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Annual Report 2008-2009: Chapter 4

Annual Report 2008 - 2009

Chapter 4:
Complaint
Service

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4.1 Overview
of the work of the Complaint Handling Section

Federal human rights and anti-discrimination law provides for the Commission
to investigate and resolve complaints of alleged discrimination and breaches of
human rights. The Commission’s complaint work is central to its role in
protecting and promoting human rights and complements the Commission’s
policy and education functions. The Commission’s complaint process
provides an effective, efficient and accessible means by which individuals and
groups can voice and resolve disputes about discrimination and human rights.

The President of the Commission is responsible for the investigation and
conciliation of complaints and staff of the Commission’s Complaint
Handling Section (CHS) assist the President in this role. The Commission’s
CHS also provides information to the public about the law and the complaint
process through the Commission’s Complaint Information Service and through
a range of community education and training activities that are outlined in this
chapter.

Complaint Information Officers within the CHS respond to telephone, TTY,
post, email, SMS and in-person enquiries from around Australia. Enquirers are
often seeking information about whether they can lodge a complaint in relation
to a particular situation they have experienced. In 2008-09, the
Commission’s Complaint information Service responded to 20 188 enquiries.
This is an
8 percent increase in comparison with the number of enquiries
received in the previous reporting period. Over the past five years, the number
of enquiries to the Commission has increased by 103 percent.

Investigation/Conciliation Officers within the CHS have specialised knowledge
and skills to manage and resolve complaints about discrimination and breaches of
human rights. In 2008-09, the CHS received 2253 complaints. This is an
8
percent increase in comparison with the number of complaints received in the
previous reporting period. Over the past five years, the number of complaints
the Commission received has increased by 81 percent.

A diagram of the Commission’s complaint process is provided at Appendix
5.

The Commission’s complaint process, which has a focus on Alternative
Dispute Resolution, is flexible and responsive to different needs and
circumstances. Conciliation can be undertaken at various stages of the process.
In some situations, for example where there is an ongoing employment
relationship, conciliation can be offered within days of the Commission
receiving the complaint. In other matters, conciliation is undertaken after the
President has commenced a written inquiry or after a written response to the
complaint has been received.

In many cases, conciliation involves the Investigation/Conciliation Officer
facilitating a face-to-face meeting of the parties. Officers travel to various
locations throughout Australia, including regional and remote areas, to hold
these meetings. Conciliation may also be conducted in other formats. For
example, officers may have telephone discussions with the parties and convey
messages between them or hold a teleconference. In 2008-09, 48 percent of
finalised complaints were conciliated and 68 percent of all matters where
conciliation was attempted were successfully resolved. The average time from
lodgement to finalisation of a complaint was six months.

Where a complaint of unlawful race, sex, disability or age discrimination
cannot be resolved through conciliation, the complaint is terminated. Complaints
may also be terminated where the President is satisfied that an inquiry into the
complaint should not be undertaken or continued because, for example, the
complaint is lacking in substance or better dealt with by another organisation.
Both parties to a complaint are advised in writing of the President’s
decision regarding a complaint. After a complaint is terminated, the complainant
may apply to have the matter heard and determined by the Federal Court of
Australia or the Federal Magistrates Court of Australia.

Complaints which allege a breach of human rights or discrimination under the
Human Rights and Equal Opportunity Commission Act cannot be taken to court for
determination. Where complaints under this Act have not been declined or
resolved and the President is of the view that the subject matter of the
complaint constitutes discrimination or a breach of human rights, the President
will report the findings to the Attorney-General for tabling in federal
Parliament.

Information about reports to the Attorney-General is provided later in this
chapter.

While the number of complaints being brought to the Commission has continued
to increase over recent years, the Commission has not received increased funding
to deal with this growth in demand. During 2008-09, the Commission, and staff of
the CHS in particular, have made significant efforts to minimise the impact of
this lack of funds and maintain an efficient and effective complaint service.
However, the impact of this lack of funding is reflected in some aspects of the
complaint statistics for this reporting period.

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4.1.1 Key performance
indicators and standards

The CHS has developed key performance indicators and standards which form the
basis for ongoing assessment of the complaint service. These indicators, and CHS
performance in 2008-09 in relation to these indicators, are summarised
below:

  • Timeliness – the section’s stated performance standard is
    for 80 percent of complaints to be finalised within 12 months of receipt. In
    2008-09, the CHS finalised 93 percent of matters within 12 months. A detailed
    breakdown of timeliness statistics by jurisdiction is provided in Table 16.
  • Conciliation rate – the section’s stated performance
    standard is for 30 percent of finalised complaints to be conciliated. In
    2008-09, the CHS achieved a 48 percent conciliation rate.
  • Customer satisfaction – the section’s stated performance
    standard is for 80 percent of parties to complaints to be satisfied with the
    service they receive. In 2008-09, 92 percent of surveyed parties reported that
    they were satisfied with the service and 58 percent rated the service as
    ‘very good’ or ‘excellent’. Further details of survey
    results for this reporting period follow.

4.1.2 Customer
satisfaction survey

The CHS asks for feedback on aspects of the service from people lodging
complaints (complainants) and people responding to complaints (respondents).
This feedback is obtained through a customer satisfaction survey. This survey is
usually undertaken by means of telephone interviews conducted by administrative
staff who are not directly involved in handling complaints. In 2008-09, 55
percent of those who could be contacted (160 complainants and 194 respondents)
agreed to participate in the survey.

Survey results for this reporting period are summarised below:

  • 91 percent of complainants and 97 percent of respondents felt that staff
    explained things in a way that was easy for them to understand
  • 92 percent of complainants and 93 percent of respondents felt that forms and
    correspondence from the Commission were easy to understand
  • 64 percent of complainants and 75 percent of respondents felt that the
    Commission dealt with the complaint in a timely manner
  • 95 percent of complainants and 94 percent of respondents did not consider
    staff to be biased.

4.1.3 Charter of
Service

The CHS Charter of Service provides an avenue through which complainants and
respondents can understand the nature and standard of service they can expect,
and also contribute to service improvement. All complainants are provided with a
copy of the Charter of Service when their complaint is accepted by the
Commission.

Respondents receive a copy when notified of a complaint. The Charter of
Service can also be downloaded from the CHS page of the Commission’s
website at:
www.humanrights.gov.au/complaints_information/charter_of_services/index.html.

In 2008-09, the Commission received three complaints about its service under
the formal complaint process provided in the Charter.

4.1.4 Access to
complaint services

The CHS aims to facilitate broad community access to information and services
through the following measures:

  • Complaint Information Service. The Complaint Info line
    (1300 656
    419 – local call charge) which is open Monday – Friday between 9:00
    am and 5:00 pm, allows people from all areas of Australia to call and obtain
    information about the law and the complaint process. The service can also be
    contacted by email (complaintsinfo@humanrights.gov.au)
  • CHS webpage: www.humanrights.gov.au/complaints_information/ index.html. The webpage provides a range of information about the
    Commission’s complaint service, including detailed information about the
    complaint process and how to lodge a complaint. In 2008-09, sections of the
    webpage were revised and a new section with specific information for Indigenous
    Australians was developed. The CHS webpage received 319 217 page views during
    this reporting period.
  • Publications in community languages. The CHS has a Concise
    Complaint Guide
    and an information poster available in 14 community
    languages. These publications can be ordered from the Complaint Information
    Service or downloaded from the Commission website:
    www.humanrights.gov.au/about/languages/index.html.
  • Interpreter and translation services. During 2008-09, the CHS
    utilised a range of interpretation and translation services. The main language
    groups assisted were Mandarin, Arabic, Persian and Serbian. Auslan interpreters
    were used on 21 occasions.
  • Service provision in states and territories. The Commission has
    formal arrangements with the Victorian Equal Opportunity and Human Rights
    Commission, the Queensland Anti-Discrimination Commission, the South Australian
    Equal Opportunity Commission, the Northern Territory Anti- Discrimination
    Commission and the Western Australia Equal Opportunity Commission, whereby CHS
    publications are displayed by these agencies and CHS staff use agency facilities
    for conciliation conferences. The Commission has similar informal arrangements
    with the Tasmanian Anti-Discrimination Commission and the Australian Capital
    Territory Human Rights Commission.
  • Conciliation circuits. Conciliation officers travel throughout
    Australia to conduct conciliation conferences. In 2008-09, along with
    conferences conducted in the greater Sydney area, officers conducted: 31
    conferences in regional NSW (including Albury, Coffs Harbour, Tamworth, Wagga
    Wagga, Lismore, Narrandera, Gosford, Wollongong and Newcastle); 129 in Victoria
    (including Melbourne and Geelong); 98 in Adelaide; 52 in Queensland (including
    Brisbane, Rockhampton, Cairns, Mackay, Kingaroy and Maroochydore); 26 in Perth;
    11 in Tasmania (including Hobart and Launceston); eight in Canberra and three in
    Darwin.
  • Conciliation DVD. The captioned audio-visual resource, Pathways to
    resolution,
    provides information about conciliation for the general public
    and those involved in the complaint process. The DVD explains the conciliation
    process, outlines how to prepare for conciliation and demonstrates positive
    approaches to discussing issues and negotiating resolution outcomes. This
    resource can be obtained from the Complaint Information Service and clips from
    the DVD can also be viewed on the Commission’s webpage at:
    www.humanrights.gov.au/complaints_information/pathways_to_resolution/index.html.

4.1.5 Education and
outreach activities

Through its community education activities, the CHS contributes to the
Commission’s function of promoting awareness, knowledge and understanding
of human rights and responsibilities.

During this reporting period, a range of organisations across Australia
either attended information sessions on the law and the complaint process run by
CHS staff, or were visited by CHS staff. These organisations included: community
legal centres; professional associations and unions; legal and advocacy services
for women, youth, people with disabilities and older people; multicultural
organisations; colleges and universities. Locations visited included Sydney,
Nambucca Heads, Coffs Harbour, Ballarat, Melbourne, Canberra, Brisbane, Adelaide
and Perth. Additionally, information kits about the law and the complaint
process were distributed to more than 200 Community Legal Centres and more than
300 unions across Australia.

In 2008-09, the CHS developed a human rights information workshop, run in
conjunction with the Commission’s Community Partnership Program, which
aims to help Muslim communities explore human rights issues in their everyday
life and deal with discrimination and harassment. To date, workshops have been
run for participants in the Young Muslim Women’s Short Animation Film
Project (humanrights.gov.au/partnerships/projects/arts_huriyya.html) and
participants attending the Diversity in Policing – Muslim Women’s
Camp which was held in May 2009.

During 2008-09, CHS staff also contributed to the development of an online
complaint handling tool to help sporting clubs respond to issues of
discrimination and harassment. This project was initiated by Play by the Rules
(www.playbytherules.net.au/), which is a partnership between the Commission, the
Australian Sports Commission, state and territory sport and recreation agencies,
state and territory anti-discrimination agencies and the Queensland Commission
for Children, Young People and Child Guardian. Play by the Rules provides
information and online learning for community sport and recreation, on how to
prevent and deal with discrimination, harassment and child abuse.

The CHS is often asked to provide information about the Commission’s
complaint work to visiting delegations. During 2008-09, CHS staff provided
information to representatives of human rights institutions and government
departments visiting from Bangladesh, China, Malaysia, Iraq, Ireland and New
Zealand.

4.1.6 Staff training
and training as provider

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. During the reporting period, the
Commission also developed an advanced conciliation training program to provide
ongoing skill development for staff working in this field.

During 2008-09, investigation and conciliation training courses were run on
two occasions for new staff. Additionally, a number of ‘refresher’
conciliation skill workshops were run for CHS staff.

In 2008-09, nine CHS staff undertook studies to obtain the Certificate IV in
Training and Assessment qualification and one staff member participated in the
Mawul Rom Cross Cultural Mediation and Leadership Training Program, held in
Arnhem Land, Northern Territory. Three staff members also attended the Creating
Social Change – Leadership Program run by the Benevolent Society of
NSW.

The CHS also provides investigation and conciliation training for other
organizations on a fee for service basis. In July 2008, the CHS conducted a
two-day investigation training course for staff from the ACT Human Rights
Commission. In March 2009, the CHS conducted a two-day course in investigating
and resolving complaints for staff from a national telecommunications company.
On 3-5 June, the CHS conducted a three-day advanced conciliation training course
for staff of the Victorian Equal Opportunity and Human Rights Commission. On
15-16 June 2009, the CHS conducted investigation training for staff of the
Office of the Privacy Commissioner.

4.1.7 Conference
presentations and research

In 2008-09, CHS staff attended and/or presented papers at the following
conferences: the National Community Legal Centre Conference in Darwin in August
2008; the National Disability Advocacy Conference in Nambucca Heads in October
2008; the Victorian Equal Opportunity and Human Rights Commission’s Human
Rights Conference in Melbourne in March 2009, and the Workplace Diversity
Conference in Sydney in April 2009.

The CHS regularly undertakes research with a view to better understand and
improve the Commission’s complaint service. During the reporting period,
the CHS finalised the first stage of an ongoing research project to obtain
information about the level to which: involvement in the complaint process may
increase knowledge and understanding of the law; conciliation agreements include
elements which are likely to have impact beyond an individual complainant; and
respondents may implement changes to policies and practices as a result of
involvement in the complaint process.

The findings to date indicate that many complaints to the Commission are
resolved on terms which go beyond providing a remedy for an individual
complainant. Conciliated agreements include terms which have broader impact,
such as agreements to change policies, practices and procedures; and agreements
to introduce anti-discrimination policies and training. The findings also
indicate that, regardless of the outcome of a complaint, involvement in the
Commission’s complaint process can result in increased knowledge of the
law and responsibilities under the law, and can stimulate broader workplace
changes such as the introduction of anti-discrimination policies and
training.

Information on this project, and other research conducted by the CHS, is
available on the Commission’s webpage at:
www.humanrights.gov.au/complaints_information/papers.html.

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4.2 Conciliation
case studies

4.2.1 Racial
Discrimination Act

During the reporting period, the Commission received 396 complaints under the
Racial Discrimination Act. The majority of these complaints related to
employment (54 percent). The CHS finalised 392 complaints under this Act and 55
percent of these finalised complaints were conciliated. Detailed statistics
regarding complaints under the Racial Discrimination Act are provided later in
this chapter.

Complaint of racial discrimination in employment

The complainant, who is of Lebanese/Armenian racial origin, is employed with
the respondent finance company. The complainant alleged his former supervisor
sent him an email about Muslim women that he found offensive, as his wife is
Muslim. He also alleged the individual respondent called him an
‘Arab’ and a ‘bomb thrower’ in front of other staff and
also told him to ‘speak English’. The complainant said that, after
he made an internal grievance about his supervisor, his higher duties were
removed, his work was over-scrutinised and his performance was unfairly
criticised.

The individual respondent denied sending the email and said that the comments
he made were misunderstood. The company advised that, in response to the
complainant’s internal grievance, they met with the individual respondent
and he moved to a different section of the company. The company denied that
action taken in relation to the complainant’s work performance was because
of the complainant’s race or because he had made an internal
grievance.

The complaint was resolved at a conciliation conference. The individual
respondent provided the complainant with a verbal apology at the conference. The
company agreed to pay the complainant’s legal costs to the value of $5000
and provide the complainant with a training fund to the value of $10 000 to
assist his career development. The company also agreed to hold a staff meeting
to confirm that the type of behaviour, that was the subject of the complaint,
was unacceptable and to advise that the dispute between the complainant and the
individual respondent had been resolved.

Alleged racial hatred on a website

The complainant, who is of Asian background, complained about a website which
he said advocated violence against Asians. The comments on the website
included:

‘Asians take all our good Jobs and Careers leaving us aussies to have
to fight and often miss out on a opportunity for spots in our universities and
good jobs.’

‘Asian People Flood our city with their Asian shops with their language
all over them, having their own dedicated “china town” and their own
suburb ...’

‘... we understand everyone has different Levels of hate for Asians and
so we have ... Yellers. Their job is to Yell at the Asians with passion i.e.
“YOU GOOK F**K OFF TO CHINA” and do what ever they can to show
Asians they are not welcome in Australia ... Fighters ... are their to express
there anger physically by laying the Gooks out.’

On receipt of the complaint, the Commission contacted the Internet Service
Provider (ISP) to establish the identity of the website owner. Within a few days
of contacting the ISP, the ISP advised that the website had been disabled
because it breached the ISP’s Acceptable Use Policy.

The complainant informed the Commission that the action by the ISP resolved
his complaint.

Complaint of racial discrimination and racial hatred in sport

The complainant lodged a complaint on behalf of his 18-year-old son, who is
of Ethiopian origin. The complainant alleged that, during a recent game between
his son’s football club and the respondent football club, a player from
the respondent club called his son a ‘black c**t’. He also alleged a
member of the respondent team’s coaching staff told his son to ‘wash
the dirt off’, which was a derogatory reference to his son’s skin
colour. The complainant advised that his son’s club made a formal
complaint to the football league about the player’s comment, but he was
not satisfied with how the matter was handled. The complainant said he wished to
complain against both the respondent football club and the football league.

The respondent club said its player denied making the alleged comment. The
club confirmed a member assisting the coaching staff said ‘wash the dirt
off’, and advised that this member had been counselled. In its response to
the complaint, the club said it has zero tolerance for racism and expressed
regret for what occurred. The complainant advised the Commission that this
response resolved his complaint against the club.

The respondent football league advised that it had investigated the complaint
in accordance with its rules and procedures. The league said the matter went to
a hearing and the tribunal found that the player had made the alleged comments.
However, the player successfully appealed the decision.

The complaint against the football league was resolved by means of a
telephone conciliation process. The terms of agreement included an undertaking
by the league to review and revise its complaint procedures to ensure clearer
procedures for investigating complaints and to provide for conciliation before a
hearing.

Alleged race discrimination in employment

The complainant advised that he is Aboriginal and was employed with the
respondent manufacturing company as a spare parts coordinator. The complainant
alleged a senior supervisor told him that he should not apply for a promotion as
he is an ‘Abbo’ and therefore incapable of fulfilling the role. The
complainant said he made an internal grievance, but felt the matter was not
handled appropriately. The complainant resigned from his employment.

When the company was informed about the complaint, they confirmed that the
complainant had reported the incident, but said they understood the matter had
been resolved. The company agreed to participate in conciliation without
providing a formal response to the complaint.

The complaint was resolved at a conciliation conference, with an agreement
that the company would pay the complainant $7000 compensation and that the
company and the individual respondent would provide the complainant with
statements of regret.

Complaints about racial hatred online

The complainants, who are of Aboriginal background, complained about a
respondent social networking site. They claimed that a social group entitled,
‘No I’m Not Bloody Sorry & Don’t Have Anyone to Be
Reconciled With!’, was created and loaded onto the respondent site. The
complainants alleged the members of the group made comments that racially
vilified Aboriginal people. Some of the comments included:

‘Why should I have to apologise for something that happened over 200
years ago? Consider it survival of the fittest.’

‘I have nothing wrong with an Aboriginal being named Australian of the
Year, but when it’s just handed out as a token gesture rather than being
EARNT...’

After being advised of the complaint, the respondent company informed the
Commission that the group had been disabled from the website because it violated
the site’s user policy. The complainants advised the Commission that the
action taken by the respondent company resolved their complaint.

Alleged racial discrimination in employment

The complainant advised that she is from Switzerland and speaks English with
a French accent. The complainant applied for a position as a conference producer
through a recruitment agency. She said a staff member from the agency left a
message for her, but when she called back and spoke to this staff member, she
was told the position was no longer available. The complainant claimed that,
when her partner and friend, who do not have French accents, subsequently called
to enquire about the position, they were told the position was still open. The
complainant claimed the respondent agency discriminated against her because of
her origin and her accent.

The managing director of the respondent agency advised the Commission that
the employee named in the complaint had been dismissed. The managing director
offered to meet with the complainant to discuss her concerns. The parties met a
few days later and, after this meeting, the complainant advised the Commission
that the action taken by the managing director resolved her complaint.

4.2.2 Sex
Discrimination Act

During the reporting period, the Commission received 547 complaints under the
Sex Discrimination Act. The majority of complaints related to employment
(91
percent). Twenty-two percent of complaints alleged pregnancy discrimination and
22 percent of complaints alleged sexual harassment. The CHS finalised 542
complaints under this Act and 48 percent of these finalised complaints were
conciliated. Detailed statistics regarding complaints under the Sex
Discrimination Act are provided later in this chapter.

Alleged pregnancy discrimination in employment

The complainant attended an interview for a sales assistant position with the
respondent retail store. She said that, during the interview, she advised she
was pregnant. The complainant claimed that, the next day, she received an email
from the interviewer in which he said he was impressed with her, but the owner
of the company was not interested in employing her until she was back in the
workforce.

The complainant claimed she was refused the position because she was
pregnant.

The Commission contacted the respondent company a few days after the
complaint was received. The company said it did not employ the complainant
because other applicants had more relevant sales experience. However, the
company said that, as another employee was leaving, they could offer the
complainant ongoing work.

The complaint was resolved with an agreement that the complainant would be
employed as a casual sales assistant with the company.

Complaint of sexual harassment in employment

The complainant alleged she was sexually harassed by her manager while
working as a cashier at the respondent retail store. The complainant claimed
that her manager made comments about her breasts, touched her inappropriately
and on more than one occasion, tried to kiss her. She also alleged the manager
followed her home one evening and tried to assault her. The complainant claimed
that, because of this, she became stressed and anxious and eventually resigned
from her job.

The company denied the manager had sexually harassed the complainant and said
that the complainant had not complained about sexual harassment during her
employment. The company advised that, as it was a small employer, it did not
have a sexual harassment policy.

The complaint was resolved through a conciliation process. The parties agreed
that the company would provide the complainant with a statement of service and
pay her $33 000, representing compensation for hurt and embarrassment and
reimbursement of medical and counselling costs. The company also agreed to
develop a sexual harassment policy and associated grievance procedure, and
engage an external company to provide anti-discrimination training for
staff.

Alleged discrimination on the grounds of sex and family
responsibilities

The complainant advised that she is employed on a part-time basis as an
administrative officer with the respondent Commonwealth department. The
complainant claimed she was asked to increase to full-time hours and work fixed
hours of 9:00 am and 5:30 pm. She said she agreed to work full-time, but
requested flexible working hours to accommodate her family responsibilities. The
complainant claimed her request for flexible hours was refused and she was moved
to another part-time position. She claimed the person who took over her position
on a full-time basis was not required to work the same fixed hours.

The department said the complainant told them she could only work full-time
if the hours were 7:00 am to 4:00 pm and these hours did not match operational
requirements for the position.

The complaint was resolved with an agreement that the department would
convert the complainant’s existing position to full-time and allow her to
work her hours between 7:00 am and 7:00 pm. The department also provided the
complainant with a statement of regret.

Complaint of pregnancy discrimination in employment

The complainant was registered with the respondent recruitment agency and,
through this agency, was offered a position as a receptionist with a small
property development company. The complainant claimed that, prior to commencing
employment, she found out she was pregnant and informed the recruitment agency
and her future employer. The complainant said the company withdrew the offer of
employment and the recruitment agency did not contact her about other employment
opportunities. She alleged that the recruitment agency and the company
discriminated against her because of her pregnancy.

The company advised that it is a small corporation, and the decision to
withdraw the offer of employment was based on business and financial
requirements. The recruitment agency said it took all reasonable steps to obtain
alternative employment for the complainant, but no other work the complainant
was interested in was available.

The complaint was resolved at conciliation with an agreement that the company
would pay the complainant $10 000 general damages, provide her with a written
apology and develop an Equal Employment Opportunity (EEO) policy for the
workplace. The recruitment agency agreed to pay the complainant $2000 general
damages.

Alleged sexual harassment in employment

The complainant claimed she was sexually harassed while working for the
respondent fast food franchise. She alleged her new manager asked her questions
about her sex life, such as ‘What do you do when having sex?’ and
‘What toys have you used?’ and also asked her to demonstrate using a
mini vibrator. The complainant said she became quiet and withdrawn at work as a
result of this behaviour, and her manager then criticised her work and removed
her from the roster. She claimed that her parents tried to speak to the manager
about the situation and, shortly after this, she was dismissed.

The respondents did not provide a formal response to the complaint, but
agreed to participate in conciliation.

The complaint was resolved with an agreement that the company would pay the
complainant $8500 and provide her with a Statement of Service. The company also
agreed to implement an EEO policy, display information in the workplace about
relevant complaint bodies and arrange for the individual respondent to undertake
EEO training.

Complaint of pregnancy discrimination in education

The complainant is a PhD candidate, studying to become a specialist doctor
under a scholarship provided by a professional organisation. The complainant
said the university granted her maternity leave from her studies; however, the
professional organisation told her that her scholarship was withdrawn because of
her maternity leave. The complainant said the professional organisation informed
her she could re-apply for the scholarship, but there was no guarantee that a
future application would be successful.

In response to the complaint, the professional organisation advised that it
had developed a maternity leave policy for women on research scholarships. This
policy provided that, where maternity leave is granted, the duration of the
scholarship will be extended to take account of the leave.

The complaint was resolved through the development of this maternity leave
policy and an agreement that the new policy would be applied to the
complainant’s situation, so that her scholarship would recommence at the
end of her maternity leave.

Alleged discrimination on the grounds of sex and pregnancy

The complainant was employed as a manager with the respondent marketing
company. She claimed that, after approximately one year working with the
company, she went on 12 months unpaid maternity leave. She said that, when she
contacted her employer the month before she was to return to work, she was told
her position had been made redundant because of the acquisition of another
company some months before. The complainant said that, while on leave, she was
not advised of the changes occurring in the company and was not given the
opportunity to apply for another position. The complainant also alleged her
former position still existed, but had a new title.

The company did not provide a formal response to the complaint and agreed to
attend a conciliation conference to try to resolve the matter.

The complaint was resolved with an agreement that the company would pay the
complainant $30 000 compensation.

Complaint of sexual harassment

The complainant was employed as a bar attendant at the respondent hotel. The
complainant alleged that her manager sexually harassed her by kissing and
touching her inappropriately. She also alleged she was dismissed because she
refused the manager’s sexual advances.

In a written response to the complaint, the manager and the hotel denied the
complainant had been sexually harassed. The hotel claimed the complainant was
dismissed because of poor work performance.

The complaint was resolved with an agreement that the respondent would pay
the complainant $6500 and provide her with a written apology. The hotel also
agreed to develop a sexual harassment policy and associated complaint process,
and ensure staff received training regarding the policy.

4.2.3 Disability
Discrimination Act

During the reporting period, the Commission received 980 complaints under the
Disability Discrimination Act. The majority of these complaints concerned
employment (40 percent) and the provision of goods, services and facilities
(35 percent). The CHS finalised 1117 complaints under this Act and 47
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 was employed on a temporary contract with the respondent
state government department as an administration officer. She said her contract
was continually renewed and, about 14 months later, she was diagnosed with
breast cancer. She claimed her supervisor said she would be offered a permanent
position and encouraged her to apply for an upcoming permanent vacancy. The
complainant said her application for the permanent position was unsuccessful and
her contract was not renewed. The complaint alleged this was because of her
disability.

On being advised of the complaint, the respondent indicated a willingness to
resolve the matter through conciliation.

The complaint was resolved with an agreement that the department would employ
the complainant on a permanent basis in another position.

Alleged disability discrimination in education

The complaint was lodged by the parents of a 12-year-old boy who has cerebral
palsy and uses a wheelchair. The complainants said their son attends the local
public school and the school had recently purchased a new school bus that does
not have wheelchair access. They said that, as a result, their son cannot attend
school camps and excursions unless they transport him themselves. The
complainants advised that they live in a small country town where accessible
taxis or other forms of accessible transport are not available.

The school confirmed the new school bus did not have a wheelchair hoist but
said an accessible bus, belonging to the local community health service, could
be used on the occasions when the complainants’ son was participating in
school excursions. The respondent noted that, because of the student’s
high care needs, he was not able to attend the school camp unless accompanied by
a carer.

The complaint was resolved with an agreement that the school would fit a
wheelchair hoist to the new school bus and develop protocols for communication,
between the school and the complainants, about their son’s participation
in activities.

Complaint of discrimination because of assistance dog

The complainant has a psychiatric disability and uses an assistance dog. The
complainant claimed that the respondent cafe, which is located in a large
shopping centre, discriminated against her because of her assistance dog. She
claimed she ordered and paid for a coffee, but when the owner delivered her
coffee, he told her to get out and pointed to the sign that said, ‘No
Dogs’. The complaint was made against the cafe and the building management
company that owned the shopping centre.

On being advised of the complaint, both respondents confirmed a willingness
to participate in conciliation.

The complaint was resolved with an agreement that the building management
company would amend signage in its 78 shopping centres to say, ‘Authorised
dogs permitted’. The respondent cafe agreed to publish a written statement
of regret in the local newspaper.

Alleged disability discrimination in employment

The complainant advised that she has schizophrenia and is obese. She claimed
she successfully applied for a position as an administrative officer with the
respondent Commonwealth department, but on her first day of work, she was told
that her name had been removed from the successful applicant list. The
complainant said that, when she asked why her name had been removed, she was
told this was because the department had been notified that she was prone to
violent outbursts.

The department confirmed the complainant applied for the position and that
her application was successful. The department denied disability discrimination,
and advised that the complainant was unable to commence work on the day in
question because of a series of administrative oversights.

The complaint was resolved at a conciliation conference with an agreement
that the department would provide the complainant with an apology and pay her
$15 000 compensation.

Complaint of disability discrimination in the provision of hospital
services

The complainant advised that he is profoundly deaf, cannot speak or lip-read
and his first language is Auslan. The complainant said he was a patient in the
respondent hospital for 10 days and, during his stay, required an Auslan
interpreter for part of every day to ensure that there was no confusion in his
communications with medical staff. The complainant alleged that, despite his
requests for an Auslan interpreter, no interpreter was provided.

The respondent health service confirmed that the complainant was a patient,
that it was aware the complainant was deaf at the time of admission and that an
Auslan interpreter was not used during the complainant’s time in hospital.
The health service advised that medical notes by nursing and allied health staff
indicated they could communicate effectively with the complainant through
written notes and other means.

The complaint was resolved through a conciliation process with an agreement
that the respondent would pay the complainant $8000 compensation.

Alleged disability discrimination in the provision of airline services

The complainant is blind and uses a guide dog. The complainant claimed that,
when she attempted to book a flight with the respondent airline, she was told
she could not travel because there was already one guide dog booked on that
flight, and the airline has a policy of only one guide dog per flight.

The airline confirmed that, due to operational requirements, it has a limit
on the number of passengers who can travel with service dogs on each flight. The
airline denied discriminating against the complainant and claimed that the limit
on the number of service dogs was reasonable in the circumstances. The airline
advised, however, that its current policy on this issue was under review.

The complaint was resolved with an agreement that the airline would amend the
policy to increase the number of service dogs that could travel with passengers
on a flight. The airline also agreed to update the relevant section of its
internet website to outline the assistance available to people with disabilities
who travel with assistance dogs.

Complaint of disability discrimination in employment

The complainant advised that he commenced employment with the respondent
manufacturing company as a production supervisor in December 2000. The
complainant said he sustained a neck injury at work approximately two years ago,
and returned to work on restricted duties four months later. He claimed that,
some seven months after he returned to work, the company advised him that its
medical advice indicated he would have to remain on restricted duties. The
complainant said he obtained an independent medical assessment which indicated
he was able to return to his pre-injury position. The complainant said that,
despite this, his employment was terminated.

The company said the complainant’s employment was finalised because
medical advice indicated that the complainant could not perform the inherent
requirements of the position in which he had been employed.

The complaint was resolved with an agreement that the company would pay the
complainant $15 000 compensation. The respondent also agreed to transfer the
title for the house, which the complainant had leased during his employment, to
the complainant.

Complaint about disability discrimination at a museum

An organisation lodged the complaint on behalf of a number of its members who
are hearing impaired. The organisation said that this group of members visited
the respondent museum, but could not access the facilities at the museum in the
same way as other members of the public. The allegations included that they
could not use public telephones in the museum, they could not access
audio-visual presentations or lectures in the theatre, and museum staff did not
demonstrate appropriate communication strategies to deal with people with
hearing disabilities.

When advised of the complaint, the museum indicated a willingness to try to
resolve the matter.

The complaint was resolved though a conciliation process, with the respondent
agreeing to implement a number of measures to improve accessibility at the
museum for people who are hearing impaired. These measures included: a review of
communication access in relation to audio-visual displays, lectures and signage;
installation of two public phones with variable volume control and an induction
loop; provision of a portable TTY keyboard appliance that can be used in
conjunction with the public payphones; installation of cash registers with
outward facing displays; provision of information about disability access
information on the museum’s website; and the introduction of staff
training to assist service provision to customers who are hearing impaired.

4.2.4 Age
Discrimination Act

During the reporting period, the Commission received 151 complaints under the
Age Discrimination Act. The majority of these complaints concerned employment
(59 percent). The CHS finalised 141 complaints under this Act and 43 percent of
these finalised complaints were conciliated. Detailed statistics regarding
complaints under the Age Discrimination Act are provided later in this
chapter.

Complaint of age discrimination in employment

The complainant advised that she is 60 years old. She said she had been
employed with the respondent club for two years as a casual employee doing
clerical and administrative duties, but had recently been made redundant. The
complainant alleged she was selected for redundancy because of her age and
claimed a younger person was subsequently employed in her position.

The club stated that the complainant’s employment had been finalised
for operational reasons. The club said new staff members were employed with
specific skills to undertake particular tasks and, as a result, the
complainant’s duties were incorporated into other positions. The club
denied a younger person was employed in the complainant’s position. The
club advised that the board of directors was not aware of the general
manager’s decision to make the complainant’s position redundant.

The complaint was resolved at a conciliation conference. The club agreed to
reinstate the complainant to her former position, pay her $3000 general damages
and provide her with a letter of apology.

Alleged age discrimination in the provision of travel services

The complainant and her two friends are all between 20 and 21 years of age.
They claimed that, when they tried to book a cruise with the respondent company,
they were told their booking could not be accepted because they were not all
over 21 years of age and were intending to travel without a legal guardian.

The respondent company advised the Commission that, for safety and security
reasons, it is their policy not to allow passengers under 21 years of age to
travel without a legal guardian.

Four weeks after lodgement with the Commission, the complaint was resolved on
the basis that the company would accept a booking from the complainant and her
friends.

Complaint of age discrimination in employment

The complainant advised that she is 50 years old and works on a casual basis
as a customer service representative with the respondent car hire company. The
complainant said she had worked with the company since 2002, and was originally
employed on a fulltime basis. The complainant claimed that, at a meeting with
her manager, she requested a permanent part-time position and a roster change so
she would be allocated more hours. She said the manager declined her request and
suggested she consider going to work for establishments where ‘... 50 to
60-year-old ladies scan products they really do not know anything about’.
The complainant claimed that, following this meeting, her working hours were
reduced and she believed this was because of her age.

The respondent company said the alleged incident involving the manager was
investigated, and the manager was counselled for making the comment to the
complainant. The company denied that the complainant’s request for a
permanent part-time position and a roster change was rejected because of her
age, and advised the decision was based on operational requirements.

The complaint was resolved with an agreement that the complainant would be
appointed to a permanent part-time position and provided with an ex gratia
payment of $5000.

Alleged age discrimination in employment

The complainant, who is 64 years of age and a professor at the respondent
university, claimed that he is required to retire when he reaches 65 years of
age. The complainant said he recently received a three-year research grant which
named him as the administrator of the grant, but the university told him that,
because of his pending retirement, he cannot take on this role.

The university advised that its statute, which is an instrument with
legislative effect, states that professors can only hold office until the end of
the calendar year in which they reach 65 years of age. The university said it
must act in accordance with the statute and claimed that the exemption under
section 39 of the Age Discrimination Act applies.

The matter was resolved through a conciliation process. The parties agreed
the university would employ the complainant as a professor on a fractional
three-year fixed term contact prior to his retirement, and would appoint him as
principal investigator for the research grant.

4.2.5 Human Rights and
Equal Opportunity Commission Act

During the reporting period, the Commission received 179 complaints under the
Human Rights and Equal Opportunity Commission Act. The majority of these
complaints concerned discrimination in employment based on criminal record (40
percent) and alleged breaches of the International Covenant on Civil and
Political Rights (26 percent). The CHS finalised 162 complaints under this Act
and 32.5 percent of these finalised complaints were conciliated. Detailed
statistics regarding complaints under the Human Rights and Equal Opportunity
Commission Act are provided later in this chapter.

Complaint of discrimination on the ground of religion in
employment

The complainant was employed on a contract basis as a teacher with a
religious organisation that provides private education. The complainant claimed
her teaching contract was not renewed because she is not of the same religion as
the organisation.

The respondent organisation denied discriminating against the complainant on
the ground of her religion, and claimed that the complainant’s contract
was not renewed because of operational reasons. The organisation said that,
although the teacher who ultimately replaced the complainant was of the same
religion as the organisation, this teacher was appointed on the basis of her
qualifications, not her religion.

The complaint was resolved with an agreement that the respondent organization
would provide the complainant with a written apology and pay her $8000
compensation. The organisation also agreed to arrange anti-discrimination
training.

Alleged discrimination on the ground of criminal record

The complainant advised that, on his police record, he has convictions for
driving under the influence, the most recent being in 2005, as well as a 1995
offence for possession of cannabis. The complainant sought to become a volunteer
at the respondent aged care facility, which was an approved organisation for the
purposes of his pension job search requirements. The complainant said that, when
he provided the aged care facility with a copy of his police record, he was told
he could not be accepted as a volunteer because of his criminal record.

The respondent facility advised that volunteers have unsupervised access to
residents and undertake duties such as taking residents for walks, room visits
and reading. The facility said the complainant was considered unsuitable because
of the seriousness of the traffic offences on his police record.

The complaint was resolved with an agreement that the complainant could
reapply for volunteer work in the future. The respondent facility also provided
the complainant with a verbal apology.

Complaint by a detainee about an alleged breach of human rights

The complainant alleged that his right to be treated with dignity (Article
10(1) of the International Convention on Civil and Political Rights) was
breached while in immigration detention. The complainant said that, when
attending court in relation to his protection visa application, the
department’s service provider required him to wear handcuffs while being
transported, and also in court. The complainant claimed that, at the court, he
asked the officer to remove the handcuffs so he could use the toilet, but the
officer refused. The complainant claimed the officer had to undress him and
assist him use the toilet, and he felt humiliated and degraded by this.

The complaint was resolved within four weeks of the respondent department
being advised of the matter. The department provided the complainant with a
written apology.

The department’s service provider agreed to review its procedures
regarding the use of handcuffs during transfers, and issued a new direction to
its officers to ensure such incidents do not occur in the future.

Alleged discrimination on the ground of criminal record in
employment

The complainant has a criminal conviction for larceny in 2002, for which she
received a $59 fine. The complainant advised that she declared her criminal
record when applying for fixed term casual work with the respondent transport
company. The complainant was employed for the term of her contract without
incident. The complainant claimed that, some months later, she became aware that
the company was offering similar work, but she was not contacted. She alleged
that another employee told her that she was not offered additional work because
of her criminal record.

The respondent company confirmed that the complainant was not offered further
work, but denied this was because of her criminal record. The company said there
was urgency to the recruitment process, so calls were made to people on a
register of potential employees. The first people on the register who indicated
they were available, were offered the work.

An initial conciliation conference was held, but the complaint could not be
resolved, so the matter was referred to the President for further inquiry and
possible reporting. At this stage, the parties were offered another opportunity
for conciliation, and the complaint was resolved in this subsequent conciliation
process. The conciliation agreement included that the company would provide the
complainant with a written apology and pay her $5000 compensation.

Complaint regarding a breach of the right to freedom of movement

The complainant lodged a complaint on behalf of transgender people. He
claimed the Commonwealth government’s policy of not issuing a gender
appropriate passport, unless the transgender individual has undergone a
qualifying surgical procedure, breaches the human right of freedom of movement.
The complainant said the Commonwealth will issue a Document of Identity that
does not specify gender, but this is not accepted in all countries or requires
an additional visa to be obtained. The complainant claimed the only document
that gives transgender people the same right to freedom of movement as other
Australian citizens, is a passport which records a gender that is consistent
with the appearance and gender identification of the transgender person.

The Department of Foreign Affairs and Trade (DFAT), which has responsibility
for issuing Australian Passports, advised it has an obligation to protect the
integrity and security of Australian passports, and applies a consistent policy
of issuing passports based on data contained in fundamental identity documents,
such as birth certificates. DFAT said that passport applicants, intending to
travel overseas, have the option of applying for a passport in the gender shown
on their birth certificate, or travelling on a Document of Identity that does
not show any gender. DFAT advised it does not have a policy that a transgender
passport applicant must undergo a qualifying surgical procedure in order to
change the gender on their passport. However, the department issues passports
with the details of an applicant which have been accepted and recorded by
agencies that have the responsibility for determining such matters, such as the
Registrar for Births, Deaths and Marriages. DFAT said there is provision for
particular situations to be considered on a case-by-case basis, but departure
from the requirement to provide a birth certificate, showing the reassigned
gender, would only occur in exceptional circumstances.

The complaint was resolved at a conciliation conference. DFAT agreed to amend
its standard exceptions policy to cover situations where an applicant claims
they are unable to obtain a revised birth certificate in their identified gender
because they cannot complete sex reassignment surgery due to a pre-existing
medical condition, or because surgery carried a higher than normal risk, with
the result that a relevant medical practitioner considered completion of the
surgery to be dangerous or life threatening. The department also undertook to
develop a new training package for passport interviewing officers, using
material the complainant provided on the sex and gender diverse community.

Alleged criminal record discrimination in employment

The complainant advised the Commission that, on his police record, he has two
charges without conviction. These are a charge of criminal damage to property in
1999, for which he had to pay $1000 court fees, and a charge of theft of a
clothing item in 2003, for which he had to pay $100 court fees. The complainant
was offered a job as a consultant at the respondent bank, subject to a
satisfactory police record check. He claimed that, prior to commencing work, he
advised his team leader that he had charges which may or may not show up on his
police record, and explained what these were. The complainant said he worked for
three weeks with the bank, and performed well, but when the bank received his
police record check, his employment was terminated. The complainant claimed his
criminal record did not prevent him from fulfilling his work responsibilities.
He also said that, if the bank was of the view that he was unsuitable for the
role, it should have raised this when he first advised of his police record.

The bank claimed the position the complainant applied for involved access to
customer accounts, and therefore, it was imperative that a person in this role
be honest, trustworthy and of good character. The bank said that, in light of
the complainant’s criminal record, it was not satisfied the complainant
could fulfill the inherent requirements of the role.

The complaint was resolved with an agreement that the bank would pay the
complainant $3000 compensation and review its policy regarding the appointment
of prospective employees prior to receipt of a satisfactory police record
check.

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4.3 Reported
complaints

As noted previously in this chapter, complaints which allege a breach of
human rights or discrimination under the Human Rights and Equal Opportunity
Commission Act, cannot be taken to court for determination. The Commission
attempts to resolve such complaints through conciliation, where appropriate.
Where a complaint is not resolved, and the President is satisfied that a breach
of human rights or an act of discrimination has occurred, the President reports
on the matter to the federal Attorney-General. The President can make
recommendations to compensate for loss or injury suffered by the complainant,
but these recommendations are not legally enforceable.

Additional information about reports to the Attorney-General is available on
the Commission’s website at:
www.humanrights.gov.au/legal/humanrightsreports/index.html. The Commission is
working with the Australasian Legal Information Institute (Austlii) to make its
reports available on the Austlii website. As a part of this process, the
Commission is adopting a standard international form of citation for its
reports: ‘AusHRC XX’.

In 2008-09, one report to the Attorney-General was issued.

4.3.1 Immigration
detainees v Commonwealth (Department
of Immigration and Citizenship)
(2009) AusHRC 40

This report arose from three separate complaints relating to the same events.
An initial complaint was lodged with the Commission by an immigration detainee,
on his own behalf, and on behalf of 21 other detainees at Villawood Detention
Centre. Subsequently, three other detainees requested and were granted leave to
be joined to the first complaint. Two other detainees lodged separate complaints
relating to the same events. All of the complainants alleged that their human
rights had been breached by the Department of Immigration and Citizenship (DIAC)
(which, at the time the complaints were filed, was known as the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA)) and GSL
(Australia) Pty Ltd.

The complainants advised they were asylum seekers alleging persecution by the
People’s Republic of China. The complainants claimed that, in May 2005,
DIMIA had arranged for them to be interviewed by four Chinese Ministry of Public
Security officials and, in these interviews, the officials: refused to say where
they were from; revealed they had information about the complainants’
families; and asked the complainants whether they had applied for protection
visas. The complainants said they did not know why they were being interviewed
and felt frightened and threatened. They claimed that after the interviews, some
of their families in the People’s Republic of China were
‘disturbed’ and ‘interrogated’. The complainants also
alleged that, after the interviews, some of them were placed in a separate
detention unit for up to 15 days and were mistreated. The alleged mistreatment
included being locked up for 24 hours, being given cold food, being refused
medical or legal assistance, and being refused any form of communication with
people outside the unit.

In response to the complaints, DIMIA confirmed that it had arranged for the
complainants to be interviewed by officials from the Chinese Ministry of Public
Security in order to ascertain their identity. The department conceded that
supervision of the interviews was inadequate and that the interview process was
flawed. DIMIA confirmed that some complainants had been placed in separate
accommodation within the detention centre and kept there until the final
interview had been completed. DIMIA denied that the complainants were mistreated
while in separate detention.

The former President of the Commission found that the Commonwealth had
breached the human rights of the 26 immigration detainees in relation to the
manner in which interviews with the Chinese Ministry of Public Security were
conducted, and the separate detention of some of the immigration detainees
following the interviews. The former President found that the acts of the
Commonwealth in relation to these events breached the right to be treated with
humanity and dignity (art 10(1) of the ICCPR) and the right not to be subject to
arbitrary interference with privacy (art 17(1) of the International Covenant
on Civil and Political Rights
).

The former President recommended that the Commonwealth pay $5000 in
compensation to those complainants who had their human rights breached as a
result of the interviews and an additional $4000 to those complainants who were
placed in separate detention. The former President also recommended that the
Commonwealth provide a formal written apology to each of the complainants.
Finally, the former President made recommendations about actions that should be
taken by the Commonwealth to prevent such breaches in the future. These
recommendations included that such interviews should only be conducted when all
other means of ascertaining identity have been exhausted, and should be
conducted by the department with the assistance of overseas officials, rather
than by the overseas officials themselves.

The Department of Immigration and Citizenship has informed the Commission
that it accepts certain acts complained of were inconsistent with the
complainants’ human rights and proposes to take action in accordance with
the President’s recommendations.

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4.4 Complaint
statistics

4.4.1 Overview of
statistics

Enquiries and complaints received

Over the past five reporting periods, the Commission received an average of
15 366 enquiries per year. In 2008-09, the Commission received 20 188 enquiries,
which represents a 31 percent increase in comparison with the average and an
eight percent increase in comparison with the number received in the previous
reporting period. Over the past five years, the number of enquiries the
Commission receives each year has increased by 103 percent.

Over the past five years, the Commission received an average of 1749
complaints per year. In 2008-09, the Commission received 2253 complaints, which
represents a 29 percent increase in comparison with the average and an 8 percent
increase in comparison with the number received in the previous reporting
period. Over the past five years, the number of complaints the Commission
receives has increased by 81 percent.

In 2008-09, 43 percent of complaints received were lodged under the
Disability Discrimination Act, 24 percent under the Sex Discrimination Act, 18
percent under the Racial Discrimination Act, 8 percent under the Human Rights
and Equal Opportunity Commission Act and 7 percent under the Age Discrimination
Act. For the past five reporting periods, the majority of complaints have been
lodged under the Disability Discrimination Act and the Sex Discrimination
Act.

As in previous years, employment was the main area of complaint under all
federal anti-discrimination legislation. In 2008-09, complaints regarding
employment constituted: 54 percent of complaints under the Racial Discrimination
Act; 91 percent of complaints under the Sex Discrimination Act; 40 percent of
complaints under the Disability Discrimination Act; and 59 percent of complaints
under the Age Discrimination Act.

The majority of complaints received under the Human Rights and Equal
Opportunity Commission Act related to discrimination in employment on the ground
of criminal record and alleged breaches of the International Covenant on
Civil and Political Rights
. These have been the main subject areas of
complaint for the past five years.

Conciliation of complaints

Out of the complaints finalised in 2008-09, 48 percent were conciliated. This
is the same as the conciliation rate for the previous reporting period and is
6 percent higher than the average conciliation rate over the past five
reporting periods. In matters where conciliation was attempted in 2008-09, 68
percent were able to be resolved.

As was the case in the last reporting period, complaints under the Racial
Discrimination Act had the highest conciliation rate (55 percent) and a high
conciliation success rate (72 percent). The higher conciliation rate for race
discrimination complaints, over the past two reporting periods, is partly due to
the resolution of a group of complaints against the same respondent, relating to
the same subject matter. Complaints under the Sex Discrimination Act had the
second highest conciliation rate (48 percent) and a conciliation success rate of
63 percent. Complaints under the Disability

Discrimination Act had a conciliation rate of 47 percent and a conciliation
success rate of 69 percent. In this reporting period, complaints under the Age
Discrimination Act had a conciliation rate of 43 percent and a conciliation
success rate of 67 percent, while 32.5 percent of finalised complaints under the
Human Rights and Equal Opportunity Commission Act were successfully
resolved.

Demographic data

Information on the geographical location and ethnicity of complainants is
provided in Tables 10, 13 and 14 below.

Demographic data obtained during the complaint process indicates that
48
percent of complaints were lodged by individual females, 46 percent by
individual males and 6 percent by other categories, for example, multiple
complainants and organizations or individuals on behalf of others.

Forty-one percent of complainants reported that they knew about the
Commission prior to lodging their complaint. The main identified sources of
information for others were legal centres or private lawyers (12 percent),
family members or friends (11 percent), the internet (6 percent), a government
agency (4 percent) and a disability organisation or advocate (4 percent).

The majority of complainants (62 percent) indicated that their main source of
income at the time of the alleged act was from full-time, part-time or casual
employment.

Approximately 35 percent of complainants indicated that they had legal or
other representation at the beginning of the complaint process. Forty percent of
this group were represented by privately funded solicitors. Other forms of
representation were: other advocate groups such as working women’s centres
or disability advocacy services (24 percent); community legal centres, such as
Indigenous or disability legal services (14 percent); family members or friends
(11 percent); and trade unions or professional associations (11 percent).

Data collected on respondent categories indicates that, in the last reporting
period, approximately 48 percent of complaints were against private enterprise,
12 percent were against state departments/statutory authorities and 9 percent
were against Commonwealth departments/statutory authorities. These have been the
main respondent organisation categories for the last five reporting periods.
Complete information on respondent categories is provided in Table 15 below.

Complaint Information
Service

Table 4: Website
enquiries
Table 5:
Telephone, TTY, email, in-person

and written enquiries
received
Table 6:
Enquiries received by issue
Race
2754
Race – racial hatred
738
Sex – direct
819
Sexual harassment
1139
Sex – marital status, family responsibilities, parental status,
carers responsibilities, breast feeding
551
Sex – pregnancy
848
Sexual preference, transgender, homosexuality, lawful sexual activity
212
Disability – impairment
3250
Disability – HIV/AIDS/Hepatitis
79
Disability – workers compensation
270
Disability – mental health
631
Disability – intellectual/learning disability
274
Disability – maltreatment/negligence
39
Disability – physical feature
135
Age – too young
171
Age – too old
501
Age – compulsory retirement
7
Criminal record/conviction
390
Political opinion
35
Religion/religious organisations
284
Employment – personality conflicts/favouritism
301
Employment – union/industrial activity
137
Employment – unfair dismissal/other industrial issues
4953
Employment – workplace bullying
2680
Human rights – children
176
Human rights – civil, political, economic, social
1231
Immigration – detention centres
71
Immigration – visas
254
Prisons/prisoners
173
Police
312
Court – family court
190
Court – other law matters
307
Privacy – data protection
156
Neighbourhood disputes
95
Advertising
58
Local government – administration
96
State government – administration
588
Federal government – administration
832
Other
2636
Total*
28 373

* One enquiry may have multiple issues.

Table 7:
Enquiries received by state of origin
State of origin
Total
Percentage (%)
New South Wales
6824
34
Victoria
4390
22
South Australia
1330
6
Western Australia
1330
6
Queensland
3008
15
Australian Capital Territory
549
3
Tasmania
534
3
Northern Territory
354
2
Unknown/overseas
1869
9
Total
20 188
100

4.4.3 Complaints
overview

Table 8:
National complaints received

and finalised over the past five
years
2004-05
2005-06
2006-07
2007-08
2008-09
Received
1241
1397
1779
2077
2253
Finalised
1233
1205
1656
1883
2354
Table 9:
Outcomes of national complaints

finalised over the past five years
2004-05
%
2005-06
%
2006-07
%
2007-08
%
2008-09
%
Terminated/
declined
46
44
48
39
34
Conciliated
38
39
38
48
48
Withdrawn
16
16
14
13
18
Reported
(Human Rights and Equal Opportunity Act only)
1
Table 10: State
of origin of complainant at time of lodgement
State of origin
Total
Percentage (%)
New South Wales
753
33
Victoria
480
21
South Australia
236
11
Western Australia
160
7
Queensland
485
22
Australian Capital Territory
61
3
Tasmania
32
1
Northern Territory
17
1
Unknown/overseas
29
1
Total
2253
100
Table 11:
Complaints received and finalised by Act
Act
Received
Finalised
Racial Discrimination Act
396
392
Sex Discrimination Act
547
542
Disability Discrimination Act
980
1117
Age Discrimination Act
151
141
Human Rights and Equal
Opportunity Commission Act
179
162
Total
2253
2354
Figure 2: Complaints received by
Act
Pie graph
ν 43% Disability Discrimination Act
ν 24% Sex Discrimination Act
ν 18% Racial Discrimination Act
ν 8% Human Rights and Equal
Opportunity Commission
Act
ν 7% Age Discrimination Act
Table 12:
Complaints received by Act over the past five years
2004-05
2005-06
2006-07
2007-08
2008-09
Racial Discrimination Act (RDA)
167
259
250
376
396
Sex Discrimination Act (SDA)
348
347
472
438
547
Disability Discrimination Act (DDA)
523
561
802
988
980
Age Discrimination Act (ADA)
78
106
106
126
151
Human Rights and Equal Opportunity Commission Act (HREOCA)
125
124
149
149
179
Total
1241
1397
1779
2077
2253
Table 13:
Country of birth – complainants
RDA
(%)
SDA
(%)
DDA
(%)
ADA
(%)
HREOCA (%)
Total
(%)
Born in Australia
50
52
56
65
39
53
Born outside of Australia
45
16
15
27.5
23
22
Unknown/
unspecified
5
32
29
7.5
38
25
Table 14:
Indigenous status – complainants
RDA
(%)
SDA
(%)
DDA
(%)
ADA
(%)
HREOCA (%)
Total
(%)
Aboriginal
42
2
2
2
3
9
Torres Strait Islander
None of the above
58
98
98
98
97
91
Table 15:
Respondents by category
RDA
(%)
SDA
(%)
DDA
(%)
ADA
(%)
HREOCA (%)
Total
(%)
Individual male
15
26
6.5
10
8
13
Individual female
5
4
4
3
4
4
Private enterprise
28
53
53
57
39
48
Common-wealth government department/statutory authority
7
7
8
6
28
9
State government department/
statutory authority
23
3
13
6.5
14
12
Local government
1
2
1
1
Government Business Enterprise
1
2.5
0.5
1
1
Educational institution
2
2
6
6
1
4
Trade union
/professional association
1
1
3
0.5
1
Not for profit organisat-ion/non government
16
1
1
3
2
4
Clubs/
incorporated associations
1
2
3
3
0.5
2
Other
1
1
2
1
1
Table 16: Time
from receipt to finalisation for finalised complaints
RDA
(%)
SDA
(%)
DDA
(%)
ADA
(%)
HREOCA (%)
Cumulative Total (%)
0-6 months
60
56
49
53
52
53
6-9 months
78
82
76
78
78
78
9-12 months
88
95
93
93
93
93
More than 12 months
100
99
100
100
99
100
More than 24 months
100
100

4.4.4 Racial
Discrimination Act

Table 17: Racial
Discrimination Act –

complaints received and
finalised
Racial Discrimination Act
Total
Received
396
Finalised
392
Table 18: Racial
Discrimination Act –

complaints received by ground
Racial Discrimination Act
Total
Percentage (%)
Colour
40
7
National origin/extraction
65
11
Ethnic origin
95
15
Descent
4
1
Race
316
51
Victimisation
20
3
Racial hatred
50
8
Aids, permits or instructs
6
1
Association
2
Immigrant
19
3
Total*
617
100

* One complaint may have multiple grounds.

Table 19: Racial
Discrimination Act –

complaints received by area
Racial Discrimination Act
Total
Percentage (%)
Rights to equality before the law
1
Access to places and facilities
10
2
Land, housing, other accommodation
2
Provision of goods and services
140
23
Right to join trade unions
Employment
331
54
Advertisements
Education
14
2
Incitement to unlawful acts
2
Other – section 9
54
9
Racial hatred
63
10
Total*
617
100

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

Table 20: Racial
hatred complaints received by sub-area
Racial Discrimination Act
Total
Percentage (%)
Media – press/TV/radio
15
30
Disputes between neighbours
8
16
Personal conflict
3
6
Employment
4
8
Racist propaganda
1
2
Internet – email/webpage/chat room
9
18
Entertainment
Sport
2
4
Public debate
Provision of goods and services
5
10
Other
3
6
Total*
50
100

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

Table 21: Racial
Discrimination Act –

outcomes of finalised complaints
Racial Discrimination Act
Total
Terminated
126
At complainant’s request – s 46PE
Not unlawful
1
More than 12 months old
6
Trivial, vexatious, frivolous, misconceived, lacking in substance
38
Adequately dealt with already
1
More appropriate remedy available
Subject matter of public importance
No reasonable prospect of conciliation
80
Withdrawn
43
Withdrawn, does not wish to pursue, advised the Commission
43
Withdrawn, does not wish to pursue, settled outside the Commission
Conciliated
206
Administrative closure*
17
Total
392

* Not an aggrieved party, state complaint previously lodged.

Figure 3: Racial
Discrimination Act –

outcomes of finalised complaints
Pie graph
ν 55% Conciliated
ν 21% Terminated – no reasonable
prospect of
conciliation
ν 12% Terminated – other reason
ν 12% Withdrawn

4.4.5 Sex
Discrimination Act

Table 22: Sex
Discrimination Act –

complaints received and
finalised
Sex Discrimination Act
Total
Received
547
Finalised
542
Table 23: Sex
Discrimination Act –

complaints received by sex of
complainant
Sex Discrimination Act
Total
Percentage (%)
Female
471
86
Male
73
13
Other category (joint/multiple or individual/organisation on behalf
of
other)
3
1
Total
547
100
Table 24: Sex
Discrimination Act –

complaints received by ground
Sex Discrimination Act
Total
Percentage (%)
Sex discrimination
419
43
Marital status
28
3
Pregnancy
215
22
Sexual harassment
209
22
Parental status/ family responsibility
63
7
Victimisation
30
3
Aids, permits, instructs (s 105)
Total*
964
100

* One complaint may have multiple grounds.

Table 25: Sex
Discrimination Act –

complaints received by area
Sex Discrimination Act
Total
Percentage (%)
Employment
879
91
Goods, services and facilities
67
7
Land
Accommodation
2
Superannuation, insurance
Education
6
1
Clubs
2
Administration of Commonwealth laws and programs
7
1
Application forms etc
Trade unions, accrediting bodies
1
Total*
964
100

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

Table 26: Sex
Discrimination Act –

outcomes of finalised complaints
Sex Discrimination Act
Total
Terminated
183
At complainants request – s 46PE
Not unlawful
7
More than 12 months old
7
Trivial, vexatious, frivolous, misconceived, lacking in substance
20
Adequately dealt with already
2
More appropriate remedy available
Subject matter of public importance
No reasonable prospect of conciliation
147
Withdrawn
79
Withdrawn, does not wish to pursue, advised the Commission
79
Withdrawn, does not wish to pursue, settled outside the Commission
Conciliated
246
Administrative closure*
34
Total
542

* Not an aggrieved party, state complaint previously lodged.

Figure 4: Sex Discrimination Act –
outcomes of finalised complaints
Pie graph
ν 48% Conciliated
ν 29% Terminated – no reasonable
prospect of
conciliation
ν 7% Terminated – other reason
ν 16% Withdrawn

4.4.6 Disability
Discrimination Act

Table 27:
Disability Discrimination Act –

complaints received and
finalised
Disability Discrimination Act
Total
Received
980
Finalised
1117
Table 28: Nature
of complainant’s disability
Disability Discrimination Act
Total
Percentage (%)
Physical disability
221
15
A mobility aid is used (e.g. walking frame or wheelchair)
103
7
Physical disfigurement
15
1
Presence in the body of organisms causing disease (e.g. HIV/AIDS)
15
1
Presence in the body of organisms causing disease (other)
7
1
Psychiatric disability
180
12
Neurological disability (e.g. epilepsy)
176
12
Intellectual disability
29
2
Learning disability
36
2
Sensory disability (hearing impaired)
46
3
Sensory disability (deaf)
85
6
Sensory disability (vision impaired)
170
12
Sensory disability (blind)
21
1
Work-related injury
88
6
Medical condition (e.g. diabetes)
202
14
Other
80
5
Total*
1474
100

* One complainant may have multiple disabilities.

Table 29:
Disability Discrimination Act –

complaints received by
ground
Disability Discrimination Act
Total
Percentage (%)
Disability of person(s) aggrieved
1912
94
Associate
53
3
Disability – person assisted by trained animal
17
1
Disability – accompanied by assistant
1
Disability – use of appliance
6
Harassment
7
Victimisation
14
1
Aids, permits or instructs
25
1
Total*
2035
100

* One complainant may have multiple grounds.

Table 30:
Disability Discrimination Act –

complaints received by
area
Disability Discrimination Act
Total
Percentage (%)
Employment
822
40
Goods, services and facilities
710
35
Access to premises
44
2
Land
2
Accommodation
27
1
Incitement to unlawful acts or offences
Advertisements
Superannuation, insurance
15
1
Education
191
9
Clubs, incorporated associations
30
2
Administration of Commonwealth laws and programs
35
2
Sport
4
Application forms, requests for information
2
Trade unions, registered organisations
Unlawful to contravene Disability Standard
153
8
Total*
2035
100

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

Table 31:
Disability Discrimination Act –

outcomes of finalised
complaints
Disability Discrimination Act
Total
Terminated
357
At complainants request – s 46PE
Not unlawful
12
More than 12 months old
4
Trivial, vexatious, frivolous, misconceived, lacking in substance
97
Adequately dealt with already
3
More appropriate remedy available
4
Subject matter of public importance
No reasonable prospect of conciliation
237
Withdrawn
224
Withdrawn, does not wish to pursue, advised the Commission
223
Withdrawn, does not wish to pursue, settled outside the Commission
1
Conciliated
518
Administrative closure*
18
Total
1117

* Not an aggrieved party, state complaint previously lodged.

Figure 5: Disability Discrimination Act

outcomes of finalised complaints
Pie graph
ν 47% Conciliated
ν 22% Terminated – no reasonable
prospect of
conciliation
ν 11% Terminated – other reason
ν 20% Withdrawn

4.4.7 Age
Discrimination Act

Table 32: Age
Discrimination Act –

complaints received and
finalised
Age Discrimination Act
Total
Received
151
Finalised
141
Table 33: Age
Discrimination Act –

complaints received by age of
complainant
Age Discrimination Act
Total
Percentages (%)
0 – 14 years
3
2
15 – 24 years
21
14
25 – 34 years
10
7
35 – 44 years
8
5
45 – 54 years
27
18
55 – 64 years
47
31
> 65 years
23
15
Unknown
12
8
Total
151
100
Table 34: Age
Discrimination Act –

complaints received by area
Age Discrimination Act
Total
Percentage (%)
Employment
168
59
Goods, services and facilities
88
31
Access to premises
2
0.75
Land
2
0.75
Accommodation
2
0.75
Incitement to unlawful acts or offences
Advertisements
2
0.75
Superannuation, insurance
7
2
Education
11
4
Clubs, incorporated associations
Administration of Commonwealth laws and programs
3
1
Sport
Application forms, requests for information
Trade unions, registered organisations
Total*
285
100

* One complaint may have multiple and different areas.

Table 35: Age
Discrimination Act –

outcomes of finalised complaints
Age Discrimination Act
Total
Terminated
51
At complainants request – s 46PE
Not unlawful
4
More than 12 months old
Trivial, vexatious, frivolous, misconceived, lacking in substance
18
Adequately dealt with already
More appropriate remedy available
Subject matter of public importance
No reasonable prospect of conciliation
29
Withdrawn
27
Withdrawn, does not wish to pursue, advised the Commission
27
Withdrawn, does not wish to pursue, settled outside the Commission
Conciliated
60
Administrative closure*
3
Total
141

* Not an aggrieved party, state complaint previously lodged.

Figure 6: Age Discrimination Act –
outcomes of finalised complaints
Pie graph
ν 43% Conciliated
ν 21% Terminated – no reasonable
prospect of
conciliation
ν 16% Terminated – other reason
ν 20% Withdrawn

4.4.8 Human Rights and
Equal Opportunity Commission Act

Table 36: HREOCA
– complaints received and finalised
Human Rights and Equal Opportunity Commission Act
Total
Received
179
Finalised
162
Table 37: HREOCA
– 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)
23
13
Political opinion (ILO 111)
2
1
National extraction (ILO 111)
Social origin (ILO 111)
Age (ILO 111)
Medical record (ILO 111)
Criminal record (ILO 111)
72
40
Impairment (including HIV/AIDS status) (ILO 111)
1
0.5
Marital status (ILO 111)
Disability (ILO 111)
Nationality (ILO 111)
Sexual preference (ILO 111)
17
9
Trade union activity (ILO 111)
14
8
International Covenant on Civil and Political Rights
48
26
Declaration on the Rights of the Child
Declaration on the Rights of Mentally Retarded Persons
Declaration on the Rights of Disabled Persons
1
0.5
Convention on the Rights of the Child
4
2
Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief
Not a ground within jurisdiction
Not a human right as defined by the Act
Total*
182
100

* One complaint may have multiple grounds.

Table 38: HREOCA
– complaints received by area
Human Rights and Equal Opportunity
Commission Act
Total
Percentage (%)
Acts or practices of the Commonwealth
54
30
Employment
128
70
Not act or practice of the Commonwealth
(not employment cases)
Total*
182
100

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

Table 39: HREOCA
– non-employment

complaints received by sub-area
Human Rights and Equal Opportunity Commission Act
Total
Percentage (%)
Prisons, prisoner
2
4
Religious institutions
Family court matters
Other law court matters
Immigration
44
81
Law enforcement agency
1
2
State agency
Other service provider (private sector)
Local government
Education systems
Welfare systems
3
6
Personal or neighbourhood conflict
Health system
Other
4
7
Total
54
100
Table 40: HREOCA
– outcomes of finalised complaints
Human Rights and Equal Opportunity Commission Act
Total
Declined
104
Does not constitute discrimination
18
Human rights breach, not inconsistent or contrary to any human right
5
More than 12 months old
2
Trivial, vexatious, frivolous, misconceived, lacking in substance
31
Adequately dealt with already
4
More appropriate remedy available
7
Withdrawn, does not wish to pursue, advised the Commission
37
Withdrawn, does not wish to pursue, settled outside the Commission
Withdrawn or lost contact
Conciliated
52
Referred for reporting*
4
Administrative closure**
2
Total
162

* 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, state complaint previously lodged.

Figure 7: Human Rights and Equal Opportunity
Commission Act – outcomes of finalised complaints
Pie graph
ν 42% Declined
ν 32.5% Conciliated
ν 23% Withdrawn
ν 2.5% Referred for reporting

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