10.1 The Anti-Discrimination Act 1977 (NSW) (“ADA”) renders various forms of conduct unlawful. These, as discussed in the previous chapters, may be grouped as follows:

• discrimination, harassment and victimisation;
• vilification;
• advertising; and
• procedural obstruction.

10.3 In relation to the second category, namely vilification, special civil remedies are provided.¹ Other offences are created in relation to advertising which contravenes the ADA and in relation to failure to comply with orders made by the Anti-Discrimination Board (“ADB”) or the Administrative Decisions Tribunal (“ADT”).²

10.4 The availability of the remedies in particular cases may depend upon the person or body taking the proceedings. In relation to discrimination, harassment and victimisation, a complaint may be taken by an individual on his or her own behalf, or by a person as representative of a group. Currently, the remedies available vary according to the capacity in which the complaint is pursued. It is possible that the availability of remedies may depend on the interest of the complainant in the proceedings.³

10.5 The first question raised by these matters is whether the ADA currently makes the appropriate distinction between civil remedies and criminal penalties. Subject to some minor changes suggested below, the Commission is satisfied that the distinction is appropriately drawn. In other words, it is appropriate that the various forms of discrimination should be the subject of civil remedies allowing for persons injured to obtain compensation. The Commission sees no purpose in imposing penalties for such conduct. On the other hand, it is appropriate to impose a penalty in respect of breaches of orders given by the President of the ADB or the Tribunal.

10.6 The second general issue which arises in this context is the monopoly given to the Tribunal in relation to complaints of discrimination, harassment and victimisation.⁴ The Commission gives separate consideration to the appropriateness of maintaining the exclusivity of the Tribunal’s jurisdiction.

10.7 In Chapter Eight the Commission has recommended giving the President of the ADB a new role in pursuing complaints before the Tribunal.⁵ This recommendation requires that consideration be given to the remedies which should be available in relation to matters pursued by the President.

10.8 At present the ADA also distinguishes between the relief available to an individual complainant and a representative complainant. Comment will be made below in relation to particular remedies as to whether they should be available at the request of an individual, a representative or the President of the ADB, or in all cases regardless of the identity or capacity of the complainant. Finally, it will be necessary to give specific consideration to the enforcement of orders made by the Tribunal. These matters have been touched on in Chapter Nine, as has the power of the Tribunal to make orders as to costs.⁶

10.9 The ADA does not punish those who contravene its prohibitions on unlawful discrimination and harassment, but provides redress for injury or loss suffered. Subject to this overriding purpose, the ADA confers a broad discretion on the new Equal Opportunity Division of the Administrative Decisions Tribunal (“EO Division”) as it did on the EOT,⁷ taking into account all material facts before it, to decide what remedy is appropriate in any case.⁸ The following discussion will refer to the EOT and the Equal Opportunity Division of the ADT as the “Tribunal” unless specific reference to one or the other is necessary.

10.10 Under the current provisions of the ADA, the Tribunal is not bound to make any orders even if it finds the complaint substantiated.⁹ However, it is unusual for the Tribunal not to make some sort of order for redress, given that a finding of discrimination alone is not seen to offer sufficient vindication to complainants.¹⁰

10.11 Where the Tribunal finds an individual complaint substantiated, it may make one or more of the following orders:

• an award of damages, not exceeding $40,000;
• an injunction to stop the respondent from continuing or repeating the unlawful act;
• an order requiring the respondent to “perform any reasonable act or course of conduct” to redress any loss or damage suffered by the complainant; and/or
• a declaration that a contract or agreement, either in whole or in part, is void.¹¹

10.13 If substantiated, the Tribunal has specific power, in vilification complaints, to order the respondent to:

• publish a public apology or a retraction; and/or
• develop and implement a program or policy aimed at eliminating unlawful discrimination.¹³

10.15 The major criticisms of the judicial remedies available under the ADA are that:

• the statutory ceiling for awards of damages is too low;¹⁴
• the extent of the Tribunal’s powers to order the respondent to take remedial action is uncertain;
• orders for damages and orders requiring the respondent to take remedial action are not available in group actions: once liability is determined, aggrieved persons must bring separate actions in order to seek such orders; and
• there is no provision for declaratory relief.¹⁵

General principles

10.16 The ADA presently provides that various remedies are available in relation to a complaint which the Tribunal finds has been “substantiated”.¹⁶ The form of the provision reflects the two-stage process which is uniformly adopted by the Tribunal in practice. First, the Tribunal considers whether or not there has been a contravention of the Act and only when so satisfied continues to consider the remedy or remedies which may appropriately be provided. The ADA also provides that a finding of discrimination may be made but no further step need be taken.¹⁷ However, it is generally appropriate to take a further step of granting specific relief, unless the Tribunal is satisfied that no loss or damage has been suffered, or no compensation is sought and that there is no threat of a continuation or repetition of the unlawful conduct. However, if there has been compensable loss suffered, the Full Federal Court has held, under similar provisions in the Sex Discrimination Act 1984 (Cth) (“SDA”), that order for payment of compensation should generally follow.¹⁸ That is because the purpose of the SDA is not merely to provide an educational or deterrent effect by making a finding of unlawful conduct but it is to provide for loss or damage suffered. In short, a complainant who can establish loss or damage from unlawful conduct generally speaking has a right to an award of compensation.

10.17 The nature of the available relief has led to the rights provided under the ADA being described as a category of “statutory torts”.¹⁹ However, that is not to say that the relief provided should necessarily be identical with that available in respect of a common law tort, nor that, in an otherwise appropriate case, the relief should be the same as that provided for a breach of contract. Rather, the ADA confers a broad discretion on the Tribunal to take into account all material facts in determining what remedy is appropriate in a particular case.²⁰ These considerations will continue to apply in relation to the new Tribunal.²¹

Compensation: availability

10.18 Although many complainants claim not to be motivated by the availability of pecuniary compensation, damages for losses suffered are the most common form of relief sought and the kind most commonly granted.²²

10.19 While the ADA gives effect to the policy of providing compensation for loss caused by interference with important human rights and fundamental freedoms, it also imposes a constraint in some cases on the completeness of the compensation which may be recovered. This is achieved by imposing a cap on the damages recoverable in the Tribunal²³ together with a provision precluding the bringing of proceedings in any other jurisdiction for a contravention of the Act.²⁴

10.20 While the provision of a cap on the jurisdiction of the Tribunal may be justifiable, it is difficult to justify, in policy terms, a result which may prevent some complainants receiving full and appropriate compensation for loss or damage suffered. This limitation has been criticised both as unfair and as providing a deterrent or disincentive to complainants who might otherwise pursue complaints to the Tribunal.²⁵

Should there be a ceiling?

10.21 In 1977 when the ADA was first passed, the ceiling was set at $20,000 in line with the District Court jurisdictional limit. It was increased in 1982 to $40,000 to keep pace with the ceiling in the District Court.²⁶ It has not been reviewed since, despite movements in the Consumer Price Index and the fact that the limit of the District Court has been increased many times since, the current limit being $750,000. In the Commission’s Review of the Anti-Discrimination Act 1977 (NSW) (Discussion Paper 30, 1997) (“DP 30”), submissions were sought on whether there should be a ceiling at all and if so, whether and how it should be increased.

10.22 Some submissions argued that there is no need to cap damages in any way. It is argued that the fundamental principles which underscore the assessment of damages already contain a built-in safeguard,²⁷ and that awards will compensate the injured person only for that loss or damage which is shown to be causally related to the unlawful conduct.²⁸ With the exception of Western Australia and the Northern Territory (where the prescribed limits are $40,000 and $60,000 respectively),²⁹ Australian equal opportunity jurisdictions operate without statutory limits on recovery of damages. In these jurisdictions, damages have not been excessive.³⁰ Removing the ceiling would also promote uniformity with Federal legislation.³¹

10.23 A small number of submissions argued that the current statutory limit provides adequate redress and opposed any increase on the grounds that it would:

• open the floodgates to litigation at the Tribunal;
• run against the recent tide of reducing and capping compensation pay outs;³² and
• increase the risk of a “pot of gold syndrome” developing among victims of discrimination and their lawyers, thus undermining the aims of conciliation and workplace reform.³³

10.25 However, the vast majority of submissions received by the Commission agreed that the ceiling of $40,000 is inadequate and counter-productive, and supported increasing the ceiling to the jurisdictional limit of the District Court.³⁴

10.26 Arguments in favour of increasing the ceiling included:

• a higher ceiling would represent a more realistic and equitable remedy for victims of discrimination, as the Tribunal would be empowered to make orders for damages commensurate with the harm suffered by the complainant due to the respondent’s unlawful actions;
• it would reduce the tendency of complainants to plead several complaints in order to maximise their chances of proper compensation, thus streamlining the proceedings;
• it would remove a potential disincentive to complainants to pursue a complaint in the Tribunal when it remains unsettled after conciliation;
• it will increase the in-built deterrent element present in compensatory damages:³⁵ higher damages pay outs are said to have been a powerful stimulus for change in other countries;³⁶
• removing or increasing the ceiling on damages awards may have a spin-off effect on conciliation proceedings, as it would encourage both sides to work towards an amicable settlement and avoid proceeding to the Tribunal.

10.27 The Commission believes that the current statutory ceiling is inadequate. The current low limit discredits the significance of anti-discrimination laws, and has the potential to frustrate the provision of adequate remedies under the ADA. The Commission has therefore considered the issue of either increasing the limit to the District Court limit,³⁷ as was suggested in some submissions, or increasing it to some other amount which may reflect current community expectations.

10.28 The argument that removing the ceiling would lead to a flood of matters in the Tribunal is unsubstantiated.³⁸ The level of claims and the quantum of awards in other jurisdictions which lack a ceiling tells against this argument. Research undertaken in Australia and overseas suggests that complainants are rarely motivated by money when they decide to lodge complaints.³⁹ Rather, most want to take the discriminator to task and ensure that the discriminatory conduct is stopped.⁴⁰

10.29 If the appropriate course in principle is to remove the statutory ceiling, the next question is whether the nature of the Tribunal suggests there should nevertheless be a cap on the amount which can be awarded.

10.30 The panel of the EO Division constituted to hear a particular case will not necessarily be headed by a District Court judge or member of the Worker’s Compensation Court. There are other differences between the Tribunal and the District Court which prevent equating one with the other. Unlike a court, the Tribunal is not bound by adversarial procedures or rules of evidence and has considerable discretion to conduct matters however it sees fit. Appeals on the merits of the case are not available to the Supreme Court.

10.31 Even under the ADA, the EOT has not always had a judge as its senior judicial member, and, even when it did, the judge did not sit on the panels in all cases. Accordingly, there is justification for limiting the amount or value of the relief which may be awarded.

10.32 Further, it was suggested to the Commission that if the cap on damages were removed, a more expansive right of appeal should be available to the parties. The Commission sees some merit in this proposal, as one reason for restricting rights of appeal is to ensure that claims for relatively minor amounts do not generate unduly complex legal proceedings and disproportionate legal costs.

Conclusions

10.33 Consistently with the principle that full compensation should be available for a contravention of the ADA, there should not be a limit on the amount recoverable. However, given the constitution of the Tribunal, there should be a statutory ceiling on the amount that it can award by way of damages.

10.34 The appropriate resolution of this difficulty is to provide a cap on the damages recoverable in the Tribunal, depending on the constitution of the particular panel hearing the matter. The President of the ADT or the Head of a Division has the power to constitute panels for the purposes of particular cases.⁴¹ In circumstances where a claim is made in excess of the proposed limit, the President may be required to constitute a Tribunal presided over by a District Court judge.

10.35 In other cases the power of the Tribunal should generally be limited to the powers of a District Court judge sitting as such. Whilst the Tribunal has a level of procedural flexibility, as a practical matter it is clear that amounts awarded in this jurisdiction are unlikely to come anywhere near the limits of the District Court’s jurisdiction. Experience under similar legislation in other jurisdictions in Australia suggests that there will be a relatively small number of cases in which an award of damages in excess of $150,000 could reasonably be anticipated. It may well be that no further cap on the limit of the Tribunal is needed: certainly experience in other jurisdictions suggests that caps are unnecessary and one would not expect a Tribunal presided over by a District Court judge to act otherwise than responsibly. In any event, an irresponsible award of damages could be corrected on appeal.

10.36 Issues in relation to appeals from decisions of the Tribunal are dealt with in Chapter Nine.⁴²

10.37 These conclusions require an answer to a further question, namely the appropriate monetary limit of the Tribunal (constituted by non-judicial members only). In the view of the Commission, a statutory ceiling of between $100,000 and $200,000 is appropriate. The identification of a precise figure is necessary, but to a degree arbitrary. The Commission considers that at the present time, an appropriate limit would be $150,000.

Recommendation 148
• The statutory limit on damages in the Tribunal should be increased to $150,000, except in cases where the panel has a District Court judge as its presidential member where the limit should reflect the jurisdiction of the District Court;
• otherwise, the powers of the Tribunal with respect to orders should be those available under the District Court Act 1973 (NSW).

Assessment of damages

10.38 Generally, it has been considered that assessment of damages under the ADA should be treated as analogous to an action in tort, thus permitting a wider claim to damages being made than if an action under the ADA were treated as an action in contract.⁴³ While in most cases the measure of damages in tort would be a sensible and sound test, a court is not bound to principles of tort, and should be open to the possibility of taking a different approach to the assessment of damages where a case may require it.⁴⁴

10.39 Damages which have regularly been recovered include amounts to cover disbursements (such as medical expenses) incurred as a result of the unlawful conduct and loss of wages to the date of the hearing, or some other appropriate time in the past. Amounts may also be recoverable for future loss of earnings in appropriate cases, although, given the lapse of time which inevitably accompanies the making of a complaint, its investigation, conciliation and referral to the Tribunal for hearing, the period of unemployment which may properly be attributed to the unlawful conduct will usually have terminated before the determination is made. In addition, general damages are commonly awarded for pain and suffering, although more usually, they are relatively small amounts for embarrassment, humiliation and injury to feelings. As these are intangible harms, damages for non-economic loss are more difficult to quantify and are often mistakenly perceived as a penalty on the discriminator.⁴⁵ They tend to be low⁴⁶ despite the warning of the English Court of Appeal that damages for non-economic loss should “not be minimal, because this would tend to trivialise or diminish respect for public policy”.⁴⁷ Reported awards for damages for non-economic loss in New South Wales have varied between $50⁴⁸ and $27,500.⁴⁹

10.40 Damages for non-economic loss can be made regardless of whether damages are claimed or awarded for economic loss. It is not uncommon, in fact, for the Tribunal to award damages for injury to feelings alone.⁵⁰

Aggravated damages

10.41 There is a further category of damages which can be recovered in such cases, commonly known as “aggravated damages”. These are designed to compensate complainants for distress arising from the offender’s conduct where it is particularly reprehensible or insulting.⁵¹ Although it is widely accepted that the Tribunal has power to make an award for aggravated damages,⁵² there have been few cases where such awards have been expressly made.⁵³ Because they require a court or tribunal to look at the conduct of the respondent, aggravated damages may arguably appear punitive in nature. However, it is overwhelmingly accepted that they are compensatory and not only applicable but appropriate in certain cases of discrimination.⁵⁴

Exemplary damages

10.42 A third form of damages, known as “exemplary” or punitive damages is not available under the ADA. Exemplary damages “are intended to punish the defendant, and, presumably, to serve one or more of the objects of punishment – moral retribution or deterrence”.⁵⁵ For this reason, they have been held not to be available pursuant to a power limited to providing compensation for loss.⁵⁶ The argument for providing exemplary damages in the context of anti-discrimination law arises out of criticisms that the law’s “soft approach” does not always induce compliance.⁵⁷

10.43 The availability of exemplary damages in civil actions generally has been criticised, primarily on the ground that it is inappropriate and unjust to dispense punishment to offenders on the balance of probabilities, which is a lower standard of proof than that required by the criminal law. Punishment, it is argued, is more appropriately left to the criminal justice system, which contains appropriate safeguards for defendants.⁵⁸ Opponents of exemplary damages also consider them an unfair windfall to plaintiffs.⁵⁹ As they are expressly punitive, the purpose of exemplary damages is not to compensate the complainant for any injury suffered.

10.44 Although there may be a trend towards the greater recoverability of exemplary damages at common law,⁶⁰ their availability under statute is diminishing in New South Wales. They were removed from defamation proceedings in this State subsequent to a report by the Commission in 1974⁶¹ and a proposal for their reintroduction has been rejected in the Commission’s recent report.⁶² They were also removed from motor accident cases in 1989⁶³ and are expressly made unavailable in awards under workers compensation law.⁶⁴

10.45 The majority of submissions received did not support the introduction of exemplary damages. Most agreed that the incidental deterrent value of compensatory damages would be increased once damages more realistically reflect the injury suffered, uninhibited by the current low ceiling on awards.⁶⁵ The Commission does not support the availability of exemplary damages in proceedings under the ADA. Any measure to punish offenders should be dealt with in criminal, not civil proceedings, where appropriate standards exist to safeguard civil liberties.

Injunctions and other orders

10.46 Under the ADA injunctive relief is available to prevent the continuation or recurrence of unlawful conduct.⁶⁶ The appropriateness of such relief is not questioned, but an issue may arise on occasion as to whether it should be available to a particular complainant who is no longer subject to the conduct complained of. For example, an employee who loses her employment by reason of a pattern of unlawful discriminatory behaviour and who does not seek or obtain reinstatement, may wish to pursue injunctive relief against her former employer in order to prevent a repetition of the particular conduct. In some cases, it will be clear from the established facts that such an order is appropriate, but there remains a question as to whether it should be available at the instigation of an individual complainant who is no longer in the workplace.

10.47 There are practical reasons for thinking that those affected by such an injunction should be given an opportunity to be heard by the Tribunal. In some circumstances, the work force may consider that the benefits to be obtained are illusory and the costs to them of new work practices are likely to be real. Alternatively, whilst the employer may oppose the relief sought, the real issue may be the form of the relief and the complainant may no longer be in a good position to assess contemporary needs of the work force.

10.48 One way to approach the matter may be to require such a complainant to lodge a complaint in a representative capacity as well as an individual capacity. This will allow the Tribunal to consider whether he or she is an appropriate representative and will also involve the procedural requirements, including appropriate forms of notice, which are designed to ensure that group members are appropriately informed of the proceedings and given an opportunity to make such submissions or play such role as they think appropriate. An alternative course is for the Tribunal to ensure that the President of the ADB is notified of the possibility of such relief being sought, or even to notify the President of its own motion if it considers that such relief should be considered.

10.49 While the Commission thinks that one of these two alternatives should be followed, it is also concerned that there may be legitimate reasons in particular cases for not following either procedure and yet permitting the Tribunal to grant the relief sought by the complainant. Accordingly, the preferable course is to make express provision for these circumstances so as to ensure that the Tribunal may, in the exercise of its own discretion take appropriate steps, as it thinks fit.

Recommendation 149

The Tribunal should have the power to grant an injunction which extends to conduct affecting persons other than the individual complainant in the following circumstances:

• where the complaint has been lodged in a representative capacity;
• where the President of the ADB has been notified and given the opportunity to make submissions; or
• in any other case, where the Tribunal believes that the particular circumstances warrant such action.

Mandatory orders

10.50 Injunctive relief involves the prohibition of defined conduct: in some circumstances, however, a mandatory order requiring particular conduct to be undertaken (rather than avoided) may be appropriate. The Tribunal presently has powers which would allow it to formulate appropriate mandatory orders.

10.51 The Tribunal currently has the power to order the respondent to perform any reasonable act aimed at redressing the loss or damage suffered by the complainant.⁶⁷ The power has been used, for example, to order a respondent to appoint,⁶⁸ to reinstate or promote the complainant,⁶⁹ to transfer or suspend the harasser so as to ensure no contact with the victim,⁷⁰ to give constructive seniority to the complainant,⁷¹ to apologise to the complainant, to change recruitment and selection practices and to order an employer to take disciplinary action against a harasser.⁷²

10.52 The ADA now expressly provides that the Tribunal may also order the implementation of an equal opportunity plan,⁷³ but only in relation to vilification complaints, implying that the remedy is unavailable for other grounds of discrimination. Under the present wording of s 113(b)(iii), the Tribunal may not be entitled in other cases to make an order for the implementation of an equal opportunity plan. The power to order a respondent to develop and implement programs or practices which comply with the terms of anti-discrimination laws is an especially useful tool against systemic discrimination.

10.53 Two problems arise in relation to mandatory orders of a positive kind. First, they can require the expenditure of funds and, secondly, they may require on-going monitoring.

10.54 In relation to expenditure, the Commission is aware of circumstances in a particular case in which the Tribunal made orders (ultimately by consent) requiring the construction of a sealed road to a remote Aboriginal community. The cost of the work was expected to be many times the statutory ceiling of the Tribunal. The ceiling did not, however, apply in relation to such orders.

10.55 As the matter does not seem to have caused practical difficulties, the Commission does not recommend any limit on the jurisdiction of the Tribunal beyond those relating to monetary relief. However, the Commission considers that, where such an order is not made by consent and where the respondent can establish that the direct costs of compliance with the order would exceed the statutory limit of the Tribunal’s jurisdiction, it should have an appeal as of right in relation to the appropriateness of the order.

10.56 The second matter raised concerns the monitoring of orders. The Commission is aware of orders made which require the formulation of compliance programs or attendance at counselling or other educational programs. Where, on occasion, the Tribunal has made such orders, they have often been part of terms of settlement and accordingly made by consent. In one case, the Tribunal made an order requiring counselling of a medical practitioner against whom a number of complaints of sexual harassment by employees had been upheld. On some occasions, the President of the ADB or officers of the ADB are involved in designing or running the relevant programs.

10.57 Such orders should continue to be within the armoury of the Tribunal and express provision should be made in relation to the powers of the President of the ADB which would allow the President or a delegate to be appointed by the Tribunal to undertake appropriate monitoring or related functions. Because, in other contexts, it has been held that a tribunal or court will not have power to make orders by consent, which it could not make in disputed proceedings,⁷⁴ it is necessary that the legislation provide the broadest appropriate powers to the Tribunal to allow it to continue to make such orders.

Recommendation 150

That the Tribunal be given express power to make mandatory orders in accordance with the following:

• where the order is not by consent and the cost of compliance would exceed the statutory maximum, the respondent should have a right of appeal in relation to the appropriateness of the order; and
• the Tribunal should have the power to make mandatory orders and appoint the President of the ADB to monitor compliance with the order.

Declarations

10.58 Under the current provisions, the Tribunal is required to make a “finding” that a complaint is “substantiated” before granting further relief.⁷⁵ However, the Tribunal does not presently have a power specifically to declare that certain conduct was unlawful. In some cases, including representative actions where it may be necessary for group members to bring their own proceedings to obtain specific relief, it is desirable that the unlawful conduct, as found by the Tribunal, be defined with some precision. Accordingly, the Tribunal should be given an express power to make a declaration, whether or not it proceeds to grant other substantive relief.

Recommendation 151

The Tribunal should be empowered to make a declaration that certain conduct is unlawful under the ADA.

Other orders

10.59 Both the Tribunal and similar bodies in other jurisdictions and the Commonwealth Human Rights and Equal Opportunity Commission have on occasion ordered respondents to make apologies or publish retractions.

10.60 The extent of the Tribunal’s powers to make such orders is not entirely clear. An apology is not unambiguously a form of “redress” for loss or damage caused⁷⁶ and the express power to make such orders, but limited to vilification complaints, casts doubt on the existence of a broader power.⁷⁷

10.61 As the desirability of a power to make such orders seems not to be in question, the Commission recommends that express terms be adopted to put the power of the Tribunal beyond doubt.

10.62 A second kind of order which is expressly provided for in the ADA is one which allows for a variation of contractual terms.⁷⁸ This power is consistent with the power of both superior courts and other tribunals and is well established.⁷⁹ The Commission has considered whether it is appropriate to formulate relevant criteria to guide the Tribunal, but does not think that such an amendment is necessary. Clearly the power will only be exercised in circumstances where the contract itself involves or may lead to conduct which is unlawful under the ADA and the appropriate variation should be to avoid or prevent that result.

10.63 Of greater concern is the possibility that such a power might be exercised in relation to contracts of employment which fall within the jurisdiction of industrial courts and tribunals. The Commission considers that an appropriate constraint should be imposed on the Tribunal in relation to such matters, although it may be limited to a requirement that the Tribunal give the respondent an opportunity to invoke the jurisdiction of an industrial court or tribunal if it thinks appropriate, within a reasonable time.

Recommendation 152

That the Tribunal be given express power to order a respondent to publish an apology or retraction in relation to all forms of unlawful conduct under the ADA.

Recommendation 153

In relation to the power of the Tribunal to make a variation to the terms of a contract of employment, that the Tribunal be required to allow the respondent to take the matter to the industrial relations jurisdiction within a reasonable time.

Victimisation

10.64 In this chapter, complaints of discrimination, harassment and victimisation have been considered together. Although the concept of victimisation differs in significant respects from the prohibition on unlawful discrimination or harassment, the Commission is satisfied that the range of remedies which exist in relation to discrimination and harassment should be available in relation to victimisation.

VILIFICATION

10.65 The orders presently available in relation to vilification complaints reflect the different purposes to be served by these complaints. As already noted the Commission recommends that serious vilification complaints be dealt with under an appropriate criminal statute.⁸⁰ Accordingly, nothing is said here about the remedies and penalties available in relation to such complaints.

10.66 In relation to other vilification complaints the Tribunal has the general powers which are provided in relation to discrimination complaints under the ADA. In addition, it is empowered to order the respondent to a vilification complaint to publish an apology or retraction.⁸¹ It is also empowered to order a respondent to develop and implement a program or policy aimed at eliminating “unlawful discrimination”.⁸² This provision is curiously worded because vilification, although a form of conduct which may in some circumstances constitute unlawful discrimination, is separately defined. It is not a proscription on differential treatment based on, for example, race but the incitement of hatred towards members of that racial group. Accordingly, the program or policy which should appropriately be adopted following a substantiated vilification complaint should be directed to eliminating unlawful vilification. However, the criticism is directed to the drafting, rather than the principle at stake. As noted above, the Commission considers that the powers specifically granted in relation to the vilification complaints should be available in relation to unlawful discrimination generally, as well as in relation to vilification.

Recommendation 154

The Tribunal should have power to order a respondent to implement a program or policy aimed at eliminating unlawful vilification. A similar power should be available in relation to all forms of unlawful conduct under the ADA.

10.67 The Commission has already noted that the legislation in other jurisdictions and in particular in the Commonwealth Acts have followed more closely the model of the representative proceeding provisions in the Federal Court of Australia Act 1976 (Cth). The Commission has recommended that similar procedures be adopted in the ADA.⁸³ Inclusion of those procedures requires a reconsideration of the relief available to a complainant acting in a representative capacity.

10.68 First, there is the prohibition on the recovery of damages in representative proceedings under the ADA.⁸⁴ This gave rise to a curious set of issues in Leslie Squires v Qantas Airways.⁸⁵ Ms Squires had lodged a complaint of sex discrimination against Qantas which, although ambiguous as to whether it was lodged in a representative capacity or not, clearly alleged systemic discrimination by Qantas against female flight attendants over a lengthy period. The New South Wales Court of Appeal ultimately accepted the complainant’s argument that the complaint had not been lodged in a representative capacity, and it is clear that the complainant’s position was influenced by the fact that, if it had been a representative complaint, she would not have been able to recover any compensation for her own loss and damage. In policy terms, there appears to be no good reason why an individual should not be able to lodge a complaint on her own behalf and in a representative capacity. The procedures recommended above ensure that this is possible.

10.69 Further, there is no reason of principle why damages should not be claimable in representative proceedings. In many cases the assessment of damages will be an individual issue which will need to be separately pursued by group members on their own behalf. Nevertheless, the correct approach is to provide that such individual issues can be separately determined (whether in the representative proceedings or otherwise).

10.70 In some cases, the loss suffered may be capable of global quantification. This may happen in cases where the unlawful conduct has resulted in a particular fund or limited benefit being unavailable to one group of potential complainants. Where that situation arises, it will be necessary for the Tribunal (or court) to have relevant powers to enable it to assess the amount available to group members, create and administer a fund and distribute appropriate sums to individual group members.⁸⁶ Again, these powers are included in the recommended procedures.

Recommendation 155

In relation to representative actions, the relief available in representative proceedings under the Federal Court of Australia Act 1976 (Cth) should be available in the Tribunal.

10.71 The earlier recommendations of the Commission⁸⁷ would permit the President of the ADB to have a special role in both bringing proceedings on his or her own behalf and intervening in proceedings brought by a private complainant. The role of the President may be seen as analogous to that of the Australian Competition and Consumer Commission (ACCC), which is responsible for the administration, among other parts, of the consumer protection provisions in Part V of the Trade Practices Act 1974 (Cth). The ACCC has, on a number of occasions, taken proceedings in a representative capacity on behalf of consumers who may have suffered loss or damage as a result of a contravention of the Trade Practices Act 1974 (Cth).⁸⁸ The President of the ADB should be expressly authorised to act in a representative capacity when appearing before the Tribunal in relation to alleged contraventions of the ADA. Similarly, the President should have statutory standing to seek such relief as he or she thinks appropriate on behalf of members of the represented group.

Recommendation 156

The President of the ADB should have the express power to act in a representative capacity when appearing before the Tribunal and should have standing to seek relief on behalf of members of the represented group.

10.72 The foregoing recommendations are directed generally to the powers of the Tribunal. However, as has been noted above, the Commission considers it appropriate to allow claims of unlawful conduct under the ADA to be raised in courts, namely the District Court or the Supreme Court, in appropriate circumstances.⁸⁹

10.73 The power of a court to consider such matters depends upon the repeal or amendment of s 123 of the ADA. Section 123 gives the Tribunal exclusive jurisdiction in relation to the relief arising out of contraventions of the ADA by providing that the conduct shall not attract a criminal or civil sanction except to the extent expressly provided by the Act.⁹⁰

10.74 The Discrimination Act 1991 (ACT) has a contrary provision which provides as follows:

126. This Act is in addition to, and not in derogation of, any other law in force in the territory which provides for the protection of a person from conduct which is or would be unlawful under this Act.

10.75 The Commission sees no reason to limit the powers of a court to grant relief otherwise available to it. However, there is also no good reason to leave a successful complainant, who has established a contravention of the ADA in a court, without the remedies which might have been available if the proceedings had been in the Tribunal.

Recommendation 157

The Supreme and District Courts should have conferred on them the power to grant any relief available if the proceedings had been in the Tribunal, in addition to any other powers available to them.

10.76 Most orders of the Tribunal involve awards of damages or other orders for payment of amounts of money. The ADA has also provided for the enforcement of an order for damages, which may be registered and recovered as a judgment debt in a court of competent jurisdiction.⁹² A similar provision now appears in the Administrative Decisions Tribunal Act 1997 (NSW) (“ADT Act”) and will apply to orders of the EO Division.⁹³

10.77 The effect of this provision is that a judgment will carry interest at the rate prescribed, for example, by the District Court Rules, from the date of registration in the Court. Lawyers acting for complainants who fail to register an order of the Tribunal promptly, may well be liable for any loss incurred by their negligence in that regard. However, it should be made clear in the legislation, for the benefit of lawyers and lay complainants, that there is indeed a procedure to be followed if interest is to accrue on judgment debts. The alternative course is to provide expressly that a judgment will carry interest from the date of the order of the Tribunal or some other specified date. The Commission favours the latter approach, in the interests of simplicity and transparency. The interest rate can be identified by reference to that applicable in a relevant court, which should be the District Court.

10.78 There is a separate question as to whether the Tribunal should be able to award interest on damages in relation to the period between the time of injury and the date of the Tribunal’s determination. Such a provision is available in relation to orders for the recovery of money in superior courts.⁹⁴

10.79 There appear to be three reasons why such a power has not so far been granted to the Tribunal. First, the availability of interest introduces a level of complexity in the calculation of awards, which may have been thought inappropriate. Secondly, the cap on the jurisdiction of the Tribunal reflected a view that, generally speaking, awards were not likely to be of large amounts and, accordingly, it may have been thought unnecessary to introduce a relatively small further amount by way of interest. Thirdly, the emphasis of the procedures available under the ADA was on prompt lodgement of complaints and resolution by conciliation. The short period anticipated prior to a determination may have been thought to render the calculation of interest unnecessary.

10.80 Whilst the Commission accepts that each of these factors has weight, it is also concerned that the present rule involves a further distinction between civil claims generally and claims under the ADA. Where possible, such differential treatment should be avoided. The result has been to provide less than complete compensation in some circumstances to the victims of unlawful discrimination. In addition, some of the assumptions referred to above have not been reflected by experience. For example, in the proceedings brought against Australian Iron and Steel by women at its Wollongong steel-works, several years elapsed between the date of the discriminatory conduct and the date of awards made by the EOT.⁹⁵ Further, although the amounts involved in many cases have been relatively low, in a significant number of cases awards have been made at the limit of the jurisdiction of the Tribunal. Finally, the goal of conciliated disputes is not necessarily furthered by the absence of an ability to award prejudgment interest. A respondent which knows that it will not be at risk of increased liability by delaying settlement has no economic incentive to achieve an early resolution of the complaint.

10.81 In all the circumstances, the Commission considers that pre-judgment interest should be available in appropriate circumstances, as it would be if the matter were taken to a court. The relief available to the Tribunal should be as complete as it would be in a court in the absence of some factor suggesting otherwise. In accordance with that principle, the Tribunal should have, within the limits of its appropriate jurisdiction, the powers available to a court to include a component of pre-judgment interest in its calculation of compensable loss.

Recommendation 158

Unpaid monetary awards should bear interest at the rate applicable to District Court judgments and the Tribunal should be permitted to award pre-judgment interest.

10.82 Failure to comply with an order for a remedy under s 113, or an interim order of the Tribunal, is an offence under the ADA, punishable by a fine.⁹⁶ It is also an offence to fail to comply with an order directing that certain matters are not to be published or for the suppression of any information which may identify a person.⁹⁷

10.83 The penalty under the ADA is a monetary fine. By amendment in 1994,⁹⁸ penalty amounts were substituted by penalty units in conformity with other New South Wales legislation.⁹⁹ The ADA was also amended to apply higher penalties to bodies corporate (50 penalty units) than to individuals (10 penalty units). Prior to the amendment, the penalty amount was $1000 for all offenders.

10.84 The limitation on the powers of a complainant to ensure that an order other than an order for the payment of money be carried out is a serious limitation on the effectiveness of the relief granted by the Tribunal. The Commission is of the view that any order of the Tribunal should be capable of registration with the District Court or Supreme Court and should be capable of enforcement in the same way as a similar order made by that Court. Further, the President of the ADB should be given a power to take steps on behalf of a complainant to enforce an order, either with the consent of or at the request of the complainant. The President should have such a power to act on his or her own initiative and regardless of the views of the complainant in circumstances where the order is made in representative proceedings or the President otherwise thinks that failure to enforce the order may have consequences for members of the community who were not party to the proceedings.

10.85 These powers of civil enforcement should be additional to the offences created for contravention of an order, which should be retained. Accordingly, it is necessary to consider the adequacy of the penalties provided by the current ADA.

Recommendation 159

Any order of the Tribunal should be able to be registered with a court of competent jurisdiction and enforced as an order of that court.

Recommendation 160

The President of the ADB should have power:

• in the case of an individual complaint, to take steps to enforce an order on behalf of a complainant with their consent; and
• in the case of a representative complaint (or in any other case where the President believes that the public interest demands), to take steps to enforce an order on his or her own motion.

Draft Anti-Discrimination Bill 1999: cl 118

10.86 The 1994 amendments did not raise the level of maximum penalties in respect of individuals,¹⁰⁰ but set a higher penalty, at five times the rate of the individual penalty, for corporate offenders. Although the distinction between individual and corporate offenders is welcome, there is a lingering concern that the level of the penalties under the ADA remains too low.¹⁰¹ In particular, it was submitted that penalties should be on a 10:1 scale and that an appropriate level would be 20 penalty units ($2200) for individuals and 200 penalty units ($22,000) for bodies corporate.¹⁰² It was also argued that more serious offences which frustrate a Tribunal inquiry may constitute contempt.¹⁰³

10.87 In determining whether the maximum penalty provisions under the ADA should be increased, the Commission notes that compliance with orders is more likely if defying the legislation is more costly than complying with it. Despite the relatively infrequent prosecution of offences under the ADA, which may indicate either a lack of commitment to the enforcement of orders or a high rate of compliance, the Commission believes that maximum penalties should be increased to 50 penalty units ($5500) for individuals and 250 penalty units ($27,500) for corporate offenders.

Recommendation 161

Maximum penalties for offences under the ADA should be increased to 50 penalty units for individual offenders and 250 penalty units for corporate offenders.

10.88 Offences relating to witnesses summoned by, or appearing before, the EOT¹⁰⁴ were created by virtue of the application of the Royal Commissions Act 1923 (NSW) to inquiries held by the EOT.¹⁰⁵ This provision has been repealed by the ADT Act.¹⁰⁶ Such offences may now be reported to the Supreme Court and may be dealt with as contempt of court.¹⁰⁷

Enforcement against the Crown and Crown agencies

10.89 The ADA states that it binds the Crown in right of the State, but there is some doubt as to whether it makes the Crown or any agency or instrumentality of the Crown liable for an offence, especially in relation to the failure to comply with an order. This situation will be ameliorated by the provision of means of civil enforcement, which will be available against the Crown and agencies of the Crown, where required.

10.90 A question also arises as to the operation of these provisions in relation to the Crown and agencies of the Crown in right of another State or Territory or the Commonwealth. In Chapter Two it is recommended that the ADA provide expressly that it bind the Crown, not only in right of the State but in all other capacities, so far as the powers of the Parliament permit.¹⁰⁸ If that is done, it will be clear that civil enforcement proceedings can be taken against the Crown in right of other jurisdictions of New South Wales, as appropriate. It is neither appropriate, nor necessary, to extend the application of penalty provisions to the Crown.¹⁰⁹

Footnotes
1. ADA s 113(1)(b)(iiia) and 113(1)(b)(iiib). It has been recommended in this report that serious vilification, should be dealt with in the Crimes Act 1900 (NSW): see Chapter 7 at para 7.146-7.148 and the Crimes Amendment (Serious Vilification) Bill 1999 (NSW) at Appendix B.

2. ADA s 124 and 125. Note that in July 1997 the ADT Act was passed which establishes the ADT. The ADT takes over the functions of the EOT: Administrative Decisions Tribunal Legislation Amendment Act 1997 (NSW) Sch 2.1.

3. See Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 72 ALJR 1270 at para 39-43 per Gaudron, Gummow and Kirby JJ.

4. ADA s 123.

5. See Chapter 8 at para 8.211.

6. See Chapter 9 at para 9.120.

7. See ADT Act and Administrative Decisions Tribunal Legislation Amendment Act 1997 (NSW).

8. See Allders International v Anstee [1986] EOC 92-157 at 76,559.

9. ADA s 113(1)(v).

10. Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217. The Federal Court upheld an appeal from a decision of Einfeld J, where he had found that though complaints of sexual harassment against a medical practitioner were substantiated, he declined to award compensation to the complainants on the ground that the effects of the harassment (on the victims) was temporary, causing only minimal distress. He held that the public disclosure of their complaints against the respondent and the findings of sexual harassment were sufficient relief. This reasoning was over-ruled by the Full Court.

11. ADA s 113(1).

12. ADA s 113(1)(b)(i) and 113(1)(b)(iii).

13. ADA s 113(1)(b)(iiia) and 113(1)(b)(iiib).

14. RR 8 at 51. Of the EOT complainants surveyed, 48% stated that the $40,000 limit in the EOT is too low: see RR 8 at 12.

15. Anti-Discrimination Board, Submission 1 at 202 and 216; Disability Discrimination Legal Centre, Submission at 6; Eastern Sydney Area Health Service, Submission at 1; Gay and Lesbian Rights Lobby, Submission at 16; Legal Aid Commission of NSW, Submission at 2; J Lennane, Submission at 2; National Pay Equity Coalition, Submission at 4; NSW Bar Association, Submission at 6; D Robertson, Submission at 18. However the NSW Department of Health, Submission at 10 specifically rejected the suggestion that the limit on damages be increased.

16. ADA s 113(1).

17. ADA s 113(1)(b)(v).

18. Hall v A&A Sheiban Pty Ltd (1989) 20 FCR 217.

19. See Allders International v Anstee [1986] EOC 92-157 at 76,559.

20. Hall v Sheiban (1989) 20 FCR 217 at 238-39 per Lockhart J and Allders International v Anstee at 76,559. See also Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 where the NSW Court of Appeal held that the assessment of damages, at least in the context of economic loss, was largely a matter of fact for the EOT, which depends more on the circumstances of the case than on principles governing damages in tort.

21. ADT Act s 45 provides that, when making an original decision, the Tribunal has the powers conferred under the enactment under which the proceedings are brought.

22. See L Thornthwaite, “The Operation of Anti-Discrimination Legislation in New South Wales in Relation to Employment Complaints” (1993) 6 Australian Journal of Labour Law 31 at 44. Thornthwaite found that 94% of the substantiated cases of discrimination in employment between 1976 and 1986 resulted in an award for damages. The size of the awards ranged from about $1,000 to $46,500.

23. ADA s 113(1)(b)(i).

24. ADA s 123.

25. New South Wales, Anti-Discrimination Board, A Review of Damages Orders by the NSW Equal Opportunity Tribunal in the Context of Unlawful Discrimination in Employment: A Report to the Premier under section 119 of the Anti-Discrimination Act 1977 (Sydney, 1986) at 18; Disability Council of NSW, Submission; R Hunter, “Equal Opportunity Law Reform” (1991) 4 Australian Journal of Labour Law 226 at 246-247.

26. Anti-Discrimination (Amendment) Act 1982 (NSW) Sch 4[25].

27. D Robertson, Submission; Legal Aid Commission of NSW, Submission at 2.

28. Legal Aid Commission of NSW, Submission at 2.

29. EOA (WA) s 127(b)(i); Anti-Discrimination Regulations 1994 (NT) reg 2(a).

30. The Victorian Equal Opportunity Board has made awards in excess of $40,000 in three cases: Fares v Box Hill College of TAFE [1993] EOC 92-391 ($55,000); Casey v State Electricity Commission of Victoria [1993] EOC 92-495 ($48,000) and Bevacqua v Klinkert [1993] EOC 92-515 ($50,000). The South Australian Equal Opportunity Commission awarded $60,000 in damages in Jobling v Director-General, Education Department of South Australia [1993] EOC 92-554. Federally, HREOC awarded a total of $50,000 in damages in McNeill v Commonwealth of Australia [1995] EOC 92-714.

31. The upper limit has also been removed by statute from both the UK race and sex discrimination legislation after it was held that the upper limit in the Sex Discrimination Act 1977 (UK) was inconsistent with European Community Law: see Marshall v South-West Hampshire Area Health Authority (No 2) [1993] 4 All ER 586; Sex Discrimination and Equal Pay (Remedies) Regulation 1993 (UK). Similar changes have been made in racial discrimination law; see Race Relations (Remedies) Act 1994 (UK).

32. A statutory maximum applies to awards for non-economic loss under the Workers Compensation Act 1987 (NSW) s 151G and the Motor Accidents Act 1988 (NSW) s 79. Note, the Commission found that there was no need to cap damages in defamation cases as the recent Defamation (Amendment) Act 1994 (NSW) removes jury awards and requires judges to consider damages awarded in personal injury matters. See New South Wales Law Reform Commission, Defamation (Report 75, 1995) at para 7.14.

33. Editorial, “Wrong Track” Sydney Morning Herald (28 July 1995) at 10. NSW Department of Health, Submission at 10.

34. Anti-Discrimination Board, Submission 1 at 202; NSW Equal Opportunity Tribunal, Consultation (25 February 1994); NSW Bar Association, Submission at 7-8; Gay and Lesbian Rights Lobby, Submission. Note, however, that these submissions were made when the jurisdictional limit of the District Court was $250,000.

35. M Thornton, “Anti-Discrimination Remedies” (1983) 9 Adelaide Law Review 235 at 235.

36. National Pay and Equity Coalition, Submission.

37. The limit on damages in the District Court is currently $750,000.

38. No individual award over $60,000 has ever been made in Australia, and the awarding of the statutory maximum in NSW has only been given in five reported cases: see Avens v Qantas Airways [1994] EOC 92-618; Bugden v State Rail Authority [1991] EOC 92-360; Thompson v Qantas Airways [1989] EOC 92-251; Najdovska v Australian Iron and Steel Pty Ltd [1986] EOC 92-176; [1988] EOC 92-223; and Metwally v University of Wollongong [1984] EOC 92-030 (although this decision was set aside on appeal to the High Court on other grounds).

39. A M Leonard, Pyrrhic Victories: Winning Sex Discrimination and Equal Pay Cases in The Industrial Tribunal (Equal Opportunities Commission, London, 1987) at 37-39. See also RR 8 at 16.

40. Great Britain, Equal Opportunities Commission, Dispensing Informal Justice (London, 1993) at 19-21. The RR 8 found that 68% of complainants pursued the matter in order to prevent it from happening in the future (to self or others), and 49% were motivated by their wish to get the offending behaviour stopped: RR 8 at 16.

41. ADT Act s 22.

42. See para 9.129.

43. Allders International v Anstee [1986] EOC 92-157 at 76,556 per Lee J, cited with approval in Moloney v Golden Ponds Corporation Pty Ltd [1995] EOC 92-674.

44. Hall v Sheiban (1989) 20 FCR 217; Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587.

45. See New South Wales, Anti-Discrimination-Board, A Review of Damages Orders by the NSW Equal Opportunity Tribunal in the Context of Unlawful Discrimination in Employment, A Report to the Premier Under section 119 of the Anti-Discrimination Act 1977 (Sydney, 1986) at 17-18.

46. It was submitted that awards for general damages have been so small in practice as to be almost “derisory”: D Robertson, Submission at 18. See also K O’Donovan and E Szyszczak, Equality and Sex Discrimination Law (Basil Blackwell, London, 1988) at 221; A M Leonard, Pyrrhic Victories: Winning Sex Discrimination and Equal Pay Cases in the Industrial Tribunal (Equal Opportunities Commission, London, 1987) at 15.

47. Alexander v Home Office [1988] 1 WLR 968 at 975 per May LJ, cited with approval by Lockhart J in Hall v Sheiban (1989) 20 FCR 217 at 238. Also see MTT v McCarthy [1993] EOC 92-546 at 79,730.

48. Burke v Tralaggan [1986] EOC 92-161.

49. Hill v Water Resources Commission [1985] EOC 92-127. By comparison, the Commission has found that awards in defamation cases (which are roughly analogous because of the similarity of the harm suffered by the plaintiff or complainant) are generally between $10,000 and $100,000. See New South Wales Law Reform Commission, Defamation (Report 75, 1995) at para 3.25.

50. See, for example, Daniels v Hunter Water Board [1994] EOC 92-626; Morrisson v Gallipoli Legion Club Newcastle Ltd [1985] EOC 92-144; Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701; Hawkins v Malnet Pty Ltd [1995] EOC 92-767.

51. See, generally, H Luntz, Assessment of Damages for Personal Injury and Death (Butterworths, Sydney, 1990) at 60-72.

52. Hall v Sheiban (1989) 20 FCR 217 at 239 per Lockhart J, who held that the words of the Act do not restrict the scope of damages available.

53. Aggravated damages were expressly awarded in Lyon v Godley [1990] EOC 92-287 (WA) at 77,897. A component of aggravated damages was also awarded in Lynton v Maugeri [1995] EOC 92-754 (Qld). See also Hill v Water Resources Commission [1985] EOC 92-127 and Watkins v Fryor [1995] EOC 92-667 at 78,113 where the HREOC commented that the effect on the complainant (of the discriminatory conduct and the manner in which her complaint was handled internally) was “severe” and that she had suffered “significant” non-economic detriment, awarding her $20,000. See also McNeill v Commonwealth of Australia [1995] EOC 92-714 where aggravated damages were included in the general damages awarded.

54. See M Tilbury, “Factors Inflating Damages Awards” in P D Finn (ed), Essays on Damages (Law Book Company, Sydney, 1992) at 95; Lamb v Cotogno (1989) 164 CLR 1 at 8.

55. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 per Windeyer J.

56. Hall v Sheiban (1989) 20 FCR 217; Squires v Qantas Airways Ltd [1985] EOC 92-135; Spencer v Dowling [1994] EOC 92-625 (Vic) at 77,332. Compare Lyon v Godley [1990] EOC 92-287 (WA), where the Western Australian EOT claimed that the fact that the respondent knew of the complaint and knew that it was unlawful to subject her to any detriment because of it was sufficient justification for an award of punitive damages, at 77,898.

57. M Thornton, “Remedying Discriminatory Harms in the Workplace” in R Naughton (ed), Workplace Discrimination and the Law (Centre for Employment and Labour Relations Law, University of Melbourne, 1995) at 72.

58. New South Wales Law Reform Commission, Defamation (Report 11, 1971) at para 42-50.

59. In the United States, where exemplary damages are available in employment discrimination complaints if the respondent is found to knowingly discriminate against the complainant (Civil Rights Act 1991 (US)), there have been a number of recent high awards. In 1994, the law firm, Baker and McKenzie was ordered to pay US$3.8m in damages, of which US$3.5m was for punitive damages, reduced from almost US$7m on appeal: see M Thornton, “Remedying Discriminatory Harms in the Workplace” in R Naughton (ed), Workplace Discrimination and the Law (Centre for Employment and Labour Relations Law, University of Melbourne, 1995) at 73. In another recent sexual harassment case, the New York Equal Opportunities Commission settled for a record US$1.185m in punitive damages on behalf of 15 complainants against Del Laboratories: see New York Times (4 August 1995) at B-4; New York Times (5 August 1995) at 21; New York Times (9 August 1995) at D-1.

60. See Midalco Pty Ltd v Rabenalt [1989] VR 461; Backwell v A [1997] 1 VR 182.

61. Defamation Act 1974 (NSW) s 46(3)(a). See New South Wales Law Reform Commission, Defamation (Report 11, 1971).

62. New South Wales Law Reform Commission, Defamation (Report 75, 1995) at para 2.23.

63. Motor Accident Act 1988 (NSW) s 81A (amended by Motor Accidents (Amendment) Act 1989 (NSW)).

64. Workers Compensation Act 1987 (NSW) s 151R.

65. Anti-Discrimination Board, Submission 1 at 202; D Robertson, Submission at 19; NSW Bar Association, Submission at 7-8; NSW Equal Opportunity Tribunal, Consultation (25 February 1994). Note that the Legal Aid Commission of NSW, NSW Ministry for the Status and Advancement of Women, and the Gay and Lesbian Rights Lobby supported the introduction of exemplary damages to deal with repeat respondents and in cases of severe victimisation.

66. ADA s 113(1)(b)(ii). In Allders International v Anstee [1986] EOC 92-157, the Supreme Court held that the EOT can only make orders between the parties to the dispute as it relates to the conduct in the individual complaint. An injunction does not confer rights on any other person but the complainant and is not enforceable by others against any other party. The only exception would be in the case of a representative complaint.

67. ADA s 113(1)(b)(iii).

68. Burrows v Commissioner of Police [1995] EOC 92-676.

69. Allders International v Anstee [1986] EOC 92-157. However, an order for reinstatement remains unlikely given that in many cases the complainant does not want to go back to the workplace where the discriminatory conduct occurred and the EOT has expressly said that it does not consider itself a “promotions appeal tribunal”: Harrison v State Bank of NSW [1987] EOC 92-200 at 76,920. Compare Russell v Director-General, Department of Juvenile Justice (NSW, Equal Opportunity Tribunal, Senior Judicial Member Patten J, 17 November 1994, unreported) which held that s 27 of the Public Sector Management Act 1988 (NSW) does not prevent an order for reinstatement.

70. Whittington v Morris (1990) and Wagstaff v Elida Gibbs Limited (Leeds 1991) both referred to in A Leonard, “Remedies for Sexual Harassment” (1991) 141 New Law Journal 1514 at 1516.

71. Najdovska v Australian Iron and Steel Pty Ltd [1986] EOC 92-176.

72. Bell v Aboriginal and Torres Strait Islander Commission [1994] EOC 92-565. However, this remedy was never implemented due to an appeal to the High Court on Constitutional grounds – see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245.

73. ADA s 113(1)(b)(iiib).

74. See Thomson Australia Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150.

75. ADA s 113(1)(b).

76. ADA s 113(1)(b)(iii).

77. ADA s 113(1)(b)(iiia).

78. ADA s 113(1)(b)(iv).

79. See Contracts Review Act 1980 (NSW) and Consumer Claims Tribunals Act 1987 (NSW) s 30 and 31.

80. See Chapter 7 at para 7.148 and Crimes Amendment (Serious Vilification) Bill 1999 at Appendix B.

81. ADA s 113(1)(b)(iiia).

82. ADA s 113(1)(b)(iiib).

83. See Chapter 9 at para 9.90, Recommendation 140.

84. ADA s 113(1)(b)(i).

85. [1984] EOC 92-102 (NSW CA).

86. Note that in Chapter 9 the Commission recommended that a court or tribunal have the power to make cy-pres orders in relation to damages in representative proceedings under the ADA: see Chapter 9 at para 9.91.

87. See Chapter 8 at para 8.222.

88. See, for example, Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250.

89. See Chapter 8 at para 8.186.

90. ADA s 125 further provides that statutory offences are to be dealt with summarily in the Local Court.

91. The amendment of s 123 has been recommended by the Commission in Chapter 8 Recommendation 124.

92. ADA s 115, repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

93. ADT Act s 82.

94. See, for example, Supreme Court Act 1970 (NSW) s 94.

95. See Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165; Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587; Najdovska v Australian Iron and Steel Pty Ltd [1985] EOC 92-140.

96. ADA s 116.

97. ADA s 110A(3). See also DP 30 at 193.

98. Anti-Discrimination Amendment Act 1994 (NSW) Sch 4.

99. A penalty unit is currently equivalent to $110. See Statute Law (Miscellaneous Provisions) Act 1997 which amended s 56 of Interpretation Act 1987 (NSW).

100. Except in the case of failing to appear at a compulsory conciliation conference, the penalty for an individual was raised from $500 to $1,000: Anti-Discrimination (Amendment) Act 1994 Sch 4(29).

101. Gay and Lesbian Rights Lobby, Submission; Legal Aid Commission of NSW, Submission at 3; and NSW Bar Association, Submission at 14.

102. NSW Bar Association, Submission at 14.

103. NSW Bar Association, Submission at 14.

104. The offences included:

• failing to attend the EOT where a summons is served;
• failing to produce a document; or
• refusing to give evidence.
See Royal Commissions Act 1923 (NSW) Pt 3.

106. See discussion in Chapter 9 at para 9.64.

107. ADT Act s 131.

108. See Chapter 2 at para 2.93, Recommendation 2.