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Procedures and remedies for dealing with complaints of racial discrimination and vilification: Dr William Jonas

Race Race Discrimination

Procedures and remedies for
dealing with complaints of racial discrimination and vilification

Keynote speech by Dr William
Jonas, Aboriginal and Torres Strait islander Social Justice Commissioner
and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity
Commission, Australia

Presented to the
Sixth International Workshop of National Human Rights Institutions in
Copenhagen

11 April 2002

The obligation to afford an
effective remedy

While prevention
of racial discrimination, incitement and racial vilification is the priority
of both the international scheme to combat racism and domestic policy,
victims of racism are not forgotten. Article 6 of the International Convention
on the Elimination of All Forms of Racial Discrimination, (ICERD), commits
all member countries to "assure to everyone within their jurisdiction
effective protection and remedies … against any acts of racial discrimination",
"as well as the right to seek … just and adequate reparation
or satisfaction for any damage suffered as a result of such discrimination".

In its General Recommendation
No. 26 (March 2000) the Committee on the Elimination of Racial Discrimination
emphasised that punishment of the perpetrator would not on its own satisfy
article 6. "Just and adequate reparation or satisfaction for any
damage" would usually require an award of financial compensation.

An earlier General
Recommendation (No. 17, March 1993) recommended ICERD States Parties consider
establishing national commissions to promote the principles of the Convention.
Interestingly the list of suggested functions does not include complaint
handling. Yet already the Paris Principles, adopted in 1991, saw complaint
handling as a desirable feature of national human rights institutions,
though not an essential feature.

The complaint handling
function could involve:

a. Seeking an amicable
settlement through conciliation or, within the limits prescribed by
the law, through binding decisions or, where necessary, on the basis
of confidentiality.

b. Informing the party who filed the petition of his rights, in particular
the remedies available to him, and promoting his access to them.

c. Hearing any complaints or petitions or transmitting them to any other
competent authority within the limits prescribed by the law.

d. Making recommendations to the competent authorities, especially by
proposing amendments or reforms of the laws, regulations and administrative
practices, especially if they have created the difficulties encountered
by the persons filing the petitions in order to assert their rights.

Australia's conciliation model

Australia pioneered
the conciliation model of complaint resolution in a period when European
race discrimination laws typically created a criminal offence relying
on the police for enforcement. The national legislation implementing ICERD
is the 1975 Racial Discrimination Act or RDA.

In Australia - a
federation of 8 constituent States and Territories - there are 9 separate
anti-race discrimination systems at work with some overlap between each
State or Territory law and the national RDA. Nevertheless, coverage and
process are sufficiently similar to justify treating the 'Australian model'
as distinct for our purposes today.

In Australia only
an aggrieved person, or a trade union on behalf of a member, can submit
a complaint of race discrimination. The complaint must be in writing (whether
posted or emailed). It does not need to have been drawn up by a lawyer
and, in fact, complaints rarely are.

In the national institution
it is the President who investigates complaints. She does so through her
delegate, the Director of Complaint Handling. She can terminate a complaint
on any one of a number of grounds:

  • no unlawful discrimination
    is disclosed
  • the complaint
    is out of time - older than 12 months
  • complaint is trivial,
    vexatious, misconceived or lacking in substance
  • another, satisfactory,
    remedy has been obtained or could be sought
  • the issue has
    been adequately dealt with by another statutory authority - for example,
    by an Ombudsman - or could so be dealt with
  • the issue is one
    of public importance which should be considered by a court
  • there is no reasonable
    prospect of conciliation. [1]

Where it appears
a complaint can be resolved by the parties themselves, the institution
will try to help them reach a fair agreement. Conciliation processes are
flexible and sometimes matters may be settled by exchange of letters,
telephone negotiation through the officer handling the matter, or by a
telephone conciliation conference.

Sometimes the parties
will be brought together in a 'conciliation conference' which is an informal,
impartial and private process. The conciliation officer sets the standards
for the conference. If the conciliation officer agrees, a party may have
a lawyer, advocate or support person at the conference. However, legal
representation is not necessary and, if it is agreed to, is at the party's
expense.

The Australian institutions
have powers to compel the production of documents and attendance at conferences.
These powers are rarely used in practice since parties are generally co-operative.
While the negotiated outcome of conciliation must be lawful, there are
no statutory limits on its extent.

Where the parties
cannot reach an agreement, the complainant is entitled to have the matter
adjudicated by an independent, quasi-judicial specialist tribunal in the
States and Territories or in the Federal Court under the RDA. Thus while
a judicial determination is always available as a last resort, complainants
must usually attempt conciliation before seeking one.

Examples of remedies agreed
and awarded

Conciliated
cases

Conciliation example
1

The complainant claimed that she was the victim of discrimination after
a promotion in that:

  • she was issued
    a performance warning based upon unfounded allegations and unreasonable
    complaints, such as speaking Chinese to a Chinese-speaking customer
  • she was victimised
    for lodging internal complaints and
  • because her complaints
    were written in a lower standard of English, they were not taken seriously.

The respondent agreed
that the allegations made by other staff members against the complainant
were unfounded and that the official performance warning was not justified.
However, the respondent stated that, while the complainant may have been
treated less favourably by her co-workers, this was because of 'internal
conflicts' rather than the complainant's race.

Outcome:
The complaint was settled by conciliation with the respondent agreeing
to issue the complainant with a letter of apology, pay the complainant
$15,000 compensation, reimburse costs incurred by the complainant in pursuing
the complaint and publish a tribute to the complainant in the organisation's
newsletter.

Conciliation example
2

The complainant claimed that she was speaking to a friend in her first
language, which is Italian, while waiting for an appointment at a community
club. The complainant alleged that the Club Secretary approached her and
said, "Be quiet. This is an Australian Club and you ought to speak
English. This is the Club rule".

The Club Secretary
eventually admitted making the alleged remarks. The Club President advised
that there had never been a policy that people must speak English while
on the Club's premises.

Outcome: The
complaint was resolved by conciliation with the Club Secretary of the
Club providing a personal written apology to the complainant. The Secretary
was also counselled by the Club Committee.

Court and tribunal
verdicts

Determination
example 1

At a workshop organised by the local Council of which both parties were
members, the respondent suggested a 'solution' to an issue in the Aboriginal
community was to "shoot them". The complainant, an Aboriginal
councillor, and two Council staff were present and gave evidence that
the comment was not made flippantly. The tribunal noted: "Suggesting
that a particular group of people … should be shot is simply offensive.
It is made more so when such a suggestion is made by the holder of a public
officer who has no doubt sworn an oath to appropriately serve all of the
people in the ward which he represents [including the Aboriginal community
referred to]." The respondent was ordered to pay $1,000 compensation
to the complainant. The Commissioner took into account the fact that an
apology had been offered and that the respondent had undertaken cultural
awareness training. [2]

Determination
example 2

A complainant of Ugandan descent established he had experienced racial
discrimination and harassment in employment to the point where he was
at the time of the hearing incapacitated for work. He was awarded $30,000
in general damages and $25,000 for loss of earning capacity. [3]

Evaluation of the conciliation
model

Criticisms
of conciliation

One criticism of
the reliance on conciliation in discrimination cases is that it has the
effect of defining discrimination as an unwanted 'trespass' to the individual
rather than an unlawful act against community standards.[4]
It is also noted that conciliation is unlikely to bring about structural
change or 'effect substantive equality'. [5]

'Settling' discrimination
cases through conciliation, carried out in private, detracts from recognition
of the pervasive problem which is discrimination. It turns a structural
matter into a question of individual or personal harm. [6]

Australian research
to some extent contradicts this, although more could be done to achieve
systemic change through conciliation. The process offers an opportunity
for the complainant to request and the respondent to offer or agree to
a policy change benefiting everyone in the complainant's class. [7]

There has also been
criticism of the justice of conciliated outcomes. Theoretically the outcome
may be tailor-made to suit the parties' needs. In practice, without a
precedent or benchmark (or 'tariff'), the outcome depends on the complainant's
self-estimation and the respective bargaining power of the parties. Universal
principles of justice do not come into play.

Advantages
of conciliation

On the other hand,
the advantages of conciliation for resolving race discrimination disputes
include that:

  • it is free of
    charge, efficient and speedy
  • it is readily
    accessible to those who did not have the financial, educational or other
    means to go through elaborate court processes
  • it is informal,
    not limited by artificial legal categories or remedies, and can be tailored
    to the parties' needs
  • it makes it possible
    to confront individuals accused of racially discriminatory action with
    the true immorality of what they have done
  • it has an educational
    effect on the community. [8]

Procedural safeguards and
administrative provisions

In a conciliation
model where the complaint can proceed into open court, there are some
fundamental procedural safeguards which must be ensured during complaint
handling.

Australian legislation
protects the confidentiality of the conciliation process by making evidence
of things said or done by the parties during the attempt at conciliation
inadmissible during a subsequent court or tribunal hearing, if any. [9]

Although no legislation
defines conciliation or sets out the process or procedures to be followed,
Australian courts have imposed a minimum standard of procedural fairness
because of the legal hazard faced by the respondent if conciliation is
flawed (namely the risk of court proceedings). Thus, for example, the
conciliator must be independent and objective. [10]

Moreover, at the
national level, the institution's decisions and actions in relation to
a complaint can be subject to judicial review. A decision to decline a
complaint, or to terminate one, is reviewable on a number of grounds.
Two influential grounds are, first, that the decision-maker took irrelevant
considerations into account and, second, that natural justice and procedural
fairness were denied.

Irrelevant considerations
include the complainant's behaviour in dealings with the institution,
the seriousness of the matter (unless it is properly declined as 'trivial'),
and officers' perceptions of the futility of pursuing the complaint.

The two rules of
natural justice typically referred to in reviews on this ground are that
the person affected should be told the case being made out against him
or her and have an opportunity of replying to it. [11]
Procedural fairness is somewhat broader and covers the decision-making
process more generally. Most importantly it requires even-handedness and
impartiality in the decision-maker.

Assisting the courts

Intervention
function

When the Australian
Commission was established in its current form in 1986, one of its functions
was the power to intervene, with the leave of the court, in proceedings
that involve discrimination issues [12] or human rights
issues generally. [13]

One of the most important
cases in which the Commission successfully intervened was Teoh.
This case challenged a deportation order issued against the Vietnamese
father of seven Australian children. The Commission argued that the Minister's
decision to deport Mr Teoh had failed to take into account his children's
rights. These include the rights to know and be cared for by their father
(CROC article 7), to preserve their family relations (article 8) and to
maintain personal relations and direct contact with both parents on a
regular basis. [14] (article 9). Australia's highest
court agreed that the Minister should make the best interests of the children
affected a primary consideration in his decision. [15]

More recent Commission
interventions have been approved in the case brought on behalf of the
asylum seekers rescued by the Norwegian vessel Tampa and refused permission
to land in Australia, [16] a case brought to challenge
the continued detention of an offender from Vietnam for some 4 years after
the expiration of his sentence of imprisonment pending his deportation
[17] and a case brought by Australia's Catholic Bishops
to prevent single women accessing IVF assisted reproduction technology.
[18]

Amicus curiae

Since April 2000
the Commission also has the possibility of appearing as amicus curiae
or friend of the court in cases under legislation we administer. Actually,
unlike the intervention function which is a whole-Commission function,
the amicus role is exercised independently by each of the Commissioners
individually. As Race Discrimination Commissioner I can seek to appear
as amicus in cases dealing with complaints under the RDA. Conflict of
interest is avoided as I no longer have any role in complaint handling
at the conciliation stage. That is the sole responsibility of the Commission's
President through her delegate.

Any Commissioner
may seek to appear as amicus in one of three circumstances:

1. where the outcome
may significantly affect the human rights of non-parties
2. where the case has significant implications for the administration
of the legislation OR
3. where special circumstances satisfy the Commissioner that assisting
the court would be in the public interest.

I have yet to appear
as amicus in any proceedings. My colleague the Sex Discrimination
Commissioner has appeared as amicus in one case involving a complaint
of sex discrimination brought by a female professional kick boxer refused
registration to practice her profession in her state of residence. Although
the Commissioner's interpretation of the Sex Discrimination Act
was adopted by the court, the complainant was unsuccessful in her claim.
[19]

Conclusions

Australia's legal
regime for the protection of human rights is in many ways unique because
we do not enjoy the protection of a Bill of Rights. Most human rights,
including the prohibition of racial discrimination, do not enjoy constitutional
protection.

Thus these principles
have been slow to filter into our legal consciousness and, it must be
said, are still too easy to ignore. The Teoh principle and the
courts' acceptance of international standards influencing the evolution
of the common law make limited impact on the enjoyment of rights in Australia.
The national government is not only free to pass legislation excluding
the operation of human rights but also to award itself retrospective immunity
from performing its human rights obligations.

In this legal environment,
court decisions on individual complaints and the Commission's amicus
and intervention roles are almost the only means of expanding human rights
jurisprudence in Australia.

Notes

1.
Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA)
section 46PH.
2. Jacobs v Fardig (1999) EOC 93-016.
3. Rugema v Southcorp Packaging (1997) EOC 92-887.
4. Margaret Thornton, 'Equivocations of Conciliation:
The Resolution of Discrimination Complaints in Australia', (1989) 52(6)
Modern Law Review 733-761, at page 735.
5. Id, page 760.
6. Jocelynne Scutt, 'Privatisation of Justice: Power Differentials,
Inequality and the Palliative of Counselling and Mediation', in Jane Mugford
(ed), Alternative Dispute Resolution (Australian Institute of Criminology,
Canberra, 1986), 185-211, at page 192.
7. In a review of sex discrimination cases, researchers
found almost one-half of conciliated settlements in two Australian states
involved policy changes: Rosemary Hunter and Alice Leonard, The Outcomes
of Conciliation in Sex Discrimination Cases (Centre for Employment and
Labour Relations Law, University of Melbourne, 1995) page 28.
8. Hilary Astor and Chiristine Chinkin, Dispute Resolution
in Australia (Butterworths, Sydney, 1992) page 12; Committee on the Elimination
of Racial Discrimination, Summary Record of the 444th Meeting, 6 August
1979, UN Doc. CERD/C/SR.444, para. 32.
9. See for example, Equal Opportunity Act 1984 (South
Australia) section 95(7).
10. Koppen v Commissioner for Community Relations (1986)
EOC 92-173.
11. Kioa v West (1985) 159 CLR 550; see page 558.
12. Re race discrimination see RDA section 20(1)(e).
13. HREOCA section 11(1)(o).
14. UN Convention on the Rights of the Child articles
7, 8 and 9 respectively.
15. Minister for Immigration and Ethnic Affairs v Ah
Hin Teoh (1995) 183 CLR 273.
16. Minister for Immigration and Multicultural Affairs
& Ors v Victorian Council for Civil Liberties; Minister for Immigration
and Multicultural Affairs & Ors v Eric Vadarlis [2001] FCA 1329.
17. Luu v Minister for Immigration and Multicultural
Affairs [2001] FCA 1136.
18. 'McBain Case', heard 4-6 September 2001; decision
reserved.
19. Ferneley v Boxing Authority of NSW and State of NSW
[2001] FCA 1740.

Last
updated 19 September 2002