NCAT can decide anti-discrimination complaints referred to it by the Anti-Discrimination Board.
Anti-discrimination cases are managed through NCAT's Administrative and Equal Opportunity Division.
How to make a complaint
You cannot lodge an anti-discrimination complaint directly to NCAT.
If you believe that someone has breached the Anti-Discrimination Act 1977, you must first complain to the Anti-Discrimination Board.
Visit the Anti-Discrimination Board website for more information about making a complaint.
Complaint is referred to NCAT
If an anti-discrimination complaint is not conciliated and the complaint is upheld, the Anti-Discrimination Board may refer the complaint to NCAT for determination.
NCAT can make orders for an apology, or retraction compensation of up to $100,000 and programs to prevent discrimination and harassment.
Orders NCAT can make
If NCAT finds there has been a breach under the Anti Discrimination Act 1977, it can make the following orders.
Award compensation of up to $100,000 for loss or damage suffered because of the breach.
Order the person responsible for the discrimination, harassment, victimisation or vilification not to continue or repeat the conduct.
Order the person responsible to take certain actions such as reinstating a person to their job if they have been dismissed.
Order the person to publish an apology or a retraction.
Steps in an anti-discrimination case
Step by step guide to an anti-discrimination complaint referred to NCAT
When your complaint is referred to NCAT, you will receive a letter from NCAT telling you when you should come in for a case conference. You will also receive a copy of the report from the President of the Anti-Discrimination Board enclosing correspondence relating to your complaint (the President’s Report).
The first case conference is usually held within 4 weeks after your complaint is referred to NCAT.
The case conference is scheduled to last for between 30 and 45 minutes depending on how complex the complaint is and whether the parties are presenting their own case or have lawyers acting for them.
If you live outside the Sydney metropolitan area or there is another good reason that you cannot attend in person, you may be able to participate in the case conference by phone.
You can either present your own case to NCAT or have a lawyer or non-lawyer agent represent you.
You and the person you have complained about can both receive free preliminary legal advice from lawyers from Legal Aid NSW.
You will usually need to be present at the hearing to give instructions to your lawyer or agent.
Your lawyer or agent needs complete a Notice of Representation and submit to NCAT in person or by post. If a non-lawyer agent is representing you, you also need to sign the Notice before it is submitted.
Your agent needs to ask for permission to represent you from the Tribunal Member the next time the case is listed. You should attend with the agent in case NCAT does not allow the agent to appear for you. A lawyer does not need to ask for permission from the Member.
The things you should think about before coming to the case conference include:
whether you need to get some legal advice
whether you want to attempt to resolve the complaint by mediation rather than a hearing
if you do not want to participate in a mediation, the evidence that you will need to prove your case.
Read the President’s Report and complete your response to the President's Summary of Complaint. You should consider these things:
if you are the person making the complaint (the applicant) you need to fill in the column titled 'Applicant's Response' on the Summary of Complaint
if you are the person being complained against (the respondent) you need to fill in the column titled 'Respondent's Response' on the Summary of Complaint
you should write 'agree' in the column if you agree with what the President of the Anti-Discrimination Board has written and write 'disagree' if you disagree.
You should also consider whether to apply for the complaint to be amended. The amendment may add other conduct within the period of the compliant, extend the period of the complaint or rely on different grounds of discrimination. If you are the respondent, you need to consider whether you would agree with, or oppose, an application for an amendment.
A case conference is an informal meeting with the a Tribunal member and the other parties to the complaint. The proceedings are recorded. You should bring the President’s Report with you to the case conference.
At the case conference, a Tribunal member will talk to you and the other parties about the complaint. The purpose of the case conference is to clarify the issues in dispute and decide how those issues are to be resolved.
During the first case conference, the Tribunal member will go through the President's Summary of Complaint and discuss your responses. On the basis of your responses, the Tribunal member will fill in a document called a 'Summary of Complaint'. That document will set out:
the conduct that you are complaining about
the respondent’s response to the complaint
the factual and legal issues in dispute.
If all the parties agree to mediation, you will be give a date for mediation. A copy of the summary of complaint form will be sent to you after the case conference.
If your complaint is suitable for mediation you will be given a date for a mediation session three to four weeks after the case conference. A mediation will be held at a venue which is most convenient for all parties.
The mediation is a confidential, informal meeting where an experienced mediator helps you and the person you have complained against (the respondent) come to an agreement.
If your complaint is not suitable for mediation, you will need to prepare your case for a hearing.
If there is no mediation, or the complaint is not resolved by mediation, a timetable will be given for you to file and serve relevant documents. Those documents will include statement or affidavits from witnesses.
If you are the applicant, you will be expected to provide evidence to prove your case and to support your claim for damages or other remedies. The evidence may be in the form of documents or may be from witnesses that you intend to call.
If you are the respondent, you will be expected to provide evidence to defend the claim made by the applicant. The evidence may be in the form of documents or may be from witnesses that you intend to call.
You should also consider whether you want to apply to the Tribunal for a summons to be issued for a person to give evidence or provide documents. You need to get the Tribunal’s approval before issuing a summons .
A hearing date may be allocated at the second case conference. However, in most cases, a third case conference will be held after the end of the timetable. At that case conference a hearing date will be allocated if the matter is ready for hearing. Depending on the number of witnesses and the complexity of the case, a hearing may be allocated for between one and three days.
Hearings can be held in regional areas of NSW if that is the most convenient location for all the parties.
A panel of up to 3 Tribunal Members will hear your case. One Member will be an experienced lawyer. The other Members will have specialist knowledge in the area of anti-discrimination involved in your case.
During the hearing, you and the respondent will be asked to present your evidence. If you are the applicant, you will present your evidence first. This involves calling each witness to give their evidence in the witness box after giving an oath or affirmation. In most cases the evidence that they will give will be in their statement or affidavit.
The other party will then be allowed to cross-examine each witness. The party calling the witness can then re-examine the witness by asking any questions that arise from the cross-examination.
When all the evidence has been given, you and the respondent give your submissions. Submissions are arguments about the facts that NCAT should find or the law that it should apply.
There are several possible outcomes when NCAT decides a complaint about discrimination, harassment, victimisation or vilification. NCAT can:
find that there has been a breach of the Anti Discrimination Act 1977
award compensation of up to $100,000 for loss or damage suffered because of the breach
order the person responsible for the discrimination, harassment, victimisation or vilification not to continue or repeat the conduct
order the person responsible to take certain actions such as reinstating a person to their job if they have been dismissed
order the person to publish an apology or a retraction.
NCAT may dismiss a matter if:
after hearing the matter, the Tribunal is not satisfied that the Anti Discrimination Act 1977 has been breached
after hearing an application for dismissal by the respondent, the Tribunal decides that the proceedings are frivolous, vexatious, misconceived or lacking in substance
you settle the matter or withdraw the complaint for any other reason
you have failed to appear in the proceedings (unless you provide a reasonable explanation for failing to appear)
the Tribunal considers that you are not preparing the matter for hearing (called a ‘want of prosecution’).
In some cases, NCAT will be able to give you their decision at the end of the hearing.
However, in most cases the member will need time to consider the case and will give their decision at a later date. You will usually receive the decision in less than 3 months. Complex matters may take longer.
The decision will posted to the parties and will appear on the NSW Caselaw website.
If the person you complained about, or who complained about you, does not comply with NCAT orders there are enforcement options available to you.
If the order from NCAT does not involve money, you can apply to NCAT Registrar for a certificate of order. The order can then be filed in the NSW Supreme Court for enforcement.
If the order from NCAT involves money, and the person has not paid, you can apply for a certificate from NCAT Registrar. The certificate can then be filed as a judgment debt in the court that has jurisdiction to recover the amount.