Ensuring human rights are respected and discrimination is addressed - Annual Report 2011-2012: Australian Human Rights Commission

The year in review

Ensuring human rights are respected and discrimination is addressed

Consolidating anti-discrimination laws

As a part of the government's commitments under the Australian Human Rights Framework, there have been extensive consultations to discuss how the current anti-discrimination legislation can be consolidated into one piece of legislation.

The Commission has released 2 submissions on options for improving the existing legislative framework, and has also provided advice to the government on technical aspects of the law (based on our experience administering the legislation).

We have also hosted workshops and roundtables with the government and also with NGOs to contribute to the consolidation project.

Our complaint service

The Commission can investigate complaints of discrimination, harassment and bullying based on a person's sex, disability, race and age. We can also investigate complaints about alleged breaches of human rights by the Commonwealth and its agencies, as well as discrimination in employment based on a person's sexual preference, criminal record, trade union activity, political opinion, religion or social origin.

In 2011-12, we received 17,047 enquiries and 2610 complaints. This is the highest number of complaints received over the past 10 years and represents a 21 percent increase in comparison with the number of complaints received in the previous reporting year.

As in previous years, employment was a major area of complaint: Sex Discrimination Act (85% of all complaints), Age Discrimination Act (65%), Racial Discrimination Act (46%) and Disability Discrimination Act (31%).

Discrimination in the provision of goods and services was the main area of complaint under the Disability Discrimination Act (36%) and the second most common area of complaint under the other anti-discrimination Acts.

A comprehensive set of complaint statistics and demographic data for 2011-12 is available at Appendix 2.

Resolving complaints through conciliation

We attempt to resolve complaints through conciliation. We use an informal, flexible approach and are an impartial third party during the conciliation process. Complaints are resolved on a without-admission-of-liability basis.

Of the 2605 complaints finalised in 2011-12, 48 percent were conciliated. Of those matters where conciliation was attempted, 66 percent were able to be resolved. This represents successful resolution of disputes for over 2300 parties.

An overview of conciliation outcomes is available at Appendix 3.

Information about the Commission's complaint process, including a register of de-identified conciliated complaints, is available on our website at: www.humanrights.gov.au/complaints_information .

Key performance indicators for our complaint service, as well as our performance during 2011-12, are summarised on page 67.

Reporting on human rights breaches

The Commission can also inquire into complaints about breaches of human rights and workplace discrimination under the Australian Human Rights Commission Act.

In 2011-12, complaints made under the Australian Human Rights Commission Act rose by 75 percent compared with the previous year. There has been a 220 percent increase in complaints received under the Act over the past five years.

Sixty-six percent of all complaints received under this Act during the year alleged breaches of the International Covenant on Civil and Political Rights. There was a continuing increase in complaints alleging a breach of human rights in relation to the length or conditions of immigration detention, as well as complaints that detention or visa decisions constitute an arbitrary interference with the family.

If conciliation is unsuccessful or inappropriate and the Commission finds that a breach of human rights or workplace discrimination has occurred, the President can prepare a report of the complaint for the Attorney-General. The report, which includes recommendations for action, must be tabled in Parliament.

In 2011-12, the President reported on seven complaints, five of which concerned allegations of arbitrary detention against the Department of Immigration and Citizenship.

Working with the courts

The Commission can, with a Court's leave, appear as amicus curiae – or ‘friend of the court' – to provide specialist assistance in discrimination cases.

We can also intervene, with a Court's leave, in cases which raise human rights issues. We have clear guidelines that we follow before we make a decision to intervene.

In 2011-12 we intervened in six cases.

Online newspaper liability for user blogs containing racial vilification

In two recent cases, the Federal Court found that newspaper publishers were liable under the Racial Discrimination Act 1975 (Cth) (RDA), for content published by them that amounted to racial vilification.

Last September, Bromberg J found that The Herald and Weekly Times Pty Ltd (a division of News Limited), which publishes the Herald Sun in Melbourne, was liable under s18C of the RDA for publishing two articles by one of its journalists which suggested that certain “fair-skinned Aboriginal people” were not genuinely Aboriginal and had falsely identified as Aboriginal because they were motivated by career opportunities available to Aboriginal people or by political activism.

In March this year, Barker J found that another News Limited company, Nationwide News Pty Ltd, the publisher of The Sunday Times newspaper in Perth, was liable under s18C for comments posted by readers underneath articles in the online version of the paper. The Commission was asked to intervene in this case.

This recent case is a reminder that online publishers need to be vigilant that user generated content published by them does not contain material that is reasonably likely to offend on the basis of race.

Reviewing federal laws and policies

Part of the Commission's is to review federal laws and policies that raise human rights issues.

Our staff have a high level of expertise in both our federal and international human rights commitments. We use this expertise when we provide submissions to parliamentary bodies, the courts, government departments and law reform bodies. As noted above, recently we have also been making formal submissions to the national curriculum development body ACARA.

During 2011-12 we made 29 submissions on a broad range of topics. These are identified in Appendix 6.

Advocating for reforms to address age inequalities

In July 2011, we welcomed the appointment of Australia's first Age Discrimination Commissioner. The Commissioner is focusing on addressing barriers to equality and participation faced by mature workers, older Australians and young people.

Workforce participation and saving

One of the most significant areas of age discrimination in which we are involved relates to employment and associated insurance and financial services.

In November 2011, we supported the removal of age barriers for superannuation guarantee contributions, ensuring that older workers have the same rights as everyone else in relation to superannuation. The removal of age bars such as these will not only mean that older workers have more super at retirement, but will contribute to increased productivity as older workers are encouraged to continue in employment and to a lower age pension bill for the government.

In February 2012, Commissioner Ryan was appointed to the Australian Law Reform Commission review dealing with age discrimination in employment. The Review of Commonwealth legislation and policies that create barriers for older people participating in the workforce or other productive work will contribute to meeting the Government's commitment, within Australia's Human Rights Framework, to review existing legislation for consistency with Australia's human rights obligations.

The Review released an Issues paper in May. Entitled Grey Areas: Age Barriers to Work in Commonwealth Laws, the issues paper investigates the legal barriers to mature age (over 45 years of age) participation in the workforce and other productive work.

The Review is considering a range of laws, including superannuation law; family assistance, child support and social security law; employment law; insurance law; compensation laws; and any other relevant Commonwealth legislation exempt under the Age Discrimination Act.

In June, the Commission released Working Past Our 60s: Reforming Laws and Policies for the Older Worker. This paper details how age bars in workers compensation, income insurance and licensing block willing and able people from continuing in work through their 60s and beyond. By highlighting how these arrangements affect older workers, we hope to create impetus for reform in state and Commonwealth government workers compensation schemes and in the private insurance industry.

Media and technology

Issues of social inclusion are also central to our work in age discrimination. Attitudes and technology can result in discriminatory practices that exclude older people from full and equal participation in our community.

As part of the 2012 Budget, the government committed funding towards countering negative age stereotypes in the media. We have developed initial research in this area and will be continuing to develop tools to assist media channels to address negative stereotypes.

We have also made a submission to the federal parliament's Joint Select Committee on Cyber-Safety's inquiry into online safety for senior Australians, which is looking at how Australian law, policy and programs can provide best practice cyber-safety for senior Australians. Our submission looked at the prevalence and incidence of cyber scamming and suggested initiatives that could be used to to counter it.

In a subsequent supplementary submission, we noted that many older people are not yet online and provided examples of offline media that government departments could use to provide information about cyber-safety to older Australians.

‘As a society, we have been slow to recognise that millions of older Australians are locked out of the workforce by age discrimination. We are only now starting to understand what a terrible waste of human capital this situation represents; a loss to the national economy and to businesses large and small, and a loss to the individual who is pushed out of the workforce prematurely.'

(Commissioner Ryan)

Complaint of age discrimination in provision of insurance

The complainant booked an interstate holiday for himself and his wife through an airline website, and paid an additional amount for travel insurance. Eight weeks before the proposed date of travel the complainant was diagnosed with cancer and was told he would need a long course of treatment. The complainant said that he was too ill to travel but his insurance claim was rejected because he was over 70 years old.

On being notified of the complaint, the respondent company indicated a willingness to try to resolve the matter. The complaint was resolved when the company agreed to pay the complainant approximately $1,400 compensation for the cost of the flight.