Mason: Experience with the representative complaints procedure to date

Experience with the representative complaints procedure to date

David Mason, Senior Policy Officer, HREOC

Paper given to Disability Discrimination Act Legal Advocacy Services workshop

25 November 1994

[Note: DDA provisions referred to here are now replaced by complaints procedure provisions in the HREOC Act]

This Representative Complaints workshop aims to develop a document on representative complaints to be used by the DDA Legal Advocacy Services, other legal services and other representatives and advocates in making representative complaints and to assist them in if the representative complaints procedure is appropriate in any particular case.

(These are my own views - on some of the matters discussed HREOC and the Disability Discrimination Commissioner will be forming a concluded view only after considering the results of this Workshop.)

This paper looks at experience with representative complaints so far and seeks to draw some lessons from this. [Particular complaints are referred to without identifying details unless such details have already been made public by the complainant or by the complaint being referred for hearing.]

If complaints follow the checklist provided in the Manual, Acting Against Disability Discrimination, a number of the problems experienced so far, and discussed in this paper, should be reduced. If, however, a separate form is prepared and circulated, some points could be made more clearly. There are issues which have not yet arisen in practice, but which will clearly need to be addressed if the representative complaint procedure is to operate appropriately.

The workshop may also identify issues of procedure which HREOC needs to address; and/or issues for further legislative or regulatory action.

Summary of experience to date

1. The representative complaint procedure has been used relatively infrequently compared to ordinary complaints and certainly has been used less than might have been expected.

2. With few exceptions, the representative complaint procedure has generally not been used effectively.

3. This includes most cases of its use by peak disability organisations.

4. Success so far in using the DDA to achieve broad systemic change has been achieved not through the representative complaints mechanism but through individual complaints. This is particularly true where the complaint has been supported by representative organisations and/or DDA Legal Advocacy Services (most notably in the transport area). The same observation appears to be valid under the Queensland legislation (the major case regarding access was initiated as an individual complaint) and the ACT legislation (regarding access to mainstream services).

5. In most cases, representative complaints have failed to specify the matters required by section 89(2), and how they meet the requirements of section 89(1). These requirements must be met before a representative complaint can be accepted.

6. In a number of cases, representative complaints have also failed to meet the basic requirement for any DDA complaint under section 69: that all persons on whose behalf the complaint is made should be persons aggrieved by the alleged act of discrimination.

7. Failure, at the outset, to address and meet the requirements of section 89 has frustrated or severely delayed attempts by a number of peak disability organisations to use the procedure to address major issues . These attempted complaints raised great expectations in the disability community and, if successful, would have a major impact on equality for people with a disability in Australia.

8. While HREOC is aware of the need to apply the requirements of section 89 realistically and to avoid their operating unnecessarily as a barrier, these requirements cannot simply be ignored; respondents and the Federal Court would not permit it. The section 89 requirements are mandatory, and HREOC has no power to dispense with them as is the case under some State and Territory legislation, eg, the Queensland Anti-Discrimination Act and the WA Equal Opportunity Act.

9. In any event, addressing the requirements of section 89 at the outset will assist those putting the complaint together, and the people they represent, in assessing whether the matter is most effectively pursued as a representative complaint and whether the complaint as formulated addresses the issues and will achieve the outcomes the class members are seeking .

10. HREOC has power to amend the class so that a matter can be handled validly as a representative complaint: for example, class members who are not persons aggrieved by the alleged discrimination. Not all aspects of a representative complaint can, however, be remedied by HREOC in this way.

11. Effective and appropriate use of representative complaints under the DDA clearly requires at a minimum that the requirements of section 89 be addressed.

12. These (relatively straightforward) threshold issues in making representative complaints, and the limited usage made of the procedure, so far have meant that a number of potentially more difficult issues have not yet been clearly presented in practice, and are yet to be resolved in either practice or theory.

13. These include issues of notice to class members; the effect of a representative complaint under the DDA on the right to bring individual complaints under the DDA; and the effects of representative complaints under the DDA on either representative or individual complaints under State or Territory legislation.

Issues in making effective representative complaints

On behalf of person or persons aggrieved by the act

Class members on whose behalf a complaint is made all need to be persons aggrieved, just as with ordinary complaints (see section 69).

The authors of Acting Against Disability Discrimination raise this issue, by specifying that a representative complaint must comply with the conditions for an ordinary complaint. This needs stressing in view of experience so far.

A number of complaints have been received purporting to be "on behalf of all people with a disability". There is almost no situation where everyone with a disability, as defined by the DDA, will be aggrieved by the "same, similar or related" circumstance.



Attention to who is aggrieved and how, will also assist in formulation of factors that under section 89(2) must to be specified. These include the nature of complaint and what are the common issues of law or fact.

Compare the following complaints:

Students Representative Council v University of Sydney: This complaint (presently awaiting hearing) was lodged on behalf of health sciences students affected by certain policies. By definition, class members are all aggrieved by the policies concerned; hence the complaint is appropriately framed in this respect.

Representative complaints regarding ATMs: The class on whose behalf these complaints were made was not completely clearly defined. It could have been read as one behalf of "all people with a disability", or only on behalf of those who can't use, or are disadvantaged in using, ATMs.

If the former class was meant, not all members are persons aggrieved.

Confusion needs to be avoided between cases where the complaint is on behalf of "our members, all of whom are aggrieved" and where the class is "all of our members who are aggrieved, but not those who are not". Attention to this will also assist in ensuring that all class members are aggrieved by the same, similar or related circumstances and that all their complaints raise common issues of fact or law.

Complaints against the same person

All members of the class for a representative complaint must have complaints against the same person or organisation. Representative complaints under the DDA are only permitted to be multiple complainant complaints. Complaints against multiple respondents can only be lodged as individual complaints.

The authors of Acting Against Disability Discrimination indicates a possible exception to this, where all the class have complaints against a number of respondents and all these complaints are about the same, similar or related circumstances. This is based on a legal interpretation of "person" including "persons" unless otherwise specified. Caution should, however, be used in framing a representative complaint this way : this interpretation (although apparently correct) may or may not be upheld.

"Only one respondent to a representative complaint" should be the basic message. There will usually be no good reason to include more than one respondent in a representative complaint, since it is possible for a number of complaints to be lodged together against the various parties involved and for these to be heard jointly if appropriate.



Compare the following cases:

ATMs: The representative complaints referred to above regarding automatic teller machines, despite having other features which presented problems, did confine themselves to one respondent per complaint. The complainants correctly adopted the approach of lodging a number of complaints at once, one against each respondent Bank.

Access to Telecommunications: A representative complaint, lodged regarding access to telecommunications and related services by Deaf and hearing impaired people and TTY users, named as respondents the Prime Minister, the Federal Government, the Minister for Communications, all State and Territory Governments, and the chief executives of the telecommunications carriers. This meant it could not be considered as a representative complaint.

This latter complaint could not have been salvaged simply by re-lodging a number of complaints, each in the same form as the original, against each of the respondents in turn. Mixing up all the complaints "in the same bucket" like this meant the complaint did not identify clearly, or at all, which actions or circumstances each respondent was responsible for, or what any one respondent would therefore need to do to resolve the particular complaint against them.

The result of this is that the first case under the DDA regarding telecommunications to go to hearing, or to produce any outcome of general importance, will be an individual complaint. That complaint does not (and cannot be made to) deal with the same range of issues as the attempted representative complaints did, and is not representative of the same range of needs.

Although a number of peak organisations may be joined as parties to this complaint, the complaint will still be about the particular issue raised by the individual, not about all the other issues of concern to the peak organisations.

Same, similar or related circumstances

Section 89(2) does not require a representative complaint to specify how the circumstances affecting all class members are the same, similar or related. Under section 89(1), however, HREOC has to be satisfied that the circumstances are the same, similar or related to permit a representative complaint to be lodged.

Focus on this issue at the outset should assist complainants in deciding whether the concerns of the class can be addressed in a single complaint, or whether several co-ordinated complaints should be made.



Attention to this issue will also assist in ensuring that the class and the nature of the complaint are both clearly and appropriately defined. This is not only (a) required by the Act, (b) helpful to HREOC, but is (c) essential if representatives are going to be appropriately accountable to class members in their conduct of the complaint.

If all class members are complaining about the "same" circumstances, for example, that access to a particular proposed railway station will only be by means of steps, it should be possible to specify this fairly clearly.

"Similar" and "related" circumstances may not be so clear. There does not appear to be much guidance in case law on how close the connection must be for circumstances to be accepted as similar or related.

In Zhang de Yong v Minister for Immigration and Ethnic Affairs (1993) 118 ALR 165 (a case where the class claim was that all the class were entitled to an oral hearing on their applications for review of rejection of refugee status) French J said the following:

The question whether the claims of the persons who are proposed as members of a group arise out of "the same, similar or related circumstances" ... is not to be answered by an elaboration of that verbal formula. It contemplates a relationship between the circumstances of each claimant and specifies three sufficient relationships of widening ambit. Each claim is based on a set of facts which may include acts, omissions, contracts, transactions and other events. ... the circumstances giving rise to claims by potential group members do not fall outside the scope of the legislation simply because they involve separate contracts or transactions between individual group members and the respondent or involve separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.

The outer limits of eligibility for participation in representative proceedings are defined by reference to claims in respect of or arising out of related circumstances. The word "related" suggests a connection wider than identity or similarity. In each case there is a threshold judgment on whether the similarities or relationships between circumstances giving rise to each claim are sufficient to merit their grouping as a representative proceeding. At the margins, these will be practical judgments informed by the policy and purpose of the legislation. At some point along the spectrum of possible classes of claim, the relationship between the circumstances of each claim will be incapable of definition at a sufficient level of particularity, or too tenuous or remote to attract the application of the legislation.

In the present case, the relationship between the circumstances of each group member is defined by a few common integers which leaves room for considerable diversity in circumstances which might support individual claims to set aside the review decisions. Some applicants may have complaints about aspects of the decision-making process which have nothing to do with the question whether or not they should be afforded an oral hearing. There may be applicants who are able to show that even if there is no common entitlement to the opportunity of an oral hearing, the particular circumstances of their cases require such a hearing as a matter of natural justice. Notwithstanding that possibility, I am satisfied that the claims of the members of the group as defined in the present application are connected by circumstances sufficiently related to warrant the use of the procedure ... for the determination of the common issue of law defined in the application. In so holding, I have regard to the need for a purposive approach to the construction of s.33C(1)(b), bearing in mind the utility of determining the common issue in this way. If the application were to succeed, all group members would be entitled to the offer of an oral hearing by the decision-maker. In that event, other aspects of individual claims to which I have referred might not be pursued. If the application fails, then a principle applicable to each group member would be established, namely that there is no entitlement in any member of the group to an oral hearing by reason only that the member is an applicant for administrative review of the refusal to grant refugee status.

Reference to the purposes of the legislation, as indicated by French J, would, in the case of the DDA, lead to a fairly permissive approach to the question of whether the circumstances of each complaint are sufficiently related. The legislation has a remedial purpose and the representative procedure has the purpose of reducing the need for multiple complaints.

It is still necessary, however, to be able to identify a real relationship between the circumstances. The mere fact that the complaints are against the same respondent cannot be sufficient, or the requirement in section 89(1)(b) would add nothing to section 89(1)(a). In any event, there needs to be enough of a relationship to enable satisfaction of the requirement in section 89(1)(c) of a common issue of law or fact.

Some complaints to date have presented problems in relation to this requirement (though they have not been rejected on this basis):

Representative complaint on telecommunications: Apart from being against a number of different parties, this complaint covered a wide range of circumstances: from lack of TTY access to State government emergency services, to problems for people with hearing impairments in using the current range of standard telephone handsets. Other than the fact that the complaints concern telecommunications, no relationship between these complaints was indicated or apparent. If the complaint had not been refused lodgment on other grounds, it would almost certainly have been refused as not dealing with sufficiently related issues.

Representative complaints regarding automatic teller machines: The issues here are less clear cut. All the complaints of class members concerned the location, operation and design of ATMs: the class, if it was not "all Australians with a disability" was "all Australians with a disability who currently experience difficulty with equal access to ATMs". Whether this made the complaints sufficiently "related", however, was not immediately clear. Some members of the class would have complaints that ATMs are not located at wheelchair accessible height in wheelchair accessible locations, and not require any changes to the most recent of current ATM designs. People of very short stature, who would also be in the class, might have complaints regarding the height of machines or of the keypad and screen. People with vision impairments might have complaints with the size and clarity of display andsignage. Blind people and others might require voice interaction. Other people with other disabilities might experience other problems which the complaint did not specify. It might be that all these requirements could be met by compliance with a single specification for design, location and operation (though this was not made clear by the complaint itself, and the experience in the USA of attempts to set such specifications does not appear completely encouraging). Such an outcome would meet the complaints of all class members, even though very few class members would have such a range of requirements because of disability as to require every element of the specification. On the approach of French j in Ztcang de Yang, this might be seen as enough to regard the complaints as related.

I am not sure, however, that the possibility of a common outcome is itself enough to make all the complaints related. In theory, all DDA complaints could be collectively resolved by the introduction of a completely just and equal society; but that hardly makes it appropriate to use a single representative complaint to deal with the entire subject matter of the DDA.

With such a wide class as that covered by the ATM complaints, questions would also remain of whether there were common questions of law or fact regarding the claims of all class members. (This issue is discussed below.)

There are a number of reasons why representatives may wish to include a wide range of issues in the one complaint:

Reasons for a broad approach

The time, effort, and other resources, involved in putting in a complaint and pursuing it

If, however, the range of issues included is too wide, that is if it goes beyond "similar or related circumstances", and/or goes beyond complaints presenting common issues of fact or law, the complaint will have to be amended or withdrawn and time, effort and resources invested in the complaint will be wasted. Moreover, pursuing a representative complaint properly, including providing proper notice to class members as discussed below, may make much greater demands on resources than a few well chosen individual complaints run as test cases on the same issue.

Desire to ensure that the outcome promotes, or at least does not damage, equality for all people with a disability, rather than addressing the requirements only of one disability group

There are obviously good political and strategic reasons for building the broadest possible coalitions. This applies not only to complaints but also to Disability Standards and other mechanisms under the DDA.

Including people with a range of disabilities in the class is appropriate if, but only if, their complaints are about the "same, similar or related circumstances" and the other requirements of section 89 can be met, in particular there being common issues of fact or law.

There is no problem including both Deaf people and people with speech impairments who are TTY users in a complaint about TTY access. Similarly, if a complaint concerns access for people who are unable to negotiate stairs, it does not matter that the class members' disabilities will cover a wide range of diagnostic categories, eg, paraplegia, post polio, MS, etc. The requirement of section 89 is not that the complainants all have the same, similar or related disabilities, but that their complaints all be about the same, similar or related circumstances, and that the complaints raise a substantial common issue of fact or law.

Combining complaints which are not the same, similar or related, but which simply happen to be against the same respondent, into the one complaint will be ineffective and is unnecessary. A single complaint is not the only strategy available to a cross-disability coalition or organisation. A number of co-ordinated complaints should achieve the same results in terms of impact, solidarity and consistency of outcomes.

Representative complaints covering very widely defined and numerous classes will also face particular problems in ensuring adequate notice to class members (as discussed below).

Complaint must specify substantial common issue of law or fact

This requirement may overlap with the requirement that the circumstances dealt with by each class member's complaint are the "same, similar or related". If there is a substantial common issue of fact, the complaints are to that extent concerned with the same or similar circumstances.

How common does a common issue of fact have to be?

The simplest case occurs when a common policy, practice or action has affected all class members. Two examples which have come before the Commission so far illustrate this.

Sale of Land: All the potential users of a community facility for children with disabilities are affected by the decision of the real estate agent to withdraw from sale the land needed for the facility. The common issue of fact is whether this was done because of the disability of any of the children.

University Policy: All HIV or hepatitis B positive health science students at the one university are affected in common by a policy or practice which restricts their access to certain elements of courses. There are likely to be common issues of fact, or common mixed questions of fact or law, for all class members of whether these restrictions are reasonably necessary to protect public health and therefore lawful. This is true even though there will also be matters of fact which are not in common due to different transmission characteristics of the two viruses.

An advantage of confining a representative complaint to a well-defined group affected by a common circumstance, such as the users of a particular facility, or the students of one educational institution, is that it is likely to make it easier to give notice to class members regarding the complaint (discussed below), compared to a complaint on behalf of "all people with a disability in Australia", where notifying all class members would be virtually impossible.

Cases which clearly meet the requirement for a substantial common issue are not restricted to cases involving a single disability type or category (see the two examples above). Another example would be where an organisation has a general policy or practice of not employing people with a disability: the fact of having been excluded from consideration by such a policy would be common across any of the disability categories to which such a policy was applied.

An organisation with a policy to only provide information in standard print would constitute a substantial common issue for anyone disadvantaged by this. This is true despite the fact that the preferred information formats of the class members varies from braille to tape to large print to computer disc, etc.

There must, however, be a point beyond which the concept of substantial common issue of fact will not stretch. One illustration of where I think the line falls is this:

If an organisation is alleged, in a complaint, to have a general policy, or practice, to not employ people with disabilities there is a common issue of fact: did such a general policy exist?

If so, other differences in the circumstances of class members (including their prospects of getting a job if they had been properly considered) would not prevent them being included in a representative complaint. Those differences could, however, affect the remedies ordered.



But unconnected instances of discrimination in employment by the same organisation do not present common issues of fact simply because they concern the same organisation, or because implementation of a single policy against discrimination may have prevented them.

If one person is unable to use the public transport system because timetable information is not available in a form, or through facilities, accessible to her; and another cannot use the system because the vehicles and premises are physically inaccessible, is the fact that both are unable to use the system enough to constitute a common issue of fact? In my view it is not.

I would strongly discourage any attempt to lodge a single representative complaint covering the range of issues which together result in lack of equal access to public transport systems (for example) for people with a disability affecting mobility or communication. I would even more strongly advocate against trying to include discrimination in provision of public transport services against people with other disabilities, eg, psychiatric disability or disabilities involving the presence of disease causing organisms. The range of factual issues is too wide for one complaint. This was one of the problems with the complaint regarding telecommunications services already referred to.

Difficulties in specifying a common issue of law

Most of this discussion concerns common issues of fact. What if either the complaints, although similar or related, do not have facts in common? Or what if the facts, common to all class members, are not in dispute, so that there is no "issue" of fact to determine? In such a case a representative complaint would need to present a common issue of law.

This might be difficult to define at the stage a complaint is lodged: "issues" in law are the issues between the parties. These are defined by a process of "pleadings" on each side to clarify what points they agree and disagree on.

Clearly, it is inappropriate to take a highly technical approach to this issue under the DDA, as the complainant must specify a substantial common issue of law or of fact when lodging the complaint. This is likely to be before the respondent has made any response in terms of the DDA.

In many cases, the common issue of law may be whether unjustifiable hardship or some other exception under the DDA applies. It is the respondent's responsibility to raise such issues if the Commission is to consider them. While an initial complaint may canvass these issues, because the complainant is aware of the issues of law the respondent will have to raise to avoid liability; this will generally be somewhat speculative unless there has already been detailed discussion of the legal issues between the parties before the complaint was lodged.

The Commission has further opportunities to reconsider this issue as the complaint proceeds. HREOC can dismiss a representative complaint if and when it becomes apparent that there is no longer a substantial common issue.

Complaint must specify relief sought

It appears that the main aim of this requirement is to identify if the remedy sought is common to all class members or are individualised remedies such as damages (which may vary with the circumstances of each class member) what is being sought. The nature of the outcome being sought may, however, also be relevant to HREOC's decision about whether or not the complaints concern sufficiently similar or related circumstances (as discussed above).

Names of class members

Names of each class member are not required under the DDA, nor must the person lodging the representative complaint (for whom anonymity does not appear possible) be a class member.

Obviously it will be easier to organise a representative action if all the members of the class do not have to be individually identified first: that is, if a true "class" action is possible. This is preferable and easier to organise than a series of complaints from individuals which happen to be joined together before being lodged. It is also preferable to leaving it to the Commission to join similar complaints together after they are received.

The ALRC Report, Grouped proceedings in the Federal Court, indicated that being able to commence representative actions without first identifying all class members is an important element in securing more effective access to legal remedies.

As well as this practical issue, one of the main uses of the representative procedure under the DDA is to enable complaints on behalf of people who do not wish to be identified.

The use of the representative procedure in the Sydney University case avoids the need for HIV or hepatitis B positive students to identify themselves. As a result students are able to avoid unwelcome consequences, including negative impacts on future careers, arising from prejudice regarding the conditions concerned.

Where anonymity is desirable there is a stronger reason to consider representative complaint than where this is not relevant.

As pointed out by the Manual, there may still be a need for class members to come forward to give evidence, but this is likely to be less of a barrier than if class members have to identify themselves at the outset.

Consent of class members

The DDA does not require the consent of class members for a representative complaint to be lodged, or for any other step in the complaint process. In my view if active individual consent were required, representative actions in the sense of class actions would not be possible. Instead all that would be possible would be joined individual actions, requiring all the complainants' consent to have their case presented by an agent or agents, either from within the group of individual complainants or elsewhere. This might also be a useful procedure, but it is not a class action. (Under NSW law, consent of class members is required (section 88A). There is an exception where a person is incapable of consenting; then consent is deemed to be valid if given by a parent, guardian or other person whom the President is satisfied "has a genuine concern for the person's welfare".)

Compare this to: NSW legislation which requires all the class to be named; South Australian legislation which requires individual consent for an action and therefore appears to require naming of class members; Victorian legislation where - to the extent that class actions are possible - they must be lodged by a class member; and Western Australian legislation where representative complaints must be made by at least one named class member as complainant.

Section 44(3A) of the Victorian legislation seems to imply that authority is required except where the person is unable to authorise.

The lack of a consent requirement in the DDA is necessary if class actions are to be possible in any meaningful way. When this is considered in light of the provision of the DDA that class members are not entitled to lodge individual complaints on the same matter there is clearly a heavy responsibility on people making representative complaints to ensure that the complaint, and and how they run it are genuinely representative of the wishes of class members.

Representative precluding individual / other representative complaint

The DDA specifies that a person who is a class member for a representative complaint is then allowed to lodge a complaint in respect of the same subject matter.

A person can avoid this exclusion by ceasing to be a class member. This is done by informing the Commission in writing that the individual is withdrawing from the class. This can be done at any time before the Commission commences an inquiry into the complaint: section 90A(2).

If the complaint is not referred for hearing, but is settled by conciliation, what is the position?

Settlement by conciliation means that the Commission has not commenced an inquiry. Does this mean that the time limit for withdrawal by class members who are not satisfied with the outcome becomes indefinite? If that is the case, what is the value of a conciliation agreement that some of the parties on one side can withdraw from it at any time?

If this is the position, respondents would have little interest in conciliating representative complaints. There would also be difficult questions of whether, once a conciliation agreement has. been reached, some form of bar to individual complaint would arise (notwithstanding section 90A(2)) affecting people who were at the time members of the class.

The more general issues here are, on the one hand, whether it is fair for people to be bound by processes and outcomes to which they have not consented, and on the other hand, whether there is any point in a representative complaint if the outcomes do not bind class members.

The approach of the DDA is not taken uniformly by State and Territory Acts:

• The NSW legislation does not make explicit provision; but it must be assumed that class members are bound by outcomes since they have to give consent for the proceedings. Presumably an individual could withdraw that consent before an outcome is reached and then subsequently pursue his or her own complaint separately.
• In the South Australian legislation, section 93(1)(a) requires consent in writing.
• Section 60 of the Northern Territory Act requires "authorisation in writing", but "by the Commissioner" rather than class members. The NT Act refers, however, to complaints on behalf of "a person" rather than a class. This appears to mean that class actions proper are not provided for under the NT Act.
• The Victorian Act does not make any clear provision on this issue.
• The Queensland Act states that individual complaints by class members on the same matter are not precluded, but further representative complaints are.
• Under the South Australian Act class members who consent to the complaint are bound by the outcomes . It is not specified whether consent is revocable, and the Act does not specify a procedure for withdrawal from the class.
• The Western Australian Act states that ordinary complaints by class members are not precluded by representative complaints.
• The ACT legislation similarly states that ordinary complaints by class members are not precluded by representative complaints.
• The NT Act does not make any clear provision but the issue does not appear applicable.

The ALRC Report Grouped Proceedings in the Federal Court, states the issues in this area as follows:

The main objective of a procedure enabling proceedings to be brought on behalf of a group of persons affected by a multiple wrong is to secure a single decision on issues common to all and to reduce the cost of determining all related issues arising from the wrongdoing. To achieve maximum economy in the use of resources and to reduce the cost of proceedings, everyone with related claims should be involved in the proceedings and should be bound by the result.

Even if the DDA did not expressly preclude individual complaints by class members, there would still be questions of estoppel and res judicata (a principle which means, roughly, the issue has already been decided). These principles would stand in the way of class members pursuing individual complaints, at least after a representative complaint had been resolved by the Commission making a determination which had been registered and taken effect as a Federal Court order, or the Federal Court making a decision on review. Possibly there would also be an estoppel earlier, eg, as a result of a conciliated agreement.

French J stated in Zhang de Yong that:

...in the case of a representative action, a judicial decision inter partes operates as an estoppel in favour of, or so as to bind, all members of the class whom a party purports to represent or all persons who have given their consent to be bound by the result.55

He also cited Fullagar J in Jackson v Goldsmith stating that:

...where an action has been brought and judgment has been entered in that action no other proceedings can thereafter be maintained on the same cause of action.

French J noted that this doctrine has been also applied in the US, up to the Supreme Court, to class actions under the anti-discrimination provisions of Title VII of the Civil Rights Act.

It is hard to see how this result can be avoided; either the class members for a representative action are parties to the action or they are not. If they are parties they must be bound by the result. Any other position would render the representative nature of the proceedings pointless, particularly from the respondent's point of view.

Since the DDA does adopt this position, as recommended by the ALRC, the issue, becomes a question of how to meet the other condition expressed by the ALRC: that all class members "should be involved in the proceedings", since they are bound by the result.

It seems obvious (to me at least) that the first requirement of this is that class members should be aware of the proceedings.

Notice to class members

The DDA states that the Commission "may at any stage direct that notice of any matter be given to a class member or class members".

Note that this does not say that HREOC may, or shall, give notice. If HREOC is directing that notice is to be given, this seems to mean that (at least as a general rule) someone other than HREOC is required to give notice.

In some cases, as discussed in the ALRC Report, the respondent may be the appropriate party, at least to provide information necessary to identify and contact class members, if not to do the contacting. An example where this would be the case is when the class are people who have applied for jobs with the respondent.

But in many cases, giving notice to class members will be most appropriately the responsibility of the representative making the complainant. This is particularly likely to be appropriate where the complaint is made by a representative organisation. If the claim of the organisation claims to be able to speak for its members is accurate, it should be reasonable to expect the organisation to have means of be able to communication with those members to ensure that the organisation's actions represent the wishes of the membership.

The DDA does not specify what the form and method of notice should be. This is therefore something for HREOC to specify in each case. No procedure has yet been put into effect by HREOC for notice. The major reason for this is that in the representative actions that have got past initial assessment it has been clear that measures have already been taken to ensure that all members of the class would have notice of the complaint. This is particularly true of the only representative action so far set down for hearing, the Sydney University case. The representative actions where the class has been larger and/or less well defined have not progressed as far as this, because of the problems already discussed.

Issues and principles in this area do, however, need to be identified, and should be discussed at this workshop because they will arise in practice. It is crucial that they are addressed if the representative action procedure is to operate appropriately, rather than in a way either that disenfranchises the people purportedly represented, or that presents unnecessary barriers to use of the representative procedure.

Issues and comments for consideration might include:

How much time should be given for class members to respond to any notice?

Time for notice must be sufficient to ensure that class members have an effective opportunity either to notify HREOC of withdrawal from the class, or to be involved in the conduct of the complaint by the representative?



Obviously, the longer the notice period the more complaint processes and outcomes will be delayed. This is particularly the case if notice is required not just at the outset of the initial complaint, but also of responses, offers, proposed settlements, positions to be taken at hearing, etc. If the class members meet only once every three months to consider the running of the complaint, this may well mean the complaint process could take perhaps a year longer than an ordinary complaints.

Organisations wishing to run representative complaints may need to consider quicker means of decision making. This may not necessarily be satisfactory or even possible for organisations with limited resources, no full time staff, etc.

Does notice have to be given individually to each class member?

The ACT legislation seem to clearly require individual notice through its reference to notice to "each party". The DDA is less explicit.

Obviously, in the case of a large class (particularly the "all people with a disability in Australia" type of class), individual notice will require much more difficult than just advertisements or notices in newsletters, on bulletin boards, etc. It may be literally impossible: how do you identify every person with a disability as defined by the DDA unless you notify everyone in Australia?

Individual notice may also present significant problems of expense. The ALRC Report refers to an instance in the USA where individual notice was required, but would have involved expense of $300,000 for postage alone. This meant that the representative could not proceed with the complaint.

But if individual notice is not given, HREOC would need to be assured that all class members nonetheless did have effective notice. Otherwise, how can it be fair, proper or consistent with natural justice for them to be bound by the outcome?

In effect, this may mean that where the class is so broad that effective notice to the class cannot be assured, the matter cannot proceed as a representative complaint.

The ALRC Report noted that whatever procedure is followed, failure to receive effective notice may occur, for example, if individual notice is provided but one person's notice is sent to the wrong address. It, therefore, recommended that the Court should have power to make orders in such cases necessary to avoid injustice.

The DDA does not have any explicit provision for this, and if amendments are being considered this might be an appropriate subject for one. This is not, however, a substitute for adequate efforts to notify class members in the first place. Everyone involved needs to be reasonably confident that the resolution of a representative action really does resolve all the complaints of the class.

When should notice be given, and of what?

The DDA refers to notice "of any matter" and "at any stage". Notice could, therefore, be required not only of the complaint itself, but of any response from the respondent; any proposed response to this from the complainants and any proposed settlement or rejection of settlement.

If class members are to participate effectively in the complaint and have an opportunity to decide whether the process and the outcome are acceptable to them, notice at each of these stages would seem to be required. This only increases the importance of ensuring from the outset that the representative is able to communicate effectively with the class.



Also, if the class is very broad, a lengthy period of time may be required at each stage to ensure that all class members have been reached, and this may delay the outcome very substantially.

Conclusions

Taking the issues discussed here into account should enable representative complaints to be better formulated and conducted.

When the requirements for DDA representative complaints are properly considered, it may be appropriate for potential representatives to consider a test case strategy using individual complaints, instead of representative actions in the sense of class actions. (This comments applies unless there is some reason why individual complaints would be inappropriate or impossible. As noted above, an example of this is where anonymity is a concern. Further, this may be the case where the representative procedure is genuinely a more workable alternative to what would otherwise be a large number of individual complaints. This could arise where there are common issues of law to be determined but where class members are seeking damages or some other individual remedy, as in the Australian Iron and Steel case.57

Organisations and advocates could then concentrate on providing the support and evidence needed concerning the substance of the complaint. They would be able to save large amounts of time and energy in meeting the formal requirements of section 89, and other requirements such as notice to class members which may be very difficult to meet in cases where the class is broad.

Although some individuals may settle for individualised outcomes which do not have broader benefits, or which may actually hinder achievement of more general equality, this is also true of group actions. One complaint brought under the DDA by a group of people in a country town regarding physical access to cinemas was conciliated with the outcome of provision of a StairMate. The wider disability community would not generally regard that as acceptable access in a public facility - certainly the Commissioner does not - but that is what the group was prepared to settle for.

There is no inherent reason why an individual complaint cannot have as broad a structural or systemic outcome as a representative action. There is no such thing as an accessible transport or communications system or convention centre, for example, for one individual only: if the system or facility becomes accessible in response to one person's complaint, it is then accessible for everyone at least who has the same or similar requirements as the successful complainant.

Obviously, for outcomes of this kind to benefit all people with a disability affected, there is a need for:

(1) complainants, representatives and advocates to take a broad range of needs into account in the kind of outcomes they seek;

(2) advocates and representative organisations to be able to offer information and evidence to HREOC of the outcomes needed to meet the requirements of the broadest possible group;

(3) HREOC to ensure that its procedures allow this evidence and information to be taken into account (to the extent possible within the confines of the particular complaint put to HREOC).



Organisations and advocates also need to recognise that they have no right or power to prevent individuals pursuing a complaint individually if they choose to. Supporting and resourcing individual complainants to achieve outcomes that benefit a broader group may be a more effective means of precluding inappropriate outcomes prejudicing the interests of a broader constituency. This could happen with a representative complaint through the Commission not being presented with the right questions and the right information