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Discrimination toolkit

Glossary

A B C D E F G H I J K L M N O PR S T U V W X Y Z

A

ADNSW. See Anti-Discrimination New South Wales.

Administrative and Equal Opportunity Division. The section of the NSW Civil & Administrative Tribunal (NCAT) that deals with discrimination, harassment, vilification and victimisation cases.

AFCA. See Australian Financial Complaints Authority.

Affidavit. A written statement filed in court by a witness to help someone prove their discrimination case. An affidavit can only contain factual information about what that witness saw, heard or felt, not their opinions.

Affidavit of service. A statement confirming that a person has served a court document on a particular person (given it to them): it includes the place, date and time when the document was served.

Affirm. Someone who writes an affidavit must confirm that what’s in the affidavit is true and correct. They can do this either by swearing on a book of their religion (such as the Bible or the Koran) or by affirming it. They have to do this in front of an authorised person.

Age Discrimination Act. A federal law that says that age discrimination is against the law in some situations. This law covers everyone in Australia.

AHRC. See Australian Human Rights Commission.

Annexure. A document that a person attaches to an affidavit.

Anti-Discrimination Act. A NSW law that says that discrimination, harassment, vilification and victimisation are against the law in some situations. It only covers people in New South Wales.

Anti-Discrimination New South Wales (ADNSW). A NSW government organisation that helps people in New South Wales sort out complaints of discrimination, harassment, vilification and victimisation. You have to make a complaint to ADNSW before you can take it to NCAT.

Appeal. If you think the original decision in your case was wrong, you can take your case to a higher court or tribunal (appeal your case), and they then decide whether the original decision was right or wrong.

Appeal Panel. If you appeal a decision made by NCAT, it is heard by an Appeal Panel, which is a group of between one to three NCAT members.

Applicant. What you are called when you take a discrimination, harassment, vilification or victimisation case to NCAT, the FCA or FCFCOA.

Applicant’s Genuine Steps Statement. The document you have to prepare and file with the FCFCOA or Federal Court registry at the same time as you file your Application. It tells the court what you have done up until then to try and resolve your complaint with the respondent.

Application form. The document you have to prepare and file in the FCFCOA or Federal Court registry to start court proceedings.

Applying for leave. Asking NCAT for permission for your case to go ahead if your complaint was declined by ADNSW.

Area. The name for the particular area of public life that you have been treated unfairly in. Areas include employment, accommodation, goods and services, and education. You can’t make a complaint under discrimination law unless your unfair treatment happened in one of the listed areas.

ASIC. See Australian Securities and Investments Commission.

Australian Financial Complaints Authority. A federal government organisation that provides consumers and small businesses with fair, free and independent dispute resolution for financial complaints.

Australian Human Rights Commission (AHRC). A federal government organisation that helps people throughout Australia sort out complaints of discrimination, harassment, victimisation and vilification. You must make a complaint to AHRC before you can take a discrimination case to the FCFCOA or FCA.

Australian Human Rights Commission Act. A federal law that covers some parts of discrimination law. Federal laws cover people everywhere in Australia.

Australian Securities and Investments Commission (ASIC). A federal government organisation where people and organisations register the trading name and legal name of their business.

Authority to accept service. When a person has been given permission by another person to receive court or tribunal documents on the other person’s behalf. For example, an employer can give an employee authority to accept service of documents addressed to the company.

Authorised person. A person who is allowed to witness someone swearing or affirming and signing an affidavit. Barristers, solicitors and justices of the peace are authorised persons.

Award. The word tribunal members and judges use to describe giving something to the person who wins a case. They would say for example, “I award the Applicant $X as compensation for the hurt, humiliation and distress she suffered because of the unlawful discrimination.”

B

Bullying. Workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or group of workers at work, and the behaviour creates a risk to health and safety

C

Carer’s responsibilities. This is one of the grounds under discrimination laws. You might say that you have been treated unfairly because you have to look after or care for someone (a child, for instance). This ground is called ‘carer’s responsibilities’ under NSW law, and ‘family responsibilities’ under federal laws.

Case conference. A conference or meeting held at NCAT and run by a tribunal member, who looks at how the case is going and gives both sides instructions about anything that needs to be done. You might have a few case conferences during the NCAT process.

Closing statement. The last step in a court or tribunal hearing, where each party (side) gets to give the judge or tribunal members a summary of their case and why they should win.

Community Legal Centre. A non-government community- based organisation that provides free legal services for people, especially people who are disadvantaged.

Compensation. Money that people who take legal action might get to compensate them for the way they were treated.

Complainant. What you are called when you make a complaint of discrimination, harassment, vilification or victimisation to ADNSW or the AHRC.

Conciliation conference. Where an impartial third person (ie. someone who is not involved in the dispute), runs a meeting between a complainant and a respondent to help them try to resolve a dispute without having a court or tribunal hearing. In discrimination cases in New South Wales, the conciliation process is done through ADNSW or the AHRC. In unfair dismissal and general protections cases, conciliation is run by the Fair Work Commission.

Conciliator. The person who runs your conciliation conference and helps you try to resolve your dispute with the respondent. A conciliator cannot take sides. In discrimination cases in New South Wales, it will be someone who works for ADNSW or the AHRC.

Confidentiality clause. The part in a settlement agreement which says that you and/or the person or organisation you are complaining about agree not to tell other people about the details of the settlement agreement.

Costs. Legal fees.

Costs order. An order made by a court or tribunal saying that one party (side) in a case has to pay for some or all of the other side’s legal fees.

Costs follow the event. A phrase that means the person who loses a case has to pay the winner’s legal fees.

Court documents. Paperwork filed in a court like application forms, affidavits and subpoenas.

Crimes Act 1900 (NSW) section 93Z. A NSW law that makes it illegal to intentionally or recklessly make a public threat against another person or group of people because of their race, religion, sexual orientation, gender identity, intersex or HIV/AIDS status.

Cross-examination. The second part of a witness giving oral (spoken) evidence in a court or tribunal hearing. In this part, the side that did not call the witness gets to ask the witness questions. It comes after examination-in-chief.

D

Damages. The amount of money a court or tribunal orders one party (side) to pay another as compensation.

Decline. The word used by ADNSW when they decide not to accept your discrimination, harassment, victimisation or vilification complaint for investigation. This phrase is also used by ADNSW if they decide during the investigation stage that your complaint should not go any further.

Defence. What a respondent says about why your discrimination, victimisation, vilification or harassment complaint or case should not succeed: it’s when they disagree with you and say they haven’t broken any laws.

Deponent. A person who writes, signs and swears (or affirms) an affidavit.

Direct discrimination. A type of unlawful discrimination where you have been treated worse than someone else in an area of public life (education, employment etc) because of a ground (age, race, sex, etc).

Directions. Instructions given to parties (sides) by a tribunal member (if the case is in NCAT), or a judge (if the case is in the FCFCOA or FCA) about what the parties have to do to prepare for the hearing, and when they have to do it by.

Directions hearing. A court or tribunal hearing where a tribunal member or judge gives the parties instructions about what they have to do to prepare their case.

Disability Discrimination Act. A federal law that says that disability discrimination is against the law. This law covers people everywhere in Australia.

Disability Standards. Standards made by the federal government which set out rights and responsibilities about equal access and opportunity for people with a disability. Standards can be made in the areas of employment, education, public transport services, access to premises, accommodation and the administration of Commonwealth laws and programs.

Dismissed. The word the tribunal member or judge uses at a hearing to say you have lost your case.

E

Electing jurisdiction. Choosing whether you will make a discrimination complaint through the state system (to ADNSW) or through the federal system (to the AHRC).

Enforcing the agreement. Making a person who has signed a settlement agreement do what they have agreed to do.

Evidence. Documents presented, or oral testimony (spoken answers to questions) witnesses give, to a court or tribunal at a hearing.

Examination-in-chief. The first part of a witness giving oral (spoken) evidence in a court or tribunal hearing. In this part, the party (side) that called the witness gets to ask the witness questions.

Exemptions/exceptions. The name used in discrimination law to describe the organisations or situations that are not covered by the law. You might not be able to make a complaint under discrimination law if an exemption or exception applies.

F

Fair Work Commission. A tribunal that helps people to resolve employment disputes under the Fair Work Act. It can make a final decision in an unfair dismissal claim.

Fair Work Ombudsman. An organisation that investigates various employment matters including breaches of the law and underpayment of wages and entitlements. It is not a court or tribunal and cannot make final decisions.

Family responsibilities. This is one of the grounds under federal discrimination laws. You might say that you have been treated unfairly because you have to look after or care for someone (a child, for instance). This ground is called ‘carer’s responsibilities’ under NSW discrimination laws.

FCA. See Federal Court of Australia.

FCFCOA. See Federal Circuit and Family Court of Australia.

Federal Circuit and Family Court of Australia (FCFCOA).* A federal court that decides less complicated discrimination law cases for people (throughout Australia) when their cases have not been resolved at the AHRC.

Federal Court of Australia (FCA).* A high-level federal court that decides complicated discrimination law cases for people (throughout Australia) when their cases have not been resolved at the AHRC. The FCA hears appeals of decisions made by the FCFCOA.

Federal Court judge. A FCFCOA or FCA judge who runs hearings and decides cases in the FCFCOA or FCA.

Federal system. Federal (national) laws and court processes that apply to people everywhere in Australia. You can make a discrimination law complaint in the federal system.

Filing documents. Giving (or ‘lodging’) documents to a court or tribunal registry (office).

Filing fees. Fees you have to pay for lodging documents in a court or tribunal registry (office).

Final hearing. The final process in NCAT, the FCFCOA or FCA where a decision is made about whether or not unlawful discrimination happened, and if it did, what should be done about it.

First case conference. The first tribunal date that happens after a complaint is referred from ADNSW to NCAT.

First case conference Result Sheet. A document prepared by a tribunal member of NCAT after the first case conference. It summarises the complaint and what happened at the first case conference. It includes the timetable that both parties (sides) have to follow.

First court date. The first time someone who has taken their discrimination case to the FCFCOA or FCA has to actually go to court. On this date, the judge will organise the case and give both parties (sides) directions about what they have to do to prepare for the hearing.

Future expenses. A type of financial compensation you ask the respondent to give you, to cover costs you expect you will need to pay in the future because of the discrimination (such as medical bills).

G

Gender identity. A ground for making a complaint under federal discrimination laws.

General damages. A type of financial compensation you ask the respondent to pay you because of the hurt, humiliation and distress their behaviour has caused you.

General protections. Parts of the Fair Work Act that aim to protect your workplace rights, including protection from unlawful discrimination. General protections apply to most Australian workplaces.

Ground. The word used in discrimination law to describe the reason you have been treated unfairly. Grounds include sex (being male or female), age (being too young or too old), pregnancy, disability and race. To make a complaint under discrimination laws, you must have a ground.

H

Hearing. A public session in a court or tribunal where a judge or tribunal member makes a decision about a person’s case.

I

Indirect discrimination. A type of discrimination where a rule or policy which applies equally to everyone is actually unfair because it disadvantages one group of people, for example, women, people with a disability, etc. The rule or policy must be ‘unreasonable’ for this discrimination to be unlawful.

Interim/Interlocutory order. A decision made by a judge in the FCFCOA or FCA that keeps things the way they are until the case is finished.

Interlocutory hearing. A hearing in front of a judge in the FCFCOA or FCA to decide whether you will get the interim/interlocutory orders you asked for.

Intersex status. A ground for making a complaint under federal discrimination laws.

Investigation phase. The period when ADNSW or the AHRC investigates a discrimination, harassment, vilification or victimisation complaint. It involves deciding whether you have a valid complaint and whether discrimination laws might have been broken, and getting both sides of the story.

L

LawAccess NSW. A free government telephone legal information and referral service for people living in NSW. LawAccess NSW has a lot of useful legal information, self-help guides and other resources on its website.

Leave. Permission for your case to go ahead in NCAT or the FCFCOA/FCA. You need to apply for this if ADNSW declined your complaint during the investigation stage. In some circumstances you might also need to apply for this to go ahead with your case in the FCFCOA or FCA.

Leave hearing. The NCAT hearing where you ask NCAT’s permission to have your case go ahead in NCAT.

Legal Aid NSW. A NSW government organisation that provides legal services for people in New South Wales who are socially and economically disadvantaged.

Legal entities. A person or organisation that legal action can be brought against. Individuals and companies can be legal entities.

Liable. Being held legally responsible for breaking the law.

M

Made out. A court or tribunal might use this to say you have won your case, for example “The complaint is made out.”

Mediation. Where an impartial third person (someone who is not involved in the dispute) runs a meeting with the parties (sides) in a court or tribunal case to help them try to resolve the dispute without a hearing. Mediation is available in NCAT, the FCFCOA and FCA.

Mediator. The person who facilitates a mediation (see above) in NCAT, the FCFCOA or FCA.

Member. The name for people at the NSW Civil and Administrative Tribunal (NCAT) who hear and decide discrimination law cases, and sometimes run mediations. Some NCAT Members are lawyers or judges (The President; Deputy Presidents; ‘Principal Members’ and ‘Senior Members’). Other Members (called ‘General Members’) are not lawyers or judges, but have skills or experience relevant to the discrimination case being decided.

N

NCAT. See NSW Civil and Administrative Tribunal.

Negligence. Negligence is where someone owes you a duty of care (has responsibility to look after you in some way, such as your employer making sure all work health safety rules are followed at their/your workplace) but breaches (fails in) that duty of care, and you suffer damage because of that breach.

Negotiate. Bargain with the respondent or their legal representative to try to get the results you want.

Notice of Discontinuance. If you decide to withdraw your application to the FCFCOA, you have to fill in this form, then file it with the FCFCOA and serve it on the respondent and the AHRC.

Notice of Termination. A document you might get from the AHRC telling you that they cannot take your complaint any further. You have 60 days from the date on the Notice of Termination to take your case to the FCFCOA or FCA.

NSW Civil and Administrative Tribunal (NCAT). A NSW tribunal (similar to a court) which runs discrimination law cases that have not been resolved at ADNSW. The Administrative & Equal Opportunity Division of NCAT runs discrimination law cases. NCAT also has other Divisions which run different types of legal cases.

O

Oath. A promise a person makes on a book of their religion (such as the Bible or the Koran) that what they have written in an affidavit, or what they are about to say in a hearing, is true and correct.

Onus of proof. The requirement to prove a case to a court or tribunal. In discrimination cases, the onus of proof is on the person making the complaint: they have to prove they were unlawfully discriminated against, harassed, victimised or vilified.

Occupational health and safety. See Work health and safety.

On the balance of probabilities. This is the standard (level) of proof needed in discrimination, harassment, vilification and victimisation cases. Applicants must convince a court or tribunal that on the balance of probabilities (meaning that it is more likely than not), discrimination laws were broken.

Order. Something a court or tribunal tells a party (side) to do. Orders can be made at any time in a court or tribunal process.

Out-of-pocket expenses. Money you ask the respondent to give you to pay you back for money you have spent because of the discrimination (medical expenses, for example).

P

Party. People or organisations involved in legal proceedings. The applicant and the respondent in discrimination law cases are both called parties.

Particulars. Written details about your case.

Personal service. Serving documents in person (handing the document to the person), rather than sending them in the mail or by fax, etc.

President’s Report. The documents ADNSW sends to NCAT after it has referred a discrimination complaint to NCAT. The President’s Report includes the documents the complainant and respondent gave to ADNSW and the President’s Summary of Complaint.

President’s Summary of Complaint. A written summary prepared by ADNSW about a discrimination, harassment, vilification or victimisation complaint. It is sent to NCAT (as part of the President’s Report) if a complaint is not resolved at ADNSW and the complaint is referred to NCAT.

Public threats of violence. In NSW intentionally or recklessly publicly threatening or inciting violence against another person because of their race, religion, sexual orientation, gender identity, intersex or HIV/AIDS status is against the law.

Proven. A word a court or tribunal might use to say you have won your case or a particular part of your case.

R

Racial Discrimination Act. A federal law that says that race discrimination is against the law. This law covers everyone in Australia.

Racial hatred. When someone says or does something in public which is likely to offend, humiliate, insult or intimidate a person, and it is said or done because of that person’s race, colour or national or ethnic origin. This is a ground for making a complaint under federal discrimination laws.

Reduced earning capacity. A legal phrase used to say that you are now less able to work, or to look for work. You might ask the respondent to compensate you for this if it was caused by them discriminating against you.

Re-examination. The third and final part of a witness giving oral (spoken) evidence in a court or tribunal hearing (after examination-in-chief and cross-examination). In this part, the party who called the witness gets to ask the witness questions again. These questions are generally about something the other side asked in cross-examination.

Referral. When ADNSW sends a complaint to NCAT.

Registrar. A senior person who works for NCAT, the FCFCOA or FCA.

Registry. The office of a court or tribunal that deals with members of the public.

Remedy. What is given to the winner in a discrimination case by a court or tribunal.

Request for particulars. A written document one party (side) gives to the other to ask them for more details about their case.

Respondent. The person or organisation you have made a discrimination, harassment, victimisation or vilification complaint about to ADNSW or the AHRC, or who you are running a case against in NCAT, the FCFCOA or FCA. That is, the other side.

Respondent’s Genuine Steps Statement. A court form which a respondent must file with the FCFCOA registry and serve on you in response to your ‘Applicant’s Genuine Steps Statement’.

Response Form. A document or form from the FCFCOA which a respondent might file and serve to tell you and the court that they will be defending the case (arguing against you).

Rules of evidence. Legal rules about what is and is not allowed to be presented to a court or tribunal as evidence (some things are not allowed because they are opinion, not fact, for instance).

S

Serving documents. Giving documents that have been filed in a court or tribunal to someone.

Settlement agreement. A document that lists what you and the person or organisation you are complaining about have agreed to do to resolve your complaint. A settlement agreement is signed by everyone involved in the complaint and is a legally binding contract.

Settlement proposal. A list of what results you want to get out of your complaint – financial compensation, an apology, etc. You give your settlement proposal to the respondent before or at the conciliation conference or mediation.

Sex Discrimination Act. A federal law that says that sex discrimination (including sexual harassment, pregnancy, sexual orientation and intersex status discrimination) is against the law. This law covers everyone in Australia.

Sexual harassment. A ground for making a complaint under discrimination laws. Sexual harassment is defined as unwelcome sexual behaviour that makes you feel offended, humiliated or intimidated.

Sexual orientation. A ground for making a complaint under federal discrimination laws.

Shuttle negotiation. Where during a conciliation conference at ADNSW or the AHRC, the conciliator moves between the room where you are sitting and the room where the respondent is sitting, and talks to you both about ways to resolve your dispute.

Standard of proof. The level of proof you must reach in a court case to win the case. It is different in different kinds of cases. The standard of proof under discrimination laws is ‘on the balance of probabilities’, which means the court or tribunal must believe that what happened is ‘more likely than not’ to be discrimination.

State system. Laws and court processes that apply to people in a particular state. You can make a discrimination law complaint in the NSW state system.

Stop bullying order. The Fair Work Commission has the power to make an order to stop bullying, if there is a risk that a worker will continue to be bullied at work by a particular individual or group.

Subpoena. A document from a court that tells people to go to court to be a witness in a case (‘subpoena to attend’), to give documents they have to the court (‘subpoena to produce documents’) or both.

Substantiated. A word a court or tribunal can use to say you have won your case, for example “The complaint is substantiated.”

Summary of complaint form. A document prepared by a tribunal member of NCAT after the first case conference. It summarises the complaint, the respondent’s response to the complaint and the factual and legal issues in dispute.

Summons. A document from a tribunal that tells people to go to a tribunal hearing to be a witness (‘summons to attend’), to give documents they have to the tribunal (‘summons to produce documents’) or both.

Supreme Court of New South Wales. A high-level state court that deals with many types of cases in New South Wales, including some types of appeals of decisions made by NCAT.

Swear. Someone who writes an affidavit must confirm that what’s in the affidavit is true and correct. They can do this by either affirming it or by swearing on the book of their religion (such as the Bible or the Koran). They have to do this in front of an authorised person.

T

Terminated. The word the AHRC uses to tell you they cannot take your complaint any further for whatever reason. ADNSW also uses the word ‘terminated’, but only if the reason why they won’t take the complaint further is because they don’t think it can be settled at ADNSW.

Time limit. A deadline for starting legal action. Different types of legal actions have different time limits. The time limit for making a complaint under discrimination laws is 12 months if complaining to ADNSW and 6 months if complaining to the AHRC, from when the discrimination, harassment, victimisation or vilification happened.

Tribunal members. See Member.

Tribunal’s Summary of complaint form. See summary of complaint form.

U

Unfair dismissal. When you are dismissed from your job and the dismissal is ‘harsh, unjust or unreasonable’. In some cases you can take legal action for unfair dismissal.

Unlawful discrimination. Discrimination or unfair treatment which is against the law: that is, unfavourable treatment, on a ground, and in an area of public life, and where the respondent has no defence.

Unlawful dismissal. When you are dismissed from your job for a ‘prohibited reason’. Prohibited reasons include being dismissed because of your racial background, disability, religion, etc. In some cases you can take legal action for unlawful dismissal.

V

Vicarious liability. A legal phrase which means that employers are generally responsible (liable) for discrimination, harassment, victimisation and vilification that happens in their workplace.

Victimisation. Where someone treats you badly because they know (or suspect) that you have made, or are going to make, a discrimination complaint. You can make a complaint of victimisation under discrimination laws.

Vilification. Vilification is when someone says or does something in public that could cause other people to ridicule or hate a person or a particular group of people. You can make a complaint under discrimination laws about some types of vilification.

W

Work health and safety (occupational health and safety). Legal regulations or standards about what employers and employees have to do to make sure a workplace is safe.

* At the time of publishing this edition, the Federal Circuit Court had just merged with the Family Court of Australia to create a new federal court called the Federal Circuit and Family Court of Australia (FCFCOA). Please check with the FCFCOA to make sure its rules and procedures haven’t changed.

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