Anti-Discrimination Commissioner : Who can make a complaint?

Who can make a complaint of discrimination?

What if a person who has been discriminated against is an infant, or a young child, or someone who can not speak for themselves?
What if a person can not read or write, or is unable to present the complaint in a way that can be understood?
What if the person has a disability which means that they can not complete a complaint form, so that someone needs to help them?
Is a person allowed to lodge a complaint on behalf of someone else?
Can a Union or Advocate make a complaint for a group of persons?

The Anti-Discrimination Act 1998 says that various people and organisations are entitled to make complaints of discrimination or prohibited conduct to the Office of the Anti-Discrimination Commissioner (OADC).

This is known as an 'as of right' provision. That is, these people and organisations have a right to make complaints for themselves or for others.

This includes:

a person who has been discriminated against;
a person who has been bullied or sexually harassed or victimised, etc - that is, had 'prohibited conduct' 'done' to them;
a person who is one of a number of people who have been discriminated against, or had prohibited conduct 'done' to them, claiming for themselves and the others, if the Commissioner accepts that the others agree;
a trade Union representing a member of the Union who has been discriminated against, or had prohibited conduct 'done' to them;
a trade Union representing a group or class of Union members who have had discrimination or prohibited conduct 'done' to them;
an organisation which has been discriminated against, or had prohibited conduct 'done' to it, if the Commissioner accepts that the majority of member of the organisation agree;
someone who is an agent of a person discriminated against, or acts for a group of people discriminated against or who have had prohibited conduct 'done' to them;
someone on behalf of a person who has been discriminated against or who has had prohibited conduct 'done' to them.

'Trade Union' as complainants

Trade unions can make complaints. This includes:

an organisation of employees that is a 'registered organisation'
a trade union within the meaning of -

the Industrial Relations Act 1984, the Tasmanian Act;
the Workplace Relations Act 1996, the Commonwealth Act;
any other similar body.

Trade unions and similar organisations can make complaints for their members or a 'class' or 'group' of members. This means that the trade union becomes the complainant, and has all the rights of a complainant - to sign the complaint, to communicate with the Commissioner, to be at the Conciliation Conference etc. They do not need to be authorised to represent the complainant. They are the complainant.

'Organisations' as complainants

An organisation can make a complaint, as long as it has one of the attributes or identities listed in the Act. For example:

an organisation or Indigenous Australians, promoting the culture, tradition and rights of Indigenous Australians;
an organisation promoting the rights of minority ethnic groups;
an organisation of women, promoting the rights of women, or equal opportunity for women in employment and access to services;
an organisation of gay, lesbian and transgender people, promoting and enhancing the safety and rights of gays, lesbians and transgender people;
an organisation of elderly people, promoting respect for and appreciation of contributions made by elderly people, and their access to services, accomodation etc;
an organisation established by persons with a disability, or people associated with someone with a disability, to promote and lobby for the rights of those with a disability.

Making a complaint 'on behalf of'

A child may be discriminated against at school because of a disability. The school fails to provide ramps for access to science laboratories, assembly hall or the school canteen. Or the child needs two hours to sit an examination that children without dyslexia can do in one hour, and the school refuses to allow this to happen.

The child could lodge a complaint with the Commissioner in their own right, or the parent could lodge a complaint 'on behalf of' the child.

If a number of children require ramp access, or two-hour exam time, one child could lodge a complaint as a member of that 'class', so that all can have their complaint considered. Or a parent may lodge a complaint 'on behalf of' the child, identifying the child as a member of a 'class' so that all children in that position can have their complaint considered.

Say an adult with an intellectual disability is unable to make their own complaint, someone can make a complaint on their behalf - say a parent, carer, organisation, advocate or lawyer.

Does a person making a complaint 'on behalf of' have to be 'authorised' by the Commissioner?

No. The person has a right to make the complaint. They are saying: 'The person on whose behalf I make the complaint wants me to do this, or needs me to do this, and I have a relationship with the person that means I can fairly put their case forward and speak 'for' them.

This is not a situation where, say a lawyer is seeking to represent the person as a lawyer, or someone wants to represent another person as their legal advocate.

In 'on behalf of' complaints, the person makes the complaint 'as of right' and 'on behalf of' the person discriminated against.

Making a complaint as an 'Agent' of

If a person is discriminated against in Tasmania, then moves to another state, or goes 'back home' - overseas, interstate etc. the person can use an agent to lodge a complaint with our Office.

If the person discriminated against lives in a remote part of the state, cannot collect mail regularly, or cannot afford a car, they may want an agent to lodge the complaint and deal with correspondence, then communicate the information by telephone to them. An agent could be appointed by them to do this.

'Agency' is a special relationship in law, and the person who is the agent acts on a contractual basis for the person who has been discriminated against or had prohibited conduct 'done' to them. The person discriminated against needs to sort out with the agent what role the agent is to play:

receive all communications with the Commissioner in relation to the complaint?

answer all communications from the Commissioner?

withdraw the complaint, if this becomes an issue?

extend time to complete the investigation, if this comes up?

refuse an extension of time and say that the complaint should go to the Tribunal for a hearing?

participate in a conciliation conference as agent, or agree to a conciliation conference?

seek authorisation of representation (by a lawyer, for example) under section 61 of the Act?

seek permission for representation in a conciliation conference under section 75 of the Act?

For further information see How to lodge a complaint