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4 Sep 13
Important changes to Queensland anti-discrimination procedures

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Significant amendments to the Anti-Discrimination Act 1991 (Qld) (Act) have been passed by the Queensland Parliament under the Justice and Other Legislation Amendment Act 2013 (Amendment Act).  The Amendment Act received assent on 29 August 2013, and the amendments came into effect that same day. 

In short, the amendments deal with discrimination complaints that have been dealt with elsewhere, the investigation powers of the Anti-Discrimination Commissioner and limiting complaints about the same conduct.

Complaints dealt with elsewhere

The Commissioner now has additional grounds upon which to stay or reject a complaint where the complaint has been dealt with elsewhere.  Previously, the Commissioner could only reject or stay a complaint where there were concurrent proceedings in a court or tribunal in relation to acts or omissions that were the subject of the complaint. 

In addition to the previously existing right, the amendment to the Act now allows the Commissioner to:

  • reject or stay a complaint where the Commissioner ‘reasonably considers the act or omission that is the subject of the complaint may be effectively or conveniently dealt with by another entity’, or
  • reject a complaint where the Commissioner ‘reasonably considers the act or omission the subject of the complaint has been adequately dealt with by another entity’.

During the second reading speech of the Amendment Act, Attorney General Jarrod Bleijie stated that these amendments will ‘reduce unnecessary duplication of effort’ and will be useful where multiple complaints have been made to different entities.  He noted that these grounds are discretionary and that the Commissioner ‘will consider a range of relevant factors...including the availability of comparable remedies’, although these factors are not explicitly outlined in the legislation. 

The amendments apply to complaints that had not (before commencement) been accepted, rejected or stayed.

In addition, where a complaint has been accepted but not referred to the Queensland Civil and Administrative Tribunal, and the Commissioner reasonably considers that the act or omission has been adequately dealt with by another entity, or may be effectively or conveniently dealt with by another entity, the Commissioner can now issue a ‘show cause notice’ inviting the complainant to ‘show cause why the complaint should not lapse’

If, after considering any submissions made during the 28 day show cause period, the Commissioner is of the view that either of these grounds are satisfied, the complaint will lapse, and the complainant is prohibited from making a further complaint about the same act or omission. 

There are related procedural steps that must be adhered to in the show cause notice (such as compulsory inclusions and that the complaint must be in writing) and advising the complainant of a lapsed complaint.

This ‘show cause’ provision applies to all complaints that have been accepted but not finally dealt with or referred to the Queensland Civil and Administrative Tribunal, including complaints made before the commencement of the amendments.

Complaint investigations

The Act has now been amended to allow the Commissioner to investigate a complaint ‘at any time after the complaint is received by the commissioner’

Previously, an investigation could only occur for complaints that had been accepted.  Therefore, this amendment allows an investigation to occur before a complaint has officially been accepted and may be used to determine if a complaint should be accepted.  When exercising this power, the Commissioner has the same powers as they would when dealing with a complaint or contravention of the Act.

This new provision applies to complaints made before commencement where they had not been accepted, rejected or stayed.

Lapsing complaints

Amendments to the Act also now allow the Commissioner to issue a notice in writing providing a complainant with 28 days to show (to the Commissioner’s satisfaction) the complaint is not frivolous, trivial, vexatious, misconceived or lacking in substance. 

If the complainant fails to respond, or fails to satisfy the Commissioner to the required standard, the complaint will lapse and the complainant cannot make a further complaint in relation to the conduct complained about.  This provision is drafted to apply to future complaints, but also applies to complaints that lapsed prior to the commencement of the amendments.

The prohibition on further complaints is a welcome change for respondents in terms of ensuring finality of claims against them. 

A further amendment to the Act clarifies that where the complainant has ‘lost interest’ in the complaint, the Commissioner may write to the complainant advising them that their complaint will lapse if they do not indicate that they wish to continue.  The Commissioner must also advise the complainant that if the complaint lapses they will not be able to make a further complaint about the same conduct.  Complainants were already prohibited from making further complaints about the same conduct if the matter lapsed due to losing interest in the matter.  Accordingly, the sole purpose of this change is to ensure that a written warning is provided to complainants in these circumstances.

‘Cooling off’ period

The Act now also outlines procedural requirements related to the withdrawal of complaints.

If a complainant indicates that they do not wish to continue with a complaint, a 28 day ‘cooling off’ period will now apply before the complaint lapses.

During this time, the complainant may choose to continue with the complaint.  If they do not, the complaint will lapse the day after the 28 day period ends, and the complainant will not be able to make a further complaint about the same conduct. 

This provision applies to future complaints, as well as complaints that lapsed prior to the commencement of the amendments.
This amendment can be seen as a double-edged sword.  The Member for Bulimba, Aaron Dillaway, stated in Parliament that the cooling off period ‘creates flexibility and eliminates excess red tape’ where a complainant changes their mind.  For respondents to complaints, the change provides a benefit in that, where the complaint lapses, further complaints about the same conduct will be blocked.  However, on the flipside, the 28 day time frame creates a further period of uncertainty before a complaint can officially lapse.

Conclusion

Many of the changes to the Act are welcome in that they provide more certainty around procedural matters, especially in circumstances where complaints may be rejected or lapse.  However, it also means that complainants and respondents now have new rules to apply as part of bringing or responding to anti-discrimination claims.  

If you need legal advice about discrimination in the workplace or any aspect of employment law, please contact our team.

 

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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