The recommendations are also cross referenced to the relevant clauses in the draft Bill. For obvious reasons, recommendations to repeal provisions have not been cross referenced. Also, there are no cross references to recommendations regarding Tribunal procedure as they require amendments to the Administrative Decisions Tribunal Act 1997 (NSW).

Part One

Chapter 2: Interaction with Commonwealth laws

Recommendation 1

Seek to formalise co-operative arrangements between the ADB and HREOC, whereby the ADB is appointed as an agent for HREOC and provides a common reception point for complainants, similar to the arrangement which existed until 1991.

Draft Anti-Discrimination Bill 1999: cl 128(3)

Recommendation 2

The ADA should expressly state that it binds the Crown in right of the State and in all other capacities so far as the legislative authority of the State Parliament permits.

Draft Anti-Discrimination Bill 1999: cl 6

Chapter 3: Concept of discrimination

Recommendation 3

The concept of direct discrimination should be redefined:

• to cover conduct causing detriment or disadvantage on the ground of an irrelevant characteristic [Draft Anti-Discrimination Bill 1999: cl 9, 12];
• to include in conduct, a refusal or omission to act [Draft Anti-Discrimination Bill 1999: cl 11]; and
• to clarify what attributes may constitute a “characteristic” [Draft Anti-Discrimination Bill 1999: cl 16, 17, 18].

Relief should be available, in appropriate circumstances, in relation to threats to contravene the ADA.

Draft Anti-Discrimination Bill 1999: cl 93, 119(5)

Recommendation 5

The ADA should impose an obligation to provide reasonable accommodation in relation to the grounds of disability, pregnancy, breastfeeding and carer responsibilities (only in employment) subject to a defence of unjustifiable hardship.

Draft Anti-Discrimination Bill 1999: cl 14

Recommendation 6

The concept of indirect discrimination should be redefined:

• to be consistent with the new definition of “direct discrimination”;
• to identify how the element of “reasonableness” is to be addressed; and
• to specify that the burden of establishing reasonableness rests with the respondent.

Recommendation 7

The ADA should include a Preamble which refers to a right to substantive, as distinct from formal, equality. It should identify the relevant international human rights instruments adopted by Australia and provide a brief statement of the principles contained therein.

Draft Anti-Discrimination Bill 1999: Preamble

Recommendation 8

The ADA should include a statement of objects. The statement should provide that the objects of the Act are:

• to promote recognition of equality of opportunity for all people;
• to eliminate discrimination by recognising that irrelevant characteristics not be taken into account;
• to implement strategies aimed at achieving substantive equality in public life, including provisions requiring the “reasonable accommodation” of certain attributes and permitting special measures to promote the opportunities of disadvantaged groups;
• to provide a mechanism for conciliation of disputes involving discrimination;
• to provide redress for people who have been unlawfully discriminated against; and
• to educate the community about the prohibitions against unlawful discrimination and to promote the social and economic benefits of applying non-discriminatory principles and practices.

Part Two

Chapter 4: Areas of operation

Recommendation 9

Include work done by volunteers, trainees or unpaid workers within the definition of work.

Draft Anti-Discrimination Bill 1999: cl 26

Recommendation 10

Provide that the Crown should be liable for conduct of members of Parliament and Ministers involving discrimination under the ADA.

Draft Anti-Discrimination Bill 1999: cl 6

Recommendation 11

In relation to the terms of the present s 95A, provide expressly that it should be a condition of granting leave under that section that any relief received previously is not duplicated and that granting the relief sought under the ADA would not cause undue prejudice to the respondent.

Recommendation 12

In relation to the exception for employment in a private household, re-define to refer to employment, or an application for employment, which requires work to be done in a dwelling occupied by the employer or by a relative of the employer.

Draft Anti-Discrimination Bill 1999: cl 27

Recommendation 13

Exclude sexual harassment from the exception for discrimination in employment in a private household.

Recommendation 14

Repeal the small business exception.

Recommendation 15

Repeal the exception applicable to partnerships of fewer than six persons.

Recommendation 16

For religious educational authorities, substitute for the current exception for employment in a private educational authority, an exception based on a genuine occupational qualification. The exception should provide that:

• it only applies to the grounds of sex, pregnancy, domestic status, sexuality and transgender status [Draft Anti-Discrimination Bill 1999: cl 28(5)(b)];
• the educational institution must be conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed [Draft Anti-Discrimination Bill 1999: cl 28(5)(c)];
• the employer must act on a bona fide belief that the discrimination was required in order to comply with the tenets of the particular religion or creed [Draft Anti-Discrimination Bill 1999: cl 28(6)]; and
• if the existence or operation of the tenet of the particular religion or creed is disputed by some adherents of that religion or creed, it is sufficient if the view is one which is treated as a reasonable view by the adherents of that religion or creed [Draft Anti-Discrimination Bill 1999: cl 18(2)].

In the area of provision of goods and services, include the manner in which the goods and services are provided.

Draft Anti-Discrimination Bill 1999: cl 35(1)(c)

Recommendation 18

Include in “services” a specific reference to superannuation.

Draft Anti-Discrimination Bill 1999: cl 36(1)(c)

Recommendation 19

Include in the definition of “goods” a chose in action and money.

Draft Anti-Discrimination Bill 1999: cl 36(1)

Recommendation 20

Repeal the exception for private educational authorities in relation to education on all grounds.

Recommendation 21

Repeal the exception for prescribed educational authorities from the prohibition on race discrimination in education.

Recommendation 22

Provide a limited exception for educational institutions which operate in accordance with religious tenets for the grounds of sex, domestic status, sexuality, transgender status and religion.

Draft Anti-Discrimination Bill 1999: cl 44

Recommendation 23

Include in the area of goods and services:

• access to any place, vehicle or facility which members of the public are entitled to use;
• the terms on which such access is allowed;
• the provision of means of access; and
• the requirement to leave or cease the use of any such place, vehicle or facility.

Recommendation 24

Insert a definition of accommodation in the ADA in the terms of that contained in the Residential Tenancies Act 1987 (NSW).

Draft Anti-Discrimination Bill 1999: cl 49

Recommendation 25

Amend the provisions relating to discrimination in accommodation on the ground of disability to prohibit a refusal to permit a person to make reasonable alterations to a premises occupied by that person.

Draft Anti-Discrimination Bill 1999: cl 47

Recommendation 26

Retain the exception for accommodation in a private household but specify that the accommodation must be in the main home.

Draft Anti-Discrimination Bill 1999: cl 50

Recommendation 27

The area currently identified as “registered clubs” should be renamed “clubs and associations” and extended to cover all associations of persons which are incorporated or registered as corporations in Australia.

Draft Anti-Discrimination Bill 1999: cl 53

Recommendation 28

Include “disposal of interests in land” as an area of discrimination.

Draft Anti-Discrimination Bill 1999: cl 59, 60, 61

Recommendation 29

Include the exercise of functions and powers of local government and the administration of State and local government laws and programs as a new area.

Draft Anti-Discrimination Bill 1999: cl 62

Chapter 5: Grounds of discrimination

Recommendation 30

Remove the term “ethno-religious origin” from the definition of race.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Recommendation 31

Pregnancy (including potential pregnancy) and breastfeeding should form separate grounds of discrimination.

Draft Anti-Discrimination Bill 1999: cl 16(2)

Recommendation 32

“Marital status” should be re-named “domestic status”.

Draft Anti-Discrimination Bill 1999: cl 16(1)(c)

Recommendation 33

Define “domestic status” as being:

(a)single;

(b)married (including Indigenous Australian customary marriages);

(c)married but living separately and apart from one’s spouse;

(d)divorced;

(e)widowed; or

(f)in cohabitation with another person in a domestic relationship other than marriage.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Recommendation 34

Extend the defence of “unjustifiable hardship” to all areas currently covered by s 49D(1) and 49D(2).

Draft Anti-Discrimination Bill 1999: cl 14, 25

Recommendation 35

Provide that there is no contravention of the ADA where, in order to accommodate the disability of a person:

• reasonable adjustments are made to the terms or conditions of employment; and
• the person consents to the adjustments.

Recommendation 36

Include “sexuality” as a ground of discrimination to be defined as heterosexuality, homosexuality, lesbianism and bisexuality.

Draft Anti-Discrimination Bill 1999: cl 16(1)(e), 18(1)

Recommendation 37

Repeal the compulsory retirement provisions and integrate them with the provisions relating to age discrimination.

Draft Anti-Discrimination Bill 1999: cl 31, 33

Recommendation 38

Include religion as a ground of discrimination and define it as follows:

• “Religion” includes both religious beliefs and practices which do not contravene the criminal law.
• “Religious practice” means a practice related to the holding of a religious belief. This may include communal practices such as membership or association with a particular religious institution or church, or a ritual, custom or observance related to the holding of a religious belief.
• “Religion” includes the traditional spiritual beliefs and practices of Indigenous Australians and Indigenous people from other countries.

Recommendation 39

Include political opinion as a ground of discrimination and define it as follows:

“political opinion” means a belief or opinion concerning:

(a)the nature and purpose of the state, or

(b)the distribution and use of state power, or

(c)interactions between the state and individuals, bodies or groups in the community.

Draft Anti-Discrimination Bill 1999: cl 16(1)(g), 18(1)

Recommendation 40

Include carer responsibilities as a ground of discrimination in the area of employment.

Draft Anti-Discrimination Bill 1999: cl 16(1)(j), 19

Recommendation 41

Carer responsibilities should be defined as responsibilities to care for or support another person in a significant relationship involving dependency, commitment, care or support.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Recommendation 42

“Dependency” includes financial, physical or emotional reliance.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Chapter 6: Exceptions and exemptions

Recommendation 43

Repeal s 54 (general exception for acts done under statutory authority) with effect from 12 months after the commencement of the new Act.

Draft Anti-Discrimination Bill 1999: cl 63

Recommendation 44

All new legislation should be scrutinised to ensure compliance with the ADA.

Recommendation 45

Replace s 55 (general exception for charities) with an exception covering the provision of goods or disposal of property by inter vivos gift or by will to a specific recipient or recipients.

Draft Anti-Discrimination Bill 1999: cl 61

Recommendation 46

Amend s 56 (general exception for religious bodies) to:

• refer to the religious personnel of all faiths;
• provide that the exception only covers positions requiring a commitment to the tenets of the particular religion concerned; and
• repeal s 56(d).

Recommendation 47

Repeal s 57 (general exception for voluntary bodies).

Recommendation 48

Repeal s 59 (general exception for establishments providing housing accommodation for aged persons).

Recommendation 49

Insert a general exception for special measures.

Draft Anti-Discrimination Bill 1999: cl 68

Recommendation 50

Retain power to grant exemptions but amend to provide that:

• the power to grant an exemption be vested in President of the ADB;
• the President be required to consider specified criteria listed in exercising such power;
• the public be notified in a specified manner of the existence of an exemption;
• the granting of the exemption and any conditions which may apply should be subject to review by the ADT at the request of any person having sufficient interest in the existence or absence of the exemption.

Recommendation 51

Repeal s 126A (exemption for special needs programs and activities).

Recommendation 52

Repeal s 20A(3) and (4), but permit a club which operates principally to prevent or reduce disadvantage suffered by people of a particular cultural identity or to preserve a minority culture, to exclude applicants for membership who are not members of that cultural identity.

Draft Anti-Discrimination Bill 1999: cl 55

Recommendation 53

Repeal s 22 (exception for sport in relation to the ground of race).

Recommendation 54

Repeal s 15 (exception for employment intended to provide training in skills to be exercised outside New South Wales) and s 16 (exception for employment on ship or aircraft).

Recommendation 55

Include in the genuine occupational qualification exception in respect of employment a requirement that the employer act in good faith.

Draft Anti-Discrimination Bill 1999: cl 28(6)

Recommendation 56

In relation to the genuine occupational qualification exception, repeal s 31(2)(h) and (i).

Recommendation 57

In relation to the genuine occupational qualification exception, repeal s 31(3) and 31(4).

Recommendation 58

• Limit the exception in relation to education on the ground of sex in s 31A(3)(b) to primary schools (including pre-schools, but not child care centres) and secondary schools in relation to admission.

• Continue to provide a general exception at all levels for residential accommodation which is segregated on the basis of sex.

Recommendation 59

Repeal s 34A(3) in relation to single sex clubs.

Recommendation 60

Limit the exception for sport in relation to sex discrimination consistently with the SDA criteria of strength, stamina and physique of competitors.

Draft Anti-Discrimination Bill 1999: cl 56(3)

Recommendation 61

Replace s 36 in relation to the exception for superannuation on the ground of sex with an exception in relation to existing funds in the same terms as the SDA.

Draft Anti-Discrimination Bill 1999: cl 39

Recommendation 62

Replace s 37 in relation to the exception for insurance on the ground of sex with an exception in similar terms to s 41 of the SDA and which requires the insurer to justify discriminatory terms.

Draft Anti-Discrimination Bill 1999: cl 37

Recommendation 63

Amend s 46 regarding the employment of a married couple to provide that the exception only applies where there is a reasonably grounded need and to substitute the requirement that the couple be a married couple to that the couple be in “a bona fide domestic relationship”.

Draft Anti-Discrimination Bill 1999: cl 29

Recommendation 64

Repeal s 49 in relation to the exception for superannuation on the ground of marital status.

Recommendation 65

Insert a saving provision allowing existing funds to retain provisions which discriminate on the ground of domestic status provided the scheme is closed and existing members have been offered an option to transfer to a non-discriminatory scheme.

Draft Anti-Discrimination Bill 1999: cl 39, 40

Recommendation 66

Provide a public health exception for an act where:

• the disability of a person concerned involves a condition which is transmissible in the circumstances which may arise if the act is not done;
• the act is done on the basis of medical or other expert opinion on which it is reasonable to rely in the circumstances; and
• the measures taken are not disproportionate to the risks involved.

Draft Anti-Discrimination Bill 1999: cl 67

Recommendation 67

Repeal s 49L(3)(b) in relation to the exception applicable to educational institutions conducted solely for students with a particular disability.

Recommendation 68

Repeal s 49R (exception for sport on the ground of disability).

Recommendation 69

Extend the unjustifiable hardship exception in s 49O(5) in relation to the provision of benefits by a club to apply to all aspects of the prohibition in s 49O(2).

Draft Anti-Discrimination Bill 1999: cl 14, 52

Recommendation 70

Provide a general exception to the ground of age where an act is necessary to comply with another Act, regulation or other statutory instrument.

Draft Anti-Discrimination Bill 1999: cl 65

Recommendation 71

Extend the exception in s 49ZYG(2) to allow qualifying bodies to require groups identified by age to undergo differential requirements for renewal or extension of the relevant authority or qualification.

Draft Anti-Discrimination Bill 1999: cl 34

Recommendation 72

Amend s 49ZYI(3) in relation to junior employees by stating that the section ceases to operate in December 2000.

Draft Anti-Discrimination Bill 1999: cl 32

Recommendation 73

Repeal the regulation making power regarding the genuine occupational qualification exception on the ground of age in s 49ZYJ(3) and 49ZYJ(4).

Recommendation 74

Provide an exception in relation to age discrimination in relation to:

• the provision of educational services up to and including secondary schooling; [Draft Anti-Discrimination Bill 1999: cl 45(a)]
• the provision of goods or services at concessional rates based on age; [Draft Anti-Discrimination Bill 1999: cl 38]
• the imposition of a minimum age requirement on a particular educational program and quotas in relation to students of different ages. [Draft Anti-Discrimination Bill 1999: cl 45(c)]

Draft Anti-Discrimination Bill 1999: cl 69

Recommendation 75

Repeal s 49ZYN(2) and 49ZYN(3) in relation to the provision of goods and services on the ground of age.

Recommendation 76

Repeal s 49ZYO(3) in relation to the exception for age based accommodation.

Recommendation 77

Repeal s 49ZYR in relation to the exception for age specific special needs programs and activities.

Recommendation 78

Repeal s 49ZYV in relation to the exception for age based safety procedures.

Recommendation 79

Amend s 49ZYW in relation to the exception for age based sport to provide that it applies only to competitive sporting activities, where the strength, stamina or physique of the competitors is relevant.

Draft Anti-Discrimination Bill 1999: cl 54(3)

Recommendation 80

Repeal s 38Q in relation to the exception for superannuation on the ground of transgender status.

Recommendation 81

The exception applicable to transgender persons for participation in sporting activities in s 38P should be consistent with the exception permitted in relation to sex generally.

Draft Anti-Discrimination Bill 1999: cl 56

Recommendation 82

Provide an exception to discrimination on the ground of political opinion in relation to political and local government employment.

Draft Anti-Discrimination Bill 1999: cl 30

Recommendation 83

Provide an exception to discrimination on the ground of political opinion in relation to clubs established for persons of a particular political persuasion.

Draft Anti-Discrimination Bill 1999: cl 57

Recommendation 84

Provide an exception to discrimination on the ground of religion on the basis of a genuine occupational qualification.

Draft Anti-Discrimination Bill 1999: cl 28(5)

Recommendation 85

Provide an exception to discrimination on the ground of religion in relation to admission to educational institutions established for particular religious groups.

Draft Anti-Discrimination Bill 1999: cl 44

Recommendation 86

Provide an exception to discrimination on the ground of religion in relation to clubs established for persons of a particular religion or belief.

Draft Anti-Discrimination Bill 1999: cl 58

Recommendation 87

Provide an exception to discrimination on the ground of religion in relation to accommodation established for religious purposes, similar to that contained in the Victorian and Queensland legislation.

Draft Anti-Discrimination Bill 1999: cl 51(2)

Recommendation 88

An exception to discrimination on the ground of religion in relation to access to sites of religious significance is supported but is covered by the special measures exception.

Draft Anti-Discrimination Bill 1999: cl 68

Chapter 7: Other unlawful conduct

Recommendation 89

Amend the current definition of sexual harassment to make specific reference to the need to take account of the pertinent characteristics of the victim.

Draft Anti-Discrimination Bill 1999: cl 71

Recommendation 90

The prohibition of sexual harassment should extend to all areas of discrimination, including the new areas proposed in Chapter Four.

Draft Anti-Discrimination Bill 1999: cl 72-81

Recommendation 91

The exception currently applicable to sexual harassment in relation to accommodation in a private household should be repealed.

Recommendation 92

The prohibition on vilification in the ADA should not be limited by reference to “the public” but by reference to a “public communication”.

Draft Anti-Discrimination Bill 1999: cl 91

Recommendation 93

Provide expressly that proof of specific intention to incite is not required for establishing vilification.

Draft Anti-Discrimination Bill 1999: cl 91(3)

Recommendation 94

Provide that the capacity to incite should be assessed in the circumstances of the particular case and without assuming that the audience is either malevolently inclined or free from susceptibility to prejudice.

Draft Anti-Discrimination Bill 1999: cl 91(4)

Recommendation 95

The ADB should have express power to formulate guidelines including guidelines as to what constitutes a “fair report” under the exception to the vilification provisions.

Draft Anti-Discrimination Bill 1999: cl 128(1)(c), 129(1)(c)

Recommendation 96

Remove s 20D from the ADA and relocate the offence of serious vilification in the Crimes Act 1900 (NSW).

Draft Anti-Discrimination Bill 1999: cl 92(2) and Crimes Amendment (Serious Vilification) Bill 1999

Recommendation 97

Provide the President with the power to refer a matter to the Director of Public Prosecutions where he or she is of the view that it may constitute the offence of “serious” vilification.

Draft Anti-Discrimination Bill 1999: cl 92 (1)

Recommendation 98

Extend the victimisation provision in the ADA to cover the situation where the respondent “threatens” to subject the complainant to any detriment.

Draft Anti-Discrimination Bill 1999: cl 83(1)

Recommendation 99

Provide that where an act of victimisation is done for two or more reasons, it is sufficient if one of those reasons is a significant reason.

Draft Anti-Discrimination Bill 1999: cl 83(3)

Recommendation 100

In relation to vicarious liability under the ADA, the only available defence should be where the employer took all “reasonable steps” to prevent the relevant conduct.

Draft Anti-Discrimination Bill 1999: cl 85(2)

Part Three

Chapter 8: The complaint process

Recommendation 101

A complaint may be lodged by a legal practitioner on behalf of a complainant.

Draft Anti-Discrimination Bill 1999: cl 94(4)

Recommendation 102

• A person who is a member of a class affected (or likely to be affected) by the conduct of the respondent should be able to lodge a representative complaint.

• In relation to such a representative complaint, any settlement or resolution should only be binding upon the class members if the matter has been approved by the Tribunal.

Recommendation 103

A complaint may be lodged by a parent or guardian on behalf of a child or other person who lacks the capacity to give informed consent. Consent of the child or disabled person is not to be required.

Draft Anti-Discrimination Bill 1999: cl 94(5),(7)

Recommendation 104

In the case of a disabled person who does have the capacity to give informed consent, a complaint may be lodged on behalf of that person, by an agent who may be, but need not be a lawyer.

Draft Anti-Discrimination Bill 1999: cl 94(6)

Recommendation 105

The President (or an officer of the ADB) should be required, if requested, to assist a complainant in formulating his or her complaint.

Draft Anti-Discrimination Bill 1999: cl 96

Recommendation 106

• A complainant need not establish a prima facie case in his or her original letter of complaint.

• A complaint as referred to the Tribunal should be defined as the original letter of complaint and any supporting documentation referred by the President to the Tribunal.

Recommendation 107

Subject to a discretion to extend the time limit where good cause is shown, a complaint should be lodged within 12 months of the relevant conduct. Where there has been a course of conduct, the limitation period should run from the time of the termination of the conduct.

Draft Anti-Discrimination Bill 1999: cl 98(3)

Recommendation 108

When deciding whether to accept a complaint outside the 12 month limitation period, the President should only consider the explanation for the delay and whether prejudice has been created and not the merits of the complaint.

Draft Anti-Discrimination Bill 1999: cl 98(4)

Recommendation 109

The President is required to determine whether a complaint is accepted or not.

Draft Anti-Discrimination Bill 1999: cl 98(1)

Recommendation 110

The President should be given power to:

• order a party or non-party to produce documents where they may be relevant to the investigation of the complaint; and
• order a party to supply information relevant to the carrying out of the functions of the President in investigating the complaint.

Recommendation 111

Non-compliance with a direction of the President should constitute an offence under the ADA and the President should have the power to refer the matter directly to the Tribunal where the non-compliance is by a party and the other party so requests.

Draft Anti-Discrimination Bill 1999: cl 105

Recommendation 112

Where the President dismisses or declines to entertain a complaint for any reason, the complainant should be able to require the President to refer the complaint to the Tribunal.

Draft Anti-Discrimination Bill 1999: cl 111(6)

Recommendation 113

In relation to the investigation of a complaint:

• The President should be required to determine within 28 days of lodgement whether a complaint is to be accepted or not and should notify parties of such acceptance within a further 28 days from the date of acceptance.

• The President should notify the parties at periods not exceeding 60 days of the steps taken for the purpose of the investigation if no contact is otherwise made during that period.

• The President should be empowered to terminate the investigation or conciliation of a complaint where one or other of the parties is unco-operative and when the complainant appears to have abandoned the complaint.

Recommendation 114

The President should be able to delegate powers of conciliation but only to an officer who has not been responsible for the investigation of the complaint, except with the consent of the parties.

Draft Anti-Discrimination Bill 1999: cl 107

Recommendation 115

It should be an offence for an employee or agent of the ADB or the Tribunal to produce, disclose or communicate to any other person, including a court or tribunal, any information or document about the affairs of a person which is acquired by the employee or agent in the course of duty unless it is necessary to do so for the purposes of performing a function of, or prosecuting an offence arising out of, the ADA.

Draft Anti-Discrimination Bill 1999: cl 139

Recommendation 116

The ADB should be listed as an exempt body under the FOI Act in relation to its complaint handling functions.

Recommendation 117

An agreement reached pursuant to conciliation should be enforceable by the President.

Draft Anti-Discrimination Bill 1999: cl 115

Recommendation 118

The President may decide not to proceed with a complaint where:

• the dispute has been settled or resolved by agreement between the parties;

• the complainant, or person on whose behalf the complaint was made, does not wish to proceed with the complaint; or

• the complainant has allowed the complaint to remain inactive for an extended period of time or abandoned the complaint.

Recommendation 119

A complaint which has been withdrawn or has lapsed under s 90A should be able to be pursued afresh provided the complainant shows good cause for the complaint to be newly pursued and the pursuit takes place within a reasonable period of the withdrawal or lapsing of the complaint.

Draft Anti-Discrimination Bill 1999: cl 110(2)

Recommendation 120

In relation to the resolution of complaints:

• Where a complaint remains unresolved 12 months after the date of lodgement of the complaint, either party to the complaint should be able to make a request in writing to the President to refer the matter to the Tribunal.
• The President should be required to refer the complaint to the Tribunal within 28 days of such a request unless the President believes the complaint can be conciliated.
• Where the complainant objects to the referral of the complaint and the President is satisfied that the complaint cannot be conciliated, the complaint should lapse.

Recommendation 121

In relation to the referral of complaints by the President:

• The President should have the discretion to refer the complaint to the Tribunal at any stage, whether or not investigation and conciliation have taken place.
• The President should be required to notify both parties of an intention to refer the complaint and should not refer a complaint without the consent of the complainant except in exceptional circumstances.

Recommendation 122

• The President should have the power to permit the amendment of the complaint at any stage.

• The President should notify both parties of any amendment in writing.

• Where an amendment is made to a complaint it should be identified in the President’s referral.

• The President should be empowered to deal with more than one complaint in a single investigation.

Recommendation 123

The referral should be limited to the written complaint, including any amendments and additional material identifying the issues in dispute.

Draft Anti-Discrimination Bill 1999: cl 116(10)

Recommendation 124

Amend s 123 to allow a party in proceedings in another jurisdiction to rely on a contravention of the Act where:

• the claim is relied upon by way of defence or set off to proceedings brought by another; or
• the claim is associated with a bona fide claim not based on the ADA and which can only be brought in another court or tribunal.

Recommendation 125

• Section 95 should be amended to provide that the Minister may refer a matter to the President for investigation.
• The President should be given the power to make recommendations to the Minister that a particular matter be referred for investigation.

Recommendation 126

Factors which the President should be able to consider when deciding whether to initiate such an inquiry are:

• the seriousness of the suspected discrimination;
• the number of persons who may be affected;
• whether the conduct is likely to be continuing and if not, the period which may have elapsed since the conduct occurred;
• the likelihood of a complaint being made;
• if a complaint has been made, the ability of the complainant to conduct the matter effectively; and
• the public interest in the investigation of the matter.

Recommendation 127

The ADB should be given the power to formulate non-binding Codes of Practice across all areas covered by the ADA. Such Codes could be developed in conjunction with relevant industries and interested parties.

Draft Anti-Discrimination Bill 1999: cl 130

Chapter 9: Tribunal proceedings

Recommendation 128

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

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.

Recommendation 131

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

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.

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”.

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).

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.

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).

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.

Recommendation 139

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

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.

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.

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.

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.

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.

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.

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.

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.

10. Remedies

Recommendation 148

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

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

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

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

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

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

Recommendation 152

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

Recommendation 153

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

Recommendation 154

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

Recommendation 155

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

Recommendation 156

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

Recommendation 157

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

Recommendation 158

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

Recommendation 159

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

Recommendation 160

The President of the ADB should have power:

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

Recommendation 161

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