The complaint process

Complaining to Anti-Discrimination NSW (PDF , 140.8 KB)

Before you lodge a complaint

Is your situation against the law?

You can contact our enquiry service for information about anti-discrimination law and to ask for advice about the complaint process. Even if your problem is not covered, we may be able to refer you to another service that can help you or suggest other ways to deal with the problem.

Can you resolve the complaint yourself?

If possible, you should first try to talk to the person or organisation that treated you unfairly. Be as calm as you can. Tell them that you think this unfair treatment is against the law. If you want to, take someone with you.

Use whatever help you can. For example, if it is a work problem you could ask your union for help, or ask a supervisor or manager to speak to the person or people who treated you unfairly. The organisation may also have a grievance procedure that you can follow.

If it's not possible to sort out the problem yourself, the next step is to make a formal complaint to us.

How much will this service cost?

Our complaint handling service is free of charge. However, if you employ your own lawyer, you will need to pay their fees.

Who can make a complaint?

• An individual who has been discriminated against, sexually harassed, vilified or victimised
• a group of people who have been discriminated against, sexually harassed or vilified
• your lawyer, or organisations such as unions and other representative bodies, as long as the complaint makes it clear that you agree with the complaint being made and you are named in the complaint. In some circumstances you may also be required to show that you consent to the complaint being made on your behalf
• in certain circumstances, a person can make a complaint on behalf of a child or a person with a disability if they cannot do it themselves. In this case please contact the us for more information.

You can only lodge a complaint of vilification if you have the characteristic or come from the group that you think has been vilified. For example, you can only lodge a homosexual vilification complaint if you are gay or lesbian.

Does the person I am complaining about have to know who I am?

Yes. The person or people you are complaining about (called the respondent) will have to know about your complaint and who you are. We can only help to resolve complaints if we get both sides of the story, and this means all the people involved must know what has been said about them.

Who else will know about my complaint?

We keep your complaint confidential to the parties to the complaint, that is you and the respondent(s). This applies from the time you phone us right through the conciliation process. It is best that you don’t talk about your complaint to anyone who does not need to know. We also ask the person or organisation you have complained about not to talk to anyone who does not need to know either. This gives both sides a better chance of working things out.

Punishing you for complaining to us is also unlawful

If you are punished, harassed or treated unfairly because you complained to us, this is called victimisation.

The law says that you must not be victimised if you have made a complaint of discrimination, harassment or vilification, or you intend to make a complaint or have helped someone else make a complaint. This includes people who have agreed to be witnesses for your complaint.

This means that you must not be punished or receive further unfair treatment for making a complaint, or because someone thinks you may complain, or because you have helped someone else with a complaint. For example, you make a complaint of sexual harassment to your employer and then your work is suddenly scrutinised or you are dismissed.

If anyone tries to make trouble for you because you made a complaint or because they think you might make one, you should talk immediately to one or our officers.

What happens when you lodge a complaint

We will send you a letter of acknowledgment within two weeks of receiving your complaint. We will assess your complaint to determine if it is covered under the Anti-Discrimination Act 1977.

If your complaint is covered by the Anti-Discrimination Act

If your complaint does show that you may have been discriminated against under the law, your complaint handler will contact you for more information, either by phone or letter. We will explain what we can and can’t do, and the steps involved in our complaint resolution process.

After we have contacted you, we will send a copy of your complaint and any paperwork you have provided to the respondent(s), that is the person or people you are complaining about. This is in fairness to the respondent, and so that we can get as much information about your complaint as possible.

Remember, complaints to us are confidential and it is also against the law to treat you badly because you have made a complaint.

The respondent’s reply

We will give the respondent a deadline to respond to us in writing about your complaint. You will then receive a copy of the respondent’s letter to us for your comment. Often complaints are resolved at this point. If not, the next step is a conciliation conference. 

How long will it take to resolve my complaint?

Resolving complaints can take several months and very complex cases may take longer. However, many complaints can be sorted out more quickly. We aim to deal with complaints within six months from the time you lodge your complaint.

Conciliation conference

You should bring a proposal for settling your complaint to the conciliation conference. We aim to resolve the complaint at the conference, but if necessary, both sides can have a period of time after the conciliation conference to consider the settlement proposal.

The complaint handler cannot tell either side what to settle on. If you have no idea about what would be a fair or reasonable resolution, we can give you information about how to get advice on this.

Usually when the complaint is finalised there will be a deed of release or a conciliation agreement. These documents set out the outcome that both parties have agreed to. A deed of release is generally provided by the respondent and is legally binding. A conciliation agreement is not legally binding and we cannot enforce it, but you can register the agreement with NSW Civil and Adminstrative Tribunal (NCAT) and have it enforced.

What happens if the complaint isn’t resolved during the conciliation conference?

• Both parties can continue negotiations after the conciliation conference, if this is appropriate
• you can withdraw the complaint
• you can ask the President to refer the complaint to NSW Civil and Adminstrative Tribunal (NCAT) as being unable to be conciliated or
• the President may decline the complaint as lacking in substance because there doesn’t seem to be enough evidence. If this happens, then you can still take the complaint to NCAT.

Withdrawing a complaint

You can ask us to stop dealing with your complaint at any time during the investigation or conciliation process. No-one else can withdraw a complaint except the complainant.

To withdraw your complaint, you need to write to the person handling your complaint and tell them that you want to withdraw it. Your file will then be closed. We won’t do anything more with it and we will not re-open it later if you change your mind.

What if I’m unhappy with the way my complaint is being handled 

If you are unhappy at any time during the process of resolving your complaint, speak to your complaint handler about your concerns. If it happens during a conciliation conference, ask for a break so you can speak to the complaint handler privately. Tell the complaint handler exactly what you are feeling as it may be something that can be resolved straight away.

If you feel you cannot continue with the complaint handler after discussing the problem with them, you should tell them this and say what you think the next step should be. You could also complain to the Executive Manager of Anti-Discrimination NSW.

You also have the right to complain to the NSW Ombudman about the way your complaint was handled. You cannot complain to the Ombudsman about the result of conciliation or about decisions of the NSW Civil and Administrative Tribunal.

If your discrimination complaint goes to the NSW Civil and Adminstrative Tribunal and you are not satisfied with the decisions the Tribunal makes, you may be able to appeal to a higher court. Before you do this, you should get legal advice about whether it is worthwhile.