Things You Should Know About When Selecting a Jurisdiction To Argue Disability Discrimination
In Victoria, parties can lodge claims of disability discrimination under the Commonwealth or the Victorian State system.
Parties who argue cases of disability discrimination under the Commonwealth system must utilise the Disability Discrimination Act, 1992 (Cth) (DDA) when arguing their case, whereas individuals who elect to argue claims of discrimination under the Victorian State system must adhere to the legislative requirements of the Equal Opportunity Act 2010 (Vic) (EOA).
Complainants who choose to have their claims of disability discrimination dealt with under the EOA can engage in dispute resolution by way of a conciliation conference at the Victorian Equal Opportunity and Human Rights Commission (VEOHC),[1] or proceed straight to the Victorian Civil and Administrative Tribunal (VCAT) to have their case determined.[2] Matters that are unable to be resolved at VEOHRC may also be heard at VCAT.[3]
One disadvantage of having matters proceed to the VEOHRC to be dealt with by conciliation is that the VEOHRC’s conciliation process is limited as it does not contain an investigative arm.[4] This is opposed to claims of discrimination that are determined under the DDA and are dealt with at the Australian Human Rights Commission (AHRC) for conciliation. The disadvantage of this is that unrepresented complainants appearing before VEOHRC will have less assistance than those who have matters dealt with in the AHRC’s conciliation process, as the AHRC employs investigators who play a vital role in gathering crucial evidence that may support a complainant’s case.[5]
Complainants who choose to have their claims of disability discrimination dealt with under the EOA can engage in dispute resolution by way of a conciliation conference at the Victorian Equal Opportunity and Human Rights Commission (VEOHC),[1] or proceed straight to the Victorian Civil and Administrative Tribunal (VCAT) to have their case determined.[2] Matters that are unable to be resolved at VEOHRC may also be heard at VCAT.[3]
One disadvantage of having matters proceed to the VEOHRC to be dealt with by conciliation is that the VEOHRC’s conciliation process is limited as it does not contain an investigative arm.[4] This is opposed to claims of discrimination that are determined under the DDA and are dealt with at the Australian Human Rights Commission (AHRC) for conciliation. The disadvantage of this is that unrepresented complainants appearing before VEOHRC will have less assistance than those who have matters dealt with in the AHRC’s conciliation process, as the AHRC employs investigators who play a vital role in gathering crucial evidence that may support a complainant’s case.[5]
However, an advantage of lodging complaints of discrimination at the VEOHRC is that it provides complainants with 12 months to lodge their case from when the alleged discriminatory act took place, [6] whereas complaints initiated at the AHRC have a shorter timeframe as parties have only six months to submit their complaints.[7]
Arguing cases under the DDA may also have the potential to become costly if complaints are not resolved by way of conciliation at the AHRC and the complainant still wishes to argue the matter further, as the only option left is to then proceed to court (unless the complaint was terminated on a ground in the Australian Human Rights Commission Act 1986 (Cth),[8] which prevents further litigation).[9] Also, the Federal Circuit Court of Australia and the Federal Court of Australia have a discretion to order costs.[10] However, at VCAT, there is a presumption that parties cover their own costs, which may be a cheaper option for individuals whose claims of discrimination are not successful when arguing a case under the EOA.[11]
Proving direct disability discrimination under the Victorian State system may also be less difficult to establish as the EOA does not require complainants to pass a comparator test and because there is less ambiguity in what is required,[12] from the reasonable adjustment provisions under the DDA.
For example, in the case of Sklavos v Australian College of Dermatologists,[13] the court held that a complainant arguing direct disability discrimination under the DDA must not only show that they are disadvantaged by a failure to provide reasonable adjustments to accommodate their disability, but also that the respondent’s failure to provide a reasonable adjustment was because of their disability.[14] Therefore, it appears that in some circumstances, the Victorian State system may be an easier jurisdiction to argue direct disability discrimination, as the burden of proof in the DDA is more difficult to prove due to having to overcome the additional hurdle of the comparator test, which is not required under the EOA.
[1]EOA s 113(1)(a).
[2]Victorian Administrative and Administrative Tribunal, ‘Apply to resolve a dispute about unlawful discrimination, sexual harassment, victimisation or vilification’(web page, undated)https://www.vcat.vic.gov.au/get-started/equal-opportunity/apply-to-resolve-a-dispute-about-unlawful-discrimination-sexual.
[3]Ibid.
[4]EOA s 111; Victorian Equal Opportunity and Human Rights Commission, ‘Complaint Process’ (web page, undated)< https://www.humanrightscommission.vic.gov.au/discrimination/making-a-complaint/complaints>.
[5]Australian Human Rights Commission Act 1986(Cth) (AHRCA) s 11(1)(aa).
[6]EOA s 116(a)
[7]AHRCAs 46PH(1)(b).
[8]1986 (Cth).
[9]Ibid, s 46PO; S 46PH.
[10]Victorian Equal Opportunity and Human Rights Commission (VEOHRC), ‘Victorian Discrimination Law’ (VEOHRC, 1sted, 2013) 117.
[11]Ibid.
[12]EOAs 9(2).
[13][2017] FCAFC 128, 242.
[14]Ibid,242.
[1]EOA s 113(1)(a).
[2]Victorian Administrative and Administrative Tribunal, ‘Apply to resolve a dispute about unlawful discrimination, sexual harassment, victimisation or vilification’(web page, undated)https://www.vcat.vic.gov.au/get-started/equal-opportunity/apply-to-resolve-a-dispute-about-unlawful-discrimination-sexual.
[3]Ibid.
[4]EOA s 111; Victorian Equal Opportunity and Human Rights Commission, ‘Complaint Process’ (web page, undated)< https://www.humanrightscommission.vic.gov.au/discrimination/making-a-complaint/complaints>.
[5]Australian Human Rights Commission Act 1986(Cth) (AHRCA) s 11(1)(aa).
[6]EOA s 116(a)
[7]AHRCAs 46PH(1)(b).
[8]1986 (Cth).
[9]Ibid, s 46PO; S 46PH.
[10]Victorian Equal Opportunity and Human Rights Commission (VEOHRC), ‘Victorian Discrimination Law’ (VEOHRC, 1sted, 2013) 117.
[11]Ibid.
[12]EOAs 9(2).
[13][2017] FCAFC 128, 242.
[14]Ibid,242.
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