The review will focus on complaint handling and dispute resolution with recommendations expected to deal with such matters from legal representation, time limits for lodging a complaint, the awarding of costs and extension of the grounds for unlawful harassment.
The Tasmanian Government is currently conducting a review of Tasmania's Anti-Discrimination Act 1998. Importantly, the recommendations made as a result of the review have the potential to impact a number of aspects of the anti-discrimination regime, and in particular, the procedures prescribed by the Act for the handling of complaints and the resolution of disputes. The discussion paper is available at the website of Tasmania's Office of the Anti-Discrimination Commissioner.
The present review stems from recommendations made at the conclusion of the State's law and justice reforms that were carried out in 2002. In 2004, certain amendments were made to the Act and these were followed by an internal review which highlighted additional changes that would promote procedural fairness and the efficient resolution of complaints.
As such, the present review will focus on the Act's complaint handling and dispute resolution provisions in order to address the previously identified issues. Submissions made in response to the discussion paper released by the Government were due by 22 September 2006.
Scope of the review
In summary, the review will:
examine the complaints handling and dispute resolution provisions of the Act; and
make recommendations for legislative change to support fair, flexible and efficient investigation, conciliation and inquiry processes.
Questions from the review
Within the terms of reference of the review, the discussion paper identifies a number of questions in which a response is sought. These include, in relation to the Anti-Discrimination Commission:
Should parties have a right to legal representation?
If granted representation during the investigation phase, should this right extend to conciliation?
Is the current 12 month time limit for the lodgement of complaint adequate?
Should respondents have a right to a copy of the complaint?
Should the Commissioner be able to reject a complaint if the discrimination is not the dominant or substantial reason for the alleged discriminatory act?
In relation to the Anti-Discrimination Tribunal, the Review asks:
Should the circumstances in which costs may be awarded by the Tribunal be more wide ranging? For example, should it extend to circumstances where the respondent has made reasonable settlement offers that the complainant has unreasonably refused and vice versa?
Should the provisions dealing with harassment in relation to an attribute be extended to all attributes covered by the Act? At present, the Act only makes it unlawful to engage in conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of gender, martial status, relationship status, pregnancy, breastfeeding, parental status or family responsibilities, but it does not include, for example, such conduct in relation to age or disability.
Results from the review will be used to prepare a recommendation paper to the Attorney-General. The Attorney-General will then make recommendations (if any) to Cabinet. Employers in Tasmania should keep informed of developments and, in particular, any legislative amendments to the complaint handling and dispute resolution procedures.
Thanks to Stasio Ulaszyn for his help in writing this article.
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