by Rania J | March 1, 2012 3:33 am
If you decide to make a complaint of disability discrimination, you will need to formally lodge your complaint with either the:
The complaint processes of these two institutions are similar. However, there are significant differences, which must be noted when choosing a path to lodge your complaint. These are outlined below.
Step One: Lodging a Written Complaint
First of all, you will need to lodge a written complaint. Forms can be downloaded from the Anti-Discrimination Board or Australian Human Rights Commission. There is no requirement that you use this form when making your complaint.
You should make your complaint as precise and detailed as possible. Some of the information to include is:
Step Two: Investigating the Complaint
Your complaint will be assigned to an officer at the ADB or AHRC to investigate. This process may take a considerable amount of time. The investigating officer may need to contact you, and the person about whom the complaint was made, in order to get their response.
The President of the ADB or AHRC may then decide to stop the investigation if it is not covered by either the ADA or DDA. If it is covered, they will begin to organise a date to conciliate the complaint.
Step Three: Conciliating the Complaint
Conciliation is a meeting between yourself and the person you have complained about, known as the ‘respondent’. Conciliation provides you with the opportunity to resolve the matter in an informal environment, without the stress or cost associated with court or tribunal hearings.
An ADB or AHRC conciliator will run the meeting and play an independent role in helping the parties come to a resolution. Their role is to facilitate an agreeable outcome for both parties. This will be achieved by allowing each party to express their concerns and suggest ways in which the situation can be remedied.
Step Four: Terminating the Complaint
If you are able to reach a satisfactory agreement with the respondent, then the complaint process ends here. You will probably be asked to sign a deed outlining the agreement and the complaint will be terminated.
If your complaint cannot be resolved at conciliation, the next step is to take your complaint to the Administrative Decisions Tribunal (for ADA) or Federal Court or Federal Magistrates Court (for DDA).
Step Five: Taking the Complaint to the Court or Tribunal
If conciliation is unsuccessful, you will need to make a decision about continuing to a Court or Tribunal. At this stage, you should consider getting legal advice.
Administrative Decisions Tribunal (ADT)
If you are using the Anti-Discrimination Act (ADA), you may write to the Anti-Discrimination Board (ADB) to request them to refer your complaint to the Administrative Decisions Tribunal (ADT). The President of the Board will submit a report to the ADT.
The first step is to attend a ‘case conference’. This is a meeting held at the ADT with a judicial member of the ADT. The conference aims to make directions about preparing the case for a hearing. The judicial member will then give you a date for the complaint hearing.
Federal Court or Federal Magistrates Court
If you are using the Disability Discrimination Act (DDA), you can lodge an application for a hearing with the Federal Court or the Federal Magistrates’ Court. Your complaint must be lodged within 26 days of your complaint being terminated.
Both of these courts have forms that need to be completed before starting an action. It is strongly recommended that you seek legal advice to ensure these forms are completed correctly. Your local community legal centre may also be able to assist you.
After these forms have been completed, the Federal Court or the Federal Magistrates’ Court will hold ‘directions hearings’. The purpose of this is to prepare the case to be heard.
Step Six: Court or Tribunal hears the complaint and evidence
At the hearing, it is up to you to prove you have been discriminated against because of your disability on the balance of probabilities. You must show that it is more probable than not that you experienced disability discrimination.
After hearing your argument, and that of the respondent, the judge or magistrate will come to a decision. The complaint will either:
Step Seven: Appealing the decision
There are some very limited opportunities to appeal the outcome of a hearing. An appeal cannot be granted simply because you are unhappy with the decision.
You may only appeal to the Appeal Panel of the ADT or Federal Court on a question of law. In rare cases, there may be a right of appeal to the Supreme Court of NSW or the High Court. However, costs can become quite large if you decide to take on this option.
Source URL: http://disabilitylaw.org.au/disability-discrimination/the-complaints-process
Copyright ©2017 Australian Centre for Disability Law unless otherwise noted.