Resolving discrimination and human rights issues - Annual Report 2009-2010: Australian Human Rights Commission

The year in review

Resolving discrimination and human rights issues

One of the Commission’s primary functions is to help people resolve complaints about discrimination and breaches of human rights.

We also provide independent legal advice to assist courts in cases that involve human rights principles.

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 2010-11, the Commission received 18 670 enquires and 2152 complaints. This is in line with the average number of enquires and complaints received over the past five years.

As in previous years, employment was a major area of complaint: Sex Discrimination Act (88% of all complaints), Age Discrimination Act (66%), Racial Discrimination Act (35%) and Disability Discrimination Act (31%).

Discrimination in the provision of goods and services was the main area of complaint under the Disability Discrimination Act (35%) and the second most common area of complaint under the other anti-discrimination Acts.

A comprehensive set of complaint statistics and demographic data for 2010-11 is available at Appendix 4.

Complaint of age discrimination in employment

The complainant, who is over 50 years of age, applied for a position advertised on the internet. He said a staff member from the employment agency sent him an email by mistake which said ‘sounds good. but I think a bit old. need to get back to him with a result though’. The complainant claimed his application wasn’t considered because of his age.

The agency agreed that the email was sent. However, the agency said the reason the complainant was not considered for the position was his lack of experience and age was not a factor in the decision. The complaint was conciliated with an agreement that the agency would pay the complainant $10,000 and provide him with an apology.

Resolving complaints through conciliation

The Commission attempts to resolve complaints through conciliation.

Our conciliation process is informal and flexible and provides an opportunity for those involved in a complaint to talk about the issues and try to resolve the matter themselves with the assistance of an officer from the Commission.

Of the 2266 complaints finalised in 2010-11, 47% were conciliated. Of those matters where conciliation was attempted, 64% were able to be resolved.

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

Our performance

Key performance indicators for our complaint service, as well as our performance during 2010-11, are summarised on page 52.

Reporting on human rights breaches

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

In 2010-11, complaints under this Act rose by 34% compared with the previous year.

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 2010-11, we presented reports of two complaints:

• Mr NK v Commonwealth of Australia (Department of Immigration and Citizenship), concerning a breach of human rights
• Mr KL v State of NSW (Department of Education), concerning discrimination in employment on the basis of criminal record.

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. During the year, we acted as amicus in two 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 2010-11, we intervened in two cases:

• the pay equity test case, heard by the Full Bench of Fair Work Australia (see page 35)
• AB v State of Western Australia and Gender Reassignment Board and AH v State of Western Australia and Gender Reassignment Board.

The latter case centred on a decision of the Gender Reassignment Board of Western Australia to refuse to grant a recognition certificate to both AB and AH under the Gender Reassignment Act 2000 (WA).

We intervened in an appeal of a decision by the Full Court of the Supreme Court of Western Australia, which overruled an earlier decision of the State Administrative Tribunal to grant the certificates.

In our submission to the High Court in June 2011, we drew attention to the role of international law in interpreting State legislation, with particular reference to articles 2 and 26 (right to non-discrimination) article 17 (right to privacy) and article 16 (right to recognition before the law) of the International Covenant on Civil and Political Rights.

Mr KL vs State of NSW (Department of Education)

Mr KL had a record of criminal convictions from 1983 up until 1992, for which he had spent a total of eight months in prison.

However, he had no criminal convictions recorded since 1992 and had rehabilitated himself and his life to the extent that he completed a Bachelor of Music Education in 2003 and a Graduate Diploma in Education in 2006. His efforts were crucial to the decision of the Commission to uphold his complaint.

The Commission agreed with the Department of Education that integrity and a commitment to upholding community standards are inherent requirements of the job of a teacher.

However, we found that the Department had not demonstrated a sufficiently ‘tight’ correlation between the decision not to offer Mr KL employment and the inherent requirements of the job.