Complaints and role of the Anti-Discrimination Commission

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What this fact sheet is about

A computer keyboard with the word 'Complaint' on one of the keysThis fact sheet explains the role of the Anti-Discrimination Commission in dealing with complaints. It includes case law on the requirements for a complaint, and the role of the Commission.

The Queensland Anti-Discrimination Act 1991 was enacted in recognition of the international human rights instruments, and to extend Commonwealth human rights legislation. The Anti-Discrimination Act provides a mechanism for seeking redress, and adjudication of alleged breaches of the human rights protected by the legislation.;

The first step to remedy a breach of the Anti-Discrimination Act is to make a complaint to the Commission. The Commission process focuses on resolution through conciliation, rather than deciding facts and/or issues in dispute. Unresolved complaints may be referred to a tribunal.

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Requirements for a complaint

In order for the Commission to have jurisdiction to deal with a complaint it must satisfy the threshold requirements set out in section 136 of the Anti-Discrimination Act . This requires a complaint to:

set out reasonably sufficient details to indicate an alleged contravention of the Act .

Features of a complaint include:

  • It must be in writing.
  • There must be an intention to complain.
  • It has to set out the facts clearly.
  • It is not sufficient to claim a breach of the Act without giving details of the facts (e.g. needs to say more than I was sexually harassed or The workplace discriminated against me ).
  • It is not a formal document.
  • It doesn't have to be like a court pleading .
  • It doesn't have to refer to the sections of the Act.
  • It doesn't have to state what the person making the complaint wants.

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Set out below are quotations from tribunal cases that give guidance about the features and requirements for a complaint.

Meaning of complaint

  • The expression complaint is not defined in the Act, but it appears to refer to an allegation made in compliance with s.136 of the Act that one or more persons or legal entities has or have contravened the Act.[1]
  • No pedantic approach should be made to the meaning of the ambit of a complaint made by a layperson to the Commission.[2]
  • It is not sufficient that a complaint simply allege a contravention of the Act. An intention to complain is also required.[3]

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Complaint is not a pleading

  • A complaint is not required to be in the form of a pleading. It does not have to contain every detail relied upon by the complainant.[4]
  • A written complaint does not serve the purposes of a formal pleading. Rather, the purpose of a written complaint is to identify (directly or indirectly) an alleged contravention of the Act or the regulation. The President's jurisdiction to investigate and the Tribunal's jurisdiction to hold an nquiry depend upon the claimed occurrence of what amounts to a contravention of the Act or the regulations, and that claim must be apparent on the face of the written complaint.[5]
  • …while a written complaint must enable the identification of an alleged contravention of the Act, it need not allege the relevant facts with particularity.[6]

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No need to state remedy sought or provisions of the Act

  • There is clearly no need for a complainant, in an initial complaint lodged with the Commissioner, to specifically plead details of the remedy sought. Indeed, it is unlikely that at that stage, particularly where the complainant is not legally represented, that the remedy or particular provisions of the Act upon which it was based, would be known to the complainant.[7]

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Role of the Commission

When the Commission receives a complaint, it assesses whether the complaint meets the statutory threshold set out in section 136 of the Anti-Discrimination Act. In deciding whether a complaint indicates an alleged contravention of the Act, the Commission is required to consider the allegations at face value; that is, the complaint is assessed on the basis the person making the complaint is able to prove the facts that they allege.

A decision to accept a complaint means the Commission has assessed that at least one of the allegations in the complaint indicates an alleged contravention of the Act. It also means the whole complaint is accepted – the only exception is where the complaint includes out-of-time allegations, and the Commission is not satisfied that the complainant has shown good cause to accept the out-of-time allegations.

The assessment of the complaint by the Commission does not limit the complaint, and the tribunal will not be bound by the Commission's characterisation of the complaint.[8]

If a complaint is accepted, the Commission's function is to assist the complaint parties to try to resolve the complaint through conciliation. The Commission does not assess evidence in the sense of determining disputes of fact, credibility, or admissibility of evidence. That is the role of the tribunal.

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Case law relevant the role of the Commission

  • Contested facts should be fully considered by the evidence of the parties and witnesses and not dealt with in a summary manner.[9]
  • It is antithesis to being accessible for QCAT to dismiss a proceeding without a hearing on its merits when the case for dismissal is based on a technical construction of the evidence and not on evidence tested by questioning at a hearing.[10]

Endnotes

[1] L v Legal Aid Queensland [2006] QADT 5 (2 March 2006) at para 23 (Member Rangiah).

[2] Rhodes v BI Gaming t/a Conrad Jupitors Casino [2003] QADT 10 (4 August 2003) (Member Jackson QC).

[3] Ozarko v Tan [2001] QADT 3 (2 May 2001) (Member Wyvill QC).

[4] Beanland v State of Queensland [2007] QADT 16 (13 June 2007) at para 21 (Member Boddice SC).

[5] Commissioner of Fire Brigades v Lavery (EOD) [2003] NSWADTAP 60 (26 November 2003).

[6] Langley v Niland (1981) 2 NSWLR 104 at 107-108.

[7] Quartermaine v Picard and Queensland Department of Health [2000] QADT 16 (6 November 2000) (Member Pagani).

[8] See MM v State of Queensland [2014] QCAT 478; Yohan v Queensland Basketball Incorporated [2010] QCAT 459; El Mansy v Lane and Brisbane City Council [2009] QADT 12; Wilson v Lawson [2008] QADT 27; Black & White (Quick Services (Taxis Ltd v Sailor & Anor [2008] QSC 77.

[9] Craig v Ravenshoe Community Centre Inc. [2012] QCAT 67 (20 February 2012) from [66] to [72] (Member Clifford).

[10] Aigner v State of Queensland and Anor [2012] QCAT 397 (21 August 2012) at [8] (Senior Member Endicott).

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