Complaint process
Whether you decide to make a complaint about disability discrimination yourself or you get the NSW DDLC to assist you with it, you will need to formally lodge your complaint with either of the following two organisations:
- The Anti-Discrimination Board (ADB) if you’re using the Anti-Discrimination Act (ADA)
- The Australian Human Rights Commission (AHRC) if you’re using the Disability Discrimination Act (DDA)
The following steps must be taken into account when considering where to lodge your complaint.
Lodge a written complaint
The first step is you to lodge a written complaint. Make sure you keep a copy of the complaint for yourself.
Complaint forms can be downloaded from the Anti-Discrimination Board or Australian Human Rights Commission. There is no requirement that you use this form though when making your complaint.
You should make your complaint as precise and detailed as possible. Some of the information to include is:
- Your name, address, and contact details. If you are making a complaint on behalf of someone else, make sure that you also provide their name and contact details
- Details of your disability or of the other person’s disability if you are an associate
- The name of the person or organisation you are complaining about, as well as their contact details if known
- The relationship between yourself and the person you are complaining about (eg, you were a customer at the person’s store or they are your employer);
- The details of the discriminatory acts, including:
- When it happened
- What happened
- Where it happened
- Who was involved
- The effect the discrimination act has had on you
- Any steps that you have already taken to deal with the situation
- What you want to see happen as a result of the discrimination that you experienced
- Whether the complaint needs to be addressed urgently and why
- Copies of any documents or photos that might be important in helping to explain what happened
Investigate 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.??
Conciliate 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 will 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.??
Terminate 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), Federal Court or Federal Magistrates Court (for DDA).
Take 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 prepare 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 28 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’, which prepares for the case to be heard.?
?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:
- Be found and the Court or ADT will order the respondent to remedy the situation, or
- The complaint will be dismissed
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.