53CParties to ACAT proceeding on discrimination complaint

53C Parties to ACAT proceeding on discrimination complaint The parties to a complaint referred to the ACAT under this division are— (a) the complainant; and (b) the respondent; and Note The commission is the complainant in relation to a commission-initiated consideration (see dict, def complainant).

53CA Onus of establishing complaint about discrimination etc (1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by— (a) treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or (b) imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination). (2) It is a rebuttable presumption that discrimination has occurred if the complainant— (a) establishes that— (i) for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and (ii) for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and (b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation— (i) for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or (ii) for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.

(3) The presumption under subsection (2) is rebutted if the respondent establishes that— (a) for a complaint about direct discrimination—the treatment is not because of a protected attribute of the other person; or (b) for a complaint about indirect discrimination—the effect of disadvantaging a person is not because of a protected attribute of the other person. Note The onus of establishing an exception or exemption to discrimination is on the person seeking to rely on it (see Discrimination Act 1991, s 70). protected attribute means a protected attribute under the Discrimination Act 1991.