<em>You need to check the relevant legislation in your State or Territory, as the rules are different in each jurisdiction.

1. Resolving the discrimination informally.

• Sometimes you can resolve a problem without making an official complaint to an anti-discrimination commission. This is the cheapest, quickest and most satisfying option.
• If you believe you have been discriminated against you can:
  • tell the person that their behaviour is unacceptable and must stop; or
  • find another suitable person to discuss the issue with. This could be:
    • a manager;
    • someone from Human Resources in your firm; or
    • a Principal or Head of an educational institution.
  • Tell them clearly what has happened and ask them what they will do to resolve the complaint.
• Businesses, work places and education providers often do not want the negative consequences associated with a discrimination complaint against them. They will often try and settle without a formal complaint being made.
  • Make your approach in a calm, professional manner. Outline your complaint and ways you believe it can be resolved.
• If you are the subject of a complaint and receive a letter addressing your behaviour and possible resolutions consider the letter carefully. It is always best to try and resolve the issue before an official complaint is made.
  • Talk to the complainant about your ideas for resolving the issue.

2. Formal complaints overview.

• Each jurisdiction has:
  • its own legislation,
  • its own mechanism for making complaints,
  • its own tribunals and
  • its own rules about when an appeal can be made to a court.
• The basic mechanisms for all states and territories and the Commonwealth are set out below including links to the relevant commissions and tribunals.
• Appeal mechanisms are very complex and have strict time limits. If you are unhappy with a tribunal’s decision you should immediately seek legal advice if you have not done so already.
• Australian Capital Territory:
  • Legislation:
    • Anti-Discrimination Act 1991 (ACT); and
    • Human Rights Commission Act 2005 (ACT).
  • The first complaint should be made to the ACT Human Rights and Discrimination Commissioner;
    • http://www.hrc.act.gov.au/discrimination/
  • if conciliation is unsuccessful you can take the complaint to the ACT Civil and Administrative Tribunal (ACAT);
    • http://www.acat.act.gov.au/discrimination/discrimination
  • if you are unhappy with the tribunal’s decision you can request a review of the decision by an ACAT appeal panel on a question of fact or law.
• Queensland:
  • Legislation:
    • Anti-Discrimination Act 1991 (Qld).
  • The first complaint should be made to the Anti-Discrimination Commission Queensland (ADCQ);
    • http://www.adcq.qld.gov.au/
  • if conciliation is unsuccessful you can take the complaint to the Queensland Civil and Administrative Tribunal (QCAT);
    • http://www.qcat.qld.gov.au/matter-types/anti-discrimination-matters
  • if you are unhappy with the tribunal’s decision you may be able to request a review of the decision by an appeal panel of the tribunal or the QLD Court of Appeal.
• Northern Territory:
  • Legislation:
    • Anti-Discrimination Act 1996 (NT).
  • The first complaint should be made to the NT Anti-Discrimination Commission;
    • http://www.adc.nt.gov.au/
  • if conciliation is unsuccessful the Anti-Discrimination Commissioner will conduct a hearing;
  • after the hearing either party can appeal to the NT Local Court against the decision made by the Commissioner; and
  • if you are unhappy with the Local Court decision you can appeal to the NT Supreme Court.
• South Australia:
  • Legislation:
    • Equal Opportunity Act 1984 (SA);
    • Racial Vilification Act 1984 (SA);
    • Civil Liability Act 1936 (SA); and
    • Whistleblower’s Protection Act 1993 (SA).
  • The first complaint should be made to the Equal Opportunity Commission;
    • http://www.eoc.sa.gov.au/
  • if conciliation is unsuccessful you can take the complaint to the Equal Opportunity Tribunal;
    • http://www.courts.sa.gov.au/OurCourts/DistrictCourt/Pages/Equal-Opportunity-Tribunal.aspx
  • if you are unhappy with the tribunal’s decision you can appeal to the SA Supreme Court.
• Western Australia:
  • Legislation:
    • Equal Opportunity Act 1984 (WA).
  • The first complaint should be made to the WA Equal Opportunity Commission;
    • http://www.eoc.wa.gov.au/Index.aspx
  • if conciliation is unsuccessful the Commissioner will review the file and either dismiss the complaint or refer you to the State Administrative Tribunal;
    • http://www.sat.justice.wa.gov.au/E/equal_opportunity.aspx
    • if the Commissioner dismisses your complaint you have 21 days to notify the Commissioner in writing that you require the matter to be referred to the tribunal;
  • if you are unhappy with the tribunal’s decision you may be able to appeal to the WA Court of Appeal or the Supreme Court (depending on the constitution of the tribunal) but only on a question of law.
• New South Wales:
  • Legislation:
    • Anti-Discrimination Act 1977 (NSW).
  • The first complaint should be made to the Anti-Discrimination Board of NSW;
    • http://www.antidiscrimination.justice.nsw.gov.au/adb/adb1_index.html
  • If conciliation is unsuccessful you can ask for the President to send the matter to the NSW Civil and Administrative Tribunal (NCAT);
    • http://www.ncat.nsw.gov.au/ncat/administrative_equal_opp.html
  • if you are unhappy with the tribunal’s decision you may be able to request an internal appeal from the tribunal’s appeal panel on questions of law. You may also request leave (permission) to appeal against the merits of the decision.
• Victoria:
  • Legislation:
    • Equal Opportunity Act 2010 (Vic);
    • Racial and Religious Tolerance Act 2001 (Vic)
    • Charter of Human Rights and Responsibilities 2006 (Vic)
  • the first complaint should be made to the Victorian Equal Opportunity and Human Rights Commission;
    • http://www.humanrightscommission.vic.gov.au/index.php/discrimination
  • if conciliation is unsuccessful or you want to go straight to a tribunal you can take the complaint to the Victorian Civil and Administrative Tribunal (VCAT);
    • http://www.vcat.vic.gov.au/disputes/equal-opportunity
  • if you are unhappy with the tribunal’s decision you may seek leave (permission) to appeal to the Victorian Supreme Court or the Court of Appeal depending on the constitution of the tribunal. Appeals can only be made on a question of law.
• Tasmania:
  • Legislation:
    • Anti-Discrimination Act 1998 (Tas).
  • The first complaint should be made to the Anti-Discrimination Commission;
    • http://www.antidiscrimination.tas.gov.au/
  • if conciliation is unsuccessful the Commissioner may refer the complaint to the Anti-Discrimination Tribunal;
    • http://www.magistratescourt.tas.gov.au/divisions/Anti-Discrimination_Tribunal
  • if you are unhappy with the tribunal’s decision you may be able to appeal to the Tasmanian Supreme Court.
• Commonwealth:
  • Legislation:
    • Age Discrimination Act 2004 (Cth);
    • Australian Human Rights Commission Act 1986 (Cth);
    • Disability Discrimination Act 1992 (Cth);
    • Racial Discrimination Act 1975 (Cth); and
    • Sex Discrimination Act 1984 (Cth).
  • The first complaint should be made to the Australian Human Rights Commission;
    • https://www.humanrights.gov.au/complaints-information
  • if conciliation is unsuccessful the President of the Commission will terminate the complaint. You can then commence proceedings in the Federal Court or Federal Magistrate’s Court;
  • if you are unhappy with the court or magistrate’s decision you may be able to appeal to the Full Bench of the Federal Court.

2(a) Making a written complaint.

• Decide whether to make a complaint to your state or territory commission or the Australian Human Rights Commission. This will depend on the facts of your situation and you may need legal advice to help you make the decision.
• Complaints need to be made in writing. Most state and territory commissions require you to use one of their complaint forms. Complaint forms can usually be found on the commission’s website linked in our overview guide.
• Complaints need to include an:
  • allegation (this is the incident or act of discrimination);
  • a ground (this is the basis of the discrimination such as race or gender); and an
  • area (this is the part of your life where the discrimination affected you such as education, work or the provision of goods and services).
• In your complaint you should include information about:
  • what happened;
  • when it happened, giving exact dates if possible;
  • where it happened;
  • who it happened to, who did it and who saw it happen (if anyone);
  • what effect it had on you such as losing your job, being unable to receive a service or receiving less favourable treatment; and
  • what impact it has had on you personally.
• These tips about document preparation will help the commission understand your complaint:
  • if you have any evidence use the original and keep a copy for your personal file;
  • try not to be repetitive in your complaint. Say something clearly and only say it once;
  • ask someone you know who is fair and impartial to read your complaint and ask for their opinion. You are so familiar with a situation it can be easy to forget to explain the context or setting. A neutral person will tell you whether you have accidentally missed something out or have not explained something in the most effective manner; and
  • get someone to proof read your complaint when you feel that it is finished. If you do not have anyone to ask it can be useful to print it out and read it carefully yourself.

2(b) Responding to a complaint.

• If you have been complained about you will receive a letter from the commission notifying you of the complaint. They will also provide you with a copy of the complaint.
• You can either respond to the complaint in writing or just wait until the conciliation.
• If you choose to respond in writing:
  • explain your side of the story especially if you think you acted reasonably in the circumstances;
  • address the complainant’s suggestions for resolving the matter. You can either accept, reject or negotiate the terms they have suggested;
  • make sure you include all your contact details on the response;
  • send your response to the complainant’s address which will have been provided to you by the commission and send a copy to the commission;
  • confirm to the commission that you have sent your response to the complainant; and
  • if you are not the sole respondent send a copy of your response to all the other respondents. Their details will have been provided to you by the commission

3. Conciliation at a commission.

• The commission will organise a conciliation for the parties to attend to discuss the matter.
• What happens in a conciliation may change slightly depending on which state or territory you are in.
• Conciliation is a separate and independent process from the complaint procedure.
• If conciliation fails and you go back to the complaints procedure anything that you discussed in the conciliation cannot be used in the complaints procedure unless both parties explicitly agree.
• Parties will meet with a conciliator. This can be face to face, over the phone or via letters or emails.
• Parties can bring a support person or a lawyer to conciliation but only if the commission agrees. Someone else such as a lawyer cannot represent you in the conciliation unless the commission believes that it is necessary.
• The conciliator will meet privately with each party beforehand to make sure you both understand the aims and process of conciliation.
• You can call breaks during the conciliation whenever you want to have thinking time. You may also need to postpone the conciliation if you need a larger amount of thinking time such as time to do research.
• Conciliation is not compulsory. However a person may be instructed by the commission to attend a compulsory conference. If they don’t attend they may be found guilty of an offence.
• Conciliation is quicker and cheaper than going to a court or tribunal.
• No binding decision will be made at conciliation and there will be no decision about who is right or wrong.
• If an agreement is reached between you and the other party it will be written down and both parties given a copy. In most jurisdictions another copy is given to the state or territory tribunal. It then becomes legally enforceable as though it was a decision of the tribunal.
• Think about whether you want to keep your agreement confidential. Also think about whether you want it to admit any wrongdoing. For example the agreement can read “without any admissions of liability the respondent agrees to…”
• The following tips will help you get the most out if a conciliation:
  • you should prepare for conciliation by thinking about what you require in order to resolve the matter. It is better to have a few possible options you could agree to rather than just one;
  • if you are a big organization send someone who is a good communicator. Make sure they are familiar with the situation and do not have bad blood with the other party; and
  • if you are not feeling confident a support person can help you interpret information and can be useful to discuss issues with in the breaks.
• During the conciliation:
  • only speak one at a time;
  • treat the other party and the conciliator with respect;
  • do not raise voice your voice or shout;
  • abusive language and aggressive behaviour is unacceptable;
  • you are not permitted to cross-examine the other party;
  • do not make personal attacks;
  • remain calm and be open to ideas for resolving the dispute;
  • respondents should show they are listening to the complainant and taking their complaint seriously; and
  • if you are the respondent show the complainant what changes you have made since the incident. Some things that may help include:
    • an apology,
    • evidence of new policies,
    • training about appropriate behavior, and
    • offers of compensation.

4. Tribunal proceedings.

The following guide is about ACAT. That is the ACT Tribunal. All other state and territory tribunals will function in similar ways. However there may be differences.

• After a complaint is referred to ACAT it gets listed for a directions hearing.
• This is a brief hearing which determines what needs to be prepared before the actual hearing.
• At the directions hearing, the Member (tribunal judge) may decide that the issue can go to mediation. This is very similar to conciliation so please read the tips in the ‘conciliation’ section.
• A date for the hearing will be set and you will be given time to prepare whatever documents you discussed in the directions hearing.
• After the hearing the Member will decide whether the complaint has been substantiated. That means there was enough evidence to show that it happened. If not the complaint will be closed.
• If the Member finds there was unlawful discrimination they may make the following decisions:

• an order that the person complained about must not repeat or continue the unlawful act;
• an order that the person complained about must do a particular act or make amends for any loss or damage suffered by the complainant because of the unlawful act; or
• an order that the person complained about must pay a stated amount to the complainant as compensation for any loss or damage suffered because of the unlawful act.

• The following tips will help you understand what to expect at the tribunal:

• you are encouraged to represent yourself instead of having a lawyer speak for you;
• tribunal proceedings are a bit like having a conversation with an impartial professional;
• tribunals are far less formal than courts. However you must still behave professionally and treat the Member with respect; and
• tribunal decisions are binding and can be enforced.

• The President of the tribunal may terminate your complaint if the President is satisfied that:
  • the act complained of was not unlawful,
  • the complaint is misconceived or lacking in substance or
  • another more appropriate remedy is reasonably available.
• If your complaint is terminated you may be able appeal to an appeal panel of the tribunal or the court. However you should seek legal advice before taking this step.

1. Further appeals.

• If your complaint is terminated or you are unhappy with a tribunal’s decision you may have an avenue of appeal to a court. Your avenues for appeal and the time limitations for doing so will depend on the jurisdiction where you first made your complaint. You should contact a lawyer as soon as possible to ensure that you do not miss any deadlines.