Anti-Discrimination bodies

I’m thinking of lodging a complaint against my school with the anti-discrimination body in my state. Can I do that?

The short answer is Yes!

If you feel you are (as a student), or your child is (as a parent) being discriminated against, you have every right to do that. The process is also free.

Around the country, the anti-discrimination bodies are called different things in various states. Queensland for example has a Commission, while New South Wales has a Board, and some states use ‘Equal Opportunity’ in their titles instead of ‘Anti-Discrimination’. At the end of this information you will find the anti-discrimination body for each state listed, with links to their complaint forms.

What evidence might I need to substantiate my claim?

For your situation to be seen as discrimination, you need to have an instance of discrimination. If you have an email or letter from your principal stating that shorts and pants for girls will not be added to the uniform policy, this is an example of discrimination. If you have been told by the principal that short and pants for girls will not be added, this is an example of discrimination. Try to correspond with your school in writing as this will be excellent evidence of their position.

Keep a good record of notes around the discussions and meetings you have had in relation to the school uniform policy. Note down dates, times, people present, and the key points of the discussion, as well as any outcomes. If you have raised this issue at P&C/P&F meetings, school council meetings etc, write all of this down and outline the responses received from the school and other important school community members.

How does the complaint process work?

Some terms to get your head around up front:

  • Complainant (the person making the complaint);
  • Respondent (the person who the complaint is against).

A complaint is lodged in writing online, using the online form on their website. You will find the links to each state anti-discrimination body home page, and lodgement forms, at the end of this information.

Parents can complain on their child’s behalf. If a student is around 15 years or above, the student will be asked if they can make the claim on their own (they may not be able to due to disability, for example). Where the student can, it is preferred that the student lodge the claim, however it is also acceptable for the parent to do this on the child’s behalf.

The complaint form, outlining your complaint in detail should be lodged within 12 months of when the discrimination occurred. This is flexible, but it is preferred that you lodge a complaint as soon as possible.

Once your form is lodged it is allocated to a conciliator. You then wait for a reply. The anti-discrimination body is required to reply within 28 days from receiving your complaint. Within these 28 days, they will inform you as to whether they can accept your complaint or not.

On making this decision, they will be looking to see if there is an area of the Anti-Discrimination Act for your state that covers your complaint (for school uniform discrimination against girls, the area of ‘sex discrimination’ would likely be applied). They also determine whether the event you are complaining about constitutes ‘unfair treatment’.

The anti-discrimination body also lets all parties involved in the complaint know that a complaint has been made against them.

If the anti-discrimination body decides that you do have a case, they will call all parties to a conciliation conference. This is usually held face to face. In Queensland (check whether this is true for your state), all parties MUST attend this meeting. They cannot refuse to attend.

From here, the process is a little different depending on whether you complaint is against a state or a private school. The following is about the process for state schools. Scroll down to the heading, The Process for Private Schools, for that information.

The Process for State Schools

If your complaint is about a state school, you are complaining against the State you live in (for example the State of Queensland). The respondent is the Department of Education in your state (for example in Queensland it is the Department of Education and Training (DET)).

Often, the conciliation meeting will include a Senior Conciliator from the anti-discrimination body, the complainant (you; if your child is the complainant, parents can also attend), a representative from the Education Department, the school principal, and possibly a lawyer representing the department.

At this meeting, the goal is to resolve the issue. For an issue around girls’ school uniforms, the school may choose to allow the complainant to have greater uniform options. If the complainant is happy with this, that can be the end of the dispute.

If the complainant is not happy with this, they do not have to accept this outcome. They can ask for the school’s entire uniform policy to be changed so that ALL girls have greater choice in their uniform options. The complainant can ask that the Department of Education change its state-wide school uniform policy so that it mandates that all schools MUST offer a range of uniform choices for all girls state-wide.

The complainant may feel that the Education Department already has a uniform policy in place that allows girls choice, and the problem is that they are not enforcing it. The complainant can state that they want this policy enforced state-wide, and work out a strategy with the Department as to how this is going to happen.

The key point to understand here is that the complainant should go into this meeting with a clear idea of what they want to achieve from this meeting, and not accept a lesser outcome. There are many different outcomes (policy change, training, apology, etc.) that can come out of the meeting, so being clear about what you want is essential.

If the respondent (the Education Department) is not willing to meet the terms of the complainant’s request, and the complainant is not willing to accept less, the meeting ends without a resolution being reached. In this case, the matter is then sent to the tribunal. A tribunal is user-friendly and not costly. No cost orders are made against complainants even if they end up losing their case (you won’t have to pay anything whether you are successful or not).

The Process for Private Schools

If your complaint is about a private school, you are complaining against that particular school. The respondent is the school your child attends. There may be an overarching body that represent the school (such as Catholic Education Brisbane), but the dispute only relates to the one school that you are complaining against (you cannot complain against Catholic Education Brisbane).

Often, the conciliation meeting will include a Senior Conciliator from the anti-discrimination body, the complainant (you; if your child is the complainant, parents can also attend), a representative from the overarching body (such as Catholic Education Brisbane), the school principal, and possibly a lawyer representing the principal and/or the overarching body.

At this meeting, the goal is to resolve the issue. For an issue around girls’ school uniforms, the school may choose to allow the complainant to have greater uniform options. If the complainant is happy with this, that can be the end of the dispute.

If the complainant is not happy with this, they do not have to accept this outcome. They can ask for the school’s entire uniform policy to be changed so that ALL girls have greater choice in their uniform options. It will not be effective to ask the overarching body to change their overarching policy across the state, as they will argue that each school sets their own policy, and as such is responsible for their own policy.

The key point to understand here is that the complainant should go into this meeting with a clear idea of what they want to achieve from this meeting, and what it is realistic to achieve.

If the respondent (the individual school) is not willing to meet the terms of the complainant’s request, and the complainant is not willing to accept less, the meeting ends without a resolution being reached. In this case, the matter is then sent to the tribunal. A tribunal is user-friendly and not costly. No cost orders are made against complainants even if they end up losing their case (you won’t have to pay anything whether you are successful or not).

If you win your complaint, does this set a precedent?

A precedent is set when a case is won in a court of law. As the anti-discrimination body in each state is not a court of law, there is no precedent set when a case is resolved in the complainants favour.

However, the anti-discrimination body writes up the case as a Case Study, and this can be used as leverage with other schools. Schools can be shown that they are likely to lose discrimination cases if they don’t change their policy and a complaint is lodged against them with the anti-discrimination body.

What if I’ve lodged a complaint and now the school has said my daughter can wear shorts and pants/all girls can wear shorts and pants? Do I have to withdraw my complaint?

The short answer is No!

Sometimes, simply lodging a complaint with the anti-discrimination body is enough to have the school change their policy and practices. However, when this occurs you can still proceed with your case. The case rests on how the situation was when you lodged your complaint, irrespective of any changes that have been made after you lodged.

You may wish to press ahead as you would like an apology for how you and your child were treated, or you may wish to press ahead as you want the Education Department (if a state school) to enforce their policy across the state. You get to decide whether to proceed and what outcome you are ultimately seeking.

Links for each state’s anti-discrimination body and complaint lodgement forms

Queensland:

Anti-Discrimination Commission Queensland

Information and complaint lodgement form

New South Wales:

Anti-Discrimination Board of NSW

Information and complaint lodgement form

Australian Capital Territory:

Australian Human Rights Commission

Information and complaint lodgement form

Victoria:

Victorian Equal Opportunity and Human Rights Commission

Information and complaint lodgement form

Tasmania:

Equal Opportunity Tasmania – the Office of the Anti-Discrimination Commissioner

Information and complaint lodgement form

South Australia:

Equal Opportunity Commission

Information and complaint lodgement form

Western Australia:

Equal Opportunity Commission

Information and complaint lodgement form

Northern Territory:

Northern Territory Anti-Discrimination Commission

Information and complaint lodgement form

Can I lodge a case of discrimination against a school/education department at the federal level?

Federally, the Australian Human Rights Commission (AHRC) is the body you complain to for discrimination cases. They use the Federal Sex Discrimination Act to make their decisions. The AHRC does not direct people to attend the conciliation meeting; they do so voluntarily. If parties refuse to attend, or all parties do attend but the matter is not resolved, the case is then moved on to the Federal court. In the Federal court, the process is costly, and costs are substantial if you lose (as you may be made to cover all court expenses, including those of the party you complained against).

If you’ve lodged a complaint at the state level, you cannot then take that case to the federal level (no double dipping). If you’ve lodged a complaint at the federal level, you may be able to take the case to the state anti-discrimination body as well, depending on the process undertaken by the Federal Commission. If the Federal Commission did not hold a conciliation meeting with all parties, you can apply to have this done at the state level.

Federal:

Australian Human Rights Commission

Information and complaint lodgement form

The Australian Human Rights Commission has a handy overview to all Australian discrimination laws.