ADR: an essential tool for human rights
Address by The Hon. John von Doussa, QC at the National Mediation Conference,
30 June 2004
I would like to begin by acknowledging the Elders and Traditional Owners of Darwin, the Larrakia People, and to thank them for the opportunity to visit this beautiful part of the country. After that very heartfelt welcome to country, I feel very privileged to be here this morning.
My thanks also go to the Board of Directors of the 7th National Mediation Conference for inviting me to address the conference, and in particular My Tony Fitzgerald of the NT Anti-Discrimination Commission, and Mr Patrick McIntyre.
I look forward to hearing the presentations of Mr Djiniyini Gondarra and Ms Beth Djandilnga under the title A bridge for our country. That is a very fitting theme for our times and for this conference. As a country still struggling to come to terms with its past, and struggling to understand what we need to do both as individuals and a nation, to bring about lasting reconciliation between black and white Australia, there are a number of metaphoric bridges between Indigenous and non-Indigenous cultures that we are yet to cross - mediation being just one of those.
Mediation and genuine consensus decision-making are among the features of Indigenous law and culture that are common to most Indigenous peoples, regardless of geography. Whilst the colonisers of Australia placed virtually no value in the laws and cultures of the Indigenous peoples of this land, and in fact generally did everything in their power to denigrate and deny their very existence, colonisers on the other side of the world were, in some respects, more willing to recognise and co-opt some of the principles and practices that maintained order and relative harmony in Indigenous communities.
In what we think of today as north-eastern USA and southern Canada, the Haudenosaunee, or Six Nations Confederacy, lays claim to having inspired some of the principles that underpin the legal system of the United States. The Haudenosaunee is governed by a constitution that they regard as the oldest functioning document in the world, which recognises the freedoms the Western democracies have claimed as their own: freedom of speech, freedom of religion, the rights of women to participate in government, and the concept of the separation of powers.
I think the Haudenosaunee's Grand Council of Chiefs might also be able to lay claim to having developed one of the oldest functioning ADR systems in the world. Its Grand Council operates on the principle of consensus, which is achieved only after thoughtful analysis and sensitive negotiation of individual matters. It is a forum for decision-making where all perspectives are discussed until a compromise that is acceptable to all sides is reached. Whilst this form of ADR takes time, it eliminates a dissenting minority, and has clearly passed the test of time.
Closer to home, as many of you know, the Yolgnu Elders and community on Elcho Island have just completed a unique cross-cultural mediation 'in ceremony' with Indigenous and non-Indigenous mediator participants from all over Australia. In the spirit of reconciliation and genuine good will, the Elders have opened their culture and traditional practices to others in the hope that there could be an intellectual cross-fertilisation and enhanced mutual understanding. I very much look forward to hearing about the experiences of those who took part in the 'Mawul Project' and what inspiration they have drawn from the experience.
This is the latest in what I regard as a very positive trend in Australia to re-evaluate the wisdom and contemporary utility of Indigenous ways of governing and problem solving. We are also seeing models for community-based restorative justice programs being developed by Indigenous Elders and community leaders that are having a multiplicity of positive spin-offs, including the reinvigoration of Indigenous cultures and authority structures, and a greater sense of justice for both the perpetrators and victims of crimes.
This is not to suggest that these forms of ADR are appropriate in all situations, or should supersede our existing legal system. Rather it is an acknowledgement that in pursuing the goal of social justice for all Australians, there needs to be a greater preparedness on the part of the dominant legal system to provide avenues for resolution that resonate with Indigenous peoples. If we are serious about reducing Indigenous incarceration rates and eliminating their social and economic disadvantage, I would go further and say this is essential.
Against this backdrop, I now want to turn to the question of the suitability of ADR as a means of protecting and promoting human rights, and whether or not ADR is an essential tool in achieving this objective.
In addressing this topic, it is necessary to spend a moment discussing the notion of human rights. You cannot tell if a tool is any use at all until you know what function it is to serve.
ADR in the context of Human Rights
The modern concept of human rights developed following the Second World War and the revelations of the gross atrocities that had occurred. On 10 December 1948 the United Nations adopted the Universal Declaration of Human Rights (UDHR), marking the first time in history that human rights and fundamental freedoms had been set down in detail in a document adopted by an intergovernmental body.
The Declaration has prompted the elaboration of more detailed international instruments which identify particular human rights such as:
- International Covenant on Civil and Political Rights,
- Convention on the Elimination of all Forms of Racial Discrimination, and
- Convention on the Elimination of all Forms of Discrimination Against Women.
These instruments have set down in concrete form what most societies already knew, but regrettably did not always observe.
They legally bind the contracting States parties (governments) to ensure all people within their territories are free to enjoy the enumerated human rights and fundamental freedoms. The United Nations treaty monitoring bodies and Special Rapporteurs monitor compliance with the provisions of the treaties by States parties, and investigate and report on allegations of human rights abuses, thereby exposing Governments' human rights records to public scrutiny.
The human rights treaties do not purport to establish codes of behaviour between individuals in society. Rather they are intended to establish a relationship between the State and its people, and that relationship is given life and reality only when the State enacts the content of the treaty into domestic law.
In Australia, the reliance on the Parliaments to provide the necessary legislative protections that will give effect to our international human rights obligations has contributed to the fact that we have a less than comprehensive protection regime for human rights.
Although the common law, and indeed our own Constitution, do not provide direct human rights protections, the legislatures at both a Commonwealth and State level have enacted laws to protect specific human rights. This legislation has sought to directly target discrimination on the grounds as race, sex or disability, and to bring about substantive equality between individuals.
At the Commonwealth level, the Human Rights and Equal Opportunity Commission (HREOC) is empowered to inquire into alleged human rights breaches under three anti-discrimination laws:
- Racial Discrimination Act 1975,
- Sex Discrimination Act 1984, and
- Disability Discrimination Act 1992.
Following the recent passage in the federal parliament of the Age Discrimination Bill 2003, HREOC will also take on responsibility for inquiring into complaints of unlawful behaviour lodged under this legislation.
HREOC is also empowered to inquire into alleged infringements of human rights under the Human Rights and Equal Opportunity Commission Act 1986 ("HREOC Act") when they 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 seven international treaties that Australia has adopted or ratified, and which are scheduled to or declared under the Act, such as the International Covenant on Civil and Political Rights.
In Australia, as in many countries around the world, domestic human rights and anti-discrimination law provide for ADR as a central component of the process by which alleged human rights breaches and claims of discrimination are addressed. While ADR is a clearly a favoured process in this context, it is important to remember that at best ADR is only a tool, a process, useful to further the enjoyment of a human right that must be identified independently of the process itself.
We must also note however that there are important, indeed fundamental rights, unrelated to anti-discrimination laws where ADR is employed as a process tool. For the purpose of this Conference a sufficient starting point is the Universal Declaration of Human Rights (UDHR), which states in the Preamble:
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
And in the Articles the Declaration provides:
Everyone has the right to recognition everywhere as a person before the law.
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration ...
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law.
Everyone is entitled in full equality to a fair hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
By adopting these Articles, a State formally recognises the obligation to ensure the full enjoyment of the rule of law by its people. It is in this way that ADR may be seen as a human rights tool in the resolution of the broad range of civil disputes across the community between citizen and citizen, as well as between citizen and State.
We all now accept that well functioning, efficient court systems will incorporate and promote the use of ADR. But it must be remembered the human rights for which it is a tool are:
- the right to a fair hearing by an independent tribunal, and
- the right to an effective remedy by an appropriate national tribunal.
It follows that if the ADR process does not operate consistently with these rights, it has ceased to be a tool, and has become an obstacle.
It is of critical importance always to remember that ADR, like all rules of practice and procedure, is intended to further the end of justice and recognised human rights by enabling a fair and equitable hearing.
There is one other definitional issue that I mention at this stage. Under the NADRAC glossary, ADR is an umbrella term for processes other than judicial determination, in which an impartial person assists those in a dispute to resolve issues between them. This is a definition that seems to reflect that the process is one that is ancillary to the formal litigation process within a court structure that is intended to ensure the rule of law.
It is therefore not within this meaning to extend this paper to look at the resolution of international conflict, or processes like truth and reconciliation commissions. Rather I will focus the remainder of my remarks mainly on the Australian context, and in particular on ADR in the context of federal human rights and anti-discrimination legislation.
I will firstly outline the legal and procedural framework for ADR in the federal context and then consider some of the key aspects of the debate about the suitability of ADR as a tool in the protection and promotion of human rights.
ADR in the context of federal human rights and anti-discrimination law
As the statutory authority responsible for the observance of human rights in Australia at the federal level, one of HREOC's main functions is to investigate and attempt to resolve complaints of discrimination and alleged breaches of human rights through an ADR process of 'conciliation'.
Complaints of unlawful discrimination that cannot be resolved through a conciliation process or are considered inappropriate for conciliation are terminated, and the complainant is free to make an application to the Federal Court or the Federal Magistrates Court to hear and determine the complaint in that forum.
HREOC can also attempt to conciliate complaints under the HREOC Act, however the complaint handling process under this Act differs from the process under discrimination legislation. Under this Act, if the matter cannot be conciliated or has been declined, it cannot proceed to court. Where the Commission forms the view that discrimination or a breach of a human right has occurred, it can present a report for tabling in the federal Parliament outlining its findings and making recommendations to resolve the complaint. The decision as to whether or not the recommendations are acted upon ultimately rests with the Attorney-General and the government of the day, with HREOC having no legal authority to enforce its recommendations.
In the 2002-03 reporting year, HREOC recorded more than 90,000 page views of complaint-related information on our website, and almost 9,500 inquiries from individuals. These inquiries resulted in a total of 1,236 complaints. Thirty-two (32) percent of all complaints finalised in that year were resolved by conciliation and sixty-four (64) percent of matters where conciliation was attempted were successfully resolved.
Like similar legislation around the world, Australian federal human rights and anti-discrimination law does not provide a definition of conciliation or detailed proscriptions of how conciliation should be conducted.
HREOC is of the view that the NADRAC definition of 'statutory conciliation' provides an apt broad description of conciliation as conducted by HREOC in that HREOC conciliators have an active role to assist parties to resolve the complaint on terms that accord with the requirements of the relevant legislation. This gives conciliators the scope to work with both parties to identify the content of the dispute and to provide advice and assistance to enable parties to resolve it.
Conciliation can be considered a private process in so far as the parties generally agree to keep the content of resolution discussions confidential. HREOC is also required by law to not "... set out or describe anything said or done in the course of conciliation proceedings.." in any report provided to the Federal Court or Federal Magistrates Court.
HREOC staff utilise a range of conciliation formats depending on the nature of the claim and the relationship between the parties. These include face -to- face conferencing, shuttle conferencing, teleconferencing and telephone shuttle.
Parties may participate in a conciliation process with the assistance of a support person, an advocate or a lawyer where this is considered appropriate to ensure the fairness and effectiveness of the process.
The debate about ADR in the human rights context
Although many countries have incorporated ADR processes into their legal systems to protect human rights, there is an ongoing debate about whether ADR is the most effective and appropriate means to promote and protect rights. This debate can be seen to mirror the broader debate about the potential benefits and limitations of ADR generally.
I would like to address three key issues often raised in relation to ADR in the human rights context.
Is ADR an appropriate process to deal with the subject matter of human rights disputes?
In considering if ADR is an essential tool for human rights, it is relevant to ask whether ADR is an appropriate process to deal with the subject matter of human rights disputes.
Valid concerns have been raised about the appropriateness of ADR to deal with some types of breaches of human rights law. For example, human rights complaints, particularly in the international context, can include alleged gross violations of human rights by States, such as arbitrary detention, torture or extrajudicial execution.
In these circumstances, it is questionable whether an ADR process is capable of delivering an appropriate and proportionate response, given the seriousness of the alleged crime. There is also the potential that utilising ADR processes in circumstances where there is a clear power imbalance between the individual and the state, could negate rather than further human rights.
Where gross human rights violations are alleged, it may be the case that the interests of both the complainant and the broader public may best be served through a formal, public, binding determination, or an authoritative interpretation and application of the law. In some cases, this may be essential to ensure there is no impunity for the perpetrators of crimes, and to reinforce community standards of what constitutes acceptable behaviour. In other words, justice must be done, and be seen to be done.
This does not mean however, that ADR is not an important tool in dealing with human rights issues. The possible benefits of ADR processes for traditionally disadvantaged groups within society have been well documented. The emotive, value-laden and often perception-based disputes that arise under discrimination law can often be more appropriately and constructively addressed in an informal and discursive ADR process, rather than through a formal determinative court process.
ADR also enables the parties to be involved in both the process and the terms of settlement, so there is greater scope to approach resolution in a manner that bridges cultural divides and resonates with both parties.
Clearly, while there are benefits in utilising ADR in this context, ADR will not always be the best tool to respond to all matters raised under human rights law. It is a tool which needs to be employed with discretion.
Some criticisms of ADR in the Australia federal human rights context have been based on an incorrect assumption that ADR is a mandatory process. As noted previously, federal anti-discrimination law does not require that all matters are conciliated. The President has the option to terminate a complaint if he or she is of the view that the subject matter would be more effectively dealt with by another statutory authority, or if the subject matter involves an issue of public importance that should be considered by the Federal Court.
Does the private and confidential nature of an ADR process impede the educative and reformist potential of human rights law?
Another challenge to the status of ADR as an essential tool for human rights is the criticism that the private nature of ADR perpetuates a lack of public knowledge of the law. If this is the case, it follows that ADR is also responsible for limiting public sanctioning of discriminatory or abusive behaviour and hindering broader positive social change for the very groups the legislation is designed to protect.
While these concerns are real, an examination of the functioning of ADR in the Australian federal context provides some alternative perspectives on this issue.
As previously stated, conciliation is not a mandatory process under federal laws. Matters of significant public interest can bypass the conciliation process and move directly to the Federal Court or Federal Magistrates Court for public determination. The judgement of what constitutes the public interest rests with the President of the Commission, and of course must be balanced against the rights of the parties to choose a private and less formal resolution process.
While the content of conciliation discussions is considered confidential, it is not a statutory or procedural requirement for conciliation outcomes to be confidential. The parties can, and some do choose to make settlement terms public where this is in their mutual interest. Additionally, information on issues and outcomes from conciliation can be made available to the public in a form which does not identify the parties to the complaint. This enables HREOC to provide information in the form of case studies in various publications, and to operate a de-identified Conciliation Register on our website.
It is also important to acknowledge that conciliation agreements, even those arising from individual complaints in a confidential content, can bring about systemic reforms. For example, resolution of a complaint regarding access for a person with a mobility disability may result in practical changes to services or facilities which have broad reaching and significant benefits for all people with mobility disabilities. Outcomes achieved at conciliation can, and often do, include policy change, education and training programs which further the functions of the law and protect human rights.
HREOC is very mindful that in the context of some disputes, the ability to pursue a complaint in private is a choice of the parties, and without this option the matter may not be pursued at all. The privacy of the resolution may be a key element in the complainant achieving a quick and effective resolution of the matter. For example, in relation to alleged sexual harassment, complainants may, for a number of reasons, be unwilling to disclose the issue publicly. Equally, respondents in such cases may wish to avoid publicity, especially employers if their workplaces do not comply with law and best practice.
In the human rights context, can it be said that an ADR process such as conciliation result in 'second class justice' and disadvantage for complainants?
The third aspect of the debate about whether 'ADR is an essential human rights tool' concerns the question of whether ADR provides a form of 'second class justice'.
In most cases, those (not just individuals) bringing complaints under human rights and anti-discrimination law will have less resources and power than those they are complaining about, given that respondents are often an arm of government or a private corporation.
Concerns have therefore been raised that complainants will be disadvantaged in a private and unreviewable resolution process facilitated by a neutral ADR practitioner. Additionally, there is concern that this disadvantage is exacerbated by a lack of public understanding about ADR processes and that the combination of these factors may lead to complainants accepting settlement terms significantly below what could be achieved though public determination.
I would like to address these concerns with specific reference to HREOC's ADR process.
Inherent in these concerns is the presumption that the 'third party conciliator' is constrained from intervening to address power differentials between the parties because they are required to be 'neutral'. This is clearly a misunderstanding of the conciliator's role.
The conciliator cannot be said to be 'neutral' in terms of being value free. However, the conciliator is required to conduct the resolution process impartially, treating each party without bias. As has been highlighted by a number of authors, impartiality should be seen as entailing both negative and positive duties. It not only requires that the conciliator restrain from imposing personal bias, but also requires they intervene to enable substantive equality of process.
This type of intervention is required by federal legislation, which states that HREOC conciliators 'must ensure' that the conciliation process 'does not disadvantage either the complainant or the respondent'.
Some examples of intervention by HREOC conciliators to enable a fair and just process for both parties may include:
- providing information to assist parties understand and prepare for participation in a conciliation process. For example, we have recently produced a video/DVD that outlines for complainants, respondents and advocates, the key steps in preparing for, and participating in, a conciliation process.
- providing parties with information about external resources that may assist them participate on more equal terms;
- adapting the process to increase the level of informality or utilising techniques such as shuttle conferencing;
- providing interpreters or other aids to enable participation;
- controlling who attends the conciliation; or
- controlling the physical environment to ensure environmental aspects do not exacerbate power imbalances.
HREOC conciliators also have a legitimate role in assisting the parties to reach a mutually acceptable settlement. While this does not extend to conciliators determining the terms of settlement, there is scope for conciliators to intervene to:
- provide parties with information on possible resolution outcomes which may include providing parties with information about how similar matters have been resolved or determined;
- assist parties reality test resolution options; and
- comment directly on terms of settlement where there is concern that the proposed terms are not consistent with human rights legislation.
In relation to this last point, the HREOC Act requires that the outcome of the conciliation process is consistent with recognised human rights and the need to protect and promote those rights. Accordingly, HREOC will not facilitate an agreement where for example, the terms expose a party to discrimination or negate other statutory rights.
In other words, the legislation provides a reference point beyond which an outcome cannot be said to be either fair or just. In this respect, the Act provides a public standard of justice and fairness which ensures that disputes brought to the Commission cannot be understood as merely private concerns.
HREOC also recognises that a fair and just outcome for a particular case should be understood not only in terms of decisions made by courts or tribunals, but also in terms of what the parties perceive to be fair and just in the circumstances. In many cases the outcome most desired by the complainant is one which is unlikely to be obtained through a court process - such as an apology, implementation of EEO policies, improved employment opportunities or action plans for ongoing modifications of premises, practices and procedures.
Measuring the effectiveness of ADR as a human rights tool
Measuring the effectiveness of ADR is a complex area and clearly discussions about approaches to measuring the effectiveness of ADR as a human rights tool extend beyond the scope of this paper.
However, party perceptions of the process and party satisfaction with outcomes are relevant considerations in assessing the effectiveness of any ADR process.
Data collected by HREOC in relation to its conciliation process indicates that parties generally see the process as fair and effective. There is high reported understanding of what is happening in the conciliation process, and low perceptions of conciliator bias by both complainants and respondents. The data also reveals a high level of satisfaction with settlement terms by both complainants and respondents, and high levels of compliance with settlement terms.
Nonetheless, HREOC recognises that we need to strive to continually improve the accessibility and quality of the ADR services that we provide. We see this as one of our core statutory duties if we are to protect and promote the human rights of all Australians.
In closing, I would like to remind you, as ADR practitioners, that you are ultimately working as human rights defenders.
Every day you empower individuals to make their own decisions. You provide them with a greater understanding of their legal rights, as well as knowledge of the various options to implement and enforce those rights. Perhaps most important of all, you equip them with the means to defend those rights from a more equalised power base.
What you do on a daily basis has become critical to the functioning of the justice system in Australia. Whether you work in family law, native title, industrial relations, or discrimination law, your profession assists in giving others the ability to exercise their fundamental right to a fair hearing and an effective remedy by an independent tribunal.
You are operating in an extremely challenging field where there is a constant tension between the application of the letter of the law and the operation of human nature. Most of the time you are required to tread a fine line to massage the process rather than direct it - and you probably feel more like you are operating under a spotlight, than the concealing 'shadow of the law'.
I hope that you will be comforted by the knowledge that your skills and your work are contributing to the protection and promotion of human rights of others. Without you, the ability of ordinary Australians to implement and enforce their human rights would be greatly diminished, and the effectiveness of our democracy would be the less for your absence.
to The Hau de no sau nee Address to the Western World, Geneva, Autumn
1977, at www.ratical.org/many_worlds/6Nations/6nations2.html
2. Examples include the Kurduju Committee Law and Justice Strategy in the Northern Territory, community justice groups in Queensland, and the Ngunga Court in South Australia. Refer to Submission of the Aboriginal and Torres Strait Islander Commissioner, HREOC, to the Expert Seminar on Indigenous Peoples and the Administration of Justice, Madrid, Spain, 12- 14 November, Issue 3: Recognising Aboriginal customary law and developments in community justice mechanisms, 2003 at www.humanrights.gov.au/social_justice/
3. Larissa Behrendt, "Aboriginal Dispute Resolution: A step towards self-determination and community autonomy", The Federation Press, Sydney, 1995, p.106.
4. The UDHR is an aspirational document, based on the conviction that the 'inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.' Among the fundamental rights that all people have are: the right to life, liberty and security of person; the right to an adequate standard of living; the right to seek and to enjoy in other countries asylum from persecution; the right to own property; the right to freedom of opinion and expression; the right to education, freedom of thought, conscience and religion; and the right to freedom from torture and degrading treatment.
5. The United Nations has created a wide range of mechanisms for monitoring human rights violations. For example, convention mechanisms (treaty bodies, which are composed of independent experts of recognized competence in the field of human rights who are elected by States parties) and extra-conventional mechanisms (UN Special Rapporteurs, independent experts and expert working groups) have been established to monitor compliance with the provisions of the treaties by States parties, and to investigate and report on allegations of human rights abuses. In addition, the UN Commission on Human Rights is the principal organ within the UN mandated to protect and promote human rights.
6. The Australian Commonwealth Constitution and the Constitutions of its States do not provide for the express constitutional protection of human rights (with the exception of the ACT after recently enacting the Human Rights Act 2004). As a common law country, Australia is unique in this regard, given that the United States has a Bill of Rights and the Canadian Constitution includes a Charter of Rights and Freedoms. Furthermore, Australia does not have a statute-based Bill of Rights, unlike the United Kingdom which has enacted the Human Rights Act 1998, and New Zealand which has enacted the New Zealand Bill of Rights Act 1990. It is relevant to note, however, that there is some support in Australia for a statutory, non-constitutional Bill of Rights that would, amongst other things, protect against breaches of human rights. The Australian Bill of Rights Bill 2001 (Cth) sought to introduce statutory protection of rights. It is, however, a private members bill and is unlikely at this stage to become law.
7. Section 11(1)(aa) & section 46PF(1) of HREOC Act.
8. The option remains open to the complainant to refer the matter onto the relevant treaty body within the United Nations which is mandated with monitoring and reporting on States parties' compliance with the international instrument that is alleged to have been breached. Again, the discretion of whether or not to act on the recommendations or findings of the treaty body rests with the government of the day. It may be more a question of moral authority or political persuasion on the part of the treaty body that determines whether or not the government acts on the recommendations.
9. Most of the inquiries were received through the Commission's toll-free telephone service, with a smaller number received in writing or by email.
10. The breakdown across jurisdictions was as follows 40% Disability Discrimination Act, 31% Sex Discrimination Act, 15% Racial Discrimination Act and 14% Human Rights and Equal Opportunity Commission Act.
11. Detailed complaint statistics are provided in the HREOC Annual Report 2002-03.
12. While the Commission does have compulsory conciliation powers, these are rarely used. These powers are contained at section 46PJ of HREOC Act.
13. In the case of Koppen v The Commissioner for Community Relations (1986) EOC 92-173, Justice Spender in the Federal Court held that the rules of natural justice should be observed by a person presiding at a conciliation conference.
14. Section 46PS(2) of HREOC Act.
15. Face-to-face conferencing is the main format used by HREOC. Recent research on HREOC's conciliation process indicated that 63% of people involved in the conciliation process had been involved in a face-to-face conference. HREOC, "Review of Changes to the Administration of Federal Anti-Discrimination Law: Reflections on the initial period of operation of the Human Rights Legislation Amendment Act (No.1) 1999 (Cth)", 2002 pg.15
16. Recent research indicates that the majority of participants in conciliation (59%) have no legal representation, and that complainants tend to have higher levels of overall representation (that is both legal and non legal), than respondents. Approximately 51% of complainants had representation in conciliation, compared to 44% of respondents. Ibid, Appendix 2, pg 8.
17. See legislative directions in this regard - sections 46PK(5) - (7) HREOC Act.
18. See for example, Margaret Thornton, 'The Equivocations of Conciliation: The Resolution of Discrimination Complaints', Modern Law Review 733, 1989, p. 735 and NADRAC, "Issues of Fairness and Justice in Alternative Dispute Resolution: Discussion Paper", Canberra, 1997 .
19. Section 46PH(1), HREOC Act.
20. Section 46PH(1)(h), HREOC Act.
21. Raymond and Ball, Alternative Dispute Resolution in the Context of Anti-Discrimination and Human Rights Law: Some comparisons and considerations), p.7, available at http://www.humanrights.gov.au/complaints_information/publications/altern... An edited version of this paper was presented at the 5th National Mediation Conference, 17-19 May 2000.
22. HREOC's Conciliation Register provides de-identifed information about issues raised in complaints and associated conciliation outcomes. It can be accessed on the Complaints Page of HREOC's website http://www.humanrights.gov.au/complaints_information/register/index.html
23. Astor and Chinkin, Dispute Resolution in Australia, Butterworths, 1992, p. 377.
24. This could include NGOs or victims support groups who bring complaints on behalf of others.
25. Sara Cobb and Janet Rifkin, "Practice and Paradox: Deconstructing Neutrality in Mediation", Law & Social Inquiry, V.16, No.1 Winter 1991; and Hilary Astor, 'Rethinking Neutrality: A Theory to Inform Practice - Part II', in Australasian Dispute Resolution Journal, Vol. 11, No. 3, August 2000.
26. Section 46PK(3), HREOC Act.
27. Copies are available by contacting HREOC's complaint information line.
28. For example, complainants with disabilities may be referred to appropriate advocacy services and respondents who are unfamiliar with the legislation or ADR processes may be referred to employer or industry organisations.
29. HREOC's Complaint Procedures Manual 2004, p.103, para 5.6.12-18.
30. For example, in relation to complainants or respondents with disabilities, specific attention is focused on ensuring parties can participate in the process with equal dignity.
31. Section 28 of HREOC Act states: 'The Commission shall, in endeavouring to effect a settlement of the matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of human rights and the need to protect those rights."
32. Raymond and Ball (2000), op.cit, p. 10.
33. Raymond and Ball (2000) op.cit, p.9.
34. A recent research project on HREOC's conciliation process indicated that the vast majority of participants (95%) understood what was happening in conciliation proceedings. Very few participants (4%) felt that the conciliator was biased against them and there was no significant difference in perceptions of bias between complainants and respondents. Raymond and Georgalis, 'Dispute resolution in the changing shadow of the law: a study of parties' views on the conciliation process in federal anti-discrimination Law', ADR Bulletin, Vol 6.Number 2, 2003 p. 33.
35. The above mentioned research project also found that 82 % of participants were satisfied with settlement terms and of this, 41% indicated they were highly satisfied. Complainants and respondents reported the same high levels of satisfaction with settlement terms. Ninety percent of participants also reported full compliance with conciliation settlement terms and a further 7% reported part compliance. Ibid, pp 34 - 35.