Equal opportunity - Power of Tribunal to make certain orders - Transfer of proceedings to the South Australian Employment Tribunal - Matters the subject of proceedings within jurisdiction - Whether appropriate and expeditious

Administrative tribunals - Procedure - Jurisdiction - Generally

Equal Opportunity Act 1984 ss 66, 67, 95B, 96, 98B

Raggio v Commissioner for Equal Opportunity [2025] SACAT 33

Challinder v City of Holdfast Bay [2023] SACAT 86

Mikhail Marchenko v South Australia Police [2020] SAET 168

Ms H Veale with Ms S Vaughan appeared for the applicant

Ms J Clare with M T Noone appeared for the respondent

Transfer to SAET under s 98B EO Act

Made under the Equal Opportunity Act 1984 s 98B

1. This is a further consideration of a referral of a complaint referred to the Tribunal by the Commissioner for Equal Opportunity (the Commissioner), on 14 August 2024.
2. Ms Goodes initially made a complaint to the Commissioner on 5 April 2024, alleging discrimination in employment on the grounds of disability, contrary to ss 66 and 67 of the Equal Opportunity Act 1984 (the EO Act).
3. At a directions hearing conducted in this Tribunal on 9 October 2025, the applicant indicated she intended to file an application for this matter to be transferred to the South Australian Employment Tribunal (SAET), pursuant to s 98B of the EO Act.
4. The interlocutory application was filed on 22 October 2025, and that application is the subject of this determination.
5. At the 9 October directions hearing, Senior Member Rugless noted that had Ms Goodes' complaint to the Commissioner been made after 1 December 2024, the Commissioner would have been required to refer the complaint to SAET, not to this Tribunal. An amendment to the EO Act contained in the Statutes Amendment (SAET) Act 2024, which came into operation on that date, now requires the Commissioner to refer a complaint of this nature, where the allegation is of discrimination arising in the context of employment, to SAET, and not this Tribunal. Ms Goodes' complaint comes within the category of complaints which are now required to be referred by the Commissioner to SAET, pursuant to s 95B(2) of the EO Act. Prior to 1 December 2024 such complaints were required to be referred to this Tribunal.
6. Senior Member Rugless noted further, however, that the Tribunal has the power to refer matters to SAET in certain circumstances, pursuant to s 98B of the EO Act. She made directions that if an application to transfer the proceedings before the Tribunal was made, then the matter would be considered by the Tribunal.
7. Both parties have provided submissions in respect of this application. The respondent opposed the transfer of the proceedings to SAET.
8. Section 98B of the EO Act is as follows:

(1) The Tribunal may, on application by a party or on its own initiative, transfer proceedings before the Tribunal under this Act (the "transferred proceedings") to SAET if -

(a) the transferred proceedings include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction; and

(b) the Tribunal considers that it would be more appropriate or expeditious for the transferred proceedings to be dealt with by SAET.

1. Ms Veale for the applicant submitted that the Tribunal should refer the application to SAET. She submitted that the proceedings before the Tribunal clearly related to matters that could be the subject of proceedings under legislation in respect of which SAET has jurisdiction, namely, the Fair Work Act 1994 (the FW Act); and that it was both appropriate and expeditious to transfer those proceedings.
2. Ms Veale told the Tribunal she had drafted a Notification of an Industrial Dispute in order to commence proceedings in SAET. Ms Veale told the Tribunal that the consequence of the respondent's decision concerning Ms Goodes' application for registration on the Employable Teachers Register was that she was unable to obtain employment as a teacher in the public sector in South Australia. Her complaint to the Commissioner arose out of her assertion this decision was made on the basis of her disability, and amounted to unlawful discrimination.
3. Ms Veale submitted that this decision by the respondent also represented an industrial matter, and so came within the jurisdiction of SAET to settle and resolve disputes under the FW Act. Ms Veale said her client had not yet commenced proceedings in SAET in respect of this aspect of her dispute with the respondent, as she was awaiting the outcome of this present application. However, Ms Veale submitted that as well as Ms Goodes' claim under the EO Act, based on the same circumstances, she could pursue a claim under the FW Act.
4. Ms Veale submitted that the application for the transfer of these proceedings to SAET was so both causes of action could proceed there, although the application to SAET had not yet been filed.
5. Ms Veale told the Tribunal if Ms Goodes filed her application under the FW Act, and this matter was transferred to SAET, Ms Goodes would have two causes of action, under separate legislation, before SAET, and it was most likely in those circumstances that the two matters would be run and heard together, but remain separate matters.
6. Ms Veale submitted that, if this matter is not transferred to SAET, Ms Goodes might be unsuccessful in her EO Act complaint before the Tribunal, and that raised the possibility that SAET could declare issue estoppel in respect of the separate FW Act proceedings before it.
7. Even were she successful in her complaint before this Tribunal, if the matter was not transferred to SAET Ms Goodes would then have the expense and stress of presenting two separate proceedings at different times in two different places, whereas a transfer of these proceedings would support a single presentation. On this basis Ms Veale submitted it was more appropriate and expeditious to transfer this matter to SAET.
8. Ms Veale submitted that the overarching principle of the discretion to transfer proceedings set out in s 98B of the EO Act is to avoid the consequences in proceedings on the same facts in different tribunals. She submitted that whether the details of the other possible proceedings are "knowable", or their possible merits, is not the test under s 98B(1)(a), but only whether the proceedings before the Tribunal "include or relate to proceedings that may" occur in SAET.

1. Ms Clare opposed the transfer of these proceedings to SAET, submitting that the application was both misguided and premature.
2. Ms Clare told the Tribunal the application was misguided because it assumed that the transfer of the original complaint under the EO Act could be expanded by transfer to SAET. Ms Clare submitted this was not the case.
3. Ms Clare submitted that the present matter before the Tribunal was a complaint made pursuant to the EO Act, on a limited ground, with relief sought pursuant to s 96 of the EO Act. Ms Clare submitted that any expansion of this complaint could only occur pursuant to the EO Act, and if transferred to SAET, the matter would still be governed, and limited in its terms, by the EO Act.
4. She conceded that Ms Goodes could have two separate actions, one under the EO Act and one under the FW Act, and that they could be run together in SAET, but she submitted they would remain two separate actions, and the equal opportunity claim could not in itself be expanded by reference to any separate industrial claim.
5. She further submitted that the application was premature, submitting the Tribunal would not be able to assess whether this Tribunal was the appropriate forum because the detail of any other proceeding would not be known. Without that detail, which forum was more appropriate or expeditious could not be assessed.
6. Ms Clare told the Tribunal the respondent had concerns that if the matter was transferred to SAET and other proceedings were commenced, it might be deprived of procedural steps applicable in relation to the industrial proceeding, such as a conciliation conference, because there had already been conciliation conferences in this Tribunal in relation to the EO Act application. Ms Clare conceded this was a matter for SAET and its management of its procedures, and that the respondent could present its concerns to SAET, but submitted a transfer exposed the respondent to what she presented as a possible disadvantage to the respondent.
7. Ms Clare also submitted that it would be more expeditious to maintain the proceedings before this Tribunal.
8. She told the Tribunal that no proceedings had been issued in SAET by Ms Goodes. In addition, she said this matter had been before this Tribunal for a long time, and the respondent had prepared for a full hearing before this Tribunal. She said that prior to the last directions hearing in October 2024 the matter had been ready to proceed to a full hearing before the Tribunal. She said this work will be wasted if the matter is transferred to SAET.
9. In addition, Ms Clare submitted it was more expeditious for the matter to remain in this Tribunal because the Tribunal has a developed expertise in respect of equal opportunity matters and the application of the EO Act. She submitted there was no equivalent longstanding expertise in SAET, although she noted the sole jurisdiction in SAET of equal opportunity complaints relating to employment, since December 2024.
10. Ms Clare referred to other decisions of the Tribunal where the Tribunal has declined to transfer complaints made under the EO Act to SAET, on the basis of the Tribunal's established expertise in such matters: Raggio v Commissioner for Equal Opportunity [2025] SACAT 33 (Raggio); Challinder v City of Holdfast Bay [2023] SACAT 86 (Challinder); and a decision of SAET, in Mikhail Marchenko v South Australian Police [2020] SAET 168 (Marchenko).
11. In Marchenko, SAET commented that this Tribunal is "the ordinary forum in which complaints of discrimination under the EO Act are heard and determined", and transferred the complaint from SAET to this Tribunal. This was referred to by Senior Member D'Arcy in Challinder, where a decision was made to transfer to SAET a complaint where there was an employment relationship between the complainant and the respondent, and where there were other proceedings between the parties under way in SAET.
12. In Raggio, the Tribunal declined to transfer a complaint under the EO Act to SAET, with Senior Member Ward commenting as follows (at [24-25]):

SACAT has developed its own expertise in proceedings under the EO Act commenced by unsophisticated, unrepresented litigants alleging acts of discrimination. ...

13. Senior Member Ward then considered some of the specific circumstances arising in that matter, and decided "where there are allegations of age discrimination in employment, the terms of s 95B of the EO Act would require the Commissioner to refer the matter to SAET not to SACAT. This would ordinarily be a strong factor in favour of a transfer under s 98B(1), but one which I consider is outweighed by the other considerations in this case.". That matter was not transferred to SAET.

1. Section 98B of the EO Act gives the Tribunal a discretion to transfer proceedings commenced in the Tribunal, by reference from the Commissioner of a complaint under the EO Act, to SAET.
2. Section 98B(1) requires two matters to be considered: first, that the proceedings before the Tribunal that are sought to be transferred include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction; and second, that it would be more appropriate or expeditious for the proceedings to be transferred to SAET.
3. In this matter the parties agreed that the present proceedings include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction. Their disagreement appeared to relate to what was the more appropriate forum, and what would be the more expeditious means of proceeding.
4. Ms Goodes made her complaint to the Commissioner on 5 April 2024. The Commissioner referred her complaint to this Tribunal on 14 August 2024. The matter has been the subject of several directions hearings, and has been subject to a number of delays before the Tribunal. In October 2025 Ms Goodes indicated she would make an application for the transfer of her complaint to SAET. Ms Goodes has been legally represented in this matter since about this time. Ms Goodes has not filed any claim before SAET, although her counsel indicated she had drafted a Notification of an Industrial Dispute in November 2025. At this hearing Ms Veale suggested Ms Goodes was still considering if she would make such an application to SAET.
5. Had Ms Goodes' complaint been referred by the Commissioner after 1 December 2024, the Commissioner would have been required, pursuant to then recent amendments to the EO Act, to refer this complaint to SAET, not this Tribunal, pursuant to s 95B(2) of the EO Act, as a complaint of unlawful discrimination arising out of or related to employment. In this amendment to the EO Act, Parliament has made it clear that its general intention is for complaints about unlawful discrimination related to employment to be addressed by SAET, not this Tribunal.
6. If the Tribunal is satisfied that these proceedings include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction, it may transfer them to SAET, and in my view, Parliament's expressed intention that such proceedings should generally be dealt with in SAET is a relevant consideration in respect of the exercise of that discretion.
7. Ms Clare for the respondent submitted that whether the complainant has actually commenced proceedings before SAET is also a relevant consideration in determining how that discretion should be exercised, as she submitted that it was only once proceedings were commenced in SAET that the Tribunal could make an assessment of whether it would be "appropriate" to transfer the Tribunal proceedings to SAET.
8. I do not accept this submission as setting out a general proposition for the exercise of the discretion in s 98B(1). The relevant terms used in s 98B(1) are, in my view, completely unambiguous: that is (with my emphasis), The Tribunal may ... transfer proceedings: this makes it clear the Tribunal's power to transfer is discretionary, not mandatory; if the transferred proceedings include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction. The proceedings need not have commenced in SAET, and do not even need to commence in the future: the test specified by s 98B(1)(a) is only that the matter may be the subject of proceedings in SAET.
9. In this matter, Ms Goodes has made a complaint alleging that she was subject to unlawful discrimination on the ground of her disability in respect of an employment related requirement. She submits, and I accept, that the same underlying facts of her complaint against the respondent could also form the basis of proceedings against the respondent pursuant to the FW Act, although she has not commenced such proceedings. Accepting this is the case contains no implication or suggestion concerning the merits or likely success of either proceedings.
10. Accordingly, I am satisfied that the requirement set out in s 98B(1)(a) of the EO Act is satisfied.
11. However, s 98B(1)(b) also requires me to consider if it would be more appropriate or expeditious for these proceedings to be dealt with by SAET.
12. Ms Clare submitted I could not decide which was the appropriate forum as the applicant had not yet filed proceedings in SAET. I am satisfied, however, that s 98B(1)(a) does not require that such proceedings be already commenced. In my view, the section requires me only to consider in a broad sense whether the facts and circumstances set out in the complaint before the Tribunal demonstrate circumstances that may be the subject of proceedings under another Act of which SAET has jurisdiction. It does not require me to be satisfied with any precision as to the details or particulars of possible proceedings. In my view this is clear from the use of the phrase "that may be the subject of proceedings", in conjunction with the very broad expression of connection in the phrase "include or relate to". In my view these expressions suggest that a relatively loose connection between the facts and circumstances of the complaint before the Tribunal, and the facts and circumstances of proceedings that may come before SAET in the exercise of its jurisdiction under other legislation. It is not directing the Tribunal to a comparison of the particulars of complaints or allegations.
13. Ms Clare also suggested that a transfer of these proceedings to SAET represented an attempt by the applicant to impermissibly extend the scope of her equal opportunity complaint, to include broader industrial matters, whereas in this Tribunal the scope of the matter is constrained by the terms of the Commissioner's referral of the complaint.
14. It is certainly the case that before this Tribunal the applicant is restricted by the scope of the referral by the Commissioner. However, it is the case that even if this matter were not transferred to SAET, the applicant could commence proceedings in SAET concerning any other industrial aspects of her dispute. This would be a separate proceeding pursuant to other legislation, and would have to accord with that legislation. This follows from the fact that these proceedings include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction. Ms Goodes' complaint could proceed as a single EO Act complaint before this Tribunal; as an EO Act proceeding before this Tribunal, with a separate FW Act proceeding in SAET; or, if this matter is transferred, a single EO Act proceeding before SAET (as would have been the case had the referral been made after 1 December 2024); or, as a transferred EO Act proceeding in SAET, alongside a FW Act proceeding in SAET if Ms Goodes files such an application. In my view s 98B(1) anticipates all these possibilities, and I am satisfied that how SAET might choose to manage this matter if it was transferred, whether or not Ms Goodes initiates further proceedings alongside her EO Act complaint, is not a matter of concern for the Tribunal, as the Tribunal understands SAET would manage proceedings before it with due regard for the relevant requirements.
15. Ms Clare suggested that if the matter were transferred to SAET the respondent may be subject to disadvantage because SAET might run two proceedings together and not proceed through the usual processes for a FW Act proceeding including conciliation processes because it might take the view that conciliation processes had already been undertaken before this Tribunal in respect of the same circumstances, but in the context of the EO Act proceedings.
16. If there were two proceedings before SAET, namely these EO Act proceedings, and a FW Act proceeding, SAET might decide to run the separate proceedings together. However, how SAET chooses to exercise its jurisdiction and manage its proceedings is a matter for SAET. Undoubtedly the respondent would have the opportunity to make submissions on how the processes should apply to proceedings, and although Ms Clare suggested that the requirement that it make submissions which might not be successful was itself disadvantageous, I am satisfied it is appropriate for me to assume SAET will make its decisions appropriately and fairly.
17. Neither of these considerations suggest to me that SAET would not be an appropriate forum. I do not accept that transfer to SAET would compromise either the referral of Ms Goodes' complaint by the Commissioner; or compromise the respondent's opportunity to access procedural processes that might be available to it in separate SAET proceedings if Ms Goodes filed such proceedings.
18. In terms of what would be expeditious in this matter, I note there have been proceedings in this Tribunal over a lengthy period, including conciliation processes, and directions for the filing of submissions in anticipation of the full hearing of Ms Goodes' complaint. However, I note no submissions for the full hearing have been filed, and on 9 October 2025 Senior Member Rugless released the parties from compliance with the directions made earlier concerning the filing of outlines and documents, and the matter was not listed for a full hearing.
19. I accept both parties have undertaken preparation for the hearing of this matter before the Tribunal. In my view it is unlikely that preparation will be wasted, as even if further proceedings are filed with SAET, whether this matter proceeds before this Tribunal or SAET, the preparation in respect of the EO Act complaint will be needed unless the matter is otherwise resolved.
20. One other matter was raised in respect of the issue of what would be more expeditious in this matter. This relates to discussions in some of the cases cited as to the experience of the Tribunal in dealing with EO Act matters.
21. It is the case that the Tribunal has developed experience and expertise in respect of the application of the EO Act and the conduct of hearings concerning complaints made under that Act. Senior Member Ward expressed this view in Raggio, and it had similarly been considered of some significance in Challinder. In Marchenko, SAET noted that this Tribunal is "the ordinary forum" for complaints of unlawful discrimination under the EO Act. In Raggio, the Tribunal declined to transfer the EO complaint to SAET; in Challinder, the complaint was transferred. Marchenko was a matter commenced in SAET, which transferred the EO complaint to this Tribunal, considering it to be more properly dealt with here.
22. Without disagreeing with the comments in any of these matters, in my view these three matters are clearly distinguishable from the matter presently before the Tribunal.
23. In Raggio, where the EO complaint was not transferred to SAET, while it was accepted that the complainant could bring a complaint under the EO Act in respect of discrimination in employment as a voluntary worker, the Tribunal was satisfied that as a volunteer or unpaid worker the applicant in that matter would have no cause of action under any of the legislation in respect of which SAET could take jurisdiction, so the first hurdle of s 98B(1)(a) was not cleared: her complaint before the Tribunal did not include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction.
24. In Challinder, Senior Member D'Arcy noted that the applicant had other proceedings underway in SAET under the Return to Work Act 2014 in relation to the same circumstances complained of under the EO Act. Senior Member D'Arcy noted there were numerous considerations in favour of her finding that it was both appropriate and expeditious to transfer the proceedings to SAET.
25. I note the Marchenko decision precedes the 2024 amendment to the EO Act, pursuant to which the Commissioner was required to refer complaints of discrimination in employment to SAET. In _Marchenk_o, the Commissioner had referred Mr Marchenko's complaint to SAET. SAET considered the matter should normally be addressed in this Tribunal, which then had the sole expertise and experience to do so, and referred the matter to this Tribunal as the appropriate forum. I note there was no employment relationship, or potential employment relationship, between the complainant and the respondent in Marchenko, and it is likely, even post the 2024 amendment, a similar complaint would be considered in this Tribunal, not SAET.
26. This Tribunal does have an established expertise in hearing and determining complaints under the EO Act, and that is a significant consideration in considering whether it is appropriate to transfer this application to another forum. However, it is the case that SAET has now also developed experience and expertise in this respect, as the mandatory referral to SAET of employment related complaints of discrimination has been in place since 1 December 2024. Moreover, it is clearly Parliament's intention, expressed in the 2024 amendment, that EO complaints arising from or relating to an employment context should be dealt with by SAET, a specialist employment tribunal.
27. The final consideration in s 98B(1)(b) is whether it is more expeditious to transfer the matter to SAET.
28. I have rejected the respondent's submission that the work already undertaken in preparing this matter for hearing before this Tribunal will be wasted if the matter is transferred to SAET.
29. However, there are other matters to consider in this respect. Ms Veale submitted that if this matter was not transferred to SAET Ms Goodes would face the possibility of having to present her case and evidence twice, with the additional cost, time and stress that would entail for her. This could be limited to some extent if these proceedings were transferred to SAET as the two proceedings could then travel together, limiting these costs.
30. I note these considerations were considered significant in Challinder, where Senior Member D'Arcy considered that transfer of the proceedings before the Tribunal could "minimise the inevitable myriad inefficiencies otherwise associated with the same facts needing to be established in two different Tribunals and to minimise the inconvenience to witnesses". I am satisfied similar considerations apply in this matter, and are applicable to both parties. Although I note Ms Goodes has not commenced any proceedings in SAET, I consider these significant matters in relation to an assessment of the issue of what is more expeditious in terms of forum: Ms Goodes' option to make an application to SAET are possibly more restricted, in real terms, if this matter is not transferred, as to pursue any claim in SAET will become more costly and inconvenient.
31. Although Ms Clare was concerned that the respondent might be disadvantaged by a transfer of the proceedings to SAET in that some processes, such as conciliation, might not be adopted in any SAET proceedings, I am satisfied that SAET manages its proceedings in an appropriate manner and that this is not a relevant consideration here.
32. However, the most determinative consideration in respect of this issue is that it appears to me the overarching principle in enabling the transfer of proceedings in circumstances where the alleged facts and circumstances of the proceedings before the Tribunal include or relate to matters that may be the subject of proceedings under another Act of which SAET has jurisdiction, is to avoid the consequences of having proceedings concerning the same base facts in two different tribunals, with the risk that there may be conflicting or different findings of facts, or a determination of issue estoppel in one or the other tribunal. These circumstances would not be in the interest of enabling complaints to be determined fairly, or for the expeditious functioning of the tribunals. In my view this consideration, in this matter, supports the transfer of these proceedings to SAET, even in the absence of any proceedings commenced in SAET, since I am satisfied the proceedings before the Tribunal relate to matters that could be the subject of proceedings before SAET, so there is a possibility the circumstances I have considered could arise.
33. In addition, it is appropriate or expeditious for the proceedings to be transferred as the parties might be able to utilise SAET's findings in one or other of the matters as a basis, by agreement, for the resolution of the other proceedings.
34. Having considered the matters referred to in s 98B of the EO Act, I am satisfied these proceedings should be transferred to SAET, and I shall make an order doing so. I am satisfied the proceedings before the Tribunal relate to matters that may be the subject of proceedings before SAET pursuant to the FW Act: even though no such proceedings have been commenced there is sufficient information in the complaint before the Tribunal to be satisfied that those matters could be the subject of proceedings before SAET. In addition, I am satisfied that it would be more appropriate and expeditious for SAET to deal with these proceedings, bearing in mind that such proceedings would now be made directly to SAET, and this will avoid any possibility of the same base facts being subject to different proceedings in different Tribunals, with the attendant risk of conflicting findings, as well as the likely additional costs on both parties.
35. I am satisfied that the grounds for making an order under s 98B are made out.

1. These proceedings, 2024/SA002398 in this Tribunal, are transferred to the South Australian Employment Tribunal, pursuant to s 98B of the Equal Opportunity Act 1984.