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HOW TO MAKE A DISCRIMINATION CLAIM!

Updated: Mar 30, 2022

Have you been discriminated against?


You may have a legitimate claim!


1. The first step to take is to make an internal complaint within the organisation you have been discriminated against.


2. Secondly, draft your Affidavit - ensure that you record the alleged perpetrator's name, role, badge number etc.

Write down the facts of where you were, at what time, and why you were there.

Gather the evidence, such as CCTV footage, documents, or video record the incident.

You can prepare an affidavit of factual evidence, with attachments backing up your claim, with your record of causational harm in relation to the incident, including bullying, harassment, coercion, fraud, deceit, discrimination, and how the incident may have harmed you on an ongoing basis, and into the future.


3. Third, you may want to make a complaint to the Equal Opportunity Commissioner WA.

This is a State-based body assessing discrimination cases. (more details below)


4. Fourth, the Australian Human Commission is a Federal regulatory body assessing human rights complaints, with a Commissioner overseeing each area of discrimination.


5. Fifth, the Federal Court of Australia hears maters pertaining to human rights discrimination. All other procedures need to be explored and considered before this is actioned, as going to court often takes longer and costs more than conciliation.


Here is some more in-depth information on each of the above categories:


  1. INTERNAL COMPALINTS

Whichever Organisation you are seeking to complain to, if it is a Government Department, the employee should fall under the Code of Conduct for Public Servants in the State or Federal Public Servants Act - depending on the jurisdiction of the Government Department.


Refer to this Code of Ethics/Code of Conduct, or the relevant organisation's policies on the same. Attach your Affidavit and factual record of events with attached evidence, and submit it to the internal complaints committee.


Even after your matter is heard, an outcome is reached and you are not satisfied with that outcome, you can appeal the decision. This is still an internal procedure, subject to the organisation's internal processes.


Australia has Federal Anti-Discrimination Laws for a reason!

Australia has stood against discrimination for many years, including a 30 year long commitment from the Federal Government to do everything possible to stamp out discrimination.


Here is a copy of the Federal Public Servants Act 1999.


C2019C00057
.pdf
Download PDF • 1.25MB

2. I have prepared instructions on the best way to prepare an affidavit on another blog post here. Please read it carefully, and adhere to its suggestions.



3. THE WESTERN AUSTRALIAN EQUAL OPPORTUNITY COMMISSION


In WA, matters which appear to be complaints under the Equal Opportunity Act 1984 (the Act) are investigated and if appropriate conciliated.


Acomplaint is an alleged unlawful discrimination, which has occurred in Western Australia, on a ground and in an area covered by the Act. The complaint should be lodged by the person who experienced the alleged discrimination.

The incident or incidents in the complaint must have occurred within the 12 months previous to the date the complaint is lodged.


Acomplaint must be provided in writing to the Equal Opportunity Commission (the Commission). It can be on a complaint form in hard copy, submitted on-line, or in a letter, email or statement providing information about the alleged discrimination. You should include copies of any documents to support your complaint.


Under the Act the person who makes the complaint must establish their case is supported by evidence and is arguable.

The onus is placed upon the respondent if they rely on an exception in the Act who must show that the exception applies in the particular circumstances of the complaint.


If a complaint is accepted the Commissioner will delegate to a conciliation officer to investigate and attempt toresolve the complaint; however sometimes a conciliation conference is not possible or required.

Conciliation officers do not take sides in complaints, advocate for or represent either the complainant or the respondent.


Complaint Outcomes from the WA EOC: 1. Conciliated - when all parties are satisfied the complaint has been resolved. 2. Withdrawn - when a complainant pulls out of the complaint process at any time. 3. Lapsed- when the complainant fails to maintain contact and the complaint file is closed or does not allow it to progress. 4. Dismissed - when the Commissioner decides at any stage that the complaint is misconceived, lacks substance, frivolous,vexatious or relates to an act that is not unlawful by reason of a provision of the Act and dismisses the complaint. 5. Commissioner Referred - when the Commissioner refers the complaint to the State Administrative Tribunal if a complaint appears to have substance and attempts at conciliation have failed. 6. Complainant Referred - when the Commissioner dismisses the complaint and the complainant has sought a referral to the State Administrative Tribunal.


You can access the WAEOC Complaint Form here:


Complaint Form WAEOC
.pdf
Download PDF • 1.38MB

The WA EOC Complaints Process Fact Sheet is found in this document here:


WAEOC Complaint Process Fact Sheet 2021
.pdf
Download PDF • 1.28MB

4. Here is a little history from the AUSTRALIAN HUMAN RIGHTS COMMISSION


Some of the major areas of anti-discrimination law includes: age, disability, racial, sex, and other general discriminatory categories such as unfair dismissal from work.


Below is some more information on each of these categories:


Age Discrimination Act 2004

The Age Discrimination Act 2004 protects people from age discrimination in employment, the provision of goods and services, education and the administration of Commonwealth laws and programs. Read more about age discrimination.

Disability Discrimination Act 1992

The Disability Discrimination Act 1992 seeks to eliminate discrimination against people with disabilities. Read more about disability discrimination.

Racial Discrimination Act 1975

The Racial Discrimination Act 1975 promotes equality before the law for all people regardless of race, colour or national or ethnic origin. It is unlawful to discrimination against people on the basis of race, colour, descent or national or ethnic origin. Read more about racial discrimination.

Sex Discrimination Act 1984

The Sex Discrimination Act 1984 protects people from unfair treatment on the basis of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy and breastfeeding. It also protects workers with family responsibilities and makes sexual harassment against the law. Read more about sex discrimination.

Australian Human Rights Commission Act 1986

The Australian Human Rights Commission Act 1986 articulates the Australian Human Rights Commission role and responsibilities. It gives effect to Australia’s obligations under the following:

  • International Covenant on Civil and Political Rights (ICCPR)

  • Convention Concerning Discrimination in Respect of Employment and Occupation (ILO 111)

  • Convention on the Rights of Persons with Disabilities

  • Convention on the Rights of the Child

  • Declaration of the Rights of the Child

  • Declaration on the Rights of Disabled Persons

  • Declaration on the Rights of Mentally Retarded Persons, and

  • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.


Here is some further information on each of these categories:



As you can see, Each specific category has a specific law, and has its own Commissioner.



Aboriginal and Torres Strait Islander Social Justice Commissioner Ms June Oscar AO

Age Discrimination Commissioner The Hon Dr Kay Patterson AO

Children's Commissioner Ms Anne Hollonds

Disability Discrimination Commissioner Dr Ben Gauntlett

Human Rights Commissioner Ms Lorraine Finlay

Race Discrimination Commissioner Mr Chin Tan

Sex Discrimination Commissioner Ms Kate Jenkins



You can make a complaint no matter where you live in Australia.

It doesn’t cost anything to make a complaint and you don't need a lawyer to make a complaint.


If you are not sure if you can make a complaint about something, you can contact the Commission’s National Information Service by phone on 1300 656 419 or by email to infoservice@humanrights.gov.au


If they cannot help you, they will try to refer you to someone who can.


The Commission can only accept written complaints.

You can make a complaint online at www.humanrights.gov.au/complaints/make-complaint


If you prefer, you can print off a complaint form, fill it in and post it to: GPO Box 5218, Sydney NSW 2001 or fax it to 02 9284 9611.


Complaints Outcomes

Complaints to the Commission are resolved through a process known as conciliation.

Conciliation is a very successful way of resolving complaints. Feedback shows that most people find the process fair, informal and easy to understand. It also helps them to better understand the issues and come up with solutions that are appropriate to their circumstances.


Complaint outcomes can include an apology, reinstatement to a job, compensation for lost wages, changes to a policy or developing and promoting anti-discrimination policies.


I have attached a AHRC Complaints Form for you here:

AHRC Complaint Form
.doc
Download DOC • 204KB

Hre is a copy of the Australian Human Rigths Commission Guide:

Australian Human Right Commission Guide to Discrimination Law
.pdf
Download PDF • 696KB



5. THE FEDERAL COURT OF AUSTRALIA


The Federal Circuit and Family Court of Australia has jurisdiction over civil matters arising under Part IIB or IIC of the Australian Human Rights Commission Act 1986 (AHRC Act).


I have attached the AHRC Act for your convenience here:

C2019C00030
.pdf
Download PDF • 1.82MB

The Australian Human Rights Commission Act 1986

The Australian Human Rights Commission Act 1986 articulates the Australian Human Rights Commission role and responsibilities. It gives effect to Australia’s obligations under the following:

  • International Covenant on Civil and Political Rights (ICCPR)

  • Convention Concerning Discrimination in Respect of Employment and Occupation (ILO 111)

  • Convention on the Rights of Persons with Disabilities

  • Convention on the Rights of the Child

  • Declaration of the Rights of the Child

  • Declaration on the Rights of Disabled Persons

  • Declaration on the Rights of Mentally Retarded Persons, and

  • Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.


The Federal Circuit and Family Court of Australia has jurisdiction over civil matters arising from complaints alleging unlawful discrimination under:

The Court has jurisdiction (under section 46PO of the AHRC Act) if:

  • an affected person makes an application in relation to a complaint of unlawful discrimination which has been terminated by the President of the Australian Human Rights Commission, and

  • the President has given notice of the termination.

The Court may provide substantive relief and interim relief.

The Court can make:


  • an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination

  • an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant

  • an order requiring a respondent to employ or re-employ an applicant

  • an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent

  • an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant, and

  • an order declaring that it would be inappropriate for any further action to be taken in the matter.

There is no monetary jurisdictional limit on the Court in proceedings under the AHRC Act. To commence an application, use the Application – Human rights.

The Human Rights Instructions for Completion of the Application for the Federal Court is attached here:

HR_Application_0921V1-2
.pdf
Download PDF • 187KB

You must:

  • file your application within 60 days from the date on the notice of termination from the President, or

  • seek an extension of time for filing the application.

You do not need to file an affidavit in support of the application. The Response – Human rights should be filed within 28 days after the application is received.


The Human Rights Application for Completion for the Federal Court is attached here:



HR_Response_0921V1
.pdf
Download PDF • 167KB

Make sure you put on record the discrimination you have faced, gather your data and evidence, fill out the forms correctly and carefully, and ensure you make factual, reasonable complaints, based on the wording in the legislation.


 

If you need assistance with preparing your affidavit or other documents, with human rights advocacy, or business consulting, please make a booking here on our website, and receive knowledgeable, compassionate, professional support from a trained international human rights legal advocate!


SUBSCRIBE TO OUR WEBSITE HERE TO GET UP TO DATE, WEEKLY INFORMATION, RESOURCES AND SUPPORT WITH BUSINESS AND HUMAN RIGHTS MATTERS.




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