Last Updated 14 June 2017
The Queensland Civil and Administrative Tribunal (QCAT) and the Queensland Industrial Relations Commission (QIRC) both have the power to order further conferences or mediations and will also encourage parties to consider potential avenues of settlement or compromise, should it become obvious that there is room for negotiation between the parties.
The tribunals have a range of other powers including to (ss 57–65 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 536-540 Industrial Relations Act 2016 (Qld) (Industrial Relations Act)):
- take evidence on oath
- act in the absence of a party who has had reasonable notice of a proceeding
- adjourn a proceeding
- make interim orders
- grant injunctions
- require a person appearing before the tribunal to give evidence on oath
- make declarations
- make directions
- obtain documents or things from third parties
- amend documents
- deal with documents.
Once QCAT or the QIRC have conducted their hearing, the Anti-discrimination Act 1991 (Qld) provides broad powers to make orders. If the complaint is proven, orders that can be made include:
- requiring the respondent not to commit a further contravention of the Anti-discrimination Act against the complainant or another person
- requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention
- requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention
- requiring the respondent to make a private apology or retraction
- requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way and in the form stated in the order
- requiring the respondent to implement programs to eliminate unlawful discrimination
- requiring a party to pay interest on an amount of compensation
- declaring void all or part of an agreement made in connection with a contravention of the Anti-discrimination Act (s 209).
The tribunal can dismiss a complaint (s 210 Anti-discrimination Act) and provide written reasons for its decision.
Orders of QCAT can be enforced in a court of competent jurisdiction.
Once a complaint has been referred to QCAT or the QIRC, the tribunal has power to make interim orders.
Protecting a complainant’s interest
It is possible to apply to QCAT or the QIRC for an interim order to protect a complainant’s interest before a complaint has been referred to QCAT or the QIRC (s 144 Anti-discrimination Act). The tribunal will consider making such orders where it considers appropriate in the interests of justice, for example:
- to protect a party’s position for the duration of the proceeding
- to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
Any such order (if obtained) can be filed and enforced in a court of competent jurisdiction. For example, a person who was about to be dismissed could apply to the QIRC immediately after lodging a complaint seeking an order that they remain employed until such time as the complaint was either conciliated or proceeded to a hearing before the QIRC.
In order to obtain an interim order, QCAT or the QIRC has to decide whether:
- there is a serious issue to be tried
- the balance of convenience favours granting the interim order.
In making an interim order, QCAT may:
- require an undertaking as to costs or damages it considers appropriate
- may provide for the lifting of the order if stated conditions are met.
The tribunal can also order an injunction on an interim or temporary basis (s 59 QCAT Act).
Orders for non-publication and to preserve anonymity
The Anti-discrimination Commissioner can make an order to preserve the anonymity of the complainant (s 145 Anti-discrimination Act). This can be done if necessary to protect the work security, privacy or any human right of the person. This will apply to proceedings before the commission. Likewise, QCAT can make non-publication orders (s 66 QCAT Act), which cover a range of things including:
- the contents of a document or other thing produced to the tribunal
- evidence given before the tribunal
- information that may enable a person who has appeared before the tribunal or is affected by a proceeding to be identified.
In making these orders, QCAT must decide they are necessary:
- to avoid interfering with the proper administration of justice
- to avoid endangering the physical or mental health or safety of a person
- to avoid offending public decency or morality
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest
- for any other reason in the interests of justice.
Orders for costs
In addition, QCAT and the QIRC have the power to award costs even though the general rule is that each party bears its own costs (ch 2 pt 6 div 6 QCAT Act, sch 2 Industrial Relations Act). In deciding whether to award the costs, QCAT will consider a number of matters including:
- the general rule that parties bear their own costs
- costs will not be ordered against children
- costs against a party must be in the interests of justice.
Factors taken into account include:
- the relative strengths of the claims made by each of the parties to the proceeding
- whether the applicant was afforded natural justice by the decision maker for the decision for a proceeding for the review of a reviewable decision
- whether the applicant genuinely attempted to enable and help the decision maker to make the decision on the merits
- the financial circumstances of the parties to the proceeding
- anything else the tribunal considers relevant.
Certain costs rules apply to formal offers to settle, and advice should be taken before any offer to settle is rejected.