Part 8Enforcement

Part 8—Enforcement Division 1—Proceedings before Commissioner and Tribunal 93—Making of complaints (1) A complaint alleging that a person has acted in contravention of this Act may be made— (a) by a person aggrieved by the act; (b) by a person aggrieved by the act, on behalf of himself or herself and any other person aggrieved by the act; (c) if a person aggrieved by the act is a child or has an intellectual disability—by a person who is, in the opinion of the Commissioner, a suitable representative of the interests of the aggrieved person. (1a) A person cannot make a complaint pursuant to subsection (1)(b) on behalf of some other person unless that other person has consented in writing to the making of the complaint. (1b) A person who consents to a complaint being made on his or her behalf is bound by any decision or order made on the complaint. (1c) A complaint— (a) must be in writing and set out the details of the alleged contravention; and (b) must be lodged with the Commissioner. (2) A complaint must be lodged— (a) if the alleged contravention is constituted of a series of acts—within 12 months of the last of those acts; (b) in any other case—within 12 months of the date on which the contravention is alleged to have been committed. (2a) The Commissioner may, on application, extend the time for lodging a complaint, even if the time for lodging the complaint has expired, if the Commissioner is satisfied— (a) that there is good reason why the complaint was not made within the stipulated time period; and (b) that in all the circumstances it is just and equitable to do so. (2b) If the Commissioner decides to refuse an application to extend the time for lodging a complaint, the Commissioner must give the applicant notice in writing of the decision and of the applicant's right to have the decision reviewed. (2c) A complaint alleging that a student enrolled in a course of secondary education has committed an act of sexual harassment or victimisation against a fellow student of the educational institution at which the student is enrolled may not be lodged unless the complainant satisfies the Commissioner that the complainant has made a reasonable attempt to resolve the matter through procedures available at the institution or that there is good reason for not doing so. (3) On a complaint being lodged under this section, the Commissioner must cause a written summary of the particulars of the complaint to be served on the respondent named in the complaint. (4) Despite any other provision of this Act, if the Commissioner becomes aware that— (a) a criminal investigation is being conducted in relation to a matter that is the subject of a complaint; or (b) a person has been or is to be charged with a criminal offence in relation to a matter that is the subject of a complaint, the Commissioner may not proceed to investigate or otherwise deal with the complaint under this Act, or to attempt to resolve the subject matter of the complaint by conciliation, until the criminal investigation has been completed or the proceedings for the offence have been disposed of, withdrawn or permanently stayed. (5) If a complaint alleges that a registered health practitioner has contravened section 86A in the course of practising a health profession, the Commissioner— (a) must refer the complaint to the relevant health complaints entity; and (b) may not proceed to investigate or otherwise deal with the complaint under this Act, or to attempt to resolve the subject matter of the complaint by conciliation under this Act. (6) In subsection (5) the terms health complaints entity, health profession and registered health practitioner all have the same meaning as in the Health Practitioner Regulation National Law. 93AA—Manner of dealing with complaints of sexual harassment by judicial officers and members of Parliament (1) If a complaint alleging that a judicial officer or a member of Parliament has acted in contravention of section 87 is lodged with the Commissioner, the following provisions apply: (a) the Commissioner must refer the complaint to the appropriate authority; (b) if the appropriate authority is of the opinion that dealing with the complaint under this Act could impinge on judicial independence or parliamentary privilege, as the case may be, the appropriate authority will investigate and may deal with the matter in such manner as the appropriate authority thinks fit; (c) on the appropriate authority giving the Commissioner written notice that a complaint is to be dealt with under paragraph (b)— (i) no further action can be taken under any other provision of this Act on the complaint; and (ii) the Commissioner must give the complainant and the respondent written notice that the complaint will be dealt with by the appropriate authority; (d) on the appropriate authority giving the Commissioner written notice that a complaint will not be dealt with under paragraph (b), the Commissioner may proceed to deal with the complaint under this Act; (e) a notice must be given under paragraph (c) or (d) by the appropriate authority no later than one month after the referral of a complaint to the appropriate authority; (f) the Commissioner may at the request of the appropriate authority— (i) assist the authority in investigating a complaint that is to be dealt with under paragraph (b); or (ii) attempt to resolve the subject matter of such a complaint by conciliation (and for that purpose the Commissioner has the same powers as are conferred on the Commissioner by section 95 in relation to the conduct of conciliation proceedings where a complaint is dealt with under this Act); (g) if the Commissioner is to act under paragraph (f), the appropriate authority must give the complainant and the respondent written notice that the Commissioner is to so act; (h) if the Commissioner attempts to resolve the subject matter of a complaint by conciliation but is not successful in that attempt, the Commissioner may make recommendations to the appropriate authority regarding resolution of the matter; (i) if, after investigating a complaint under paragraph (b), the appropriate authority considers that the complaint can be dealt with under this Act without impinging on judicial independence or parliamentary privilege (as the case may be), the appropriate authority must remit the complaint to the Commissioner, and, in that case, the Commissioner may proceed to deal with the complaint under this Act; (j) if a complaint is remitted to the Commissioner under paragraph (i), the Commissioner must give the complainant and respondent written notice that the complaint is to be dealt with by the Commissioner; (k) the appropriate authority must give the complainant and the Commissioner written notice of the manner in which the appropriate authority has dealt with a complaint under paragraph (b). (2) For the purposes of investigating a complaint that is to be dealt with by the appropriate authority under this section, the authority has the same investigative powers as are conferred on the Commissioner by section 94 in relation to the investigation of a complaint by the Commissioner. (4) No personal liability attaches to the appropriate authority for an act or omission in good faith and in the exercise, or purported exercise, or the discharge, or purported discharge, of powers or duties under this section. (5) A liability that would, but for subsection (4), lie against the appropriate authority lies instead against the Crown. (8) In this section— appropriate authority means— (a) in relation to a complaint against a judicial officer— (i) the Chief Justice; or (ii) if the Chief Justice is the respondent or considers it inappropriate that he or she should deal with the matter—the most senior puisne judge of the Supreme Court who is not the respondent, is available to deal with the matter and does not consider it inappropriate that he or she should deal with the matter; (b) in relation to a complaint against a member of the House of Assembly— (i) the Speaker of the House of Assembly; or (ii) if the Speaker is absent or unable for the time being to perform the duties of office, or is the respondent or considers it inappropriate that he or she should deal with the matter—the Deputy Speaker of the House of Assembly; or (iii) if the Deputy Speaker is absent or unable for the time being to perform the duties of office, or is the respondent or considers it inappropriate that he or she should deal with the matter—a member of the House of Assembly who is not the respondent in the matter and who is appointed by the House of Assembly to deal with the complaint; (c) in relation to a complaint against a member of the Legislative Council— (i) the President of the Legislative Council; or (ii) if the President is absent or unable for the time being to perform the duties of office, or is the respondent or considers it inappropriate that he or she should deal with the matter—the member of the Legislative Council for the time being appointed by the Legislative Council to deal with such a complaint; or (iii) if that member is absent or unable for the time being to perform the duties of office, or is the respondent or considers it inappropriate that he or she should deal with the matter—a member of the Legislative Council who is not the respondent and who is appointed by the Legislative Council to deal with the complaint. 93A—Institution of inquiries (1) If it appears to the Tribunal, on application made by the Commissioner with the approval of the Minister, that a person may have acted in contravention of this Act, the Tribunal may refer the matter to the Commissioner for investigation. (2) The person the subject of an application under this section is a party to the application and the Commissioner must, on lodging the application with the Tribunal, furnish the person with a copy of the application. (3) This section does not apply in relation to an alleged contravention of section 87 by a judicial officer or a member of Parliament. 94—Investigation of complaints or matters referred to Commissioner (1) On a complaint being lodged or a matter being referred, the Commissioner may conduct an investigation into the alleged contravention. (2) An investigation by the Commissioner into an alleged contravention of this Act is to be conducted— (a) in the case of an investigation on a complaint—for the purpose of enabling the Commissioner to determine whether the complaint is one on which action should be taken by the Commissioner and, if so, enabling resolution of the matter by conciliation or enabling referral of the matter to the Tribunal; and (b) in the case of a matter referred to the Commissioner for investigation—for the purpose of enabling the Commissioner to determine whether the matter should be referred to the Tribunal and, if so, enabling that referral. (2a) For the purposes of an investigation, the Commissioner may, by notice in writing, require a person whom the Commissioner reasonably believes may have in his or her possession or control books, papers or other documents relevant to the subject matter of the investigation, to produce to the Commissioner such of those books, papers or other documents as may be specified in the notice. (2b) The Commissioner cannot, without the consent of the person concerned, require production of— (a) records of counselling or therapy sessions undergone by the person; or (b) records or notes made by an advocate for the person in relation to the subject matter of the alleged contravention of the Act. (3) Subject to subsection (4), a person to whom a notice is given under subsection (2a) must not refuse or fail to comply with the notice. (4) A person is not obliged to produce books, papers or documents under this section if— (a) their contents would tend to incriminate the person of an offence; or (b) by producing them the person would commit a breach of legal professional privilege. (5) The Commissioner may retain books, papers or documents produced under this section only for so long as is reasonably necessary to peruse their contents and take copies of them. (6) Nothing in this section empowers the Commissioner to require that a book, paper or document that is required for the day to day operation of a business be produced at a place other than the premises from which the business is operated. (7) This section does not empower the Commissioner to require the production of books, papers or documents relating to— (a) parliamentary proceedings; or (b) the exercise, or purported exercise, of judicial powers or functions, or the discharge, or purported discharge, of judicial duties, by a judicial officer in court or in chambers. 95—Conciliation of complaints lodged with Commissioner (1) If the Commissioner is of the opinion that a matter the subject of a complaint (other than a complaint declined by the Commissioner under section 95A) may be resolved by conciliation, the Commissioner must make all reasonable endeavours to resolve the matter by conciliation. (2) If the Commissioner— (a) has received more than 1 complaint against the same respondent alleging the same or similar issues of law or fact; and (b) is of the opinion that the most appropriate form of conciliation is by way of joint conciliation, the Commissioner may conciliate the matters jointly. (3) The Commissioner may, by notice in writing to the complainant or the person who is alleged to have contravened this Act, require that person to attend at a time and place specified in the notice for the purpose of conciliation. (4) A person who refuses or fails to comply with a requirement of the Commissioner under this section is guilty of an offence. (5) The Commissioner may conduct conciliation proceedings as the Commissioner thinks fit, including— (a) by conciliating the matter without bringing the parties into direct contact with one another; and (b) by inviting persons other than the parties to attend the conciliation proceedings (for example, by inviting representatives of an educational authority to attend conciliation proceedings in a case involving sexual harassment between students). (6) A party to proceedings is not entitled to be represented, or assisted, by a legal practitioner in conciliation proceedings except with the authority of the Commissioner. (7) If a child is a party to proceedings, the child is entitled to be supported in conciliation proceedings by an adult who, in the opinion of the Commissioner, would be of assistance in that role. (8) For the purposes of conciliating a matter, the Commissioner may make available to a particular party to the proceedings books, papers or documents produced by other persons for the purposes of an investigation that are likely, in the Commissioner's opinion, to facilitate resolution of the matter (but the Commissioner must not make records referred to in section 94(2b), or other documents containing confidential or personal information, available without the consent of the person concerned). (9) Evidence of anything said or done in the course of conciliation proceedings is not admissible in proceedings under this Act or any other Act or law. 95A—Commissioner may decline complaints in certain circumstances (1) The Commissioner may, by notice in writing to the complainant, decline to recognise a complaint as one on which action should be taken by the Commissioner if, in the opinion of the Commissioner— (a) the complaint is frivolous, vexatious, misconceived or lacking in substance; or (b) the complaint has ceased to be a complaint that should be proceeded with because the complainant— (i) has died; or (ii) is unable to be contacted; or (iii) has expressed an intention not to proceed, or otherwise evidenced a lack of interest in proceeding, with the complaint; or (iv) has unreasonably refused or failed to cooperate; or (c) there is no reasonable prospect of an order being made by the Tribunal under section 96(1) or of an order being made by the Tribunal that is more favourable to the complainant than offers refused by the complainant in conciliation proceedings; or (d) the complaint alleges discrimination on the ground of being, or having been, subjected to domestic abuse and the complainant fails to provide sufficient evidence that they are, or have been, subjected to domestic abuse. (2) A decision by the Commissioner not to recognise a complaint as one on which action should be taken may be made at any time, despite the fact that to some extent action has already been taken on the complaint. (3) If— (a) the Commissioner has determined that a complaint has ceased to be a complaint that should be proceeded with under subsection (1)(b); and (b) the complainant contacts the Commissioner within 12 months after the date of that determination requesting that the complaint proceed, the Commissioner may reinstate the complaint. (4) For the purposes of subsection (1)(d), a reference to sufficient evidence provided by a complainant is a reference to— (a) evidence that an intervention order has been issued under the Intervention Orders (Prevention of Abuse) Act 2009 to protect the complainant from domestic abuse; or (b) evidence that the complainant has sought or received assistance in relation to domestic abuse from— (i) a registered health practitioner; or (ii) a charitable organisation; or (iii) a person or body of a class prescribed by the regulations; or (c) evidence that otherwise satisfies the Commissioner that the complainant is, or has been, subjected to domestic abuse. (5) In this section— charitable organisation means an organisation, society, institution or body carried on for a religious, educational, benevolent or charitable purpose, provided that it is not also carried on for the purpose of securing pecuniary benefit for its members. 95B—Referral of complaints to Tribunal (1) If, in respect of a complaint, the Commissioner— (a) is of the opinion that the matter cannot be resolved by conciliation; or (b) has attempted to resolve the matter by conciliation but has not been successful in that attempt; or (ba) is of the opinion that the matter should be transferred (whether or not there has been an attempt to resolve the matter by conciliation); or (c) has declined to recognise the complaint as one on which action should be taken and the complainant has, within 3 months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal, the Commissioner must refer the matter to the Tribunal for hearing and determination. (2) However if, in respect of a complaint, the Commissioner is of the opinion that the matter involves— (a) an alleged contravention of Part 3 Division 2, Part 4 Division 2, Part 5 Division 2, Part 5A Division 2 or Part 5B Division 2; or (b) an alleged contravention of section 86, 87 or 88 by a person against— (i) a person with whom they work; or (ii) a person who is seeking to become a fellow worker, the Commissioner must not refer the matter to the Tribunal under subsection (1) but must instead refer the matter to SAET (subject to subsection (2a)). (2a) If, in respect of a complaint, the Commissioner is of the opinion that the matter involves both alleged contraventions of a kind referred to in subsection (2) and other matters, the Commissioner may refer the matter to SAET or to the Tribunal, as the Commissioner thinks fit. (3) If the Commissioner refers a matter to SAET under subsection (2) or (2a), SAET will be taken to have jurisdiction under this Act to deal with the matter and the matter may be determined by SAET in accordance with this Act. 95C—Assistance to parties before Tribunal (1) Subject to subsection (2), the Commissioner may, at the request of the complainant or respondent, provide representation for the complainant or respondent in proceedings before the Tribunal. (2) The Commissioner must apply available public funds judiciously taking into account— (a) the capacity of the complainant or respondent to represent himself or herself or provide his or her own representation; and (b) the nature and circumstances of the alleged contravention of this Act; and (c) any other matter considered relevant by the Commissioner. (3) If the Commissioner provides representation to a complainant or respondent, the person representing the complainant or respondent— (a) must disclose to the Commissioner information reasonably required by the Commissioner to determine whether the Commissioner should cease to provide representation; and (b) may disclose to the Commissioner information that the person considers relevant to the question of whether the Commissioner should cease to provide representation, and the complainant or respondent will be taken to have waived any right or privilege that might prevent such disclosure. 95D—Referral of matters to Tribunal (1) If, following an investigation of a matter referred to the Commissioner, the Commissioner is of the opinion that the matter should be referred to the Tribunal for hearing and determination, the Commissioner will lodge a complaint with the Tribunal in respect of the matter. (2) If, following an investigation of a matter referred to the Commissioner, the Commissioner determines that the matter should not be referred to the Tribunal, the Commissioner must, by notice in writing to the person the subject of the investigation, inform the person of that determination. 96—Power of Tribunal to make certain orders (1) The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders: (a) subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention; (b) an order requiring the respondent to refrain from further contravention of the Act; (c) an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention or remedying a discriminatory or unlawful act. (2) The Tribunal may, at any stage of proceedings under this Part— (a) make an interim order to prevent prejudice to a person affected by the proceedings; (b) make an order dismissing the proceedings. (3) The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings. (3a) In awarding compensation the Tribunal must take into account the amount of damages or compensation (if any) awarded in other proceedings (criminal or civil) in respect of the same act or series of acts. (3b) An award of compensation may not be made against a child for an act in contravention of this Act (but an award of compensation may be made against a person who is vicariously liable for the act of the child). (6) The Commissioner may, at the request or with the leave of the Tribunal, assist the Tribunal in proceedings. 96A—Limitation on publicity relating to child A person must not publish, by radio, television or newspaper, on the Internet or in any other way, a report of proceedings under this Act to which a child is a party if the report identifies the child or contains information tending to identify the child. Maximum penalty: $10 000.