Tribunal Hearings of Discrimination Complaints

Last Updated 17 August 2021

A complainant can make a request that the Queensland Human Rights Commissioner refer the matter to the Queensland Industrial Relations Commission (QIRC) if the complaint is, or includes, a work-related matter, or to the Queensland Civil and Administrative Tribunal (QCAT) for all other types of complaint (ss 164A, 166 Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act)). Work-related matters include:

• discrimination at work
• discrimination when applying for work
• victimisation by an employer
• requesting and encouraging discrimination at work
• requesting unnecessary information at work or when applying for work
• sexual harassment at work
• vilification that occurred at work or when applying for work.

This request must be made in writing and can be made where a complaint:

• has been decided as either out of time or not by the Queensland Human Rights Commission (QHRC)
• is not resolved by conciliation
• was not subject to the conciliation process
• is unresolved for six months or more.

Nothing said or done in conciliation proceedings can be submitted in evidence before the relevant tribunal (s 164AA Anti-discrimination Act), although it is usual for the Queensland human Rights Commissioner to provide a report to QCAT or the QIRC. The report does not detail the events that took place in the conciliation hearing, but only that the complaint could not be resolved by conciliation. Investigation reports can be provided by the QHRC but will not contain any oral record of evidence.

The tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures. Despite this, QCAT and the QIRC will often apply many of the fundamental rules of evidence (e.g. the rule relating to hearsay evidence), which prevent a person from giving evidence about what someone else told them, unless they intend to call that person to give evidence as well.

The Anti-discrimination Act provides some guidelines about how hearings before QCAT and the QIRC are to be conducted. These guidelines include that QCAT and the QIRC (s 208):

• must have regard to the reasons for the enactment of this Act as stated in the preamble
• may draw conclusions of fact from any proceeding before a court or tribunal
• may adopt any findings or decisions of a court or tribunal that may be relevant to the hearing
• may receive in evidence a report from the Queensland Human Rights Commissioner (other than a report under s 88 of the Human Rights Act 2019 (Qld), unless the parties consent), but only if each party to the hearing has a copy of the report
• may permit any person with an interest in the proceeding to give evidence
• may permit the commissioner to give evidence on any issue arising in the course of a proceeding that relates to the administration of the Anti-discrimination Act.

Once a matter is before QCAT or the QIRC, other parties can be joined to the action (ss 42, 117 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 539 Industrial Relations Act 2016 (Qld) (Industrial Relations Act)) and complaints can be amended including matters that were not included in the original complaint (s 178 Anti-discrimination Act).

The hearings of QCAT are held in public unless QCAT otherwise directs (s 90 QCAT Act).

The complainant must prove their case on the balance of probabilities. Any exemption claimed by the respondent must be proved by the respondent on the balance of probabilities (ss 204–205 Anti-discrimination Act). The balance of probabilities means a fact is proved to be true if its existence is more probable than not.

Representation of parties and support persons

Representation of parties before QCAT and the QIRC is allowed only with the leave of the tribunal (ss 6, 43 QCAT Act, s 530(1)(c) Industrial Relations Act). The tribunal will consider the following as circumstances supporting the giving of leave for representation:

• the party is a state agency
• the proceeding is likely to involve complex questions of fact or law
• another party to the proceeding is represented in the proceeding
• all of the parties have agreed to the party being represented in the proceeding.

Additionally, in private hearings, a support person may be allowed to assist.

The QIRC may give leave for representation only if:

• it would enable the proceedings to be dealt with more efficiently, having regard to the complexity of the matter
• it would be unfair not to allow the party or person to be represented because the party or person is unable to represent themselves
• it would be unfair not to allow the party or person to be represented having regard to fairness between the party or person, and other parties or persons in the proceedings.

Tribunal procedure

The tribunal usually holds a compulsory conference where a member (decision maker) of QCAT or the QIRC gives directions about how the complaint is to proceed to hearing. Such directions usually require the complainant to file contentions followed by a requirement that the respondent file contentions. In addition, orders or directions may be made for both sides to produce a list of documents (known in the regular courts as disclosure), and how and where each side gets to see all the relevant documents that the other side has or had in their possession. It may also make orders or directions about when and how both sides are to file evidence-in-chief by way of affidavits. A timetable will be set for the parties to comply with each step of the directions.

It should be noted that any failure to comply with orders made by QCAT or the QIRC may be subject of an application to enforce compliance, and an order for costs may be made against the party that failed to comply with the order.