Unlawful discrimination - when can
you complain to the Federal Court?
Complaints about unlawful discrimination must first be
made to the Australian Human Rights Commission. The telephone number for the
Commission is 1300 656 419.
If you have not complained to the Australian Human Rights Commission you cannot complain to the Federal
Court.
If you have complained to the Australian Human Rights Commission and your complaint has been terminated
you can complain to the Federal Court.
The Australian Human Rights Commission terminates
a complaint by giving a termination notice to each of the
people involved in the complaint.
You need a copy of the termination notice to complain
to the Federal Court.
There are time limits for making complaints to the Federal
Court. The normal rule is that a complaint to the Federal
Court must be made within 60 days after the issue of the
notice of termination.
How do you complain to the Federal
Court?
Follow these steps to make a complaint to the Federal
Court:
1. Get a Form
116 from the Court and fill it out. This is the originating application.
2. Make a copy of the complaint that you made to the Australian Human Rights Commission. Make a copy
of the notice of termination. Copies of these documents must accompany the originating application.
3. If you are making your complaint more than 60 days
after the date on the notice of termination you need to
complete the "Extension of time" part of Form
116. This part of the form is where you request an extension of time for making the complaint
and explain the reasons for the delay.
4. Get a Form 16 from the Court and fill it out. This is the applicant’s genuine steps statement. This document must specify the steps taken to try to resolve the issues in dispute. If no steps have been taken, it must specify why.
5. Make enough copies of the application, all accompanying documents and the applicant’s genuine steps statement for each other
person involved in the complaint and for the Australian Human Rights Commission.
Make sure you have a copy for yourself.
6. Once the forms have been filled out you need to send the original and copies of the application with all accompanying documents and the applicant’s genuine steps statement to the Court. You can do this by bringing them to the Court, or by posting or faxing them or by sending them by the internet. This is called 'filing'.
7. Pay an application fee. If you cannot afford this fee you may be able to ask the Court to reduce it*. You can get a form to ask the Court to reduce payment and information about the circumstances where a reduction can be given on the Exemption and reduction of fees pages or from the Registry.
* Note: Up to October 2010, the Court could waive Court fees in some circumstances. Changes to the Federal Court of Australia Regulations 2004 introduced on 1 November 2010 means the Court can no longer waive fees; the Court can however, reduce the payment of Court fees if it will result in financial hardship.
8. If the correct forms has been used and is complete the Court will stamp the originating application and applicant's genuine steps statement and each of the copies.
The Court will also write on the application form the time
and date when the people involved in the complaint need
to come to the Court for a directions hearing. You must
give a copy of the stamped application with accompanying document and the applicant's genuine steps statement to each of
the people involved in the complaint. You must do this
at least five days before the directions hearing.
9. Come to the Court at the time and date on your application.
This is called a directions hearing. If you or your representative
does not come to the Court at that time, the Court may dismiss
your complaint.
What happens if a complaint is made
against you?
The person making the complaint about discrimination is
called the applicant. The person or organisation that the
applicant says has carried out the discrimination is called
the respondent. If the applicant has made a complaint against
you to the Federal Court the applicant must give you a
copy of the documents which the applicant has filled in the Court (these are called the application and the applicant’s genuine steps statement).
Follow these steps if you want to come to the Federal
Court to defend yourself against the complaint:
1. Get a Form
10 from the Court and fill it out. This is called the notice of address for service.
2. Get a Form 11 from the Court and fill it out. This is called the respondent’s genuine steps statement.
3. Come to the Court at the time and date on the application.
This is called a directions hearing. If you or your representative
do not come to the Court at that time, the Court may still
make orders against you.
What happens after a complaint has
been made to the Court?
At the first directions hearing the Judge will make orders
to prepare the complaint for hearing.
The Judge may order that the applicant provide extra information
about the complaint. The Judge may order that the respondent provide information (for instance by filing a defence and/or affidavit/s).
The Judge may ask the parties to attend a mediation
conference.
The Judge may transfer the complaint to the Federal Magistrates
Court.
At the hearing, the Judge will listen to the evidence
of the applicant and the respondent and their witnesses,
if they have any. The Judge will also listen to any submissions
about the relevant law.
The Judge will then consider the complaint and give a
final decision.
What orders can the Judge make?
If the Judge is satisfied that there has been unlawful
discrimination the Judge may make some orders against the
respondent.
For example, the Judge may order:
that the respondent stop the discrimination;
that the respondent pay the applicant some compensation;
that the respondent do something to address the complaint.
If the Judge is not satisfied that there has been unlawful
discrimination the Judge will dismiss the complaint.
Who pays the legal costs?
The normal rule is that the unsuccessful person pays the
legal costs of the others.
Do you need legal help or legal
representation?
You do not need a lawyer to appear in the Federal Court.
You can be represented by a person who is not a lawyer
if the Court agrees. You can also represent yourself. However,
lawyers generally handle cases better than people who are
not lawyers.
If you need help to complete any of the forms you should
consider contacting a solicitor,
the Legal Aid Commission in your State or Territory, a
Community Legal Centre or an advocacy group.
You may be able to get legal representation through a
Legal Aid Commission in your State or Territory or the
Legal Assistance Branch of the Commonwealth Attorney-General's
Branch.
The Court can arrange for an interpreter to come to the
hearing.
If you need an interpreter you must contact the Registry
of the Court at least one week before the hearing. If you
do not contact the Registry they may not be able to get
an interpreter and the hearing will be delayed.
You can also call 131 450 and speak to a telephone interpreter.
Practical needs
If you have any practical needs that the Court should
know about, please contact the Court at least one week
before the hearing so that the Court can make the proper
arrangements. For example, you need to tell the Court if
you:
require a hearing loop;
require regular breaks to attend to an infant or for
a medical reason;
