Human Rights and Equal Opportunity Commission
Annual Report 2000-2001
Part 1 - Introduction
The 2000-01 reporting year was a year of consolidation for the Commission’s Complaint Handling Section (CHS) following the legislative changes to the complaint handling function in April 2000.
In summary:
- 1263 complaints were received
- 1488 complaints were finalised
- 35% of finalised complaints were conciliated
- 88% of complaints were finalised within 12 months of lodgement
- 10,158 telephone/e-mail/TTY/in-person enquiries were received through the Complaint Information Service
- 633 written enquiries were responded to
- 170 organisations throughout all States and Territories attended
information sessions on the complaint handling process.- Seven specialist investigation and/or conciliation skill training courses were conducted for CHS staff, staff from State and Territory Equal Opportunity Commissions and government and non-government agencies in Australia and overseas.
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.
The legislation provides for complaints of discrimination or breaches of human rights to be made to the Commission. Complaints are referred to the President who is responsible for inquiring into the complaint. After some inquiry the President must decide whether to terminate the complaint or 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 their complaint heard by the Federal Court of Australia or the Federal Magistrates Service. 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 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 its office in Sydney. A number of complaints are also referred from State anti-discrimination and equal opportunity agencies. Along with its formal/statutory complaint handling function, the CHS receives a large number of enquiries from people seeking advice and assistance in relation to possible breaches of federal anti-discrimination legislation. These enquiries may be made by telephone, in person, in writing or by e-mail. Enquirers are provided with information about the legislation and the complaint handling process. When appropriate, enquirers are encouraged to resolve matters directly and informally with the people involved in their dispute. When it appears that a formal complaint should be made, enquirers are sent a Complaint Guide and Complaint Form.
When the Commission cannot assist, every effort is made to refer the caller to another appropriate avenue of redress. The Commonwealth and State Industrial Relations Commissions and Ombudmans’ offices are common referral points. When complaints of discrimination are not covered by federal law, callers are referred to State authorities.
Key performance indicators and goals
- Timeliness – The section’s stated performance measure is for 75 percent of complaints to be finalised within twelve months of date of receipt. In 2000-01 the CHS finalised 88 percent of matters within twelve months and the average time from receipt to finalisation of a complaint was seven months. A detailed breakdown of timeliness statistics by jurisdiction is provided in Table 13.
- Conciliation rate – The section’s stated performance measure is for 30 percent of finalised complaints to be conciliated. In 2000-01 the section exceeded this goal with a 35 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. The survey was modified for the 2000-01 reporting year to streamline standard questions and include a question that assesses overall satisfaction with service provision. Data for the past year indicates that 86 percent of parties were satisfied with the service they received. Of this 86 percent, 52 percent rated the service they received as ‘very good’ or ‘excellent’. Further details of survey results for this reporting year are provided below.
Customer satisfaction survey
The Complaint Handling Section’s customer satisfaction survey has 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 2000 to 30 June 2001 indicate that:
- 78% of complainants and 82% of respondents felt that staff explained things in a way that was easy for them to understand.
- 85% of complainants and 96% of respondents felt that forms and correspondence from the Commission were easy to understand.
- 68% of complainants and 63% of respondents felt that the Commission dealt with the complaint in a timely manner
- 85% of complainants and 95% of respondents described complaint handling staff as unbiased.
Survey results for 2000-01 are generally similar to survey results for the past two years. However, over the past three years there has been a continual increase in ratings in relation to satisfaction with timeliness of the process, satisfaction with Commission forms and correspondence and perceived impartiality of complaint handling staff.
Service charter
The Complaint Handling Section’s Service Charter provides a clear and accountable commitment to service. It also 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 2000-01 reporting year the Commission received one complaint about its services through this mechanism. It is noted that where parties have concerns about the complaint handling process, they are generally able to resolve their concerns through discussions with the officer handling the complaint.
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.
- The Complaints Infoline 1300 656 419 (local call charge) is open Monday - Friday between 9.00 am and 5.00 pm. This service offers enquirers the opportunity to call and discuss allegations of discrimination with a Complaint Information Officer. Over 9,500 enquirers throughout Australia utilised the Complaints Infoline this reporting year. Enquirers can also e- mail complaintsinfo@humanrights.gov.au. 443 e-mail enquiries were received this year. Further information about the operation of the Complaints Information Service is provided later in this section.
- Complaint Handling webpage: http://www.human rights.gov.au/complaints_information/
This webpage provides the general public and potential users of the service with information about the Commission’s complaint handling role and the complaint process. The webpage includes information on how to lodge a complaint, a complaint form, frequently asked questions about complaints and a conciliation register. The conciliation register contains de-identified information about the outcomes of conciliated complaints.- In the past year, three new facilities have been added to the Complaint Handling webpage. The page now includes an on-line complaint form and a new e-mail address (newcomplaints@humanrights.gov.au) which allows complaints to be lodged electronically. Additionally, provision has been made for complaint information to be accessed and downloaded in 11 community languages.
- Conciliation circuits - When required, conciliation officers travel throughout Australia to conduct conciliation conferences. This reporting year CHS officers conducted 196 conferences outside the greater Sydney region, including 25 in regional NSW, 78 in Victoria, 25 in Queensland, 35 in South Australia, 7 in Western Australia, 18 in the Australian Capital Territory and 8 in the Northern Territory.
- Access working group – The CHS established its access working group in 1999. The aim of the group is to improve the accessibility of the complaint handling service. Tasks undertaken by the working group in the past year included development of a concise version of the Complaint Guide which has been translated into Arabic, Bosnian, Chinese, Farsi, French, Indonesian, Serbian, Somali, Spanish, Turkish and Vietnamese.
The CHS has also continued its involvement with a project undertaken by the Public Interest Advocacy Centre and the Wirringa Baiya Aboriginal Women’s Legal Centre to examine indigenous women’s access to discrimination complaint mechanisms in NSW.
- Community education/State liaison - the CHS conducted presentations to 170 community and complaint stakeholder groups in cities and regions in all states and territories. These presentations took the form of either informal staff meetings or more formal large group presentations. The presentations provide an overview of the role and functions of the Commission and detailed information on federal anti-discrimination law and the complaint handling process. Presentations for this reporting year included presentations to community legal centres, disability and Aboriginal legal services, university undergraduate programs, law societies and new immigration detention centre staff. Feedback on these presentations indicated that:
- 86% of participants felt that the presentation assisted them to understand the law administered by the Commission;- 82% of participants felt that the presentation assisted them to understand the Commission’s complaint handling function;
- 92% of participants felt that the information was presented in a way that was clear and easy to understand; and
- 88% of participants felt that the information was presented in an interesting manner.
Arrangements with State agencies
Victoria - The Commission has, since 1 August 1999, had a formal referral arrangement with the Equal Opportunity Commission of Victoria (EOCV) whereby Victorians who elect to lodge a complaint under federal legislation may lodge a complaint through the EOCV Referral Centre. Once the complainant has elected federal jurisdiction the complaint is referred to Sydney for handling. 61 complaints have been referred from the EOCV this reporting year. Victorians can also lodge their complaint directly with the Commission through the Sydney office. A total of 247 complaints have been received from Victoria this year.
Queensland/South Australia/Northern Territory - The Commission has arrangements with the Queensland, South Australian, and Northern Territory Equal Opportunity Commissions whereby these agencies display Commission publications and allow Commission staff to use their facilities for conciliation conferences, community education or training. Informal referral arrangements are also in place whereby these agencies will forward complaints under federal law to the Commission. Alternatively, complainants can choose to lodge complaints under federal jurisdiction directly with the Commission in Sydney.
Tasmania/Western Australia/Australian Capital Territory – Residents of these States have a choice of electing to lodge complaints under State anti-discrimination law or lodging complaints under federal law directly with the Commission in Sydney.
Election of Jurisdiction
As many complainants may choose between Federal and State laws to lodge their complaint the Commission has produced an Information Sheet about this process. It is available on the Commission’s website at: http://www.humanrights.gov.au/complaints_information/guides/jurisdiction.html
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 2000-01 the Commission’s course in Statutory Investigation was run for Commission staff. The Commission’s Conciliation Training Course was also run for Commission staff, staff from the Office of the Privacy Commissioner and staff from anti-discrimination agencies in New South Wales, Queensland, Western Australia, South Australia and Victoria.
During 2000-01 an additional senior CHS staff member obtained Certificate IV accreditation in Assessment and Workplace Training and three other officers completed components of this accreditation.
In light of the legislative changes in April 2000 the Commission undertook a revision of its Complaint Procedures Manual. The revised manual was published in December 2000.
In this reporting year the CHS also commenced a research project which will, in part, examine the impact of the Human Rights Legislative Amendment Act, 1999 on the complaint handling work of the Commission. The research will consider the impact of legislative change on the number of complaints received, the level of legal representation of parties, complaint outcomes and complaint settlement amounts. The research project will also gather information in relation to the Commission’s conciliation process and reasons for withdrawal of complaints. In particular, the project will consider parties’ experiences of the conciliation process, satisfaction with conciliated outcomes, reasons for settlement and compliance with settlement terms. This research will be finalised in early 2002.
Staff of the CHS also attended various seminars throughout the year on human rights and anti-discrimination law.
Other CHS work
In 2000 the Commission was awarded a tender to provide technical assistance to the South African Commission on Gender Equality. As part of this project the CHS assisted the Commission on Gender Equality with development of a comprehensive Complaints Procedure Manual and provided investigation and conciliation training for Commission staff.
During the past 12 months the section continued to be involved in providing information about the Commission’s complaint handing work to visiting delegations from human rights institutions, parliamentary and government institutions and non-government organisations in China, Vietnam, Mongolia and Indonesia. Presentations this year also included a briefing for the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination and Xenophobia. In May 2001, the CHS provided a training placement for an Investigation/Conciliation Officer from the Fiji Human Rights Commission.
In March 2001 a Memorandum of Understanding was developed between the Commission and the NSW Rugby League (NSWRL) which provided for the CHS to assist with conciliation of complaints under the NSWRL’s Racial, Religious and Sexual Vilification Code of Conduct. To date the section has assisted with resolution of three complaints under the Code.
Part 2 - Conciliation case studies
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.
In this reporting year the Commission received 267 complaints under the Racial Discrimination Act. The majority of these complaints related to employment and the provision of goods and services. The Commission finalised 405 complaints under this Act and 43 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Racial Discrimination Act are provided in Part III.
Complaint of race discrimination in employment
The complainant stated that she was employed as a Play Worker with a community-based family support service and after five years service was appointed to a Team Leader position in August 1999. The complainant alleged that since this time her employer had treated her less favourably because of her race. In particular, the complainant claimed that she was issued with a performance warning based on unfounded allegations and for behaviour which included speaking Chinese to a Chinese-speaking customer. She further alleged that senior officers refused to verify her appointment as Team Leader when co-workers questioned her leadership. The complainant also alleged that she was victimised for lodging internal complaints and that because her complaints were written in a lower standard of English, they were not taken seriously.
The respondent agreed that the allegations made by other staff members against the complainant were unfounded and that the official performance warning was not justified. The respondent also agreed that the complainant had been appointed Team Leader. The respondent stated that, while the complainant may have been treated less favourably by her co-workers, this was because of ‘internal conflicts’ rather than the complainant’s race.
The complaint was settled by conciliation with the respondent agreeing to issue the complainant with a letter of apology, pay the complainant $15,000 compensation, reimburse costs incurred by the complainant in pursuing the complaint and publish a tribute to the complainant in the organisation’s newsletter.
Allegation of racial discrimination in provision of housing
The complainant, who is Aboriginal, claimed that the manager of the public accommodation complex in which she lived had ignored her complaints that a neighbour racially vilified her. The complainant claimed that this neighbour said such things as “die Abo die”, “go home…Abo free zone” “all Abos will die” and “up the whites”. The complainant stated that she was forced to leave the housing complex because of this vilification.
The respondent department denied that the complainant had been discriminated against on the basis of her race and stated that the complainant had complained about annoyance and nuisance, not racial vilification. The respondent claimed that it commenced investigation of the complainant’s concerns but the complainant left her accommodation before the investigation could be completed.
The matter was resolved by conciliation with the respondent providing the complainant with four weeks bond, two weeks advance rent, a letter of indemnity for electricity and up to $500 removalist costs, should she require emergency re-housing within the next nine months. The respondent also agreed to backdate the complainant’s application for housing from the time she left her accommodation, on the understanding that re-housing would be subject to normal waiting lists.
Alleged racial discrimination and vilification in employment
The complainant was employed as a labourer with an agricultural company. The complainant alleged that during his three months with the company he was treated less favourably and subjected to abuse because of his Aboriginal descent. The complainant alleged that in front of other employees, the boss swore at him, made remarks about his skin colour when a black sheep came into sight, called him ‘eight ball’ and held him down and tried to write ‘eight ball’ on his head. The complainant also alleged that he was refused shift rotation while this was granted to non-Aboriginal employees. The complainant claimed that he resigned because of the alleged treatment.
The complaint was resolved by conciliation with the respondent company agreeing to pay the complainant $1,500 compensation and re-employ him in a different location.
Allegation of racial vilification at football match
The complainant, who was of African descent, claimed that the respondent racially vilified him during a football match calling him a “f***ing nigger”, a “black monkey” and saying he would “send (him) back to Africa on a boat”.
The respondent denied he made the alleged comments.
The matter was resolved by conciliation with the respondent providing the complainant with a written apology which stated that he “apologises for any wrong doing or distress caused through his verbal attack on the field”.
Complaint of race discrimination by Citizen’s Club
The complainant claimed that she was speaking to a friend in her first language, which is not English, while waiting for an appointment at a Senior Citizens Club. The complainant alleged that the Secretary of the Club approached her and said “Be quiet, this is an Australian Club and you ought to speak English. This is the Club rule”. The complainant complained to her local Member of Parliament about this. The complainant stated that when the local member’s staff contacted the club, the Secretary advised that “speaking English only” was a rule in the Club’s constitution.
While the Club Secretary initially denied the allegations, she subsequently admitted making the alleged remarks. The President of the Club advised the Commission that there has never been a policy that people must speak English while on the Club’s premises.
The complaint was resolved by conciliation with the Secretary of the Club providing a written personal apology to the complainant. The Secretary was also counselled by the Club Committee.
Allegation of race discrimination and racial vilification in employment
The complainant who is of Indian origin is an employee of a Commonwealth department. The complainant alleged that since commencing employment in 1997 he had been subjected to discriminatory treatment which included colleagues saying “we don’t want blacks on this table” and calling him a “black c***”. The complainant alleged that on one occasion in 1998 three co-workers placed a canvass bag over his head and pulled him around the room saying “we’ll put him back on a boat to India”. The complainant also claims that in 1999 he was removed from his ordinary rostered duties because a co-worker refused to work with him on account of his race and his colour. The complainant stated that he complained to management but no appropriate action was taken. The complainant noted that he had been involved in disciplinary proceedings in 1999 arising out of an incident relating to the vilification which resulted in him being demoted and transferred out of his previous work environment.
The respondent department denied that the complainant had been discriminated against on the basis of his race or colour. The respondent stated that in 1999 the complainant had threatened a fellow employee with a knife and a subsequent investigation had lead to disciplinary action against the complainant. The department also submitted that they were not vicariously liable for any unlawful conduct as they had taken all reasonable steps to prevent such conduct. The named individual respondents denied they had acted as alleged.
The complaint was resolved by conciliation on the following terms:
- payment of $10,500 general damages
- payment of the complainant’s legal fees
- apologies from the two individual respondents
- promotion of the complainant.
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, the provision of goods, services and facilities, registered organisations, the provision of accommodation, clubs and in dealings concerning land.
In this reporting year, the Commission received 339 complaints under the Sex Discrimination Act. The majority of these complaints related to employment. The Commission finalised 359 complaints under this Act and 39 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Sex Discrimination Act are provided in Part III.
Alleged pregnancy discrimination in employment
The complainant was engaged through a private employment agency to perform casual work for the second respondent, a manufacturing company. The complainant claimed that she told both her supervisor and the employment agency that she was pregnant and that she had a doctor’s certificate which indicated that she should perform light duties. The complainant alleged that after advising the respondents of her pregnancy she was not offered any further work.
The respondents denied any discrimination against the complainant on the basis of her pregnancy. The manufacturing company claimed that the reason the complainant was not provided with further work was because her attendance had been unreliable. The respondents also claimed that due to a downturn in business, the company was unable to provide the complainant with light duties.
The matter was resolved by conciliation with the respondents providing the complainant with $8,000 compensation for the stress and humiliation that she claimed to have suffered as a result of the alleged discrimination.
Claim of sexual harassment in provision of goods and services
The complainant alleged that she was sexually harassed by an employee of a large financial institution which she had engaged to provide her with financial advice. The complainant alleged that this employee asked her to go on dates with him and suggested they have a sexual affair. The complainant stated that she declined to enter into such a relationship with this employee and when she learned that this employee had left the company she complained about his behaviour. The complainant alleged that the company ignored her complaint.
The respondent company denied any knowledge of the alleged harassment and denied responsibility for the actions of its former employee.The complaint was resolved by conciliation with the respondent agreeing to pay the complainant $2,000 in general damages.
Complaint of sex and pregnancy discrimination
The complainant was employed as a sales manager with a large hotel chain. The complainant claimed that she went on six months maternity leave with an option to extend her leave. The complainant stated that when she requested an extension to her leave she was advised that her position would have to be reviewed. The complainant alleged that a month later her position was made redundant. The complainant claimed that her position was subsequently readvertised and filled.
The respondent company stated that there was an agreement that the complainant could extend her maternity leave with appropriate notice. The company claimed that the complainant requested an extension to her maternity leave after the allocated period for such a request had expired. The respondent stated that the complainant’s position became redundant after a restructure of the business and that the advertised position was a more senior position.
The complaint was resolved by conciliation with the respondent agreeing to pay the complainant $20,000 in general damages and to review its operating procedures for maternity leave.
Complaint of sexual harassment in employment
The complainant was employed as a personal assistant with a private company. The complainant claimed that a few days after she commenced employment one of the General Managers started telephoning her on numerous occasions to talk about his marriage, ask her personal questions and discuss other matters of a personal nature. The complainant claimed that following a work function a few weeks later, the General Manager grabbed her by the arms and attempted to kiss her. The complainant claimed that after this incident she was too frightened to return to work.
The respondents denied that the General Manager spoke to the complainant about matters of a personal nature or that he behaved inappropriately toward the complainant at the work function. Instead, the respondents claimed that the complainant had too much to drink at the work function and attempted to kiss the General Manager. The respondent stated that the complainant resigned from the company after failing to attend work for several days.
The complaint was resolved by conciliation by the payment of $10,000 compensation to the complainant.
Allegation of discrimination on the grounds of sex and pregnancy
The complainant worked for a Commonwealth department. She alleged that after she returned from maternity leave she was harassed about breast-feeding and expressing milk at work in that colleagues “mooed” at her when she walked in or out of the office, tipped out the expressed milk and left notes on the milk which said - “good in coffee”. The complainant also alleged that a supervisor made comments such as “you ought to be home with your baby” and “a work place is not the place for a mother”. The complainant further claimed that after her return from maternity leave her work was overscruitinised and she was denied a promotion because of her sex and pregnancy. The complainant left work on stress leave.
While the respondent department agreed that the complainant experienced significant difficulties with her team leaders, the agency advised that this was because of management problems, not because of the complainant’s sex. The respondent agency denied that the complainant was treated less favourably because of her sex or subjected to harassment because of breast-feeding. The respondent also stated that the complainant’s poor performance was the reason she was not promoted.
The complaint was resolved through conciliation with the respondent agreeing to pay the complainant $52,000 compensation for pain and suffering.
Alleged sexual harassment in employment
The complainant worked for a retail company. The complainant claimed that during the first six months of her employment she was sexually harassed by a co-worker in that he persisted in asking her out, bought her presents and flowers and grabbed at her body. The complainant also alleged that this co-worker vandalised her car, repeatedly made inappropriate comments about her body and on one occasion asked her to have sex with him. The complainant stated that she reported these incidents to the company and that the co-worker was dismissed. The complainant claimed that while the company allowed her to transfer to another store, this was essentially a demotion and since the transfer she had been subjected to further sexual remarks from employees and continual references to the previous sexual harassment. The complainant subsequently resigned from her employment.
The respondent company stated that the complaint of sexual harassment was investigated and as a result the co-worker was dismissed and steps were taken to minimise the effects of the harassment. This included the complainant’s mutually agreed transfer to another store. The respondent denied that the complainant was demoted or subjected to ongoing sexual harassment.
The complaint was resolved by conciliation with the respondent company agreeing to pay the complainant $10,000 in compensation.
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.
In this reporting year, the Commission received 443 complaints under the Disability Discrimination Act. The majority of these complaints related to employment and the provision of goods, services and facilities. The Commission finalised 505 complaints under this Act and 37 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Disability Discrimination Act are provided in Part III.
Complaint of disability discrimination in employment
The complainant had been employed as a temporary Customer Service Officer with a large private company for over two years. The complainant claimed that she was offered permanent appointment, subject to a medical examination. The complainant stated that the medical examination indicated that she had tendonitis. The complainant claimed that she was not aware she had a disability and that it did not affect her work performance. The complainant alleged that the respondent subsequently terminated her employment because of her disability. The complainant advised that an examination by her own doctor indicated that she had ‘a slight problem’ and would be fit for work if provided with an ergonomic work station and five minute breaks every half an hour.
The respondent stated that the complainant’s employment had been terminated because she had not declared that she had tendonitis and had therefore falsified her medical declaration.
The complaint was resolved by conciliation with the respondent agreeing to pay the complainant $10,000 compensation for hurt and humiliation.
Alleged disability and sex discrimination in provision of insurance
The complainant alleged that the respondent discriminated against her on the basis of a disability, Post-Natal Depression (PND) or an imputed disability, general depression, by not providing her with life insurance. The complainant claimed that the respondent had not provided actuarial or statistical data to support its decision not to insure her and also that the information on which it based its decision was unreasonable. The complainant also alleged that the respondent discriminated against her on the ground of her sex as refusal of service for people who have suffered from PND only affects women. The complainant claimed that as the psychological effects of PND are different to general depression, the respondent’s practice of assessing PND in the same way as general depression disadvantages women.
The respondent advised that it assesses PND in the same way as general depression and bases its decisions on data contained in underwriting manuals which refer to depression without distinctions in relation to cause or sex.
The complaint was resolved by conciliation. As the complainant was able to provide medical evidence that she had recovered from PND, the respondent agreed to provide the complainant with insurance coverage at standard rates. Additionally, the respondent agreed to write to relevant international underwriting companies to highlight the fact that PND is a specific category of depression with different effects and duration. The respondent also agreed to pay the complainant $7,500 compensation which included costs incurred by the complainant in pursuing the complainant.
Access to suburban shopping centre
The complainant has a disability which requires her to use a wheelchair. The complainant alleged that the proposed redevelopment of a large suburban shopping complex failed to provide adequate access for people in wheelchairs. Most notably, the complainant claimed that the plans did not provide for lift access to the redeveloped section of the complex.
The complaint was resolved by conciliation with the respondent company agreeing to include lift access in the redeveloped section of the complex. The Commission has been advised that this building work has been completed.
Allegation of discrimination in relation to air travel
The complainant has multiple sclerosis and uses a wheelchair. The complainant claimed that when she inquired about booking an interstate flight with the respondent airline she was informed that she would not be permitted to travel on flights unless she provided a letter from her doctor indicating that she had been prescribed medication to prevent incontinence during the flight. The complainant stated that even though she does not have incontinence as a result of her disability, she provided the airline with the requested information. The complainant claimed that the airline then advised her that she could not travel on the flight unless accompanied by an escort. The complainant stated that she consequently cancelled her booking with the respondent airline and travelled without incident on another airline.
The respondent claimed that the requirement for medical evidence arose due to an administrative error in its booking processes but the requirement that the complainant provide medical evidence regarding her ability to travel was reasonable in the circumstances.
The complaint was resolved with the respondent company agreeing to provide the complainant with a personal apology and pay her $10,000 compensation for hurt and humiliation.Allegation of disability discrimination in provision of tourist service
The complainants, who are deaf, stated that when they made a reservation for a half-day tour they advised the respondent company that they required either an Auslan interpreter or a printed copy of the guide’s commentary. The respondent company subsequently advised the complainants that a printed copy of the tour could not be provided as each guide has their own commentary and because safety considerations require that participants not take personal items with them on the tour. The complainants participated in the tour but later wrote to the respondent company seeking compensation because an Auslan interpreter had not been provided and the introductory video was not captioned. In response to this direct complaint, the respondent company apologised to the complainants, provided them with a book about the tour and fact sheets in relation to guide training and reimbursed their tour costs. The complainants were not satisfied with this response and lodged a complaint with the Commission.
The complaint was resolved by conciliation with the respondent company agreeing to make the following arrangements for deaf and hearing impaired clients.
- Auslan interpreted tours twice a month
- Trials of a hearing loop
- A booklet for deaf participants
- A printed instruction sheet
The respondent also offered the complainants two complimentary tours and associated interstate airfares to enable them to provide feedback on the new access arrangements.
Complaint of disability discrimination in education
The complainant alleged that the respondent school had discriminated against her son, who has Autistic Spectrum Disorder. The complainant claimed that her son is the subject of constant bullying by other students and that he reacts aggressively to this bullying. The complainant alleged that rather than trying to prevent the bullying, the school had punished her son for his reactions by suspending him and refusing to allow him to return to school.
The school confirmed that the complainant’s son had been suspended for a period because of his reactions to the bullying and his classroom behaviour. The school stated that he had been offered two hours of school per day but there were no plans for him to return to school on a fulltime basis.
Through conciliation discussions facilitated by the Commission the school agreed to allow the complainant’s son to return to full-time schooling at the commencement of the next term with the support of an intervention plan, additional teacher aide time and individual education program. The respondent also agreed to provide relevant staff with training on Autistic Spectrum Disorder, to review the suspension policy and develop strategies for dealing with bullying within the school.
Human Rights & Equal Opportunity Commission Act
Complaints under the Human Rights and Equal Opportunity Commission Act 1986 are not subject to the same process as complaints under the Racial, Sex and Disability Discrimination Acts.
Under the Act the President can inquire into and attempt to conciliate complaints that concern alleged breaches of human rights by, or on behalf, of the Commonwealth. Human rights are defined in the Act as rights and freedoms contained in any relevant international instrument which is scheduled to or declared under the Act. They are the:
- International Covenant on Civil and Political Rights;
- Declaration on the Rights of the Child;
- Declaration on the Rights of Mentally Retarded Persons;
- Declaration on the Rights of Disabled Persons;
- Convention on the Rights of the Child; and
- Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.
Under the Act the President can also inquire into and endeavour to conciliate complaints of discrimination in employment on specific grounds. These grounds include religion, political opinion, social origin, age, medical or criminal record, sexual preference and trade union activity.
If a complaint of alleged discrimination or alleged breach of a human right is neither conciliated nor declined, the President can undertake further inquiry. If the President is satisfied that the subject matter of the complaint constitutes discrimination in employment or is a breach of a human right, the President must report her findings to the Attorney-General for tabling in Parliament. The Commission’s Legal Section assists the President in this part of the process. Further details of this process are provided in the Legal Section report on page 83.
In this reporting year, the Commission received 214 complaints under the Human Rights & Equal Opportunity Commission Act. The majority of these complaints related to alleged breaches of the International Covenant on Civil and Political Rights and discrimination in employment. The Commission finalised 219 complaints under this Act and 7 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Human Rights & Equal Opportunity Commission Act are provided in Part 3.
Allegation of discrimination on ground of criminal record
The complainant was employed in a managerial position with a large financial company. The complainant claimed that three weeks after commencing employment he was asked to attend a meeting with human resources staff where he was questioned with regard to pending criminal charges and his employment was terminated. The complainant claimed that at no time during the selection or interview process was he asked to disclose information relating to criminal record. The complainant claimed that while he had been charged with armed robbery, he had not yet been found guilty.
The respondent claimed that because the complainant had not disclosed the charge he was not a person of honest character and therefore could not fulfill the inherent requirements of the position.
The complaint was resolved by conciliation with the respondent company agreeing to pay the complainant the equivalent of one month’s salary and provide him with a Certificate of Service.
Complaint of sexual harassment and discrimination on the grounds of sexual preference and disability
The complainant, who is homosexual and has HIV, alleged that he was discriminated against on the basis of his sexual preference and his disability and was also subjected to sexual harassment while employed with a Commonwealth department. The complainant alleged that from when he commenced employment in 1991 to when he commenced long term sick leave in 1998, colleagues and superiors continually made inappropriate sexual comments to him and constantly asked him if he was ‘gay’. The complainant stated that he was treated less favourably in relation to medical appointments, was the subject of constant snide remarks about his disability and received harassing telephone calls at his home. He also alleged that he was sent letters of a similar nature and that someone informed his mother that he was dead. An internal investigation into the situation was undertaken by the respondent after the complainant attempted suicide. The complainant alleged that the harassment against him increased after the internal investigation.
The respondent stated that while the internal investigation found that the complainant had been subjected to harassment by three staff members, the complainant was not harassed or discriminated against on the basis of his sexual preference or disability. The department also stated that there was insufficient evidence to support the claim that the complainant had been sexually harassed.
The complaint was resolved by conciliation with the department agreeing to pay the complainant $15,000 in general damages.
Alleged religious discrimination in employment
The complainant stated that she is Muslim and wears traditional dress. The complainant alleged that when she attended an interview for a position as a general practitioner with the respondent partnership, the managing partner made inappropriate comments about her religious belief and her dress. Specifically, she alleged that the managing partner asked her if she always dressed in the traditional way, asked if her dress was negotiable and told her that she “comes across first as a Muslim and then as a doctor”. The complainant felt that her religion may have been a reason why her employment application was not successful.
In his response to the Commission the managing partner apologised to the complainant for any offence caused and detailed the reasons why the practice had decided not to offer employment to the complainant.
After considering the respondent’s reply the complainant advised the Commission that she had accepted the respondent’s apology and that the matter was resolved.
Allegation of discrimination because of criminal record
The complainant claimed that he applied for a clerical position with a Commonwealth authority and passed the medical and written tests. The complainant stated that in the application process he disclosed to the respondent that he had been convicted for ‘break and enter’. The complainant claimed that four months later he was advised that his application was not successful because of his criminal record.
The respondent stated that it appeared that an employee had acted inappropriately by taking the complainant’s criminal record into account as the criminal act had happened many years ago and the criminal record was not relevant to the inherent requirements of the position the complainant was applying for.
The complaint was resolved by conciliation with the respondent agreeing to offer the complainant employment.
Complaint on behalf of federal prisoners
The complaint, lodged by a prisoner advocacy group, alleged that a State department was refusing to allow Federal prisoners access to an approved publication which provided information on legal matters. The advocacy group claimed that this was a possible breach of the International Covenant on Civil and Political Rights.
In response to the Commission’s letter of inquiry the department advised that its policy had been revised, that prisoners would not be prevented from receiving the publication and that the publication would be placed in prison libraries.
The advocacy group subsequently advised the Commission that the action taken by the department resolved the complaint.
Complaint of discrimination on the ground of trade union activity
The complainant was employed as a truck driver with the respondent company. The complainant alleged that since being involved in trade union activity in late 1999 he had been denied overtime shifts and counselled for attending union meetings. The complainant also alleged that the respondent contacted another company and told them not to give him any additional work. The complainant stated that he resigned because of this harassment.
The respondent company denied that the complainant was harassed or discriminated against because of his trade union activity. The respondent stated that the complainant received a final warning under the company’s counselling process as he had refused to comply with lawful employment duties. The respondent stated that this action was not related to the complainant’s trade union activity.
The complaint was resolved by conciliation with the respondent agreeing to pay the complainant $3,000 in general damages.
Part 3 - Complaint handling statistics
Preliminary comments
The following statistical data provides information on enquiries handled by the Commission this reporting year, an overview of complaints received and finalised and specific details on complaints received and finalised under each of the Acts administered by the Commission.
It is important to understand, when comparing complaint data between federal and state and territory anti-discrimination agencies, that there are differences in the way such data is counted and collected. For example, some agencies count complaints based on the number of grounds of complaint and/or the number of respondents. In contrast, the Commission counts complaints in terms of the number of complainants per Act. Further, agencies adopt different approaches to reporting on aspects of service delivery. For example, while the Commission measures the timeliness of the complaint process in terms of the time taken from receipt to finalisation of a formal complaint, other agencies report in terms of time taken from allocation for investigation to finalisation or on the age of complaints on hand at the conclusion of the reporting year. Additional information explaining the Commission’s approach to statistical reporting is noted in the following tables.
Summary
The overall number of complaints received and finalised this year is similar to the numbers received and finalised by the Sydney office in the previous year.
In the 2000-01 reporting year 35 percent of complaints were lodged under the Disability Discrimination Act, 27 percent under the Sex Discrimination Act, 21 percent under the Racial Discrimination Act and 17 percent under the Human Rights and Equal Opportunity Commission Act. These percentages are consistent with the jurisdictional breakdown of complaints received over the past few years.
The overall number of complaints finalised through conciliation was 35 percent. The conciliation rate is the same as the previous year.
Information on the geographical location, sex and ethnicity of complainants is provided in Tables 9, 11 and 12 below. Demographic data voluntarily provided by complainants at the commencement of the complaint process1 provides additional information on complainants. This data indicates that in the last reporting year many complainants (33%) knew about the Commission prior to lodging their complaint and the main source of referral was family/friends and legal centres/private solicitors. A large number of complainants (46%) indicated that their main source of income at the time of the alleged act was from full or part-time employment, while 27 percent of complainants indicated that they were not in the workforce at the time of the alleged act. Approximately 31 percent of complainants advised at the beginning of the complaint process that they were represented.2 The main forms of representation were privately funded solicitors (25%) and representation by a friend, family member or support person (24%).
Data collected on respondent categories indicates that in the last reporting year approximately 50 percent of complaints were against private enterprise, 26 percent were against Commonwealth departments/statutory authorities and 9 percent were against State departments/statutory authorities. The next main respondent categories were educational institutions (3%), clubs and incorporated associations (3%) and non-government organisations (3%).
If you require this information in a more accessible format, please contact paffairs@humanrights.gov.au
Complaint Information Service
Table 1: Telephone, TTY, E-mail & in-person enquiries received
Enquiry type Telephone TTY In person Total Table 2: Telephone enquiries received by issue
Issue Race Race - racial hatred Sex – direct Sexual harassment Sex - marital status, family responsibilities, parental status, breast feeding Sex – pregnancy Sexual preference, transgender, homosexuality, lawful sexual activity Disability – impairment Disability - HIV/AIDS/Hepatitis Disability – workers compensation Disability – mental health Disability – intellectual/learning disability Disability – maltreatment/negligence Disability – physical feature Age – too young Age – too old Age – compulsory retirement Criminal record/conviction Political opinion Religion/religious organisations Employment – personality conflicts/favouritism Employment – union/industrial activity Employment – unfair dismissal/other industrial issues Employment – workplace bullying Human rights – children Human rights – civil, political, economic, social Immigration – detention centres Immigration – visas Prisons/prisoners Police Court - family court Court – other law matters Privacy – data protection Neighbourhood disputes Advertising Local government – administration State government – administration Federal government – administration Other Total Table 3: Telephone enquiries received by state of origin of caller
State of origin New South Wales Victoria South Australia Western Australia Queensland Australian Capital Territory Tasmania Northern Territory Unknown/overseas Total
Table 4: Written enquiries received and finalised
Written enquiries Total Received 633 Finalised 619 Table 5: Written enquiries received by issue
Issue Race Race - racial hatred Sex – direct Sexual harassment Sex - marital status, family responsibilities, parental status, breast feeding Sex – pregnancy Sexual preference, transgender, homosexuality, lawful sexual activity Disability – impairment Disability - HIV/AIDS/Hepatitis Disability – workers compensation Disability – intellectual/learning disability Disability – maltreatment/negligence Disability – physical feature Age – too young Age – too old Age – compulsory retirement Criminal record/conviction Political opinion Religion/religious organisations Employment – personality conflicts/favouritism Employment – union/industrial activity Employment – unfair dismissal/other industrial issues Employment – workplace bullying Human rights – children Human rights – civil, political, economic, social Immigration – detention centres Immigration – visas Prisons/prisoners Police Court - family court Court – other law matters Privacy – data protection Neighbourhood disputes Advertising Local government – administration State government – administration Federal government – administration Other Total * * One written enquiry may have multiple issues
Table 6: Written enquiries received by state of origin of enquirer
State of origin New South Wales Victoria South Australia Western Australia Queensland Australian Capital Territory Tasmania Northern Territory Unknown/overseas Total Complaints Overview
Table 7: National complaints received and finalised over the past two years
Received Finalised Table 8: Outcomes of national complaints finalised over the past two years
Terminated/declined Conciliated Withdrawn Reported (HREOCA only) Table 9: State of origin of complainant at time of lodgement
State of origin New South Wales Victoria South Australia Western Australia Queensland Australian Capital Territory Tasmania Northern Territory Unknown/overseas Total Table 10: Complaints received and finalised by Act
Act Racial Discrimination Act (RDA) Sex Discrimination Act (SDA) Disability Discrimination Act (DDA) Human Rights and Equal Opportunity Commission Act (HREOCA) Total Table 11: Complaints received by category of complainant by Act
a Individual Male Individual female Couple or family On others behalf Organisation Community /other
groupTotal Table 12: Complaints received by ethnicity of complainant by Act
a Non-English speaking background Aboriginal and Torres Strait Islander English speaking background Total Table 13: Time from receipt to finalisation for complaints finalised during 2000-01
a 0-3m 3-6m 6-9m 9-12m > 12m > 18m > 24m
*Two sets of figures have been provided in relation to complaints under the Racial Discrimination Act and total complaints. The bracketed figure represents the timeliness of the complaint handling process when 140 same subject matter complaints under the Racial Discrimination Act are excluded. These 140 complaints were caught up in an external administrative process and not subject to the usual complaint handling process.Racial Discrimination Act
Table 14: Racial Discrimination Act - complaints received and finalised
a Received Finalised *Includes complaints lodged under the racial hatred provisions.
Table 15: Racial Discrimination Act - complaints received by ground
Racial Discrimination Act Association Colour National origin/extraction Ethnic origin