Where a complaint has not been resolved, the Commissioner may refer a complaint to the Tribunal.
Referral of complaints to the Tribunal can occur in one of two ways.
(i) Referral by the Commissioner under section 93 of the Act, where:
- The complaint cannot be resolved by conciliation
- Attempts to resolve the complaint by conciliation have been unsuccessful
- The Commissioner is of the opinion the nature of the complaint is such that the matter should be referred to the Tribunal.
(ii) Referral under section 90 of the Act if the complaint was dismissed, and at the request of the complainant.
The Commissioner must provide assistance if requested by complainants whose matters have been referred to the Tribunal under section 93 of the Act. This is generally done by assigning one of the Commission’s Legal Officers to assist the complainant. Complainants whose matters have been dismissed by the Commissioner receive no assistance.
Of the complaints referred to the Tribunal under section 93 of the Act, 60.0% were finalised with the assistance of the Commission’s Legal Officers.
The Legal Officers day to day activities include assessing the potential complaints of unlawful discrimination lodged with the Commission, providing advice to the Commissioner and Conciliation Officers regarding complaints under investigation, and preparing responses to exemption applications lodged in the Tribunal.
The Legal Officers also prepare submissions on equal opportunity and human rights issues to both state and commonwealth inquiries, review the Commission’s publications, and draft ministerial correspondence in relation to legal matters.
From time to time Legal Officers provide advice and guidance to the state government agencies in relation to issues such as recruiting and retaining Aboriginal staff using section 51 of the Act.
In 2016 the Commission’s Legal Officers assisted in finalising a review of State Legislation by the WA Attorney General’s office in relation to requirement that state and territory laws comply with the Sex Discrimination Act 1984 (Cth) in respect to discrimination on the ground of gender identity and intersex status.