Skip to main content

HREOC - Annual Report 2001 - 2002: Chapter 2: Complaint Handling Section

Human Rights and Equal Opportunity Commission

Annual Report 2001-2002

Chapter 2: Complaint Handling Section

Introduction

The Complaint
Handling Section had a productive year investigating and conciliating
complaints of alleged discrimination and human rights breaches; providing
information to the public about federal anti-discrimination and human
rights law through its Complaint Information Service and community
education and liaison program; and providing complaint investigation
and resolution skills training to state equal opportunity, anti-discrimination
authorities, other Australian Public Service agencies and private
companies.

In summary:

  • 1271 complaints
    were received.
  • 1298 complaints
    were finalised.
  • 30 percent
    of finalised complaints were conciliated.
  • 88 percent
    of complaints were finalised within 12 months of lodgement.
  • 8 052 telephone,
    email, TTY and in person enquiries were received through the Complaint
    Information Service.
  • 759 written
    enquiries were responded to.
  • Approximately
    155 organisations throughout all states and territories attended
    information sessions on the complaint handling process.
  • Seven specialist
    investigation and/or conciliation skill training courses were conducted
    for Complaint Handling Section staff, staff from State and Territory
    Equal Opportunity Commissions, government and non-government agencies.
  • Ten skills
    training courses in statutory investigation were conducted for the
    Australian Public Service through the Australian Public Service
    Commission.

The Commission
is responsible for the investigation and conciliation of complaints
under the Human Rights and Equal Opportunity Commission Act 1986,
the Racial Discrimination Act 1975, the Sex Discrimination
Act 1984
and the Disability Discrimination Act 1992.

This legislation
provides for complaints of discrimination or breaches of human rights
to be made to the Commission. Complaints are referred to the President,
who is responsible for inquiring into the complaint. After inquiry,
the President must decide whether to terminate the complaint or attempt
to settle the complaint through conciliation.

Complainants
who allege unlawful race, sex or disability discrimination and whose
complaint is terminated by the President because it cannot be resolved
by conciliation or for another statutory reason, may apply to have
their complaint heard by the Federal Court of Australia or the Federal
Magistrates Service. Complaints lodged under the Human Rights and
Equal Opportunity Commission Act 1986
concerning discrimination
in employment or a breach of human rights by the Commonwealth, which
cannot be conciliated may, after Notice, be made the subject of a
report to the Attorney-General for presentation to Parliament.

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

In the 2001-02
reporting year, complaints were received from all states and territories.
Complaints were lodged by complainants from capital cities, large
regional centres and rural and remote Australia. Most complaints were
made directly to the Commission through its office in Sydney and the
Commission's online complaint form. A number of complaints were also
referred from state anti-discrimination and equal opportunity agencies.

Along with its
formal statutory complaint handling function, the Complaint Handling
Section receives a large number of enquiries from people seeking advice
and assistance in relation to possible breaches of federal anti-discrimination
legislation. These enquiries may be made by telephone, in person,
in writing or by email. Many enquirers are utilising the electronic
enquiry facility made available by the Commission. Enquirers are provided
with information about the legislation and the complaint handling
process. When appropriate, enquirers are encouraged to resolve matters
directly and informally with the people involved in their dispute.
When it appears that a formal complaint should be made, enquirers
are sent a Complaint Guide and complaint form or directed to
the online complaint facility and website.

When the Commission
cannot assist, every effort is made to refer the caller to another
appropriate avenue of redress. The Commonwealth and State Industrial
Relations Commissions and Ombudmans' offices are common referral points.
When complaints of discrimination are not covered by federal law,
callers are referred to the relevant state authorities.

Key performance indicators
and goals

  • Timeliness.
    The Complaint Handling Section's stated performance measure is for
    75 percent of complaints to be finalised within 12 months of date
    of receipt. In 2001-02 88 percent of matters were finalised 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 13.
  • Conciliation
    rate.
    The Complaint Handling Section's stated performance measure
    is for 30 percent of finalised complaints to be conciliated. In
    2001-02 this goal was achieved with a 30 percent conciliation rate.
  • Customer
    Satisfaction Survey
    . The Complaint Handling Section's stated
    performance measure is for 80 percent of parties to be satisfied
    with the complaint handling process. Data for 2001-02 indicates
    that 83 percent of parties were satisfied with the service they
    received. Of this 83 percent, 47 percent rated the service they
    received as 'very good' or 'excellent'. Further details of survey
    results for this reporting year are provided below.

Customer satisfaction
survey

The Complaint
Handling Section's customer satisfaction survey has been in operation
since December 1997. The survey is used to obtain feedback from complainants
and respondents (or their advocates) involved in the complaint handling
process. Survey results for 2001-02 indicate that:

  • Seventy seven
    (77) percent of complainants and 92 percent of respondents felt
    that staff explained things in a way that was easy for them to understand.
  • Eighty three
    (83) percent of complainants and 99 percent of respondents felt
    that forms and correspondence from the Commission were easy to understand.
  • Sixty one
    (61) percent of complainants and 72 percent of respondents felt
    that the Commission dealt with the complaint in a timely manner.
  • Eighty eight
    (88) percent of complainants and 94 percent of respondents described
    complaint handling staff as unbiased.

Survey results
for 2001-02 are generally similar to survey results for the past two
years.

Service charter

The Complaint
Handling Section's service charter provides a clear and accountable
commitment to service. It also provides an avenue through which users
can understand the nature and standard of service they can expect
and contribute to service improvement. All complainants are provided
with a copy of the charter and respondents receive a copy when they
are notified of a complaint against them.

During 2001-02
the Commission did not receive any complaints about its services through
the charter's formal complaint mechanism. It is noted that where parties
have concerns about the complaint handling process, they are generally
able to resolve their concerns through discussions with the officer
handling the complaint.

Access to services

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

  • The Complaints
    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. Seven thousand, five hundred
    and forty six (7 546) enquirers throughout Australia utilised the
    Complaints Infoline during 2001-02. Enquirers can also email complaintsinfo@humanrights.gov.au.
    Three hundred and seventy nine (379) email enquiries were received
    this year. Further information about the operation of the Complaints
    Information Service is provided later in this section.
  • Complaints
    Information 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. It 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.
  • Online
    Complaint Form.
    This service, which allows complaints to be
    lodged electronically, has been well utilised over the past year.
  • Concise
    Complaint Guide.
    This can be accessed and downloaded in 14 community
    languages.
  • Conciliation
    circuits.

    When required, Investigation Conciliation Officers travel throughout
    Australia to conduct face to face conciliation conferences. Along
    with the conferences conducted in the greater Sydney area, officers
    conducted around 60 conferences in Victoria, 35 in South Australia,
    24 in Queensland, 24 in regional New South Wales, 14 in Western
    Australia, seven in the Australian Capital Territory and six in
    the Northern Territory.
  • Access
    working group.
    The Complaint Handling Section established its
    access working group in 1999. The aim of the group is to improve
    the accessibility of the complaint handling service. Tasks undertaken
    by the working group in the past year included development of an
    information brochure for Indigenous clients and the design and presentation
    of an information session for people with an intellectual disability.
  • Community
    education and state liaison.
    The Complaint Handling Section
    provides information sessions concerning the Commission's complaint
    information and investigation and conciliation services to community
    and stakeholder organisations throughout Australia. Presentations
    to staff and representatives from approximately 155 organisations
    and groups were made in 2001-02. Presentations took the form of
    informal and formal staff meetings and group presentations. The
    organisations visited included community legal centres, ethnic community
    centres, disability and Aboriginal legal services. The regions covered
    included Brewarrina and Broken Hill (New South Wales); Charleville
    and Roma (Queensland); Albany and Carnarvon (Western Australia);
    Port Lincoln and Port Augusta (South Australia); Darwin (Northern
    Territory); Mildura and Melbourne (Victoria); and Launceston and
    Hobart (Tasmania).

Arrangements with state
agencies

Victoria

The Commission
has a formal referral arrangement with the Equal Opportunity Commission,
Victoria whereby Victorians who elect to lodge a complaint under federal
legislation may lodge a complaint through the Referral Centre. Once
the complainant has elected federal jurisdiction the complaint is
referred to Sydney for handling. Sixty six (66) complaints were referred
from the Equal Opportunity Commission, Victoria in 2001-02. Victorians
can also lodge their complaint directly with the Commission through
the Sydney office by post or online. A total of 237 complaints were
received from Victoria this year.

Queensland, South Australia,
Northern Territory

The Commission
has arrangements with the Queensland, South Australian and Northern
Territory Equal Opportunity Commissions whereby these agencies display
Commission publications and allow Complaint Handling Section staff
to use their facilities for conciliation conferences, community education
or training. Informal referral arrangements are also in place whereby
these agencies will forward complaints under federal law to the Commission.
Alternatively, complainants can choose to lodge complaints under federal
jurisdiction directly with the Commission in Sydney, by post or online.

Tasmania, Western Australia,
Australian Capital Territory

Residents of
these states and territory have a choice of electing to lodge complaints
under state anti-discrimination law or lodging complaints under federal
law directly with the Commission in Sydney, by post or online.

Election of jurisdiction

As many complainants
may choose between federal and state laws to lodge their complaint,
the Commission has produced an information sheet about this process.
It is available on the Commission's website at: www.humanrights.gov.au/complaints_information/jurisdiction/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 2001-02
two statutory investigation and two statutory conciliation courses
were run for Commission staff and staff from anti-discrimination agencies
in New South Wales, Queensland, South Australia, Northern Territory
and the Australian Capital Territory. Variations of these courses
were also run for staff of another Commonwealth agency and managers
of a large national company. Feedback on these courses has been very
positive with 76 percent of participants rating the course as 'excellent'
and 24 percent rating the course as 'very good' .[1]

The Commission
has also worked in partnership with the Australian Public Service
Commission to provide a two day investigation training course for
Australian Public Service staff around Australia. 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. This course has been extremely popular
and in the past year senior complaint handling staff have delivered
two courses in Sydney, two in Melbourne, one in Adelaide, one in Brisbane
and in-house courses were run for Centrelink, the Department of Veterans
Affairs and the Health Insurance Commission. Feedback from these courses
has also been very positive with 93 percent of participants indicating
that their learning needs were met to a 'high degree' or 'largely
met' and 98 percent rating course presentation as 'excellent' or 'very
good' .[2]

During 2001-02
three complaint handling officers continued study towards obtaining
Certificate IV accreditation in Assessment and Workplace Training.
Four senior officers have already obtained this certification. Staff
of the Complaint Handling Section also attended various seminars and
training courses relating to human rights and anti-discrimination
law throughout the year including the Annual National Community Legal
Conference in Fremantle, the Second Diversity Conference in Geelong
and the National Conference on Racism in Sydney.

In 2001-02 the
Complaint Handling Section also undertook a research project which,
in part, examined the impact of the Human Rights Legislative Amendment
Act 1999
on the Commission's complaint handling work. The research
project considered the impact of legislative change on the number
of complaints received, the level of legal representation of parties,
complaint outcomes and complaint settlement amounts. The research
project also sought to gather information in relation to the Commission's
conciliation process and reasons for withdrawal of complaints. In
particular, the project considered parties' satisfaction with conciliated
outcomes, reasons for settlement and what, if any, concerns parties'
had about a court determination process. Details of the findings of
this project will be available by the end of the year on the Commission's
website.

Other work

In the early
part of the reporting year, the Complaint Handling Section provided
a practicum placement for a trainee mediator undertaking the Relationship
Australia Course in Mediation.

In December 2001,
a senior officer from the Complaint Handling Section travelled to
Indonesia to continue work on a capacity building project with the
Indonesian National Commission of Human Rights (Komnas Ham). This
project is assisting Komnas Ham to develop and implement a computerised
complaints management system. The Commission had previously worked
with an IT consultant to complete a business process analysis of the
complaint process and information requirements. This visit furthered
the project by providing technical assistance to staff in reviewing
and finalising specifications and planning the implementation of the
system.

In December 2001
an officer from the Complaint Handling Section assisted the Fiji Human
Rights Commission, through the Asia Pacific Forum, to conduct two
workshops on human rights education.

In April 2002,
two senior officers from the Complaint Handling Section travelled
to Beijing to assist in negotiations with Chinese agencies regarding
activity development as part of the China-Australia Human Rights Technical
Cooperation Program. This program is funded by the Australian Agency
for International Development (AusAID) and is implemented by the Commission.
Further information on the Commission's work on this program is provided
at Chapter 9 of this Report.

Staff from the
Complaint Handling Section 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 Vietnam, Thailand, China, Korea,
Ireland and Indonesia and to Justice P.N. Bhagwati, Personal Envoy
and Asia Pacific Regional Advisor of the United Nations High Commissioner
for Human Rights.

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.

During 2001-02,
the Commission received 186 complaints under the Racial Discrimination
Act. The majority of these complaints related to employment and the
provision of goods and services. The Complaint Handling Section 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 in the statistics part of this
Chapter.

Complaint
of race and disability discrimination in access to premises

The complainant,
who is Aboriginal and has cerebral palsy, alleged that she was treated
less favourably on the basis of her race and her disability when trying
to enter a hospital to see her sick child. The complainant alleged
that the security guard at the hospital initially swore at her and
refused her entry because he thought she had been drinking. The complainant
claimed that she tried to explain that she was there to visit her
baby and the driver of the bus she had travelled in also spoke to
the guard and advised him that the complainant had a disability which
affects her speech and gait. The complainant claimed that the guard
persisted in questioning her as to whether she had been drinking and
why she was returning to the hospital late in the evening. The complainant
advised that she was eventually allowed to enter the hospital and
that she lodged a complaint with a hospital official the day after
the incident.

The hospital
advised that they had a contractual agreement with the respondent
security firm which stipulated that security guards were required
to question unidentified persons found on the premises after 8pm.
The security firm advised that the guard involved in the matter had
left their employment, but from their records it appeared that the
guard thought that the complainant had been drinking and questioned
the complainant about this when she sought to enter the hospital.
The records indicated that the guard agreed that he spoke with the
bus driver but denied that he swore at the complainant. The guard
claimed that he offered to escort the complainant to the ward but
his offer was declined.

The matter was
resolved by conciliation. The security firm agreed to pay the complainant
$3 000 which included $2 000 in general damages and $1 000 legal costs.
The firm also agreed to provide the complainant with a written apology
and to introduce a comprehensive anti-discrimination policy. The hospital
agreed to pay the complainant $3 000 which comprised $2 000 for general
damages and $1 000 legal costs.

Alleged discrimination
on the ground of race in the provision of goods and services

The complainant
advised that his wife is of Russian background and does not read,
write or speak English. The complainant alleged that he was vilified
because of wife's racial background when he contacted the respondent
state government department to enquire, on his wife's behalf, about
obtaining a particular qualification. The complainant alleged that
a female officer answered his call and when he advised the officer
that his wife was Russian, the officer said "Oh! A mail order
bride eh!" The complainant also alleged that the department discriminated
against his wife in that study guides for the qualification are not
published in Russian.

The department
advised that due to budgetary constraints study guides are not published
in various languages and the department was of the view that non-provision
of the material in Russian did not constitute discrimination on the
ground of race. The department concurred that during a telephone conversation,
a part-time Client Relations Consultant had made the alleged statement
to the complainant in response to the complainant advising the consultant
that he had a "Russian bride".

The complaint
was resolved by conciliation with the department agreeing to pay the
complainant $1 000 compensation for hurt and humiliation and the Client
Relations Consultant agreeing to provide a written apology to the
complainant.

Complaint
of race discrimination in provision of banking services

The complainant
is of Iranian background, does not read, write or speak English and
was recently released from detention after being granted refugee status.
The complainant claimed that he went with a friend to the local bank
to open a savings account. The complainant alleged that he was discriminated
against on the basis of his race in that the bank refused to open
an account under his name because he does not speak, read or write
English and would not allow his friend, who speaks English, to assist
him. The complainant stated that the next day, he went to another
branch of the same bank and was able to open an account without any
problems.

The bank advised
that it initially did not open an account for the complainant because
it was not satisfied that the complainant was able to understand the
terms and conditions pertaining to his responsibilities as an account
holder. The bank stated that the complainant was able to open an account
at a different branch as an employee at that branch spoke the same
language as the complainant. The bank denied race discrimination but
agreed that the complainant's inability to communicate in English
was a factor in the initial refusal to allow him to open an account.

The matter was
resolved by conciliation with the respondent providing a verbal apology
to the complainant and agreeing to issue a national bulletin to advise
all staff to use the Telephone Interpreter Service to assist customers
who have difficulties communicating in English.

Alleged race
discrimination by hotel

An Aboriginal
elder lodged a complaint on behalf of himself and another Aboriginal
person, alleging discrimination on the ground of race by the respondent
hotel. The complainant claimed that he and the other complainant had
performed at a dance function, showered and then sought to enter the
hotel to purchase some cigarettes. The complainant claimed that they
were refused service and asked to leave the premises because staff
of the hotel said they smelt.

The hotel denied
race discrimination and claimed that the complainants were refused
entry because of their strong body odour and because they did not
meet the hotel's hygiene standards. The hotel stated that the complainants
were informed that they were welcome to return after they had showered.

The complaint
was resolved at conciliation with the respondent agreeing to pay each
complainant $6 000 in general damages and also provide each complainant
with a letter of apology.

Alleged race
discrimination by bus driver

The complainant,
who is an Aboriginal, alleged she was discriminated against by the
driver of a public bus. The complainant claimed that when checking
the validity of passenger's tickets, the bus driver made racist remarks
to Aboriginal passengers by referring to them as "the coloured
man in the hat", "you blacks" and "black fellas".
The complainant alleged that when she and other passengers objected
to this language the driver said "if I had my way, I'd line you
all up outside". The complainant advised that she made a complaint
directly to the bus service when she returned home.

The respondent
company advised that it had conducted an investigation of the complainant's
allegations and while the bus driver admitted using the term "coloured"
he denied using the terms "blacks" or "black fellas".
The company also advised that the driver admitted saying words to
the effect "if I had my way everyone would be lined up outside"
but claimed this was said in the context of enabling a ticket check
because he knew that one passenger did not have the correct ticket.
The company also advised that the driver had been dismissed.

The complaint
was resolved at conciliation with the company agreeing to develop
and implement anti-discrimination policies for inclusion in the driver
induction process. The company also agreed to engage a relevant agency
to provide an initial series of anti-discrimination forums for all
drivers, with follow-up forums to be held annually.

Alleged racial
vilification in local council meeting

The complainant,
who is a councillor of a local council, claims that at a council meeting
the respondent became insulting and argumentative towards him and
racially vilified him by making remarks such as "Jews don't understand",
"Jews are the same", "Jews don't know better"
and "f…king Jews". The complainant claimed that he
asked council staff to remove the respondent from the council chamber
and that upon being approached by the staff members, the respondent
repeatedly referred to the complaint as a "f….ing Jew".

The respondent
agreed that he may have made offensive comments against the complainant
but he denied making any anti-semitic remarks. The respondent claimed
that in his view the complainant has not adequately performed his
councillor role as he is only interested in representing Jewish members
of the community.

Following several
rounds of conciliation discussions by telephone, the parties agreed
to resolve the complaint on the basis that the respondent acknowledged
that the comments he made hurt and embarrassed the complainant and
unreservedly withdrew the comments. Each party also undertook not
to disparage or make untrue or defamatory comments about each other
to any third party.

Complaint
of racial discrimination in employment

The complainant
was employed by a large federal government organisation for five years.
The complainant claimed that during his employment, he was treated
less favourably because he is from Israel, is of the Jewish faith
and had work related health problems. The complainant alleged that
since 1996, he was subjected to repeated anti-semitic comments, intimidation,
isolation, threats of demotion and shift restrictions due to work
related health problems. The complainant alleged that the comments
he was subjected to included being greeted by a staff member who said
"Sieg Heil" and performed a "Nazi" salute, being
asked "Why don't you go back to Israel?" and told "I'll
send you back to Israel". The complainant claimed that his supervisors,
harassment officers, a staff doctor and a union representative all
subjected him to less favourable treatment while working at a particular
work centre and that management failed to act upon his complaints.

Although the
respondent denied the allegations the matter was resolved by conciliation
with the respondent organisation agreeing to pay the complainant $9
000 in general damages.

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.

During 2001-02,
the Commission received 399 complaints under the Sex Discrimination
Act. The large majority of complaints related to employment and around
one third of the complaints alleged pregnancy discrimination. The
Commission finalised 376 complaints under this Act and 43 percent
of these finalised complaints were conciliated. Detailed statistics
regarding complaints under the Sex Discrimination Act are provided
in the statistics part of this Chapter.

Alleged pregnancy
discrimination

The complainant
stated that she was not aware that she was pregnant when she applied
for work as a receptionist/clerk with a real estate agency. She claimed
that soon after she commenced work she advised her supervisor that
she was pregnant and that her supervisor suggested that she have an
abortion. The complainant alleged that when she advised her supervisor
that she had decided to proceed with her pregnancy her employment
was terminated.

The respondent
company denied that it had discriminated against the complainant on
the basis of her pregnancy. The company claimed that the complainant's
employment was terminated because she would have required a period
of maternity leave long before any normal holiday entitlements would
have accrued and at a time when other staff would have also been on
leave. The respondent advised that an additional reason was that the
complainant intended to move to a remote location and commute to the
city office which was seen to be an untenable situation.

The complaint
was resolved at conciliation with the respondent company agreeing
to pay the complainant $4 000 in general damages and to reinstate
her to her former employment.

Complaint
of sex and pregnancy discrimination in casual employment

The complainant
alleged that she was discriminated against on the basis of her sex
and pregnancy when seeking to be engaged by a federal government department
for one day of casual work. The complainant claimed that when she
outlined to the department her needs in relation to breastfeeding
or expressing milk, she was told that she was only allowed half an
hour break during the day and that she could not bring her baby to
the workplace. The complainant also claimed that she was told it would
be inappropriate to express her milk while working with the department.
The complainant stated that she was pressured into withdrawing from
the work.

The respondent
department denied that the complainant was discriminated against on
the basis of her pregnancy. The department claimed that it did attempt
to accommodate the complainant's needs and it was the complainant's
decision not to work for the department. The department also denied
that any statements were made that would constitute discrimination.

The matter was
resolved by conciliation with the department agreeing to change its
policies to accommodate women breastfeeding in the workplace, provide
associated training for staff, provide the complainant with a statement
of regret and pay the complainant $1 200 in general damages.

Alleged refusal
to accommodate pregnancy in employment

The complainant
was employed as a full-time administrative assistant with the respondent
importing and wholesale company. The complainant claimed that in February
2001 she informed her employer that she was pregnant and in March
2001 provided her employer with a medical certificate recommending
that she work light duties. The complainant alleged that the company
did not provide her with light duties and required her to continue
with duties which included lifting and carrying. The complainant claimed
that when she was six months pregnant, she raised the possibility
of reducing her employment to four hours per week but the company
claimed that it was too small for such an arrangement. The complainant
stated that in June 2001 she wrote to her employer confirming the
discussions about part-time work and advising that she intended to
take 12 months maternity leave from 1 September 2001. The complainant
stated that her employer viewed this letter as notice of resignation
from her full-time employment. The complainant alleged that the respondent's
actions constituted constructive dismissal on the basis of her pregnancy.

The company stated
that the complainant's regular duties did not normally require anything
other than light duties and other staff were able to help her when
required. The respondent claimed that prior to taking maternity leave
the complainant handed in a letter advising that she would be commencing
part-time employment. The company stated that it told the complainant
that it did not have a permanent part-time position available and
that she would be expected to return to the full-time position after
her maternity leave. The respondent denied that it refused to allow
the complainant to work part-time during her pregnancy but agreed
that it did refuse to employ her on a part-time basis after her return
from maternity leave. The respondent denied the complainant was constructively
dismissed.

The complaint
was resolved by conciliation with the respondent company agreeing
to pay the complainant $9 000 in general damages.

Alleged sex
and pregnancy discrimination in employment

The complainant
was an employee of a financial institution. The complainant claimed
that when she was due to return to work from her second period of
maternity leave she put in a request for part-time work. The complainant
claimed that the respondent refused her request on the basis that
the company did not have a part-time work policy. The complainant
alleged that the respondent would have been able to accommodate her
request for part-time work as her duties had been narrowed since her
return from her first period of maternity leave and part-time work
positions had been offered in the past. The complainant stated that
she resigned from her position due to the unavailability of part-time
work.

The respondent
denied pregnancy and sex discrimination. The respondent stated that
they do not have a part-time work policy and as the complainant's
position was a specialist position, it could not be restructured into
part-time work. The respondent stated that the complainant's full-time
job was available to her on her return and denied that her duties
had narrowed after she returned from her first period of maternity
leave. The respondent claimed that there had been temporary job share
arrangements in the past which had now concluded.

The matter was
resolved at conciliation with the respondent agreeing to formulate
and distribute a part-time work policy and to pay the complainant
$12 000 in general damages.

Complaint
of sex and pregnancy discrimination

The complainant
claimed that she had been employed by a food manufacturing company
for nearly 10 years before taking 12 months maternity leave. The complainant
said that she had written to the company two months before the completion
of her maternity leave advising of a return to work date. She claimed
that one month later she was informed that her position was no longer
required and was given a job description for an alternative position.
She stated that as this position was not comparable to her former
position in terms of duties, responsibilities, salary and status,
she did not accept this position.

The respondent
company denied that the complainant was discriminated against on the
basis of her sex or pregnancy. The company claimed that during the
complainant's maternity leave a decision was made that the complainant's
position was no longer required in its existing form and the General
Manager had met with the complainant prior to her return to discuss
this. The company claimed that the complainant was advised that the
General Manager proposed to develop an alternative role for her to
return to which was equivalent in status and salary to her prior position
and also advised of an alternative position she could apply for. The
company claimed that it did not consider offering the complainant
a redundancy package because comparable alternative employment was
available.

The complaint
was resolved on the basis that the complainant was paid her long service
leave entitlements, two weeks annual leave, damages for pain and suffering
($8 070) and provided with a certificate of service and verbal reference.

Complaint
of sexual harassment by contract worker

The complainant
alleged that she was sexually harassed in the course of her employment
with a communications company by a contractor who was engaged by the
company. The complainant alleged that at a function after work and
at a nightclub following the function, the contractor grabbed her,
made suggestions about having a sexual relationship with her and made
other comments of a sexual nature. The complainant alleged that the
company was vicariously liable for the actions of the contractor because
it did not take all reasonable steps to prevent the harassment from
occurring.

The contractor
agreed that he had behaved in an inappropriate manner at the social
function, however, he said that he had been very drunk and could not
recall most of his actions. In his response, the contractor apologised
for his behaviour. The company also agreed that the acts would have
taken place in the manner described by the complainant, but stated
that it did not think it was vicariously liable as the acts took place
outside of work. The company indicated however that it wished to resolve
the complaint as the complainant was a good employee and was badly
affected by the events.

The matter was
resolved by conciliation with both respondents apologising to the
complainant during the conciliation conference and agreeing to pay
the complainant a total sum of $15 000 general damages. The company
also agreed to implement a sexual harassment and discrimination policy
and to provide associated training for staff. The individual respondent
also agreed to attend anti-discrimination and sexual harassment training.

Allegations
of sexual harassment in employment

The complainant
stated that she was seconded to work at a specific site by the respondent
company. This site involved working with five other employees in a
closed room which had security access via only one door. The complainant
alleged that while working at this site she was subjected to sexual
harassment involving remarks of a sexual nature and the display of
pornographic materials. Her specific allegations included that a male
co-worker approached her from behind put his arms around her and said
to the other workers in the room "I just have to touch her"
and that another male co-worker displayed a moving picture of a woman
wearing a short dress that did not cover her genitalia on his personal
computer. The complainant also alleged that male workers watched pornographic
materials on a computer screen and within her hearing, made comments
about the person in the picture.

The respondent
company advised that an internal investigation indicated that several
of the complainant's allegations had been substantiated and that the
individual respondents had been disciplined and an apology had been
offered to the complainant.

At conciliation
the matter was resolved on the basis of a $10 000 ex-gratia payment
to the complainant and reinstatement of sick leave that the complainant
had taken as a result of the incidents.

Alleged sexual
harassment by manager in employment

The complainant
was employed as a clerk with the respondent mining company for nine
months and during this time, was located at an isolated work site.
The complainant alleged that during her employment she was sexually
harassed by her manager. Specifically, the complainant claimed that
the manager asked her try on her uniform when he issued it to her,
invited her to watch TV on his bed, made persistent attempts to start
a personal relationship with her, and often made comments to her of
a sexual nature. The complainant also alleged that the manager hit
her on the bottom twice and told her that he would leave his wife
for her. The complainant also claimed that when she separated from
her husband and started a relationship with a work colleague, the
manager persecuted her by doubling her workload and over criticising
her work. The complainant advised that she resigned from her employment.

The respondent
company utilised a consultant to undertake an independent investigation
of the matter. The company advised that while the investigation found
that some of the incidents alleged by the complainant had happened,
it appeared that the complainant had taken them out of context. The
individual respondent did not provide a response to the allegations.

The complaint
was resolved by conciliation with the respondent company agreeing
to pay the complainant $23 000 in general damages and provide her
with a written reference.

Disability Discrimination
Act

Under the Disability
Discrimination Act 1992
it is unlawful to discriminate against
a person on the ground of their disability in many areas of public
life including employment, education, provision of goods services
and facilities, access to premises, accommodation, clubs and incorporated
associations, dealing with land, sport and in the administration of
Commonwealth laws and programs. It is also unlawful to discriminate
against a person on the ground they are an associate of a person with
a disability and it is unlawful to harass a person because of their
disability.

During 2001-02,
the Commission received 452 complaints under the Disability Discrimination
Act
. More than half of the complaints related to alleged discrimination
in employment. The Commission finalised 443 complaints under this
Act and 37 percent of these finalised complaints were conciliated.
Detailed statistics regarding complaints under the Disability Discrimination
Act are provided in the statistics part of this Chapter.

Alleged disability
discrimination in employment

The complainant
has multiple sclerosis. This condition affects the complainant's gait,
dexterity and energy levels. The complainant worked for the respondent
company as a salesperson for over 10 years. The complainant did not
initially inform the respondent of his disability, but did so in 1998
when the physical effects of his disability became more apparent.
The complainant alleged that once he informed the company of his disability,
the company indicated that he should resign or his employment would
be terminated. The complainant alleged that his work became overly
supervised and monitored, that increased criticism of his work performance
was not based on fact, that the company failed to accommodate his
disability and required him to undergo repeated driving, clinical
and medical tests to assess his performance. The complainant claimed
that while his ability to drive was restricted, he was still achieving
his sales quota and had adapted his marketing process to accommodate
his disability without affecting his ability to do his duties.

The respondent
argued that after 1998, the complainant's disability deteriorated
to the extent where it adversely affected his work performance and
his ability to perform inherent duties such as driving. The respondent
also argued that the complainant's disability raised genuine health
and safety concerns in the work environment.

The matter was
resolved by conciliation with the complainant agreeing to resign from
his employment and the respondent agreeing to pay the complainant
a $52 000 compensation package comprising general damages, future
economic loss and a share package.

Alleged disability
discrimination in appointment to employment

The complainant
is employed in the Commonwealth public service. In early 2001, the
complainant developed acute synovitis of both arms and consequently
underwent a successful rehabilitation program. In late 2001, the complainant
was informed that her application for a position with the respondent
department was successful, but appointment to the position was contingent
on a successful medical assessment.

The medical assessment
declared that the complainant was not medically capable of performing
the required duties on a full-time basis (seven hours per day). At
the time of the medical assessment, the complainant was in the final
stages of her rehabilitation program and working six hours per day.
The respondent declined to appoint the complainant to the position
on the basis of the medical assessment. Two weeks after the medical
assessment, the complainant returned to full-time hours.

The complaint
was successfully resolved at conciliation with the respondent agreeing
to provide the complainant with an apology, to seal the medical assessment
report and pay the complainant compensation of $6 160.

Complaint
of discrimination in employment

The complainant
was employed as a senior supervisor with the small respondent company.
She stated that when she commenced employment she had no indication
that she had a disability but after a month she began to experience
pins and needles and numbness in her hands and feet and was admitted
to hospital for tests which led to a diagnosis of multiple sclerosis.
She advised the respondent after the diagnosis that medical advice
indicated that she had a very mild form of multiple sclerosis and
that she required three weeks to recover. The complainant stated that
prior to her hospitalisation she had performed all required duties
and she was confident that she could return to full-time work and
perform her duties. Prior to returning to work the complainant received
a letter which advised that her employment was to be terminated because
of her disability.

In response to
the President's inquiries, the company claimed that the complainant's
work performance had been a concern during the period she was employed.
The company stated that the decision to terminate her employment was
based on its belief that her condition is a notably unpredictable
condition and there were serious doubts that she would be able to
perform the inherent requirements of the job over time.

At the conciliation
conference the complainant provided medical evidence to demonstrate
that she had been completely well since her employment was terminated.
The complaint was resolved with the respondent company agreeing to
pay the complainant $6 500 compensation which comprised general damages
and lost wages.

Wheelchair
access to sports venue

The complainant
and three other people who have physical disabilities and use wheelchairs
for mobility purposes, alleged that the respondent company had discriminated
against them in the terms and conditions on which it provides access
to its sports venues. The complainant and his friends stated that
they had attended events at tennis and aquatic venues owned by the
respondent company and on each occasion their view of the events was
obscured and their enjoyment of the event affected. They claimed that
the top railing of the fence is positioned directly in the sight line
of those using the wheelchair assigned spaces.

The matter was
resolved with the respondent company agreeing to raise the railing
heights at both venues within three months and refund each complainant
the price of their tickets.

Access to
local shopping centre

A representative
complaint was lodged on behalf of two groups of people who are blind
or use wheelchairs for mobility. The complainants allege that the
respondent treated them less favourably on the basis of their disabilities
in the provision of access to premises and services at the local shopping
centre. The complainants identified inadequacies with the entrance,
the entrance ramp, the lane leading to the entrance ramp, the car
park, the lift, signage, stairs and toilets.

The respondent
investigated the issues and a settlement was negotiated by correspondence
whereby the respondent agreed to improve entrances and signage, install
a new lift, modify the existing lift, improve the car park and lighting,
improve access to stairs, install Tactile Ground Surface Indicators
and relocate and improve toilets. The complainants and respondent
agreed to maintain contact until the required work was completed.

Alleged discrimination
in provision of goods, services and facilities - captioning

The complainant,
who has a hearing impairment, alleged she stayed in three different
hotels and none of these hotels provided captioning facilities on
television or video facilities.

The complaint
was resolved through conciliation with the hotel chain agreeing to
immediately install three teletext televisions in each hotel and to
implement a policy whereby when television and video equipment need
to be replaced due to age or breakdown, they will be replaced with
captioning enabled equipment. The hotel also agreed to undertake advertising
to ensure potential guests and current guests are aware of the service.

Complaint
of disability discrimination by educational institution

The complainant
has a vision impairment and attends the respondent tertiary educational
institution. The complainant required course materials to be in an
accessible electronic format and while the respondent institution
did have materials available in electronic format, they were not able
to be accessed by the complainant's screen reader. Consequently, the
complainant did not have access to the course materials at the beginning
of the course.

The respondent
acknowledged that it had not considered the issue of accessibility
as fully as it could have. The complainant also acknowledged the technical
constraints involved in making diverse sources of course material
fully accessible.

The matter was
resolved at conciliation with the respondent institution agreeing
to make a number of improvements to its services for students with
disabilities. This included the development of a Disability Action
Plan to be finalised and lodged with the Commission by March 2002,
the implementation of a Web Disability Action Plan, the purchase and
testing of improved text conversion software and expanding the role
of its Disability Liaison Officer. The educational institution also
personally apologised to the complainant.

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, after providing Notice
and considering final submissions, find that the subject matter of
the complaint constitutes discrimination in employment or is a breach
of a human right. The President must report her findings to the Attorney-General
for tabling in Parliament. The Commission's Legal Section assists
the President in the Notice part of the process. Further details of
this process are provided in the Legal Services section at Chapter
3 of this Report.

During 2001-02,
the Commission received 234 complaints under the Human Rights and
Equal Opportunity Commission Act. The majority of these complaints
related to alleged breaches of the International Covenant on Civil
and Political Rights
in immigration detention and discrimination
in employment based on either age or criminal record. The Commission
finalised 221 complaints under this Act and 11 percent of these finalised
complaints were conciliated and five percent referred for reporting.
Detailed statistics regarding complaints under the Human Rights and
Equal Opportunity Commission Act are provided in the statistics part
of this Chapter.

Alleged discrimination
in employment on the ground of criminal record

The complainant
was offered a job with a state government department as a tow truck
driver. The complainant stated that he had worked as a tow truck driver
for a number of years on a part-time basis and that he gave up his
full-time position as a bus driver to take up this job offer. The
complainant alleged that two days before commencing work, the job
offer was revoked as a result of a criminal record check which found
that in October 2000 the complainant had been convicted of behaving
in an offensive manner in a public place. The complainant advised
that he made numerous representations to the respondent explaining
that the circumstances of the offence were extenuating. He provided
medical documentation stating he was suffering from stress and anxiety
at the time due to a recent death in the family and supplied information
attesting to his excellent record of dealing with the public as a
bus driver and tow truck driver. The complainant also argued that
despite having this conviction, he is still able to renew his tow
truck operator license on an annual basis and that his current employer
was aware of the past offence.

The respondent
department advised that it was of the view that the recency and nature
of the offence was relevant to the specific requirements and duties
of the position. In particular, the department claimed that the duties
require close liaison and interaction with the public, police, ambulance
officers, fire and other emergency personnel, stranded motorists and
other commuters. The respondent considered that it would have been
negligent to employ the complainant in the circumstances.

A conciliation
conference was held and the matter was resolved with the respondent
agreeing to notify the complainant of vacancies in same or similar
positions over the next 18 months so that he may reapply. The respondent
also agreed to give the complainant's application consideration once
two years had passed since the date of the conviction.

Complaint
of discrimination on the ground of criminal record

The complainant
claimed that he had applied for a job with the respondent state government
authority as a deckhand. He was later advised that his application
was unsuccessful because he had a criminal record for possession of
marijuana in May 1998.

Prior to the
President formally writing to the respondent, the matter was resolved
with the respondent reversing its decision and advising the complainant
that he would be considered for the next available position.

Allegations
of age discrimination in employment

The complainant
was employed as a teacher in a private school. She stated that the
school principal told her that she had "reached her use by date"
and harassed her for the next 15 months because he regarded her as
too old for the job. The complainant was 50 years of age at the time.
The complainant also alleged that because of her age she was not promoted
or given access to training. The complainant resigned because of this
alleged treatment.

After the complaint
was lodged with the Commission, the complainant advised that with
the assistance of her union, she had resolved the complaint directly
with the school on confidential terms.

Complaint
of age discrimination in application for employment

The complainant,
who was 18 years of age, stated that he applied for a position delivering
and collecting surveys for a Commonwealth government department. The
complainant alleged that despite his relevant experience for the position,
his application was unsuccessful, and he claimed that the interviewer
told him that people his age lacked the necessary maturity to complete
the job.

The department
denied age discrimination and stated that the complainant was not
offered the position because at interview he lacked 'poise and confidence'
and was 'shy and diffident'. The department stated that the complainant
was not as strong a candidate as the other applicants. The interviewer
did not recall making the alleged discriminatory comment and noted
that he had received training in appropriate selection procedures,
including workplace diversity and equal employment opportunity.

The complaint
was resolved at conciliation with the department agreeing to provide
the complainant with a statement of regret and pay the complainant
$1 250 general damages.

Allegations
of age and sex discrimination in promotional opportunity

The complainant
alleges that she was discriminated against on the basis of her age
and sex in her employment as an investigator with a Commonwealth government
agency. She stated that there were only two female investigators within
her area. She alleged that her manager said that she reminded him
of his previous secretary because she was also old. She stated that
she applied for a promotion and her manager attended the interview
and asked a question about her age and whether she could do the job.
She stated that male applicants for the position who were in their
fifties were not asked this question. She claimed that her application
for promotion was not successful because of her age. She further alleged
that the agency did not address her internal complaint about these
issues in a timely or satisfactory matter and that she was victimised
for making the internal complaint.

The respondent
agency advised that it had conducted an internal investigation into
the complainant's allegations. The investigation found that the first
allegation about the comment was substantiated but the other allegations
concerning the selection process and victimisation were either unsubstantiated
or incapable of being determined.

A conciliation
conference was held and the matter was resolved with the agency agreeing
to pay the complainant $6 500 and provide harassment and anti-discrimination
training for all staff in the area.

Complaint
of discrimination in employment on the ground of sexual preference

The complainant
alleged that during his employment as a nurse with the respondent
company he was harassed and discriminated against on the basis of
his sexual preference. In particular, he claimed that a colleague
wrote him a letter expressing her disapproval of his homosexuality,
that the following written comment was added to a meeting agenda "can
we have more male nurses under 25 who look like Brad Pitt and are
not gay", and that chocolates given to him by a patient were
covered with KY jelly. The complainant stated that the company did
not appropriately address his concerns and didn't follow company procedure
in dealing with his complaint. The complainant resigned from his position.

The respondent
company claimed that its internal investigation determined that in
relation to the letter there had been no intent to harass the complainant
and this matter had been resolved between the parties. The company
claimed that with regard to the written comment about the employment
of male staff, the complainant had actually laughed about this when
it was brought to his attention. The company also claimed that in
relation to the issue of the chocolates, the company was unable to
determine what had actually happened due to varying versions of events.
The respondent claimed that it took measures to address the complainant's
concerns in a caring, understanding manner but the complainant ultimately
resigned despite being urged not to and being offered counselling
and alternative employment options.

The matter was
resolved at conciliation with the respondent agreeing to pay the complainant
the sum of $5 000 which composed $2 200 for loss of earnings and $2
800 in general damages.

Allegation
of discrimination in employment on the ground of trade union activity

The complainant
stated that he is a union delegate in his workplace, a federal government
department, and was involved in antagonistic negotiations with management
over the agency's certified agreement. The complainant alleged that
since that time he was treated less favourably, in that his work was
over scrutinised and that he had performance measures taken against
him when he made a minor calculation error. He alleged that other
staff had made similar errors but were not treated as he was. The
complainant advised that he transferred from the agency to another
government department because of the alleged discriminatory treatment.

The respondent
department denied that the complainant had been discriminated against
on the basis of his trade union activity. The department stated that
the complainant was disciplined because his mistake was very grave
and different to mistakes made by other staff.

The complaint
was resolved by conciliation with the department agreeing to pay the
complainant $5 000 in general damages and provide a 'without admission
of liability' apology.

Complaint handling statistics

Preliminary comments

The following
statistical data provides information on enquiries handled by the
Commission during 2001-02, 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 reporting years, that there are often variations in the way the
data is counted and collected. Some additional information explaining
the Commission's approach to statistical reporting is footnoted. If
further clarification is required contact the Commission's Complaint
Handling Section.

Summary

Although there
was little change in the overall number of complaints received and
finalised in 2001-02 compared to the previous year, there were some
notable changes in the grounds of complaints the Commission received.

During 2001-02,
36 percent of complaints were lodged under the Disability Discrimination
Act, 31 percent under the Sex Discrimination Act, 18 percent under
the Human Rights and Equal Opportunity Commission Act and 15 percent
under the Racial Discrimination Act.

Complaints under
the Sex Discrimination Act increased by four percent compared to the
previous year. The grounds of complaint appear to reflect issues raised
by the Sex Discrimination Commissioner's policy work. For example,
while complaints of alleged pregnancy discrimination made up 16 percent
of complaints in 2000-01, they constituted 30 percent of complaints
in 2001-02. It would appear that lodgement of pregnancy related complaints
is linked to increased public awareness of these issues through the
Commission's National Inquiry into Pregnancy and Work and the paid
maternity leave debate.

There was a small
increase in complaints lodged under Human Rights and Equal Opportunity
Commission Act compared to the previous year. The main area of alleged
human rights breaches concerned conditions and treatment in immigration
detention. Although numbers of complaints received are relatively
unchanged, it is clear that complaints peak following major incidents
in detention centres and inspection visits by the Human Rights Commissioner.

A significant
number of complaints are lodged under the Disability Discrimination
Act each year. Allegations of discrimination in employment recruitment
and retention continue to represent over half of the matters received.
These complaints often involve concurrent workers' compensation claims
and return to work programs and the ability and/or willingness for
the employer to accommodate the disability without unjustifiable hardship.

Complaints lodged
under the Racial Discrimination Act fell six percent in comparison
with the previous year. The reason for this decrease is unclear particularly
in light of public debate over the past year in relation to immigration,
religion and other international events. It is unusual not to see
an increase in complaints when there has been such public debate.
It is possible that as the federal jurisdiction provides limited rights
in relation to discrimination and vilification on the basis of religion,
those who may be affected by such actions have utilised state anti-discrimination
laws as most state laws give rise to enforceable rights for complaints
based on religion.

Parties to complaints
remain willing to embrace resolution of matters through the Commission's
conciliation processes. Of all the complaints finalised during 2001-02,
30 percent were conciliated which is in keeping with the expected
range. Of those matters where conciliation was attempted, a large
majority (62 percent) were successfully resolved.

It is notable
that the conciliation success rate varies across the different types
of complaints. During 2001-02, complaints under the Sex Discrimination
Act had the highest conciliation rate (43 percent) and a high conciliation
success rate (64 percent of matters where conciliation was attempted
were resolved). Complaints under the Disability Discrimination Act
had a conciliation rate of 37 percent and also a high conciliation
success rate (69 percent). Complaints under the Racial Discrimination
Act had a conciliation rate of 15 percent and a success rate of 39
percent. 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 Human Rights and Equal Opportunity Commission Act
complaints were resolved by conciliation (11 percent), 70 percent
of matters where conciliation was attempted were resolved. The overall
low conciliation rate in relation to these complaints is understandable
in light of the fact that many human rights matters brought under
this Act do not relate to acts or practices of the Commonwealth and
are therefore declined. Human Rights and Equal Opportunity Commission
Act complaints that relate to alleged breaches of human rights by
the Commonwealth generally have a low conciliation rate (three percent
in 2001-02) as they often concern broad policy issues which are difficult
to resolve at the individual complainant level. However, Human Rights
and Equal Opportunity Commission Act complaints regarding employment
under the International Labour Organisations Convention (ILO
111) have a higher conciliation rate (17 percent in 2001-02).

Information on
the geographical location, sex and ethnicity of complainants is provided
in Tables 9, 11 and 12 below. Demographic data voluntarily provided
by complainants at the commencement of the complaint process [3]
provides additional information on complainants. This data, which
is broadly similar to data obtained in 2000-01, indicates that many
complainants (28 percent) knew about the Commission prior to lodging
their complaint and the main source of referral was legal centres/private
solicitors and family/friends. A large number of complainants (65
percent) indicated that their main source of income at the time of
the alleged act was from full or part-time employment. Approximately
39 percent of complainants advised at the beginning of the complaint
process that they were represented. [4] The main
forms of representation were privately funded solicitors (26 percent)
and representation by a friend, family member or support person (18
percent).

Data collected
on respondent categories indicates that in 2001-02 approximately 52
percent of complaints were against private enterprise, 24 percent
were against Commonwealth departments and statutory authorities and
nine percent were against state departments and statutory authorities.
The next main respondent categories were educational institutions
(five percent), clubs and incorporated associations (four percent)
and non-government organisations (two percent). Once again, this data
is very similar to respondent category data for 2000-01.

Complaint Information
Service

Table 1: Telephone,
TTY, email and in person enquiries received

Enquiry
type
Total
Telephone
7
546
TTY
6
Email
379
In
person
121
Total
8
052

Table 2: Enquiries
received by issue

Issue
Total
Race
661
Race
- racial hatred
278
Sex
- direct
399
Sexual
harassment
606
Sex
- marital status, family responsibilities, parental status, breast
feeding
146
Sex
- pregnancy
499
Sexual
preference, transgender, homosexuality, lawful sexual activity
107
Disability
- impairment
1
022
Disability
- HIV/AIDS, hepatitis
38
Disability
- workers compensation
66
Disability
- mental health
216
Disability
- intellectual disability, learning disability
112
Disability
- maltreatment, negligence
24
Disability
- physical feature
56
Age
- too young
37
Age
- too old
161
Age
- compulsory retirement
10
Criminal
record, criminal conviction
226
Political
opinion
14
Religion,
religious organisations
104
Employment
- personality conflicts, favouritism
255
Employment
- union, industrial activity
121
Employment
- unfair dismissal, other industrial issues
502
Employment
- workplace bullying
407
Human
rights - children
81
Human
rights - civil, political, economic, social
238
Immigration
- detention centres
45
Immigration
- visas
79
Prisons,
prisoners
28
Police
52
Court
- Family Court
108
Court
- other law matters
86
Privacy
- data protection
86
Neighbourhood
disputes
23
Advertising
9
Local
government - administration
52
State
government - administration
159
Federal
government - administration
219
Other
599
Unreported
121
Total

8
052

Table 3: Enquiries
received by state of origin

State
of origin
Total
Percentage
(%)
New South
Wales
3
926
49
Victoria
1
021
13
South Australia
484
6
Western Australia
303
4
Queensland
1
527
19
Australian
Capital Territory
190
2
Tasmania
157
2
Northern Territory
151
2
Unknown, overseas
293
3
Total
8
052
100

Table 4:
Written enquiries received and finalised

Written
enquiries
Total
Received
759
Finalised
745

Table 5:
Written enquiries received by issue

Issue
Total
Race
84
Race
- racial hatred
43
Sex
- direct
23
Sexual
harassment
14
Sex
- marital status, family responsibilities, parental status, breast
feeding
25
Sex
- pregnancy
8
Sexual
preference, transgender, homosexuality, lawful sexual activity
16
Disability
- impairment
63
Disability
- HIV/AIDS, hepatitis
2
Disability
- workers compensation
5
Disability
- mental health
5
Disability
- intellectual disability, learning disability
5
Disability
- maltreatment, negligence
1
Disability
- physical feature
34
Age
- too young
4
Age
- too old
19
Age
- compulsory retirement
-
Criminal
record, criminal conviction
5
Political
opinion
3
Religion,
religious organisations
14
Employment
- personality conflicts, favouritism
12
Employment
- union, industrial activity
6
Employment
- unfair dismissal, other industrial issues
43
Employment
- workplace bullying
17
Human
rights - children
15
Human
rights - civil, political, economic, social
30
Immigration
- detention centres
25
Immigration
- visas
43
Prisons,
prisoners
32
Police
3
Court
- Family Court
32
Court
- other law matters
56
Privacy
- data protection
6
Neighbourhood
disputes
4
Advertising
-
Local
government - administration
11
State
government - administration
20
Federal
government - administration
33
Other
22
Total
*
783

*One written
enquiry may have multiple issues

Table 6: Written enquiries received by state of origin of enquirer

State
of origin
Total
Percentage
(%)
New
South Wales
271
36
Victoria
118
15
South
Australia
71
9
Western
Australia
84
11
Queensland
149
20
Australian
Capital Territory
20
3
Tasmania
17
2
Northern
Territory
8
1
Unknown,
overseas
21
3
Total
759
100

Complaints overview

Table 7: National
complaints received and finalised over the past two years

Written
enquiries
2000-01
(percent)
2001-02
(percent)
Received
1
263
1
271
Finalised
1
488
1
298

Table 8: Outcomes
of national complaints finalised over the past two years

2000-01
(percent)
2001-02
(percent)
Terminated/declined
56
55
Conciliated
35
30
Withdrawn
8
14
Reported
(Human Rights and Equal Opportunity Commission Act only)
1
1

Table 9: State
of origin of complainant at time of lodgement

State
of origin
Total
Percentage
(%)
New
South Wales
517
41
Victoria
237
19
South
Australia
163
13
Western
Australia
133
10
Queensland
127
10
Australian
Capital Territory
42
3
Tasmania
31
2
Northern
Territory
11
1
Unknown,
overseas
10
1
Total
1
271
100

Table 10:
Complaints received and finalised by Act

Act
Received
Finalised
Racial
Discrimination Act (RDA)
186
258
Sex
Discrimination Act (SDA)
399
376
Disability
Discrimination Act (SDA)
452
443
Human
Rights and Equal Opportunity Commission Act (HREOCA)
234
221
Total
1
271
1
298

Chart 1: Complaints
received by Act

Chart 1: Complaints received by Act

Disability
Discrimination Act
36%
Sex
Discrimination Act
31%
Human
Rights and Equal Opportunity Commission Act
18%
Racial
Discrimination Act
15%

Table 11:
Complaints received by category of complainant by Act

RDA
SDA
DDA
HREOCA
Total
Individual
male
117
42
254
174
587
Individual
female
61
353
190
46
650
Couple or
family
6
2
3
8
19
On others
behalf
1
1
2
-
4
Organisation
-
1
3
6
10
Community,
other group
1
-
-
-
1
Total
186
399
452
234
1
271

Table 12:
Complaints received by ethnicity of complainant by Act

RDA
SDA
DDA
HREOCA
Total
Non-English
speaking background
109
88
104
114
415
Aboriginal
and Torres Strait Islander
48
5
15
4
72
English speaking
background
29
306
333
116
784
Total
186
399
452
234
1
271

Table 13:
Time from receipt to finalisation for complaints finalised during
2001-02

RDA
(%)
SDA
(%)
DDA
(%)
HREOCA
(%)
Total
(%)
Cumulative
total
(%)
0 - 3 months
19
19
23
28
22
22
3 - 6 months
22
27
27
28
26
48
6 - 9 months
24
29
29
21
27
75
9 - 12 months
18
13
13
10
13
88
More than
12 months
11
9
7
8
8
96
More than
18 months
3
2
-
3
2
98
More than
24 months
3
1
1
2
2
100

Racial Discrimination
Act

Table 14:
Racial Discrimination Act* - complaints received and finalised

Racial
Discrimination Act
Total
Received
186
Finalised
258

*Includes complaints
lodged under the racial hatred provisions.

Table 15:
Racial Discrimination Act - complaints received by ground

Racial
Discrimination Act
Total
Percentage
(%)
Association
2
1
Color
18
5
National
origin, extraction
47
13
Ethnic
origin
101
28
Descent
7
2
Race
119
33
Victimisation
3
1
Racial
hatred
60
17
Total
357

100

*One complaint
may have multiple grounds.

Table 16:
Racial Discrimination Act - complaints received by area

Racial
Discrimination Act
Total
Percentage
(%)
Right
to equality before the law
-
-
Access
to places and facilities
10
3
Land,
housing, other accommodatioon
9
2
Provision
of goods and services
103
29
Right
to join trade unions
-
-
Employment
125
35
Advertisements
-
-
Education
7
2
Incitement
to unlawful acts
6
2
Other
- section 9
30
8
Racial
hatred
67
19
Total
357

100

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

Table 17:
Racial Discrimination Act - outcomes of finalised complaints

Racial
Discrimination Act
Total
Terminated
180
Not
unlawful
15
More
than 12 months old
8
Trivial,
vexatious, frivolous, misconceived, lacking in substance
82
Adequately
dealt with already
8
Subject
matter of public importance
-
No
reasonable prospect of conciliation
59
Withdrawn
26
Withdrawn,
does not wish to pursue, advised Commission
22
Withdrawn,
does not wish to pursue, settled outside Commission
4
Conciliated
38
Administrative
closure*
14
Total
258

*Not an aggrieved
party, state complaint previously lodged.

Chart 2: Racial
Discrimination Act - outcomes of finalised complaints

Chart 2: Racial Discrimination Act - outcomes of finalised complaints

Terminated
- other reason
50%
Terminated
- no reasonable prospect of conciliation
24%
Conciliated 15%
Withdrawn 11%

Table 18:
Racial hatred complaints received and finalised

Total
Received
186
Finalised
258

Table 19:
Racial hatred complaints received by sub area

Racial
Discrimination Act
Total
Percentage
(%)
Media
16
32
Disputes
between neighbours
11
22
Personal
conflict
2
4
Employment
2
4
Racist
propaganda
2
4
Entertainment
-
-
Sport
2
4
Public
debate
2
4
Other
*
13
26
Total
**
50

100

*This category
includes complaints in the area of education, provision of goods and
services, comments made by people in the street and in passing vehicles.
**One sub area is recorded for each racial hatred complaint received.

Table 20:
Outcomes of finalised racial hatred complaints

Racial
Discrimination Act
Total
Terminated
81
Not
unlawful
11
More
than 12 months old
2
Trivial,
vexatious, frivolous, misconceived, lacking in substance
26
Adequately
dealt with already
2
More
appropriate remedy available
3
Subject
matter of public importance
-
No
reasonable prospect of conciliation
37
Withdrawn
12
Withdrawn,
does not wish to pursue, advised Commission
10
Withdrawn,
does not wish to pursue, settled outside Commission
2
Conciliated
19
Administrative
closure*
6
Total
118

*Not an aggrieved
party, state complaint previously lodged.

Chart 3: Outcomes
of finalised racial hatred complaints

Chart 3: Outcomes of finalised racial hatred complaints

Terminated
- other reason
39%
Terminated
- no reasonable prospect of conciliation
33%
Conciliated 17%
Withdrawn 11%

Sex Discrimination Act

Table 21:
Sex Discrimination Act - complaints received and finalised

Sex
Discrimination Act
Total
Received
399
Finalised
376

Table 22:
Sex Discrimination Act - complaints received by ground

Sex
Discrimination Act
Total
Percentage
(%)
Sex
discrimination
237
33
Marital
status
25
4
Pregnancy
212
30
Sexual
harassment
195
28
Parental
status, family responsibility
16
2
Victimisation
22
3
Total
*
707

100

*One complaint
may have multiple grounds

Table 23:
Sex Discrimination Act - complaints received by area

Sex
Discrimination Act
Total
Percentage
(%)
Employment
597
85
Goods,
services and facilities
57
8
Land
-
-
Accommodation
6
1
Superannuation,
insurance
1
-
Education
9
1
Clubs
10
1
Administration
of federal laws and programs
19
3
Application
forms etc
-
-
Trade
unions, accrediting bodies
8
1
Total
*
707

100

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

Table 24:
Sex Discrimination Act - outcomes of finalised complaints

Sex
Discrimination Act
Total
Terminated
158
Not
unlawful
10
More
than 12 months old
4
Trivial,
vexatious, frivolous, misconceived, lacking in substance
51
Adequately
dealt with already
3
More
appropriate remedy available
4
Subject
matter of public importance
-
No
reasonable prospect of conciliation
86
Withdrawn
50
Withdrawn,
does not wish to pursue, advised Commission
47
Withdrawn,
does not wish to pursue, settled outside Commission
3
Conciliated
155
Administrative
closure*
13
Total
376

*Not an aggrieved
party, state complaint previously lodged.

Chart 4: Outcomes
of finalised racial hatred complaints

Chart 4: Outcomes of finalised racial hatred complaints

Conciliated 43%
Terminated
- other reason
20%
Terminated
- no reasonable prospect of conciliation
23%
Withdrawn 14%

Disability Discrimination
Act

Table 25:
Disability Discrimination Act - complaints received and finalised


Disability Discrimination Act
Total
Received
452
Finalised
443

Table 26:
Disability Discrimination Act - nature of complainant's disability

Disability
Discrimination Act
Total
Physical
disability
126
A
mobility aid is used - walking frame or wheelchair
52
Physical
disfigurement
8
Presence
in the body of organisms causing disease - HIV/AIDS
4
Presence in the body of organisms causing disease - other
5
Psychiatric
disability
91
Neurological
disability - epilepsy
33
Intellectual
disability
17
Learning
disability
17
Sensory
disability - hearing impaired
24
Sensory
disability - deaf
16
Sensory
disability - vision impaired
20
Sensory
disability - blind
10
Work
related injury
38
Medical
condition - diabetes
38
Other
27
Total
*
707

*One complainant
may have multiple disabilities.

Table 27:
Disability Discrimination Act - complaints received by ground

Disability
Discrimination Act
Total
Percentage
(%)
Disability
of person(s) aggrieved
822
95
Associate
25
3
Disability
- person assisted by trained animal
1
1
Disability
- use of appliance
1
1
Harassment
19
2
Victimisation
2
-
Total
*
870

100

*One complaint
may have multiple grounds.

Table
28: Disability Discrimination Act - complaints received by area

Disability

Discrimination Act
Total
Percentage
(%)
Employment
448
52
Goods,
services and facilities
235
27
Access
to premises
34
4
Land
-
-
Accommodation
12
1
Incitement
to unlawful acts or offences
2
-
Advertisements
-
-
Superannuation,
insurance
15
2
Education
82
9
Clubs,
incorporated associations
16
2
Sport
-
-
Application
forms, requests for information
-
-
Trade
unions, registered organisations
-
-
Total
*
870

100

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

Table 29:
Disability Discrimination Act - outcomes of finalised complaints

Disability
Discrimination Act
Total
Terminated
203
Not
unlawful
11
More
than 12 months old
8
Trivial,
vexatious, frivolous, misconceived, lacking in substance
92
Adequately
dealt with already
12
More
appropriate remedy available
11
Subject
matter of public importance
-
No
reasonable prospect of conciliation
69
Withdrawn
70
Withdrawn,
does not wish to pursue, advised Commission
66
Withdrawn,
does not wish to pursue, settled outside Commission
4
Conciliated
156
Administrative
closure*
14
Total
443

*Not an aggrieved
party, state complaint previously lodged.

Chart 5: Disability
Discrimination Act - outcomes of finalised complaints

Chart 5: Disability Discrimination Act - outcomes of finalised complaints

Conciliated 37%
Terminated
- other reason
31%
Terminated
- no reasonable prospect of conciliation
16%
Withdrawn 16%

Human Rights and Equal
Opportunity Commission Act

Table 30:
Human Rights and Equal Opportunity Commission Act - complaints received
and finalised


Human Rights and Equal Opportunity Commission Act
Total
Received
234
Finalised
221

Table 31:
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
12
5
Political opinion - ILO 111
4
2
National
extraction - ILO 111
-
-
Social
origin - ILO 111
-
-
Age
- ILO 111
30
12
Medical
record - ILO 111
-
-
Criminal
record - ILO 111
37
15
Impairment
- including HIV/AIDS status (ILO 111)
-
-
Marital
status - ILO 111
-
-
Disability
- ILO 111
-
-
Nationality
- ILO 111
-
-
Sexual
preference - ILO 111
18
18
Trade
union activity - ILO 111
16
7
International
Covenant on Civil and Political Rights
95
39
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
10
4
Declaration
on the Elimination of All Forms of Intolerance and of Discrimination
Based on Religion or Belief
3
1
Not
a ground within jurisdiction
-
-
Not
a human right as defined by the Act
17
7
Total
*
242
100

*One complaint
may have multiple grounds.

Table 32:
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
112
46
Employment
115
48
Not
act or practice of the Commonwealth - not employment cases
15
6
Total*
242
100

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

Table 33:
Human Rights and Equal Opportunity Commission Act - non-employment
complaints received by sub area

Human
Rights and Equal Opportunity Commission Act
Total
Percentage
(%)
Prisoners,
prisoner
8
5
Religious
institutions
2
1
Family
Court matters
1
1
Other
law court matters
2
1
Immigration
80
52
Law
enforcement agency
1
1
State
agency
1
1
Other
service provider - private sector
15
10
Local
government
3
2
Education
systems
6
4
Welfare
systems
3
2
Personal
or neighbourhood conflict
1
1
Health
system
5
3
Other
24
16
Total
*
152
100

*One complaint
may have multiple sub areas.

Table 34:
Human Rights and Equal Opportunity Commission Act - outcomes of finalised
complaints

Human
Rights and Equal Opportunity Commission Act
Total
Declined
184
Does
not constitute discrimination
16
Human
rights breach, not inconsistent or contrary to any human right
51
More
than 12 months old
-
Trivial,
vexatious, frivolous, misconceived, lacking in substance
45
Adequately
dealt with already
12
More
appropriate remedy available
22
Withdrawn,
does not wish to pursue, advised Commission
36
Withdrawn,
does not wish to pursue, advised Commission
-
Withdrawn,
does not wish to pursue, settled outside Commission
2
Conciliated
23
Referred
for reporting*
10
Administrative
closure **
4
Total
221

*Complaints in
this category were not conciliable and therefore transferred from
the Commission's Complaint Handling Section to Legal Services for
Notice and possible report.
**Not an aggrieved party, state complaint previously lodged.

Chart 6: Human
Rights and Equal Opportunity Commission Act - outcomes of finalised
complaints

Chart 6: Human Rights and Equal Opportunity Commission Act - outcomes of finalised complaints

Declined 67%
Withdrawn 17%
Conciliated 11%
Reported 5%

1.
Calculated on the basis of completed course evaluations where comparable
evaluation formats were used - five of the seven courses.

2.
Calculated on the basis of completed course evaluations where comparable
evaluation formats were used - seven of the 10 courses.

3.
Sixty eight (68) percent of complainants returned the Intake Form
in 2001 02.

4.
Representation status may change during the complaint process.