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Discrimination toolkit

Discrimination law complaints

I want to make a discrimination law complaint. Where do I start?

We recommend that you get some advice from a lawyer before you start legal action under discrimination law. You can go to one of the places that offer free legal advice (see Useful contacts) or to a private solicitor with experience in discrimination law. The Law Society of NSW can help you find a solicitor in your area.

Taking legal action for discrimination is a big step but there can be many positive outcomes:

  • you get a chance to tell your story and talk about how the unfair treatment made you feel. This can be very empowering;
  • making a discrimination complaint might stop the unfair treatment happening to you or someone else;
  • you can get outcomes that are personally important to you such as an apology, introduction of anti-discrimination policies, training programs, policy changes, disciplinary action against the person who treated you unfairly etc;
  • you can get financial compensation for any money you have lost as well as for the hurt, humiliation and distress you experienced.

But it’s also a good idea to think about the things listed below before you go ahead:

  • taking legal action can be stressful, time-consuming and might cost you money if it has to go to court;
  • the amounts paid as compensation in discrimination cases in Australia have generally been quite low;
  • you’ll have to talk about what happened to you, often several times. Some people find this upsetting;
  • you might not get everything you want. Resolving a discrimination complaint usually involves making a compromise;
  • you might damage your relationship with the person you are complaining about. This might be uncomfortable if you still need to deal with that person (for instance if they are your boss or landlord);
  • when you make a complaint, the person you are complaining about will usually respond with their side of the story. They might deny your story or say things about you that you don’t like.

Who can make a complaint?

Generally the person who has been discriminated against makes the complaint themselves, but sometimes people make complaints on behalf of other people, such as:

  • parents for a child;
  • a person for someone with a disability; or
  • unions for union members.

Sometimes people can get together and make a group complaint if they have all been discriminated against in the same way.

Where do I make my complaint?

If you want to make a complaint under discrimination law, you cannot go straight to a court or tribunal. You first make your complaint to Anti-Discrimination NSW (ADNSW) or to the Australian Human Rights Commission (AHRC).

Young smiling manADNSW and the AHRC are government organisations that deal with discrimination complaints. They are not courts. They do not make decisions about what happened, who was right or wrong or whether the law has been breached. Their job is to help you sort out your complaint with the person you are complaining about.

You can only take your complaint to a court or tribunal (this is where a Federal Court judge or tribunal member will decide your case) if you cannot sort it out at ADNSW or the AHRC first. We talk about court and tribunal processes in Courts and tribunals.

If the discrimination happened in NSW, you can make your complaint to either ADNSW or the AHRC.

ADNSW deals with a NSW law called the Anti-Discrimination Act. If you make a complaint to ADNSW, you are using the state system.

The AHRC is a national organisation that covers all of Australia. It deals with five federal discrimination laws:

  • Australian Human Rights Commission Act;
  • Racial Discrimination Act;
  • Sex Discrimination Act;
  • Disability Discrimination Act;and
  • Age Discrimination Act.

If you make a complaint to the AHRC, you are using the federal system.

ADNSW and the AHRC both have their offices in Sydney (see Useful contacts). Staff from ADNSW and the AHRC can travel to regional areas to run conciliation conferences close to where you live (see Conciliation for information about conciliation).

Get to know your acronyms

  • AHRC stands for the Australian Human Rights Commission
  • ADNSW stands for Anti-Discrimination NSW
  • NCAT stands for the NSW Civil and Administrative Tribunal
  • FCFCOA stands for the Federal Circuit and Family Court of Australia
  • FCA stands for the Federal Court of Australia

Should I go to ADNSW or the AHRC?

You have to choose between ADNSW or the AHRC. This is called ‘electing jurisdiction’. You cannot make a complaint to both of them about the same problem.

Knowing which one to choose can be tricky, so it is important to get legal advice before you make your decision.

Some types of discrimination problems are only covered by state laws, and some are only covered by federal laws. This means that sometimes you’ll have no choice about where to complain. For instance:

  • if your complaint is against a federal government department such as Centrelink, or about the administration of a Commonwealth law or program, you have to complain to the AHRC;
  • if your complaint is against a small business with less than six employees, you have to complain to the AHRC (unless your complaint is about race or age discrimination or sexual harassment);
  • some types of vilification are only unlawful in the state system so you have to complain to ADNSW;
  • if your complaint is about intersex status discrimination you have to complain to the AHRC.

Make sure you complain to the right organisation for your type of problem. Always try to get legal advice first.

Allan finds a rental unit he loves, advertised through an inner city real estate agency. The real estate manager tells Allan he can have the house and arranges a time for him to come in and sign the lease. When Allan turns up to the agency with his partner Rosie, to put her on the lease too, the manager looks surprised. He says to Allan “Oh, I thought you were single and gay. We won’t be able to rent that place to both of you”.

Allan and Rosie think they’ve been discriminated against because they are in a relationship together. They go to see a lawyer at a community legal centre. The lawyer tells them they can make a complaint of discrimination on two different grounds – marital/relationship status and sexual orientation discrimination (in the area of accommodation); they can make a complaint of marital/relationship status to either ADNSW or the AHRC; but discrimination because of heterosexuality is covered by federal laws (Sex Discrimination Act (Cth)) and not state laws (Anti-Discrimination Act (NSW)). That means it is best for them to make their complaint to the AHRC and not ADNSW.

Sometimes, both ADNSW and the AHRC have the power to deal with the issue. For example, sex, race, age and disability are grounds of discrimination under both systems. In that case you will have to choose which organisation best suits your problem. Knowing a little bit about what lies ahead might help you decide.

Both organisations handle discrimination complaints in similar ways and this could involve a process called ‘conciliation’. If the complaint doesn’t get sorted out through conciliation and it ends up in a court or a tribunal, procedures in the state system and the federal system become quite different.

Complaints that are made to ADNSW but aren’t sorted out there can go to the NSW Civil and Administrative Tribunal (‘NCAT’). See from NSW Civil and Administrative Tribunal for details.

Smiling womanComplaints that are made to the AHRC but aren’t sorted out there might go to the Federal Circuit and Family Court of Australia (‘FCFCOA’) or the Federal Court of Australia (‘FCA’). See Federal Courts for details.

It’s important to understand the differences between NCAT and the federal courts right from the start so you know what to expect if your case goes ‘all the way’. This will help you decide whether to make your complaint to ADNSW or the AHRC. Here are a few of the main differences:

  • The federal courts can make different decisions (‘orders’) to those NCAT can make. For example, the maximum amount of compensation NCAT can give you for each complaint is $100,000, but there is no maximum limit on how much the federal courts can give you.
  • If your complaint ends up in the federal courts and you lose the case you will probably have to pay the other side’s legal expenses (‘costs’). This can be thousands of dollars. It’s unusual for this to happen in NCAT.
  • Similarly, if you win your case in the federal courts, the other side will probably have to pay your legal costs. This is unlikely to happen in NCAT.
  • It’s generally easier to run your own case in NCAT because the federal courts are more formal and have more technical rules.

As you can see, some of these differences are quite technical and there are many more that we haven’t gone into. We strongly recommend that you get legal advice about which system will suit you best before you lodge your complaint, because getting it wrong can have big consequences later on.

ADNSW and the AHRC both have a telephone inquiry service and a website (see Useful contacts). These are good starting points for getting information, but staff at the AHRC and ADNSW cannot give you legal advice. It is very important to get legal advice from a lawyer.

Eleni had a high-paying job as a senior executive. She was fired, and believes that it was because she fell pregnant. She can make a pregnancy discrimination complaint under state or federal anti-discrimination law or under employment law.

Eleni gets some legal advice and decides that the best option for her is to make a discrimination complaint. Next she has to choose between the AHRC and ADNSW. She likes the idea of complaining to the AHRC because there is no limit on the amount of compensation she can get if her complaint goes ‘all the way’ to court. But she also knows that if her case goes to court and she loses, she will probably have to pay the other side’s legal costs. Eleni does not want to take that risk, so she decides to lodge her complaint with ADNSW instead.

Bob lives with a vision impairment and has a guide dog. He receives a Disability Support Pension from Centrelink. One day Bob booked a taxi but the driver refused to pick him up because he didn’t want animals in his taxi. Bob has been to Legal Aid NSW and they have agreed to represent him in his case. After being told that he has the option of making a complaint to ADNSW or the AHRC, Bob decides the federal system is best for him. He is not too worried about the risk of having to pay the other side’s legal costs if he loses. This is because he has been advised that he has a strong case and he knows that with Legal Aid NSW representing him, the first $15,000 of any legal costs he could be ordered to pay would be covered by Legal Aid NSW.