40+ years of conciliation

The Australian Human Rights Commission and Conciliation—a 40+ year success story, but …

National Mediation Conference, Canberra

Emeritus Professor Rosalind Croucher AM

[Professor Croucher spoke to this paper]

Abstract

A key responsibility of the Australian Human Rights Commission is to handle complaints of breaches of human rights. This is a role that the Commission in its various iterations has been performing since 1975. An approach based on conciliation has been the hallmark of the Commission’s complaint handling since then. This presentation tells the story of the Commission’s three complaint handling jurisdictions. It is a story of success. But it also a story with missing pieces and unfinished business. The presentation concludes in speaking of the National Conversation on Human Rights being led by the Commission this year and the opportunities that provides for setting the human rights agenda in coming years for an Australia we want to live in for ourselves, for our children and our children’s children.

Introduction

I begin my presentation by acknowledging the traditional custodians of this land, and pay my respect to the elders, past, present, and emerging.

I came into my present role after a long period in the academic world, and then a ten-year ‘apprenticeship’ in the world of statutory office-holding at the Australian Law Reform Commission. I had many questions about the role—both of the Australian Human Rights Commission and of the role of President. It has been an intriguing voyage of discovery. I have also come to understand that much of what the Commission does is not understood, or not properly understood, and I am making it my mission to open up and expand the understanding of the enormously significant role of the Commission as Australia’s national human rights institution (or NHRI in international parlance).

For my focus today, I thought I would speak of pride—pride in the Commission’s conciliators and pride in the work that the Commission does—and to paint a true picture of the complaints handling jurisdiction of the Commission (well, actually, the three different such jurisdictions that the Commission has under its statutory mandate).  I will use this to tell a story of the success of the conciliation process that is the foundation of this contribution of the Commission, and also to identify where there are missing pieces and opportunities to fill them through the outcomes of the Australian Conversation on Human Rights that I am leading this year.

The complaint handling role attracts some attention in the media—but not always for constructive reasons. So I thought I would take the opportunity today to tell you the real story. It is one that is a worthy one—and we’ve been doing it since 1975.

Complaints usually start with just a phone call or email—some form of contact—by, on average, 15,000 people a year, individuals who consider that they have been badly done by in one way or another, and businesses just trying to understand their obligations. They are assisted or referred. About 2,000 people pursue the Commission’s formal complaints process—one that is based on conciliation. Only a tiny number of these ever end up in court; and most participants, both those who complain and those who are complained against, are very satisfied with the professionalism of the process and its outcomes.

Part of the lesser known story is that there are three distinct streams of complaints, a fact that reflects the history of the Commission itself. As is the story in most legal histories of the development of legislation, it is not a linear narrative. Contemporary criticism or questioning also needs to be placed in the context of that history. An understanding of the role played by the Commission since its foundation also provides essential background for a consideration of improving human rights protections in Australia—which is the topic that I would like to conclude on this morning.

By way of preliminary observation, I thought I would address a common misunderstanding by noting that the Commissioners today, despite the titles of four of them, have no role in relation to complaint handling. They did originally but, since 2000, all the complaints have been managed by way of direct delegation from the office of the President. I will come to this.

Human rights in the international sense are codified in agreements or treaties between governments, as conventions or covenants, providing an agreed set of human rights standards and establishing mechanisms to monitor the way that a treaty is implemented. By ratifying a treaty, a country voluntarily accepts legal obligations under international law. But then it is up to signatory states to implement treaty commitments into domestic law.

The International Convention on the Elimination of All Forms of Racial Discrimination was one of the first human rights treaties to be adopted by the United Nations, in 1966. Australia ratified the Convention in September 1975 under the Government of the Hon E Gough Whitlam MP; and it was given domestic implementation in the Racial Discrimination Act (RDA), which came into force in October 1975.  It made race discrimination unlawful in public life, and made provision for the Office of the Commissioner for Community Relations, whose principal tasks were to conciliate disputes, and to promote the purposes of the Act within Australia.  The Hon AJ Grassby was appointed the first Commissioner.

The adoption of an approach based on conciliation has proved to be the hallmark of the Commission’s complaint handling since then.  It was ‘an administrative means of dealing with racial discrimination, rather than leaving the matter to courts’. 

Why the emphasis on conciliation?

Anne Twomey said that it was ‘aimed at solving the problems which underlie racial discrimination, rather than exacerbating them with adversarial proceedings’.  Attorney-General Murphy had stressed the importance of resolving complaints by conciliation, as ‘a more satisfactory way of tackling individual instances of racial discrimination and the tensions that are associated with individual disputes’. 

The emphasis was on the resolution of issues for individuals. Court proceedings were available, but they were kept separate from the conciliation process. If a settlement could not be reached through conciliation, a person aggrieved could institute civil proceedings and seek a range of enforceable remedies, including damages.  It was only through court proceedings that interpretation of the legislation was set by precedent. For the most part, matters were resolved administratively through conciliation.

Australia’s ratification of the International Covenant on Civil and Political Rights (ICCPR) on 13 August 1980 provided the catalyst to the establishment of the first iteration of the present Commission, in 1981—as the ‘Human Rights Commission’—under the government of the Hon Malcolm Fraser MP.  The Prime Minister said the establishment of the Commission represented ‘a unique approach to issues of human rights’, with the capacity ‘to make an innovative contribution to the advancement of rights in Australia’. Its functions and powers, he said, were ‘based four square upon the fundamental realities of the acceptance and development of human rights in civilised communities’.  Its chair was the Hon Dame Roma Mitchell DBE.

In addition to dealing with complaints under the RDA, which were wrapped in, a new aspect was introduced, as the Commission could now inquire into ‘any act or practice that may be inconsistent with or contrary to any human right’.  Hence the name of the new Commission as the ‘Human Rights Commission’.
What did this mean? The RDA covered some aspects of now established ‘human rights’. This new limb added a generic description of matters that could be brought to the Commission.

‘Act or practice’ was defined, principally, as an act or practice by or on behalf of the Commonwealth.  ‘Human rights’ were defined as meaning the rights and freedoms recognised in the ICCPR; declared by three listed Declarations—the Declaration on the Rights of the Child (1959); the Declaration on the Rights of Mentally Retarded Persons (1971); and the Declaration on the Rights of Disabled Persons (1975)—or ‘declared by any relevant international instrument’. 

Continuing the central role of conciliation, the Commission was to endeavour to effect a settlement of the matters that gave rise to the complaint. But the next step was different. If a conciliation was not successful, and the Commission considered the act or practice was in breach of a human right by reference to the relevant international instruments, the Commission was obliged to report to the Minister (the Attorney-General) ‘the results of its inquiry and of any endeavours it has made to effect a settlement’.  Once a report was made to the Minister, the Minister was then obliged to table it within 15 sitting days of receiving it. 

In contrast to racial discrimination complaints, the 1981 Act did not create offences of infringement of human rights—a breach was not unlawful, as such.  A complaint stopped at the Human Rights Commission and the report to the Attorney-General. There was no recourse to the courts.

As the Commission observed, the effect of the reports was to bring a matter to public notice, through its tabling in Parliament, and, perhaps, discussion there. This publicity itself may result in changes in the attitudes, not only of the parties concerned, but also of the community at large.

Though not enforceable, the reports were therefore seen as performing a broader educative function.

The second formal iteration of the Commission reflected a decision about permanency as well as the fact of more ratifications in the international domain. It was as the ‘Human Rights and Equal Opportunity Commission’, or ‘HREOC’, established as a permanent body on 10 December 1986.

But not all of the architectural design of HREOC was implemented. The proposal was that the functions in relation to the ICCPR would now be exercised under an Australian Bill of Rights Act, rather than directly referable to the international instrument.  The Australian Bill of Rights Bill 1985 (Cth) replicated the human rights functions of the Commission since the 1981 Act, but now by reference to the human rights set out in the Bill of Rights Act, to give effect to the assumptions under the ICCPR through direct and comprehensive domestic implementation.

But when the Bill failed to survive the Senate, this did not mean that the human rights functions fell away, but rather that HREOC would continue to exercise the functions relevant to the ICCPR for Australia, as the previous Commission had, although without a formal enactment of the covenant as a ‘Bill of Rights Act’. This remains the case for the current Commission, renamed as the ‘Australian Human Rights Commission’ in 2008.

In addition, HREOC, as explained by Attorney-General Bowen, was to be ‘the vehicle under which Australia’s obligations under the Discrimination (Employment and Occupation) Convention 1958—that is, International Labour Organisation Convention No 111—will be implemented’.  This added another specific limb of human rights protections—and complaints mechanisms—the third in the suite

The ILO functions enabled the Commission to inquire into any act or practice that may constitute ‘discrimination’, involving any distinction, exclusion or preference that had the effect of ‘nullifying or impairing equality of opportunity or treatment in employment or occupation’.  The focus was on equal opportunity in employment—hence the name of the new Commission as the Human Rights and Equal Opportunity Commission.

This meant that the HREOC Act now distinguished between ‘unlawful discrimination’, to refer to discrimination under the Racial Discrimination Act and Sex Discrimination Act; and ‘discrimination’, to refer to ILO 111 discrimination. While there is overlap between the concepts,  the range of grounds to which ILO 111 discrimination applies is broader than the range of grounds covered by unlawful discrimination, but is limited in its application to ‘employment or occupation’. Unlawful discrimination, under the Discrimination Acts, operates in a wide range of areas of ‘public life’ (in employment, education, accommodation, the provision of goods and services etc).

By way of example, the first report concerning ILO 111 discrimination was in 1997.  It concerned the compulsory retirement age of 60 for Qantas airline pilots.  As it was based on ILO 111 discrimination, the complaints could only be completed by way of report to the Attorney-General. Chris Sidoti had been appointed as Human Rights Commissioner in 1995, a time when Commissioners were responsible for complaints, and he sought to clear up the books of unresolved human rights and ILO 111 complaints.

I do not consider prolonged handling of complaints to be in the interests of either respondents or complainants. When it becomes clear that there is no reasonable prospect of conciliation, the conciliation process should cease. If there is no substance to the complaint, it should be dismissed. If there is substance, that is, if there is an act or practice that is either discriminatory or a breach of human rights within the terms of the Act, the inquiry process should be finalised and a report should be made to the Attorney-General and tabled in parliament.

This report deals with the first four of these complaints—some of many complaints received by the Commission about compulsory retirement practices. While compulsory retirement had been abolished in a number of the states and territories, the practice continued in federal public sector employment and many complaints of compulsory retirement had been lodged against federal public sector agencies. The Public Service Act 1922 and many other federal laws required retirement at age 65.

While discrimination on the basis of age was not unlawful, it did come within ILO 111. Sidoti recommended that Qantas should discontinue its practice of compulsory retirement ‘on the basis solely that they have attained the age of 60 years or any other particular age’ and that there should be compensation for loss of earnings due to this practice.  Qantas declined the recommendations and said that it did not compulsorily retire pilots just because of age. Sidoti also made more general recommendations about abolishing the compulsory retirement age in the Public Service Act and other federal legislation, as well as the introduction of comprehensive national prohibition of age discrimination. These recommendations for law reform did happen—but it took some time. 

Conciliation was also the starting point for endeavouring to resolve complaints of ILO 111 discrimination.  If settlement could not be effected, and the Commission considered that the act or practice constituted discrimination, the Commission was required to report to the Minister.  In neither case was there provision for a matter to be taken to the Federal Court.

This exposition of the complaints pathways leads me to some conclusions and a number of key questions. For a start, conciliation works—especially in matters invoking the unlawful discrimination pathway of the Discrimination Acts. Conciliation is the centrepiece of the Commission’s processes of complaint handling—in all three types of complaints. In Aldridge v Booth in 1988, Spender J had drawn attention to the fact that, notwithstanding that the legislation had been in force since 1981, this was the first time that the issue of enforcement had come to the Court and that, in the intervening years, the Commission had made determinations in ‘many thousands of matters’. This indicated that the Commission was successful in its ‘primary purposes’,  and that the resolution of complaints, without court proceedings, was ‘obviously a socially desirable result and conducive to achieving the objects of the Act’.  In introducing amendments to the Commission’s legislation in 1999, Attorney-General Daryl Williams reiterated the value of conciliation in the Commission’s processes, ‘as this step in the process has proved most effective’.  This message is reinforced in the intervening years.

There are of course, however, a number of lasting criticisms of alternative dispute resolution (ADR) methods, the most prominent of which is the perception that it limits social change, given it cannot establish legal precedent like judicial outcomes can, and lacks transparency due to the often confidential nature of settlements. Another is that ADR may be seen to embed discriminatory practices by allowing those with enough money to simply ‘pay for the problem to go away’ in a confidential process that encourages no accountability or cultural change.

Such comments, however, do not credit the truly transformative and educative value of participating in a professionally facilitated conciliation process—as this audience will understand so well. It also ignores the significant systemic outcomes that can be achieved through the process of investigation and conciliation of complaints. In this way, ADR properly sits beside the ‘adversarial’ judicial system and provides opportunity for personal party-led outcomes, as well as systemic outcomes that both reflect and drive cultural and social change.

Outcomes achieved through the Commission’s investigation and conciliation process indicate that, in some instances, merely being informed of a complaint can spark a reflection and a desire for change. For example, following a complaint regarding access to a hotel by an individual with an assistance animal, the respondent hotel agreed to apologise in writing to the complainant and to undertake several actions to ensure the same situation did not occur again. This included developing an information sheet on its obligations, with respect to persons with disability accompanied by an assistance animal, in consultation with a disability peak body and distributing this information sheet to hotel and security personnel at a number of venues owned by the hotel operator. The hotel also displayed ‘Assistance Animals Welcome’ signs in prominent places at all venues operated by the hotel operator. Finally, the hotel agreed to pay the complainant compensation for legal costs and to donate $2,500 in money and meal vouchers to an agreed assistance animal training organisation.

At its best, ADR can facilitate a proactive, participatory design approach to developing mutually beneficial outcomes—whether it is in designing accessible environments for the community, or developing robust complaint-handling procedures in workplaces that support the calling out of unacceptable behaviour.

These types of outcomes can have lasting positive benefits that go far beyond the immediate parties to a complaint. A recent email to the Commission from a prior complainant illustrates this perfectly:
After the resolution of the complaint, we were contacted by the respondents who have invited us to meet with senior management to discuss accessibility issues for upcoming infrastructure projects. You would agree that this a fantastic result and you may wish to use it in publications including your website.

The Commission’s record over the years speaks for itself. For example, if we look at the number of complaints the Commission has received and conciliated over the past 20 years, the numbers represent successful alternative dispute resolution through conciliation for more than 30,000 people and organisations.

  And these are not just numbers: for every matter there is an individual who has taken the initiative, sometimes the courageous decision, of coming to the Commission. Survey data received by the Commission indicates that over 70% of participants in the investigation and conciliation process, irrespective of whether the complaint resolves or not, gain an increased understanding of rights and responsibilities.

But there are important questions for the future. For a start, domestic legislation is not comprehensive in its protection of the human rights commitments we have made in ratifying international treaties. Recent discussions about freedom of religion, freedom of speech and protection of privacy are singular cases in point.

Another issue is that our discrimination laws are framed in the negative space—what you can’t do—and rely on a dispute before offering a solution. This is not to say that our discrimination laws are not important. They directly reflect international commitments and can achieve many positive systemic outcomes. But it is a complex system—seen, for example, in the exposition of the three different pathways of complaints handling; and the ‘human rights’ pathway is not easily seen, being referenced to obligations that are not evident in Australian laws. How would the person in the street understand this—that they can make a complaint referable to the ICCPR directly to the Commission? Shouldn’t we all know what our human rights are?

The central fact, moreover, is that our human rights architecture is incomplete. The legal history of the Commission is like that of a house that has had several rooms added over a 30 year period without any thought, or recollection, as to the overall design or architecture of the place. The hole in the middle is the framing of rights in a positive way—such as may be offered by some form of positive expression of rights and freedoms, as imagined in a federal statute like the initiative adopted in the Human Rights Act in 2004 (ACT), the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the recent Human Rights Act 2019 (Qld). There are also the older examples of the UK and New Zealand.

The focus of these models is primarily aimed at ensuring that decisions are made with human rights obligations in mind. It is frontloaded, rather than reliant on ex post facto action through complaints. In any future consideration of improving human rights protections in Australia, and especially at the Federal level, such models will be instructive.

There are many questions to consider. The bottom line is that we need to open up the conversation. Not make it about this bit or that; this section or not; a charter or not. These are important questions, but can be distracting; and they are readily politicised—and divisive. Rather, we need to reimagine our system of protections of human rights and freedoms—so that we can provide everyone with the opportunity to be the best that they can be. In today’s world. Respectful of our federation. Respectful of our commitments to the international community. Respectful of the part that each of us, with the separation of powers, can play.

As Australia’s national human rights institution, we have an obligation to hold Parliament and Governments to account in their commitments, entered into in good faith in the international domain. It should not be political, nor ‘left-wing’ or ‘right-wing’, but the discharge of our statutory mandate.

I want us to aim high. I come to leading this conversation honed in the intellectual world of legal history and with the discipline of ten years in law reform. My objective in this conversation, as President of the National Human Rights Institution, is—

• to recommend an agenda for federal law reform to protect human rights and freedoms fully
• to recommend priorities for reforming federal discrimination law to make it more effective and less complex
• to articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians, and
• to identify how we can build community understanding and partnerships to realise human rights and freedoms.

I want to see human rights and freedoms embedded in our national psyche—and not as an afterthought.