A. INTRODUCTION

Please note the information set out below is of a general nature only and it is not intended to replace legal advice about any specific claim. The Anti-Discrimination Commission Queensland (“Commission”) and Anti-Discrimination Tribunal Queensland (“Tribunal”) have been established to handle complaints under the Anti-Discrimination Act 1991 (Qld) (“Act”). Similar provisions exist under federal legislation and are dealt with by the Human Rights and Equal Opportunity Commission and federal courts. This section contains practical information about procedure in the Commission and Tribunal. Procedure in the federal jurisdiction is similar although there are some differences. Further information is available on the website of the Anti-Discrimination Commission Queensland – www.adcq.qld.gov.au or the Human Rights and Equal Opportunity Commission website – www.hreoc.gov.au.

It is important at the outset to remember that there is no general law against all discrimination. It is necessary for any complaint to be brought within the scope of the applicable legislation. In brief, state and federal legislation contains prohibitions on specific forms of direct and indirect discrimination (such as age, sex, religious belief or activity) in specific areas (such as work and the provision of accommodation). In addition, there is a general prohibition on sexual harassment and vilification. In this section, the word “discrimination” is used to refer to all forms of conduct prohibited by the legislation.

B. PROCESS IN THE ANTI-DISCRIMINATION COMMISSION QUEENSLAND

1. Making a complaint

The Commission seeks to resolve complaints through a process of conciliation between the parties. If this process is unsuccessful, then the person making the complaint can choose to refer their complaint to the Tribunal. The Tribunal is like a court and a judicial process is adopted ending ultimately in a formal hearing and a decision by the Tribunal which has the force of law.

The first step is to seek to resolve any complaint informally with the person/s or body you believe responsible for the discrimination. If this is not successful, then a formal complaint can be lodged with the Commission. The complaint must be in writing and signed and a complaint form is available from the Commission website – www.adcq.qld.gov.au. A complainant should ask any witnesses to provide written statements setting out their recollections and observations. There is no need to provide these documents to the Commission at this stage.

Complaints must be lodged with the Commission within 12 months of the incident or conduct comprising the discrimination complained about occurring. An extension of time may be granted for out of time complaints if a reasonable explanation for the delay can be provided.

The Commission will firstly satisfy itself that the complaint meets the threshold requirements of the Act and may ask for further information. The Commission will then convene a conference of the parties to try and resolve the complaint. The respondent may provide a written response prior to the conference but is not required to do so.

2. Conciliation conference

Conferences are normally held at the Commission’s premises with the parties attending in person. However, sometimes conferences may be held by telephone with conciliators who are located in another town. Conferences are conducted by a conciliator who will seek to resolve the complaint by discussion between the parties. Three hours are generally set aside for each conference.

If representing yourself, you should let the Commission staff know that you are there for a conference on your arrival. If you are legally represented, arrangements will normally be made to meet your solicitor beforehand. You will then be taken to a room and the conciliator will outline the rules for conduct of the conference to you. The most important requirement is that anything raised at the conference and any offers of settlement must be kept confidential and may not be used in later proceedings. Each party should be allowed to speak without interruption even if you don’t agree with what is being said and language should be kept polite.

You will then be taken into the main conference room. You and your legal representative (if you have one) will sit on one side of a table, the respondent/s and their legal representative (if they have one) will sit on the other side of the table and the conciliator will sit at the head of the table. The conciliator will confirm that it is not their role to make a judgment or to take sides but rather to seek a resolution of the complaint by informal means. You will be asked to confirm your agreement to keep all matters raised at the conference confidential. The conciliator will ask you to provide an outline of your complaint. Where you have legal representation, the conciliator may allow your legal representative to provide this outline but it is a matter for the conciliator’s discretion and the practice varies between conciliators. Some conciliators will require the complainant or respondent to provide the outline even where they have a solicitor.

The outline involves setting out the main facts of the complaint, how these facts constitute discrimination under the legislation and the emotional feelings and loss and damage suffered as a result of the discrimination. Even where a legal representative gives this outline, the conciliator will ask the complainant if they would like to add anything. It is your complaint and you should feel free to take the opportunity to add anything you consider to be worthwhile. It is helpful for the respondent/s to hear from you in person and gauge your truthfulness. The respondent/s will then be allowed to respond to the complaint. Where the respondent/s have a legal representative, that representative will generally be allowed to provide the response although each of the respondents will also be asked if they wish to add anything personally.

It is quite common for the version of events given by the complainant and respondents to vary significantly or indeed be completely different. This can be distressing for the parties but is normal at this early stage of proceedings. You can take a break if you feel you need to.

The conciliator will provide the complainant with an opportunity to respond to what has been said by the respondents and may offer the parties the opportunity to confer with their legal representative away from the other party. Normally, the complainant and their representative go outside the conference room to a separate room to confer. The conciliator will come and have a talk to both the complainant and respondent about what has been said. The conciliator may then ask the complainant to return to the main conference room and tell the respondents what they would like to resolve the complaint. Sometimes the conciliator will not require the complainant to return to the main conference room but will convey any offer they wish to make to the respondent/s.

It is uncommon for first offers by both the complainant and respondent to be accepted and you should be prepared to negotiate if you wish to resolve the complaint at the Commission conference. A complainant should consider whether they are prepared to accept an amount less than may be awarded if successful in the Tribunal in order to resolve the matter at the conference stage without the need for lengthy, potentially expensive and emotionally traumatic proceedings in the Tribunal. It is also quite common for respondent/s to reject all offers of settlement at this initial conference and the complainant will then need to decide if they want to proceed to the next stage of proceedings.

If a settlement is reached then the respondent/s will normally require a document formalising the settlement to be prepared and signed by each of the parties. Commonly called a “release and discharge”, this document may be prepared by the Commission or by the respondent/s. It will normally record that the complainant provides the respondent/s with a release from all claims or actions the complainant may have against them in exchange for the provision of things such as an apology, undertaking and/or compensation. It will also normally require the settlement to be kept confidential and also that each party not make adverse comments about the other.

A discharge constitutes a final settlement of a complaint and it is not generally possible for either party to change their mind once a discharge has been signed. Accordingly, each party should give careful thought to their decision before accepting any settlement. Any settlement will occur on a “without prejudice” and confidential basis. This means that there is no formal admission of liability by the respondent and that neither party can tell anyone else the terms of settlement.

3. Remedies

Both parties should give thought to how they would like to resolve the complaint prior to coming to the conference. It is common for a complainant to ask for:

• An apology, whether public or private;

• An undertaking that the respondent/s will attend a course in anti-discrimination conducted by the Commission or a private service provider; and

• Monetary compensation.

It is up to the complainant to determine what they would like to obtain to satisfy their complaint. Sometimes, an apology or statement of regret will be sufficient for the complainant. This is a highly personal decision. However, whilst it is commonplace to seek an apology and the undertaking of training, the major remedy is usually monetary compensation.

The aim of any compensation is to place the complainant, as much as possible, in the position they would have been if the discrimination had not taken place. Monetary compensation can comprise a number of elements:

The first element is “general damages” which is a payment to compensate a complainant for hurt feelings and the pain and suffering they have gone through as a result of the discrimination. There is no fixed formula for general damages and the amount of any general damages will depend on the facts of each case. Your legal representative will be able to give advice about a range of general damages appropriate to your case and assistance can be gained from previous decisions of the Tribunal.

In addition to general damages, compensation can also be claimed for any loss of income suffered by a complainant both to the date of the conference and subsequently if they are likely to continue to suffer loss of income in the future. Compensation can also be claimed for any medical expenses which the complainant has incurred or is likely to incur in the future.

Of course, any amount claimed will be affected by the factual strength of a case and practical factors such as how committed the parties are to pursuing litigation. Your legal representative will discuss these matters with you prior to the conference so that a position can be put to the other party at the conference.

4. What happens if the complaint is not resolved at the conference?

If the complaint cannot be resolved at the conciliation conference and it is unlikely that further negotiations will resolve the matter, then the conciliator will declare the complaint unconciliable and give the complainant up to 28 days to decide whether they wish to refer their complaint to the Tribunal.

This is an important decision to make because Tribunal proceedings require a large commitment of time and energy by both parties and there may be costs consequences if the Tribunal rules against either party after a hearing. Tribunal proceedings can take up to 12 – 18 months or longer before a decision is made and it is possible for the losing party to appeal on points of law. No matter how good a complainant or respondent thinks their case is, there is potentially a long battle ahead.