The Office of the Anti-Discrimination Commissioner (OADC) has timelines during the complaint handling process. These timelines are set by the Anti-Discrimination Act 1998 ("the Act") or by the Commissioner.
A complaint is to be made within 12 months after the alleged discrimination or prohibited conduct happens. If the conduct happened more than 12 months ago, the Commissioner may not be able to assist unless there are good reasons for the delay in making a complaint.
The Commissioner has 42 days (six weeks) from the date the complaint is lodged to decide whether it should be accepted or rejected for investigation.
When a complaint is rejected for investigation it means that the material provided by the complainant raises no possible breaches of the Act. If the complainant disagrees with the Commissioner's decision, they have 28 days from the date the decision is received to write to the Anti-Discrimination Tribunal (Tribunal) seeking a review. If the Tribunal does not agree with the Commissioner's decision to reject the complaint, the Tribunal may refer the complaint back for investigation.
When a complaint is accepted for investigation it means that 'possible breaches' have been disclosed on the material provided by the complainant.
The Commissioner will then notify the complainant in writing of the decision to accept the complaint and the investigation begins.
The respondent/s, the person/s or organisation/s against whom the complaint has been made, are notified within 10 days of the acceptance and are provided with either a summary of the complaint or with the consent of the complainant, a complete copy.
The respondent/s are given 14 days to respond to the complaint. As soon as a response is received, a copy is sent to the complainant to reply to the response.
Extensions of time to respond or reply may be granted upon request to the Commissioner or Investigation Officer if there is a good reason.
The Act requires an investigation to be completed within six months from the date the respondent is notified of the complaint. If the investigation is not completed within six months, the complainant has two options:
1. extend the investigation time, so it can continue; or
2. elect to have the complaint referred to the Tribunal for inquiry.
The OADC will notify the complainant of the six month date and their options.
It is important that the complainant responds to the Commissioner's letter advising what they want to do. If a response is not received from the complainant, the complaint is referred to the Tribunal.
At the end of the investigation, the Commissioner will decide to either:
1. dismiss the complaint; or
2. refer the complaint for conciliation; or
3. refer the complaint to the Tribunal for inquiry.
Both the complainant and the respondent will be notified of the Commissioner's decision, usually within 10 days.
A complaint is dismissed if the investigation finds the complaint does not relate to discrimination or prohibited conduct. If the complainant wishes they can seek to have the decision reviewed by the Tribunal. The complainant has 28 days to apply in writing to the Tribunal.
A complaint is referred for conciliation at the end of the invesgiation if the material raises possible breaches of the Act, and the Commissioner believes the complaint may be resolved through conciliation. For further information about what happens at a conciliation see Conciliation Conferences brochure.
When are complaints referred to the Tribunal?
A complaint is referred to the Tribunal for inquiry if the Commissioner:
Once a complaint has been referred to the Tribunal, the Commissioner has 48 days to prepare a referral report.
A referral report sets out the issues involved in the complaint, the witnesses who should be called and relevant documents obtained during the investigation. Only the Tribunal received a copy of the documents listed in the referral report.
If the complainant and respondent/s want copies of documents they do not already have for the inquiry, they must be obtained through the Tribunal.
Once the complaint has been referred to the Tribunal and the referral report has been sent, the OADC ceases to have any involvement in the complaint.
The Tribunal has its own timelines and procedures to be followed. Parties must therefore communicate at this stage directly with the Tribunal not the OADC.
Address: 23-25 Liverpool Street, Hobart
Phone: (03) 6233 8372
Fax: (03) 6233 5355