Search or view whole report

Background: The Equal Opportunity Division of the NSW Administrative Decisions Tribunal

1. The Equal Opportunity Tribunal of NSW was established under the Anti-Discrimination Act 1977 (NSW) (the ADA) to investigate complaints referred to it by the President of the Anti-Discrimination Board (ADB).

2. In 1997 the Tribunal became the Equal Opportunity Divisions (EOD) of the newly established NSW Administrative Decisions Tribunal (ADT). The ADB and ADT deal with complaints of discrimination under the Anti-Discrimination Act.

3. A complaint is made in writing to the ADB and allocated to an officer who investigates it. If the matter is unable to be resolved at the ADB, either through conciliation or other means, the complaint and result of the investigation are compiled into the President's Report, which is forwarded to the ADT.

4. The ADT is required to `hold an inquiry' into each complaint referred by the ADB. The ADT does not review administrative decisions, but conducts enquiries and makes decisions on findings of fact and law.

5. The EOD of the ADT is a jurisdiction where complainants are often disempowered and disadvantaged through language difficulties, or physical or intellectual impairment. Unrepresented complainants seem to face significant difficulties in complying with the procedures of the ADT.

6. In 1995 the then EOT collected statistics, comparing the progress of matters to the Tribunal when one party was unrepresented with matters where both parties were represented. The data suggested that when a complainant was unrepresented, matters took twice as long from referral to completion. They required twice as many directions hearings and final hearings took longer to complete.

7. As a result of this information, the then EOT made a submission to the Law Foundation of NSW who funded a part time duty solicitor for 12 months. The solicitor was to assist unrepresented parties and to appear with them at the first directions hearing. This seeding grant resulted in the Attorney General's Department funding, on a permanent basis, a solicitor from the Legal Aid Commission of NSW to attend the EOD on a part time basis as a duty solicitor.

8. During the pilot duty solicitor project in 1996/7, there were 166 new matters received by the then EOT. Of these the duty solicitor appeared in 81; in only 4 of these 81 did a solicitor appear for the respondent. A comparison of the running time of the directions hearings conducted before the duty solicitor pilot, and after the duty solicitor pilot, showed a significant reduction in the running time.

9. The Law Foundation of NSW approved an extension of the duty solicitor project to allow the collection of information and the formulation of recommendations for changes to the EOD procedures which would be of assistance to the unrepresented parties in light of the duty solicitor experience.

10. This small project cannot possibly canvass all the matters to be considered when examining Tribunal procedures and unrepresented parties. The recommendations will, however, assist the ADT to provide flexible and accessible services in an impartial and cost effective manner.

11. This research and report was conducted and written on a part time basis from 1997 to 1999. The information was correct at the time it was collected. The following account reflects the practice of the ADT at 1 January 2000.

The complaint procedure

12. After conducting an investigation of a complaint, the President of the ADB refers a complaint to the ADT when the President is unable to resolve the complaint. If the President declines a complaint, for example as lacking in substance, the complainant can in any event require the matter to be referred to the ADT.

13. The President prepares a Report to the ADT which contains a summary of the complaint, the initial letter of complaint, and details of the investigation. There is no reference in the Report to attempts made to conciliate, as reference to conciliation is inadmissible in any ADT proceedings (Section 94(2) Anti-Discrimination Act).

14. Once the referral of the complaint is received by the ADT, the following procedure takes place:

• The parties are notified in writing of the referral, and are advised of a directions hearing. The parties receive a copy of the President's Report and some information about the Tribunal procedure.
• At the directions hearing, a full Tribunal sits: two non judicial members and the Deputy President of the ADT, who is head of the EOD. The directions hearings are an opportunity to determine the progress of the matter to hearing. The parties are expected to advise whether:
• they wish their matter to be set down for a hearing.
• they wish to have the `usual directions' made. The usual directions are based on the District Court Rules timetable: 28 days for complainants to file points of claim and statements of evidence, 28 days for respondents to file points of defence, 14 days to reply, and so on. If complied with, the timetable is complete in about 3 months.
• they agree to attend mediation to attempt a settlement.
• leave is sought for legal representation. Although the Administrative Decisions Tribunal Act 1997 (NSW) provides that legal representation is available by leave, in practice leave is not formally sought and is rarely, if ever, denied.
• Many parties attend a mediation conference to attempt a settlement. Mediation is conducted by a judicial member on the mediation panel of the EOD. If the matter does not settle at the mediation, the complaint goes to a hearing.
• Once the timetable has been complied with, the Registrar allocates a hearing date.
• Matters are often listed for further directions on interlocutory issues such as the issue of subpoena, non-compliance with directions, or applications to strike out complaints.
• The EOD hearings are conventional in appearance. They are conducted in open court unless the Tribunal otherwise orders or the parties agree.
• During a hearing, the President's Report is usually tendered and both parties present their case. Parties are expected to call their witnesses, tender material into evidence, object to material and make opening and closing submissions. They are expected to cross examine witnesses and make submissions on relevant law.
• The duration of a typical hearing before the EOD is 2-3 days, as estimated by Registry staff.
• Appeals from the EOD were made to the Supreme Court of New South Wales, but are now made to the appeal panel of the ADT.

The complainants

15. Complainants before the EOD are people who feel they have been disadvantaged, mistreated or prejudiced due to some personal factor such as their race, gender, homosexuality, marital status or disability. They may have language difficulties, or a physical or intellectual impairment.

16. Complainants come to the EOD seeking redress for alleged discrimination; the relationship between the parties is such that the complainant is usually the less powerful party such as an employee or a job applicant.

The respondents

17. Respondents are most commonly companies or large organisations. The majority of respondents are government organisations and/or employers, and are legally represented.

The statutory procedures in the Equal Opportunities Division

18. The procedures in the former Equal Opportunity Tribunal were governed by Part 9 Division 3 of the ADA. Sections of that Act have been repealed by the ADT Act, and the procedures in the Equal Opportunity Division of the ADT are now governed by both the ADA and Chapter 6 of the ADT Act.

19. Provisions relating to the functions of the ADT in its Equal Opportunity jurisdiction are in sections 95-118 of the ADA. Provisions relating to the procedures in the ADT generally are in sections \ 67-111 of the ADT Act.