9.1 In 1981 the Anti-Discrimination Act 1977 (NSW) (“ADA”) was amended to create the Equal Opportunity Tribunal (“EOT”).¹ Prior to this time the judicial functions under the ADA had been administered by the Anti-Discrimination Board (“ADB”) and the conciliation and investigation of complaints had been undertaken by the Counsellor for Equal Opportunity.² In July 1997, the Administrative Decisions Tribunal Act 1997 (NSW) (“ADT Act”) was passed.³ The ADT Act establishes the Administrative Decisions Tribunal (“ADT”), which takes over the functions of the EOT⁴ and a number of other tribunals in New South Wales.⁵ The following discussion will refer to the EOT and the ADT as “the Tribunal” unless specific reference to one or the other is necessary.

9.2 The ADT Act is the first step in a government program to rationalise and consolidate tribunals across New South Wales and to introduce a mechanism for merits review of administrative decisions.⁶ A number of different reasons have been given for the need to merge existing tribunals, including independence, efficient allocation of resources, procedural fairness and consistency in decision making. In the Second Reading Speech introducing the Bill to Parliament, the Attorney General, Hon J W Shaw, stated that:

The growth of tribunals has fragmented responsibility for determining legal rights, leading to a lack of consistency and in some cases arbitrary decision making. It may also lead to poor resource allocation in relation to decision making.⁷

9.4 Although the ADT Act aims to provide a centralised administrative body, the ADT itself will operate through a number of separate divisions, each of which will have its own distinctive character and procedural rules.⁹ The effect of the ADT Act (relevant for present purposes) is primarily, therefore, to transfer the functions of the existing EOT to an equivalent Equal Opportunity Division of the ADT (“EO Division”). As a result, many of the problems and issues faced by the EOT will be directly relevant to the EO Division. In the process of transferring jurisdiction from the existing EOT to the EO Division, however, a number of procedural changes have been made and inconsistencies have arisen between the operation of the provisions governing the EOT and the EO Division. These are outlined and their implications discussed below.¹⁰

9.5 In this chapter, the Commission suggests reforms to increase the accessibility of the EO Division and to increase the effectiveness and efficient conduct of matters in the Tribunal. Although the merging of the EOT into the ADT may result in unforseen changes to the structure, operation and resources of the Tribunal, it is assumed that the EO Division will operate in a manner substantially similar to that of the existing EOT.

9.6 In general, the Commission accepts the legislative regime of the ADT Act and the importance of maintaining procedural consistency between various divisions of the ADT. As a result, the Commission only makes recommendations in two circumstances. First, where procedural inconsistencies have arisen between the ADA and the ADT Act, and no explanation has been given for the change in procedure, recommendations seek to resolve the inconsistency. Changes are suggested only where there is a sound theoretical or practical basis for having different procedural provisions in the EO Division to those which operate for the General Division of the ADT. Secondly, recommendations are made where the experience of the EOT has indicated that there are problems with existing procedural provisions under the ADA. In this situation, recommendations to alter the existing provisions are only made where the experience of the EOT will be directly relevant to the operation of the new EO Division.

MAIN FEATURES OF THE ADT

9.7 When originally established, the EOT was designed to operate as informally as possible in recognition of the difficulties faced by women and minority groups in obtaining legal redress for civil wrongs through the formal court system. The ADT Act continues this focus on informality and flexibility.¹¹ Similarly, the adjudication of complaints at the ADT will continue to be in a public forum,¹² thereby setting enforceable standards, providing clarification of ambiguous or unclear provisions of the ADA and promoting compliance with the objects of anti-discrimination law.¹³

Structure of the Tribunal

9.8 The ADT has two distinct areas of jurisdiction. The first is to review the merits of decisions made by government officials and public bodies and the second is to make original decisions in the areas in which jurisdiction of existing tribunals has been transferred to the ADT.¹⁴ In both cases, jurisdiction must be conferred by another piece of legislation.¹⁵

9.9 In relation to original jurisdiction, the ADT is divided into a general division and a number of separate specialist divisions, including the EO Division.¹⁶ Each division has the power to formulate its own procedural rules, appropriate to its jurisdiction,¹⁷ and it is intended that each division will operate in a discrete and autonomous manner.¹⁸

9.10 In the Commission’s view, there are sound reasons for maintaining a specialist EO Division and ensuring that its integrity and functions are maintained.¹⁹ The EOT has traditionally been constituted by members who are selected on account of their experience and understanding of the special needs of the people the legislation was designed to serve.²⁰ It has developed a specialist jurisprudence of anti-discrimination law which should be continued by the EO Division.

Composition of the Tribunal

9.11 The ADT is constituted by a President, deputy Presidents, non-presidential judicial members and non-judicial members.²¹ The President must be a judge of the District Court.²²

9.12 The EO Division is comprised of a Divisional Head²³ and a number of other members as assigned by the President.²⁴ The President is appointed on a full-time basis, however all other members may be appointed on a full-time or part-time basis.²⁵ All members are appointed for a three year term and the ADT Act specifically provides for the reappointment of members of the existing EOT, to equivalent status in the EO Division, for the balance of their term of office.²⁶ Suggestions relating to the appointment of full-time members to the EO Division are made below.²⁷

9.13 One judicial member and at least two non-judicial members sit on each inquiry in the EO Division.²⁸ Non-judicial members are subject to a general requirement of having “special knowledge or skill in relation to any class of matters in respect of which the Tribunal has jurisdiction”.²⁹ The above provisions substantially mirror the constitution of the EOT under the ADA.³⁰

Referral of matters to the Tribunal

9.14 A party may not file a matter in the Tribunal directly. The Tribunal can only inquire into matters that have been referred to it by the President of the ADB or by the Minister.³¹ The ADB may only refer complaints to the Tribunal where they remain unsettled after conciliation or where conciliation is considered inappropriate.³² However, a complaint must be referred where the complainant requests a referral under s 91 of the ADA. When referring a complaint, the President of the ADB must submit a report to the Tribunal which contains details of the ADB’s investigation into the matter but cannot contain anything said or done during the course of conciliation proceedings.³³

The powers of the Tribunal

9.15 The Tribunal has broad powers to conduct matters in whatever manner it thinks fit and is not bound by the rules of evidence.³⁴ It has the power to determine its own procedure³⁵ and has a duty to act “with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”.³⁶ The Tribunal also has the power to conduct preliminary conferences³⁷ and to refer complaints to conciliation or mediation at any stage with the consent of the parties.³⁸

9.16 However, unlike the provisions establishing the EOT, the ADT Act places an express obligation on the ADT to take such steps as are reasonably practicable to ensure that the parties understand the legal implications of the assertions made in the proceedings, explain any aspect of the procedure if requested, and to ensure that the parties have the fullest opportunity to have their submissions heard.³⁹ The ADT also has an obligation to act as quickly as possible and to ensure that all relevant material is presented before it.⁴⁰ In addition to these obligations to assist those before it, the ADT also has the power to call, examine and cross-examine witnesses of its own motion.⁴¹

9.17 Although the EOT and many other tribunals have had the power to perform such functions, it has been suggested that the introduction of these mandatory obligations will mean that the ADT will be more inquisitorial than previous tribunals and that this will reduce delays and assist unrepresented litigants.⁴²

Duplication and inconsistency between the ADA and the ADT Act

9.18 The above provisions are all contained within the ADT Act and have no equivalent in the ADA. However, in the process of amending the ADA, to transfer jurisdiction from the EOT to the EO Division, a number of duplications and inconsistencies have arisen between the two pieces of legislation. These duplications and inconsistencies fall into three categories:

• those provisions which have been left in the ADA which have no equivalent in the ADT Act;
• those provisions which have been left within the ADA but for which there are equivalent, or substantially similar, provisions in the ADT Act; and
• those provisions which have been removed from the ADA which have no equivalent provisions in the ADT Act.

Recommendation 128

All procedural provisions in the ADA should be transferred to the ADT Act.

9.20 Although the ADT has only recently been established, a number of problems which have been identified in relation to the existing EOT will have direct relevance to the EO Division.

9.21 The two principal concerns which have been expressed about the operation of the EOT under the ADA are that it has not been sufficiently accessible to parties and that parties experience considerable delays.⁴⁴ This lack of accessibility is largely because of the cost required to bring matters in the EOT⁴⁵ and the disadvantages of proceeding without legal representation. The inadequate provisions for representative proceedings have also placed a burden on the individual complainant.⁴⁶ Furthermore, power imbalances between the parties, which are evident at the conciliation stage, are more pronounced at the tribunal stage. Some of these matters may be resolved to some extent with the creation of the new ADT, which is intended to streamline tribunal proceedings across jurisdictions. However, the costs of, and the barriers to obtaining legal representation are unlikely to improve as a result of the administrative changes.

9.22 Other disincentives to bringing proceedings in the EOT include the inadequacy and ineffectiveness of the range of remedies available where a complaint is substantiated⁴⁷ and the exacting task of proving discrimination, particularly indirect discrimination.⁴⁸ Some research in this area has found that few complainants think that bringing an unconciliated complaint to the EOT is worth the time, stress and cost.⁴⁹ If, because of perceived obstacles, complainants fail to take unsettled matters to the Tribunal, the conciliation process is weakened as respondents may be less inclined to settle a complaint where the threat of a contested hearing is a hollow one.⁵⁰ Similarly, a complainant who feels unable to proceed further, will more readily abandon a meritorious complaint.

Delays

9.23 Delays in the EOT have generally occurred at the three stages of the resolution process:

• obtaining dates for hearing;
• the conduct of proceedings at the hearing, including pre-hearing procedures; and
• delays in the handing down of decisions.

[t]he operation of the EOT currently means that the credibility of the jurisdiction and its decisions are being undermined by the serious delays which can be detrimental to all parties. Important issues of rights and remedies need to be determined, and yet it is difficult to obtain a decision even after the hearing is completed often after many months and in some cases, years.⁵¹

9.26 One innovative feature of the ADT Act is a provision which allows a decision to be made without holding a formal hearing.⁵⁵ This provision may reduce the level of delay at the ADT. Although this provision has been criticised as failing to provide sufficient safeguards to protect the interests of the applicant,⁵⁶ the ADT Act does provide a complementary obligation, namely that the Tribunal ensure that the parties have the “fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”.⁵⁷

9.27 Delays in the conduct of matters at the hearing. In addition to delays in listing matters, it is often the parties’ own conduct, such as failure to attend conferences, file documents, or generally not being prepared, which has caused delays in resolving disputes.⁵⁸ Hearings may also be protracted where one of the parties to an inquiry is unrepresented.⁵⁹

9.28 The time it takes to resolve a matter in the EO Division will be materially linked to how inquiries are conducted by it and whether parties have access to legal assistance or representation. A number of submissions to the Commission suggested that rules should allow the Tribunal to take a more active role in:

• defining the relevant issues prior to hearing;
• encouraging agreed statements of facts and law;
• calling on independent expert advice where there is a conflict of expert evidence;
• requiring evidence to be submitted in affidavit form; and
• imposing, and strictly enforcing, timetables for the production and filing of submissions.⁶⁰

9.30 Delays in handing down judgments. A final source of delay at the EOT has been in handing down judgments. It has been reported that many months, and sometimes years, have elapsed between the completion of submissions by the parties to an inquiry and the handing down of the EOT’s decision.⁶³

9.31 These delays have been due partly to the structure of the EOT which has only provided for the appointment of part-time members.⁶⁴ However, this structural problem, which is by no means unique to the EOT, is not the sole cause of delay. Anecdotal evidence suggests that some judicial members (the initial preparation of written reasons is usually the responsibility of the presiding member) are more efficient, or at least more expeditious, than others. However, there has been no formal study of the causes of this problem and, in any event, it is likely that the causes have varied from time to time. In addition, the practice of holding a hearing for the handing down of a decision may have contributed to delays.⁶⁵

9.32 Under the ADT Act, the ADT is required to give reasons for a reserved decision within six months⁶⁶ and the decision may be delivered by a single member of the Tribunal or by the Registrar.⁶⁷ While the ADT Act provides that members may be appointed on a full-time or part-time basis,⁶⁸ there is no mandatory provision requiring the appointment of a full-time member to any Division of the ADT. The fact that the President will be a full-time member at the EO Division should assist in resolving some of the administrative problems. Although the provisions of the ADT Act are likely to reduce the level of delay at the ADT, it has been suggested that the case load in the EO Division will mean that it is necessary to have at least one full-time member in the Division.⁶⁹ A full-time member would provide a degree of continuity to the case-management in the EO Division. While this is an administrative matter, the Commission recommends that careful consideration be given to whether the Head of the EO Division should be appointed on a full-time basis.

INITIATION OF PROCEEDINGS

9.33 The ADT Act provides that a person may apply to the Tribunal for “an original decision” if “the application is made by or on behalf of an interested person”.⁷⁰ The term “interested person” is defined to mean a person “who is entitled under an enactment to make an application to the Tribunal for an original decision”.⁷¹

9.34 As already discussed, the scheme of the ADA provides that complaints are lodged with the President of the ADB and, if conciliation fails or is inappropriate, are referred to the Tribunal by the President.⁷² The ADT Act amends the ADA to substitute the ADT for the EOT.⁷³ There is no provision currently in the ADA for any person to make an application to the Tribunal; there is a provision in the ADT Act for the Tribunal to deal with a complaint referred to it,⁷⁴ but only by an extension of the definition of “application”. As consequential provisions relating to parties to proceedings depend upon there being a person who has made an application to the Tribunal,⁷⁵ this approach is inadequate.

9.35 The ADT Act makes provision generally for “proceedings before the Tribunal”. The ADA provides that the Tribunal “shall hold an inquiry” into each complaint or matter referred to it.⁷⁶ These provisions adopt different terminology and should not both be retained. Consistently with the view that matters relating to the powers and functions of the Tribunal should be in the ADT Act, s 96 of the ADA should be repealed.

9.36 The Registrar of the Tribunal is required to serve notice of an application “on any party (other than the applicant)”.⁷⁷ That provision will only have effect if the respondent to a complaint is a “party” to the proceedings before the Tribunal. Parties are defined as: the applicant; any other person who seeks to become a party; and “any person specified by or under any enactment as a party to the proceedings”.⁷⁸ The purpose of service is to give notice to a party of the proceedings. If a respondent to a complaint is not automatically a party, he or she must make application to become a party: accordingly, unless the respondent to a complaint is “specified” as a party to the proceedings under an enactment, he or she will not be a party and will not be entitled to notice of the commencement of the proceeding. For the purposes of the ADT Act, the person must be made a party by some other Act.⁷⁹ Consistently with this framework, an amendment is needed to the ADA to require the identification of the respondent to a complaint as a party to the proceedings before the Tribunal, upon referral to the Tribunal. Whilst this amendment may be appropriate, there is a question as to whether it should be in the ADA or in the ADT Act. If it is to be in the ADT Act, which appears to be the more appropriate location, s 5 of the ADT Act will also need amendment.

Recommendation 129

Section 96 of the ADA, regarding inquiries into complaints by the Tribunal, should be repealed.

Recommendation 130

The ADT Act should specify that, upon referral to the Tribunal, the complainant and respondent to the complaint are parties to the proceedings.

9.37 The question of representative complaints is dealt with separately in this chapter.⁸⁰ Presently, the relevant provisions appear in the ADA and require amendment. To the extent that representative proceedings are available in the Tribunal, relevant provision should be included in the ADT Act.

9.38 The general powers of the Tribunal in relation to procedural matters are set out in the ADT Act, Pt 2 ch 6.

Procedural rules

9.39 Subject to the comments set out below, the ADT Act makes provision in relation to most of the matters currently covered by the ADA in relation to the functions of the Tribunal. The ADT Act specifies the powers and functions of the ADT generally in a manner which maximises the flexibility of the Tribunal to determine its own procedure. This is a beneficial approach: however, in some circumstances, parties to proceedings may benefit from more specific guidance as to particular steps. The ADT Act recognises this and provides that the ADT may make rules and may prescribe different rules for each of the divisions.⁸¹ Although the EOT has from time to time issued practice directions which have given the parties guidance as to the procedures to be followed, the EOT has not used its power to determine its own procedure to formulate rules. It is hoped that the ADT will make appropriate rules with respect to the EO Division.

Conciliation

9.40 The ADA provides that the Tribunal may endeavour to resolve a complaint by conciliation and obliges the Tribunal to take “all such steps as to it seem reasonable” to effect an amicable settlement of a complaint.⁸² This provision is not one of those to be repealed upon the commencement of the ADT Act. On the other hand, the ADT Act itself contains extensive provisions in respect of alternative dispute resolution.⁸³ However, these provisions provide for referral to mediation and require the consent of the parties to the referral.⁸⁴

9.41 In practice, the power of the Tribunal to encourage settlement and engage in conciliation has rarely been used. In part, this reluctance is soundly based upon a concern that, were the Tribunal itself to become involved in conciliation, it would not be able to proceed with a hearing of the complaint should conciliation fail. That would necessitate the reformation of the Tribunal, with different members, for the purpose of the hearing. Further, the power given to the Tribunal to embark on conciliation seems unnecessary, given that the complaint has only come to the Tribunal because an independent statutory officer, namely the President of the ADB, has been unable to reach a settlement by conciliation or has thought conciliation no longer appropriate. In relation to the obligation to take unspecified steps to effect an amicable settlement, it is again not clear to the Commission that the provision has had any practical effect. Given the more detailed provision permitting mediation contained in the ADT Act, the Commission recommends that s 106 of the ADA be repealed.

Recommendation 131

Section 106 of the ADA, regarding the Tribunal’s resolution of a complaint by conciliation, should be repealed.

9.42 The ADA empowers the Tribunal to give directions prohibiting or restricting the publication of various aspects of an inquiry, or the disclosure of information which may lead to the identification of a party or witness before the Tribunal.⁸⁵ That power is largely replicated in the ADT Act.⁸⁶ It is inappropriate to have similar provisions appearing in both Acts especially in the present case where there is a significant level of inconsistency between them. Further, there appears to be inconsistency between two different sections in the ADT Act dealing with the same topic.

9.43 The appropriate place for such provisions is in the ADT Act. However, at least in relation to proceedings under the ADA, the Commission is satisfied that the substance of the provisions appearing in the ADA are appropriate and that any inconsistency should be resolved in favour of the party or witness. This appears to have been the intention of the ADT Act,⁸⁷ although that intention is by no means beyond doubt.

9.44 The principal inconsistency is that one provision in the ADT Act provides a ban on the publication or broadcasting of the name of any person who is a witness before the Tribunal, or who is a person to whom any proceedings relate, or is “mentioned” or otherwise involved in any proceedings before the Tribunal, except with the consent of the Tribunal.⁸⁸ Publishing the name of a person is defined to include publication of any information, picture, or other material that identifies, or is likely to lead to the identification of, the person. The name or identifying material can be published if it appears in “an official report of the proceedings”, presumably because the inclusion of the material in the report indicates the implied consent of the Tribunal.

9.45 The open administration of justice is a fundamental principle of the common law, based on the assumption that public scrutiny of the judicial system, accompanied by the right publicly to impart information and ideas and comment on them, is central to the healthy operation of a democratic society. As noted by Justice Kirby, when President of the Court of Appeal:

The principles which support and justify the open doors of our courts likewise require that what passes in court should be capable of being reported. The entitlement to report to the public at large what is seen and heard in open court is a corollary of the access to the court of those members of the public who chose to attend ...

Statute apart, it is doubtful on the authorities that Courts have the power to make an order, operating outside the court, which suppresses the publication of anything said in open court.⁸⁹

9.47 As the ADA recognises, there is nothing about the jurisdiction granted to the Tribunal under it which requires the imposition of a blanket of secrecy. Where the particular circumstances of a case require that a non-publication order be made, it is appropriate that the Tribunal have power, upon the application of a party, to make such an order. The Commission is satisfied that such a power should be available in relation to proceedings concerning discrimination complaints. However, it is quite inappropriate that non-publication should be the rule, subject to release by the Tribunal from the statutory constraint.

9.48 Whether s 126 of the ADT Act is appropriate in other circumstances is not a matter which the Commission is asked to consider: its application in relation to the jurisdiction of the Tribunal under the ADA, however, is inappropriate. The ADT Act should contain a provision similar to s 110A of the ADA in relation to this aspect of its jurisdiction.

9.49 Indeed, the intended operation of s 126 of the ADT Act is unclear: it appears to be inconsistent with s 75 of the same Act, which more closely reflects the provisions of s 110A of the ADA.

Recommendation 132

The ADT Act should contain a provision similar to s 110A of the ADA in relation to matters brought under the ADA and s 126 of the ADT Act should not apply.

9.50 The ADA currently makes the following provision in relation to representation at an inquiry before the Tribunal:

101(1) A party to an inquiry –

(a) is entitled to appear personally or where the party is a body corporate, by a director, the secretary or an agent of the body corporate; and

(b) may by the leave of the Tribunal, be represented by a solicitor, by counsel or by an agent.

101(2) No person, other than a solicitor or counsel is entitled to demand or receive any fee or reward for representing a party to an inquiry.

9.52 The provisions in relation to incapacitated persons are intended to be beneficial: nevertheless, there should be a restraint on the Tribunal appointing a representative for such a person without the consent of the person, if the person is capable of giving or withholding consent.

9.53 Although the ADA requires parties to seek leave to be legally represented before the Tribunal, in practice, it appears that the EOT has rarely denied such an application, as indicated by the relatively few unrepresented cases.⁹⁵ The submission of the New South Wales Bar Association argued that, due to the complexity of discrimination law, there should be an unrestricted right to legal representation.⁹⁶

9.54 Whilst some discrimination cases involve legal or factual complexities, many do not. If a party, even in a relatively simple case, is entitled to representation, the other party will usually feel disadvantaged if he or she cannot find or afford representation. The Tribunal should retain the power to control this aspect of its proceedings, as at present. However, the Commission recommends that the ADT Act prescribe the relevant criteria to be considered in the exercise of the discretion.

9.55 The relevant criteria to be addressed by the Tribunal in the exercise of its discretion should be as follows:

(a) Where one party applies for representation, the Tribunal should take into account the intention of the other party, and should be less willing to grant leave to one party where the other party expresses an intention not to seek representation or believes that representation will not be available.

(b) The complexity and importance of the proceedings to each party and in the public interest are factors favouring representation.

(c) The likelihood that a case will be short and turn on issues of fact works against the grant of leave, even in circumstances where there may be serious issues of credibility.

(d) The Tribunal should take into account the likely cost of representation as compared with the financial benefit of the relief sought.

(e) Where the Tribunal is inclined not to grant leave, it may consider and take into account the possible consequences of appointing an officer to assist the Tribunal.

Recommendation 133

The ADT Act should provide that, in the EO Division, the Tribunal has a discretion whether to allow representation by an agent.

In exercising this discretion the Tribunal should consider:

• whether both parties intend, or are able, to obtain legal representation;
• the complexity and importance of the proceedings to each party and in the public interest;
• the likelihood that a case will be short and turn on issues of fact;
• the likely cost of legal representation as compared with the financial benefit of the relief sought; and
• where the Tribunal is inclined not to grant leave, the possible consequences of appointing an “officer assisting the Tribunal”.

9.56 Although there may be a right to legal representation in the Tribunal, this right will have little value for parties who cannot afford to be legally represented. Although it is intended that the ADT will be characterised by greater informality and procedural flexibility than previous tribunals,⁹⁷ the difficulty and complexity of proving discrimination in some cases will still leave the unrepresented litigant at a disadvantage.⁹⁸ Complainants who cannot afford legal services and who cannot access publicly funded legal aid are likely to be deterred from proceeding to the Tribunal.⁹⁹

9.57 Apart from legal aid, which is rarely granted,¹⁰⁰ there has been no formal support for complainants who have been unrepresented at the EOT. It is assumed that this situation will continue in the ADT. This fact is a major concern in the area of discrimination law, given the difficulty of proving discrimination and the fact that the majority of complainants are from disadvantaged groups. The lack of support for unrepresented parties also contributes to delays and, according to the New South Wales Bar Association, can be unfair to the represented party whose legal representative is sometimes expected to assist the unrepresented party.¹⁰¹

9.58 In relation to representation by an agent, the Commission is troubled by the proposition that representation is provided as of right under the ADT Act, subject to a contrary order by the Tribunal, in circumstances where a restriction can only be imposed in relation to oral submissions. If it is proposed that there be no requirement to obtain leave, then the power of the Tribunal to restrict representation should apply to all aspects of the proceedings before it. At present, it seems as if the Tribunal could prevent a defendant being represented by lawyers in relation to oral submissions, but could not prevent a defendant engaging senior counsel to cross-examine the complainant.

9.59 On balance, the Commission understands that the Government intended, by not repealing the provision in the ADA, that that regime should continue to operate in the EO Division. The Commission accepts that that approach is appropriate, but recommends that the section be removed from the ADA and incorporated into the ADT Act.¹⁰²

9.60 If that is done, there are two further minor amendments which the Commission would recommend. First, it is desirable that the ADA provision be amended to make it clear that an agent who is employed to assist others should not be precluded from representing a party before the Tribunal because he or she receives a salary for work which includes such representation, but rather that the prohibition in s 101(2) should relate only to a fee or reward provided by or on behalf of a party for the purpose of representing that party.

9.61 Secondly, the Commission is satisfied that the power of the Tribunal to appoint a representative for an incapacitated person is a desirable power, but one which should be limited to an appointment with the consent of the party where the party is capable of giving or withholding that consent.

Recommendation 134

The prohibition in s 101(2) of the ADA should be transferred to the ADT Act and should only apply to a fee provided on behalf of a party for the purpose of representing that party.

Recommendation 135

The ADT Act should provide that where the Tribunal appoints an agent to represent an incapacitated person, the consent of that person is required (where that person is capable of giving consent).

9.62 The ADA and the ADT Act contain similar provisions which allow the Tribunal to dismiss a complaint which is “frivolous, vexatious, misconceived or lacking in substance”, or where the complainant does not wish to proceed with the complaint.¹⁰³ The only significant difference between the ADA provisions and those in the ADT Act are that the provisions in the ADA specifically provide that the Tribunal may award costs where a complaint is dismissed on either of these bases.¹⁰⁴

9.63 The provisions in the ADA were amended in 1994 to make specific provision for the removal of a complainant who did not wish to proceed. These specific provisions are, in the view of the Commission, worth retaining.¹⁰⁵ The power to dismiss complaints is, however, clearly one which should be contained in the same legislation as the general powers relating to the Tribunal. Given the general consistency between the two provisions, the Commission recommends that s 111 be removed from the ADA but that s 73 in the ADT Act be amended to include provisions equivalent to the 1994 amendments to the ADA. The Commission does not see any necessity to deal with costs of such an order in this section, especially as s 73 of the ADT Act deals generally with the powers of the Tribunal. A specific power in relation to costs should, however, make specific reference to proceedings which have been dismissed as frivolous and vexatious.

Recommendation 136

The ADT Act should provide that the Tribunal may dismiss a complaint, or remove the name of a particular complainant, if satisfied that the complainant does not wish to proceed with the matter.

9.64 Under the ADA, the EOT had power to require the attendance of witnesses to give evidence or produce documents, by a somewhat cumbersome mechanism of vesting in it certain powers conferred under the Royal Commissions Act 1923 (NSW).¹⁰⁶ This provision has been repealed. The ADT Act makes specific provision for the Tribunal to call witnesses to attend and give evidence or produce documents and also empowers the Tribunal to compel witnesses to answer questions.¹⁰⁷

9.65 The power of the Tribunal to compel a witness to answer a question is subject to a “reasonable excuse” exception for refusing to answer.¹⁰⁸ In earlier legislation, the phrase “reasonable excuse” had been used, but was defined.¹⁰⁹ More recently, a similar phrase has been used in the Crime Commission Act 1985 (NSW) and given a partial definition by reference to factors which might constitute reasonable excuses.¹¹⁰ In the ADT Act, the phrase appears undefined.

9.66 Even where significant guidance was given as to what might constitute a reasonable excuse, the Court of Appeal declined to provide an exhaustive definition, or to substitute some different judicial formula for the phrase used in the legislation.¹¹¹ As a result, the phrase imports an undesirable level of uncertainty into legislation which should, so far as possible, be clear and precise.

9.67 The EOT, operating under the Royal Commissions Act, may not compel an answer to a question, or compel the production of a document if the witness has a “reasonable excuse” for refusing, but that term is defined in s 4 as follows:

“Reasonable excuse” in relation to any act or omission by a witness or a person summoned as a witness before a commission means an excuse which would excuse an act or omission of a similar nature by a witness or a person summoned as a witness before a court of law.

9.69 Accordingly, the provision would be more satisfactory if it read as follows:

Nothing in subsection (1) enables the Tribunal to compel a witness to answer a question or produce a document if the witness –

(a) would not be a compellable witness under the provisions of the Evidence Act 1995; or

(b) would be entitled to the benefit of a privilege under the provisions of Part 3.10 of the Evidence Act 1995.

Recommendation 137

The ADT Act should provide that nothing in the Act enables the Tribunal to compel a witness to answer a question or produce a document if the witness:

• would not be compellable under the provisions of the Evidence Act 1995 (NSW); or
• would be entitled to claim privilege under Part 3.10 of the Evidence Act 1995 (NSW).

Interim orders

9.71 The ADA provides that the Tribunal may make interim orders, either on the application of a party to an inquiry before it, or on the application of the President of the ADB, where a complaint is still before him or her for investigation or conciliation.¹¹² The purpose of the power is to maintain the status quo between the parties to the complaint or to preserve the rights of the parties pending the termination of the subject of the complaint. These provisions ceased to exist when the ADT Act commenced,¹¹³ but there is no similar provision contained in the ADT Act.

9.72 The Commission is of the view that the power to make interim orders, although not commonly used, is a valuable one and that a provision in similar terms to s 112 of the ADA should be contained in the ADT Act. Similarly, the role of the President of the ADB in seeking interim orders in circumstances where the complaint has not been declined, nor referred to the Tribunal, is valuable and should be incorporated in the ADT Act.

Recommendation 138

The ADT Act should provide that the EO Division has the power to make interim orders to preserve the rights of the parties, on the application of either the President of the ADB or a party to an inquiry.

9.73 The orders available from the Tribunal are presently contained in s 113 of the ADA. The extent and appropriateness of the provisions in this section are discussed separately in Chapter Ten of this report. Questions of enforcement are also dealt with in that chapter.

Reasons for decision

9.74 The ADA did not require the EOT to state reasons for its decisions, but allowed a party to seek reasons by notice served on the EOT within seven days of the decision or order. The EOT was then required to give reasons within 14 days of receiving the notice.¹¹⁴ This provision has been replaced with the commencement of the ADT Act. The ADT Act provides that the Tribunal “may give reasons either orally or in writing” for its decision and allows a party to seek reasons, where they are not given, within 28 days of receiving a copy of the decision.¹¹⁵ The Tribunal is then allowed 28 days to provide a statement of reasons. The provision expressly requires that the reasons must set out findings on material questions of fact with reference to the evidence or other material on which the findings are based, the Tribunal’s understanding of the applicable law, and the reasoning process which led the Tribunal to its conclusions.

9.75 In addition, there is a further provision which appears to require the Tribunal to give reasons if it reserves its decision and does not deliver it at the completion of the hearing.¹¹⁶ The provision is worded in terms of an obligation to give reasons for a decision within six months of reserving the decision, which presumably means that the decision itself must be given within six months. This provision does not fit well with the specific requirements of s 89. However, the Commission supports the principle that the decision of the Tribunal should be required within six months of completing a hearing. The Commission is also of the view that, where a decision is not reserved, there should be a positive obligation on the Tribunal to give reasons, either at the time of the handing down of the decision or within 28 days. Alternatively, if reasons are not given when the decision is handed down, it should be sufficient that a party present when the decision is handed down make an oral request for reasons.

Recommendation 139

The ADT Act should provide that the Tribunal must give reasons for its decision, within 28 days of handing down the decision.

9.76 The availability of representative or class actions¹¹⁷ has in the past been a controversial issue in Australia. Representative actions are a recognised tool for improving access to the legal system because they allow one person from a group of persons with a common interest to lodge an action which, if the group were required to act as individuals, might not be feasible or as effective. They can also significantly redress power imbalances between individuals and well financed respondents.¹¹⁸ Representative actions, in varying forms, have been incorporated in the rules of all superior Australian courts.¹¹⁹ Although the ADT Act makes no provision for it, the representative action procedure in the ADA has been retained. In keeping with the recommendations made above, the representative action procedure should be removed from the ADA and transferred to the ADT Act. However, the Commission also recommends that the current provisions be amended as set out below.

Representative action provisions under the ADA

9.77 A representative complaint is defined in s 87 of the ADA as:

a complaint lodged under s 88 by a person on behalf of himself or herself and other persons, or two or more persons on behalf of themselves and other persons, and which is treated by the Tribunal as a representative complaint.

In considering whether a complaint is made bona fide and in good faith as a representative complaint, the Tribunal shall satisfy itself:

(a) that:


(i) the complainant is a member of the class of persons, the members of which class have been affected, or may reasonably be likely to be affected, by the conduct of the respondent;

(ii) the complainant has in fact been affected by the conduct of the respondent;

(iii) the class is so numerous that joinder of all its members is impracticable;

(iv) there are questions of law or fact common to all the members of the class;

(v) the claims of the complainant are typical of the claims of the class;

(vi) multiple complaints would be likely to produce varying determinations which could have incompatible or inconsistent results for the individual members of the class; and

(vii) the respondent has acted on grounds apparently applying to the class as a whole, thereby making relief appropriate for the class as a whole; or


(b) that notwithstanding that the requirements of paragraph (a) have not been satisfied, the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint.¹²¹

9.79 These criteria are modelled largely on Rule 23 of the United States Rules of Civil Procedure, although the requirement that a court or tribunal be satisfied that the representative complainant will fairly and adequately represent the interests of the class is not included in the ADA.¹²² Judge Mathews has suggested that criterion (vi) is meaningless, given the nature of discrimination cases and the quasi-judicial nature of the EOT.¹²³

9.80 More importantly, this provision makes cumulative a number of requirements which, in the United States rules, are not cumulative but depend upon the nature of the case and the relief sought. Further, the United States rules are specifically designed to allow for class actions where damages are sought, although the ADA excludes a representative proceeding in relation to a damages claim.¹²⁴

9.81 In practice, the EOT has not dealt with representative complaints by applying the terms of paragraph (a), but rather by application of the alternative provision in paragraph (b).

9.82 While the EOT has exercised its power to hear a complaint as a class complaint when “the justice of the case demands”,¹²⁵ these certification requirements, and the limited remedies available in representative actions, may have discouraged the use of the representative complaint provisions in the ADA.¹²⁶ Additional disincentives include the absence of machinery provisions for the proper management of representative complaints, such as procedures to amend the class, substitute for the representative party, opt out of the class, strike a settlement and discontinue the action.

9.83 The Commission is firmly of the view that the United States rules should no longer serve as a model for an appropriate representative procedure. This model was rejected by the Australian Law Reform Commission (“ALRC”) in its 1988 report.¹²⁷ Although the ALRC as a whole recommended a novel and somewhat complex approach, the Federal Government adopted a more straight forward approach which involved the liberalisation of the common law rules which appeared in the Federal Court Rules and, in virtually identical form, in other superior court rules in Australia and the United Kingdom. This model should form the basis of a revised representative procedure in the Tribunal.¹²⁸

9.84 The statutory approach has received judicial support from the High Court in Carnie v Esanda Finance,¹²⁹ which paved the way for increased use of representative actions under the common law rules.¹³⁰ In that case, the High Court gave a wide interpretation to the requirement imposed by the criterion that members of the class have the “same interest” in the proceedings.¹³¹ This approach should allow claims for damages arising out of separate contracts in appropriate cases. The reasoning of the High Court has important ramifications in discrimination law in light of the fact that many decisions taken today, especially in employment situations, involve not “so much a denial of individual human rights but a process which systematically operates to exclude a certain class from the enjoyment of some benefit”.¹³²

Representative actions in Federal equal opportunity laws

9.85 The representative action provisions of Federal anti-discrimination legislation were amended in 1992, largely to mirror the new representative action provisions of the Federal Court.¹³³ Most importantly, these new representative procedures, unlike the representative complaints provisions contained in the ADA, do not restrict the remedies or ancillary orders that may be awarded. They are available for damages claims and for claims arising out of separate contracts between the applicants and the respondent.¹³⁴ Under Federal equal opportunity laws, a complaint may be heard as a representative complaint if three criteria are satisfied:

• the class members have complaints against the same person;
• the complaints arise out of the same, similar or related circumstances; and
• the complaints give rise to a substantial common issue of law or fact.¹³⁵

9.87 Federal equal opportunity laws do not, however, reflect all of the procedural and machinery provisions contained in Part IVA of the Federal Court Act. For example, they do not suspend the limitation period for an action by an individual member of the class¹³⁹ nor do they contain provisions for the quantification and allocation of damages awards.¹⁴⁰

Criticisms of the Federal Court model

9.88 Although Part IVA of the Federal Court Act 1976 (Cth) delivers a legislative benchmark for the effective administration of representative complaints in Australia, the model has been criticised on two specific points. First, it is criticised for allowing residual damages to revert to the respondent.¹⁴¹ Secondly, it is criticised for permitting the respondent to have the matter struck out if the court agrees that the cost of identifying and distributing any damages award to class members is likely to exceed the amount to which each member is entitled.¹⁴² It is argued that, together, these provisions effectively allow the respondent to “unlawfully obtain relatively small amounts of money from a large number of people” (which may amount to a sizeable aggregate) and “retain the profits of its misdeeds”.¹⁴³

Adopting an expanded representative procedure

9.89 The majority of submissions received by the Commission called for the incorporation of representative procedure provisions similar to those adopted in Federal equal opportunity laws and, where relevant, Part IVA of the Federal Court Act.¹⁴⁴

9.90 The drafters of the ADA provisions demonstrated commendable foresight in accepting a principle which is now reflected in similar legislation around the country. However, the mechanism for representative actions has since been reconsidered and more appropriate models are available. Accordingly, the principle should be retained, but in a form which reflects the Federal Court provisions.

9.91 In addition, the Commission considers that the Tribunal should have a power to make cy-pres orders in relation to amounts which the respondent has been ordered to disgorge for repayment to class members, in circumstances where the amount is not fully distributed, or where the costs of distribution should properly be borne by the fund and would reduce the amount available for distribution below a reasonable level. The principle of disgorgement should apply in relation to amounts which the respondent has made or retained as a result of its unlawful conduct, and should not apply in circumstances where the award is assessed purely as compensation for loss suffered by individuals. Further, the Commission does not consider that the Tribunal should have an unfettered power as to the beneficiary of a cy-pres order. The preferred course is to require that the funds be paid to the ADB which should be empowered to disburse them to community organisations (including community legal centres and the Legal Aid Commission) for the funding of activities, including proceedings relating to public education or efforts to enforce the ADA. A precedent for this approach may be found in the provisions of the former Credit Act 1984 (NSW) with respect to payments ordered for breach of consumer protection provisions.¹⁴⁵

9.92 As Chief Justice Gleeson commented in the Carnie decision, it is important for the fair and efficient conduct of representative actions that expanding their availability “be done with the backing of appropriate legislation or rules of court, adequate to the complexity of the problem and appropriate to the requirement of justice”.¹⁴⁶ Accordingly, the Commission proposes that the machinery provisions of the Federal Court procedures be adopted.

Recommendation 140

The ADT Act should provide for representative complaints (in accordance with the Federal Court model) where:

• the complaints of all group members are against the same person;
• the complaints arise out of the same, similar or related circumstances; and
• the complaints give rise to a substantial common issue of law or fact.

Recommendation 141

The ADT Act should adopt a comprehensive set of procedural and machinery provisions to deal with the conduct of representative complaints (similar to the Federal Court model) including provisions in relation to:

• notice requirements;
• settlement by a representative complaint;
• substitution of the representative complaint;
• discontinuance of the action;
• amendment of the class; and
• the assessment and distribution of damages to class members.

Recommendation 142

The Tribunal should have the power to make cy-pres orders in relation to representative actions, in accordance with the following principles:

• An order may only be made where the amount is not fully distributed or the cost of distribution would reduce the amount below a reasonable level for each member of the class.
• The payment must be made to the ADB for distribution to organisations for the purpose of public education and enforcement of the ADA.

9.93 The ADT Act itself contains few procedural provisions as it is intended that each division of the Tribunal will have a broad discretion to adapt its procedures to the circumstances of the case before it and to formulate its own procedural rules.¹⁴⁷ By requiring the ADT to proceed “according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms”, the ADT Act allows the Tribunal to move away from traditional adversarial procedures towards a more informal model.¹⁴⁸ However, in the Second Reading Speech introducing the Bill to Parliament, the Attorney General stated that:

I have taken account of the criticism which has been levelled at the Commonwealth and Victorian tribunals that despite legislative prescription for informality and flexibility, the actual hearings have become formal and adversarial.¹⁴⁹

9.95 The Rules Committee is composed of the President of the ADT, each Divisional Head and a number of other Tribunal members and other persons as appointed by the Minister.¹⁵¹ The Committee is required to make rules which are “as flexible and informal as possible”.¹⁵² Matters which may be covered by the rules include: the commencement of proceedings; the practice and procedure of the Tribunal; and the mediation of matters.¹⁵³ The ADT Act also provides that different rules may be formulated for each of the divisions and for different classes of matters.¹⁵⁴

9.96 In addition to the general Rules Committee, the ADT Act also establishes a Rules Subcommittee for each division. Rules for each of the divisions may only be made on the recommendation of Divisional Subcommittees.¹⁵⁵ Draft Rules must be subject to public exhibition for at least two months before approval and any written submissions must be considered by the Divisional Subcommittees.¹⁵⁶

9.97 Although the ADA also provided the EOT with the power to determine its own procedure,¹⁵⁷ it was not until April 1995 that the EOT issued its first written Practice Guidelines and Directions.¹⁵⁸ In response to DP 30, the submission of the New South Wales Bar Association noted that the EOT’s failure to develop its own alternative procedural rules resulted in the adoption, by default, of traditional court procedures.¹⁵⁹ In general, the submissions received by the Commission, including the EOT’s submission, extensively supported the development of procedural rules.¹⁶⁰ These problems may be resolved in the ADT Act by the mandatory provision for the establishment of Rules Committees.¹⁶¹

9.98 In the Commission’s view, an expanded set of procedural rules is an appropriate and effective method of setting out the practice and procedure of the EO Division.

What should the rules contain?

9.99 The Commission does not propose to prescribe what the rules should contain. That is ultimately a question for the EO Division Rules Subcommittee. However, it is important that problems with the procedure of the existing EOT be considered in the formulation of rules for the EO Division.

9.100 Rules of the EO Division should be designed to make the Tribunal more accessible, minimise delays and costs and to ensure that the principles of procedural fairness are followed.¹⁶²

9.101 By way of guidance, the EO Division Rules Subcommittee may have regard to the rules governing procedure in other Australian equal opportunity tribunals which make provision for a range of procedures, including:

• notice requirements and procedure for preliminary conferences and hearings;
• filing, service and production of documents;
• discovery and inspection of documents;
• particulars of statements of complaint and defence;
• standard forms for subpoenas, summons and notices to produce;
• applications for interim orders; and
• calculation of costs.¹⁶³

9.102 Both the Anti-Discrimination Tribunal Rules 1993 (Qld) and the Equal Opportunity Regulations 1986 (WA) specifically provide that where a party fails to comply with an order or direction of the tribunal, the tribunal may make appropriate orders including an order dismissing the complaint or statement of defence.¹⁶⁴

COSTS

9.103 Both the ADA and the ADT Act contain provisions relating to the power of the Tribunal to award costs.¹⁶⁵ The provisions in the ADA differ from the general provisions under the ADT Act. The ADA provides that each party to an inquiry “shall pay his or her own costs” unless the Tribunal is satisfied that the circumstances of the particular case “justify” an award of costs.¹⁶⁶ However, under the general provisions of the ADT Act, the Tribunal may only award costs where there are “special circumstances” warranting such an award.¹⁶⁷ The ADT Act also provides that the Tribunal must not award costs unless the power to do so is conferred by the Principal Act.¹⁶⁸

9.104 The fact that the power to award costs must be conferred by the Principal Act means that separate provision must be made to allow the EO Division to award costs. As the Commission is recommending the transfer of all procedural provisions relating to the Tribunal to the ADT Act, the costs provision should also be transferred.

9.105 It would be feasible to maintain a provision in the ADA noting that the Tribunal can award costs, in accordance with the appropriate provision of the ADT Act. However, this gives rise to a level of duplication which seems unnecessary and which could lead to confusion, especially if it were thought that the provision in the ADA gave some indication as to the circumstances in which costs might be awarded, possibly inconsistently with the specific provision in the ADT Act. It would be preferable if the ADT Act were amended so that, in relation to the EO Division, the source of the power to award costs need not be found in the ADA.

9.106 The primary issue which needs to be considered in relation to costs is whether the existing provision, that the parties pay their own costs unless the circumstances of the case “justify” a costs order, is the most appropriate.

The general rule

9.107 The statutory rule, that each party pay its own costs, replaces the traditional rule entrenched in most Australian courts that costs follow the event; that is, the costs of the successful litigant are paid by the unsuccessful party.¹⁶⁹ The costs indemnity rule has been displaced in a number of jurisdictions, including the Family Court, because it is considered to act as a deterrent to bringing or defending an action in court.¹⁷⁰ Just paying one’s own costs is seen as a sufficient barrier to the inappropriate use of the justice system.¹⁷¹

9.108 By precluding the recovery of costs to a successful complainant in the Tribunal, the statutory rule may actually compound the effects of the low damages ceiling, as few complainants receive any real compensation over and above their legal expenses.¹⁷² Complainants are therefore discouraged from pursuing their complaint to the Tribunal on two fronts: without legal representation, they stand a limited chance of success; with legal representation, they are likely to remain out-of-pocket even if they are successful, rendering their victory a pyrrhic one.¹⁷³

9.109 One alternative to the statutory rule is that of “one-way costs shifting”.¹⁷⁴ “One-way costs shifting” aims to encourage public interest litigation by private individuals and groups through compensating them when they are successful, but not awarding costs against them when they fail.¹⁷⁵ This option was canvassed by the ALRC in their report Costs Shifting – Who Pays for Litigation.¹⁷⁶ However, the ALRC rejected the proposal on the basis that it was seen as “inequitable to have a general rule providing for one party to be deprived of an entitlement to claim costs while remaining liable to pay costs if the other party succeeds”.¹⁷⁷

9.110 The preferred approach of the ALRC was that the court or tribunal should retain a discretion with respect to costs, and that, in areas of public interest litigation, the court or tribunal should make a “public interest costs order” where this is justified in the particular circumstances of the case.¹⁷⁸ The ALRC also recommended that, rather than courts and tribunals having an absolute discretion to determine costs, the power to award costs should be exercised in accordance with “cost allocation rules”.¹⁷⁹ These rules can be used to remove some of the uncertainty and inconsistency surrounding an unstructured discretion.

9.111 Many of the submissions received in response to DP 30 supported the development of criteria to guide the Tribunal when considering whether, and on what terms, to make costs orders.¹⁸⁰ A number of cases before the EOT have also set out criteria relevant to the making of a costs order. Relevant factors which have been identified are:

• Public policy considerations. That a matter may raise important public policy considerations, extending beyond the parameters of the individual complaint has been considered a relevant consideration, tending in favour of an award of costs in favour of a successful complainant.¹⁸¹ Some submissions, however, have argued against the use of such a test.¹⁸²
• The conduct of the parties during the inquiry process. A number of submissions have suggested that costs orders should be used to discipline parties for failing to comply with orders and directions of the Tribunal, such as notices to file documents, answer questions, produce documents and comply with agreed timetables.¹⁸³ Precedents have already been set by the EOT for an award of costs in cases where respondents have unduly delayed or obstructed proceedings¹⁸⁴ or where they have maintained insupportable positions.¹⁸⁵ It has been pointed out, however, that caution must be exercised so that a party’s right to present a case in support or defence of a claim is not unduly constrained.¹⁸⁶
• Frivolous and vexatious complaints. Under the existing provisions of the ADA, the Tribunal may also make costs orders against complainants whose complaints are dismissed on the grounds that they are found to be frivolous or vexatious.¹⁸⁷ The EOT has made costs orders against complainants whose complaints are found unsubstantiated, where persuaded there is mischief on the complainant’s part.¹⁸⁸
• Proceedings necessitated by the failure of a party to comply with previous orders. It has been suggested that a party forced to initiate fresh proceedings because of the failure of the other party to comply with a previous order of the Tribunal should not have to bear the costs of the new proceedings, unless there are extenuating circumstances to explain the default.¹⁸⁹
• The filing of written offers of settlement. The ADB has suggested the introduction of an informal system of offers of settlement.¹⁹⁰ These offers could be used to support submissions on costs but would be considered by the Tribunal as only one of a number of factors in any costs application.¹⁹¹

9.112 The basic principle applying in the Tribunal, namely that each party should bear its own costs, is supportable on two grounds. First, it reflects a policy that complainants should not be dissuaded from pursuing their complaints before the Tribunal for fear of an order that, if unsuccessful, they will be required to pay the costs of the respondent. Secondly, the fact that costs generally cannot be recovered is intended to be an encouragement to the parties to limit the legal costs incurred.

9.113 Against this, respondents tend to argue that there is no incentive for a complainant to settle because there is no financial risk in running a case and losing. This argument has limited practical application. Where a complainant lacks resources, it will often be difficult in practice to recover any costs ordered in any event. On the other hand, in most contested cases, a complainant will not have a reasonable chance of success unless he or she has legal representation. If the lawyer is being paid for by the client, there will be a significant incentive not to pursue claims where the costs (even of success) may well outweigh the return. Where the case is legally aided, or taken on a speculative basis, there will generally have been an assessment of the merits of the case which, accordingly, is not likely to be pursued unless there are reasonable prospects of success.

9.114 Some complainants also oppose the present system on the basis that it is difficult to succeed before the Tribunal without legal representation, but in many circumstances the likely damages award will hardly cover the cost of representation.

9.115 One course is to provide for an award to a successful complainant where the respondent appears to have acted unreasonably. Respondents might object to this proposal on the basis that it will require them to justify their conduct, if unsuccessful. This in turn may require them to reveal privileged legal advice.

9.116 While this argument raises a legitimate concern, it carries less weight than may at first appear. A respondent would only be at risk of a costs order if he or she were not only unsuccessful, but where it appeared positively to the Tribunal that the conduct had been unreasonable. The practical onus may then be on the respondent to prove reasonableness by revealing its legal advice. However, it may not wish to do so where, for example, it is considering an appeal and thinks that its position might in some way be prejudiced if it took that step. However, where the policy of the legislation is to encourage reasonable conciliated settlements, that consideration carries limited force.

9.117 A second and balancing proposal to the first, is that it should be easier for a respondent to recover costs against an unsuccessful complainant. There is a danger that this will tip the balance between dissuading unmeritorious complaints and not unduly discouraging meritorious complaints too far in favour of respondents. However, the Commission is not satisfied that this need occur. Experience over twenty years of operation of the ADA has confirmed that complaints are often difficult to prove and that there is a large scope for perceptions of conduct to differ. Views as to the propriety or impropriety of particular aspects of conduct may be poles apart and firmly held. It is inevitable that such cases go before the Tribunal and it is not unreasonable to expect the parties, in some circumstances, to refuse to reach a conciliated settlement. In such circumstances, cost orders should not be made against the unsuccessful complainant (or respondent).

9.118 Thirdly, there is little doubt that the use of disciplinary costs orders would encourage parties to comply with orders and directions of the Tribunal and would have the incidental effect of reducing delays. The Commission also considers costs orders to be appropriate, in principle, against parties whose breach of interim orders has eliminated or diminished the possibility of effecting a conciliated settlement and resulted in an action in the Tribunal.

9.119 Fourthly, the Commission recommends that provision should be made for the filing of offers of settlement in relation to proceedings in the EO Division, in the Registry of the ADT. These offers may then be used by the parties in support of their submissions on costs. In order to encourage parties to participate in the scheme, offers of settlement are to be considered as persuasive, not conclusive, factors. The costs should only be recoverable from the time a reasonable period has elapsed for considering the offer. This will provide an added incentive to settle early.¹⁹²

9.120 Many of the factors referred to above already influence the Tribunal in cases where it has to consider costs awards.¹⁹³ The Commission is satisfied that the following approach, which is largely reflected in decisions of the Tribunal, should be adopted:

(a) There should be no general principle that an unsuccessful complainant must pay the costs of the successful respondent, as that would be likely to deter complaints which are reasonably and genuinely pursued.

(b) Where a complainant has pursued a case successfully and there was an element of public interest, beyond the private interests of the complainant involved, the Tribunal should be able to award costs to the complainant on that basis.

(c) Where a complaint has been pursued successfully, but purely in the interests of the complainant, the complainant should be able to obtain an award of costs, but only where the Tribunal is satisfied that the conduct of the respondent was unreasonable. In assessing unreasonableness, weight should be given to the policy of settlement by conciliation.

(d) Where the complaint was not made, or was not pursued, in a genuine and reasonable belief that it had merit, the Tribunal should be able to award costs against the unsuccessful complainant.

9.121 These principles will tend to result in an increase in the number of cost awards made by the Tribunal. However, to some extent the principles reflect current practice and, accordingly, will make more transparent the approach currently adopted.

Costs in other courts

9.122 When a matter goes on appeal from the Tribunal to the Supreme Court, the general cost rules applicable in the Supreme Court, namely that costs follow the event, will apply.¹⁹⁴ It is apparent to the Commission that this rule has on occasion dissuaded the parties (usually unsuccessful complainants) from taking appeals to the Supreme Court. If the recommendations of the Commission with respect to representation by the President of the ADB or the ADB are accepted,¹⁹⁵ this concern will be mitigated. Where legal aid is granted for the purposes of an appeal, the legally assisted person will be protected from an adverse costs order, a limited liability being incurred by the Legal Aid Commission.¹⁹⁶

9.123 There is, however, a particular concern which arises from the discussion in Chapter Eight that the issues raised by a complainant could, in appropriate cases, be taken directly to a court, rather than the Tribunal.¹⁹⁷ The question raised by that proposal is whether the general rules of court should apply or whether there should be a special costs rule in relation to matters brought under the ADA.

9.124 The difficulty with prescribing a special rule in such cases is that the contraventions of the ADA will only arise as part of a proceeding to which the normal court costs rules will apply. It is not practical to apply differing cost rules in such circumstances.

9.125 The only other consideration which arises in this context is one of consistency with the rules applicable in the Federal Court, where most claims under Commonwealth discrimination laws will be determined. At present, no special rule applies in the Federal Court in relation to such proceedings.

9.126 There may well be merit in giving a party the power to seek an order from the court limiting the overall liability for costs in particular proceedings. Such a power is available in the Federal Court of Australia.¹⁹⁸ A party may apply to that Court to exercise its discretion in relation to the maximum costs which may be permitted, but should do so at the beginning of the hearing, rather than the end so that the parties will know their respective liabilities if unsuccessful. In considering such applications, the Federal Court has taken into account the financial position of applicants, the public interest in the determination of the claims, the legal importance of the issues involved and the scheme of the legislation under which the claims were brought.¹⁹⁹ Federal Court Rules provide that such an order will not apply where one party has acted in a way which has unjustifiably increased costs of the other.²⁰⁰ The rules also permit the Court to vary the specification of maximum recoverable costs at any time if there are special reasons to do so and it is in the interests of justice.²⁰¹

9.127 The Commission considers that this a useful provision which allows parties without unlimited resources to control their exposure to costs. The control vested in the Federal Court is ample to prevent abuse of the mechanism and in the five and a half years during which the rule has operated, it has provided a useful safety net in a number of cases, without there being any evidence of misuse. There is obviously a case for making such a rule generally applicable in the Supreme Court. However, such a general change is beyond the scope of the current reference.

Recommendation 143

The ADT Act should provide that in the EO Division each party shall pay his or her own costs, unless the Tribunal is of the opinion that the circumstances of the case justify the making of a costs order.

In determining whether the circumstances of the case justify the making of a costs order, the EO Division should consider:

• whether the proceedings determine or clarify an important question of law;
• whether any important public policy considerations were raised;
• the behaviour of the parties during the inquiry process;
• whether the complaint was pursued in a genuine belief that it had merit;
• whether the matter was dismissed on the basis that it was frivolous or vexatious;
• whether the matter is brought to enforce a previous order of the Tribunal; and
• the filing of any written offers of settlement.

Recommendation 144

Where a contravention of the ADA is litigated in a court or other tribunal the costs rules generally applicable in that court or tribunal will apply.

9.128 The ADT has a two-tier structure whereby appeals from primary decisions of the Tribunal may be made to an Appeal Panel constituted by at least three members of the Tribunal.²⁰² Appeals to the Appeal Panel are available on questions of law, but may extend to a review of the merits with leave of the ADT.²⁰³ Appeals from the Appeal Panel are available to the Supreme Court on questions of law alone.²⁰⁴ These provisions create an extra step in the appeals process than that which existed under the ADA. Under the ADA appeals from decisions of the EOT on questions of law could be made directly to the Supreme Court.²⁰⁵

9.129 A number of submissions received by the Commission dealt with the question of rights of appeal from decisions of the Tribunal. One submission suggested that there should be a full right of appeal on the merits to the Supreme Court, as was the position prior to 1982.²⁰⁶ Other submissions supported the view that appeals to the Supreme Court should be allowed, but only on questions of law.²⁰⁷ However, all of the submissions predated the ADT Act and none proposed an internal appeal procedure.

9.130 Chapter 7 of the ADT Act provides an internal appeal right in certain cases. The question is whether such a right should be available in relation to decisions of the EO Division. Generally speaking, the multiplication of rights of appeal is undesirable. However, in the next chapter, the Commission recommends that the jurisdictional limit of the Tribunal should be $150,000 in circumstances where the panel hearing a particular case does not include a District Court judge. Given the increase in the powers of the Tribunal following from that recommendation, it is necessary to consider whether there should be one level of appeal available in relation to findings of fact, and whether that should take place within the Tribunal. Secondly, it is necessary to consider whether review on findings of fact should be allowed in any circumstances in the Supreme Court. The question of external review is put to one side at this stage.

9.131 Although it is recommended that the monetary limit on orders the Tribunal may make should be increased significantly, it is likely that most orders will in fact fall within, or close to, the jurisdiction of the Tribunal. In such cases, there is no good reason to impose a second level of review of factual issues in all cases. However, it is still arguable that in relatively serious cases, such as those in which an amount in excess of $100,000 is claimed or awarded, there should be a right of appeal on the facts to an appeal panel chaired by a District Court judge. The Commission considers that this suggestion has merit in that it would only arise in those cases in which an award had been made which approached the level of compensation which could only be made by a Tribunal having a District Court judge amongst its members. Further, it is likely that any claim which appeared as possibly giving rise to an award in excess of $100,000 would be taken in the first instance before a panel comprising a District Court judge. Thus, the internal right of appeal on the facts would, for the most part, only arise in cases where the extent of the possible damages had not been anticipated at the outset.

9.132 Otherwise, the Commission is satisfied that the structure for appeals provided by the ADA should be maintained. The jurisdiction under the ADA is not one of administrative review of a government decision, but rather, a private right of action which may arise simply between two private parties. The possibility of two hearings within the Tribunal will merely increase expense and delay in circumstances where that is not justified. The right of appeal from the EOT to the Supreme Court was limited to an appeal on a question of law. This is a common position in relation to specialist tribunals and leaves the final determination of facts to that tribunal. That principle should be maintained. Where an important question of law does arise in a particular case, the avenues of appeal, which will include the Supreme Court, the Court of Appeal and, where special leave is granted, the High Court of Australia, remain open.

9.133 Before leaving the question of appeals, it is necessary to consider whether a right of internal appeal should be available generally on a question of law and whether rights of external appeal should be so limited.

9.134 In relation to the first matter, the Commission would only be minded to recommend such an internal right of appeal in relation to decisions which had not been made in the first instance by a panel including a District Court judge. Further, the right should not be considered except in circumstances where an appeal to the Supreme Court on a question of law was not as of right, but required leave.

9.135 In relation to external appeals, past practice in the EOT was that appeals from a panel of the EOT not including a District Court judge went to a single judge of the Supreme Court.²⁰⁸ It is desirable that, this practice be reflected in the legislation applicable to appeals from the ADT. However, there is an increasing tendency for leave to be required in relation to proceedings in the Court of Appeal. If that principle were to be applied in relation to the ADT, there would be no unqualified right of appeal from all decisions of the ADT to the Supreme Court.

9.136 The Supreme Court Act 1970 presently provides that an appeal shall not lie to the Court of Appeal except by leave of that Court from a final judgment of a single judge where the amount at issue does not exceed $100,000.²⁰⁹

9.137 Although it may be said, in principle, that there should be a right of appeal to the Supreme Court in all matters on questions of law, it must be recognised that significant costs are usually involved. However, so long as the Supreme Court retains its powers of judicial review at common law, there seems to be little point in preventing appeals going as of right on questions of law. Accordingly, the Commission recommends that the right of external appeal to the Supreme Court be retained, but limited to questions of law. In those circumstances no internal right of appeal on questions of law is appropriate. Internal appeals should be limited to the circumstances noted above.²¹⁰

Recommendation 145

Appeals from decisions of the EO Division should be made directly to the Supreme Court but should only be available on questions of law.

Officer of the ADB assisting the Tribunal

9.138 Under the ADA, the EOT has had the power to appoint an officer of the ADB to assist it in relation to any inquiry.²¹¹ However, in the process of amending the ADA, to transfer jurisdiction to the ADT, this power has been removed.²¹² There is no equivalent provision in the ADT Act.

9.139 The provision allowing the EOT to appoint an officer of the ADB to assist it was introduced with the creation of the EOT in 1981. In the Second Reading Speech to the Bill which originally introduced this provision, it was stated that:

Specific statutory provision has been made for an officer of the Anti-Discrimination Board to appear in inquiries conducted by the tribunal and to assist it as requested. It is envisaged, for example, that this officer would be able to assist the tribunal by providing relevant information not generally available to the parties and in opening up lines of argument that may facilitate the resolution of the complaint.²¹³

9.141 These circumstances highlight the practical difficulties which may not be resolved by allowing complainants to be legally represented, especially if they are without the resources to conduct a case themselves and are unable to obtain legal aid, not for want of merit, but because legal aid funds are limited. Although the current provision allowing the Tribunal to appoint an officer to assist it provides one form of solution, it is not an entirely satisfactory one. First, the officer is not a representative of the complainant, although in appropriate circumstances, where the respondent is properly represented, his or her task may be to ensure that the complainant’s case is properly put. Secondly, administrative difficulties can arise where one authority is permitted to appoint an officer of another authority to assist the former authority. One may expect that there will be informal cooperation between the Tribunal and the ADB in order to ensure that orders are not made where resources are unavailable. Nevertheless, there should be a sound reason for allowing one body to have access to the resources of another. Such a situation is unlikely to work satisfactorily because of difficulties in budgeting for resources which are in the control of another organisation.

9.142 This issue raises the question of the role, or possible role, of the President of the ADB before the Tribunal. On occasion, the President himself or herself has been joined as a party to the proceedings before the Tribunal, although usually in circumstances where a specific issue arises as to the application or interpretation of the ADA. Whilst it is appropriate that the President of the ADB be given an express power, similar to that provided to the Human Rights and Equal Opportunity Commission,²¹⁵ it is not appropriate generally for the President to intervene on behalf of a particular party unless given that role specifically by the legislation.

9.143 A number of submissions to the Commission argued that the President of the ADB should be required to act as advocate for those who would otherwise be unrepresented complainants.²¹⁶ Such a power has been successfully used in other jurisdictions.²¹⁷

9.144 One objection to the President of the ADB having an advocacy role is that such partisanship at the hearing stage does not follow comfortably from the need to adopt an impartial role at the conciliation stage.

9.145 The Commission is of the view that the investigation and conciliation functions of the President of the ADB should be separated.²¹⁸ There is less inconsistency between the investigative functions and an advocacy role: indeed, as long as the legislation makes express provision for each, so that there can be no misunderstanding about the respective functions of the President, the Commission sees no difficulty in providing that the President have a role as advocate for complainants before the Tribunal.

9.146 The difficulty at the present stage is that conferring such a role on the President of the ADB and on the ADB would require that appropriate resources be made available, either in addition to the current resources of the ADB or by re-allocation of current resources, or more probably by a combination of these approaches. Whilst the Commission considers that such a role should be conferred on the President of the ADB, it makes that recommendation in the knowledge that further consultations and administrative arrangements will need to be undertaken before such a change can be effected.

Recommendation 146

The Tribunal should have the power to grant the President of the ADB leave to intervene on behalf of a complainant, where considered appropriate, in proceedings before the Tribunal.

9.147 In addition to the provision relating to an “officer assisting the Tribunal”, a specific provision relating to the burden of proof of exceptions has also been removed from the ADA by the recent amendments, and there is no equivalent provision in the ADT Act.²¹⁹ Under s 109 of the ADA, once a complainant has established discrimination on a certain ground, the burden then shifts to the respondent to prove any exception upon which he or she relies to avoid liability. The provision relating to proof of exceptions is consistent with general principles, but it is more useful if it is expressly stated, as it is in other jurisdictions.²²⁰ The Commission therefore recommends that an equivalent provision be inserted in the ADT Act.

Recommendation 147

The ADT Act should make provision that where any conduct is proved to be unlawful under the ADA, the burden of proving a relevant exception lies upon the respondent.

Footnotes
1. Anti-Discrimination (Amendment) Act 1981 (NSW) inserting Pt 7A into the ADA. For a brief historical account see DP 30 at para 6.1.

2. In 1982 the office of the Counsellor for Equal Opportunity was abolished and the functions of this office were taken over by the President of the ADB: Anti-Discrimination (Amendment) Act 1982 (NSW).

3. The ADT Act was assented to on 10 July 1997. Schedule 1 as it relates to the Community Services Division and Part 1 of Schedule 2 commenced on 6 October 1998. The remainder of the Act commenced on 1 January 1999.

4. The functions of the EOT are carried out by the Equal Opportunity Division (“EO Division”) of the ADT. For further discussion see para 9.4.

5. These include the Community Services Appeals Tribunal, the Legal Services Tribunal, the Boxing Appeals Tribunal, the Schools Appeals Tribunal and the Veterinary Surgeons Disciplinary Tribunal. See ADT Act Sch 5 Pt 2 and Administrative Decisions Legislation Amendment Act 1997 (NSW).

6. The creation of the ADT is the culmination of a number of reports and recommendations over the last 20 years, beginning in 1973 with the New South Wales Law Reform Commission, Appeals in Administration (Report 16, 1972) suggesting the development of a centralised system of tribunals and administrative appeals: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11278. See also L Katz, “ADT-ABC: An Introduction to the New South Wales Administrative Decisions Tribunal”, paper presented at the Government Lawyers CLE Convention (Sydney, 31 July 1997) at 1.

7. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, Hon J W Shaw, Attorney General, Second Reading Speech at 11281.

8. In the Second Reading Speech it was stated that consideration is currently being given to the integration of a further 21 tribunals into the ADT: New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11281.

9. ADT Act s 19, 20 and Sch 2. See also New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11281.

10. See para 9.18.

11. In the Second Reading Speech introducing the Bill, the Attorney General stated that: “The range of matters which may arise before the ADT, both in substance and degree of difficulty, requires that the Tribunal have considerable flexibility in its composition and procedures.” See New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

12. ADT Act s 75. Compare ADA s 101B, repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

13. For a discussion of the influence of tribunal proceedings on the remedies gained at conciliation, see R Hunter and A Leonard, The Outcomes of Conciliation in Sex Discrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, Working Paper No 8, 1995).

14. ADT Act ch 3 s 36. See also ADT Act ch 4 and 5.

15. ADT Act s 4, 42 and 55. In the case of discrimination matters, the Administrative Decisions Legislation Amendment Act 1997 (NSW) also amends the ADA to provide for the referral of matters to the ADT, rather than the EOT: ADA s 91, 94 and 95.

16. ADT Act s 19 and Sch 1 and 2.

17. ADT Act ch 6 Pt 3 s 91-93 and 97.

18. In the Second Reading Speech introducing the Bill to Parliament, the Attorney General, stated:

“the Tribunal will operate in different divisions and it will be possible for the divisions to operate relatively autonomously, with different rules and procedures which are appropriate to the functions exercised by each division. Even within divisions, the rules and procedures may vary depending on the nature of the particular matter before the Tribunal.”
New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

20. N Hasluck, “Human Rights and Equal Opportunity in Western Australia” [1995] Australian and New Zealand Equal Opportunity Law and Practice Reporter (CCH Australia) 91-706 at 76,075.

21. ADT Act s 12. Note that a Registrar, Deputy Registrars and other staff are to be appointed to assist the President in managing the affairs of the Tribunal: ADT Act s 27 and 28.

22. ADT Act s 17(1).

23. ADT Act s 17(2). The Divisional Head must be a judicial officer or a legal practitioner of at least 7 years standing.

24. ADT Act Sch 2 Pt 2 Div 1. Note that members of the Tribunal may be assigned by the President to one or more divisions and this assignment may be varied at any time: ADT Act s 21(3).

25. ADT Act s 13(4). Compare the position at the EOT, where all members have been appointed on a part-time basis: ADA s 69C(1) repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

26. ADT Act Sch 5 Pt 2 Div 2(5). The EOT currently consists of 26 part-time members comprising 11 judicial members and 15 non-judicial (or lay) members. The senior judicial member is currently a judge of the District Court.

27. See below at para 9.23 (in relation to delays).

28. ADT Act Sch 2 Pt 2 Div 3.

29. ADT Act s 17(3).

30. See ADA Pt 7A repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

31. ADT Act s 4 and 42 and ADA s 4, 91, 94 and 95 as amended by the Administrative Decisions Legislation Amendment Act 1997 (NSW) (the Administrative Decisions Legislation Amendment Act 1997 (NSW) amends the definition of “Tribunal” in s 4 of the ADA to mean the “Administrative Decisions Tribunal”: Sch 2.1). However, note that under the Administrative Decisions Tribunal Legislation Amendment Act 1998 (NSW) an amendment has been made to s 90 of the ADA which allows a complainant to apply directly to the Tribunal for review of a decision by the President to decline to entertain a complaint (except where the reason given is that the complaint is “vexatious, misconceived or lacking in substance”): Administrative Decisions Tribunal Legislation Amendment Act 1998 (NSW) Sch 2.1. An amendment to s 126A of the ADA has also been made, which allows a person who is in charge of a special needs program or activity to apply directly to the Tribunal for review of a decision by the Minister concerning the certification of the program or activity: Administrative Decisions Tribunal Legislation Amendment Act 1998 (NSW) Sch 2.1.

32. ADA s 94(1).

33. ADA s 91(2) and 94(1) as amended by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

34. ADT Act s 73(2). The Tribunal is, however, subject to the rules of “natural justice”: s 73(2). See also ADA s 108(1)(a) repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

35. ADT Act s 73(1). See also ADA s 108(1)(c) repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1. It should be noted that the ADT has extensive powers to make rules for each division and for different classes of matters: ADT Act s 90, 91 and 93.

36. ADT Act s 73(3). See also ADA s 108(1)(b) repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

37. ADT Act s 74.

38. ADT Act s 102 and 103. These provisions are similar to s 106 of the ADA (repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1) which places an obligation on the EOT to conciliate complaints where possible.

39. ADT Act s 73(4). These obligations apply throughout the proceedings, not simply at the hearing.

40. ADT Act s 74(5)(a) and 74(5)(b).

41. ADT Act s 83 and 84.

42. F Cameron, “NSW ADT: Scope for Inquisitorial Procedures in the New Administrative Decisions Tribunal” (1997) 35(7) Law Society Journal 41 at 43-44 and J Anderson, “Something Old, Something New, Something Borrowed ... The New South Wales Administrative Decisions Tribunal” (1998) 5 Australian Journal of Administrative Law 97 at 103.

43. Such provisions could easily be included in Sch 2 Pt 2 of the ADT Act which relates specifically to the EO Division.

44. Although delays in listing matters for hearing were substantially reduced by the EOT in the two year period to August 1995, recent research indicates that delays have been an ongoing source of dissatisfaction with matters in the EOT. In a recent survey prepared for the Commission, 49% of complainants and 54% of respondents surveyed agreed that the EOT took too long to deal with their matters. See RR 8 Table 5.2 and Table 6.2 respectively. See also New South Wales, Equal Opportunity Tribunal, Biennial Report 1993-1995 at 7.

45. See below at para 9.107.

46. See Chapter 8 at para 8.21.

47. For a further discussion of remedies available under the ADA see Chapter 10.

48. For a further discussion of “direct” and “indirect” discrimination see Chapter 3.

49. Few complaints have proceeded to a final hearing, and fewer have been judicially determined. On average, only 6% of complaints received by the ADB are referred to the EOT annually, and less than half of these are actually determined by the EOT. In 1993-1994, 96 of the 272 cases before the EOT were resolved: 12 were determined by the EOT and 84 were settled prior to determination: New South Wales, Equal Opportunity Tribunal, Biennial Report 1993-1995 at 8; New South Wales, Anti-Discrimination Board, Annual Report 1994-1995. See also L Thornthwaite, “The Operations of Anti-Discrimination Legislation in New South Wales in Relation to Employment Complaints” (1993) 6 Australian Journal of Labour Law 31 at 42; K O’Donovan and E Szyszczak, Equality and Sex Discrimination Law (Blackwell, Oxford, 1988) at 214-216 and RR 8 at Table 5.2.

50. P Pentony, Conciliation under the Racial Discrimination Act 1975: A Study in Theory and Practice (Australia, Human Rights Commission, Occasional Paper No 15, 1986) at 91; see also Chapter 10 para 10.37 (on raising the ceiling for damages).

51. NSW Bar Association, Submission at 17.

52. New South Wales, Equal Opportunity Tribunal, Annual Report 1992-1993. The structure of the EOT, which has provided for part-time members only and which has made limited provision for administrative support, has been said to restrict severely the capacity of the EOT to meet demand for its services. See New South Wales, Office of Public Management, Review of the Operations and Structure of the Equal Opportunity Tribunal (1993) (“OPM Review”). See also NSW Bar Association, Submission at Annexure A.

53. Data collected by the EOT shows that the average period between date of referral to hearing has fallen by over 50% notwithstanding an increase in the EOT’s workload. The wait has fallen from 12-18 months in 1992-1993 to 10 months in 1993-1994 and 7 months in 1994-1995: OPM Review at 8.

54. In 1994-1995, 125 new matters were referred to the EOT compared to 78 matters in 1993-1994 and 54 in 1992-1993. A further 36% increase is anticipated as a result of recent amendments to the ADA. See New South Wales, Equal Opportunity Tribunal, Biennial Report 1993-1995 at 7. Note the 1992-1993 figures count the 42 and 72 individual complaints against Australian Iron and Steel and Qantas as one complaint against each respondent.

55. ADT Act s 76 provides that the ADT is empowered to make a decision without a formal hearing, where “it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties”.

56. J Anderson, “Something Old, Something New, Something Borrowed ... The New South Wales Administrative Decisions Tribunal” (1998) 5 Australian Journal of Administrative Law 97 at 104.

57. ADT Act s 73(4)(c).

58. RR 8 at Table 5.2 and Table 6.2.

59. In order to ensure the unrepresented party is given a fair hearing, the Tribunal may admit evidence which is not strictly relevant or probative. Or it may accede to requests for adjournments which it would not ordinarily grant, at least not without the imposition of a costs order against the party who has caused the unnecessary delay.

60. NSW Bar Association, Submission at 15-16; Legal Aid Commission of NSW, Submission at 2.

61. It was submitted that an automatic timetable could be triggered without the need for a directions hearing as occurs in the Equity Division of the Supreme Court: see NSW Bar Association, Submission at 15; Legal Aid Commission of NSW, Submission at 4; Gay and Lesbian Rights Lobby, Submission. It should be noted that the ADT Act currently contains a provision which allows the Tribunal to place time limits on the presentation of submissions, however, this provision only applies at the hearing stage and does not carry a penalty for non-compliance: ADT Act s 73(5)(d).

62. See below at para 9.107 (in relation to costs).

63. NSW Department of Health, Submission at 10-11; NSW Bar Association, Submission at 22-26. The EOT now monitors delays between submissions and final decision, and this has made a difference to delays – see Equal Opportunity Tribunal, Correspondence (8 May 1996). The submission of the NSW Bar Association specifically suggested that legislative time limits should be imposed on the Tribunal for the handing down of decisions of the Tribunal: NSW Bar Association, Submission at 20.

64. ADA s 69C(1) repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1. Delays in handing down judgments have also been compounded by the fact that, until recently, part-time members were paid only for sitting fees, not for the preparation or writing up of judgments: OPM Review at 18. This was rectified shortly after the OPM Review in 1993. Members are now remunerated for hearing inquiries and for preparing and writing decisions. Judicial members are paid $557 per day or $275 per half day for sitting fees, preparation of decisions and for administrative duties. Non-judicial members are paid $310 per day or $155 per half day for sitting fees and for the preparation of decisions: J Hannaford, Letter to the Senior Judicial Member from the Attorney General (14 October 1993). The adequacy of these fees requires regular review.

65. Most submissions argued that there was no need for a formal hearing for the handing down of a decision or for the dismissal of a complaint, unless the issue of costs needs to be resolved at the same time: NSW Bar Association, Submission at 19; Legal Aid Commission of NSW, Submission at 4; NSW Ministry for the Status and Advancement of Women, Submission; Gay and Lesbian Rights Lobby, Submission. See also OPM Review at 19.

66. The reasons may be given orally or in writing and the rules may specify a lesser time limit for different classes of matters: ADT Act s 80(1) and (3).

67. ADT Act s 80(2).

68. ADT Act s 13(4). However, only the President is required to be appointed on a full-time basis. See discussion above at para 9.12.

69. Information supplied by Mary Reiby, Duty Solicitor at the EOT (2 April 1998).

70. ADT Act s 42.

71. ADT Act s 4(1).

72. See above at para 9.14.

73. Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.

74. ADT Act s 142: the heading to the section is misleading.

75. ADT Act s 67.

76. ADA s 96.

77. ADT Act s 72.

78. ADT Act s 67(1).

79. ADT Act s 67(1)(d) and 5(b).

80. See below at para 9.77.

81. ADT Act s 90.

82. ADA s 106.

83. ADT Act s 54.

84. ADT Act s 102.

85. ADA s 110A.

86. ADT Act s 75 and 126.

87. See ADT Act s 40.

88. ADT Act s 126.

89. Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 at 55E-55F.

90. Raybos Australia at 61B-61C, per Samuels JA.

91. ADT Act s 71.

92. ADT Act s 71(1), 71(4) and 71(7).

93. ADT Act s 71(1)(b).

94. ADT Act s 71(2).

95. In 1992-1993 there were only 13 cases presented at the EOT where a party was without legal assistance. In 1993-1994 and 1994-1995 this increased to 31 and 33 matters respectively (approx 11% of all cases) where at least one party was unrepresented: New South Wales, Equal Opportunity Tribunal, Biennial Report 1993-1995 at 9-11. RR 8 found that 56% of the complainants and 86% of the respondents surveyed who had appeared at the EOT had been represented by a lawyer: at para 5.4.1 and 6.3.1.

96. NSW Bar Association, Submission at 5. However, other submissions have argued that there should be strict guidelines which would effectively deny legal representation to one party where the other is unrepresented: Gay and Lesbian Rights Lobby, Submission; NSW Ministry for the Status and Advancement of Women, Submission. However, the submission of the ADB rejected this suggestion on the basis that it would be unfair to the parties and would also deprive the Tribunal of the benefit of legal argument: Anti-Discrimination Board, Submission 1 at 201.

97. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280. See also F Cameron, “NSW ADT: Scope for Inquisitorial Procedures in the New Administrative Decisions Tribunal” (1997) 35(7) Law Society Journal 41 at 43-44; and J Anderson, “Something Old, Something New, Something Borrowed ... The New South Wales Administrative Decisions Tribunal” (1998) 5 Australian Journal of Administrative Law 97 at 103.

98. It is well established that the provision of effective legal services is fundamental to achieving access to justice. See Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan, (AGPS, Canberra, 1994) Pt 2.

99. Research has indicated that success rates are lowest among those who are self-represented: see Distaff Associates, A Better Balance: A Review of the Complaints Handling Processes under the Sex, Racial and Disability Discrimination Acts (1994) and 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.

100. In 1992-1993, only 7 applications were made for legal aid, 3 of which were granted. In 1993-1994, 16 applications were made of which 6 were granted, 5 denied and the result is unknown in the remaining 5 applications. In 1994-1995, 9 out of 31 applications were successful. The result was unknown in 17 applications. See New South Wales, Equal Opportunity Tribunal, Biennial Report 1993 -1995 at 11-12.

101. NSW Bar Association, Submission at 5. See also para 9.23 (in relation to delays).

102. See above at para 9.18 and Recommendation 128.

103. ADA s 111. See also ADT Act s 73(5)(g) and 75(5)(h) which provide the ADT with power to dismiss a complaint at the request of the applicant or which is “frivolous or vexatious”.

104. ADA s 111(2).

105. See ADA s 111(1A) and (1B).

106. ADA s 110.

107. ADT Act s 83 and 84.

108. ADT Act s 83(3).

109. See Royal Commissions Act 1923 (NSW) s 4 and Special Commissions of Inquiry Act 1983 (NSW) s 3(1).

110. Crime Commission Act 1985 (NSW) s 18.

111. See Ganin v NSW Crime Commission (1993) 32 NSWLR 423.

112. ADA s 89A and 112.

113. See Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

114. ADA s 117 repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

115. ADT Act s 89(2) and 89(3).

116. ADT Act s 80(3).

117. The representative action derived from the English Courts of Chancery. In Canada and America, it has evolved into the “class action”. Though known by different names, the class and representative action essentially seek the same objective: to determine, in a single action, the similar claims of a group of persons against the same respondent or defendant.

118. Australia, Access to Justice Advisory Committee, Access to Justice: An Action Plan (AGPS, Canberra, 1994) at para 2.104. See also Coalition for Class Actions, Representative Proceedings in NSW: A Review of the Law and a Proposal for Reform (Public Interest Advocacy Centre, Sydney, 1995).

119. See, for example, Supreme Court Rules (1970) NSW, Pt 8 r 13.

120. ADA s 103(1).

121. ADA s 103(2).

122. In Pearce v Glebe Administration Board [1985] EOC 92-131 at 76,313, Barbour DCJ found that even though there is no specific requirement in the ADA that the representative be able to represent fairly and adequately the interest of the class and hence protect the interests of absent class members, it is nonetheless a factor to be considered in the exercise of the Tribunal’s discretion under s 103(2)(b).

123. Leves v Haines [1986] EOC 92-167 at 76,637 per Mathews J. See also Pearce v Glebe Administration Board [1985] EOC 92-131 at 76,313. For a commentary, see R Hunter, Indirect Discrimination in the Workplace (Federation Press, Sydney, 1990) at 253.

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

125. ADA s 103(2)(b).

126. See Squires v Qantas Airways Ltd [1985] EOC 92-135.

127. Australian Law Reform Commission, Grouped Proceedings in the Federal Court (ALRC 46, 1988).

128. See Federal Court of Australia Act 1976 (Cth) Pt 4A.

129. Carnie v Esanda Finance (1995) 182 CLR 398. The Carnies had entered into a loan variation agreement with Esanda Finance and alleged that Esanda had overstated the loan and therefore charged interest on the wrong amount. The High Court ruled that many persons who had also signed variation agreements with the creditor had the same interest in knowing how Esanda calculated the amount owing on the loan and if the calculation method was wrong. They had a common interest in being released from their liabilities to repay moneys they did not owe.

130. N Francey, “High Court Clears the Way for Class Actions” (1995) 30 Australian Lawyer 27.

131. This was a reversal of the restrictive approach of the English decision in Markt & Co Pty Ltd v Knight Steamship Pty Ltd [1910] 2 KB 1021, on which the majority in the Court of Appeal had relied: Esanda Finance Corporation Ltd v Carnie (1992) 29 NSWLR 382.

132. R Hunter, Indirect Discrimination in the Workplace (Federation Press, Sydney, 1990) at 250-251.

133. Federal Court of Australia Act 1976 (Cth) s 33C(1).

134. See RDA s 25Y and 25Z; SDA s 80 and 81; DDA s 102 and 103; see also Federal Court of Australia Act 1976 (Cth) s 33C(2).

135. See RDA s 25L; SDA s 69; DDA s 89; as inserted by Sex Discrimination and Other Legislation Amendment Act 1992 (Cth).

136. For example, DDA s 89(2).

137. Federal Court of Australia Act 1976 (Cth) s 33C-33ZB.

138. SDA s 72.

139. Federal Court of Australia Act 1976 (Cth) s 33ZE.

140. Public Interest Advocacy Centre, Submission at 1. See Federal Court of Australia Act 1976 (Cth) s 33H-33ZJ.

141. Federal Court of Australia Act 1976 (Cth) s 33Z(5).

142. Federal Court of Australia Act 1976 (Cth) s 33M.

143. Public Interest Advocacy Centre, Submission at 2.

144. Anti-Discrimination Board, Submission 1 at 208-209; Combined Community Legal Centre Group NSW, Submission at 13; Disability Council of NSW, Submission at 4; Gay and Lesbian Rights Lobby, Submission at 5; Law Society of NSW, Submission at 5; Legal Aid Commission of NSW, Submission at 2; J Lennane, Submission at 2; NSW Ministry for the Status and Advancement of Women, Submission at 9; National Children’s and Youth Law Centre, Submission at 4; National Pay Equity Coalition, Submission at 4; NSW Bar Association, Submission at 10; Independent Teachers’ Association, Submission at 4; NSW Women’s Advisory Council, Submission at 3; Office of the Director of Equal Opportunity in Public Employment, Submission at 3; People with Disabilities, Submission at 1. See also Public Interest Advocacy Centre, Submission at 1.

145. Credit Act 1984 (NSW) s 86B.

146. Carnie v Esanda Finance (1995) 182 CLR 398 at 414.

147. ADT Act s 73. See also New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

148. ADT Act s 73(3). A similar provision also applied to the EOT under the ADA: ADA s 108(1)(b).

149. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280.

150. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 27 June 1997, the Hon J W Shaw, Attorney General, Second Reading Speech at 11280. See ADT Act ch 6 Pt 3 Div 1.

151. ADT Act s 94(1).

152. ADT Act s 93(1).

153. ADT Act s 90(2).

154. ADT Act s 90(3).

155. ADT Act s 93(2) and 97. These Subcommittees are composed of the Divisional Head, one judicial and one non-judicial member of the Division and three community members who represent relevant special interests in the area of the Division’s jurisdiction: ADT Act s 97(2).

156. ADT Act s 98(1). The Rules Committee need not comply with this provision if the President certifies that it is necessary for the rule to be made “expeditiously”: ADT Act s 98(2).

157. The EOT has not been bound by the rules of evidence and has had the power to give procedural directions to “enable costs or delay to be reduced”: ADA s 108 repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

158. New South Wales, Equal Opportunity Tribunal, Practice Guidelines and Directions (1995).

159. NSW Bar Association, Submission at 2.

160. NSW Bar Association, Submission at 15; Legal Aid Commission of NSW, Submission at 3; Anti-Discrimination Board, Submission 1 at 216. See also Equal Opportunity Tribunal, Consultation (25 February 1994). The advantages of having a comprehensive set of procedural rules is that they would assist parties in conducting their cases, encourage procedural fairness in decision making and enhance public confidence in the decision making process.

161. ADT Act s 90 and 97.

162. The ADT Act specifically provides that the Tribunal is subject to the rules of “natural justice”: ADT Act s 73(2). Procedural fairness may, for example, require the grant of an adjournment where one party has failed to comply with procedural requirements or directions: see Shadforths Ltd v Human Rights and Equal Opportunity Commission [1992] EOC 92-400.

163. Equal Opportunity (Anti-Discrimination Tribunal) Regulations 1995 (Vic); Anti-Discrimination Tribunal Rule 1993 (Qld); Equal Opportunity Tribunal Rules 1988 (SA); and Equal Opportunity Regulations 1986 (WA).

164. Anti-Discrimination Tribunal Rule 1993 (Qld) s 11 and Equal Opportunity Regulations 1986 (WA) reg 31.

165. ADA s 114 and ADT Act s 88.

166. ADA s 114.

167. ADT Act s 88(1).

168. ADT Act s 88(3).

169. The rationale for this general “costs indemnity” rule is that success at litigation vindicates the winning party who should not then have to pay his or her legal costs in successfully asserting a valid legal claim or defending an unjust claim. Usually, the party may only recover those legal costs reasonably incurred in preparing and presenting the action in court. These are generally referred to as “party and party costs”. Special circumstances must exist to justify an award for full recovery of all expenses reasonably incurred, known as an award for “indemnity costs”. See generally, Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994) and Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation (ALRC 75, 1995).

170. For example, the Family Court of Australia Act 1976 (Cth). But note that the new Equal Opportunity Act 1995 (Vic) s 138 allows the recovery of costs.

171. See Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994); Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation (ALRC 75, 1995); Australia, Access to Justice Advisory Committee Access to Justice – An Action Plan (AGPS, Canberra, 1994).

172. Note that the Commission is recommending that the ceiling on damages in discrimination cases be raised: see Chapter 10 at para 10.37.

173. One reason for dissatisfaction with the outcomes of the complaint among complainants who proceeded to the EOT was that the “out-of-pocket expenses and wage loss were twenty times the amount awarded”. See RR 8 at para 5.3.3.

174. See ALRC 75 at para 4.26-4.29.

175. One-way costs shifting allows successful plaintiffs to recover costs but not successful defendants. In America, one-way costs shifting has been implemented to encourage public interest litigation in environmental and civil rights matters. See Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994) at para 2.9.

176. ALRC 75 at para 4.26-4.29.

177. ALRC 75 at para 4.27. Numerous submissions to the ALRC Report, including those of the Law Society of NSW and the NSW Bar Association, opposed the use of such a general rule.

178. ALRC 75 at para 13.16-13.19. In their report, the ALRC advocated the greater use of discretionary costs orders to achieve specific purposes.

179. ALRC 75 at para 2.14-2.17.

180. NSW Department of Health, Submission at 11; Gay and Lesbian Rights Lobby, Submission; Legal Aid Commission of NSW, Submission at 3; NSW Bar Association, Submission at 10.

181. For example, Squires v Qantas Airways Ltd [1985] EOC 92-135; Holdaway v Qantas Airways Ltd [1992] EOC 92-430 and Duggan v Shore Inn Pty Limited [1993] EOC 92-483. It has also been suggested that where a respondent appeals a decision because it is considered a test case, the appeal should only be granted if the respondent agrees to indemnify the complainant for costs, regardless of whether the respondent wins or loses: Legal Aid Commission of NSW, Submission at 3. In Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165, the High Court allowed the respondent leave to appeal on condition that the respondent indemnify the complainant for costs regardless of the outcome of the appeal. See also Oshlack v Richmond River Council (1998) 72 ALJR 578; Richmond River Council v Oshlack (1996) 39 NSWLR 662.

182. NSW Bar Association, Submission at 11; NSW Department of Health, Submission at 11.

183. Anti-Discrimination Board, Submission 1 at 213-215; Legal Aid Commission of NSW, Submission at 2 and NSW Bar Association, Submission at 10-11. It has also been suggested that the EOT make orders for indemnity costs in cases where there is evidence that a party has deliberately and unreasonably delayed the proceedings by reason of misconduct: Legal Aid Commission of NSW, Submission at 2. The existing NSW Equal Opportunity Tribunal, Practice Guidelines (1995) No 4 actually provide for the possibility of adverse costs orders in such circumstances.

184. The EOT has awarded costs for those parts of the matter where a party has unduly prolonged the hearing and added to the costs of the other party by, for example, not agreeing on facts not genuinely in dispute: Hill v Water Resources Commission [1985] EOC 92-127 at 76,292. In some cases, costs have been factored into the remedies given for economic loss: see Chapter 10 at para 10.39 (damages and economic loss). In addition, costs have also been awarded for failing to comply with pre-hearing directions and for conduct which made more difficult clarification of complex issues raised: Holdaway v Qantas Airways Ltd [1992] EOC 92-430.

185. Duggan v Shore Inn Pty Limited [1993] EOC 92-483 at 79,492. Contrast Nowland v TNT Skypak [1994] EOC 92-560.

186. Anti-Discrimination Board, Submission 1 at 212-213. The delays invariably caused by a self-represented litigant with little knowledge of Tribunal procedures surely merit different treatment to the misconduct of another party who has lodged numerous baseless claims. Preserving a discretionary approach is an appropriate means of ensuring a just result.

187. ADA s 111(2). A similar provision is also found in the legislation of South Australia, Western Australia and the ACT: EOA (SA) s 26; EOA (WA) s 125(2); and DA (ACT) s 102(4). The Commission does not agree with a Submission of the NSW Bar Association that an automatic costs order be made against a complainant whose complaint is found to be vexatious or frivolous: NSW Bar Association, Submission at 10-11.

188. Absolon v Department of Technical and Further Education [1995] EOC 92-693 at 78,223; Hill v University of New England [1990] EOC 92-291 at 77,951.

189. Anti-Discrimination Board, Submission 1 at 213-215 and Legal Aid Commission of NSW, Submission at 2-3. Under the current provisions of the ADT Act, a successful complainant who has been awarded damages may enforce the order as a judgment debt in a court of relevant jurisdiction: ADT Act s 82. Compare ADA s 115 repealed by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

190. Anti-Discrimination Board, Submission 1 at 213-215. An “offer of compromise system” is also one of the alternative models supported by the ALRC in its report on the reform of litigation costs rules: Australian Law Reform Commission, Costs Shifting: Who Pays for Litigation (ALRC 75, 1995). A number of submissions specifically recommended the implementation of a formal, statutory offer of compromise system, similar to that used in the District Court: Legal Aid Commission of NSW, Submission at 3; NSW Bar Association, Submission at 14. However, the submission of the ADB opposed the consequences of an adverse costs order in favour of a respondent on the basis that this would detrimentally affect complainants, who tend to be averse to risks. In addition, it was argued that such a system may have limited effect as the redress sought by complainants is not always financial compensation: Anti-Discrimination Board, Submission 1 at 215; D Robertson, Submission at 20.

191. An “offer of compromise system” provides that, if the amount of a settlement offer made (and possibly filed with the court or tribunal) by a complainant is either met or exceeded by the amount subsequently recovered at judgment, the complainant is entitled to a costs order. Conversely, if the respondent offered to settle for a specified amount and the complainant recovers less than that amount at the hearing, costs may be awarded to the respondent, or at least the complainant may not recover his or her costs incurred after the offer is made.

192. See Australian Law Reform Commission, Who Should Pay? A Review of the Litigation Costs Rules (Issues Paper 13, 1994) at 58.

193. See, for example, Squires v Qantas Airways Ltd [1985] EOC 92-135 at 76,341; Willis v State Rail Authority of NSW (No 3) [1992] EOC 92-456 at 79,283. Factors which have been held to be relevant are: whether the complaint raises important issues of public policy and whether the complainant has received financial assistance from any other source, such as legal aid or union assistance: Squires v Qantas Airways Ltd [1985] EOC 92-135 at 76, 341. However, compare Holdaway v Qantas Airways Ltd [1992] EOC 92-430 where the EOT decided to award costs to the complainant despite the fact that the complainant’s union had agreed to pay his costs.

194. See Australian Postal Commission v Dao (No 2) (1986) 6 NSWLR 497 (CA).

195. See para 9.146, 9.147

196. Legal Aid Commission Act 1979 (NSW) s 47.

197. See Chapter 8 at para 8.187.

198. See Federal Court Rules O 62A.

199. See Woodlands v Permanent Trustee Co Ltd (1995) 58 FCR 139.

200. O 62A r 2; Hanisch v Strive Pty Ltd (1997) 74 FCR 384.

201. O 62A r 4.

202. ADT Act s 24 and 113. Note that s 118 of the ADA has been amended to expressly provide that appeals from the EO Division may be made to an Appeal Panel of the ADT.

203. ADT Act s 113. An appeal must be made within 28 days after the Tribunal provides the party with written reasons for the decision or within such further time as the Appeal Panel may allow: ADT Act s 113(3).

204. ADT Act s 119. The Supreme Court retains its original jurisdiction to review decisions of the ADT (ADT Act s 122) but it may decline to exercise that jurisdiction if satisfied that an alternative mechanism, such as the statutory right of appeal, is adequate: ADT Act s 123.

205. ADA s 118 (amended by Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1). Under the ADA an appeal to the Supreme Court was able to be made, but only within 21 days after the EOT provided the party with written reasons for the decision: s 118(1).

206. NSW Department of Health, Submission at 11.

207. Anti-Discrimination Board, Submission 1 at 217; NSW Bar Association, Submission at 16; Legal Aid Commission of NSW, Submission at 3.

208. This practice depended upon a particular interpretation of s 48 of the Supreme Court Act 1970 (NSW), namely that one looked to the panel which heard the case rather than the membership of the EOT as a whole in determining whether the Tribunal included a District Court judge.

209. Supreme Court Act 1970 (NSW) s 101(2)(r).

210. See para 9.131.

211. ADA s 101A.

212. See Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.

213. New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 25 November 1980, the Hon N K Wran, Premier, Second Reading Speech at 3412.

214. Woods v Wollongong City Council [1992] EOC 92-393 and 92-394. The decision of the Tribunal is reported at [1993] EOC 92-486 and 92-511.

215. See HREOC Act s 11(1)(o).

216. Legal Aid Commission of NSW, Submission at 2; NSW Department of Health, Submission at 10; and Gay and Lesbian Rights Lobby, Submission.

217. In South Australia and Western Australia the Equal Opportunity Commissioner must, either personally or by counsel, assist the complainant, if requested, in the presentation of the complainant’s case: EOA (SA) s 95(9); and EOA (WA) s 93(2). Note the South Australian provision is currently under review: Martin Report ch 5-6. Similarly, if a matter proceeds to a tribunal in Canada or in the United States, the proceedings are brought by the State equal opportunity agency. See also Human Rights Act 1993 (NZ) s 83(1).

218. See Chapter 8 at para 8.96.

219. ADA s 109 repealed by the Administrative Decisions Legislation Amendment Act 1997 (NSW) Sch 2.1.