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Annual Report 2002-2003: Chapter 2

Human Rights and Equal Opportunity Commission: Annual Report 2002 - 2003

Chapter
2: Complaint Handling Section

Introduction

The Complaint Handling Section (CHS) is responsible
for investigating and conciliating complaints lodged under federal anti-discrimination
and human rights law. Accordingly, the CHS plays a key role in fulfilling
the Commission’s objective of delivering an Australian society in
which human rights are protected.

The general public is quite familiar with the work of
the CHS. Each year around 9,000 people from all over Australia contact
the Commission’s Complaint Information Service either by telephone,
TTY, post, e-mail or in person to obtain information about the law the
Commission administers and the complaint process. As many enquirers are
unsure which organisation can best assist them, the work of Complaint
Information Service staff frequently involves providing contact details
for organisations that can more appropriately deal with the enquirer’s
concerns. If the enquirer’s concern is one that the Commission can
deal with, the enquirer is provided with information on how to lodge a
complaint and with the necessary forms, or is directed to the Commission’s
website and ‘on-line’ complaint lodgement facility.

Once a complaint has been formally accepted by the Commission,
the CHS focuses on dealing with the matter in a timely and unbiased manner.
The CHS aims to allocate complaints to an officer for action within one
month of receipt. While at times allocation to an officer may take a little
longer than this, cases that need priority handling are dealt with straight
away. Investigation/Conciliation Officers manage complaints on behalf
of the President. The management of complaints may involve requesting
information and responses to complaints, taking statements, undertaking
site inspections, reviewing employment and medical records, facilitating
settlement negotiations and conducting conciliation conferences in various
locations including regional and remote areas of Australia. If a complaint
is resolved through conciliation the matter is closed. Many complaints
are resolved by conciliation as parties recognise the benefits of a process
where they have direct input into how the matter is resolved without having
to resort to more formal court proceedings.

Where a complaint of unlawful race, sex or disability
discrimination is unable to be resolved through a conciliation process
or where the President is of the view that the complaint is, for example,
lacking in substance or would be better dealt with by another organisation,
the complaint will be terminated. After that it is up to the complainant
to decide if they want to pursue the matter to court. Both parties to
a complaint are advised in writing of the President’s decision regarding
a complaint.

Complaints that allege a breach of human rights or discrimination
under the Human Rights and Equal Opportunity Commission Act 1986 cannot be taken to court. Complaints under this Act which have not been
declined and are unable to be resolved through conciliation may be subject
to a report to the Attorney-General and subsequent tabling in Parliament.

In 2002–03:

  • 1 236 complaints were received
  • 1 308 complaints were finalised
  • 32 percent of finalised complaints were conciliated
  • 84 percent of complaints were finalised within 12
    months of lodgement
  • 9 486 telephone/post/email/TTY/in person enquiries
    were received through the Complaint Information Service

Educating the community about the law and the
complaint process and providing training in investigation and conciliation
is also a major part of the CHS’s work. In 2002–03:

  • Approximately 172 organisations throughout
    all states and territories attended information sessions on the law
    and the complaint handling process run by the CHS.
  • 70 liaison/information sessions were undertaken
    by the CHS Complaint Information/Indigenous Liaison Officer.
  • Seven specialist investigation and/or conciliation
    skills training courses were conducted for CHS staff and staff from
    State and Territory Equal Opportunity Commissions, government and non-government
    agencies.
  • 12 skills training courses in administrative investigation were
    conducted by the CHS for public servants through the Australian Public
    Service Commission.

A diagram of the complaint
handling process is provided at Appendix 4.

Key performance indicators and goals

  • Timeliness. The section’s
    stated performance measure is for 80 percent of complaints to be finalised
    within 12 months of the date of receipt. In 2002–03 the CHS finalised
    84 percent of matters within 12 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 10.

  • Conciliation rate. The section’s stated performance measure is for 30 percent of
    finalised complaints to be conciliated. In 2002–03 the section
    achieved this goal with a 32 percent conciliation rate.

  • Customer satisfaction survey. The section’s stated performance measure is for 80 percent of
    parties to be satisfied with the complaint handling process. Data for
    the past year indicates that 84 percent of parties were satisfied with
    the service they received and 50 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

Since 1997 the CHS has sought feedback on the
complaint process from people lodging complaints (complainants) and people
responding to complaints (respondents). This feedback is obtained by means
of a Customer Satisfaction Survey which is undertaken with a random sample
of finalised complaints and predominately conducted by telephone interview.
Survey results for the period 1 July 2002 to 30 June 2003 indicate that:

  • Seventy-eight (78) percent of complainants
    and 91 percent of respondents felt that staff explained things in a
    way that was easy for them to understand.
  • Eighty (80) percent of complainants and 96
    percent of respondents felt that forms and correspondence from the Commission
    were easy to understand.
  • Fifty-six (56) percent of complainants and
    75 percent of respondents felt that the Commission dealt with the complaint
    in a timely manner.
  • Seventy-seven (77) percent of complainants
    and 95 percent of respondents described complaint handling staff as
    unbiased.

Overall satisfaction ratings are very similar
to results for the past three reporting years. As has been the case in
past years, ratings by respondents are generally more favourable than
ratings by complainants. This disparity in ratings may be due, in part,
to the higher proportion of survey responses received from parties where
the complaint has been terminated by the President. In this reporting
year, 65 percent of survey responses related to terminated complaints.
Where complaints have been terminated, for example on the ground that
they are lacking in substance, it is likely that complainants will be
more dissatisfied with the outcome of the complaint than respondents and
this dissatisfaction with outcome is also likely to influence general
complainant feedback on the complaint process.

Service charter

The CHS’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 2002–03 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 or the officer’s supervisor.

Access to services/community education

The Commission’s mission statement seeks
to promote and facilitate community access to its services and functions.
In meeting this challenge the CHS provides the following services:

  • The Complaint Infoline – 1300
    656 419
    . The Infoline, operating at a local call charge, is
    open Monday to 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. 8 335 enquirers throughout Australia
    utilised the Complaint Infoline this reporting year. Enquirers can also
    e-mail complaintsinfo@humanrights.gov.au.
    374 e-mail enquiries were received this year. Further information about
    the operation of the Complaints Information Service is provided later
    in this section.

  • CHS webpage – www.humanrights.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.

  • On-line complaint form. This
    service, which allows complaints to be lodged electronically, continues
    to be well utilised.

  • Concise Complaint Guide. This
    can be accessed and downloaded in 14 community languages.

  • Conciliation circuits. When
    required, conciliation officers travel throughout Australia to conduct
    face to face conciliation conferences. Along with the conferences conducted
    in the greater Sydney area, CHS officers conducted around 60 conferences
    in Victoria, 58 in South Australia, 36 in regional New South Wales,
    29 in Queensland, 23 in Western Australia, eight in the Australian Capital
    Territory and five in the Northern Territory.

  • Access working group. The
    CHS access working group has been in operation since 1999. The aim of
    the group is to improve the accessibility of the complaint handling
    service. This year the CHS information brochure for Indigenous clients
    was revised with input from the section’s Complaint Information/Indigenous
    Liaison Officer and the CHS community education presentation was updated.

  • Interpreter and translation services. In the past reporting year the section utilised a range of interpretation
    and translation services. The main language groups assisted in 2002–03
    were Persian, Mandarin and Arabic.

  • Community education and state liaison.
    The CHS provides information sessions concerning federal human rights
    and anti-discrimination law and the complaint process to community and
    stakeholder organisations throughout Australia. The CHS conducted presentations
    to staff and representatives from approximately 172 organisations/groups
    during this reporting year with presentations taking the form of informal
    and formal staff meetings and group presentations. Additionally, the
    CHS Complaint Information/Indigenous Liaison Officer undertook 70 liaison/information
    sessions during the year. The organisations visited included community
    legal centres, ethnic community centres, disability and Aboriginal legal
    services. The regions covered included Wagga Wagga, Cootamundra, Grafton
    and Lismore in New South Wales; Melbourne, Albury/Wodonga, Portland,
    Warrnambool and Geelong in Victoria; Launceston, Burnie and Hobart in
    Tasmania; Brisbane, Rockhampton, Townsville, Gympie, Hervey Bay, Maroochydore
    and Cairns in Queensland; Perth and Karratha in Western Australia; Darwin,
    Alice Springs and Tennant Creek in Northern Territory; Adelaide and
    Whyalla in South Australia and Canberra.

Arrangements with state agencies

In February 2003 the Commission discontinued its
formal referral arrangement with the Equal Opportunity Commission, Victoria
(EOCV) whereby Victorians who wanted to lodge a complaint under federal
legislation could lodge a complaint through the EOCV Referral Centre.
The number of complaints the Commission received directly from Victorians
had steadily increased to exceed the number lodged through the referral
service. The Commission considers this increase in direct lodgements may,
in part, be attributed to the accessibility of the Commission’s
on-line complaint lodgement service and the increased efficiency this
brings to the complaint handling process.

The arrangement the Commission now has with the
EOCV is the same as the arrangement it has with the Queensland, South
Australian, Northern Territory and Western Australian Equal Opportunity
Commissions whereby CHS staff utilise facilities at these agencies for
conciliation conferences, community education or training and display
of CHS publications.

Complainants from these states, along with residents
of Tasmania and the Australian Capital Territory can lodge complaints
under federal law directly with the Commission.

Election of jurisdiction

In the majority of cases complainants have a choice
to lodge complaints under state or federal anti-discrimination law. The
Commission has produced an Information Sheet about this process which
is available on the Commission website at: www.humanrights.gov.au/complaints_information/
guides/jurisdiction.html
.

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 these courses.
In 2002–03, one statutory investigation course was run in Sydney
for Commission staff and staff of anti-discrimination agencies in New
South Wales, South Australia and Queensland. Three statutory conciliation
courses were run; one in Sydney for Commission staff, one in Melbourne
for staff of the Victorian and South Australian Equal Opportunity Commissions
and one in Perth for staff of the Western Australian Commission. Variations
of the Commission’s courses in investigation and conciliation were
also run for staff of a state authority and staff of a large national
company.

The Commission has, for the second year, worked
in partnership with the Australian Public Service Commission to provide
a two day investigation training course for federal public servants. The
course, which is a variation of the Commission’s standard statutory
investigation training program, provides theory and skills that can be
applied to the investigation of internal complaints and breaches of the
Australian Public Service Code of Conduct. In the past year 12 courses
have been delivered in various locations around Australia including Perth,
Canberra, Melbourne, Darwin and Sydney. In-house courses have also been
conducted for staff of the Australian Customs Service, Department of Defence
and Centrelink.

In early 2003 the CHS developed a training module
on federal human rights and anti-discrimination law to be utilised by
the Australian Federal Police as part of its national Confidant Training
Program. A senior CHS officer also assisted in the initial presentation
of this module.

During this reporting year the Commission’s
Complaint Procedures Manual was revised and updated. The revised version
will be finalised and published in the latter half of 2003.

In mid 2003 the CHS commenced work on a cooperative
project with Job Watch Incorporated, Victoria, to produce a video on the
Commission’s conciliation process. It is hoped that this video,
which will be available in late 2003, will provide key information to
assist complainants, respondents and advocates to understand and prepare
for participation in a conciliation process.

In this reporting year six CHS officers continued
study towards Certificate IV accreditation in Assessment and Workplace
Training. Staff of the CHS also attended various seminars and training
courses relating to their work. These included four Australian Government
Solicitor Law Group Seminars, the Community Legal Centres National Conference
in Melbourne and the Sixth National Mediation Conference in Canberra.

During 2002–03 CHS staff presented three
papers on the Commission’s Alternative Dispute Resolution work at
the Sixth National Mediation Conference and in November a senior officer
presented a paper on recent developments in sex discrimination law at
the Second National Conference on Women in Science, Technology and Engineering
in Sydney. Two senior officers were also guest speakers at University
of Western Sydney courses in discrimination law and Alternative Dispute
Resolution.

Other work

In August 2002, the Commission’s CHS was
awarded a tender to provide training in investigation and conciliation
of complaints for staff of the Fiji Human Rights Commission as part of
the AusAID Pacific In-Country Training Project. This project involved
the development and facilitation of four training workshops in Fiji in
October and December 2002 and March and May 2003.

In September 2002 the CHS hosted a training placement
for two complaint handling staff from the South African Commission on
Gender Equality.

CHS staff also participated in providing information
about the Commission’s complaint handling work to delegations from
human rights institutions, parliamentary and government institutions and
non-government organisations from Mongolia, Japan, Vietnam, China, Indonesia
and the United Kingdom.

During this reporting year senior CHS staff represented
the Commission in discussions with the Attorney-General’s Department
and stakeholder groups in relation to the Australian Government’s
proposed Age Discrimination Bill.[1]


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 182 complaints
under the Racial Discrimination Act. The majority of these complaints
related to employment and the provision of goods and services. The CHS
finalised 258 complaints under this Act and 15 percent of these finalised
complaints were conciliated. Detailed statistics regarding complaints
under the Racial Discrimination Act are provided later in this Chapter.

Complaint of race discrimination and racial hatred
in employment

The complainant, who is of Chinese origin, was employed
by a private utilities company. He claimed that during his employment
he was subjected to racial abuse in that co-workers would mimic his accent
and make comments such as “Bloody Chin-Chong, the room smells
like dim sim”
and “Don’t hug the chin-chong,
he has got AIDS”
. The complainant also alleged that he was
treated less favourably because of his race in that, in contrast with
other employees, he was more frequently rostered to work at lunch time
and his views were not considered during his performance review.

The company denied that the complainant was abused because
of his race and noted that the individual respondents denied making the
alleged remarks. One of the individual respondents concurred that he may
have offended the complainant by responding on occasions in a purportedly
“Chinese” accent but he claimed this was done in the context
of a shared joke. The company also stated that the complainant did not
make any official complaint in relation to alleged racial remarks. The
company claimed that the other issues raised by the complainant were industrial
issues in dispute between the complainant and his supervisor and were
not related to the complainant’s race.

The complaint was resolved by conciliation. The complainant
agreed to withdraw his complaint and the respondent agreed to provide
the complainant with a written apology and a work reference and pay him
$5 000 in recognition of the embarrassment, humiliation and stress that
he may have endured during his employment.

Allegation of race discrimination by liquor store

The complainant, who is Aboriginal, alleged that staff
of a liquor store discriminated against him because of the colour of his
skin. He stated that he entered the store, had a look around and selected
a bottle of beer from the fridge. He claimed that when he approached the
counter to pay, the teller said “We want to search you” and the Manager said “I saw you put a can of drink into your
jumper”
. The complainant refused to allow the staff to search
him and told the Manager to call the police. The complainant claims that
when the police arrived, they strip searched him and then let him go because
they could not find any stolen goods on his person.

The respondent denied race discrimination and advised
that the complainant was suspected of theft because of his manner when
he was in the store. The respondent claimed that the situation deteriorated
because of the complainant’s initial reaction and his insistence
on being searched by the police.

The matter was resolved by conciliation with the complainant
accepting a written apology from the respondent company.

Complaint of race discrimination in employment

The complainant, a 16 year old Aboriginal girl, stated
that at the time of the alleged discrimination she had been employed on
a part-time basis by the respondent grocery company for approximately
four months. She claimed that on her final day of employment she logged
onto her cash register but only worked on the register for about 15 minutes
as she was instructed to work in another section. She claimed that when
she logged off her cash register she noticed that the register was out
by $50 and when she advised the Manager of this he said “what
have you done with the money”
. The complainant alleged that
these words, and the manner in which the Manager spoke to her, amounted
to an accusation that she had stolen the money. She claimed that she was
treated this way because of her Aboriginality and that another non-Aboriginal
employee who made a mistake with her cash register was not treated as
she was. The complainant resigned from her employment.

The respondent company denied that the alleged words
were said to the complainant and denied that the complainant was accused
of stealing the money or treated less favourably than other non-Aboriginal
employees. The manager of the store claimed that the complainant was asked
to explain why her cash register did not balance and that this was standard
practice.

The matter was resolved through telephone discussions
with the parties, with the respondent company agreeing to pay the complaint
$200 in general damages.

Allegation of racial hatred by neighbour

The complainant is of Vietnamese background and is a
tenant in public housing. The complainant alleged that since 1998 she
has been subjected to racial hatred by her neighbour. The alleged action
of the neighbour included saying “Go back to Vietnam”,
calling her an animal, mimicking her accent and making rude gestures to
her. The complainant claimed that despite complaints to the department
about her neighbour the department failed to take any action to resolve
the matter. The complainant alleged that her racial background was also
a factor in the department’s failure to resolve her complaint.

While the neighbour denied that she had made the alleged
comments or done the alleged acts, she agreed that there have been ongoing
disputes between her and the complainant. The department denied that it
treated the complainant less favourably because of her race. The department
also advised that the complainant’s concerns were investigated but
the investigation was discontinued as the allegations could not be substantiated.

During the Commission’s inquiry process the department
approved the neighbour’s application for transfer and the complainant
agreed to resolve her complaint against her neighbour on that basis. The
complaint against the department was resolved on the basis of the department’s
agreement that ‘racial hatred’ would be a factor for consideration
in the criteria for housing transfer.

Alleged race discrimination and racial hatred in employment

The complainant, who was originally from Serbia, was
employed as a van driver for an Australian Government statutory authority.
The complainant alleged that his supervisor made offensive comments about
Serbians to him and to others while he was present. For example, the supervisor
is alleged to have made comments such as “He is a Serb and Serbs
make ethnic cleansing, He might kill you”
. The complainant
claimed that the company was slow to investigate his internal complaint
and that he was victimised for lodging the complaint. A co-worker provided
evidence to support the complainant’s claim that offensive comments
about Serbs had been made in the workplace.

The individual respondent denied making the alleged
comments but agreed that he had asked questions about the political situation
in Serbia. The individual respondent said that he was an immigrant himself
and would not make offensive comments about other people’s racial
background. While the company indicated that it had extensive EEO and
harassment policies, it noted that it had no record of the individual
respondent having received training in EEO issues.

The complaint was resolved at a conciliation conference.
The company had already transferred the complainant to a job he enjoyed
where he no longer had contact with the individual respondent. The respondent
company assured the complainant that his career had not been compromised
in any way and that steps would be taken to ensure the confidentiality
of his complaints. The company also provided the complainant with acknowledgement
of the distress he had suffered.

Complaint of race discrimination against Indigenous
employee

The complainant, who is Indigenous, claimed that on
26 January when he attended work, he saw a notice on the staff notice
board entitled ‘Aboriginal application for employment’. He
claimed that the mock application form reinforced negative stereotypes
about Aboriginal people. For example, in the section entitled ‘Income’
the following was written “theft-unemployment-armed robbery”
and under the section entitled ‘Abilities’ the following was
written “rapist, VD spreader, pub fighter”. The complainant
said that another copy of the document was found in the storeroom and
when he told management about the incidents he was told not to worry about
it.

The company claimed that it did not formally investigate
the incident as the area where the document was posted was accessible
to all employees and contractors. The company said, however, that they
placed a notice on all notice boards stating that the document was racist
and unacceptable. The notice further stated that if an employee was found
to be responsible they would be banned from attending the site. The company
confirmed that another copy of the document was found and immediately
destroyed. The company claimed that they reacted appropriately and took
all reasonable steps to address the incident when it was brought to their
attention.

The complaint was resolved by conciliation with the
complainant agreeing to withdraw his complaint on the basis that the company
would revise its EEO policies and procedures, appoint Harassment Contact
Officers, implement cultural awareness training for all staff and provide
the complainant with a statement of regret.

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 380
complaints under the Sex Discrimination Act. The large majority of complaints
related to employment and 35 percent of the complaints alleged pregnancy
discrimination. The Commission finalised 395 complaints under this Act
and 43 percent of these finalised complaints were conciliated. Detailed
statistics regarding complaints under the Sex Discrimination Act are provided
later in this Chapter.

Alleged discrimination in employment because of pregnancy

The complainant claimed that she commenced full-time
employment as an office administrator with a small training consultancy
company in September 2001. She claimed that three months later she advised
the company director that she was pregnant and was suffering from pregnancy
related illness. She alleged that when advised of this the Director said
words to the effect: “Look, this will jeopardise your position”.
The complainant claimed that a few weeks later when she advised the Director
that she was again ill the Director said “That’s it. I
have had enough. Pack your stuff and go”
and terminated her
employment. The complainant claimed that the company signed a separation
certificate which indicated that her employment was terminated due to
her pregnancy and frequent illness.

The company denied that the complainant was discriminated
against on the basis of her pregnancy and associated illness. The company
stated that it had accommodated the complainant’s medical appointments
and had allowed her to take sick leave. The company denied that the complainant’s
employment was terminated but rather claimed that the complainant resigned.
The company stated that the details on the separation certificate had
been completed by the complainant prior to signature by the company.

The complaint was resolved by conciliation with the
company agreeing to provide the complainant with written and verbal references
and an ex-gratia payment of $6 000.

Complaint of sexual harassment by co-worker

The complainant is employed by the respondent company
in its catering section. The complainant alleged that she was sexually
harassed by the chef during her employment. Specifically she alleged that
the chef told sexual jokes, asked her sexual questions such as would she
‘bark doggy style’ during sex and touched her in a sexual
way. The complainant claimed that the chef continued to act this way despite
her asking him to stop the behaviour. The complainant stated that she
initially complained to her supervisor but no action was taken so she
approached her manager who brought the matter to the attention of the
human resources section. The complainant alleged that the company did
not deal with her concerns appropriately in that initially no action was
taken when she complained to her supervisor and while the chef was subsequently
counselled for his behaviour she was still required to work with him.
The complainant also claimed that other staff made jokes about her allegations.

As the complainant was still employed with the company,
a conciliation conference was held within one month of the complaint being
lodged with the Commission. At this conference the company agreed that
the complainant had been sexually harassed and stated that the chef had
been counselled about his behaviour and given a final warning. The company
denied that it was vicariously liable for the acts of its employee.

The complaint was resolved with an agreement that the
complainant would withdraw her complaint in return for the company providing
an undertaking that she would not have to work with the chef, reaccrediting
annual leave that she had taken as a result of the alleged incident and
paying her $1 000 calculated on the basis of sick leave taken as a result
of the alleged incident.

Allegation of sex and pregnancy discrimination in
employment

The complainant was employed with the respondent insurance
company as a full-time Assistant Account Executive. The complainant claimed
that the company had advised her that part-time employment would be available
when she returned from maternity leave. The complainant alleged that she
tried to negotiate part-time work in the lead-up to her return to work
but her request was denied and she was therefore forced to resign.

The company claimed that a high level of personal care
is required to ensure clients are properly managed and therefore employment
is only on a full-time or permanent job-share basis. The company claimed
that it attempted to arrange job-sharing for the complainant with another
staff member, with no success. The company stated that it offered the
complainant four days work per week for a six month period but she rejected
this offer.

The complaint was resolved at conciliation with the
company agreeing to withdraw her complaint in return for payment of $5
250 compensation and a statement of regret.

Complaint of sex discrimination and sexual harassment
in employment

The complainant was employed in an administrative position
with a manufacturing company. The complainant alleged that three junior
male employees displayed pornographic magazines, used vulgar language
accompanied by sexual gestures such as imitating masturbation, made comments
about pornographic videos and discussed the purchase of sex aids. The
complainant claimed that these male workers also challenged her authority
as a manager. The complainant claimed she complained about this behaviour
but the company took inappropriate or inadequate disciplinary action against
these employees. The complainant alleged that after she complained she
was demoted and criticised for her work performance and eventually her
employment was terminated.

The complaint was resolved by conciliation with the
complainant agreeing to withdraw her complaint against all respondents
in return for payment of $10 000 compensation, provision of a statement
of service and a letter from the company expressing regret for any negative
experiences during her employment.

Allegation of discrimination on the grounds of sex
and pregnancy

The complainant was employed as a clerk on a part-time/job-share
basis with a medium-sized manufacturing company. The complainant alleged
that her manager harassed her during her pregnancy in that he was hostile
towards her and made inappropriate comments such as telling her that being
pregnant would be a burden to him and her job-share partner and making
comments about how much she ate. The complainant claimed that during her
pregnancy she requested a change to the days she worked but this was not
accommodated by the company.

The complainant alleged that when she was due to return
to work she contacted the company requesting a 20-minute period each day
to express milk and a suitable place in which she could do so. She claimed
that she was advised that any time spent expressing milk would be not
be counted as work time and that she could only express milk in the women’s
toilets. The complainant claimed that the women’s toilets were infrequently
cleaned and unhygienic.

The company denied that the complainant was harassed
because of her pregnancy and the manager denied making the comments attributed
to him. The company stated that the complainant’s request to change
her work days was refused as the changes were not acceptable to her job-share
partner. It was agreed that the complainant was advised that she could
express milk in the women’s toilet and that the twenty minutes a
day spent expressing milk would not be counted as work time.

The matter was resolved through a conciliation process.
The respondent agreed to pay the complainant $5 300 general damages, review
its policies with specific attention to sex and pregnancy discrimination
and arrange EEO training for all managers.

Complaint of sexual harassment and victimisation

The complainant was employed as a sales representative
with a building company. The complainant alleged that from the time she
commenced employment in late 1999 the sales manager subjected her to comments
and gestures that were offensive and sexual in nature and made unwelcome
advances and requests for sexual favours. The alleged acts of the sales
manager included approaching her from behind and simulating sexual acts
and regularly making comments of a sexual nature such as telling her she
had “nice tits”. The complainant also claimed that the sales
manager said salary would be decreased and suggested that if she wanted
to earn more money she could perform sexual favours. The complainant alleged
that when the manager became aware of her plans to marry; his behaviour
became even more offensive, humiliating and intimidating. The complainant
claimed that when she made an internal complaint to her employer she was
victimised in that she was told she would be moved to another work location.
The complainant alleged that her employer took no effective steps to investigate
or resolve her complaint and that this inaction led to the Manager’s
continued harassment and victimisation of her. The complainant stated
she was unable to continue working and lodged a worker’s compensation
claim.

The company stated that it had conducted an internal
investigation and the Manager admitted to making some comments of a sexual
nature but denied that these constituted sexual harassment. The company
claimed it took all reasonable steps to deal with the complainant’s
concerns although it had no formal sexual harassment policy in place.
The company claimed that the change in the complainant’s pay structure
was due to a new commission structure and that the complainant was moved
to another work location because of falling demand at the location where
she was employed.

The complaint was resolved by conciliation. The complainant
did not wish to return to work with the company and agreed to withdraw
her complaint in return for payment of $50 000 in general damages, a statement
of service and an apology.

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 that 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 493
complaints under the Disability Discrimination Act. The majority of these
complaints concerned employment and the provision of goods, services and
facilities. The Commission finalised 463 complaints under this Act and
41 percent of these finalised complaints were conciliated. Detailed statistics
regarding complaints under the Disability Discrimination Act are provided
later in this Chapter.

Complaint of disability discrimination in employment

The complainant had been employed as a warehouse supervisor
for some years with the respondent company. The complainant suffered a
workplace injury which resulted in impairment to his spine and leg. The
complainant alleged that his employment was terminated after the injury
because his employer felt he was unable to safely perform the inherent
requirements of his position. The complainant disputed that he was unable
to perform his duties safely and claimed the employer had not asked him
whether there was any reasonable adjustment that would assist him perform
his duties. The complainant noted that he had evidence that he could improve
his mobility with a foot brace and he also claimed that the employer had
not raised any concerns about his performance or mobility prior to terminating
his employment.

The respondent company claimed that the complainant
was unsteady when he walked and stated it had genuine concerns that the
complainant could fall or trip in the warehouse, thus endangering himself
and fellow workers.
The complaint was resolved through a conciliation process with the employer
agreeing to reinstate the complainant and pay him $52 000 in compensation
for lost wages, superannuation and legal costs.

Alleged discrimination in education

The complainant’s daughter has Juvenile Diabetes
which results in her experiencing hypoglycaemia (low blood sugar) which
is addressed by an intake of food or juice to increase her blood sugar
levels. The complainant alleged that her daughter’s school had discriminated
against her daughter in that it had refused to allow hypo boxes, which
contain food and juice, to be placed in the classroom. The complainant
also alleged that she was refused permission to speak with staff of the
school canteen to inform them of her daughter’s specific food requirements.
The school acknowledged that it was reluctant to place hypo boxes in all
classrooms due to concerns that this may disrupt the other students. The
school also stated that it had refused to allow the complainant to speak
directly to canteen staff because they are mainly volunteers who change
regularly. The school advised that it had spoken to the canteen manager,
who is the only paid and regular staff member at the canteen, and that
a photo of the complainant’s daughter had been placed in the canteen
so all volunteers could encourage her to choose appropriate food and drink.

The complaint was resolved by conciliation with the
school agreeing to arrange for a diabetes educator to present information
to staff and develop to a specific management plan for the complainant’s
daughter. The school also agreed that it would endeavor to ensure that
the complainant’s daughter is not excluded from any program, activity
or service provided by the school due to her diabetes.

Complaint regarding access to website

The complainant has a vision impairment. He claimed
that the respondent government department’s website was not accessible
to him because of its format. The complainant advised that he was willing
to withdraw his complaint if the respondent modified the website so that
it complied with the World Wide Web Consortium’s Web Content Accessibility
Guidelines either directly or through an accessible alternative. The complainant’s
settlement proposal was sent to the respondent department for its consideration.

The department responded with a draft website accessibility
action plan. The plan details the actions the department will take to
provide access to its materials in alternative formats. In the interim
the complainant was also provided with text versions of all the documents
which he required from the website. The complainant advised the Commission
that he was satisfied with this outcome.

Allegation of discrimination by employee with a vision
disability

The complainant, who has a vision impairment, had worked
for the respondent Australian Government authority for approximately 12
years. He claimed that his employer had accommodated his disability for
six years by providing a large screen computer for his exclusive use.
The complainant stated that when some of his office’s functions
were transferred to another city he and his co-workers were assigned new
duties that required a different computer program. The complainant stated
that the images from the new program could not be magnified and therefore
the effect of his large screen was lost. As a result, he was unable to
perform computer based duties and was provided with what he regarded as
‘menial’ clerical work. He alleged that his colleagues continued
to do overtime on a regular basis but he was denied the opportunity to
earn overtime and do higher duties as he could not use the computer. The
complainant stated that the problem would be resolved if a new computer
screen was purchased but he claimed the respondent was reluctant to spend
$10 000 on a new screen.

The respondent agreed that the person who designed the
software had been unaware of the complainant’s disability or his
specific needs. The respondent said that the problem was being addressed
but it was not an easy matter to solve. The respondent agreed that the
complainant had been on alternate duties for some eight months when the
complaint was lodged.

The complaint was resolved by conciliation with the
respondent agreeing to purchase a compatible computer screen for the complainant
and provide him with additional support and training to address any disadvantage
to his career. The respondent also provided the complainant with a statement
of regret.

Complaint of discrimination in higher education

The complainant, who is blind, stated that in 2001 he
enrolled in a business studies course as a distance student. The complainant
claimed that at the time of enrolment the university’s Disability
Liaison Officer agreed that his course material would be provided in a
format compatible with his JAWS screen reader. He claimed that none of
the provided course materials were compatible with JAWS. The complainant
stated that he attended two meetings at the University to outline the
difficulties he was experiencing and that the University gave assurances
that the problems would be addressed. He claimed however that at the end
of 2001 he had not been able to complete any course work and that while
he enrolled again in 2002 he later withdrew because he had still not received
any material that was compatible with JAWS.

The University acknowledged that the complainant may,
at the outset, have been given assurances about material being translated
into a format compatible with JAWS which could not be fulfilled when translation
difficulties emerged. The University noted that it had not anticipated
the difficulties involved in translating materials for the complainant’s
course which involved translating tables and graphs as well as text.

The complaint was resolved by conciliation with the
University agreeing to pay the complainant $15 000 compensation.

Access to premises, goods, services and facilities
on holiday

The complainant has a physical disability and uses a
wheelchair. She stated that when booking a resort holiday for herself
and her family through a booking agent she sought, and was given assurances,
that the resort apartment was wheelchair accessible. She claimed that
when she arrived at the resort the apartment had a step at the entrance
and after complaining, a wooden ramp was placed at the door and two pieces
of wood were placed between the space from the ramp to the door frame.
The complainant alleged that the temporary entrance ramp did not comply
with Australian Standards and the backdoor of the apartment and bathroom
were also not wheelchair accessible.

The resort claimed that when the booking was made the
request was for a ‘wheelchair friendly room’ and that numerous
wheelchair users had stayed in the apartment where the complainant was
located. The resort claimed that if the booking agent had made it clear
that the complainant wished to be totally independent, they would not
have accepted the booking.

The complaint was resolved through a conciliation process
with the respondent agreeing to provide the complainant with an apology,
purchase a portable ramp which complies with Australian Standards and
pay the complainant $7 000 compensation.

Human Rights and 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 this 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
  • 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 age, religion, sexual preference,
trade union activity and criminal record.

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 the findings
to the Attorney-General for tabling in Parliament. The Commission’s
Legal Services assist the President in this part of the process. Further
details of this process are provided in the Legal Services Section, Chapter
3 of this report.

In this reporting year, the Commission received 181
complaints under the Human Rights and Equal Opportunity Commission Act.
The majority of these complaints concerned alleged breaches of the International
Covenant on Civil and Political Rights
and discrimination in employment
based on criminal record or age. The Commission finalised 192 complaints
under this Act. Ten percent of these finalised complaints were conciliated
and six percent were referred for reporting. Detailed statistics regarding
complaints under the Human Rights and Equal Opportunity Commission Act
are provided later in this Chapter.

Alleged discrimination in employment on the ground
of criminal record

The complainant worked for a freight company as a fork
lift driver. The complainant advised that he had a criminal record including
convictions for ‘entering and stealing’. The complainant alleged
that because of his criminal record, his employer had insinuated on a
number of occasions that the complainant was responsible for freight which
had gone missing at work.

The respondent denied discriminating against the complainant
on the basis of his criminal record. The company said that it had never
insinuated that the complainant was responsible for missing freight and
noted that it gave the complainant permanent employment despite his criminal
record.

The complaint was resolved by conciliation. The complainant
did not wish to return to employment with the company and the parties
agreed that the complainant would withdraw his complaint in return for
payment of six weeks wages.

Complaint of discrimination in employment on the ground
of sexual preference and disability

The complainant alleged that he was discriminated against,
harassed and victimised by staff at the school where he worked as a teacher.
He claimed that staff subjected him to public taunts about wearing women’s
clothes and pink clothing. The complainant claimed that management did
not effectively deal with the incidents and he developed a reactive depression
causing him to take time off work. The less favourable treatment he claimed
to have experienced on his return to work included being subjected to
numerous comments about his illness, pressured to resign from his position
as subject coordinator, excluded from staff appraisal and denied information
about the class timetable. The complainant also alleged that his teaching
load was increased and his personal and professional belongings were moved
to another office where his name and the phrase “takes it up
the arse”
had been written on the whiteboard.

The school claimed that any actions of staff were in
the context of a joke and that the school was very concerned and supportive
of the complainant in relation to his return to work. The school claimed
that the depression the complainant suffered predated this work incident
and was related to another health problem. The respondent stated that
it was the complainant who suggested that he step down from the role of
subject coordinator and the school denied that the complainant was excluded
from staff appraisal or denied information about the timetable. The school
claimed that the increase in the complainant’s teaching load was
the result of the move from subject coordinator to normal teaching duties
and that the complainant was required to move to a new office because
of changes in accommodation arrangements for teaching staff.

The complaint was resolved through a conciliation process.
The parties agreed that the complainant would withdraw his complaint in
return for apologies from the school and staff members involved in the
incidents, an undertaking by the school to discipline individuals involved
in the incidents and payment of $11 000 compensation. The complainant
agreed to return to full-time work at the school.

Allegation of age discrimination in employment

The complainant alleged that she was advised by her
supervisor at the nursing home where she worked that she was to be dismissed
from her position as a kitchen hand as they wanted an older and more mature
person for the job. The complainant stated that she was informed that
this decision was based on complaints from the cook about her work performance.
She also claimed that her supervisor had previously made comments such
as “it is not a young person’s job”. The complainant
claimed that while she was advised that she could keep her non-kitchen
hand shifts she decided to leave her employment.

The respondent claimed that the complainant was not
dismissed but resigned. The respondent stated that the complainant’s
supervisor was endeavouring to resolve a dispute between the complainant
and another employee and did not mean to discriminate against or upset
the complainant. The respondent advised that it had developed an improvement
plan regarding age discrimination in the workplace that was to be implemented
in the near future.

The complaint was resolved by conciliation, the parties
agreeing that the complainant would withdraw her complaint in return for
a written apology and $4 000 compensation.

Complaint of discrimination in employment on the ground
of criminal record

The complainant worked as a cleaner at a large public
facility and had previously been subjected to a criminal record check
in order to obtain his security pass. Some five months after commencing
work security procedures at the facility were reviewed and upgraded and
employees underwent a further check of their criminal history. The complainant
alleged that he was deemed a security risk and ordered off the work site
due to his criminal record. The complainant claimed that this was unfair
as his offences were in relation to traffic infringements that had occurred
ten years ago.

Prior to the Commission receiving a response from the
respondent company, the complaint was resolved with the company agreeing
to issue the complainant with a security pass which would allow him to
return to work at the facility.

Allegation of discrimination in employment because
of trade union activity

The complainant was employed with a large statutory
authority and was a union member. She alleged that she was unfairly counselled
about organising training without proper authorisation. She also alleged
that when she approached her manager to express an interest in promotion
opportunities he said “do you think that I would like anyone
on my Management Team who runs to the union”
. The complainant
stated that she lodged an internal grievance with her employer but there
was no proper investigation of the matter.

The authority denied that it had discriminated against
the complainant on the basis of her trade union activity. It claimed that
the complainant was counselled because she had breached its Code of Ethics.
In addition, the respondent claimed that the complainant was unsuccessful
in applying for a promotion because, in terms of merit, the other candidate
had greater claims for the position. The authority also denied that the
complainant’s manager had made the alleged comments to the complainant.

In the middle of the Commission’s investigation
the complainant advised that she had resolved the complaint directly with
the respondent and the terms of settlement included acceptance of a separation
package.

Complaint of discrimination on the ground of age

The complainant, who was employed by an Australian Government
department, alleged that for a number of years he had been subjected to
offensive comments about his age. He claimed for example that he was called
‘old’ and ‘decrepit’ and was subjected to a betting
game about his age. The complainant claimed that he developed a significant
psychiatric condition because of this treatment and was later dismissed
from employment.

The department denied that the complainant had been
discriminated against on the basis of his age. The department stated that
the first time the allegations of harassment came to its attention was
in late 2001 when the complainant requested a transfer. The department
claimed that it investigated the alleged incidents and determined that
any such conduct had ceased in mid 2001 and that most of the comments
were ‘innocent banter’ and ‘friendly jibes’. The
department advised that it ordered its employees to cease any jokes or
comments that could be construed as harassment. The department stated
that the complainant was dismissed from employment as he was determined
to be medically unfit due to a long-standing medical condition unrelated
to the issues in his complaint.

The complaint was resolved through a conciliation process
with the parties agreeing that the complainant would withdraw his complaint
and the respondent would pay the complainant $15 000 compensation.


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 note, when comparing complaint data
between different agencies and across reporting years, that there may
be variations in the way the data is counted and collected. Some additional
information explaining the Commission’s approach to statistical
reporting is footnoted. Further clarification about complaint statistics
can be obtained by contacting the CHS.

Summary

The overall number of complaints received and finalised
in 2002–03 is generally similar to the numbers received and finalised
in the previous reporting year.

In 2002–03, 40 percent of complaints were lodged
under the Disability Discrimination Act, 31 percent under the Sex Discrimination
Act, 15 percent under the Racial Discrimination Act and, 14 percent under
the Human Rights and Equal Opportunity Commission Act.

The number of complaints received and finalised under
the Racial Discrimination Act in 2002–03 are very similar to the
figures for the last reporting year. As in the previous year, employment
and the provision of goods and services remain the main areas of complaint.

In comparison with the previous reporting year there
has been a slight decrease (four percent) in the number of complaints
lodged under the Sex Discrimination Act. While the grounds and areas of
complaint are generally similar across the two reporting years, there
was a further increase in the percentage of complaints alleging pregnancy
discrimination (five percent). This means that over the past three years
there has been a 19 percent increase in such complaints. The Commission
is of the view that this increase in complaints can, in part, be attributed
to increased public awareness resulting from the Commission’s ongoing
policy work on pregnancy related issues.

Complaints under the Disability Discrimination Act are
the largest ground of complaint and in this reporting year there was an
increase in the number of complaints received (nine percent). The areas
of complaint are generally similar to the last reporting year with complaints
about employment and provision of goods, services and facilities dominating.

Complaints under Human Rights and Equal Opportunity
Commission Act have decreased by 23 percent compared to the previous year.
This decrease can, in part, be attributed to the associated decrease in
complaints received about conditions and treatment in immigration detention
which is reflective of the decreased number of detainees in Australia
during the past reporting year. This decrease in complaints may also be
the result of complaints of discrimination on the grounds of sexual preference,
religion, trade union activity and age being taken under state or territory
legislation where enforceable remedies are available.

Of all the complaints finalised in this reporting year,
32 percent were conciliated which is slightly above the conciliation rate
for the previous year. There was also a slight increase in the conciliation
success rate with 64 percent of matters where conciliation was attempted
being successfully resolved.

In this reporting year complaints under the Sex Discrimination
Act had the highest conciliation rate (43 percent) and a high conciliation
success rate (61 percent). Complaints under the Disability Discrimination
Act had a conciliation rate of 41 percent and the highest conciliation
success rate (73 percent).

Complaints under the Racial Discrimination Act had a
conciliation rate of 15 percent and a success rate of 41 percent. As noted
in last year’s report, lower resolution rates for race discrimination
matters appear to be linked with difficulties complainants often have
in demonstrating a link between their race and the alleged less favourable
treatment and the associated limited case precedent in this area. While
only a small number of HREOCA complaints were resolved by conciliation
(10 percent), 61 percent of matters where conciliation was attempted were
resolved. The overall low conciliation rate in relation to HREOCA matters
can be attributed to the fact that many human rights matters are declined
as they do not constitute a breach of human rights as defined by the Act.

HREOCA complaints that relate to alleged breaches of
human rights by the Commonwealth generally have a low conciliation rate
(four percent in this reporting year) as they often concern broad policy
issues which are difficult to resolve at the individual complainant level.
However, HREOCA complaints regarding employment under the International
Labour Organisations Convention (ILO 111) have a much higher conciliation
success rate (13 percent in this reporting year).

Information on the geographical location, sex and ethnicity
of complainants is provided in Tables 6, 8 and 9 below. Demographic data
voluntarily provided by complainants at the commencement of the complaint
process[2] provides additional information
on complainants. This data, which is similar to data obtained in the last
reporting year, indicates that many complainants (28 percent) knew about
the Commission prior to lodging their complaint and the main sources of
referral were legal centres/private solicitors and family/friends. The
majority of complainants (64 percent) indicated that their main source
of income at the time of the alleged act was from full, part-time or casual
employment. Approximately 37 percent of complainants advised at the beginning
of the complaint process that they were represented. [3] The main forms of representation were privately funded solicitors (27
percent) and representation by a friend, family member or support person
(24 percent).

Data collected on respondent categories indicates that
in the last reporting year approximately 56 percent of complaints were
against private enterprise, 18 percent were against Australian Government
departments/statutory authorities and 10 percent were against state departments/statutory
authorities. The next main respondent categories were educational institutions
(six percent), clubs and incorporated associations (three percent) and
local government (three percent).


Complaint Information Service

Table 1: Telephone, TTY, e-mail, in-person and written enquiries received
Enquiry type
Total
Telephone 8 319
TTY 16
E-mail 374
In-person 128
Written 631
Total 9 468
Table 2: Enquiries received by issue*
Issue
Total
Race 748
Race - racial hatred 351
Sex - direct 430
Sexual harassment 679
Sex - marital status, family responsibilities,
parental status, breastfeeding
235
Sex - pregnancy 457
Sexual preference, transgender, homosexuality,
lawful sexual activity
152
Disability - impairment 1 252
Disability - HIV/AIDS, hepatitis 26
Disability - workers compensation 150
Disability - mental health 376
Disability - intellectual disability, learning
disability
110
Disability - maltreatment, negligence 42
Disability - physical feature 46
Age - too young 40
Age - too old 198
Age - compulsory retirement 7
Criminal record, criminal conviction 238
Political opinion 21
Religion, religious organisations 236
Employment - personality conflicts, favouritism 310
Employment - union, industrial activity 132
Employment - unfair dismissal, other industrial
issues
532
Employment - workplace bullying 699
Human rights - children 107
Human rights - civil, political, economic,
social
319
Immigration - detention centres 59
Immigration - visas 136
Prisons, prisoners 87
Police 88
Court - Family Court 142
Court - other law matters 112
Privacy - data protection 105
Neighbourhood disputes 75
Advertising 12
Local government - administration 51
State government - administration 141
Federal government - administration 195
Other 471
Total
9 567

* One enquiry may have multiple issues.

Table 3: Enquiries received by state of origin
State of origin
Total Percentage (%)
New South Wales 4 412 46
Victoria 1 229 13
South Australia 560 6
Western Australia 445 5
Queensland 1 788 19
Australian Capital Territory 209 2
Tasmania 171 2
Northern Territory 170 2
Unknown/overseas 484 5
Total 9 468 100

Complaints overview

Table 4: National complaints received and finalised over the past two years
  2001-02 2002-03
Received 1 271 1 236
Finalised 1 298 1 308
Table 5: Outcomes of national complaints finalised over the past two years
  2001-02 (percent) 2002-03 (percent)
Terminated/declined 55 56
Conciliated 30 32
Withdrawn 14 11
Reported (Human Rights & Equal Opportunity
Commission Act only)
1 1
Table 6: State of origin of complainant at time of lodgement
State of origin
Total Percentage (%)
New South Wales 525 42
Victoria 256 21
South Australia 164 13
Western Australia 85 7
Queensland 132 11
Australian Capital Territory 25 2
Tasmania 11 1
Northern Territory 31 2
Unknown/overseas 7 1
Total 1 236 100
Table 7: Complaints received and finalised by Act
Act
Received Finalised
Racial Discrimination Act (RDA) 182 258
Sex Discrimination Act (SDA) 380 395
Disability Discrimination Act (DDA) 493 463
Human Rights and Equal Opportunity Commission
Act (HREOCA)
181 192
Total 1 236 1 308
Chart 1: Complaints received by Act

40% Disability Discrimination Act, 31% Sex Discrimination Act, 15% Racial Discrimination Act, 14% Human Rights and Equal Opportunity Commission Act

Table 8: Complaints received by category of complainant by Act
  RDA SDA DDA HREOCA Total
Individual male 129 49 266 127 571
Individual female 50 331 224 47 652
Couple or family 2 - 3 1 6
On others behalf - - - - -
Organisation 1 - - 4 5
Community, other group - - - 2 2
Total 182 380 493 181 1236
Table 9: Complaints received by ethnicity of complainant by Act
  RDA SDA DDA HREOCA Total
Non-English speaking background 105 96 113 98 412
Aboriginal and Torres Strait Islander 51 11 10 3 75
English speaking background 26 273 370 80 749
Total 182 380 493 181 1236
Table 10: Time from receipt to finalisation for complaints finalised during 2002-03
  RDA
(%)
SDA
(%)
DDA
(%)
HREOCA
(%)
Cumulative Total
(%)
0 - 3 months 12 16 17 31 18
3 - 6 months 21 25 26 25 42
6 - 9 months 20 31 33 19 70
9 - 12 months 10 17 15 11 84
More than 12 months 11 10 8 10 94
More than 18 months 1 1 1 4 95
More than 24 months 25* - - - 100

* It is noted that 23 percent of the racial discrimination
matters over 24 months old were part of a large group of complaints that had
been on hold awaiting decisions of a state administrative body. If these matters
are subtracted from the cumulative total, 98 percent of complaints were finalised
within 12 months and 100 percent of complaints were finalised within 18 months.

Racial Discrimination Act

Table 11: Racial Discrimination Act* - complaints received and finalised
  Total
Received 182
Finalised 258

* Includes complaints lodged under the racial hatred provisions.

Table 12: Racial Discrimination Act - complaints received by ground
Racial Discrimination Act Total Percentage (%)
Association 7 2
Colour 30 8
National origin, extraction 57 16
Ethnic origin 102 29
Descent 2 1
Race 107 30
Victimisation 6 2
Racial hatred 41 12
Total* 352 100

* One complaint may have multiple grounds.

Table 13: Racial Discrimination Act - complaints received by area
Racial Discrimination Act Total Percentage (%)
Right to equality before the law 6 2
Access to places and facilities 6 2
Land, housing, other accommodation 16 5
Provision of goods and services 85 24
Right to join trade unions - -
Employment 149 42
Advertisements - -
Education 3 1
Incitement to unlawful acts 4 1
Other - section 9 36 10
Racial hatred 47 13
Total* 352 100

* An area is recorded for each ground, so one complaint may
have multiple and different areas.

Table 14: Racial Discrimination Act - outcomes of finalised complaints
Racial Discrimination Act
Total
Terminated 195
Not unlawful 8
More than 12 months old 4
Trivial, vexatious, frivolous, misconceived,
lacking in substance
88
Adequately dealt with already 52
More appropriate remedy available 1
Subject matter of public importance -
No reasonable prospect of conciliation 42
Withdrawn 18
Withdrawn, does not wish to pursue, advised
the Commission
16
Withdrawn, does not wish to pursue, settled
outside the Commission
2
Conciliated 38
Administrative closure* 7
Total 258

* Not an aggrieved party or state complaint previously lodged.

Chart 2: Racial Discrimination Act - outcomes of finalised complaints

61% Terminated - other reason, 17% Terminated - no reasonable prospect of reconciliation, 15% Conciliated, 7% Withdrawn

Table 15: Racial hatred complaints received and finalised
  Total
Received 34
Finalised 41
Table 16: Racial hatred complaints received by sub-area
Racial Discrimination Act
Total Percentage (%)
Media 12 35
Disputes between neighbours 11 32
Personal conflict - -
Employment 1 3
Racist propaganda - -
Entertainment - -
Sport - -
Public debate - -
Other* 10 30
Total** 34 100

* This category includes complaints in the area of education,
provision of goods and services and comments made by people in the street and
in passing vehicles.

** One sub-area is recorded for each racial hatred complaint
received.

Table 17: Outcomes of finalised racial hatred complaints
Racial Discrimination Act
Total
Terminated 27
Not unlawful 6
More than 12 months old 1
Trivial, vexatious, frivolous, misconceived,
lacking in substance
10
Adequately dealt with already -
More appropriate remedy available -
Subject matter of public importance -
No reasonable prospect of conciliation 10
Withdrawn 6
Withdrawn, does not wish to pursue, advised
the Commission
6
Withdrawn, does not wish to pursue, settled
outside the Commission
-
Conciliated 7
Administrative closure* 1
Total 41

* Not an aggrieved party or state complaint previously lodged.

Chart 3: Outcomes of finalised racial hatred complaints

42.5% Terminated - other reason, 25% Terminated - no reasonable prospect of reconciliation, 17.5% Conciliated, 15% Withdrawn

Sex Discrimination Act

Table 18: Sex Discrimination Act - complaints received and finalised
Sex Discrimination Act
Total
Received 380
Finalised 395
Table 19: Sex Discrimination Act - complaints received by ground
Sex Discrimination Act
Total Percentage (%)
Sex discrimination 184 28
Marital status 25 4
Pregnancy 230 35
Sexual harassment 172 27
Parental status, family responsibility 19 3
Victimisation 21 3
Total* 651 100

* One complaint may have multiple grounds.

Table 20: Sex Discrimination Act - complaints received by area
Sex Discrimination Act
Total Percentage (%)
Employment 568 87
Goods, services and facilities 39 6
Land - -
Accommodation 1 -
Superannuation, insurance - -
Education 9 1
Clubs 7 1
Administration of Commonwealth laws and programs 17 3
Application forms etc 4 1
Trade unions, accrediting bodies 6 1
Total* 651 100

*An area is recorded for each ground, so one complaint may
have multiple and different areas.

Table 21: Sex Discrimination Act - outcomes of finalised complaints
Sex Discrimination Act
Total
Terminated 173
Not unlawful 13
More than 12 months old 4
Trivial, vexatious, frivolous, misconceived,
lacking in substance
42
Adequately dealt with already 5
More appropriate remedy available 6
Subject matter of public importance -
No reasonable prospect of conciliation 103
Withdrawn 41
Withdrawn, does not wish to pursue, advised
the Commission
39
Withdrawn, does not wish to pursue, settled
outside the Commission
2
Conciliated 161
Administrative closure* 20
Total
395

* Not an aggrieved party or state complaint previously lodged.

Chart 4: Sex Discrimination Act - outcomes of finalised complaints

43% Conciliated 27% Terminated - no reasonable prospect of reconciliation, 19% Terminated - other reason, 11% Withdrawn

Disability Discrimination Act

Table 22: Disability Discrimination Act - complaints received and finalised
Disability Discrimination Act
Total
Received 493
Finalised 463
Table 23: Disability Discrimination Act - nature of complainant's disability
Disability Discrimination Act
Total
Physical disability 169
A mobility aid is used - e.g. walking frame
or wheelchair
56
Physical disfigurement 22
Presence in the body of organisms causing
disease - HIV/AIDS
9
Presence in the body of organisms causing
disease - other
13
Psychiatric disability 88
Neurological disability - e.g. epilepsy 29
Intellectual disability 15
Learning disability 25
Sensory disability - e.g. hearing impaired 28
Sensory disability - deaf 17
Sensory disability - vision impaired 30
Sensory disability - blind 20
Work related injury 46
Medical condition - e.g. diabetes 45
Other 33
Total*
645

* One complainant may have multiple disabilities.

Table 24: Disability Discrimination Act - complaints received by ground
Disability Discrimination Act
Total Percentage (%)
Disability of person(s) aggrieved 862 95
Associate 23 3
Disability - person assisted by trained animal 6 1
Disability - use of appliance - -
Harassment 12 1
Victimisation 2 -
Total*
905 100

*One complaint may have multiple grounds.

Table 25: Disability Discrimination Act - complaints received by area
Disability Discrimination Act
Total Percentage (%)
Employment 480 53
Goods, services and facilities 220 24
Access to premises 36 4
Land - -
Accommodation 28 3
Incitement to unlawful acts or offences - -
Advertisements - -
Superannuation, insurance 17 2
Education 98 11
Clubs, incorporated associations 10 1
Administration of Commonwealth laws and programs 16 2
Sport - -
Application forms, requests for information - -
Trade unions, registered organisations - -
Total*
905 100

* An area is recorded for each ground, so one complaint may
have multiple and different areas.

Table 26: Disability Discrimination Act - outcomes of finalised complaints
Disability Discrimination Act
Total
Terminated 219
Not unlawful 25
More than 12 months old 5
Trivial, vexatious, frivolous, misconceived,
lacking in substance
100
Adequately dealt with already 11
More appropriate remedy available 8
Subject matter of public importance -
No reasonable prospect of conciliation 70
Withdrawn 43
Withdrawn, does not wish to pursue, advised
the Commission
40
Withdrawn, does not wish to pursue, settled
outside the Commission
3
Conciliated 186
Administrative closure* 15
Total
463

* Not an aggrieved party, state complaint previously lodged.

Chart 5: Disability Discrimination Act - outcomes of finalised complaints

41% Conciliated 33% Terminated - other reason 16% Terminated - no reasonable prospect of reconciliation, 10% Withdrawn

Human Rights and Equal Opportunity Commission Act

Table 27: Human Rights and Equal Opportunity Commission Act
- complaints received and finalised
Human Rights and Equal Opportunity Commission Act
Total
Received 181
Finalised 192
Table 28: Human Rights and Equal Opportunity Commission Act
- complaints received by ground
Human Rights and Equal Opportunity Commission Act
Total Percentage (%)
Race - ILO 111 - -
Colour - ILO 111 - -
Sex - ILO 111 - -
Religion - ILO 111 16 8
Political opinion - ILO 111 1 0.5
National extraction - ILO 111 - -
Social origin - ILO 111 2 1
Age - ILO 111 26 13
Medical record - ILO 111 - -
Criminal record - ILO 111 30 15
Impairment - including HIV/AIDS status (ILO
111)
- -
Marital status - ILO 111 - -
Disability - ILO 111 - -
Nationality - ILO 111 - -
Sexual preference - ILO 111 20 10
Trade union activity - ILO 111 21 11
International Covenant on Civil and Political
Rights
53 27
Declaration on the Rights of the Child 2 1
Declaration on the Rights of Mentally Retarded
Persons
3 1
Declaration on the Rights of Disabled Persons - -
Convention on the Rights of the Child 15 8
Declaration on the Elimination of All Forms
of Intolerance and of Discrimination Based on Religion or Belief
3 1
Not a ground within jurisdiction 1 0.5
Not a human right as defined by the Act 6 3
Total*
199 100

* One complaint may have multiple grounds.

Table 29: Human Rights and Equal Opportunity Commission Act
- complaints received by area
Human Rights and Equal Opportunity Commission Act
Total Percentage (%)
Acts or practices of the Commonwealth 71 36
Employment 119 60
Not act or practice of the Commonwealth -
not employment cases
9 4
Total*
199 100

* An area is recorded for each ground, so one complaint may
have multiple and different areas.

Table 30: Human Rights and Equal Opportunity Commission Act
- non-employment complaints received by sub-area
Human Rights and Equal Opportunity Commission Act
Total Percentage (%)
Prisons, prisoners 15 18
Religious institutions 1 1
Family Court matters 3 3.5
Other law court matters 2 2.5
Immigration 51 60
Law enforcement agency - -
State agency 1 1
Other service provider - private sector - -
Local government 1 1
Education systems - -
Welfare systems 2 2.5
Personal or neighbourhood conflict 1 1
Health system 2 2.5
Other 6 7
Total*
85 100

* One complaint may have multiple sub-areas.

Table 31: Human Rights and Equal Opportunity Commission Act
- outcomes of finalised complaints
Human Rights and Equal Opportunity Commission Act
Total
Declined 161
Does not constitute discrimination 18
Human rights breach, not inconsistent or
contrary to any human right
33
More than 12 months old 7
Trivial, vexatious, frivolous, misconceived,
lacking in substance
37
Adequately dealt with already 10
More appropriate remedy available 20
Withdrawn, does not wish to pursue, advised
the Commission
26
Withdrawn, does not wish to pursue, settled
outside the Commission
1
Withdrawn or lost contact 9
Conciliated 19
Referred for reporting* 12
Administrative closure** -
Total
192

* Complaints in this category were not conciliable and therefore
transferred from the Commission's Complaint Handling Section to Legal Services
for further inquiry and possible report.

** Not an aggrieved party or state complaint previously lodged.

Chart 6: Human Rights and Equal Opportunity Commission Act
- outcomes of finalised complaints
65% Declined 19% Withdrawn 10% Conciliated, 6% Referred for reporting

1 It is noted that complaints are generally resolved
at conciliation on the basis of ‘no admission of liability’
by the respondent.

2. 73 percent of complainants returned the demographic
data survey in this reporting year.

3. Representation status may change during the complaint
process.