Victorian Consolidated Legislation

Racial and Religious Tolerance Act 2001 - SECT 23A

Application of Equal Opportunity Act 1995 if Commissioner declines to entertain complaint

23A. Application of Equal Opportunity Act 1995 if Commissioner declines to
entertain complaint







(1) If the Commissioner declines, under section 108(1) of the
Equal Opportunity Act 1995, to entertain a complaint made under this Act, a
complainant may, with the leave of the Tribunal, apply to the Tribunal to hear
the complaint under Division 7 of Part 7 of the Equal Opportunity Act 1995.

(2) An application for leave to apply to the Tribunal under subsection (1)
must be made within 60 days after the complainant receives the Commission's
notice declining to entertain the complaint.

(3) The Tribunal may-

   (a)  determine an application for leave entirely on the basis of documents,
        without any physical appearance by the parties or their
        representatives or witnesses, whether or not the parties agree; and

   (b)  give leave subject to any conditions it thinks fit.

(4) In determining whether or not to grant leave, the Tribunal may consider
whether, in its opinion, the complaint-

   (a)  is frivolous, vexatious, misconceived or lacking in substance; or

   (b)  involves subject matter that would be more appropriately dealt with by
        another tribunal or a court; or

   (c)  involves subject matter that has been adequately dealt with by a
        tribunal or court; or

   (d)  relates to an alleged contravention of this Act that took place more
        than 12 months before the complaint was lodged with the Commissioner.

(5) Nothing in subsection (4) limits the discretion of the Tribunal to grant
or refuse to grant leave under subsection (1).

(6) A complainant must notify the Commissioner in writing of any application
for leave under subsection (1) within 30 days after the application is made to
the Tribunal.

(6A) If a notification under subsection (6) is given to the Commission, the
notification is taken to have been given to the Commissioner.

(7) The Commissioner may dismiss a complaint if-

   (a)  a complainant does not apply for leave under subsection (1) within 60
        days after receiving the Commission's notice; or

   (b)  the Tribunal refuses to grant leave under subsection (1) and-

   (i)  no application for leave to appeal is made under section 148 of the
        Victorian Civil and Administrative Tribunal Act 1998; or

   (ii) an application for leave to appeal or an appeal, under section 148 of
        the Victorian Civil and Administrative Tribunal Act 1998, is
        unsuccessful.

(8) If the Commissioner dismisses a complaint under subsection (7) the
complainant may take no further action under this Act or the
Equal Opportunity Act 1995 in relation to the subject matter of the complaint.

(9) As soon as possible after a dismissal under subsection (7), the
Commissioner must, by written notice, notify the complainant and the
respondent of the dismissal.

(10) For the purposes of section 148 of the
Victorian Civil and Administrative Tribunal Act 1998, the question whether or
not to grant leave under subsection (1) is a question of law.

(11) If a complainant makes an application for leave to appeal under
section 148 of the Victorian Civil and Administrative Tribunal Act 1998 the
complainant must notify the Commissioner in writing of the application within
30 days after the application is made to the Supreme Court.

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