(1) It is unlawful for a person ("the discriminator") to subject another person ("the
person victimised" ) to any detriment in any circumstances on the ground that the
person victimised has:
(a) brought proceedings against the discriminator or any other person under this
Act,
b) given evidence or information in connection with proceedings brought by any
person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which,
whether or not the allegation so states, would amount to a contravention of this
Act, or
(d) otherwise done anything under or by reference to this Act in relation to the
discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do
any of those things, or suspects that the person victimised has done, or intends to
do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by
reason of an allegation made by the person if the allegation was false and not
made in good faith.
80 To prove victimisation, Mr Burns must establish the following:
(a) he did one of the things referred to in sub-paras (a) to (d);
(b) Mr Sunol caused him to undergo or experience something;
(c) he suffered some consequential detriment; and
(d) that detriment occurred on one of the grounds set out in sub-paras (a)
to (d): Carter v Brown [2010] NSWADT 109 at [131] - [133].
81 The concept of "detriment" was discussed in detail in Bogie v The University of
Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity
Tribunal, as it then was, held that "... all that is required to constitute a
'detriment' in a victimisation complaint is that the complainant has been
placed under a disadvantage as to a matter of substance as distinct from a
trivial matter." The Tribunal went on to say that a broad interpretation of the
word detriment is "consistent with the evident legislative intention to protect
those who use the processes of the Act, or contemplate such use or assist in
relevant ways in such use." The Tribunal adopted this construction of the word
"detriment" in Sivananthan v Commissioner of Police, New South Wales Police
Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of
Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health
Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109
at [145]. This test has also been applied by the Federal Magistrates Court, as
it then was, in Damiano v Wilkinson [2004] FMCA 891.
82 In the Tribunal's 2012 decisions some complaints of victimisation were
dismissed because the detriment inflicted by the publications was "trivial".
The Tribunal explained that each of the non-victimising publications contained
"no more than a single derogatory imputation about Mr Burns' character or
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