Annual Report 1999 - 2000
Complaints Handling and Legal Services
Introduction
The 1999-00 reporting year was a very busy year for the Commission's Complaint Handling Section (CHS). Along with the finalisation of over 1400 complaints the CHS prepared for and implemented significant legislative change to the complaint handling practice of the Commission.
The Commission is responsible for the investigation and conciliation of complaints under the Human Rights and Equal Opportunity Commission Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992. Amendment to the Human Rights and Equal Opportunity Commission Act 1986, which came into effect on 13 April 2000, vested the President with the complaint handling powers for all alleged acts of discrimination and created a uniform complaint process. The definitions, grounds and areas of discrimination, exemptions and exceptions, and defences remain in the respective anti-discrimination Acts.
The uniform complaint process in the new Part IIB of the Human Rights and Equal Opportunity Commission Act 1986 remains essentially unchanged from the complaint handling provisions of the anti-discrimination laws. Like the old provisions, the new legislation provides for complaints of discrimination or breaches of human rights to be made to the Commission. Complaints are then referred to the President, who is responsible for inquiring into the complaint. After initial inquiry the President must decide whether to terminate the complaint or to attempt to settle the complaint through conciliation.
Complainants who allege unlawful race, sex or disability discrimination and whose complaint is terminated by the President may apply to have the complaint heard and determined by the Federal Court of Australia. Complaints lodged under the Human Rights and Equal Opportunity Commission Act 1986 concerning discrimination in employment or a breach of human rights by the Commonwealth, which cannot be conciliated, do not proceed to hearing by the Federal Court but may, after further inquiry by the President, be made the subject of a report to the Attorney-General for presentation to Parliament.
A diagram of the complaint handling process is provided at Appendix 5.
The CHS receives complaints from throughout Australia. Most complaints are made directly to the Commission through the office in Sydney. A number of complaints are also referred from State anti-discrimination and equal opportunity agencies. Access to Services The Commission's mission statement seeks to promote and facilitate community access to services and functions performed by the Commission. In meeting this goal the Complaint Handling Section undertakes a number of strategies.
- Complaints Infoline - The Commission provides an Australia-wide 1300 656 419 (local call charge) number which offers telephone enquirers the opportunity to call and discuss alleged acts of discrimination with a complaint information officer. Over 7,000 enquirers throughout Australia utilised the Complaints Infoline this reporting year. The Complaints Information Service is explained in full later in this section.
- Complaint Handling webpage -- The complaint webpage has been significantly updated since last reporting and now includes a complaints helppage, complaint guide, complaint form, frequently asked questions and conciliation register. The conciliation register contains de-identified information about the outcomes of conciliated complaints under each Act administered by the Commission. The Commission has informally received positive feedback about this service, particularly from regional and rural advocates.
- Conciliation circuits - When required, conciliation officers in the Sydney office travel throughout Australia to conduct conciliation conferences. This reporting year CHS officers conducted 104 conferences outside the greater Sydney region, including 34 in regional NSW, 26 in Victoria, 14 in Queensland, 25 in South Australia, 2 in Western Australia and 3 in the Australian Capital Territory. Officers from State agencies also conducted conciliation conferences in their respective States when the agency was handling federal complaints on the Commission's behalf.
- Access working group - In December 1999 a CHS access working group was established. The objective of the working group is to improve the accessibility of the complaint handling service by identifying issues relating to service accessibility and developing strategies to address these issues. To date the group has focused on improving data collection in relation to use of, and satisfaction with, the service; improving information about the complaint handling process that is available to parties and improving the coordination of conciliation conferences in areas outside of Sydney.
The CHS is also assisting with a project to examine indigenous women's access to discrimination complaint mechanisms in NSW. This project is being undertaken by the Public Interest Advocacy Centre and the Wirringa Baiya Aboriginal Women's Legal Centre. A senior CHS officer is a member of the project reference group.
- Community Education - the CHS, in partnership with the Public Affairs Unit has undertaken a number of community education presentations to various community and complaint stakeholder groups. These presentations provide an overview of the Commission and its roles and functions and where CHS staff are involved, provide detailed information on the complaint handling process. The presentations have been rolled out on a State by State basis and for this reporting year included groups in New South Wales, South Australia and the Northern Territory. Evaluations of community education presentations conducted by CHS staff in 1999-00 indicated high satisfaction with the content and presentation of these sessions.[1]
The CHS, along with the Commission's Legal Unit, also participated in the Federal Court of Australia's briefing sessions on its new human rights jurisdiction. The briefing sessions were conducted in all States and Territories and were well attended by legal practitioners and stakeholder groups.
Over the past twelve months staff from the CHS have also provided information sessions on federal law for new officers at the Villawood Detention Centre.
- Arrangements with State agencies - During this reporting year the Commission made new arrangements with the State agencies with which it had previously had cooperative complaint handling arrangements.
Victoria - From 1 August 1999 the Equal Opportunity Commission Victoria (EOCV) has acted as a formal referral centre for the Commission. Victorians who elect to lodge a complaint under federal legislation may lodge a complaint through the Victorian Equal Opportunity Commission Referral Centre. Once the complainant has elected federal jurisdiction the complaint is referred to Sydney for handling. 132 complaints have been referred from the EOCV this reporting year. Victorians can also lodge complaints directly with the Commission through the Sydney office.
Tasmania - Following the Tasmanian parliament's introduction of comprehensive anti-discrimination legislation and establishment of the Office of the Anti-Discrimination Commissioner on 10 December 1999 the Commission closed its Hobart office. Tasmanians now have a choice of electing to lodge complaints under new State anti-discrimination law or federal law. Tasmanians choosing federal jurisdiction may lodge a complaint directly with the Commission through the Sydney office.
South Australia and Queensland - The Commission has a formal arrangement with the anti-discrimination agencies of these States whereby the agencies display HREOC publications and allow Commission staff to use their facilities for conciliation conferences, community education or training. Informal referral arrangements are also in place should complainants from those States seek to lodge complaints under federal jurisdiction.
International work
As previously reported, in 1998 the Commission was awarded a tender to provide technical assistance to the Indonesian National Human Rights Commission. The first component of this project, which involved the development of a Complaints Procedure Manual, was completed in early 1999. Additional components of this project were completed in 1999-00. In August and September 1999 senior complaint handling staff provided investigation training for the Indonesian Commission and in March 2000 a senior investigation conciliation officer provided assistance in a scoping project for the development of a complaints database.
In March-April 2000 the section's Senior Training and Policy Officer provided further complaint handling training for staff of the Hong Kong Equal Opportunity Commission and assisted the Hong Kong Commission identify areas for ongoing improvement in service delivery.
Complaint handling staff have also commenced preparatory work on a technical assistance project for the South African Commission for Gender Equality. This project will involve the development of a Complaint Procedure Manual and provision of training in investigation and conciliation of complaints.
During the past twelve months the section has continued to be involved in providing information about the Commission's complaint handing work to visiting delegations from human rights institutions and non-government organisations in China, Nepal, Indonesia, Uganda and New Zealand. The section has also hosted placements for staff from the Hong Kong Equal Opportunity Commission, the New Zealand Race Relations Office and the Uganda Human Rights Commission.
CHS training and policy
The Commission has two specialised training programs which provide knowledge and skills in statutory investigation and conciliation. All complaint handling staff are required to undertake both courses. In 1999-00 the Commission's course in Statutory Investigation was run on two occasions for Commission staff and was also run for staff of the Anti-Discrimination Commission of Queensland in October 1999. The Commission's course in Statutory Conciliation was run in October 1999 for Commission staff and staff from state and territory anti-discrimination agencies. A specific course was also run for staff of the Anti-Discrimination Commission of Queensland in November 1999. During 1999-00 two senior CHS staff obtained Certificate IV accreditation in Assessment and Workplace Training. Information about the Commission's training programs is available on the Complaints page of the Commission's website.
During 1999-00 the Commission provided a submission to the National Alternative Dispute Resolution Advisory Council (NADRAC) which outlined the Commission's approach to the assessment and referral of disputes for alternative dispute resolution. The Commission's earlier submission on issues of fairness and justice in alternative dispute resolution is available on the NADRAC website.Two senior CHS officers also presented a paper on the alternative dispute resolution work of the Commission at the 5th National Mediation Conference which was held on 17-19 May 2000 in Brisbane.
In light of the legislative changes, the Commission undertook a revision of its Complaint Procedures Manual during 1999-00. It is anticipated that the revised manual will be published in the latter half of 2000.
National Conference
In February 2000 the Commission's Complaint Handling Section hosted the fourth National Investigators/Conciliators Conference. The conference, held in Sydney, was attended by delegates from state and territory anti discrimination agencies, the Hong Kong Equal Opportunity Commission, the New Zealand Human Rights Commission and Racial Relations Office and the Indonesian National Human Rights Commission. The Conference was entitled "In principle and in practice" and conference presentations and workshops considered the tension between theory and practice in relation to issues that impact on the work of investigators and conciliators in the field of anti-discrimination and human rights.
Speakers at the conference included Lawrence McNamara, Lecturer at the University of Western Sydney and Professor Hilary Astor, Pro-Dean at the University of Sydney Law School. A highlight of the conference was a debate concerning a bill of rights for Australia which was moderated by ABC National presenter, Richard Fidler. Debate participants included the Sex Discrimination and Acting Disability Discrimination Commissioner, Susan Halliday; the Aboriginal and Torres Strait Islander Social Justice Commissioner, Bill Jonas; Melinda Jones, Director of the Human Rights Centre, University of New South Wales and Lawrence McNamara.
Key performance indicators and goals
Timeliness - The section's stated performance measure is for 75 percent of complaints to be finalised within twelve from the date of receipt of the complaint. In 1999-00 the CHS finalised 67 percent of matters within twelve months. A detailed breakdown of timeliness statistics by jurisdiction is provided in Table 1. Two sets of figures have been provided in relation to complaints under the Racial Discrimination Act. The bracketed figure represents the timeliness of the complaint handling process for that portfolio when the 246 same subject matter of complaints that were finalised in the period are excluded. It is important to note that these 246 complaints were caught up in an external administrative process and not subject to the usual complaint handling process. With these complaints excluded, the CHS finalised 81 percent of matters within 12 months.
Table 1: Time from receipt to finalisation for complaints finalised in the Sydney office
|
Racial
Discrimination Act
|
Sex
Discrimination Act
|
Disability
Discrimination Act
|
Human
Rights & Equal
Opportunity Commission Act |
|
|
|
||||
| 0-3m |
11%
(22%)
|
18%
|
17%
|
51%
|
| 3-6m |
16%
(30%)
|
23%
|
26%
|
24%
|
| 6-9m |
9%
(17%)
|
18%
|
21%
|
11%
|
| 9-12m |
8%
(16%)
|
18%
|
13%
|
5%
|
| >12m |
55%
(14%)
|
20%
|
21%
|
7%
|
| >24m |
1%
(1%)
|
3%
|
2%
|
2%
|
|
|
||||
- Conciliation rate
- The section's stated performance measure is for 30 percent of finalised
complaints to be conciliated. In 1999-00 the section exceed this goal
with a 37 percent conciliation rate.
- Customer satisfaction survey - The section's stated performance measure is for 60 percent of parties to be satisfied with the complaint handling process. In the 1999-00 reporting year 65 percent of survey respondents indicated that they were satisfied with the overall complaint handling process. Further details of survey results for this reporting year are provided below.
Customer satisfaction survey
The Complaint Handling Section's customer satisfaction survey has now been in operation since December 1997. The survey is used to obtain feedback from complainants and respondents (or their advocates) involved in the complaint handling process. Survey results for the period 1 July 1999 to 30 June 2000 indicate that:
- 80% of complainants and 91% of respondents found Commission staff courteous and helpful.
- 60% of complainants and 70% of respondents were satisfied with the timeliness of the complaint handling process.
- 75% of complainants and 89% of respondents felt that staff provided information in a way that was easy for them to understand.
- 83% of complainants and 92% of respondents described complaint handling staff as unbiased.
- 81% of complainants and 94% of respondents felt that forms and correspondence from the Commission were easy to understand.
Survey results for 1999 - 00 are generally similar to survey results for the past two years.
The 199900 figures do, however, indicate increased satisfaction with the timeliness and perceived fairness of the complaint handling process.
Service charter
The Complaint Handling Section's Service Charter has now been in operation for three years. The charter provides a clear and accountable commitment to service and provides an avenue through which users can understand the nature and standard of service they can expect and contribute to service improvement. All complainants are provided with a copy of the Charter and respondents receive a copy when they are notified of a complaint against them.
In the 1999 - 00 reporting year the Commission received two complaints about its services through this mechanism. The Commission has only received four complaints through this mechanism since the introduction of the Service Charter in 1997-98.
Complaint handling statistics
This year the complaint handling statistics are presented in a slightly different format to previous reporting years. This change is necessitated by the amendments to the Commission's legislation and changes in complaint handling arrangements between the Commission and State anti-discrimination agencies. For example, national statistics do not detail which state agency handled the complaint. However, separate reporting on central office statistics has been retained for this reporting year. A new table which identifies the state of origin of complainants at the time of lodgement at Sydney office has been introduced.
Outcome statistics have also been slightly amended to enable dual reporting of the `old' statutory reasons for decline and referral of complaints along with the `new' statutory reasons for termination of a complaint.
A. Central office (Sydney) complaint statistics
The overall number of complaints received by the Sydney office in 1999-00 is equal to the average of approximately 1,200 received per year, based on complaints received over the past five years. Compared to the previous reporting year the number of complaints received this year has decreased by 13 percent. It is noted, however, that in the previous reporting year 467 complaints relating to the same subject matter and same respondent were lodged with the Commission.
The number of complaints finalised during the year was 11 percent higher than the office's average of approximately 1,300 complaints finalised per year, based on complaints finalised over the last five years. Compared to the previous reporting year the number finalised has increased by 47 percent. Again it should be noted that around half of the 467 complaints referred to above were finalised through conciliation.
An upward trend continued in relation to the percentage of complaints conciliated. This year 37 percent of finalised complaints were conciliated. Under the Sex Discrimination Act 39 percent were conciliated, 26 percent under the Disability Discrimination Act, 57 percent under the Racial Discrimination Act and 10 percent under the Human Rights and Equal Opportunity Commission Act.
The percentage of complaints that were either declined or terminated has increased slightly (43 percent) compared to the previous year (38 percent). Only 12 percent of complaints were withdrawn compared to 25 percent and 19 percent in the previous two years.
Table 2: Complaints received and finalised in the Sydney office over the past three years
|
1997
- 98
|
1998
- 99
|
1999
- 00
|
|
|
|
|||
| Received |
855
|
1421
|
1239
|
| Finalised |
1410
|
988
|
1448
|
|
|
|||
Table 3: State of origin of complainant at time of lodgement at Sydney office
| State of Origin |
Total
|
Percentage
|
|
|
||
| New South Wales |
492
|
40%
|
| Victoria |
296
|
24%
|
| South Australia |
109
|
9%
|
| Queensland |
178
|
14%
|
| Australian Capital Territory |
40
|
3%
|
| Tasmania |
22
|
2%
|
| Northern Territory |
24
|
2%
|
| Other (overseas) |
1
|
-
|
|
|
||
| Total |
1239
|
100%
|
|
|
||
Table 4: Outcomes of complaints finalised in the Sydney office over the past three years
|
1997
- 98
|
1998
- 99
|
1999
- 00
|
|
|
|
|||
| Referred |
7%
|
12%
|
8%
|
| Conciliated |
22%
|
31%
|
37%
|
| Withdrawn |
25%
|
19%
|
12%
|
| Declined |
46%
|
38%
|
43%
|
|
|
|||
B. National complaint statistics
The overall number of complaints received this year reflected changes to the Commission's arrangements with state anti-discrimination agencies during the reporting year, whereby State agencies no longer directly handle complaints lodged under federal law. The number of complaints received from all offices decreased by 26 percent compared to the previous year. The state agencies ceased receiving federal complaints on behalf of the Commission in the first half of the reporting year.
In the 1999-00 reporting year 23 percent of complaints were lodged under the Racial Discrimination Act, 34 percent under the Disability Discrimination Act, 24 percent under the Sex Discrimination Act and 19 percent under the Human Rights and Equal Opportunity Commission Act. The change in percentages compared to the previous year is generally explained by the 467 same subject complaints lodged under the Racial Discrimination Act in 1998/99. The current percentages are consistent with the usual jurisdictional breakdown of complaints received except for an increase in complaints received under the Human Rights and Equal Opportunity Commission Act. This increase can be attributed to an additional number of complaints related to immigration detention.
The number of complaints finalised nationally in 1999-00 (1,752) was similar to the number finalised in the previous year (1728). It is noted that the State agencies with whom the Commission had complaint handling arrangements, continued finalising federal complaints up until the end of the third quarter of the reporting year.
The overall number of complaints finalised through conciliation was 35 percent. The overall conciliation rate has increased by 8 percent compared to the previous year.
Table 5: Complaints received
| Legislation |
Total
|
|
|
|
| Disability Discrimination Act (1992) |
445
|
| Human Rights and Equal Opportunity Commission Act (1986) |
248
|
| Racial Discrimination Act (1975) |
299
|
| Sex Discrimination Act (1984) |
325
|
|
|
|
| Total |
1317
|
|
|
|
Table 6: Complaints finalised
| Legislation |
Total
|
|
|
|
| Disability Discrimination Act (1992) |
581
|
| Human Rights and Equal Opportunity Commission Act (1986) |
214
|
| Racial Discrimination Act (1975) |
599
|
| Sex Discrimination Act (1984) |
358
|
|
|
|
| Total |
1752
|
|
|
|
Chart 1: Complaints Received by Act
Disability Discrimination Act - 34%
Sex Discrimination Act - 24%
Racial Discrimination Act - 23%
Human Rights and Equal Opportunity Commission Act - 19%
Racial Discrimination Act
Under the Racial Discrimination Act (1975) it is unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. The Act also prohibits offensive behaviour based on racial hatred.
As explained earlier in this report the number of complaints received under the Act for the year 1998/99 increased significantly when 467 same subject complaints were lodged. The 62 percent decrease in complaints received under the Act this year is explained by the large number of complaints received the previous year. The overall number of complaints received this year is however not dissimilar to previous years.
Employment related complaints represented the largest area of complaint under the Act (34 percent), followed equally by racial hatred (19 percent) and the provision of goods and services (19 percent) complaints.
The number of complaints finalised under the Act for the year increased by 49 percent compared to the previous year. Around half of the 467 complaints noted above were finalised this year. Over half of the complaints finalised under the Act were settled through conciliation (52 percent). The withdrawal rate decreased by 9 percent.
Table 7: Complaints received and finalised
| Racial Discrimination Act * |
Total
|
|
|
|
| Received |
299
|
| Finalised |
599
|
|
|
|
*Includes complaints lodged under the racial hatred provisions
Table 8: Outcomes of finalised complaints
| Racial Discrimination Act * |
Total
|
|
|
|
| Declined/Terminated+ | 244 |
| Not unlawful | 13 |
| More than 12 months old | 10 |
| Trivial, vexatious, frivolous, misconceived, lacking in substance* | 155 |
| Adequately dealt with already* | 1 |
| More appropriately remedy available* | - |
| Withdrawn, does not wish to pursue, advised Commission | 48 |
| Withdrawn, does not wish to pursue, settled outside Commission | 3 |
| Withdrawn or lost contact | 14 |
| Conciliated | 304 |
| Referred for hearing++ | 35 |
| Subject matter of public importance* | - |
| No reasonable prospect of conciliation* | 13 |
| Administrative closure** | 16 |
| Transferred*** | - |
|
|
|
| Total | 599 |
|
|
|
+ Includes complaints declined prior to 13 April 2000 and complaints terminated under new legislative process which commenced on 13 April 2000.
++ Includes complaints terminated after 13 April 2000 on grounds `subject matter of public importance' and `no reasonable prospect of conciliation'.
* Termination ground varied or added as of 13 April 2000.
** Not an aggrieved party, state complaint previously lodged.
*** Complaint transferred to another anti-discrimination or equal opportunity commission for handling.
Chart 2: Racial Discrimination Act outcomes of complaints finalized
Declined/ Terminated - 52%
Withdrawn - 31%
Referred/ Terminated* - 11%
Conciliated - 6%
* Complaints terminated on grounds of `no reasonable prospect of conciliation' and `subject matter of public importance' are included in calculation of percentage of matters referred to public hearing.
Table 9: Complaints received by area
| Racial Discrimination Act |
Total
|
|
|
|
| Rights to equality before the law |
15
|
| Access to places and facilities |
11
|
| Land, housing, other accomodation |
13
|
| Provision of goods and services |
74
|
| Right to join trade unions - Employment |
143
|
| Advertisements |
1
|
| Education |
5
|
| Incitement to unlawful acts |
4
|
| Other - section 9 |
45
|
| Racial hatred |
75
|
|
|
|
| Total* |
386
|
|
|
|
* One complaint may have multiple areas.
Chart 3: Racial Discrimination Act complaint areas
Employment - 37%
Provision of goods and services - 19%
Racial hatred - 19%
Other - 25%
Table 10: Complaints received by ethnicity of complainant
| Racial Discrimination Act |
Total
|
|
|
|
| Non-English speaking background |
164
|
| Aboriginal and Torres Strait Islander |
63
|
| English speaking background |
57
|
| Unknown |
15
|
|
|
|
| Total |
299
|
|
|
|
Racial hatred
The number of racial hatred complaints received for this reporting year decreased by 8 percent compared to the previous year. The percentage of racial hatred complaints finalised through conciliation increased by 6 percent compared to the previous year. Disputes between neighbours and media represent the most common area of dispute under the racial hatred provisions. It is noted that in comparison with the previous reporting year there has been an increase in the number of complaints of racial hatred in sport.
Table 11: Racial hatred complaints received and finalised
| Racial Discrimination Act |
Total
|
|
|
|
| Received |
75
|
| Finalised |
95
|
|
|
|
Table 12: Outcomes of finalised racial hatred complaints
| Racial Discrimination Act |
Total
|
|
|
|
| Declined/Terminated+ |
48
|
| Finalised |
95
|
| Not unlawful |
-
|
| More than 12 months old |
1
|
| Trivial, vexatious, frivolous, misconceived, lacking in substance* |
29
|
| Adequately dealt with already* |
-
|
| More appropriately remedy available* | |
| Withdrawn, does not wish to pursue, advised Commission |
16
|
| Withdrawn, does not wish to pursue, settled outside Commission |
-
|
| Withdrawn or lost contact |
2
|
| Conciliated |
30
|
| Referred for hearing++ |
15
|
| Subject matter of public importance* |
-
|
| No reasonable prospect of conciliation* |
6
|
| Administrative closure** | |
| Transferred*** |
2
|
|
|
|
| Total |
95
|
|
|
|
+ Includes complaints declined prior to 13 April 2000 and complaints terminated under new legislative process which commenced on 13 April 2000.
++ Includes complaints terminated after 13 April 2000 on grounds `subject matter of public importance' and `no reasonable prospect of conciliation'.
* Termination ground varied or added as of 13 April 2000.
** Not an aggrieved party, state complaint previously lodged.
*** Complaint transferred to another anti-discrimination or equal opportunity commission for handling.
Chart 4: Outcomes of finalised racial hatred complaints
Conciliated - 32%
Declined/ Terminated - 32%
Referred/ Terminated* - 16%
Withdrawn - 20%
* Complaints terminated on grounds of `no reasonable prospect of conciliation' and `subject matter of public importance' are included in calculation of percentage of matters referred to public hearing.
Table 13: Racial hatred complaints received by area
| Racial Discrimination Act | Total |
| Media | 11 |
| Disputes between neighbours | 19 |
| Personal conflict |
2
|
| Employment | 7 |
| Racist propaganda | - |
| Entertainment | 4 |
| Sport | 10 |
| Public debate | 3 |
| Other * | 19 |
| Total | 75 |
* This category includes complaints regarding comments made by people in the street and in passing vehicles.
Chart 5: Racial hatred complaints received by area
Dispute between neighbours - 25%
Media - 15%
Sport - 13%
Employment - 9%
Entertainment - 5%
Public Debate - 4%
Personal Conflict - 3%
Other - 26%
Conciliation Case Studies
Racial vilification in radio broadcast
The complainant who is Aboriginal, lodged a complaint against a local radio station. The complainant alleged that the reading out of an anonymous facsimile titled "Australian Apology to the Aborigines" was racially offensive to her, her family and the Indigenous community generally.
The management of the radio station acknowledged that the content of the facsimile was inappropriate and offensive to Indigenous Australians and that they had made a mistake in reading it on air. The radio station advised that it had taken action against the radio announcer and had aired an apology on four separate occasions. The complainant indicated that she was satisfied with this action taken by the radio station. As part of the resolution of the complaint the respondent also agreed to provide the complainant with a written apology, to train their on-air staff regarding racial vilification and to meet with Indigenous community leaders.
Complaint of race discrimination by retail store
Three complainants who are Aboriginal, alleged that a salesperson refused to sell them a bottle of alcohol and other goods. The complainants claimed that the salesperson said she was complying with an instruction by Police not to serve Aboriginal people due to past trouble involving Aboriginal patrons.
The respondent did not dispute that the complainants had been refused service and also acknowledged that no such instruction had been issued by Police. The respondent claimed there had been a misunderstanding in passing information on to staff about an earlier customer incident.
The complaint was resolved through the conciliation process with the respondent agreeing to provide the complainants with private and public written apologies. Other settlement terms were not disclosed.
Alleged racial vilification in provision of goods and services
The complainant claimed that she stopped at the respondent service station and asked to borrow some tools to fix her car. The complainant claimed she was told the company did not lend tools to the general public. The complainant stated that when she made enquires of another staff member within the office, an argument ensued. The complainant alleged she was called a "black bitch, f... mole", told to go back to her own country and was chased out of the shop.
The respondent denied that the staff member had made any racial comments. The respondent claimed that the complainant had called the staff member a racist name and had caused damage to property within the shop.
The matter was resolved with the complainant and respondent providing apologies to each other.
Complaint of race discrimination by real estate agency
The complainant, who is of Aboriginal descent, alleged that he and his family had been discriminated against because of his race. The complainant stated that his family were renting a house from the respondent real estate agency. The complainant alleged that the proprietor of the real estate agency said, with reference to his partner who is non-Aboriginal, "Do you prefer white women?". The complainant also alleged that the proprietor referred to the complainant's relationship as a "mixed relationship" and in conversations with his partner called him `black' and `coloured man'. The complainant also claimed that the proprietor said she would have to notify the landlord of the complainant's Aboriginality. The complainant alleged that his race was a reason why his family was later evicted from the property.
The proprietor denied that she had made comments regarding the complainant's skin colour, Aboriginality and relationship. The proprietor also denied that the complainant's race was a reason why the lease had not been renewed. The proprietor stated that the property was always only going to be leased for a six month period prior to being offered for sale.
The matter was settled through conciliation for an amount of $1000.
Alleged racial vilification in provision of goods and services
The complainant, who is of German descent, alleged that he was racially vilified by an employee of a communication company who was working outside his home.
The complainant alleged that the respondent made a `Nazi' salute to him after he asked the respondent to move the company vehicle from his driveway.
In conciliation the respondent company advised that it had reprimanded the employee.
The respondent company also provided the complainant with a written apology.
Complaint of racial vilification and discrimination in employment
The complainant, who is of Indian descent, alleged that since commencing employment with the respondent state department he had been subjected to racial abuse including racially offensive and threatening mail. The complainant alleged that he suffered harassment through persistent allegations about, and investigations of, impropriety in his work practices. He alleged that in comparison with other staff he had greater difficulty obtaining staff benefits and had been given fewer promotional opportunities. The complainant also alleged that he had been unreasonably prevented from resuming his normal duties after a period of absence from work.
The respondent department did not dispute that some incidents of racial abuse had occurred in the past. However, the respondent claimed that management had appropriately dealt with these incidents at the time. The respondent denied more recent incidents and claimed that any animosity towards the complainant was not because of his colour or race but because he was a new staff member. The respondent denied that the complainant had been treated less favourably than other employees in relation to access to staff benefits and promotional opportunities.
The complaint was settled at a conciliation conference with the department agreeing to pay the complainant $8,000 compensation, issue the complainant with a letter of regret and provide ongoing Equal Employment Opportunity training for staff.
Alleged racial vilification and harassment in employment
The complainant alleged that the sales manager in the small business where he worked displayed aggressive behaviour and made personal threats towards him because of his race. The complainant alleged that the sales manager called him "Slimy Pommie Git" and "English Slimy Prick" and said "You think this is harassment? I'll follow you around and be in your face all the time and make your life hell".
The complainant claimed that he met with the manager of the office to discuss the problem but felt the manager had ignored the racial discrimination issue. The complainant also stated that he complained to the managing director of the company but received no response. The complaint was resolved through conciliation with the company agreeing to pay the complainant his outstanding staff entitlements and to acknowledge the complainant's hurt feelings.
Alleged racial vilification and discrimination by school teacher
Several Aboriginal students alleged that they had been racially vilified by their teacher. The complainant's claimed that during an Aboriginal Studies lesson, the teacher asked the class to provide a list of words which describe Aboriginal people. The complainants claimed that when a student said `dirty' `smelly' the teacher said that these were good words and wrote them on the blackboard. However when someone suggested `beautiful' the teacher did not write this word on the board.
The teacher denied that any offensive words were used apart from `dirty' which he claims was a word suggested by an intellectually disabled student. The teacher claimed that if he had said "that is a good word" it would have been only to acknowledge that the word "dirty" could be linked with perceptions of Aboriginal people. The teacher's employer denied that the teacher's behaviour was inappropriate.
The complaints were settled at conciliation with the employer agreeing to provide:
- private tutoring to the students;
- community room at the school for Aboriginal families which would be used to provide a meeting place for the principal, teachers and families;
- each student with a schoolbook and clothing allowance;
- each student with access to career guide programs; and
- cultural awareness training for staff.
The employer also agreed to review school policy and practice relating to Aboriginal students and to undertake a review of policies relating to race discrimination.
Alleged racial vilification at holiday resort
The complainant claimed that he was racially vilified during an argument with the owner of a shop within the resort. The complainant stated that he was waiting for assistance with his car which was parked outside the shop. The complainant claimed that an argument eventuated when the shop owner yelled at him to move his vehicle. The complainant alleged that on hearing the complainant speak German to his companions the owner said "f.. off you German bastards".
The complaint was resolved by an apology from the shop owner.
Sex Discrimination Act
Under the Sex Discrimination Act (1984) it is unlawful to discriminate against a person on the ground of their sex, marital status, pregnancy or potential pregnancy in many areas of public life including employment, education, provision of goods, services and facilities, accommodation, clubs and in the administration of Commonwealth laws and programs. It is also unlawful to dismiss a person from their employment on the ground of their family responsibilities. Further, sexual harassment is unlawful in a variety of areas of public life including, employment, educational institutions, in the provision of goods, services and facilities, in registered organisations, in the provision of accommodation, in clubs and in dealings concerning land.
There has been a slight decrease (3 percent) in the number of complaints received under the Act in 1999-2000 in comparison with the previous year.
The number of complaints finalised under the Act decreased by 18 percent compared to the previous year and 40 percent of these were settled through conciliation.
Sexual harassment remains the primary ground of complaint. Just under half of the complaints received involved an allegation of sexual harassment. These complaints will often be coupled with an element of sex discrimination. Another large group of complaints involved multiple grounds, particularly those surrounding the renegotiation of work hours following the return to work from pregnancy/maternity leave and the advent of new family responsibilities. These issues are often enmeshed with allegations of indirect sex discrimination in connection with part time work.
The large majority of complaints relate to employment (79 percent) and are lodged by women (83 percent).
Table 14: Complaints received and finalised
| Sex Discrimination Act |
Total
|
|
|
|
| Received |
325
|
| Finalised |
358
|
|
|
|
Table 15: Outcomes of finalised complaints
| Sex Discrimination Act |
Total
|
|
|
|
| Declined/Terminated+ |
144
|
| Not unlawful |
16
|
| More than 12 months old |
13
|
| Trivial, vexatious, frivolous, misconceived, lacking in substance* |
52
|
| Adequately dealt with already* |
-
|
| More appropriately remedy available* |
-
|
| Withdrawn, does not wish to pursue, advised Commission |
42
|
| Withdrawn, does not wish to pursue, settled outside Commission |
1
|
| Withdrawn or lost contact |
20
|
| Conciliated |
131
|
| Referred for hearing++ |
57
|
| Subject matter of public importance* |
-
|
| No reasonable prospect of conciliation* |
18
|
| Administrative closure** |
26
|
| Transferred*** |
-
|
|
|
|
| Total |
358
|
|
|
|
+ Includes complaints declined prior to 13 April 2000 and complaints terminated under new legislative process which commenced on 13 April 2000.
++ Includes complaints terminated after 13 April 2000 on grounds - subject matter of public importance and no reasonable prospect of conciliation.
* Termination grounds added as of 13 April 2000.
** Not an aggrieved party, state complaint previously lodged.
*** Complaint transferred to another anti-discrimination or equal opportunity commission for handling.
Chart 6: Sex Discrimination Act outcomes of complaints finalised
Conciliated - 40%
Declined/ Terminated - 24%
Withdrawn - 19%
Referred/ Terminated* - 17%
* Complaints terminated on grounds of `no reasonable prospect of conciliation' and `subject matter of public importance' are included in calculation of percentage of matters referred to public hearing.
Table 16: Complaints received by ground
| Sex Discrimination Act |
Total
|
Percentages
|
|
|
||
| Sex discrimination |
161
|
38%
|
| Marital status |
20
|
5%
|
| Pregnancy |
75
|
18%
|
| Sexual harassment |
142
|
34%
|
| Parental status, family responsibility |
12
|
3%
|
| Victimisation |
10
|
2%
|
|
|
||
| Total* |
420
|
100%
|
|
|
||
*One complaint may have multiple grounds.
Table 17: Complaints received by area
| Sex Discrimination Act |
Total
|
|
|
|
| Employment |
325
|
| Goods, services and facilities |
41
|
| Land | |
| Accommodation |
4
|
| Superannuation, insurance |
3
|
| Education |
8
|
| Clubs |
5
|
| Administration of federal laws and programs |
26
|
| Application forms etc | |
| Trade unions, accrediting bodies | |
|
|
|
| Total* |
412
|
|
|
|
*One complaint may have multiple areas.
Chart 7: Sex Discrimination Act complaints received by area
Employment - 79%
Provision of goods and services - 10%
Administration of Federal Laws and Programs - 6%
Other - 5%
Conciliation Case Studies
Alleged discrimination in employment because of sex and pregnancy
The complainant alleged she was discriminated against on the grounds of her sex and pregnancy during her four years of employment with the respondent federal government department. The complainant was the first female Field Officer in her section and claimed that her male co-workers and supervisors regularly made sexist and harassing comments, for example calling her "useless female" and "dumb broad" and telling her she should be "back in the kitchen". The complainant alleged that when she became pregnant her supervisor suggested she have an abortion. The complainant also claimed that in comparison with male colleagues she was given fewer opportunities for training and promotion.
The respondent advised that an internal investigation into the complainant's allegations had been conducted but was inconclusive. The respondent did however acknowledge that the complainant's work environment was unsatisfactory.
The complaint was resolved by conciliation with the respondent agreeing to pay the complainant the sum of $23,000.
Complaint of pregnancy discrimination
The complainant claimed that on the day after she commenced employment with the respondent retail firm, the Manager asked her if she was pregnant. The complainant claimed that when she replied in the affirmative she was told that she could not continue her employment.
The respondent agreed that the complainant was asked if she was pregnant, but stated that this was only out of concern for her safety as the work involved climbing ladders and some lifting. The respondent claimed that the complainant became very upset when questioned about her pregnancy and left the workplace of her own accord.
The complaint was resolved by conciliation with the respondent providing the complainant with a written apology and payment of lost wages amounting to $3,617.55.
Alleged sexual harassment by work colleague
The complainant alleged that she had been sexually harassed by a male co-worker in the course of her employment at a local club. The complainant claimed that the co-worker placed his hand up her skirt and on her inner thigh. The complainant alleged that her employer was vicariously liable for the actions of the co-worker as the company did not have any policies and procedures regarding sexual harassment. The complainant also claimed that when she complained to management she was made to feel as if she had done something wrong. The complainant also complained to the police and the co-worker was charged with sexual assault.
The individual respondent pleaded guilty to a charge of common assault and was given a nine-month good behaviour bond. The complainant was satisfied with this outcome in relation to the individual respondent.
While the respondent company denied that it was vicariously liable for the actions of its employee, it agreed to attend a conciliation conference to resolve the matter.
The complaint against the respondent company was resolved with the company:
- stating regret for any harm and ill-feeling experienced by the complainant
- agreeing to implement sexual harassment and equal opportunity training for staff and management and implement any policies and/or procedures that arise out of the training
- agreeing to provide the complainant with a satisfactory reference and $5,000 in general damages.
Complaint of pregnancy discrimination by employer
The complainant was employed with a small retail company. The complainant claimed that when she advised her manager that she was pregnant, the manager said to her "Do you want some free advice. I suggest you have an abortion." The complainant claims when she told the manager she would not be having an abortion the manager said "You know you will have to resign". The complainant alleged that she was subsequently dismissed from her employment.
The respondent denied that the complainant was dismissed because of her pregnancy. The respondent claimed that the complainant's employment was terminated at her request to assist her obtain employment closer to home. The respondent agreed that the option of abortion was discussed with the complainant.
The complaint was resolved by conciliation with the respondent providing the complainant with a written apology, a work reference, the promise of future employment and in $2,250 compensation.
Complaint regarding a sexually hostile work environment
Three complainants alleged that they had been subjected to a sexually hostile work environment while working with the respondent federal government department. The complainants alleged they were treated less favourably than male employees in that they were subject to taunts and comments about their sex and harassed to the extent that they felt they had no choice but to resign or apply for redundancy. The complainants also alleged that they were reprimanded for taking time off work when their children were ill.
The respondent denied the complainants' allegations and stated that there were personality conflicts between the women and management.
The complaint was resolved by conciliation with the department providing each complainant with $5,000 in compensation.
Treatment during, and on return from, maternity leave
The complainant claimed that while she was on maternity leave her section was relocated to another area and she was not informed about this or given the same opportunity as other affected staff to lodge a hardship claim. The complainant also alleged that when, on her return to work, she requested part-time hours she was told to look for a position elsewhere and was not allocated work.
The respondent federal government department confirmed that it had conducted an internal investigation into the complainant's allegations. The respondent agreed that it had erred in not providing the complainant with the opportunity to lodge a hardship claim and acknowledged that there were problems in the way the complainant's request for part time work had been managed.
The complaint was resolved by conciliation with the respondent agreeing to pay the complainant a voluntary redundancy package and $20,000 in general damages.
Six complaints of sexual harassment in employment
Six women lodged separate complaints of sexual harassment against their male employer. Five of the complainants alleged that during the course of their employment at the small retail business the respondent had exposed his genitals to them. Two complainants alleged that the respondent would masturbate in their presence. Four of the six complainants also alleged that the respondent would loiter outside the toilet and attempt to look at them through a gap in the door. Three of the complainants claimed that the respondent would stare at then in an uncomfortable way. All but two complainants resigned from their employment.
The respondent admitted that most of the allegations were substantially true. He claimed that he was suffering from a medical condition at the time.
All of the complaints were resolved by conciliation with the respondent agreeing to pay each complainant financial compensation according their specific circumstances. Financial compensation ranged between $4,300 and $12,200.
Complaint of discrimination on grounds of pregnancy and family responsibilities
The complainant was employed with a small retail company on a permanent part-time basis. The complaint advised that she worked part-time in order to accommodate her family responsibilities. The complainant stated that approximately two years after commencing employment with the company she became pregnant. The complainant claimed that while she did not inform her supervisor that she was pregnant, she believed that her supervisor had been advised of her pregnancy by a mutual friend. The complainant alleged that during her pregnancy her supervisor made comments which indicated that he disliked the fact that she was pregnant.
During the complainant's pregnancy the company underwent restructure. As part of the restructure, the complainant's position was merged with another part-time position to create one full-time position. Another staff member was appointed to this position. The complainant was informed that one of the reasons she was not considered for the position was the limited hours that she could work. The complainant alleged that the company had discriminated against her because of her pregnancy and family responsibilities.
The company stated that the complainant's contract required her to work any hours requested by the company. The company claimed that the complainant's refusal to work longer hours constituted a breach of her employment contract. The company denied knowledge of the complainant's pregnancy and denied that her supervisor had made any negative remarks regarding her pregnancy.
The complaint was resolved by conciliation with the company agreeing to pay the complainant $3,000 compensation for pain, suffering and humiliation.
Allegation of sexual harassment
The complainant stated that she had resigned from her employment as an engineer with the respondent company. The complainant claimed that sexually explicit posters of semi-naked and naked women were displayed in the staff room and in offices, including the foreman's office. The complainant stated that most male employees had pictures of naked women on their toolboxes and that she had found pornographic magazines in the female toilets. The complainant also alleged that she had been treated less favourably than male colleagues in that she had been denied the opportunity to attend courses which would have furthered her career.
The complaint was resolved by conciliation. The respondent, which was a large company, offered the complainant a position interstate at the same level as when she resigned and agreed to wave waiting periods for work related benefits. Additionally, the respondent agreed to assist the complainant with further education and training and agreed that her previous service would be counted in relation to long service leave.
Complaint of sexual harassment in employment
The complainant was employed as a clerk with the respondent small business for six and a half years until she resigned due to alleged sexual harassment. The complainant claimed that a co-worker sexually assaulted her, pinning her to the desk and forcing himself on her. The complainant alleged that the next day the co-worker pushed her against the wall and said "I want to f..k you again". She claims that he then unzipped his pants and tried to force her to perform oral sex on him. The complainant states that when she returned to work two to three weeks after these events the co-worker called her into his office and sought confirmation from her that she would not tell any one about what had occurred. The complainant also claimed that the co-worker criticised her work performance.
The individual respondent denied sexually harassing the complainant. He claimed that he had two consensual sexual encounters with the complainant. The respondent company stated that the complainant had made a complaint after she resigned but requested that the matter remain confidential.
The complaint was resolved by conciliation with the company and individual respondents agreeing to pay the complainant $12,000. The company also agreed to implement an anti-sexual harassment policy.
Disability Discrimination Act
Under the Disability Discrimination Act (1992) it is unlawful to discriminate against a person on the ground of their disability in many areas of public life including employment, education, provision of goods services and facilities, access to premises, accommodation, clubs and incorporated associations, dealing with land, sport and in the administration of Commonwealth laws and programs. It is also unlawful to discriminate against a person on the ground they are an associate of a person with a disability and it is unlawful to harass a person because of their disability.
The overall number of complaints received under the Act for the year decreased by 13 percent compared to the previous year. The most common areas of complaint were employment (44 percent) and the provision of goods, services and facilities (32 percent).
The overall number of complaints finalised for the year decreased by 21 percent compared to the previous year. Of those finalised, 25 percent were settled through conciliation.
Table 18: Complaints received and finalised
| Disability Discrimination Act |
Total
|
|
|
|
| Received |
445
|
| Finalised |
581
|
|
|
|
Chart 8: Disability Discrimination Act outcomes of complaints finalised
Declined/ Terminated - 49%
Withdrawn - 16%
Conciliated - 25%
Referred/ Terminated* - 10%
* Complaints terminated on grounds of `no reasonable prospect of conciliation' and `subject matter of public importance' are included in calculation of percentage of matters referred to public hearing.
Table 19: Outcomes of finalised complaints
| Disability Discrimination Act |
Total
|
|
|
|
| Declined/Terminated+ |
371
|
| Not unlawful |
41
|
| More than 12 months old |
19
|
| Trivial, vexatious, frivolous, misconceived, lacking in substance* |
166
|
| Adequately dealt with already* |
21
|
| More appropriately remedy available* |
34
|
| Withdrawn, does not wish to pursue, advised Commission |
52
|
| Withdrawn, does not wish to pursue, settled outside Commission |
18
|
| Withdrawn or lost contact |
20
|
| Conciliated |
144
|
| Referred for hearing++ |
55
|
| Subject matter of public importance* |
-
|
| No reasonable prospect of conciliation* |
22
|
| Administrative closure** |
9
|
| Transferred*** |
2
|
|
|
|
| Total |
581
|
|
|
|
+ Includes complaints declined prior to 13 April 2000 and complaints terminated under new legislative process which commenced on 13 April 2000.
++ Includes complaints terminated after 13 April 2000 on grounds - subject matter of public importance and no reasonable prospect of conciliation.
* Termination grounds varies or added of 13 April 2000.
** Not an aggrieved party, state complaint previously lodged.
*** Complaint transferred to another anti-discrimination or equal opportunity commission for handling.
Chart 8: Disability Discrimination Act outcomes of complaints finalised
Declined/ Withdrawn - 49%
Withdrawn - 16%
Conciliated - 25%
Referred/ Terminated - 10%
Table 20: Complainant's type of disability
| Disability Discrimination Act |
Total
|
|
|
|
| Physical disability |
114
|
| A mobility aid is used (walking frame or wheelchair) |
36
|
| Physical disfigurement |
11
|
| Presence in the body of organisms causing disease (HIV/AIDS) |
2
|
| Presence in the body of organisms causing disease (other) |
5
|
| Psychiatric disability |
37
|
| Neurological disability (epilepsy) |
24
|
| Intellectual disability |
12
|
| Learning disability |
14
|
| Sensory disability (hearing impaired) |
24
|
| Sensory disability (deaf) |
13
|
| Sensory disability (vision impaired) |
25
|
| Sensory disability (blind) |
6
|
| Work related injury |
42
|
| Medical condition (diabetes) |
27
|
| Other |
29
|
|
|
|
| Total* |
421
|
|
|
|
* This data is obtained from the Commission's intake survey. In 1999-00 77 percent of disability discrimination complainants returned the survey. It is noted that one complainant may have multiple disabilities.
Table 21: Complaints received by area
| Disability Discrimination Act |
Total
|
|
|
|
| Employment |
255
|
| Goods, services and facilities |
187
|
| Access to premises |
34
|
| Land |
-
|
| Accommodation |
12
|
| Incitement to unlawful acts or offences |
-
|
| Advertisements |
-
|
| Superannuation, insurance |
10
|
| Education |
51
|
| Education Clubs, incorporated associations |
17
|
| Administration of federal programs |
14
|
| Sport |
3
|
| Application forms, requests for information |
-
|
| Trade unions, registered organisations |
-
|
| Unlawful to contravene disability standards |
-
|
|
|
|
| Total* |
583
|
|
|
|
* One complaint may have multiple areas.
Chart 9: Disability Discrimination Act complaints received by area
Employment - 44%
Provision of goods and services - 32%
Education - 9%
Access - 6%
Other - 9%
Conciliation Case Studies
Alleged disability discrimination in employment
The complainant had been employed by the respondent state government department for a number of years. During that time the complainant had developed a heart problem that required him to undergo surgery and be fitted with a pacemaker. When his partner's employment was transferred interstate, the complainant applied for the same position with a similar department in that state. In his application for the position, the complainant provided medical evidence that indicated he was fit to perform the duties of the position. The medical advice also confirmed that the complainant had performed his duties without incident for a number of years after his initial surgery. The complainant's application was rejected because of concerns about the effects of the pacemaker on his ability to perform the inherent requirements of the position. The complainant alleged that he had been discriminated against on the grounds of his disability.
The complaint was settled at conciliation without admission of liability with the respondent agreeing to provide the complainant with a statement of regret and $20,000 in compensation.
Accommodation of visual disability by education institution
The complainant, who has a visual impairment, claimed that he was discriminated against by the respondent educational institution. The complainant stated that despite advising the