To complain under ADA or DDA?
Do I bring my complaint to the Anti-Discrimination Board under the Anti-Discrimination Act 1977 (NSW) or to the Australian Human Rights Commission under the Disability Discrimination Act ACT 1992 (CTH)?
If you believe you have been unlawfully discriminated against because of a disability you may be able to make a complaint to either the Anti-Discrimination Board (ADB) (under the Anti-Discrimination Act 1977 (NSW)) or the Australian Human Rights (the Commission) (under the Disability Discrimination Act 1992 (Cth)).
Discrimination is only unlawful in relation to conduct that occurred in specific situations.
Complaints can be made to either the ADB or the Commission if the conduct occurred in the following situations:
- In the course of your employment, or when you were applying for a job,
- In public education institutions,
- In the provision of goods and services,
- In your accommodation, or when you were looking for accommodation, and
- in clubs registered under the Registered Clubs Act 1976 (NSW).
In some situations you will be able to choose whether to complain to either the ADB or the Commission. However, a complaint cannot be dealt with by both the ADB and the Commission. You will need to decide which body is the best one to complain to in your particular circumstances.
Some of the things you should consider are:
- Where the conduct you want to complain about occurred
- Who you want to make a complaint about
- What conduct you want to complain about
- What costs may be involved in bringing a complaint
Where did the conduct you want to complain about occur?
If you want to complain about something that happened in NSW you can make your complaint to either the ADB or the Commission. You cannot complain to the ADB about something that happened outside of NSW, but you can complain to the Commission about something that happened anywhere in Australia.
Who do you want to complain about?
There are some people/authorities you can complain about to the Commission, but not to the ADB. These include:
- Private educational authorities
- Clubs/associations which are not registered under the Registered Clubs Act 1976 (NSW)
- Employers (or potential employers) who have 5 or less employees
- Employers, where you were employed, (or applied for a job) in a private household
If you want to make a complaint about a Commonwealth Statutory Authority it is better to complain to the Commission. This is because state legislation (including the Anti-Discrimination Act 1977 (NSW) has a limited ability to regulate the behaviour of Commonwealth authorities. The Commission has wider powers in this regard.
What conduct do you want to complain about?
You will need to complain to the Commission if you want to make a complaint about:
- Access to premises (or facilities on premises) that the public is allowed to use
- Something that happened when you were a student (or applying to be a student) in a private educational institution
- Something that happened when you were trying get an interest in land (for example, when you were trying to buy a house)
What costs may be involved in bringing a complaint?
Making a complaint to the ADB or the Commission is free. If your complaint is accepted but is not resolved through negotiation or conciliation your complaint will be terminated. If your complaint was made with the ADB you can ask the ADB to refer your complaint to the Administrative Decisions Tribunal (ADT). In the ADT each party bears their own cost of litigation.
If your complaint was made with the Commission you can lodge your complaint with the Federal Magistrates Court (FMC) or the Federal Court (FC). If the FMC or the FC decides that unlawful discrimination has not occurred, you may be ordered to pay the costs of the other party on top of your own legal fees.
What other things should I think about when making a complaint?
When you decide you want to complain to the ADB or the Commission you should also remember:
Time limits
You should always try to make your complaint within 12 months of the discrimination occurring.
If you want to make a complaint about something that happened more than 12 months ago the ADB may refuse to investigate it.
Under the Disability Discrimination Act 1992 (Cth), the Commission may reject a complaint about something that happened more than 12 months ago, but there is no strict time limit.
Exemptions
In some circumstances conduct may be discriminatory, but will be ‘exempt’ and therefore will not be unlawful. For example, it is not unlawful for a person to discriminate against you because of a disability if that disability is an infectious disease, and the discrimination was reasonably necessary to protect public health.
Particular authorities/activities/programs may also be granted exemptions from time to time.
You will need to make sure that what you want to complain about is not exempt under either the Anti-Discrimination Act 1977 (NSW) (if you are complaining to the ADB) or the Disability Discrimination Act 1992 (Cth) (if you are complaining to the Commission).
What can the ADB or the Commission do about my complaint?
The ADB and the Commission are not courts, and they cannot make legally binding determinations. This means, for example, they cannot make the person you complained about pay you money to compensate you. What they will do is investigate your complaint and try to make sure you can reach agreement with the person you are complaining about to resolve the situation. Outcomes of this process can include:
- An apology
- Financial compensation (but this cannot be enforced by the ADB or the Commission)
- Reinstatement of a position of employment
If you complain to the ADB and your complaint cannot be resolved with its help, the complaint may be referred to the ADT. Similarly, if you are complaining to the Commission and your complaint cannot be resolved with its help, the complaint may be referred to the FC or the FMC. The ADT, FC and FMC have greater powers to make binding determinations, including the power to make the person you are complaining about compensate you.
If you want to take your dispute directly to the FC or the FMC instead of lodging a complaint with the Commission you are allowed to do so. However, this will generally be more costly and time consuming than seeking to have your complaint resolved with the assistance of the Commission.
This fact sheet explains the law in NSW. The information contained in this fact sheet is only intended as a guide and is not a substitute for legal advice. If you think you are experiencing discrimination because of your disability you should seek legal advice (revised February 2009).