If you wish to make a complaint under the anti-discrimination laws you cannot go directly to a court or tribunal. You must first make a complaint to one of the relevant anti-discrimination agencies, that is:
- the Australian Human Rights Commission, which deals with complaints under Commonwealth anti-discrimination legislation, OR
- the Equal Opportunity Commission (EOC), which deals with complaints under South Australian anti-discrimination laws.
Choosing jurisdiction
You must choose which agency to pursue a complaint with as you cannot make a complaint to both agencies about the same matter. This is referred to as ‘electing jurisdiction’.
To complicate matters most types of discrimination are covered by both Commonwealth and State legislation. A summary of the types of discrimination and the jurisdiction which deal with them are summarised in the table below. Even when a type of discrimination is covered by both State and Commonwealth law there can be a difference between the sorts of exemptions that apply under one type of legislation and the other so it is always best to get advice.
Each agency can advise on whether it can handle a particular complaint, and will refer complaints to the other agency if necessary.
Making a decision about which jurisdiction to choose is easiest when the type of discrimination and the area under which it occurred are covered by only one jurisdiction. For example:
- where a person wants to claim discrimination on the grounds of family responsibilities, this ground for discrimination is available only under Commonwealth law
- where a person wants to claim discrimination on the basis of sexuality, this ground for discrimination is only available under South Australian legislation
Where it is the case that both the Australian Human Rights Commission and the Equal Opportunity Commission have the power to deal with your complaint you need to decide which agency best suits your problem.
Both organisations handle complaints through a conciliation process to begin with. However, if the complaint is not able to be sorted out by conciliation it may be referred to a court or tribunal and there can be considerable differences in jurisdiction between the state and the federal systems.
Some factors to keep in mind when deciding between jurisdictions are:
- It is usually easier to run your own case in the Equal Opportunity Tribunal than in the Federal Court
- If your complaint ends up in the Federal Court you will probably have to pay the other side’s legal costs if you lose; this can be very expensive, running into thousands of dollars
- If you initiate your complaint under South Australian law you cannot decide later to transfer your complaint to the Australian Human Rights Commission (AHRC), but you can generally commence a complaint with AHRC and then opt to move to the Equal Opportunity Commission and deal with the matter under South Australian law
Discrimination jurisdiction checker
Jurisdictions according to type of discrimination
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