Balancing the Act: ADCQ newsletter -
What happens when a complaint is made under the Act?
This article first appeared in Balancing the Act, Issue 29, Summer 2010 page 4.
The Anti-Discrimination Commission Queensland (the Commission) receives 800 to 900 complaints each year. Have you ever wondered what happens to them?
The Anti-Discrimination Act 1991 (the Act) says it is against the law in Queensland to discriminate against, sexually harass, publicly vilify or victimise people in certain circumstances. It can also be unlawful to ask unnecessary questions. However, not all discrimination is unlawful.
The Commission has no power to take action to address discrimination or other unlawful behaviour unless the person directly affected by the unfair treatment makes a written complaint. A bystander, no matter how interested in the event, cannot make a complaint about something they have witnessed.
A complaint to the Commission goes through up to 3 stages – assessment, conciliation and post-conference stages. These processes are designed to sort out which complaints are accepted as coming within the Commission's jurisdiction under the Act, to try to resolve those complaints that can be dealt with and to give the complainant the opportunity to refer an unresolved complaint to the Queensland Civil and Administrative Tribunal (QCAT) for hearing and determination.
When a complaint is first received, the Commission assesses the complaint to see if it comes within the jurisdiction set out in the Act. The person complaining, referred to as the complainant, must provide enough details of what happened to show that the complaint is one that, if true, might be a breach of the Act.
If it is not within jurisdiction, the Commission will normally give the complainant an opportunity to provide more details or will refer them to another agency which can better assist. A complaint which is outside the Commission's jurisdiction does not go further than stage 1 and no further action can be taken.
In most cases, the persons and organisations who were complained about will not know that a complaint has been made against them. Persons and organisations about which complaints are made are not required to respond to a complaint unless it is within the jurisdiction of the Commission under the Act.
The Commission does not have the power to decide whether a complaint has merit, only to decide if it is within our jurisdiction. If it is within the Commission's jurisdiction to deal with, the focus turns to the second stage of the process - conciliation. About 60% of all complaints are accepted as coming within the Commission's jurisdiction and proceed to the conciliation stage.
The first step the Commission takes for accepted complaints, is to notify all the persons and organisations against whom allegations have been made, referred to as the respondents. In this way, respondents have an opportunity to know the allegations made against them and to respond. A respondent can choose to respond in writing or to respond orally at the conciliation conference which is usually set 4 to 6 weeks ahead. There are some advantages to waiting to respond at the conciliation conference, as the conference is conducted in private and nothing said in conciliation can be reported to QCAT, even if the complaint is not resolved.
All parties generally participate in the conciliation conference and have an opportunity to talk about the complaint from their perspective. The conciliator's role is to assist both the complainant and respondents to understand their rights and responsibilities under the Act and how the law may apply to the particular complaint. The conciliator will also decide who attends and who speaks at the conference. Support people and interpreters are generally allowed to attend, but advocates will only be allowed to attend if it is fair and will assist to resolve the complaint.
The overwhelming concern of the conciliator is to ensure the fairness of the process for all parties. The conciliator doesn't take sides, doesn't decide whether there has been a breach of the Act and doesn't decide what the parties should agree upon to settle the complaint. The conciliator does explain the law and processes, explore what may have occurred, point out strengths and weaknesses in each party's case, suggest options for settlement and assist the parties to understand each other's points of view.
Conciliation can be through a face to face meeting, shuttle negotiations or teleconference, depending on what is practical and fair. Parties can help the conciliator by telling them if they want the conference conducted in a particular way for any reason and should raise any concerns about the way the conference is being run in a private session with the conciliator during the conference.
With assistance from the Commission's conciliators, about 60% of accepted complaints are resolved without the need to go to QCAT.
If a complaint is not resolved at the conciliation conference it will move into the third and final stage of the Commission's process – the post-conference stage. Post-conference, the conciliator can continue to assist the parties to resolve their complaint if there is some real prospect of settlement. The conciliator will also review the complaint and give the complainant the opportunity to refer the complaint to QCAT if it remains unresolved. About 20% of complaints accepted as within jurisdiction, are referred to QCAT.
Once the complaint is referred to QCAT, the Commission's role is concluded and QCAT take on the more formal process of hearing and deciding the complaint. Parties are usually given another opportunity to conciliate their complaint at QCAT, and most complaints are finalised without the need for a formal hearing and determination.
Throughout the process the complainant retains the right to decide how far to take their complaint once it is accepted as within the Commission's jurisdiction to deal with. Through conciliation, all the parties retain control over the outcome of complaint.
The Commission's processes are a great opportunity to resolve complaints informally and quickly without a need for a hearing. The complaint resolution services of the Commission are free and private and are open to everyone who has an arguable complaint under the Act