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; or
- the Fair Work Commission, which deals with discrimination at work by an employer.
You will need to consider which pathway best fits your complaint. As such it is best to get legal advice.
If you have been dismissed, however, then you should contact the Fair Work Commission, which handles cases of unfair or unlawful dismissal. You have only 21 days to lodge an application about an unfair dismissal or unlawful dismissal (including dismissal for discriminatory reasons).
More detail about the role of the Fair Work Ombudsman and of Fair Work Commission are found on their websites. They also have helplines open to receive enquiries. See further: the Employment chapter of the handbook, in particular, the section on on protected workplace rights: General Protections.
The Australian Human Rights Commission can accept complaints about discrimination in public life generally, including work, education, qualifications, goods and services and accommodation. It applies the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) (all Commonwealth Acts). The Commission’s role is principally to try to conciliate between the disputing parties to reach an agreed solution. Matters that do not resolve in this way can (with some exceptions) be referred to the Federal Court, where the parties can litigate the case if they choose. (The Federal Court is a formal jurisdiction and the losing party will normally have to pay the winning party’s costs.) There are some matter types where, if conciliation does not succeed, the complaint cannot be taken further.
More detail about the role of the Australian Human Rights Commission is available from its website. It also has a telephone enquiry line: 1300 656 419.
The South Australian Equal Opportunity Commission can accept complaints about discrimination in public life if they are covered by the Equal Opportunity Act 1984 (SA). Its role is to conciliate between the parties. If conciliation does not succeed, the case can be referred to the Equal Opportunity Tribunal. The Commissioner has a discretion as to whether to provide funding to the parties to litigate the case in the South Australian Employment Tribunal (for all matters, even those not relating to employment). This is a less formal jurisdiction and neither party will normally have to pay the other’s legal costs. However, monetary awards from the Tribunal are usually much lower than awards in Commonwealth cases.
If the South Australian Equal Opportunity Commission takes up your complaint and acts on it, you will no longer be able to take that complaint to the Australian Human Rights Commission (AHRC). It is, however, generally possible to take the complaint to the Australian Human Rights Commission and then later opt to move to the Equal Opportunity Commission.
Choosing among these pathways is not a simple matter. Your choice can significantly affect your rights and you should seek advice first. Each agency can advise on whether it can handle a particular complaint, and will refer complaints to the other agency if necessary. It is always worth speaking to each agency before making your decision.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.