Last Updated 17 August 2021
Any person who wishes to take action under the Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act) can do it themselves, through an agent or, if they lack capacity to act, through a person appointed on their behalf by the Queensland Human Rights Commissioner.
Additionally, complaints of vilification can be made by a relevant entity (s 134 Anti-discrimination Act), such as a community organisation established to promote the interests or welfare of people with a particular attribute, if the following conditions are satisfied:
- The complaint is made in good faith.
- The complaint is about relevant persons for the relevant entity (e.g. a complaint of vilification on the basis of a particular sexuality lodged by an association that promotes the interests or welfare of people of the same particular sexuality).
- It is in the interests of justice to accept the complaint.
The Anti-discrimination Act defines ‘complainant’ to include (sch 1):
- the person subject of the alleged contravention of the Act
- a relevant entity who has made a complaint as a relevant entity
- a person, in relation to a representative complaint, named in the complaint or otherwise identified in the complaint as a person on whose behalf the complaint is being made.
Complaints must be in writing, state the complainant’s address for service and contain sufficient details to identify a contravention of the Anti-discrimination Act (s 136). Complaints have to be lodged online, using the correct form, or sent by post. Complaints must be made within one year of the action complained of. However, the Queensland Human Rights Commissioner has the discretion to extend that time period, but must be satisfied the complainant has shown good cause (s 138 Anti-discrimination Act). When considering the explanation, the Queensland Human Rights Commission (QHRC) will take into consideration the relevant circumstances of the particular case such as:
- the length of the delay
- whether the delay is attributable to the acts or omissions of the act of the complainant or their legal representatives, the respondent, or both
- the circumstances of the complainant
- whether there has been a satisfactory explanation for the delay
- whether or not the delay will cause prejudice to the respondent (see the case Buderim Ginger Ltd v Booth  QCA 177).
Once a complaint has been lodged, the commissioner has 28 days to accept or reject the complaint. Once accepted, the QHRC must notify the respondent to the complaint and include a range of information in that notification (s 143 Anti-discrimination Act). The commissioner then investigates and conciliates the complaint.
Respondents to complaints must give the QHRC an address where documents can be sent to, and if they file a written response to a complaint, a copy must be provided to the complainant and any other respondents.
Human Rights Act complaints
The Anti-discrimination Act and the Human Rights Act 2019 (Qld) (Human Rights Act) are both administered by the QHRC. Some complaints may allege breaches of both the Anti-discrimination Act and the Human Rights Act.
One area of overlap are the protections in the Human Rights Act that guarantee human rights without discrimination. Subsection 15(2) of the Human Rights Act provides that every person has the right to enjoy their human rights without discrimination. The right to recognition and equality before the law is not limited to discrimination where established as unlawful under the Anti-discrimination Act. Subsection 15(2) of the Human Rights Act provides protection from discrimination as defined in the Anti-discrimination Act and in a more general sense. This right ensures that Human Rights Act rights are enjoyed equally by all people and without discrimination.
The commissioner may consider that a human rights complaint made or referred to the commissioner would be more appropriately dealt with by the QHRC as a complaint about an alleged contravention of the Anti-discrimination Act (s 140A Anti-discrimination Act; s 75 Human Rights Act). In these cases, the commissioner may, with the consent of the complainant, deal with the complaint under the Anti-discrimination Act as an alleged contravention of that Act. The complaint is taken to be a complaint about an alleged contravention of the Anti-discrimination Act that is accepted by the commissioner under s 141 of the Anti-discrimination Act, and is taken to be made on the day the human rights complaint was made or referred.
The State of Queensland and anyone contracted by the state are now classified as protected defendants for the purposes of the Anti-discrimination Act in relation to complaints by offenders (s 319A Corrective Services Act 2006 (Qld) (Corrective Services Act)). This means that any complaints of discrimination, sexual harassment or vilification that occur in prison or while under supervision (e.g. probation or community service order) must first be addressed in writing to the chief executive who then has a maximum of four months to resolve the complaint (s 319E Corrective Services Act). If still unsatisfied, a written complaint can then be made to the official visitor who has a further month to attempt resolution (s 319F Corrective Services Act). Only after this process has been exhausted can a complaint be made to the QHRC. This delay does not extend the limitation periods for lodging a complaint with the QHRC, which remains 12 months from the date of the discrimination, sexual harassment or vilification. It may be arguable that any delay caused by this prescribed process would be a consideration under s 138 of the Anti-discrimination Act if a complaint were lodged out of time.
A test of reasonableness has also been specifically defined and applied to instances of both direct and indirect discrimination. Monetary compensation for discrimination, sexual harassment and vilification will only occur when bad faith can be proven, and such compensation will be frozen (see the chapter on Prisons and Prisoners). This is a complex area of discrimination practice, and prisoners are strongly encouraged to seek legal advice about any complaint or QCAT proceedings.
The Anti-discrimination Act is not retrospective, so complaints can only be lodged with respect to events that occurred after 30 June 1992. However, events that occurred before that date can be relevant as background to discrimination that occurred after that date. Other legislation may have been in existence at the relevant time, and a complaint may be made to the Australian Human Rights Commission (AHRC) in such matters. Any application lodged in these circumstances would need to include an explanation of why the complaint has been made outside the relevant time limitations.
Once a complaint is received, the QHRC will normally investigate the complaint. The Anti-discrimination Act gives the QHRC broad powers to obtain information and documents (ss 155–157).
In certain circumstances, the commissioner can decide to deal with a complaint as a representative complaint (i.e. a class action) (ss 146–152 Anti-discrimination Act). This would be possible when many people are affected by a particular aspect of discrimination.
Such representative complaints have not been widely used in Australia so far, but the Queensland provisions allow considerable scope for representative complaints to be conducted. It should be noted that a representative complaint differs from a complaint made by a relevant entity.