Search or view whole report

Recommendations

This report surveyed the practices of a number of tribunals whose operations were similar to the then Equal Opportunity Tribunal (NSW).

The Equal Opportunity Tribunal is now the Equal Opportunity Division of the Administrative Decisions Tribunal (NSW). The procedures used in conducting hearings remain largely unchanged by the merger of the jurisdictions, and the report and its recommendation continue to be relevant.

In relation to the Equal Opportunity Division of the Administrative Decisions Tribunal (NSW):

1. Reduce formalities in proceedings

The Tribunal ought to take all steps to make use of its powers under the Anti-Discrimination Act to reduce the formality of the hearings and proceedings, and to take active steps to inform itself of matters it considers relevant to determining the issues before it.

2. Consider whether legal representation ought to be allowed in each case

The Tribunal ought to make use of its powers under s101 of the Anti-Discrimination Act (legal representation by leave of the Tribunal only) and give consideration to whether legal representation is appropriate in each case. One of the factors the Tribunal should consider is whether the representation of one party and not the other would lead to the unrepresented party being disadvantaged, and whether the availability of counsel assisting precludes the need for parties to be represented.

3. A duty solicitor

Unrepresented parties in matters before the Tribunal ought to have access to assistance, preferably at all stages of the proceedings.

4. Counsel assisting

Counsel assisting could be appointed to prepare matters by requesting relevant material or reports, conducting cross-examination, and making submissions before the Tribunal.

5. An associate to members

Tribunal members are currently appointed part time (at call). An associate to assist the Tribunal members with questions of law, legal research, recent relevant decisions, and other duties usually undertaken by an associate would allow the members to have up to date information and assist with consistency in decisions and judgements.

6. Training

Members should be provided with training on appointment to the Tribunal. They should be better resourced and kept up to date with, for example, Bench books, conferences, regular updates on relevant decisions and so on.

7. The role of the Registry

The role of the Registry ought to be developed and extended, perhaps by the delegation of some administrative and procedural functions. Training should also be provided to Registry staff. The Registrar should be able to issue subpoenas or make directions by consent between the parties, set timetables for the conduct of matters, and should be trained to conduct mediations.

The Registry could conduct regular information sessions and produce written material in plain English on the procedures of the Tribunal.

8. Case management

The Tribunal should adopt a system of differential case management. Matters can be identified at their outset as either direct, standard or complex. Once identified the matter follows a certain track or timetable to ensure it is dealt with expeditiously and in an appropriate manner.

9. Alternative dispute resolution

The Tribunal should encourage parties to attend mediation as early on in the proceedings as possible. Only members with appropriate training should conduct mediations, but all members (both judicial and non-judicial) should have access to such training.

10. Tenure of members

The number of members should be reduced. Fewer members would mean that members have greater opportunity to sit on hearings and attend training. Appointment of members ought to be on a permanent part time basis or at least involve some regular pattern of attendance. There ought to be at least one full time judicial member.

11. The role of the President's Report

The status of the President's Report ought to be decided, and perhaps more use made of the Report as a summary of the complaint.

12. Community consultation

The Tribunal should conduct community consultation with members of the legal profession who appear on a regular basis before the Tribunal to allow the opportunity for feedback from the users of its services.

13. Liaison between the Anti-Discrimination Board and the Equal Opportunity Tribunal

It is essential for the ADB and the EOT to keep open lines of communication and liaise regularly on issues of mutual concern.