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Five Years On: An update on the complaint handling work of the AHRC

Complaint Information Service

Five Years On: An update on the complaint handling work of the Australian Human Rights Commission (2005)

1 Background

1.1 The complaint handling work of the Australian Human Rights Commission

The Australian Human Rights Commission (HREOC) is empowered to investigate complaints under federal human rights and anti-discrimination law and to attempt to resolve complaints by conciliation, where this is considered appropriate. There is some variation in the complaint handling process for complaints alleging unlawful discrimination1 and complaints alleging breaches of human rights and discrimination under the Australian Human Rights Commission Act 1986. Additionally, in recent years there has been a change in the determination process for complaints of unlawful discrimination.

Prior to 2000, complaints of unlawful discrimination that could not be resolved by conciliation were heard and determined by HREOC. The 1995 High Court decision of Brandy v HREOC2 held that HREOC did not have power to make enforceable decisions in relation to unlawful discrimination with respondents other than the Commonwealth. This decision led to the introduction of the Human Rights Legislation Amendment Act (No.1) 1999 (Cth) (HRLA Act) in April 2000 which ensured the enforceability of unlawful discrimination decisions by the introduction of a court based determination process3. Since 13 April 2000, complaints of unlawful discrimination that cannot be resolved by conciliation or are considered inappropriate for conciliation4 are terminated with complainants then having the option of applying for the allegations to be heard and determined by the Federal Court of Australia or the Federal Magistrates Court.

Complaints alleging breaches of human rights and discrimination under the Australian Human Rights Commission Act 1986 that cannot be resolved by conciliation do not have the option of proceeding for court determination. Rather, these complaints may be subject to a report to the Attorney-General and subsequent tabling of the report in Parliament. This process was not affected by the introduction of the HRLA Act.

1.2 Information and research on the complaint process

HREOC's Complaint Handling Section (CHS) provides a range of information about its complaint process for parties to complaints and the general public. This includes written information available in hard copy or via the HREOC website5, a DVD/video on the conciliation process and a conciliation register which provides de-identified information about the resolution of complaints6. Detailed complaint statistics and de-identified case studies are also provided each year in HREOC's Annual Report.

The CHS also undertakes specific research projects with the dual aims of providing further information on the complaint process for the general public and obtaining data to enable HREOC to reflect on, and improve, its complaint practice.

This paper outlines projects undertaken by the CHS in the 2004-05 reporting year which, in part, provide a follow up to the findings of a 2001 research project that considered the initial impact of the changes introduced by the HRLA Act.

1.2.1 The 2001 project

In the lead up to the introduction of the HRLA Act in 2000 there was significant community debate regarding the proposed move to a court determination process for federal anti-discrimination law. Central to this debate were concerns about the formality and 'costs jurisdiction' of the Federal Court of Australia.7 Some saw a court determination process as positive in that it moved anti-discrimination law into the mainstream legal system8. It was also contended that a costs jurisdiction had benefits in terms of attracting legal professionals to represent clients on a contingency basis9. Others however, expressed concern that the formality and potential cost of court action would discourage complainants, who are very often members of disadvantaged groups, from lodging complaints and pursuing matters to determination10.

Concern was also expressed that the move to a 'costs follow the event' court determination process would have a potentially negative impact on HREOC's conciliation process. Specifically, there was concern that difference in the resources of complainants and respondents, the latter often being government departments and companies, would mean that respondents would be less worried about court action and therefore less willing to resolve matters through conciliation. Similarly, it was proposed that complainants' concerns about court action would result in them being forced to accept lower outcomes in the conciliation process or withdraw their complaints11. There also appeared to be apprehension that due to potential court action, legal advisers would become more frequent players in conciliation causing an increase in the formality and adversarial nature of conciliation proceedings.

In 2001, in light of general interest in the impact of the changes introduced by the HRLA Act, HREOC undertook a research project to consider the initial period of operation of the legislative changes. This project included an assessment of the impact of the changes on HREOC's complaint process by means of comparison of complaint statistics for a two year period prior to the legislative amendments with statistics for the calendar year after the commencement of the HRLA Act12. The project also incorporated a survey of parties who participated in conciliation in the 2001 calendar year. The findings of this project are documented in "Review of Changes to the Administration of Federal Anti-Discrimination Law: Reflections on the Initial Period of Operation of the Human Rights Legislation Amendment Act (No.1)1999 (Cth)" which is available on the HREOC website13. Findings of the conciliation survey are also documented in "Dispute Resolution in the Changing Shadow of the Law: A Study of Parties' Views on the Conciliation Process in Federal Anti-Discrimination Law"14.

In summary, the 2001 project found that while the time period examined by the project was limited; the procedural changes introduced by the HRLA Act did not appear to have significantly impacted on the manner in which parties approach complaints before HREOC, nor had it deterred complainants from bringing matters under federal anti discrimination law. Furthermore, the project found that a significant number of complainants were utilising the new determination procedure.

1.2.2 Recent projects

The CHS undertook two specific research projects in the 2004-05 reporting year.

The first section of the paper reports on a project which provides a follow-up to the 2001 research project. This project collected additional comparative complaint statistics and considered any apparent trends with reference to concerns that had been raised about the potential impact of the court determination process on HREOC's complaint function.

The second part of the paper summarises findings of a conciliator survey which was undertaken in the latter half of 2004. The survey sought to update data on some aspects of the conciliation process considered in the 2001 project such as party representation in conciliation and the form of the conciliation process. The survey also sought new information on the HREOC conciliation process including information on the role of the conciliator and conciliator views on their level of intervention into how the conciliation process is conducted, the subject matter of the dispute and conciliation outcomes.

2. Part 1 - Complaint statistics

2.1 Objectives

This project aimed to update complaint statistics utilised in the 2001 report to provide an extended time period from which to consider the impact of the procedural changes introduced by the HRLA Act. Data for three additional calendar years was collated and assessed with a view to determining if the procedural changes introduced by the HRLA Act could be said to have impacted on:

  • the number of complaints lodged under federal anti-discrimination law;
  • the level of legal representation of complainants in the complaint process;
  • the number of complaints being pursued to determination; and
  • the relative position of complainants in the complaint process.

Up-dated statistics and comments on these statistics are provided below.

2.2 Complaints received

Table 1: Complaints received by jurisdiction*

  Racial Discrimination Act (RDA) Sex Discrimination Act (SDA) Disability Discrimination Act (DDA) Age Discrimination Act (ADA) ** TOTAL
1/1/98 - 31/12/98 640*** 221 352 - 1213
1/1/99 - 31/12/99 270 244 447 - 961
1/1/01 - 31/12/01 265 412 486 - 1163
1/1/02 – 31/12/02 190 368 474 - 1032
1/1/03 – 31/12/03 175 353 493 - 1021
1/1/04 – 31/12/04 152 341 503 40 1036
  1. * As noted in the 2001 report, data for the 1998 and 1999 calendar years is based on complaints received at the Sydney HREOC office as detailed data on federal complaints handled by state and territory anti-discrimination agencies during 1998-99 is unavailable. Formal arrangements for state agencies to handle federal complaints concluded in 1999. While the vast majority of complaints in 1998 and 1999 were handled by the Sydney office, complaint statistics for these periods are not exactly comparable with data from the 2001 – 2004 calendar years.
  2. ** The Age Discrimination Act came into effect on 23 June 2004.
  3. *** As noted in the 2001 report, this figure is seen to be artificially inflated by receipt during the 1998-99 reporting year of 246 individual complaints dealing with the same subject matter.>

Statistics on complaints received in the four years after the introduction of the HRLA Act do not reveal any trend of decreasing complaints that could be attributed to the legislative changes. As noted in the 2001 report, if the comparative period is extended to include available figures for complaints received at the Sydney office in 1996 (914 complaints received) and 1997 (894 complaint received) there is no apparent upward or downward trend in complaints. On the basis of the available statistics, the average number of complaints received in the four years prior to the introduction of the HRLA Act (995 complaints) is similar to, but slightly lower than, the average number of complaints received in the four years after the legislative change (1063 complaints).

2.3 Complaint outcomes

Table 2: Outcomes of finalised complaints

  Conciliated Withdrawn Declined/ Terminated* Referred/terminated no reasonable prospect of conciliation
1/1/98 - 31/12/98 34% 18% 39% 9%
1/1/99 - 31/12/99 26% 14% 47%15 13%
1/1/01 - 31/12/01 39% 11% 35% 15%
1/1/02 – 31/12/02 35% 12% 32% 21%
1/1/03 – 31/12/03 39% 10% 31% 20%
1/1/04 – 31/12/04 42% 10% 27% 21%
  • * This includes termination because: the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination; the complaint was lodged more than 12 months after the alleged unlawful discrimination took place; the President is satisfied that the complaint was trivial, vexatious, misconceived or lacking in substance; the President is satisfied that some other more appropriate remedy in r elation to the subject matter of the complaint is reasonably available to each affected person.

Table 3: Percentage of matters where conciliation attempted and successful

  Conciliation success rate
1/1/98 - 31/12/98 80%
1/1/99 - 31/12/99 68%
1/1/01 - 31/12/01 71%
1/1/02 – 31/12/02 62%
1/1/03 – 31/12/03 65%
1/1/04 – 31/12/04 66%

The statistics in Table 2 show that there has been a general increase in the conciliation rate and a decrease in the withdrawal rate over the four years since the introduction of the HRLA Act. The figures in Table 3 indicate that the conciliation success rate in the year preceding the introduction of the HRLA Act is similar to the average conciliation success rate in the four years after the legislative changes were introduced (66%). These figures do not support a view that the changes instituted by the HRLA Act have resulted in increased resistance to conciliation by respondents or complainants being more dissatisfied with the process and withdrawing their complaints.

Over the past four calendar years there has also been an increase in matters that have been terminated on the ground of 'no reasonable prospect of the matter being settled by conciliation' and a decrease in the number of complaints terminated for other reasons. These figures point to an increase in the number of complaints that have proceeded to conciliation in this period. From HREOC's perspective these figures may be explained firstly, in terms of attempts by HREOC to provide interested parties with every opportunity to resolve complaints before proceeding to a court-based determination process. Connected with this is a possible increased willingness on the part of respondents to consider conciliation in light of potential court action and the fact that in the current process, complainants may lodge an application for determination by the court regardless of the reason the complaint was terminated by HREOC. It is noted that in the pre-HRLA Act process, complaints that proceeded to determination before HREOC were predominately matters where attempted conciliation had been unsuccessful16. Where complaints were discontinued on grounds such as 'lacking in substance', complainants could request an internal review of the decision but the matter could not proceed to determination.

2.4 Complaint settlement amounts

The figures in Table 4 below indicate that average median compensation amounts obtained in conciliation in the 2003 and 2004 calendar years are similar to, or larger than, average median amounts in the two years preceding the legislative changes. As such, the move to a court based determination process appears to have had no real impact on financial compensation obtained in conciliation. While it is recognised that financial compensation is only one possible outcome of conciliation, these figures do not support initial concerns that the legislative changes would result in complainants being forced to accept lower outcomes in the conciliation process.

Table 4: Median financial payments obtained in conciliation*

  RDA SDA DDA All jurisdictions
1/1/98 - 31/12/98 $7,000 $5,500 $3,000 $7,000
1/1/99 - 31/12/99 $1,410 $5,000 $2,875 $4,000
1/1/01 - 31/12/01 $9,000 $5,000 $1,500 $4,000
1/1/02 – 31/12/02 $6,000 $5,000 $3,635.50 $5,000
1/1/03 – 31/12/03 $5,000 $6,000 $5,000 $5,000
1/1/04 – 31/12/04 $5,250 $5,700 $5,000 $5,000
  • * A median rather than average measurement has been utilised to avoid calculations being skewed by one or two extreme financial payments linked to specific individual circumstances. This data is obtained from HREOC's data base and relates to conciliation processes facilitated by HREOC.

2.5 Representation of complainants

Table 5 below details the representation of complainants as indicated at the commencement of the complaint handling process. It is noted that complainant representation may vary during the process in that a complainant may not have representation at the beginning of the complaint process but obtain representation later on. The 2004 statistics in Table 5 should be considered in association with figures in Table 12 which refer to complainant representation in conciliation in 2004. While accurate data on respondent representation over the six year period is not available, statistics on respondent representation in the conciliation process in 2001 are provided in the documentation of the 2001 project and details of respondent representation in conciliation in 2004 are included in Table 12.

Table 5: Complainant representation

  Legal Other advocate No representation Total
1/1/98 - 31/12/98 132 (11%) 515* (42%) 566 (47%) 1213 (100%)
1/1/99 - 31/12/99 133 (14%) 54 (6%) 774 (80%) 961 (100%)
1/1/01 - 31/12/01 198 (17%) 88 (8%) 877 (75%) 1163 (100%)
1/1/02 - 31/12/02 232 (23%) 65 (6%) 735 (71%) 1032 (100%)
1/1/03 - 31/12/03 226 (22%) 110 (11%) 685 (67%) 1021 (100%)
1/1/04 - 31/12/04 237 (23%) 86 (8%) 713 (69%) 1036 (100%)
  • * This figure is seen to be artificially inflated by the receipt during the 1998-99 reporting year of 246 individual complaints with non-legal representation that dealt with the same subject matter.

The statistics in Table 5 show that in the four calendar years after the introduction of the HRLA Act there has been an increase in the legal representation of complainants. While in the year preceding the introduction of the HRLA Act 14 percent of complainants had legal representation, over the last 4 years an average of 21 percent of complainants had legal representation. This increase in legal representation may be indicative of an increased desire or perceived need for legal representation in light of potential court determination and/or of increased legal practitioner interest in this jurisdiction since the move to a court determination process.

Table 6: Complainant legal representation x jurisdiction

  RDA SDA DDA ADA Total
1/1/98 - 31/12/98 31 (5%) 49 (22%) 52 (15%) - 132 (11%)
1/1/99 - 31/12/99 30 (11%) 51 (21%) 52 (12%) - 133 (14%)
1/1/01 - 31/12/01 36 (14%) 95 (23%) 67 (14%) - 198 (17%)
1/1/02 - 31/12/02 42 (22%) 108 (29%) 82 (17%) - 232 (23%)
1/1/03 - 31/12/03 35 (20%) 101 (28%) 90 (18%) - 226 (22%)
1/1/04 - 31/12/04 31 (21%) 112 (33%) 87 (17%) 7 (17.5%) 237 (23%)

Table 6 indicates that there has been an increase in legal representation across all jurisdictions over the past four years. SDA complaints have consistently had the highest levels of complainant legal representation and possible reasons for this are discussed at 3.4 below.

2.6 Applications to the Federal Court of Australia (FCA) and Federal Magistrates Court (FMC).

Table 7: Complaints terminated and number of applications to the FCA & FMC*

  2001 2002 2003 2004
Complaints terminated – all grounds 560 554 543 484
Applications lodged with FCA or FMC 131 (23%) 116 (21%) 129 (24%) 130 (27%)
  • * Based on advice to HREOC that an application has been lodged in the FCA or the FMC.

Table 7 reveals that over the last four calendar years, on average, 24 percent of terminated complaints are pursued to court. A breakdown of these figures by jurisdiction shows that complainants under the SDA had the highest number of applications to court across the 2001 – 2004 calendar years17.

Table 8: Complaints terminated on the ground of 'no reasonable prospect of the matter being settled by conciliation' x applications to the FCA and FMC*

  2001 2002 2003 2004
Terminated- no reasonable prospect of conciliation 172 223 216 215
Applications lodged with FCA or FMC 74 (43%) 82 (37%) 94 (43%) 90 (42%)
  • * Based on advice to HREOC that an application has been lodged in the FCA or the FMC.

Table 8 shows that over the last four calendar years, on average, 41 percent of complaints terminated because the President was of the view that there was no reasonable prospect of the matter being settled by conciliation, were pursued to court.

Statistics indicate that in the 1994-1999 annual reporting periods an average of nine percent of complaints were referred for hearing and determination each year18. These complaints were predominately matters that could not be resolved by conciliation and where the complainant wished to proceed to determination19. The figures in Tables 7 and 8 therefore suggest that since the introduction of the HLRA Act, a higher proportion of complainants have had access to the complaint determination process.

2.7 Summary of findings - complaint statistics

The additional complaint statistics for the past three calendar years reinforce the findings of the 2001 report. Specifically:

  • statistics on complaints received over the past four calendar years do not indicate any trend of decreasing complaint numbers since the introduction of the HRLA Act;
  • statistics indicate that a significant number of complainants are utilising the court determination process;
  • statistics on complaint outcomes do not support a view that the procedural changes instituted by the HRLA Act have resulted in increased respondent resistance to conciliation or complainants being more dissatisfied with the process and withdrawing their complaints;
  • statistics on average median compensation amounts obtained in conciliation do not support a view that the move to a court based determination process has resulted in complainants being forced to accept lower outcomes in conciliation; and
  • statistics indicate that there has been an increase in legal representation of complainants in the complaint process since the introduction of the HRLA Act which may be indicative of an increased desire or perceived need for legal representation in light of potential court determination and/or of increased legal practitioner interest in this jurisdiction.

3. Part 2 - Conciliation survey

3.1 Objectives and methodology

As noted previously, the CHS aims to regularly gather information on its conciliation process to assist the public and other ADR practitioners better understand conciliation as conducted by HREOC and to allow the CHS to reflect on, and improve, its complaint work. In 2004 this information gathering involved the development and implementation of a basic conciliator survey. The survey sought to provide up-to-date data on some aspects of the conciliation process considered in the 2001 project and obtain additional information from a conciliator's perspective.

CHS officers conducting conciliation were requested to complete a survey in relation to each conciliation process they undertook during a six month period in 2004. This included conciliation in relation to complaints of unlawful discrimination lodged under the RDA, SDA, DDA and ADA as well as the conciliation of complaints alleging breaches of human rights and discrimination under the Australian Human Rights Commission Act 1986 (Cth) (AHRCA)20.

The survey sought basic information on:

  • the date and location of the conciliation;
  • whether the officer who conducted the conciliation had also investigated the complaint;
  • whether parties were represented in the conciliation process and if so, if this was by a lawyer or another form of representation;
  • the form that the conciliation process took; and
  • the conciliator's view of their level of intervention into how the conciliation process was conducted, the subject matter of the dispute and conciliation outcomes.

While further analysis of survey results is to be undertaken, the following tables and text provide an overview of the initial data gathered in the project.

3.2 Survey completion

Table 9: Surveys completed x jurisdiction

Jurisdiction Frequency Percentage %
DDA 59 52%
SDA 35 31%
RDA 11 10%
ADA 5 4%
HREOCA 3 3%
TOTAL 113 100%

A total of 113 surveys were completed and the majority of completed surveys related to conciliation processes for complaints lodged under the DDA. The completion rate across jurisdictions is reflective of the distribution of complaints handled by HREOC in 200421.

3.3 Role of the conciliator

Table 10: Joint investigation/conciliation role

Role Percentage
Conciliator undertook investigation of complaint 72%
Conciliator did not undertake investigation of complaint 28%

The statistics in table 10 above show that in the vast majority of cases the same HREOC officer will undertake both the investigation and conciliation of a complaint. Clearly however, this is not always the case. It is HREOC's practice to provide conciliation services at various locations around Australia convenient to parties to complaints. When officers are undertaking interstate trips to facilitate conciliation for complaints they are handling, they will also undertake the conciliation of complaints investigated by other officers where the parties are in the geographical location they will be visiting.

The joint investigation/conciliation role is the dominant model used by Australian anti-discrimination and equal opportunity complaint bodies. This model has been selected by HREOC because of perceived benefits for parties in terms of efficiency of process and the ability to maintain a working relationship with one officer. The main concern about this model appears to be that parties may perceive officers as 'biased' in the conciliation process because of information gained in the investigation process. In HREOC's experience these concerns about perceptions of bias are not supported by recent research data. It is noted that the survey conducted as part of the 2001 project found that of the 459 parties surveyed, only four percent felt that the HREOC officer was biased against them in the conciliation process22.

Table 11: Role of conciliator x settlement

Role Settlement rate
Conciliator undertook investigation of complaint 75%
Conciliator did not undertake investigation of complaint 72%

The survey also considered whether the joint investigation/conciliation role could be said to impact on resolution of the complaint. From the figures in table 11 it appears that an ongoing working relationship with one officer and an officer's detailed knowledge of the complaint are not central to successful resolution of the matter.

3.4 Representation in conciliation

Table 12: Representation x party

Representation Complainant Respondent Total
No representation 36% 45% 41%
Legal representation 44% 49% 46%
Advocate representation 20% 6% 13%

Table 12 shows that the majority of parties in this sample (54%) did not have legal representation in the conciliation process. This is consistent with findings of the 2001 survey23.

Complainants in the survey sample had more overall representation in the conciliation process than respondents (64% - 55%), respondents had slightly higher levels of legal representation than complainants (5% higher) and complainants had much higher levels of non legal representation than respondents (14% higher).

When this data is compared with the results of the 2001 survey, there is a 12 percent increase in overall representation in conciliation and a five percent increase in legal representation in the 2004 sample24. As noted at 2.5 above, this increase in legal representation may be attributable to the court determination process introduced by the HRLA Act.

As outlined in the report of the 2001 project, HREOC is not adverse to the involvement of lawyers in the conciliation process where parties request this and the conciliator considers that it will not detract from the fairness of the process and may assist resolution of the complaint. HREOC is of the view that the involvement of lawyers does not automatically equate to an increase in the formality and adversarial nature of the conciliation process. Clearly, the legal framework of the dispute and the possibility of a subsequent adversarial court process cannot be ignored. A HREOC conciliation process however, is run by the conciliator, not lawyers for the parties and HREOC aims to provide a flexible and accessible dispute resolution process that does not merely mirror the formal, adversarial dispute resolution model of the courts.

The data in table 13 below indicates that in this survey sample, parties to complaints under the SDA had markedly higher levels of legal representation in conciliation and SDA complainants had slightly higher levels of legal representation than respondents. This is also consistent with findings from the 2001 project25. When comparing these results with findings of the 2001 conciliation survey and considering table 6 above, there appears to be a trend of increasing legal representation in SDA complaints in comparison with other jurisdictions. The reasons for this are unclear but may relate to a perceived need for representation in light of the subject matter of these complaints26 and/or higher levels of lawyer interest in this jurisdiction arising from the comparatively higher number of substantive determinations of SDA matters before HREOC and the FCA and FMC.

Table 13: Representation x party x jurisdiction

Representation RDA SDA DDA ADA HREOCA
Complainant Legal 36% 63% 39% 0% 0%
Respondent Legal 27% 60% 49% 0% 67%
Complainant Advocate 0% 23% 22% 0% 67%
Respondent Advocate 0% 11% 3% 20% 0%
Complainant unrepresented 64% 14% 39% 100% 33%
Respondent unrepresented 73% 29% 48% 80% 33%

3.5 Form of the conciliation process

The results in table 14 below indicate that the dominant form of conciliation conducted by HREOC in the survey period was a face-to-face meeting which included a component of shuttle conciliation. This is consistent with findings of the 2001 project27.

Table 14: Form of conciliation process

Form of process Frequency Percentage
Combination of face-to-face and shuttle process* 59 52%
Face-to-face process only** 24 21%
Telephone shuttle*** 17 15%
In-person shuttle process only* 8 7%
Tele-conference**** 5 5%
TOTAL 113 100%
  • * A shuttle process involves the parties being at the same location but remaining separated with the conciliator conveying messages and resolution proposals between the parties. It is not uncommon for the negotiation component of a face-to-face conciliation meeting to be conducted in a shuttle form.
  • ** All stages of the process, including negotiation are conducted with the parties in a face-to-face meeting. Parties will however have private meetings with the conciliator and/or their advisors.
  • ***This involves the conciliator having separate telephone discussions with the parties and conveying messages and resolution proposals between the parties. The process may occur over a period of days or weeks.
  • ****This involves a telephone link up of the partes which is conducted along the lines of a face-to- face meeting. A teleconference may include some periods of private telephone discussion between the conciliator and the parties.

Table 15: Form of conciliation process x jurisdiction

Form of process RDA SDA DDA ADA HREOCA
Combination of face-to-face and shuttle process 27% 68.5% 51% 0% 67%
Face-to-face process only 18% 8.5% 30% 20% 0%
Telephone shuttle 46% 3% 12% 80% 0%  
In-person shuttle process only 0% 17% 2% 0% 33%
Tele-conference 9% 3% 5% 0% 0%

The form of the conciliation process is determined by the conciliator with reference to the preference of the parties, the issues raised in the complaint and the geographical location of the parties. For example, a pure shuttle format may be used where the matter is highly sensitive and/or there is significant anger and hostility between the parties. Table 15 above indicates that in-person shuttle is more commonly used for complaints lodged under the SDA which include a large number of sexual harassment complaints that are often highly emotive. Table 15 also suggests that a pure face-to-face form is used more often in relation to complaints under the DDA. This is not surprising, as many DDA complaints relate to issues of access to premises or accommodation of disabilities within a workplace or educational institution. In such complaints key facts may be in agreement and resolution discussions will focus on practical issues that are best addressed between the parties directly rather than through messages conveyed by the conciliator.

Telephone shuttle and tele-conference formats may be considered appropriate where the matter is not complex, where resolution appears to be relatively straightforward, where the parties are located in different states/territories, where parties have already undertaken some resolution discussions and/or where face-to-face discussion is not considered central to resolution. While the number of RDA complaints in the sample is small, the apparent preference for telephone shuttle in this jurisdiction may be influenced by the nature of RDA complaints and the outcomes sought. For example, conciliators advise that in relation to racial hatred complaints28 involving one-off altercations between individuals, it is often the case that the parties do not wish to meet to discuss the matter and respondents are willing to consider resolution proposals such as written apologies, which are commonly sought by complainants.

Table 16: Form of conciliation process x settlement rate

Form of process Frequency Settlement rate
Combination of face-to-face and shuttle process 59 70%
Face-to-face process only 24 67%
Telephone shuttle 17 100%
In-person shuttle process only 8 87.5%
Tele-conference 5 60%

In the survey period, all conciliations conducted in a telephone shuttle form (17) were successfully resolved. This supports anecdotal feedback from conciliators that this form is often selected for matters which are less complex, where there appears to be relatively straightforward resolution options for discussion and where parties have already commenced resolution discussions.

Conciliation conducted in a tele-conference form had the lowest settlement rate. While this may suggest that tele-conferences are less conducive to successful resolution, the small number of tele-conferences in this sample limits the conclusions that can be drawn from this data.

3.6 Self– reported level of conciliator intervention

This aspect of the survey aimed to gather data relevant to understanding how HREOC conciliation may be located within the classifications of Alternative Dispute Resolution (ADR) processes as facilitative, advisory or determinative processes29. On one view, statutory conciliation as conducted by agencies such as HREOC is best classified as a hybrid facilitative - advisory process30. From this standpoint the conciliator has a role in not only advising or determining the process by which conciliation is undertaken but may also provide input in relation to the content of the dispute, that is, how the issues raised in the complaint appear to relate to the law. Additionally, the conciliator may provide input in relation to the outcome of the dispute. It is understood that in the context in which HREOC conciliation is undertaken, direct conciliator intervention into the outcome of the dispute is constrained. Such input would generally take the form of providing information to both parties about possible settlement options and facilitating the resolution process to ensure parties are able to make informed choices about settlement terms. For example, the conciliator's role may include providing information about how other factually similar matters have been resolved or determined and where relevant, for example where parties are unrepresented, providing general information about how compensation may be calculated or how other alleged loss remedied. A detailed discussion of issues related to conciliator intervention in the HREOC context is provided in a paper on the HREOC website31.

In seeking to obtain data relevant to this issue, the survey asked conciliators to rate their intervention into the process, content and outcome of the conciliations they had undertaken. This rating was on a scale of '1 – 5' with '1' equating to low or minimal intervention, '3' equating to moderate intervention and '5' equating to very high intervention. Prior to the commencement of the survey conciliators were briefed on the proposed meaning of the terms and rating scales. However, a debriefing with conciliators at the conclusion of the survey period highlighted significant discrepancies in how individual conciliators had interpreted high and low levels of intervention. The apparent subjectivity of ratings therefore limits the usefulness of this data and highlights the need for additional and different approaches to obtaining information on this issue. The tables below set out some basic information extracted from this component of the survey.

Table 17: Self-reported level of conciliator intervention

Intervention Percentage
Process* (4 & 5 rating) 46%
Content** (4 & 5 rating) 47%
Outcome*** (4 & 5 rating) 34%
  • * This relates to the conciliator's view of the level of his/her intervention into the form in which the conciliation was conducted.
  • ** This relates to the conciliator's view of the level of his/her intervention into the content of the dispute.
  • *** This relates to the conciliator's view of the level of his/her intervention into the possible terms of resolution.

Table 17 compares high and very high intervention ratings (a '4' or '5' rating) across the three categories. Despite problems with the subjectivity of the data as identified above, survey results support that HREOC conciliators intervene in relation to the process, content and outcome of a dispute with intervention in relation to outcome being more restrained. This finding appears appropriate to statutory conciliation in the HREOC context with reference to the legal framework of the dispute, the level of investigation that generally precedes conciliation, the role of HREOC officers in administering the legislation and the value placed on party ownership of conciliation outcomes.

Table 18: Self-reported level of conciliator intervention x legal representation

Representation Process (4-5 rating) Content (4-5 rating) Outcome (4-5 rating)
Both parties legally represented 36% 33% 28%
Both parties unrepresented 53% 47% 43%

The abovementioned paper proposed that HREOC conciliators are likely to have a more active and interventionist role in conciliation where parties are not legally represented. This was based on the view that as HREOC conciliators have, and are seen to have, specialist knowledge and experience in relation to the law and how associated disputes have been resolved informally and before the courts, parties may actively seek conciliator input to assist their understanding of the law and how the matter may be resolved.

The findings in Table 18 support the general assertion that conciliators are more actively involved in the process, content and outcome of disputes where parties are not legally represented.

3.7 Summary of findings – conciliation survey

The findings of the 2004 conciliator survey, as summarised below, provide a current snapshot of HREOC's conciliation work:

  • In the vast majority of cases, the same HREOC officer will undertake both the investigation and conciliation of a complaint. However, survey results indicate that a joint investigation/conciliation role has minimal impact on whether the complaint will be successfully resolved.
  • The dominant form of conciliation conducted by HREOC is a face-to-face meeting between the parties which includes a component of shuttle conciliation. A range of other forms are used with shuttle conciliation being an alternative form more often used in the SDA jurisdiction and a pure face-to-face form, an alternative more often utilised for DDA complaints.
  • The majority of parties do not have legal representation in conciliation. Complainants in this survey sample had more overall representation in the conciliation process than respondents, respondents had slightly higher levels of legal representation than complainants and complainants had much higher levels of non legal representation than respondents. When comparing results from the 2001 and 2004 surveys, there has been a five percent increase in legal representation in conciliation over the last three years which may be attributable to the court determination process introduced by the HRLA Act. Parties to complaints under the SDA continue to have the highest levels of legal representation in conciliation which may be linked to the subject matter and/or to higher levels of lawyer interest in this jurisdiction.
  • Survey results support a view of HREOC conciliation as an advisory ADR process in that conciliators provide input in relation to the process by which resolution is attempted, how the issues raised in the complaint appear to relate to the law and possible terms of resolution. Survey data suggests that conciliator intervention in relation to the outcome of a dispute is more constrained than intervention regarding the resolution process and content of the dispute. Additionally, the survey indicates that conciliators will be more actively involved in all aspects of the dispute and its resolution where parties are not legally represented.

4. Conclusion

Complaint handling provisions under federal human rights and anti-discrimination law provide an important avenue for the articulation and protection of human rights. Accordingly, HREOC views its complaint handling work as an important component in achieving its vision of an Australian society in which the human rights of all are respected, protected and promoted.

The complaint statistics outlined in the first section of this paper can be seen to provide reassurance that changes introduced by the HRLA Act in 2000 have not had the detrimental impact on the federal complaint process that some had predicted. In fact, annual report data for the 2004-05 year provides an encouraging picture of the HREOC complaint process. In this reporting year 92 percent of parties to complaints reported satisfaction with the service they received, 67 percent of complaints where conciliation was attempted were successfully resolved and the average time from receipt to finalisation of a complaint was six and a half months.

The data obtained through the conciliator survey in 2004 expands on information about the conciliation process that is already available and confirms previous findings and anecdotal descriptions of the conciliation process. The survey results also highlight areas for additional inquiry and discussion regarding ADR in this specific legal context.

ENDNOTES

  1. These are complaints lodged under the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) and the Age Discrimination Act 2004 (Cth).
  2. (1995) 183 CLR 245.
  3. For further detailed information on the changes incorporated in the Human Rights and Legislation Amendment Act,(No1.)1999 (Cth) see Roberts, S & Redman, R "Federal Human Rights Complaints – New Roles for HREOC and the Federal Court" in ETHOS (166) March 2000: 17-19, 22
  4. Federal legislation does not require conciliation to be attempted with every complaint and the President may terminate a complaint for a number of reasons including where satisfied that the complaint is lacking in substance or misconceived, that the alleged discrimination is not unlawful or where the subject matter of the complaint involves issues of public importance that should be considered by the Federal Court.
  5. http://www.human rights.gov.au/complaints_information/

  6. Captioned and uncaptioned versions of the DVD/Video - "Pathways to Resolution" are available from HREOC and the video/DVD is provided on loan to complainants, respondents and advocates who are currently involved in complaints before the Commission. Excerpts of the video/DVD can also be viewed on the complaints page of the HREOC website at http://www.humanrights.gov.au/pathways_to_resolution/index.html

    The conciliation register can also be accessed on the complaints page of the website.

  7. The court determination process is a 'costs follow the event' jurisdiction which means that the party that loses the action is required to pay the successful party's costs according to a costs scale.
  8. See evidence by Dr Scutt on behalf of the Women for Workplace Justice Coalition, Senate Legal and Constitutional Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Human Rights Legislation Amendments Bill 1996 (June 1997) [4.3].       
  9. In its submission to the Senate Committee, HREOC supported the existence of a costs jurisdiction on the basis that that it would enable more people to have legal representation as solicitors would be more inclined to act for people on a contingency basis where there is a likelihood of a costs order being made rather than a situation where costs had to be paid out of any award of damages.  It is noted that HREOC was of the view that the jurisdiction would be limited to ordering payment of reasonable costs incurred in the litigation (party-party costs) rather than the actual costs of the litigation (solicitor-client costs). However, this limitation on cost awards was not adopted.
  10. See for example Submission by National Federation of Blind Citizens of Australia, Consideration of Legislation Referred to the Committee: Human Rights Legislation Amendments Bill 1996 (June 1997) [4.41
  11. See for example Offenberger, S. & Banks, R., "Wind out of the sails – new federal structure for the administration of human rights legislation"  Australian Journal of Human Rights Vol 6(1) 2000 and Gaze, B, "The costs of Equal Opportunity' (2000) 25(3) Alternative Law Journal, 125, 129.
  12. The comparative periods were selected to avoid data from the year in which both the old and new complaint procedures were in operation (2000).

  13. http://www.humanrights.gov.au. See also the HREOC publication – "Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction" which considers jurisprudential trends for the first two years after the introduction of the HRLA Act. This publication and subsequent publications examining federal unlawful discrimination jurisprudence are available on the HREOC website. 

  14. This paper is also available on the HREOC website. An edited version of this paper has also been published in the ADR Bulletin Volume 6, Number 2, 2003.  

  15. Please note that there is a typographical error in table 2 in the 2001 report. The percentage of complaints declined/terminated in the 1999 calendar year should read 47% not 14%.
  16. Under the pre-HRLA Act regime, referral to an administrative hearing before HREOC was also available to complaints lodged under the SDA and RDA that had been declined on the ground that the alleged act was not unlawful discrimination.
  17. In the 2001-2004 calendar years an average of 31 percent of SDA complainants lodged applications in the court after termination of their complaint. This compares with an average of 22 percent of DDA complainants and 19 percent of RDA complainants.
  18. This calculation is based on complaints referred for hearing by the Sydney office in the 1994-1999 annual reporting periods.
  19. As noted previously, complaints referred for HREOC determination also included a relatively small number of complaints which were declined under the RDA and SDA on the grounds that they were not unlawful discrimination.
  20. As this survey related to the conciliation of complaints under all HREOC legislation, the data is not directly comparable with data from the 2001 survey which only dealt with the conciliation of complaints of unlawful discrimination.
  21. Of the complaints received by HREOC in the 2004 calendar year, 44 percent related to disability discrimination, 30 percent to sex discrimination, 13 percent to racial discrimination, 10 percent to complaints under the HREOCA and 3 percent to age discrimination.
  22. There was no significant difference in perceptions of bias recorded by complainants and respondents. See Raymond, T & Georgalis S, "Dispute Resolution in the Changing Shadow of the Law: A Study of Parties' Views on the Conciliation Process in Federal Anti-Discrimination Law" pg. 10 at http://www.humanrights.gov.au/complaints_information/publications/shadowpaper.html.
  23. The 2001 survey found that the majority of participants (59%) did not have legal representation in the conciliation process.
  24. The 2001 survey found that complainants had more overall representation in the conciliation process than respondents (51% - 44%), complainants and respondents had the same levels of legal representation (41%) and complainants had higher level of non-legal representation than respondents (10% - 3%).
  25. The 2001 project found that 52% of parties in sex discrimination complaints had legal representation in comparison with 39% of parties in race discrimination matters and 35% of parties in disability discrimination complaints. Complainants in sex discrimination complaints were also found to have slightly higher levels of legal representation than respondents (54% - 49%).               
  26. A significant number of complaints received under the SDA each year relate to sexual harassment. For example, in the 2004-05 reporting year 28 percent of complaints under the SDA related to alleged sexual harassment. Complaints of sexual harassment may include alleged acts that could also constitute criminal acts.
  27. The 2001 survey found that 63 percent of all conciliations were conducted in a face-to-face form. The 2001 survey did not distinguish between 'face-to-face' and 'face-to-face and shuttle' processes.

  28. Part IIA of the RDA deals with the prohibition of offensive behaviour based on racial hatred. This sections states:

    "It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonable likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."

  29. Facilitative processes are understood to be processes where the ADR practitioner has no advisory or determinative role on the content of the dispute or the outcome of its resolution, but may advise on or determine the process whereby resolution is attempted. Advisory processes are those in which the ADR practitioner may investigate the dispute and provide advice as to the facts of the dispute and, in some cases, advice regarding possible, probable and desirable outcomes and the means whereby these may be achieved. See "Alternative Dispute Resolution Definitions" National Alternative Dispute Resolution Advisory Council (NADRAC), March 1997 pg. 7.

    It is noted that while NADRAC has classified conciliation and statutory conciliation as facilitative processes, other authors have classified conciliation as an advisory process.

  30. See Ball, J & Raymond, T "Facilitative or Advisory ADR?: A discussion of conciliator intervention in the resolution of disputes under Australian human rights and anti-discrimination law" at http://www.humanrights.gov.au/complaints_information/publications/facilitator_advisor.htm
  31. ibid.

Last updated 7 December 2005.

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