Disputes about discrimination in Victoria

• Taking a dispute to the Victorian Equal Opportunity and Human Rights Commission

  Anyone can bring a complaint about discrimination, sexual harassment or victimisation under the EO Act, or about racial or religious vilification under the RRT Act, to the VEOHRC for dispute resolution. This is a free, impartial and flexible process. Details about how to make a complaint are available from the VEOHRC’s website (www.humanrightscommission.vic.gov.au).

  A person may bring a dispute in their own name, on behalf of a child, or on behalf of a person who is unable to bring a dispute themselves because of a disability. A person can also bring a representative complaint on behalf of others in certain circumstances.

  A person can bring a dispute on behalf of themselves and another person(s) if the VEOHRC is satisfied that (RRT Act s 114):

  • each person is entitled to bring a dispute;

  • each person has consented to the dispute being brought to the body on their behalf; and

  • the alleged contravention arises out of the same conduct (if the dispute is brought on behalf of more than one person).

  In addition to satisfying the three points above, a representative body may bring a dispute to the VEOHRC on behalf of a person(s) if the representative body has sufficient interest in the dispute (s  114). This requirement is satisfied if the alleged unlawful conduct is a matter of genuine concern to the representative body because of the way conduct of that nature adversely affects the interests of the people it represents (or has the potential to do so). All people who are a party to a dispute brought by a representative body must be named (s 114).

  For all complaints under the EO Act and the RRT Act, the VEOHRC may decline to provide, or decline to continue to provide, dispute resolution if:

  • the alleged contravention occurred more than 12 months before the dispute was brought (s 116);

  • the matter has been adequately dealt with by a court or tribunal;

  • the matter involves subject matter that would be more appropriately dealt with by a court or tribunal;

  • a person has initiated proceedings in another forum; or

  • the VEOHRC considers it is not appropriate to provide or to continue to provide dispute resolution.

• Dispute resolution provided by the Victorian Equal Opportunity and Human Rights Commission

  The principles of dispute resolution (s 112) provided by the VEOHRC are:

  • dispute resolution should be provided as early as possible;

  • the type of dispute resolution offered should be appropriate to the nature of the dispute;

  • the dispute resolution process is fair to all parties;

  • dispute resolution is voluntary; and

  • dispute resolution should be consistent with the objectives of the EO Act.

  The VEOHRC offers services for First Nations people, with staff specially trained to support First Nations people making an enquiry or complaint.

  When a dispute is bought to the VEOHRC, it is assessed to see whether the matter meets the threshold of a possible breach of the law. If accepted for dispute resolution, a complaint is allocated to a conciliator to begin the dispute resolution process. A conciliator then contacts the person or representative bringing the dispute and discusses relevant issues being raised in the complaint and explains the dispute resolution process, before contacting the person or parties against whom the dispute has been bought.

  A person bringing a dispute to the VEOHRC is encouraged to consider what it is they want as an  outcome to the dispute. Examples of outcomes include an apology, a change in procedure or policy, compensation, reasonable adjustments made to a workplace or service, or consideration given to a request for flexible working arrangements.

  The dispute resolution process is flexible and adapted to the nature of the dispute. It may proceed by the conciliator communicating separately with the person bringing the dispute and the parties against whom the dispute has been brought. When appropriate, the conciliator may arrange for a more formal conciliation process in which the parties to the dispute meet and negotiate an outcome.

  Where the parties agree to settle the dispute, a settlement agreement may be prepared and signed by the parties. A party may request that the VEOHRC prepare a settlement agreement, which must be signed by the parties and certified by the VEOHRC. Alternatively, the parties to the dispute might prepare their own settlement agreement and request that the VEOHRC certify it (s 119).

  A signed and certified settlement agreement may be lodged with VCAT for registration (s  120). If VCAT is satisfied that the agreement is practicable and can be supervised, the agreement must be registered and is taken to be an order of VCAT and can be enforced accordingly.

  A party to a dispute may withdraw from dispute resolution at any time by informing the VEOHRC. Withdrawal from dispute resolution does not prevent a person making an application to VCAT or commencing proceedings in another jurisdiction. However, it is important to note that where a person has initiated a complaint with the VEOHRC, this may affect their ability to commence proceedings in another jurisdiction, depending on the laws of that jurisdiction.

• Taking a dispute to Victorian Civil and Administrative Tribunal

  A person can make a direct application to VCAT about an alleged contravention of the EO Act or the RRT Act – this is regardless of whether or not the person has first brought a dispute to the VEOHRC for dispute resolution. No referral from the VEOHRC is required.

  VCAT usually requires parties to attend a directions hearing and/or a compulsory case conference or mediation before it considers listing the matter for a full hearing. The directions hearing is where the process for the application is discussed and a timetable is set down for filing documents (such as the particulars of the claim and defence and witness statements).

  After VCAT hears a matter, a decision is made as to whether the complaint has been proven or not. Where VCAT finds discrimination, sexual harassment, victimisation, or racial or religious vilification is proven, it can make orders that the person or organisation responsible for the unlawful conduct:

  • refrain from committing any further contravention of the EO Act or the RRT Act;

  • pay compensation to the applicant for loss, damage or injury suffered in consequence of the contravention;

  • do anything specified to redress any loss, damage or injury suffered by the applicant as a result of the contravention.

  VCAT can make an order for all or any of the above, or it can decline to take any further action (s 125).

  Parties may represent themselves or be represented by a professional advocate (e.g.  a lawyer). VCAT has powers to compel parties to attend alternative dispute resolution, including mediation or a compulsory conference, and to compel third parties to appear before it and produce documents by issuing a summons.

  If you wish to make an application to VCAT, contact VCAT for further information (see ‘Contacts’ at the end of this chapter). VCAT has an online application form (at www.vcat.vic.gov.au) for making a complaint of discrimination and a guide to assist people to fill out this form. VCAT’s website also includes information about mediation and compulsory conferences and preparing for VCAT hearings, and a guide with relevant information to the parties before a hearing.

  Victorian Civil and Administrative Tribunal costs

  In VCAT proceedings, the starting point is that the parties bear their own costs. However, either party may apply to VCAT for an order that all or part of their costs of the proceedings be paid by the other party if it is fair to do so because of the conduct of the other party. In deciding whether to award costs, VCAT considers the case’s particular circumstances.

• Other regulatory options under the Equal Opportunity Act

• Investigations

  Under the EO Act (s 127), the VEOHRC can investigate issues of systemic discrimination, sexual harassment and victimisation on an own-motion basis (i.e. initiated by the VEOHRC). The VEOHRC can investigate any matter relating to the operation of the EO Act, if:

  • the matter raises a serious issue;

  • the matter relates to a class or group of people; and

  • the matter cannot reasonably be expected to be resolved by dispute resolution or by making an  application to VCAT under section  122 of the EO Act;

  • there are reasonable grounds to suspect that the Act has been contravened; and

  • the investigation would advance the objectives of the EO Act.

  The VEOHRC may conduct an investigation as it sees fit but is bound by the principles of natural justice (s 129).

  The VEOHRC may request that a party to an investigation provide relevant information (including documents) to VEOHRC (EO Act s 130). Where relevant information is not provided upon request, the VEOHRC can apply to VCAT to compel the information to be produced (EO Act s 131). The VEOHRC may also make an application to VCAT to compel the attendance of witnesses at the VEOHRC (EO Act s 134).

  Following an investigation, the VEOHRC may take any action that it sees fit, including:

  • entering into an agreement with a person about the action required to comply with the EO Act;

  • referring the matter to VCAT;

  • reporting the matter to the Attorney-General (EO Act s 139);

  • taking no further action; or

  • making a report about the matter to parliament.

• Practice guidelines

  Under the EO Act (s 148), the VEOHRC can issue practice guidelines on any matter related to equal opportunity law. Practice guidelines are not legally binding but may be taken into account by a  court or tribunal (EO Act s 149).

  These practice guidelines are available at www. humanrights.vic.gov.au/for-organisations/guidelines/

• Action plans

  Under section 152 of the EO Act, an organisation can prepare an action plan that specifies the steps that are necessary to improve its compliance with the EO Act. Equal opportunity action plans may be registered with the VEOHRC, which may provide advice about preparing and implementing action plans and set minimum requirements for them.

  Like guidelines, action plans are not legally binding, but may be considered by a court or tribunal where relevant in proceedings before them.

  This provision is similar to action plans to improve accessibility to employment and services for people with disability, which can be registered with the AHRC under the DD Act.

• Intervening in proceedings

  The EO  Act (s  159) allows the VEOHRC to seek leave to intervene in a matter that involves issues of equal opportunity, discrimination, sexual harassment or victimisation. It also allows (EO Act s 160) the VEOHRC to seek leave to assist the court or tribunal as amicus curiae (friend of the court). The VEOHRC also has the power to intervene in matters under the Human Rights Charter, discussed below.

  The VEOHRC’s legal intervention submissions under the EO  Act can be viewed at the VEOHRC’s website: www.humanrights.vic.gov.au/legal-andpolicy/legal-interventions/

• Undertake reviews

  The EO Act (s 151) also allows the VEOHRC to undertake reviews to ensure compliance with the EO Act. Reviews can only be undertaken on the request of a person with authority to request the review. Once a request is made, the VEOHRC can enter into an agreement with that person to review their practices and programs to determine compliance with the EO  Act. Information about the VEOHRC’s reviews is on its website (www. humanrightscommission.vic.gov.au – under ‘Reviews, research and investigations’).

• Other Victorian Equal Opportunity and Human Rights Commission functions

  The VEOHRC has other functions that assist with the oversight, prevention and regulation of discrimination, sexual harassment and victimisation under the EO Act.

  The VEOHRC can:

  • establish and undertake information and education programs in relation to the EO  Act, the Human Rights Charter, and the RRT Act;

  • promote and advance the objectives of the EO  Act and be an advocate for this Act;

  • notify the Attorney-General and relevant minister when it becomes aware of any provision of an Act that discriminates, or has the effect of  discriminating, against any person;

  • collect and analyse information and data relevant to the operation of the EO Act;

  • undertake research into any matter arising from, or incidental to, the operation of the EO Act or that would advance the objectives of the Act; and

  • submit a report to the Attorney-General on any matter arising from the VEOHRC’s performance of its educative or research functions.

  The VEOHRC has the powers necessary to enable it to perform these functions.

Disputes about discrimination in Victoria

Chapter: 11.1: Discrimination and human rights

Contributor: Kristina Hoel, Legal and Policy Officer, Victorian Equal Opportunity and Human Rights Commission; Melissa De Abreu, Senior Lawyer, Australian Human Rights Commission

Current as of: 1 September 2024

Law Handbook Page: 903

Next Section: Charter of Human Rights and Responsibilities Act