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PRESENTATION GIVEN TO KYOTO BAR ASSOCIATION: Dr Sev Ozdowski OAM (2003)

Rights Rights and Freedoms

PRESENTATION
GIVEN TO KYOTO BAR ASSOCIATION

FRIDAY 5 SEPTEMBER 2003

Dr Sev Ozdowski OAM
Australian Human Rights Commissioner

Introduction

Let me start by saying
that Australia is a culturally diverse society with 23% of Australians being
born overseas. Amongst others, there is a sizeable Japanese community and, as
you may hear from my accent, I myself was born in Poland.

The Human Rights and Equal
Opportunity Commission (HREOC) is an independent statutory authority established
by the Federal Parliament by the Human Rights and Equal Opportunity Act, 1986.

My appointment to the HREOC
was made by the Governor-General, on recommendation of the Prime Minister, and
is for a 5 year term. As Human Rights Commissioner I monitor and protect Human
Rights in Australia, and as Acting Disability Discrimination Commissioner, I
monitor and protect the rights of people with disabilities.

To fulfill these functions
HREOC can undertake many activities, from human rights education to inquiries
into “acts and practices” of Federal government departments to ensure
their consistency with the human rights as defined by our legislation.

HREOC also investigate
and settle complaints from individuals alleging that their rights were infringed
by, for example, service providers, employers or Government departments. The
complaint area involves extensive work in an attempt to conciliate complaints.

Introduction of Anti-Discrimination
Legislation

When it came to introducing
“equality” and “anti-discrimination” legislation, I
believe it is fair to say that the Australian experience with industrial conciliation
mechanisms paved the way for the kind of operational procedures that were adopted
by the resulting oversight bodies.

The Federal Government
made the first foray into this arena in 1975 with the introduction of the Racial
Discrimination Act, which embodied the International Convention on the Elimination
of all Forms of Racial Discrimination. It is interesting to note that in the
vigorous parliamentary debate accompanying this legislation, concern was expressed
as to whether “conciliation” alone, without additional powers of
sanction, would suffice in the fight against racial discrimination.

In the end “conciliation”
was emphasized as the primary means of settling disputes but the Commissioner
was also empowered to call compulsory conferences if necessary. A similar outcome
to the previously mentioned industrial conciliation procedures!!

Role of Federal Ombudsman

The Federal Government’s
next legislative push occurred in 1976 with the Ombudsman Act. [1]
The Ombudsman’s role is to promote improved public administration and
to investigate complaints from people who believe they have been adversely affected
by the defective administration of Federal government departments. In other
words the complaint is directly linked to the day to day functions of a particular
government department.

Tools used by the Ombudsman
include investigation of the circumstances of the complaint, conciliation and
in the event of maladministration causing loss – recommendation of financial
compensation.

As I intend to deal with
the balance of the Federal equality and human rights legislation in some detail
later in my speech, I will leave this subject for the time being and turn briefly
to the situation that exists in the States.

State based Anti-Discrimination
provisions

All the state governments
of Australia have enacted anti-discrimination legislation. The South Australian
Sex Discrimination Act came into operation in 1976 and the Equal Opportunity
Act in 1984. New South Wales and Victoria enacted Anti- Discrimination Acts
in 1977. Western Australia enacted an Equal Opportunity Act in 1984 while Queensland
and Tasmania enacted Anti-Discrimination legislation in 1991 and 2000 respectively.

The common element in all
the State legislation is the recognition that disputes involving complaints
of discrimination should, where possible, be resolved other than by a formal
adversarial hearing. However methods to be used in conciliation are not prescribed
nor is conciliation defined.

As “conciliation”
has now been placed at the very heart of my brief overview of this important
field of human endeavor, I believe it is appropriate to spend some time examining
exactly what a successful working model looks like.

Federal Human Rights and Equal Opportunity
Commission’s Complaint Handling Powers

I will therefore, now turn
to a more detailed examination of the Federal Human Rights and Equal Opportunity
Commission (HREOC) and the methods it uses in attempting conciliation outcomes.

Along with its educational
and policy development roles, HREOC is responsible for the investigation and
conciliation of complaints under the Human rights and Equal Opportunity
Commission Act 1986, the Racial Discrimination Act 1975, the Sex Discrimination
Act 1984
and the Disability Discrimination Act 1992.

The legislation provides
for complaints of alleged discrimination or alleged breaches of human rights
to be lodged with the Commission, through the President, who is the statutory
officer holder responsible for the complaint handling function. The President,
with the assistance of the officers of the Commission’s Complaint Handling
Section, inquire into the complaints and after an appropriate level of inquiry
decide whether to terminate the complaint or attempt to settle the complaint
through conciliation.

Under the legislation the
President may terminate a complaint of alleged unlawful discrimination on the
following grounds: [2]

(a) the President
is satisfied that the alleged unlawful discrimination is not unlawful discrimination;

(b) the complaint
was lodged more than 12 months after the alleged unlawful discrimination took
place;

(c) the President
is satisfied that the complaint was trivial, vexatious, misconceived or lacking
in substance;

(d) in a case where
some other remedy has been sought in relation to the subject matter of the
complaint—the President is satisfied that the subject matter of the
complaint has been adequately dealt with;

(e) the President
is satisfied that some other more appropriate remedy in relation to the subject
matter of the complaint is reasonably available to each affected person;

(f) in a case where
the subject matter of the complaint has already been dealt with by the Commission
or by another statutory authority—the President is satisfied that the
subject matter of the complaint has been adequately dealt with;

(g) the President
is satisfied that the subject matter of the complaint could be more effectively
or conveniently dealt with by another statutory authority;

(h) the President
is satisfied that the subject matter of the complaint involves an issue of
public importance that should be considered by the Federal Court or the Federal
Magistrates Court;

(i) the President
is satisfied that there is no reasonable prospect of the matter being settled
by 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 one of
the reasons outlined above, may apply to have their complaint heard by the Federal
Court of Australia or the Federal Magistrates Service.

The complainant must be
issued with a Notice of Termination by the President of the Commission before
they can initiate Court proceedings and they must initiate the proceedings within
28 days of the date of the Notice of Termination.

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 the issue of a Notice by the President,
be made the subject of a report to the Attorney-General for presentation to
Parliament.

This difference in approach
reflects the failure of the Australian Bill of Rights Bill (1985) to
achieve Federal parliamentary approval in 1986. If successfully enacted, this
Bill would have given Australian domestic legal status to the previously ratified
International Covenant on Civil and Political Rights. With the entrenchment
of these basic rights into the domestic Australian fabric, the Human Rights
and Equal Opportunity Commission would have been able to investigate complaints
of human rights’ breaches by government departments in a similar way to
the Federal Ombudsman.

Complaint Handling – How it
Works

Returning now to the anti-discrimination
provisions, it must be kept in mind that one of their major objectives is, where
appropriate, to provide an opportunity for complainants and the party against
whom the complaint is made to attempt to resolve the complaint through conciliation.
This alternate dispute resolution process is seen as a quick and less costly
alternate to the more formal and determinative legal proceedings available,
should the complaint be terminated.

The process provides an
opportunity for the parties to hold a frank discussion about the complaint,
in an attempt to resolve the matter through negotiation. It gives the parties
an opportunity to resolve the matter on their terms which is usually in private
and on a confidential basis.

The role of the conciliator
is as a neutral third party, conducting the conference in a fair and impartial
manner. The conciliator is not acting on behalf of either party. The conciliator
gives each party an opportunity to present their views and ensures the conduct
of the proceedings takes place in a safe environment and observes the principles
of procedural fairness but recognizing power imbalances and the issues of substantive
versus formal equality.

Critics argue that the
individualised and confidential nature of conciliation settlements mean that
systemic discrimination is not addressed, that discriminatory acts are hidden
from public scrutiny and accordingly, that any potential for broader social
change is diffused. Criticisms also focus on the potential for power imbalances
in the process with those who are less articulate, less assertive and have less
emotional and financial resources (usually complainants) being disadvantaged
in the negotiation process.

Additionally, it is claimed
that limited public information on past settlement terms combined with the ‘neutral’
role of the conciliator results in complainants accepting settlement terms far
below what could be achieved at public determination.

Strategies employed by
Commission conciliators to enable substantive equality of process include:

  • providing information
    about process in a manner which ensures, as far as possible, that parties
    have an equal understanding of the process, possible advantages and disadvantages
    of the process and available alternatives;
  • providing parties with
    information about external resources that may assist them during the conciliation
    process if it appears that such assistance is required to enable equal participation;
  • adaptation of the process
    to enable parties to participate on substantively equal terms, for example
    by increasing the informality of the process or utilising techniques such
    as shuttle conferencing;
  • provision of interpreters
    or other aids where necessary to enable adequate participation;
  • control of attendance
    and process;
  • control of the physical
    environment to ensure environmental aspects do not exacerbate power imbalances.
    [3]

The National Alternate
Dispute Advisory Council (NADRAC) defines statutory conciliation as:

“Statutory
conciliation is a process in which the parties to a dispute which has resulted
in a complaint under statute, with the assistance of a neutral third party
(the conciliator), identify the disputed issues, develop options, consider
alternatives and endeavour to reach an agreement.

The conciliator may
have an advisory role on the content of the dispute or the outcome of its
resolution, but not a determinative role. The conciliator may advise on or
determine the process of conciliation whereby resolution is attempted and
may make suggestions for terms of settlement, give expert advice on likely
settlement terms and may actively encourage the participants to reach an agreement
which accords with the requirements of that statute”.
[4]

The process that is generally
used in statutory conciliation employs either the interest based negotiation
(IBN) or adversarial model. [5]

It is generally agreed
that IBN is an approach to conciliation that is intended to take the interests
of both parties into account when guiding them to agreement. [6]
This approach lends itself to a more structured process that focuses on identifying
interests, exploring options and the use of a process to resolve a dispute [7].
In taking this approach a conciliator is required to spend considerable time
before the conciliation conference preparing and counselling parties towards
“a fair and just agreement” . [8]

It is often contended that
IBN is better suited to complex dispute situations where a relationship needs
to be maintained and where interest based strategies can be employed to fully
explore all of the layers of a dispute so that resolution of the dispute can
be complete in every sense.

It then flows logically
that IBN is better suited to negotiations where a complainant is still in an
employment relationship or perhaps in an ongoing relationship with an essential
service provider. It has been argued that this approach is best suited to a
dispute where both parties stand to gain some tangible benefit from resolution
of the complaint: a “win win” outcome. [9]

The adversarial conciliation
model is usually looked at as an unpleasant alternative to the interest based
model. [10] As pointed out by Buckley [11],
“adversarial bargaining can be difficult, confronting and unpleasant
and an aversion to it is probably the source of the fervour that grips many
writers and theorists on negotiation”.

The adversarial approach
focuses on positions, with the complainant typically asking for much more than
they expect to receive. The respondents generally open with much less than they
expect to have to give. As Buckley notes, the typical pattern is for each party
to make progressively smaller concessions until an agreement is reached or neither
party will move any further.

Parties are focussed on
winning, not in caring for or understanding the interests or perspectives of
the other party. This situation is typical of complaints where a financial outcome
is sought by the complainant, as the only form of redress, and there is no ongoing
relationship with the other party.

The experience of the Commission
is that financial compensation is a common outcome in the resolution of discrimination
complaints. This particularly appears to be the case concerning complaints that
arise in the course of a person’s employment such as complaints of sexual
harassment and racial discrimination.

Outcomes of conciliation
for matters relating to disability discrimination tend to lend themselves to
more policy or action plan oriented resolution, such as the commitment to install
a lift to an otherwise inaccessible building or an undertaking to better communication
in relation to a child’s education.

The practice of ADR in
the context of anti-discrimination and human rights is an area of ongoing interest
for academics and practitioners because it is a context fraught with contradictions.
Firstly the client group serviced by the law tends to be those that would most
benefit from a more informal and accessible system of dispute resolution and
yet inherent in the context is the possibility of significant power imbalances
between the parties and delivery of a form of inferior justice to already disadvantaged
groups. Additionally, it is a context in which the public interest dimension
of the legislative framework can be seen to clash with traditional ADR and legal
concepts of neutrality and impartiality. [12]

Application of the principals
outlined above have resulted in the following statistics concerning HREOC’s
complaint handling capacities in 2001-2002:

  • 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.

Historically HREOC has
found that a conciliation rate of 30 percent is an appropriate performance measure;
considering the length of time the organisation has been operating and the total
number of complaints received, I believe this provides an excellent comparative
figure for like-minded organisations.

The different grounds for
complaint under HREOCA produced the following percentage breakdowns in 2001-2002:

  • 36% of complaints were
    lodged under the Disability Discrimination Act;
  • 31% under the Sex Discrimination
    Act;
  • 18% under the Human
    Rights and Equal Opportunity Act and
  • 15% under the Racial
    Discrimination Act

I will now take you through
some case study examples that amplify each of the above: [13]

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.

Alleged pregnancy discrimination
under Sex Discrimination provisions

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

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 under
Human Rights 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.

Conclusion

In conclusion, it is clear
that “alternate dispute resolution” has a long and honourable tradition
in Australia albeit sometimes travelling under the nom de plume of
“conciliation and arbitration”. It has always been recognised that
legal remedies, while necessary, can be expensive and time consuming, whereas
ADR provides the opportunity for outcomes that are affordable, understandable
and perhaps less bruising to the participants. It is certainly a system that
has enjoyed great success in the “equality rights” field and while
the impact in the human rights arena may be more subtle, it is still very discernable.

The final word should go
to Hilary Astor and Christine Chinkin from their ground-breaking work: “Dispute
Resolution in Australia” [14] : At the beginning of
the new century Australia has become a jurisdiction that is developing a more
sophisticated understanding of the uses and limitations of ADR according to
diverse contexts. Australia has responded to its own needs and made innovations
where appropriate. There is less of a tendency than there was a decade ago to
follow in the footsteps of other jurisdictions”.

Thank you.

1. Many
State Governments have also legislated to create Ombudsman roles with authority
to examine the operation of State Government Departments’ service delivery.

2. Human
Rights and Equal Opportunity Commission Act 1984 section 46PH(1)

3. Raymond
and Ball, op.cit.

4. National
Alternative Dispute Resolution Advisory Council, “ADR Definitions Paper”,
1997.

5. Paula
Gonzalez and Karen McCabe “Giving them what they want – Challenges
in using the adversarial and interest based models of statutory conciliation”.
A paper presented to the 6th National Mediation Conference,18 -20 September
2002, Canberra, Australia by HREOC Senior Investigation Conciliation Officers.

6. Gonzalez
and McCabe - op.cit

7. Fisher
and Ury, “Getting to Yes: Negotiating Agreement Without Giving In”,
NY, Penguin Books, 1991, p.21.

8. Williams,
“Legal Negotiation and Settlement”, West Publishing Company 1983,
p.48.

9. McCabe
and Gonzalez - Ibid

10. McCabe
and Gonzalez -Ibid

11. Ross P Buckley, “Adversarial
Bargaining: the Neglected Aspect of Negotiation”, Australian Law Journal,
Volume 75, pp 183.

12. Raymond
and Ball, Ibid.

13. The
Human Rights matters that could not be conciliated and were reported to the
Attorney-General for parliamentary tabling in 2001-2002 are outlined below:

HREOC Report No.
14

Report of an inquiry
into a complaint by Mr Andrew Hamilton of age discrimination in the Australian
Defence Force (January 2002)

This Report is of an inquiry
conducted prior to the commencement of the Human Rights Legislation Amendment
Act 1999 (No.1) (Cth) by the former Human Rights Commissioner. The inquiry dealt
with a complaint of discrimination in employment concerning discrimination on
the ground of age against the Commonwealth of Australia (Australian Defence
Force). The Human Rights Commissioner found that the Australian Defence Force
had discriminated against Mr Hamilton on the basis of his age.

In particular, the Human
Rights Commissioner found that:

in placing the complainant
in Promotion Band D at the June 1995 Promotion Board the respondent engaged
in an act of age discrimination the decision to place the complainant in Promotion
Band D was based on a distinction, exclusion or preference on the ground of
age which had the effect of nullifying or impairing the complainant's equality
of opportunity or treatment in employment or occupation the distinction, exclusion
or preference was not based on the inherent requirements of the job.

HREOC Report No.
15

Report of an inquiry
into a complaint by Ms Elizabeth Ching concerning the cancellation of her visa
on arrival in Australia and subsequent mandatory detention (February 2002)

This Report is of an inquiry
into a complaint by Ms Ching that her human rights were breached when she was
questioned by Department of Immigration and Multicultural Affairs (DIMA)
officials on her arrival at Brisbane airport, and her subsequent custody at
the Brisbane Women's Correctional Centre. The President found that some aspects
of Ms Ching's treatment were inconsistent with or contrary to her human rights.

In particular, the President
found that:

the act by an officer
of DIMA of requiring Ms Ching to provide a response to the notification of the
likely cancellation of her visa within a period of ten minutes was in breach
of the requirement in article 13 of the International Covenant on Civil and
Political Rights ("ICCPR") which provides that an applicant be allowed
to submit the reasons against expulsion.

the act by an officer
of DIMA not to advise Ms Ching that she was able to seek legal advice or assistance
had the effect that Ms Ching was not able to exercise her rights pursuant to
article 13 of the ICCPR to have her case reviewed before a competent authority
and to be represented for the purpose of having her case reviewed before a competent
authority and therefore amounts to an act which is inconsistent with or contrary
to her human rights.

HREOC Report No.
16

Report of an inquiry
into a complaint by Mr Hocine Kaci of acts or practices inconsistent with or
contrary to human rights arising from immigration detention (May 2002)

This Report concerns an
inquiry into a complaint made by an asylum seeker, (Mr Kaci), who had been transferred
from an immigration detention centre to a remand centre as a result of alleged
unacceptable behaviour. Mr Kaci alleged that the conditions in which he was
detained were contrary to the ICCPR. The President found that the conditions
of Mr Kaci's detention were in breach of article 10(2) of the ICCPR.

In particular, the President
found that:

asylum seekers in immigration
detention, as unconvicted persons, should be treated in a different manner to
convicted prisoners. Article 10(2) of the ICCPR obliges Australia to ensure
that unconvicted persons are subject to separate treatment appropriate to their
status unconvicted persons in detention are entitled to a "special regime"
of treatment as outlined in Part II, Section C of the UN Standard Minimum Rules
for the Treatment of Prisoners.

HREOC Report No.
17

Report of an inquiry
into a complaint by the Asylum Seekers Centre concerning changes to the Asylum
Seekers Assistance Scheme (May 2002)

This Report concerns an
inquiry into a complaint by the Asylum Seekers Centre alleging that changes
to the Asylum Seekers Assistance Scheme made by the Department of Immigration,
Multicultural and Indigenous Affairs had breached the human rights of people
seeking asylum in Australia. The first changes complained of produced the result
that asylum seekers are no longer eligible for the Scheme if their application
is being reviewed by the Refugee Review Tribunal. New criteria governing exemptions
from the Scheme's waiting period were also introduced. Further revision of the
criteria for exemption from the waiting period was made a short time after the
initial changes. The Human Rights Commissioner found that the changes made to
the Asylum Seekers Assistance Scheme were in breach of articles 3 and 24(2)(d)
of the Convention on the Rights Of the Child ("CROC") and article
26 of the ICCPR.

In particular, the Human
Rights Commissioner found that:

the best interests of
the child were not a primary consideration in making the changes to the scheme,
and thus article 3 of CROC had been breached at a minimum, Australia is required
to provide all pregnant women with ongoing assistance and information in relation
to their pregnancy. The changes to the scheme resulted in a number of pregnant
asylum seekers being denied "appropriate prenatal care", and the changes
were in breach of article 24(2)(d) of the ICCPR

the changes to the scheme
were discriminatory and in breach of article 26 of the ICCPR.

HREOC Report No.
18

Report of an inquiry
into a complaint by Mr Duc Anh Ha of acts or practices inconsistent with or
contrary to human rights arising from immigration detention (May 2002)

This Report concerns an
inquiry into a complaint made by Mr Ha, an immigration detainee, regarding his
transfer to a maximum security prison, and his subsequent detention in that
prison. The President found that his transfer to a maximum security prison,
and his subsequent detention in that prison, was contrary to articles 9(1),
10(1) and 10(2)(a) of the ICCPR.

In particular, the President
found that:

the lack of access to
recreational facilities, locking of Mr Ha in his cell for 22 hours a day, denial
of an opportunity to work, and failure to provide time to exercise all amounted
to a breach of article 10(1) of the ICCPR the transfer of Mr Ha to a maximum
security prison, and failure to accord him treatment appropriate to his status
as an unconvicted person constituted a breach of article 10(2)(a) of the ICCPR
the failure to consider whether or not Mr Ha could be segregated from convicted
prisoners was in breach of article 10(2)(a) of the ICCPR Mr Ha's detention was
arbitrary, unjust and inappropriate in the circumstances, and thus in breach
of article 9 of the ICCPR.

Dispute Resolution in
Australia – Second Edition by Hilary Astor – Abbott Tout Professor
of Litigation and Dispute Resolution Sydney University and Christine Chinkin
– Professor of International Law London School of Economics. Published
by LexisNexis B