Which Act applies?

The RDA section 6A, the SDA sections 10 and 11, the DDA section 13  and the ADA section 12 all outline that the particular Act will override the State or Territory law to the extent that it is inconsistent with the Commonwealth Act. However, where a law of a State or Territory is capable of operating concurrently, the Commonwealth Act will not exclude or limit the operation of that law. Each of these provisions in the Anti-Discrimination Acts also provides the option of initiating an action under either Commonwealth or State or Territory laws.

Choosing the Act – Federal or State?

There is a significant overlap of the jurisdiction of both the State and Commonwealth Acts, and in many cases complainants will be faced with a choice between proceeding under the state legislation or the Commonwealth legislation.

In Tasmania, the wider range of grounds of the State legislation may mean that it will be better to proceed under the State legislation. People who are not covered by the state legislation (for example, Commonwealth Government employees) must proceed under the Commonwealth legislation.

Costs – Federal or State?

Costs are a decisive factor for many people in bringing a legal action. One of the attractions of the State Act is that it is meant to provide a no costs jurisdiction (unless the action is frivolous or vexatious, etc), whereas the Federal Court for the Federal Acts is a costs jurisdiction, and carries the costs of a federal legal action. In practice, this can make a big difference to ordinary people in deciding which Act to choose.

Fair Work Act 2009 (Cth)

Section 734 prevents a person from making a general protections court application in relation to conduct falling short of a dismissal where an application or complaint has been made under anti-discrimination law, and the complaint or application is still active. For example, this means that an employment discrimination issue that is brought to the attention of the AHRC under the complaints mechanism in relation to the DDA cannot also be made the subject of a general protections court application.

Another benefit of the Fair Work Act is the reverse onus provision, section 361  in the  Fair Work Act – if an applicant alleges discrimination it is on the respondent (employer) to prove that it wasn’t discrimination. This makes the Fair Work Act an attractive option for complainants.

Also, an action in court under the Fair Work Act only attracts costs to a party where the court is satisfied that:

• the party instituted the proceedings vexatiously or without reasonable cause (s570(2)(a));
• the party’s unreasonable act or omission caused the other party to incur the costs; or
• both the party unreasonably refused to participate in a matter before Fair Work Act, and the matter arose from the same facts as the proceedings

For actions before Fair Work Australia, each party must bear its own costs (s611).