The relevant law is set out in the Discrimination Act 1991 and in Division 4.2A of the Human Rights Commission Act 2005.
The ACT Civil & Administrative Tribunal Act 2008 and the rules and procedural directions made under that Act may also be relevant in a discrimination case.
Discrimination Complaints Generally
The Discrimination Act 1991 is designed to eliminate unlawful discrimination on the ground of sex, marital status, age, race, religious or political conviction, disability and other attributes. It seeks to promote equality, including equality of opportunity of all men and women. It attempts to achieve those objectives by making certain forms of discrimination, unlawful.
The tribunal is authorised to hear and determine complaints referred to it by the Human Rights and Discrimination Commissioner. The tribunal cannot consider a complaint unless it has been considered by the Commissioner first. The commissioner's office is part of the ACT Human Rights Commission.
The tribunal can also review a decision of the commissioner relating to an application for exemption from the provisions of the Discrimination Act 1991.
There is no filing fee for discrimination referrals.
When the Commissioner refers a complaint to the tribunal, the complaint will be listed as soon as possible for a directions hearing before a presidential member or the registrar. This is a brief hearing at which the tribunal considers with the parties, what work needs to be done to prepare the complaint for hearing. The tribunal will consider whether mediation is appropriate. The parties may be required to participate in mediation with a registered mediator appointed by the tribunal.
Directions may be made about documents that need to be filed or prepared for the hearing. For example, the applicant/complainant may be asked to give the tribunal and the other party a document that sets out the orders that the applicant would like the tribunal to make.
Further directions hearings are usually held after any mediation or when the parties have given the tribunal all the documents that are needed for a hearing. A hearing date is allocated when it is clear that the matter is ready to proceed.
The General President allocates a member of the tribunal to hear the complaint.
The parties to a tribunal proceeding in relation to a discrimination complaint are the original complainant and the person or entity complained about. The tribunal may join the Human Rights Commission as a party to the complaint.
Hearings are open to the public unless otherwise ordered by the tribunal. The tribunal can, either at the request of a party, or of its own motion, order the proceedings be conducted in private.
When the tribunal has completed a hearing, the tribunal can dismiss the complaint if it is satisfied that the complaint is frivolous or vexatious or that the complaint has not otherwise being substantiated.
If the tribunal is satisfied that the respondent has done something which constitutes unlawful discrimination, the tribunal can make one or more of the following orders:
- an order that the person complained about not repeat or continue the unlawful act;
- an order that the person complained about do a stated reasonable act or redress of any loss or damage suffered by a person because of the unlawful act;
- order that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered because of the unlawful act.
An application can be made to appeal a decision made by the tribunal on a question of fact or law to an appeal tribunal. The provisions of part 8 of the ACT Civil & Administrative Act 2008 apply.