e) in a case where some other remedy has been sought in relation to the subject-matter of the complaint—the subject-matter of the complaint has been adequately dealt with, or
(f) the subject-matter of the complaint has been settled or resolved by agreement between the parties.
(2) If the President is satisfied that an investigation should be terminated, the President is to give notice to the complainant of the proposed termination and the reasons for the termination.
(3) The complainant has 28 days, or such longer time as may be agreed to by the President, to seek to satisfy the President that the investigation should not be terminated.
(4) If the complainant fails to satisfy the President that the investigation should not be terminated, the President must terminate the investigation and give notice to each of the parties to the complaint of the termination.
(5) If a complainant receives a notice of termination under subsection (4), the complainant may, within 28 days after the date of the notice, serve on the President a notice in writing requiring the President to refer the complaint to the Tribunal.
(6) If a complainant serves a notice under subsection (5), the President must refer the complaint to the Tribunal.
Note. The President does not, in considering whether to terminate an investigation, consider factual disputes. A complaint is not required to include material establishing a prima facie case.
112 Effect of termination
(1) If the President has terminated an investigation, no further complaint may be made by the complainant or by another person on his or her behalf, in relation to conduct which was the subject matter of the terminated investigation.
(2) No other civil proceedings may be taken in relation to the conduct complained of under the terminated investigation on the basis that the conduct constitutes unlawful discrimination.
(3) This section does not apply to a complaint deemed to have been made and accepted by the President under section 97.
113 Death of complainant or respondent
(1) If a complainant dies before his or her complaint is finally determined, the complaint survives and the estate of the complainant:
(a) may continue the carriage of the complaint, including any appeal, and
(b) is entitled to the benefit of any monetary sum ordered to be paid by the respondent in respect of the complaint.
(2) If a respondent dies before any complaint against him or her is finally determined, the complainant may continue to pursue the complaint (including any appeal) and any monetary sum ordered to be paid in respect of the complaint is payable from the estate of the respondent.
114 Conciliation procedure
(1) The President may carry out appropriate endeavours to conciliate a matter in such manner as the President thinks fit.
(2) If the President requires the parties to attend a conference pursuant to section 105, the parties cannot be represented by any other person at the conference except by leave of the President.
(3) Anything said and any information supplied during a conference called by the President pursuant to section 105 is not admissible in evidence in any proceedings relating to the complaint except for the purpose of establishing whether or not the complaint, or any part of the complaint, was resolved by conciliation.
115 Resolution of complaint
(1) If a complaint is resolved by conciliation to the satisfaction of the parties, the person conducting that conciliation must advise the President in writing of that outcome.
(2) Any agreement reached pursuant to conciliation is enforceable by law.
(3) On receiving a notice under subsection (1), the President may terminate the investigation of the complaint in whole or in part, in accordance with the terms of the notice.
(4) If the President is satisfied that:
(a) a party to an agreement reached pursuant to conciliation is not fulfilling in good faith the party’s obligations under the agreement, and
(b) another party to the agreement wishes the President to take steps under this section,
the President may take such steps as the President considers appropriate to enforce the agreement or any of its terms, including by way of instituting and prosecuting legal proceedings.
(5) If the President institutes and prosecutes legal proceedings under subsection (4), the President:
(a) has power to prosecute or settle the proceedings as the President thinks fit, and
(b) may obtain or pay costs, but no party may seek or seek to recover costs from a party for whose benefit the proceedings were brought who has not participated as a party in the proceedings.
116 Referral to Tribunal
(1) The President is to refer a complaint to the Tribunal for enquiry, if satisfied that:
(a) all parties wish the complaint to be referred to the Tribunal, or
(b) the nature of the complaint is such that it should be referred to the Tribunal, or
(c) all reasonable attempts have been made to resolve the complaint by conciliation but have not been successful, or
(d) the complaint cannot be resolved by conciliation.
(2) Despite subsection (1), if the complaint is taken to have been made and accepted pursuant to section 97, the President may refer the complaint to the Tribunal at any time and is, for the purpose of proceedings before the Tribunal, to be the complainant.
(3) If a complaint has not been resolved within 12 months after the date of lodgment, a party to the complaint may request the President by notice in writing to refer the complaint to the Tribunal.
(4) On receipt of a notice under subsection (3), the President must notify in writing all other parties to the complaint.
(5) If, within 28 days after notifying the parties under subsection (4), no party has objected to referral of the complaint, the President is to refer the complaint to the Tribunal.
(6) If the complainant objects to referral of the complaint, the President must not refer the complaint to the Tribunal, but may, if satisfied that there is no reasonable prospect of a conciliated agreement, terminate the investigation pursuant to section 109.
(7) If the respondent objects to referral of the complaint, the President is to refer the complaint to the Tribunal, unless satisfied that there are reasonable prospects of a conciliated agreement.
(8) If there is more than one complainant or respondent to the complaint, the President may, if the President thinks fit, deal with the complaint as a number of complaints by or against each such complainant or respondent.
(9) The President in exercising functions under this section may refer a complaint to the Tribunal over the objections of the complainant only in exceptional circumstances.
(10) If a complaint is referred to the Tribunal, the complaint is to comprise:
(a) the original complaint lodged with the President, and
(b) any amendment made pursuant to section 108, and
(c) any other documents or information obtained or recorded by the President and identified by the President as part of the complaint that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of an unlawful act under the Act.
117 Settlement of representative complaints
(1) A representative complaint may be settled by agreement between the parties and may be resolved by conciliation.
(2) The President must not terminate the investigation of a representative complaint unless satisfied that the settlement or resolution by conciliation:
(a) constitutes a bona fide settlement or resolution on behalf of the group members, and
(b) appears to be in the interests of group members generally,
and is to refer the complainant to the Tribunal for approval of the settlement or resolution.
(3) If, at any time during the investigation or conciliation of a representative complaint, the President is of the view that the complainant is unwilling or unable adequately to represent the group members, the President may treat the complaint as having been accepted on behalf of a class comprising some or all of the group members and the President is thereafter be the complainant for those group members.
(4) If the parties agree to settle a representative complaint or a resolution by conciliation is proposed, the settlement or resolution does not take effect until:
(a) such steps have been taken as may be approved or directed by the President for the purposes of notifying group members of the terms of the intended settlement or proposed resolution, and
(b) the settlement or resolution has been approved by the Tribunal.
(5) A notice given for the purposes of section 116 must, in the case of a representative complaint, permit group members to opt out of the complaint, to the extent, in the manner and within the time provided for in the notice.
(6) The content and timing of the notice must be approved by the President before the notice is given.
118 Enforcement of orders of the Tribunal
The President may:
(a) in the case of an individual complaint, take steps to enforce an order of the Tribunal on behalf of a complainant with the complainant’s consent, or
(b) in the case of a representative complaint, or in any other case in which the President believes that the public interest demands it, take steps to enforce an order of the Tribunal on the President’s own motion.
119 Effect of contravention of Act
(1) A contravention of this Act does not attract a sanction (whether criminal or civil) except to the extent provided by this Act.
(2) This section does not prevent a party to proceedings brought against the party from relying on a contravention of this Act by way of defence, set-off or cross-claim.
(3) This section does not prevent a person obtaining relief in civil proceedings for a contravention of this Act, if:
(a) the civil proceedings are taken in good faith to obtain relief in respect of a matter not arising under this Act, and
(b) a claim based on a contravention of this Act could conveniently be dealt with in those proceedings.
(4) If a person seeks to rely on a contravention of this Act in other proceedings, pursuant to subsection (2) or (3), and the Court or Tribunal in which those proceedings are brought has a discretion in relation to the joinder of causes of action or parties, it may take into account the scheme and procedures available under this Act in exercising that discretion.
(5) A reference in this section to a contravention of this Act includes a reference to a threatened contravention of this Act.
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