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Contents (1977 - 48)
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Anti-Discrimination Act 1977 No 48
Current version for 13 August 2018 to date (accessed 20 September 2019 at 10:25)
Part 9 Division 3
Division 3 Complaints—the functions of the Tribunal
95   Referral of complaints to Tribunal
(1)  A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C.
(2)  The Minister may refer any matter to the Tribunal as a complaint.
(3)    (Repealed)
95A   (Repealed)
96   Leave of Tribunal required for inquiry into certain matters
(1)  A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.
(2)  An issue that is the subject of proceedings before the Industrial Relations Commission may not be the subject of proceedings relating to a complaint before the Tribunal without the leave of the Tribunal.
(3)  Subsection (2) does not affect the operation of section 38 (Procedure of Tribunal generally) of the Civil and Administrative Tribunal Act 2013 in relation to evidence given before, or findings made by, the Industrial Relations Commission.
(4)    (Repealed)
97   (Repealed)
98   Fees or rewards for representing parties
(1), (2)    (Repealed)
(3)  A person, other than an Australian legal practitioner, is not entitled to demand or receive a fee or reward that is provided for the purpose of representing a party in proceedings before the Tribunal relating to a complaint.
(4)    (Repealed)
99   Member of staff assisting Tribunal
(1)  The Tribunal may make arrangements with the Board for a member of staff of the Board to appear and assist the Tribunal in proceedings before the Tribunal relating to a complaint.
(2)  A member of staff of the Board in assisting the Tribunal in proceedings pursuant to arrangements made under this section is subject to the control and direction of the Tribunal.
100   Single proceeding in relation to several complaints
If the Tribunal is of the opinion that two or more complaints arise out of the same or substantially the same circumstances or subject-matter, it may deal with those complaints in the same proceedings.
101   Determinations with respect to representative complaints
(1)  In proceedings relating to a representative complaint, the Tribunal is to determine, as a preliminary matter, whether the complaint should be dealt with as a representative complaint.
(2)  The Tribunal must not permit a complaint to be dealt with as a representative complaint unless it is satisfied that the complaint is made in good faith as a representative complaint.
(3)  In considering whether a complaint is made in good faith as a representative complaint, the Tribunal is to satisfy itself:
(a)  that:
(i)  the complainant is a member of a class of persons whose members have been affected, or may reasonably be likely to be affected, by the conduct of the respondent, and
(ii)  the complainant has in fact been affected by the conduct of the respondent, and
(iii)  the class is so numerous that joinder of all its members is impracticable, and
(iv)  there are questions of law or fact common to all members of the class, and
(v)  the claims of the complainant are typical of the claims of the class, and
(vi)  multiple complaints would be likely to produce varying determinations which could have incomparable or inconsistent results for the individual members of the class, and
(vii)  the respondent has acted on grounds apparently applying to the class as a whole, thereby making relief appropriate for the class as a whole, or
(b)  that, even though the requirements of paragraph (a) are not satisfied, the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint.
(4)  If the Tribunal is satisfied that a complaint could be dealt with as a representative complaint if the class of persons on whose behalf the complaint was made is increased, reduced or otherwise altered, the Tribunal may amend the complaint so that it can be dealt with as a representative complaint.
(5)  If the Tribunal is satisfied that a complaint has been wrongly made as a representative complaint, the Tribunal may amend the complaint by removing the names of the persons or the class of persons on whose behalf the complaint was made so that it can be dealt with as a complaint other than a representative complaint.
101A, 101B   (Repealed)
102   Tribunal may dismiss complaint
The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
103   Tribunal may amend complaint
(1)  The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
(2)  A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
(3)  An amendment may be made subject to such conditions as the Tribunal thinks fit.
104   Proof of exceptions
Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.
105   Interim orders
(1)  The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:
(a)  to preserve the status quo between the parties to the complaint, or
(b)  to preserve the rights of the parties to the complaint, or
(c)  to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred,
pending determination of the matter the subject of the complaint.
(2)  For the avoidance of doubt, section 62 of the Civil and Administrative Tribunal Act 2013 applies to an interim order of the Tribunal in the same way as it applies to a general decision of the Tribunal.
106, 107   (Repealed)
108   Order or other decision of Tribunal
(1)  In proceedings relating to a complaint, the Tribunal may:
(a)  dismiss the complaint in whole or in part, or
(b)  find the complaint substantiated in whole or in part.
(2)  If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a)  except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,
(b)  make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c)  except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,
(d)  order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),
(e)  in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,
(f)  make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,
(g)  decline to take any further action in the matter.
(3)  An order of the Tribunal may extend to conduct of the respondent that affects persons other than the complainant or complainants if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate.
(4)  The power of the Tribunal to award damages to a complainant is taken, in the case of a complaint lodged by a representative body, to be a power to award damages to the person or persons on behalf of whom the complaint is made and not to include a power to award damages to the representative body.
(5)  In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
(6)  If two or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated in whole or in part, the Tribunal must not make an order or orders for damages that would cause the respondent to pay more than $100,000 in the aggregate in respect of that public act.
(7)  If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.
109   Order affecting industrial instrument
If the Tribunal makes an order that affects an industrial instrument within the meaning of the Industrial Relations Act 1996, it must give notice in writing to the Chief Commissioner of the Industrial Relations Commission of the order as soon as practicable after the order is made.
110–111   (Repealed)
111A   Compensation to offenders in custody—payment to Victims Support Fund
(1)  In this section:
offender damages means damages ordered by the Tribunal under this Division to be paid to a person:
(a)  by way of compensation for any loss or damage suffered by reason of the conduct of a protected defendant that occurred while the person was an offender in custody, or
(b)  by way of compensation for failure by a protected defendant to comply with an order of the Tribunal made in connection with a complaint about any such conduct.
offender in custody and protected defendant have the same meanings as in Part 2A (Special provisions for offenders in custody) of the Civil Liability Act 2002.
(2)  A protected defendant who is liable to pay offender damages to a person must not pay the damages to the person and instead must pay the amount of the damages into the Victims Support Fund established under the Victims Rights and Support Act 2013 to be expended as money forming part of that Fund.
(3)  Payment of an amount of damages into the Victims Support Fund by a protected defendant pursuant to this section discharges the protected defendant’s liability to pay the damages to the person to whom the damages were ordered to be paid.
(4)  This section extends to any interest that accrues on an amount of damages and a reference in this section to damages includes interest on damages.
(5)  This section does not apply to any costs payable pursuant to an order of the Tribunal.
(6)  This section does not apply to any offender damages that are excluded by the regulations from the operation of this section.
112   Interest on damages
(1)  Interest accrues on an amount of damages ordered to be paid by the Tribunal from the date on which the order takes effect until payment.
(2)  Despite subsection (1), the Tribunal may order that interest accrues on an amount of damages ordered to be paid by it from a date that is earlier than the date on which its order is made.
(3)  Interest referred to in this section accrues at the same rate as that applicable to a judgment of the District Court.
113   Enforcement of orders by the President
If the President believes it is in the public interest to do so, the President may:
(a)  in the case of an individual complaint, take steps to enforce an order of the Tribunal on behalf of the complainant, with the complainant’s consent, or
(b)  in the case of a representative complaint, take steps to enforce an order of the Tribunal, on the President’s own motion.
114   Enforcement of non-monetary orders
(1)  This section applies to an order, or part of an order, of the Tribunal other than an order, or part of an order, for the recovery of an amount ordered to be paid by the Tribunal or a civil or other penalty ordered to be paid by the Tribunal.
(2)  For the purpose of enforcing an order, or part of an order, to which this section applies, a registrar of the Tribunal may certify the making of the order, or part, and its terms.
(3)  A certificate of a registrar of the Tribunal under this section that is filed in the registry of the Supreme Court operates as a judgment of that Court.
(4)  Nothing in this section limits or otherwise affects section 78 of the Civil and Administrative Tribunal Act 2013.
115   (Repealed)
116   Relationship between this Division and NCAT legislation
This Division applies in addition to the provisions of the Administrative Decisions Review Act 1997 and the Civil and Administrative Tribunal Act 2013 but prevails over those provisions to the extent of any inconsistency.
117–118   (Repealed)