Anti-Discrimination Complaint (Complainant) - Referral to QCAT for Adjudication

Can I have a lawyer in QCAT for a discrimination complaint?: Parties represent themselves unless the tribunal gives leave or another exception applies; complex questions of fact or law, another party being represented, or all parties agreeing support leave (Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43).

Who must prove discrimination in the tribunal?: As currently in force, if there are facts from which the tribunal could decide, absent another explanation, that the respondent contravened the Act, the respondent is taken to have done so unless it proves on the balance of probabilities that it did not, and a respondent relying on an exemption must prove it (Anti-Discrimination Act 1991 (Qld) ss 204 and 205).

How do I appeal a QCAT discrimination decision?: Leave of the appeal tribunal is needed for an appeal on a question of fact or of mixed law and fact, and an application for leave must be filed within 28 days after the relevant day (QCAT Act 2009 (Qld) ss 142 and 143).

Jurisdiction: QCAT for non-work matters and the Queensland Industrial Relations Commission for complaints that are or include a work-related matter (Anti-Discrimination Act 1991 ss 164A, 166 and 167); the QIRC may transfer a complaint to QCAT (s 193A).

The Process at a Glance: Give the Commissioner a written notice requiring referral within 28 days of the notice that the complaint cannot be conciliated. Draft and file the complainant's contentions setting out the facts, the contraventions, the protected attribute, the type of discrimination and the remedies sought. Apply for leave to be legally represented if needed. Attend the directions hearing and comply with the procedural orders. Prepare witness statements and documentary evidence, including comparator evidence for direct discrimination. Attend any compulsory conference and, if unresolved, the hearing; QCAT must observe natural justice but is not bound by the rules of evidence unless it adopts them (QCAT Act s 28(3)). If the complaint is proven, the tribunal may make the orders in s 209, and either party may seek leave to appeal.

Key Legislation: Anti-Discrimination Act 1991 (QLD) - ss 164A-167 (referral), s 175 (referred complaints made out of time), s 189 (settlement before decision), s 190 (interim orders), ss 204-205 (burden of proof), s 209 (orders), s 210 (dismissal). Queensland Civil and Administrative Tribunal Act 2009 (QLD) - s 28 (conduct of proceedings), s 43 (representation), s 100 (each party usually bears its own costs), s 102 (costs in the interests of justice), ss 131-132 (enforcement), ss 142-143 (appeals and leave).

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