The Role of Public Inquiries in eliminating disability discrimination

The Role of Public Inquiries and Exemption Powers in eliminating disability discrimination

Graeme Innes AM Deputy Disability Discrimination Commissioner Human Rights and Equal Opportunity Commission "Constructing law and disability" conference Australian National University 4 December 2000

Introduction

Distinctive features of the DDA

Definition of disability

Standards

Limits of standards

Action plans

Focus of legislation on long term and large scale change

Exemptions

Complaint processes

Courts and the role of anti-discrimination agencies

Introduction

I was initially asked to present a paper to this conference on distinctive features of Australia's federal Disability Discrimination Act, as compared to Australian State and Territory discrimination legislation and perhaps also compared to disability discrimination laws elsewhere, notably in the United States and the United Kingdom.

But it seemed to me, and the organisers readily agreed, that there is not as much distinctive about the D.D.A. now as when it was passed in 1992; and that those features of the legislation itself which do remain distinctive have already had a good deal of discussion; and that it would be most useful to present my views on distinctive approaches to administering, implementing and using this and other Australian anti-discrimination legislation.

These approaches have also been the subject of some discussion on the public record from within the Human Rights and Equal Opportunity Commission itself. But, while they have been received with some interest and some support from community and industry, they have as yet received little or no comment from academic commentators in the area, or for that matter from most other Australian anti-discrimination agencies.

In summary the points I want to discuss are these:

• Most of the differences between the DDA and other Australian discrimination laws are easily and often overstated. Distinctive approaches to administering anti-discrimination law which have been applied to Australia's Disability Discrimination Act are at least as important to consider.
• The provision for development of Standards is highly important but cannot be relied on as the sole means of achieving systemic change. Progress with Standards has been far slower than originally hoped, although standards on public transport are now very close to adoption.
• The provision for Standards is distinctive to the DDA but every law on disability discrimination in Australia provides a temporary exemption power which can be used to achieve some of the same effects as Standards and which may for some purposes be better suited than Standards. The use of exemptions as a positive mechanism deserves wider consideration than it has had to date.
• The potential of complaint processes as a means of achieving large scale systemic change has also been underestimated and underused.
• This is because commentators and administering authorities alike have generally not explored the possibilities of more open approaches to complaint investigation and reporting of complaint outcomes.
• These approaches will only sometimes be appropriate depending on the case, but they are legally available under most if not all Australian discrimination laws and deserve consideration by administering authorities, complainants and advocates, and commentators.

Let me now develop these points in more detail.

Distinctive features of the DDA

Those provisions of the DDA which were or are distinctive are well discussed in Elizabeth Hastings' valuable report on the first five years of the operation of the legislation, "FounDDAtions", written in December 1997 and available since early 1998 on the Commission's internet site. HREOC's site statistics indicate that this report has consistently been one of our most frequently referenced documents in any area of discrimination and in any format. I do not intend therefore to restate the content of that report at any length here, but I encourage reference to it.

In brief, the distinctive features of the DDA at the time of its passage were:

• a broad definition of disability
• provision for development of action plans by providers of services
• provision for making of regulatory standards

Of these, provision for standards and action plans remain distinctive among Australian discrimination laws, while a broad definition of disability has been adopted more generally, with the exception of South Australia.

Definition of disability

The importance of a broad definition was well described by Elizabeth Hastings in 1997 and is also set out in detail in a 1991 position paper issued by Brian Burdekin as Human Rights Commissioner (also available on HREOC's web site). In brief, the intention in adopting a broad definition was to avoid unproductive, or counterproductive, disputes over whether a person with a disability fitted particular diagnostic categories or was "substantially limited in a major life activity".

Australia's DDA rejects a restrictive "major life activity" requirement in favour of a generally more pragmatic approach to the meaning of disability. Disputes over what is or is not a disability have not figured significantly under the DDA (although there have been disputes in particular cases over whether a complainant in fact has the disability asserted by or attributed to them). In my view the correctness of the DDA approach, now followed in other Australian discrimination laws, has been borne out by experience in the United States, where a "substantially limited in a major life activity" test does apply, with people with major disabling conditions being denied remedies for discrimination because, for example, they only face discrimination in their own chosen profession and not in others.

The results are frequently arbitrary, and their absurdity ought to be clear. The more able you are to do your job despite your disability, the less protection such a law gives you.

It is unfortunate that the United Kingdom's Disability Discrimination Act has followed the United States rather than the Australian model in this respect.

Standards

One valuable feature of the United States model which was adopted in drafting Australia's DDA was in providing for the very general provisions prohibiting discrimination to be fleshed out by more detailed regulatory provisions what that meant, and how and when a non-discriminatory world or at least some elements of it should be constructed.

The rationale for Standards has been explained at length before - for example in Elizabeth Hastings's 1997 paper, and in the documents accompanying the draft disability standards on education currently being consulted on by the Department of Education Training and Youth Affairs.

As Elizabeth Hastings'paper puts it:

"It was recognised that, in the interests of everyone involved, there needed to be better ways of deciding how, when and where services should be made accessible, rather than fighting about it case by case by case, or having design of services and facilities dependent on the progress of more or less random complaints and how those complaints are handled by different courts and tribunals interpreting the very general terms of discrimination laws.

Everyone involved in the development of the Act accepted disability community representations, and evidence from United States experience, including under the general provisions of the Rehabilitation Act 1973, that complaints based on general non-discrimination provisions alone would not be sufficient to achieve widespread elimination of disability discrimination.

For example, it is clearly impossible to expect all buildings to be designed to be equally accessible and useable by people with a disability, simply by reference to the terms of a general indirect discrimination provision. The same applies for an equally accessible telecommunications or transport system, even if we add some attractively presented pamphlets from anti-discrimination agencies and some precedent-setting case law."

The importance of authoritative standards in specifying what the access required by disability discrimination laws actually means in practice is now fairly widely recognised. Equally important is the capacity of standards to provide a structure for compliance over time.

Perhaps more than for discrimination on other grounds, elimination of disability discrimination is not "simply" a matter of hearts and minds, of changing attitudes so that discriminators cease discriminating and harassers desist from harassment. Exclusion of people with disabilities has been built not only into systems and rules and patterns of behaviour and culture - as if those were not hard enough to change with a few laws - but into millions of tonnes of bricks and mortar and steel, and deeply embedded in the design of ubiquitous technologies, from buses and building designs, to telephones and televisions.

It is true that there is increasing evidence that universal design, taking account of the needs of the whole population including rather than excluding people with disabilities, delivers more effective and efficient results for the whole community. Kerb cuts which benefit not only wheelchair users but people with prams, trolleys, scooters and so on are the most commonly used example: but the same point can be made about many other instances. Accessible public transport benefits older people and people with small children as well as potentially delivering faster and safer boarding for everyone. Television captioning benefits people in noisy environments, like airports - or the average home with children.

Some technologies developed with the intention of addressing needs of people with a disability have ended up having much larger scale use and economic benefit. The telephone is probably the most striking example to date, but others like computer optical character recognition could be mentioned.

And of course there are also the economic, social and cultural benefits which it is fair to expect will follow from all members of the community to participate and contribute, rather than the community minus those members who have a disability.

But however optimistic we may be about the community wide benefits of reducing discrimination and enhancing opportunity and participation, there is no denying that getting from an inaccessible world to an accessible one involves huge changes, that initially some of these involve significant changeover costs, and that these processes take time.

There is an understandable sense, though, among some people in the disability community that in planning for elimination of discrimination over time we are tolerating the continuation of discrimination in a way which would not be tolerated for other forms of discrimination. It may be asked: Is discrimination unlawful now or is it not?

The elimination of discrimination being a process which takes time, rather than something which instantly happens when the law decrees it, is not, however, unique to disability discrimination or an invention of Australia's federal human rights body. Recall the United States Supreme Court's order that racial desegregation in schools should occur "with all deliberate speed", recognising that however damaging the system of educational apartheid was it could not in practice be abolished overnight if schools were to continue functioning.

There is by now a fair bit of evidence that the substantial investments in change required to achieve an accessible society will occur more readily if those called upon to make these changes can have a degree of certainty in return. This involves certainty both that the content of what is done will satisfy their obligations, and that during the process of change they will not be exposed to further liability, or required to vary the priorities adopted in changing large systems in midstream according to which particular aspects of an overall system happen to be the subject of complaints. (A similar point is made in HREOC's decision earlier this year on the application for temporary exemption by the Olympic Roads and Transport Authority.)

Although progress with Disability Standards under the DDA has been far slower than originally hoped, standards on public transport are now very close to adoption. The initial impetus for these standards clearly came from a small number of complaints, including in relation to a proposal for a new inaccessible station in New South Wales and regarding acquisition of new inaccessible buses in Adelaide. The standards were negotiated between community, government and industry representatives, endorsed by transport ministers as long ago as 1996, subjected to an exhaustive Regulation impact Statement process and finally approved by Federal Cabinet in October this year to proceed to the Parliament for authorisation.

It will, I think, be fair to describe these transport standards, when they do enter into force, as the largest single achievement under any Australian anti-discrimination law. I hasten to say that I am not seeking here to compare the significance of the standards in terms of broader impacts including moral and political impacts with achievements such as that under the Racial Discrimination Act in the first Mabo case where the right of indigenous people at least to seek to establish their rights to land was protected against discriminatory extinguishment. I mean, the significance of the transport standards in their direct impact, directing billions of dollars of investment and directly affecting services used by millions of people.

Obviously, then, I do not agree with some of the initial responses to Cabinet's decision on the standards, which described them as postponing access rights for 30 years.

In reality, most major transport providers have begun applying the draft standards even before they are authorised (encouraged by HREOC's repeated advice that the standards reflect the existing law and by a number of HREOC decisions based on this view) and are well advanced with programs of upgrading infrastructure to provide access and replacing vehicles with accessible fleets. We have also received clear indications that many of those operators who have been hanging back until the standards are directly in force will begin taking significant steps to achieve compliance as soon as the standards are authorised.

Limits of standards

The provision for development of Standards, then, is highly important, and progress with the transport standards may give renewed impetus to work on standards in other areas. But regulatory standards cannot be relied on as the sole means of achieving systemic change.

Some issues here are:

 

• The length and scale of standards processes; and
• Varying degrees of certainty and specification possible for different issues and circumstances.

The wide ranging scope and long term impact of standards seems necessarily to involve large scale processes of negotiation which take a number of years and which do not always produce regulatory results even then.

The Regulation Impact Statement process required by successive Australian governments for new regulatory or quasi regulatory measures (except, curiously, in the area of taxation ... ) is intended to improve the quality of regulation and avoid unnecessary regulation. The effect, however, of strict application of these requirements seems to be to add an extra degree of difficulty and delay which goes close to making regulation impossible, even where (as with the transport standards) the exercise has broad industry and community support.

One obvious difficulty with achieving progress in implementing discrimination law through standards is that not every area of discrimination lends itself readily to specification in advance of what the required level of accessibility or non-discriminatory result is.

This is less of a concern in an area like transport or building access where most debate concerns what technical specifications are appropriate and achievable, and how soon they can be achieved. Even here though there is a need to avoid prescribing particular results in too much detail and too far into the future in a way which might not fit with changed circumstances or which might fail to take advantage of new possibilities.

In areas like employment or education, specification of results is even more difficult.

The consensus among participants in the attempt to develop standards on employment, from 1995 to 1998, was that standards in this area should seek to restate the principles of the DDA in more detail rather than taking any more prescriptive approach. However, after two drafts and three rounds of consultation, significant sections of disability community opinion either rejected the draft or supported going forward only with significantly more prescriptive standards. Industry representatives opposed increased prescriptiveness and supported the content of the second draft, but also supported its adoption as guidelines or voluntary standards rather than as regulatory standards.

HREOC considered adoption of the content of the draft employment standards as guidelines but on being advised that these would be considered quasi regulatory and would require a further regulation impact statement process, the decision was taken that the resources required for this could not be justified as a matter of priority for non-binding guidelines. This was particularly the case given the need to work for adoption of standards with better prospects, on transport, buildings and education, and given that the content of the draft employment standards is reflected and endorsed in HREOC's extensive "Frequently asked questions on employment" material available on its internet site, reproduction of which for any purpose is explicitly permitted and encouraged.

Education standards have been under active discussion under the auspices of the Ministerial Council on Employment, Education, Training and Youth Affairs since at least 1996. In 2000 the point was finally reached where draft standards were issued for consultation, with the initial comment period closing in November. HREOC submitted a brief comment stating that in our view the draft reflected, and did not undermine, existing rights and responsibilities, but that judgments on whether in other respects the draft achieved its intended purposes should come in the first instance from education consumers an providers.

It is fair to say though that the draft education standards are closer to the employment draft than the transport draft on the spectrum from principle based to performance based to prescriptive standards. There would clearly be some advance in specification of rights compared with the existing position under the DDA if standards were adopted in close to the form of the current draft - for example in the duty to make reasonable adjustments in a number of areas being explicitly stated rather than needing to be inferred from the general terms of section 5(2) and section 6 of the DDA.

Whether or not such standards are adopted, though, in my view there remains a need for further consideration of mechanisms to ensure that rights recognised in law translate into rights enjoyed in practice.

Action Plans

One feature of the DDA which remains distinctive among Australian discrimination laws is the provision for providers of services to prepare and lodge with HREOC voluntary Action Plans. Many of the Action Plans which have been given to HREOC have been provided in electronic form and are therefore available on our web site.

The DDA specifies that a service provider's Action Plan is to be taken into account in determining issues of unjustifiable hardship which arise in dealing with complaints against that service provider. The Commission has promoted development of Action Plans as a means of reducing the likelihood of complaints being made and increasing the likelihood of being able to successfully defend complaints.

Preparation of an Action Plan is not compulsory. It does not in itself confer immunity from liability under the DDA or guarantee good results in the elimination of discrimination: whether an Action Plan reduces discrimination and reduces exposure to complaints depends on the quality of the plan and the actions undertaken under it rather than on the formal existence of a plan in itself.

The emphasis of the DDA provisions on Action Plans, and of HREOC's promotional materials, and, it is fair to say, of most action plans submitted, has been on preventive measures, and on addressing currently known barriers to equality over time, such as plans to alter or move out of inaccessible premises. These are worthwhile features, but another aspect which perhaps deserves more attention than we have given it so far is for organisations or industries building in their own mechanisms to receive and respond to complaints, as a means of achieving change and eliminating discrimination in much more detail than can be planned and described in an action plan in advance.

A number of organisations, particularly in the public transport area, have coupled an Action Plan with application for temporary exemption under the DDA so as to achieve more definite protection from liability and give more definite legal form to commitments to reduce or eliminate discrimination over time. I will come back to exemptions as a strategic mechanism for achieving change a little later in this paper.

The provision for action plans has been pointed to by the Queensland Anti-Discrimination Tribunal (in a decision not yet published in an accessible form, Re Olympic Roads and Transport Authority, 9 August 2000), as a significant difference in emphasis as between the Federal and State legislation as between a long term focus on achieving access over time and a focus on whether discrimination exists at the time of complaint.

In my view, while the recognition of Action Plans provides a useful structure for compliance efforts and gives a useful reminder of the real objective of the legislation, any distinction between the Federal and State and Territory legislation in this respect would be easy to overstate.

Focus of legislation on long term and large scale change

In most if not all cases, State and Territory discrimination laws contain provisions which I think make clear, just as the Federal legislation does, that the objective is the elimination of discrimination and the promotion of equality, and that rendering individual acts of discrimination unlawful and providing for rights of complaint about these acts are means to these ends rather than ends in themselves.

I am referring here not only to the objects clauses contained in most of the laws concerned, but also to the provision in each and every law on disability discrimination in Australia for a temporary exemption power.

Exemptions

Like any statutory power, as a matter of basic administrative law the exemption powers (vested variously in the administering Commission or Commissioner, or the relevant anti-discrimination or equal opportunity Tribunal, or in the responsible Minister) have to be used for and consistently with the objects of the legislation conferring the power.

How can an exemption from compliance with the terms of legislation serve the objects of that legislation? There are, it seems to me, two sets of possibilities, one of which has been explored extensively, the other less so.

First, an exemption may be used to defend the objectives of discrimination law against unfortunate consequences of the drafting or interpretation of the legislation: to render not unlawfully discriminatory things which ought not to have been considered discriminatory in the first place, but which perhaps have been caught by mechanical definitions or interpretations of discrimination.

For example: For some women, and particularly for women from Islamic cultures, using a facility like a swimming pool or a gym may be practically impossible unless the facility is reserved for women only, whether by provision of separate spaces or times. A mechanical interpretation of discrimination law could define, and in fact has defined, reasonable measures to accommodate this requirement as unlawful discrimination, unless an administrative exemption is granted to prevent the legislation being used against its own objectives in this way.

(I do not believe that the same result would apply under the Federal Sex Discrimination Act, correctly construed, given the basis of the Act in the Convention on the Elimination of All Forms of Discrimination Against Women and the well established principle that legislation implementing an international treaty obligation is to be interpreted consistently with the treaty concerned. But certainly, such results have been found under State discrimination laws, which do not always have the same reference to or connection with the meaning of discrimination in international law.)

 

It is rather depressing to see the substantial amount of effort, from applicants and from administering agencies, which goes into making and considering applications to protect beneficial programs.

Given current legislative drafting and interpretation, this may be unavoidable as regards affirmative action programs for women or for indigenous people or others experiencing disadvantage by reference to race.

(It should be noted, though, that the High Court appears - in Western Australia v the Commonwealth (1995) 183 CLR 373 - to have conceded the force of criticisms of the mechanical view of discrimination taken in Gerhardy v Brown, according to which legislative recognition of indigenous people's prior rights to land amounted to racial discrimination and could only be saved as a temporary "special measure" See in particular W. Sadurski, "Gerhardy v.Brown v. The Concept of Discrimination: Reflections on the Landmark Case that Wasn't", (1986) 11 Sydney Law Review 5.)

It is less defensible, though, to argue that an exemption is needed to protect a program conferring benefits on people with a disability or with a particular disability from claims of discrimination by people outside the eligible group.

Everyone has, or at any rate can be classified as having, one or another race, ethnic origin or gender, and may therefore seek to complain regarding benefits for persons not in one's own group. This is because laws on racial and sex discrimination are drafted in neutral terms: so that a white male like myself could (whether justifiably or not) complain of both race and sex discrimination. Disability discrimination laws, both the DDA and the disability provisions within State and Territory discrimination laws, are different. None of these refer neutrally to discrimination based on "the status of having, or not having, a disability or a particular disability".

The consequence is that a person who is ineligible for a benefit or opportunity because he or she does not have a disability or the particular disability which creates eligibility, simply does not have a valid claim of discrimination. An application for exemption should not be regarded as necessary in such a case. It does not pass the first test identified by the Victorian Civil and Administrative Tribunal in Re Fernwood , adopted by the Queensland AntiDiscrimination Tribunal in the ORTA case, and also applied in HREOC practice (for example in the Women's Legal Centre case) that an exemption is only applicable where there is at least an arguable case of discrimination unless the exemption is granted.

The second possible use of exemptions powers has positive and strategic rather than reactive and defensive aims. This class of exemption is the one with which HREOC has been most concerned under the DDA. But it has also been repeatedly stated under State laws that the temporary nature of the exemptions permitted indicates that the purpose of an exemption is to facilitate transitional measures from discrimination to equality.

In brief, exemptions can be used to achieve some of the same effects as Standards and in fact may be better suited for some purposes than Standards. The use of exemptions as a positive mechanism - certainly in elimination of disability discrimination and possibly more widely - deserves wider consideration than it has had to date.

In recommending to the Commission recently that it approve an exemption on certain conditions for Kendell Airlines, I said:

"In view of some comments on this and other recent applications for exemption, I think it is also necessary to re-emphasise that the temporary exemption process is an inherent part of the scheme of the DDA. While not every application for exemption will merit approval, it is a fundamental misconception to regard each and every exemption application as inherently contrary to the objects of the DDA.

The objects of the DDA are better served if organizations with responsibilities bring forward measures for meeting those responsibilities over time for consideration by HREOC and discussion with interested parties in the context of the exemption process than if those organizations elect instead to defer any positive action until successful complaint action is taken against them. HREOC should continue to encourage organisations with responsibilities under the DDA to bring forward positive measures to meet those responsibilities in the context of temporary exemption applications under section 55, and grant exemptions where this advances the objects of the legislation."

Clearly, a power to grant exemptions from the law is an extraordinary power and not to be exercised lightly. Legislation in some States recognizes this by vesting the power in the relevant tribunal. The Queensland Anti-Discrimination Tribunal and the Victorian Civil and Administrative Tribunal have brought to these processes under their respective legislation the same procedures as they apply to other decisions, including the same process of publication of reasoned decisions after hearing arguments.

The DDA itself does not specify any procedure or criteria for considering exemption applications. However, the need for accountability, openness and fullest possible participation in decisions having a wide impact under the DDA, led HREOC some years ago to adopt a policy on exemption applications under which we publish a notice of inquiry, seek public submissions, and in some cases make a proposed decision available for comment. More recently , use of the Internet has allowed us to reach a much wider public with these processes than we could previously, and to publish submissions we receive so that interested parties can see and respond to a range of views rather than having access only to HREOC's own view.

The policy which the Commission has adopted on dealing with exemption applications emphasises that the purpose of the exemptions power is to assist in managing the transition to non-discrimination, not to certify discrimination as permanently acceptable. (This policy, and decisions in those applications that have been received, are available on the Commission's web site.) This policy indicates that the Commission will look for evidence on factors including:

• why immediate compliance with the Disability Discrimination Act is not possible; or why immediate compliance with the Act, though technically possible, should not be required;
• processes and results of any review undertaken by the applicant to identify discriminatory practices or circumstances and means for their removal;
• in particular, details of any consultations undertaken with people with a disability for these purposes;
• any measures already implemented or planned by the applicant to achieve the objects of the Disability Discrimination Act including through an Action Plan;
• terms or conditions which promote achievement of the objects of the Act and which the applicant is prepared to meet as a condition of receiving the exemption.

A number of exemptions have been granted to public transport operators on the basis of commitments to percentages of vehicles and facilities being made accessible by certain dates, pending which the operators in return are given protection against complaints. This use of the exemption process has clearly contributed to progress towards fully accessible systems, particularly in Western Australia, South Australia and Victoria, rather than this progress having to wait on the final approval of standards.

In my view the exemption process has potential for significantly wider use than it has had so far, as a positive means of structuring movement towards elimination of disability discrimination. This includes in areas where appropriate results are less readily specified in advance than the sort of engineering issues which arise in public transport. What can be specified more generally are appropriate processes, both to prevent discrimination occurring and to provide more speedy and perhaps more expertly based redress when it does occur.

This could include the areas of education and employment, which are the subject of the greatest numbers of disability discrimination complaints received by HREOC and by State and Territory agencies also.

In her 1997 "Foundations" paper Elizabeth Hastings emphasised the need for other agencies rather than only human rights and anti-discrimination specialist agencies to do their share of work in achieving a non-discriminatory world:

"A human rights agency in the position of the Human Rights and Equal Opportunity Commission has neither the expertise nor the authority, nor sufficient personnel, to regulate everything itself. As far as possible the aim should be to have access and equality built in to the ordinary way of doing things rather than being an additional set of requirements subsequently imposed from the margins."

A brief survey of anti-discrimination agencies'annual reports over the years shows chronic problems of limited resources compared to the task to be performed. Frequently this shows in delays in handling complaints, with substantial waiting times until a matter is even assigned to a complaints officer. Often this reduces the prospects of achieving an appropriate remedy. This is particularly the case on issues where time is critical: where a child is missing out on a year or more of effective access to education, or an employee is losing not just income but skills and confidence while out of the workforce.

On these issues, we ought to be able to acknowledge that a perfect, handcrafted remedy by expert discrimination agencies two or more years later is nowhere near as good as a reasonable remedy on the spot.

I recently handed down a decision in an education complaint under the DDA, Purvis v State of New South Wales.

Detailed, expert and extensive processes were applied in this case by HREOC, both at the stage of attempted conciliation and if I may say so at hearing.

Despite the award of substantial damages which I found appropriate, it is hard to describe the result in this case as a win for anyone or for the objects of the legislation. Damages well after the event are poor compensation for the human costs incurred in the course of this matter. This includes the years spent out of school by a young person and also includes the stresses placed not only on parents but also on teachers who it was clear to me were making huge efforts although, as I found, with inadequate information and resources and without sufficient adherence to departmental policies which may have lead to better results.

It is hard not to think that a decision process of say 70% the quality but 2 years faster - giving an authoritative decision one way or the other - would be better in terms of achieving the objects of the Disability Discrimination Act. If an exemption were required to give sufficient incentive to apply such a process and were applied for, I think it would need to be given serious consideration.

There is of course an obvious concern regarding the risk of incorrect decisions and substandard outcomes. We need, though, in the anti-discrimination industry to weigh such a risk accurately against what are not risks but present certainties: the certainty that some matters are not being presented for decision or assistance at all because of the limits of available processes; and the certainty that many matters which are being presented to anti-discrimination agencies are subject to long delays which deprive alternative dispute resolution processes of much of their effectiveness and rationale.

We have not as yet had any applications for exemption from the legislation based on the proposition that an industry or organisation's own complaints system and policies should be allowed to operate in place of the process of complaints to HREOC and to the Federal Court.

In my opinion, there would be good grounds to grant such an application and allow this approach a temporary and reviewable opportunity to prove itself, so long as it could be demonstrated that such a system showed reasonable prospects for achieving better results in advancing the objects of the legislation.

This sort of approach seems still to be uncharted territory in discrimination law in Australia. It has however been discussed extensively in the United States, particularly in relation to environmental law, under the name of "regulatory relief"

(The most extensive readily available analysis is contained in Voluntary Measures to Ensure Environmental Compliance: A Review and Analysis of North American Initiatives, Commission for Environmental Co-operation, 1998. That report concluded that there was a valuable role for alternative compliance measures between environmental regulators and regulated industries if designed and implemented with care. )

The term "regulatory relief" may be misleading, since the issue for the Commission is not one of industry being relieved of burdensome obligations, but of finding more effective and efficient ways for the objects of the legislation to be fulfilled.

There appears to be considerable potential for gains in effectiveness and efficiency in measures to comply with the DDA through the Commission giving more recognition to appropriate internal remedies, industry or sector based remedies, and other regulatory and quasi-regulatory regimes, and avoiding duplication of the work of such remedies and regimes.

This potential is most clearly achievable where such alternative remedies and regimes have already been put in place, whether voluntarily by organisations or industries or by other regulatory authorities, capable of being recognised by the Commission in their existing form or with some modifications.

In particular, there is no formal connection at all as far as I am aware between anti-discrimination provisions and the extensive equal employment opportunity programs and legislation which exist around Australia: even where, as in the NSW Anti-Discrimination Act, the same piece of legislation provides for both.

The exemption process provides a possible means both of giving recognition to effective EEO measures and of achieving greater accountability for results under these programs. An exemption for a period of years might be granted on condition that progress is reported both in removing particular barriers to equal opportunity and in results actually achieved in terms of people with disabilities gaining access to particular types or levels of opportunity. Further exemptions beyond that period would be dependent on satisfactory progress or performance during the initial period.

Where alternative remedies are not yet in place, how effectively recognition by the Commission encourages their development will depend on a number of factors including

 

• perception by organisations of their degree of exposure to liability under the DDA
• assessment of the costs of dealing with complaints under the DDA on a case by case basis through the Commission: including costs in management and staff time in dealing with a complaint, damage to workplace relationships, possible costs in staff turnover, legal costs where applicable, and public relations consequences
• assessment of costs of developing and operating an alternative remedy
• benefits to be gained, including avoidance or resolution of disputes and reduction of exposure to legal liability.

Organisations with responsibilities under the DDA will need to make their own assessment of these factors. In many cases there should be substantial net benefit to be gained by development and implementation of measures to remedy disability discrimination on the basis that the Commission will give appropriate recognition to these measures.

However, the exemption mechanism has significant limitations.

 

• Exemptions are temporary, being only able to be granted for five years at a time. This may limit their usefulness where the nature and scale of measures required to achieve equality is such that a longer transition period is required.
• Some organisations have considered making an applying for an exemption including commitments to actions to achieve equality, but have decided not to proceed because they have been reluctant to appear to admit to being discriminators seeking permission to continue discrimination.

There is no suggestion, therefore, that exemption and standards processes can make complaint processes unnecessary in achieving the aims of anti-discrimination legislation.

The major successes which have been achieved to date in DDA standards development and exemption processes have in fact been in direct response to complaints. Complaint processes are clearly capable of having significant policy and educational impact in their own right, as well as being a major means of driving standard setting and compliance processes.

But effective performance of these roles requires us to look closely at current and potential processes for dealing with complaints.

Complaint processes

I stated at the beginning of this paper that the potential of complaint processes as a means of achieving large scale systemic change has been underestimated because commentators and administering authorities alike have generally not explored the possibilities of more open approaches to complaint investigation and reporting of complaint outcomes and that while these approaches will only sometimes be appropriate depending on the case, they are legally available under most if not all Australian discrimination laws and deserve consideration by administering authorities, complainants and advocates, and commentators.

Although the details of legislation vary from place to place, in my view each and every Australian anti discrimination agency has powers available for this purpose which are not being utilised fully or perhaps even being considered.

The contrast or division which is frequently perceived between complaints and educative or preventive functions - generally to the disparagement of the strategic importance of complaint handling and serious overstatement of the value of such educative effect as can be delivered by speeches, pamphlets, videos, seminars and such like - is in my view based on an unnecessarily limited view both of complaint processes and of what is education.

I should say at once, and by way of preemptive apology, that despite having practiced in the area for two decades, the points I am presenting here as obvious did not occur to me until 1998 either.

The critical point for me arose in the context of deciding as hearing commissioner how to conduct an inquiry into remedies for a complaint regarding the effect of smoke on an asthmatic person (Meuwissen and Francey v Hilton Hotels). It became apparent that witnesses for complainant and respondent would not necessarily present me with evidence on the widest possible range of options for achieving smoke free environments. Both, no doubt in good faith and for their own different reasons, emphasised a total ban on smoking in the venue concerned as the only effective solution (although as might be expected they differed on whether this solution was feasible in the circumstances).

I thought that opening the inquiry to broader input beyond the immediate parties could establish whether any other effective approaches existed, including in overseas practice. As it happened, in this case the broader evidence did not change the result but it did provide me with a more sound base for deciding what remedies were or were not possible.

This broadening of the inquiry did not require commissioning of expensive expert reports beyond reasonable resource limits, in contrast to the situation which I know faced the late Elizabeth Hastings as Commissioner in 1993 when she tried to think of modifications to established complaint processes to ensure that all necessary information would be available to deal with some of the more complex issues presented by HREOC's then new disability discrimination jurisdiction.

As we now know, the invention of the world wide web was occurring around the same time, but its widespread adoption and the development of effective models for its use for public policy processes did not occur quite soon enough for Elizabeth's purposes.

By 1998, though, a number of United States regulatory agencies including the Access Board and the Federal Communications Commission had demonstrated that it was possible to expand an inquiry process to include a public element with no significant additional expenditure, using a notice of inquiry posted on the internet and receiving submissions by the same means. I am not at all claiming to have invented this sort of process out of nothing - the point in fact is that the time had become ripe for this approach. Simultaneously Chris Sidoti and his staff were developing similar ideas for investigation of appropriate complaints at the initial stage of the complaint process

No criticism of anyone is intended, then, for not having conducted these processes previously. The ability to conduct these processes on any large scale, within the resources either of the Commission or of other interested parties, and within reasonable handling times, depends critically on the possibilities provided by the internet, and of course the range of disability community, business and government organisations having internet access is very much greater now than it was a few years ago. In particular there is a much higher proportion of disability representative and advocacy organisations on line at least to the extent of email access than there was in 1997.

The essential first step, however, was and is to recognise that these approaches are legally possible.

For a long time, one of the major themes of academic discussion of discrimination law in Australia has been strongly expressed criticism of the privatisation of major public policy issues through private investigation and conciliation of discrimination cases.

A convenient starting point is the remark of Dr Jocelynne Scutt in her 1986 paper "The privatisation of justice: power differentials, inequality and the palliative of counselling and mediation", presented at an Australian Institute of Criminology conference on alternative dispute resolution:

"The privatisation of justice is detrimental to the interests of the disadvantaged, in that it shuts off from public view the very nature of the inequality from which the individual and the group suffers".

The largest scale academic attack on the dominant paradigm for complaint handling by Australian anti-discrimination agencies is that by Margaret Thornton, in her chapter "Equivocations of conciliation" in her 1990 book The Liberal Promise: Anti-Discrimination Legislation in Australia. Here are some excerpts:

"While anti-discrimination legislation purports to express public disapprobation of discriminatory acts committed in the public arena, it is nevertheless nervous about public scrutiny of those acts, the wrongfulness of which is contentious. Therefore, violations are treated not as public transgressions in the way that crimes are treated, but as private peccadilloes. Hence, it has been determined that such matters should be dealt with primarily in a confidential and non-threatening privatised environment; a public hearing is generally available only as a last resort following the failure of conciliation."

"Indeed, the legislative model assumes that the majority of discrimination complaints will not pass into the judicial or quasi judicial arena but will be successfully resolved at the conciliation level and the discriminator will not err again once politely informed of the error of his or her ways - a somewhat naive view of human nature and one which is predicated on an individualised pathology of discrimination. The phenomenon of the "habitual respondent", frequently a government department, puts paid to such a simple minded model of social change."

"Furthermore, the general educative role of the privatised model is uncertain, for it is based on an excessively optimistic view that each complaint to an appropriate agency has a positive ripple effect in reducing the incidence of discrimination in the community."

"It is apparent that a major difficulty with the conciliation model, whether it be legislative or non-legislative, is that the confidentiality requirement precludes a thoroughgoing analysis of its overall efficacy and of its methodology."

"Indeed, confidentiality in the handling of complaints has significant class-wide ramifications. The secrecy surrounding conciliation precludes group empowerment to a marked degree; the outcome of conciliation is invisible and is perceived to be of relevance to the parties only; it cannot be used as a model for others, or as a means of developing a collective lobby to change policy if policy changes have not resulted as a condition of settlement. The atomism inherent within the confidential conciliation process underscores the notion that acts of discrimination are of an isolated and individualistic nature and that individualistic solutions alone are appropriate."

"Furthermore, since education is an important prophylactic strategy under the legislation, the inability to communicate specific information concerning such settlements, other than in an abstract sense, frustrates this aim. Lack of knowledge of comparable cases compounds the disadvantaged position of powerless complaints."

It might be said that the severity of this criticism does not entirely do justice to the achievements of organisations and people working within this paradigm of complaint handling. However, Dr Thornton does acknowledge that private processes have some benefits.

She notes that

"The rationale for the guarantee of confidentiality is that the prospect of conciliation would otherwise be thwarted"

and mentions possible increased legal resistance from respondents and possible hesitation of people in vulnerable positions to make complaints if private processes were not available:

"While the inscrutability of conciliation undoubtedly limits the public benefits to be derived from a more open process, it is a desirable alternative for particular categories of individual complainants who would be unlikely to pursue their complaints to the public level."

The effectiveness of private processes in achieving large scale change has also been questioned more specifically in relation to disability, in the book Explorations on Law and Disability in Australia (edited by Melinda Jones and LeeAnn Basser Marks).

Criticisms of this sort may seem to have been more common in academic writing than in official discourse.

However, the National Alternative Dispute Resolution Advisory Council's 1997 discussion paper, Issues Of Fairness And Justice In Alternative Dispute Resolution, identified similar concerns regarding privatisation of significant public policy issues, in particular discrimination issues:

"Matters are dealt with behind closed doors and society as a whole is not afforded the opportunity to respond. Legal precedents are not allowed to evolve. Increasingly, ADR is being prescribed by Government as a means of resolving a range of disputes, many of which, for example, discrimination, may raise issues of public concern and interest.

In contrast, litigation has a number of advantages where issues of public concern and interest are involved as a result of its public nature as a method of resolving disputes. Disputes are resolved in a forum which is open and accessible to the public and courts carefully consider making decisions to exclude the public or to restrict the publication of information arising from court proceedings. Decisions of courts are reported where they contain important issues of law. Decisions are recorded and are appealable. The law is developed in important respects through precedent."

This paper asked for submissions on possible means of dealing with inappropriate privatisation of public policy issues.

The measures recommended, though, seem very modest compared to the problem identified. The main recommendation seems to be more details of complaint outcomes in annual reports.

Greater publicity for complaint outcomes is very worthwhile as far as it goes, and can and should be undertaken more thoroughly and more frequently than annual publication of a handful of case summaries.

In recent years HREOC, for example, has made considerable efforts in this respect. The Sex Discrimination Commissioner has published a number of reports on "Harsh Realities" detailing issues raised in complaints. Reporting has perhaps gone further so far as the DDA is concerned, by the publication on line of fairly extensive summaries of complaint outcomes. This has included not only the "successes" of resolution of complaints by conciliation, but has also involved seeking to achieve a wider degree of public accountability of the exercise of powers not to deal with a matter - by declining the complaint (under the provisions applying up to April 2000) or terminating it (under the procedure from April 2000 onwards).

These summaries do not contain identifying personal information unless with the consent of the person concerned. Subject to this, the intention has been to publish as much as possible, consistent with maintaining the cooperation of parties and consistent with privacy requirements.

Increased openness about results of complaint processes is clearly important, then, and in many cases more could be done, mainly by using the potential of the internent for speedy economical but widespread publication. But openness of outputs and results of complaint processes is only part of the picture. What about openness of the process itself?

The NADRAC report appears to assume that in order to have the advantages of openness and accountability which are characteristic of formal court and tribunal processes, it would be necessary to abandon alternative dispute resolution processes - including investigation and conciliation - with their advantages of flexibility and potential for accessibility. This assumption in turn appears to be because of the presumed effect of confidentiality requirements.

Margaret Thornton's book even more clearly took the limitations or disadvantages of current anti-discrimination complaint practice as inherent in the legislative model - as well as, apparently, being the more or less inevitable consequence of the logic of liberal capitalist society. As a result her otherwise powerful analysis completely fails to engage with the question of whether the legislation really does dictate private processes as the only available approach.

In defence of Dr Thornton, there is no shortage of official pronouncements that Australian anti-discrimination legislation is restricted to the effect criticised by her.

The New South Wales Law Reform Commission in chapter 8 of its recent report on the NSW Anti-Discrimination Act appears to repeat the common confusion between evidentiary and confidentiality provisions.

The report sets out section 94(2) of the ADA which provides that: "Evidence of anything said or done in the course of conciliation proceedings under section 92 shall not be admissible in subsequent proceedings under this Part relating to the complaint." But it places this under the heading "Confidentiality of conciliation proceedings". The discussion which follows also repeats at several points the assumption that this is a confidentiality provision rather than the evidentiary or admissibility provision which it plainly is.

However, the NSW Law Reform Commission report does go on to point out correctly that this provision only applies to conciliation, and not to investigation, despite difficulties which as the report notes may often exist in practice of determining the distinction between the two functions.

All Australian anti-discrimination laws with the apparent exception of Victoria's Equal Opportunity Act make explicit provision for inquiry into complaints, in terms which in my view would provide a basis for open inquiry processes where appropriate.

HREOC Act section 46PF provides that "If a complaint is referred to the President under section 46PD, the President must inquire into the complaint and attempt to conciliate the complaint."

A similar provision applies under the NSW AntiDiscrimination Act. In relation to this provision the NSW Law Reform Commission points out that "The process of investigation is not prescribed in the legislation, a circumstance which allows the President to tailor the examination to the complaint, but without indicating how the discretion is to be exercised."

The Law Reform Commission recommends formal and compulsory legislative separation of investigation and conciliation functions. I think it is necessary to emphasise in response to this that although investigation being subsumed within conciliation processes is not the only available approach, combining the processes is often beneficial in practice - in terms of efficient use of resources and in terms of timely and effective resolution of complaints. The long complaint handling backlogs and indications of frustrating formalism in a jurisdiction such as Canada where the investigation process is much more rigidly formalised are worth noting.

Separation of conciliation and investigation functions for all cases raises problems just as combining these functions in all cases may. In my view agencies ought to be able to determine for themselves the most effective and efficient disposition of resources available from time to time and from case to case rather than having this dictated inflexibly by statute.

It is true though that some discrimination laws give more direction than others on the nature and purposes of investigation.

The Queensland Anti-Discrimination Act and the Western Australian Equal Opportunity Act require an investigation into each complaint but do not confine or define what that is.

South Australia's Equal Opportunity Act provides that on a complaint being lodged or a matter being referred, the Commissioner "may" conduct an investigation, again without further definition.

The ACT Discrimination Act section 73 goes further in this respect, stating that :

The Commissioner shall investigate a complaint made in accordance with section 72 for the purpose of determining

(a) whether the complaint can be dealt with under this Act;

b) whether the Commissioner may decline the complaint; and

(c) if the complaint can be dealt with and the Commissioner does not decline it - whether resolution of the complaint by conciliation between the parties is reasonably likely.

Section 75 goes on to state that "Subject to this Part, an investigation shall be conducted in such manner as the Commissioner thinks fit."

Section 75 of the Northern Territory Anti-Discrimination Act similarly provides that "An investigation under this Division shall be conducted in such manner as the Commissioner thinks fit."

The Tasmanian Anti-Discrimination Act has the most detailed provisions.

Section 7 provides that the powers of the Commissioner include "to determine the procedures to be followed in any investigation or conciliation". (The present Commissioner of course is Dr Scutt whose remarks from 1986 on privatisation of public policy issues I have quoted earlier in this paper.)

Section 69 provides that "the Commissioner or an authorised person may investigate a complaint in a manner that is appropriate to the circumstances".

It is true that section 69 of the Tasmanian legislation goes on to state that "In investigating a complaint, the Commissioner or an authorised person is to have regard to the desirability of maintaining the confidentiality of all persons involved in the investigation". This provision however is clearly far from being an absolute confidentiality requirement applying to all aspects of every complaint.

Obviously it would apply to material genuinely provided in confidence. But if material - such as the fact of the making of the complaint - has already been made public, for example by a complainant who wants precisely publicity rather than privacy for his or her complaint, then it is hard to see that in relation to that particular material there is any confidentiality in existence to "maintain". Moreover, the provision requires the Commissioner to "have regard to" the "desirability" of confidentiality. This is language conferring a discretion to make a judgment rather than imposing an absolute rule.

Confidentiality, not only of conciliation proceedings but of other aspects of complaints, will often be desirable as a matter of judgment. But a judgment is required rather than purely private processes being required by law as a universal practice. And in some cases, a different judgment in favour of greater openness will be appropriate.

Confusion between evidentiary and confidentiality requirements has not been restricted to academic commentators or reports by law reform agencies: at least in some cases it has included those directly responsible for administering the legislation .

Prior to the amendments which took effect in April this year under the Human Rights Legislation Amendment Act number 1, section 76(3) of the DDA stated

Evidence of anything said or done in the course of conciliation proceedings under this Division (including anything said or done at a conference held under this Division) is not admissible in subsequent proceedings under this Part relating to the matter.

The SDA and RDA had provisions to the same effect.

The publication "A review of the Racial Discrimination Act 1975" issued by a former Race Discrimination Commissioner cited this provision, the former section 24E3 of the RDA, for the proposition that "anything said or done in the interests of conciliation is confidential".

But it should be obvious from looking at the words of the legislation concerned that although provisions such as this have generally been described as confidentiality requirements, they are only evidentiary limitations on admission of material in court proceedings.

So a provision like HREOC Act section 46PH, which says that a report from HREOC's President on a terminated complaint "must not set out or describe anything said or done in the course of conciliation proceedings under this Part" means what it says: it does not impose any more general duties of confidentiality or secrecy.

Another relevant provision of the Human Rights And Equal Opportunity Commission Act is section 46PK which provides that a "compulsory conference is to be held in private". Of course, as a matter of law this has no application to non compulsory conferences (which constitute the overwhelming majority of conciliation conferences). It clearly has no application to a hearing, forum, conference or other proceedings held for the purposes of inquiry into a complaint rather than conciliation, if in some or all cases these purposes are sufficiently separated in practice to enable this distinction to be applied.

I should emphasise again that I recognise that despite the limited effect of some provisions asserted to require confidentiality for conciliation as a matter of law, as a matter of practice and policy confidentiality is often extremely important in achieving effective conciliation processes.

This has been confirmed over many years by the experience of HREOC and other administering agencies, and is reinforced by the comments by the Federal Court in Australian Medical Council v Wilson and Others on the inappropriateness of public comment on the approach of a party to conciliation proceedings.

It is a different proposition, though, that the whole process must be confidential, including the existence of a complaint and the fact that it is under investigation, rather than that confidentiality ought to be applied to proposals and information put by the parties and the conciliator in the course of or for the purposes of conciliation.

Requirements for privacy of personal information - contained both in general requirements such as those of the federal Privacy Act and in specific provisions regarding personal information in anti discrimination laws - of course have to be respected, both as a matter of law and in order to maintain confidence in the process.

But it will often be possible to investigate the public policy issues raised by a complaint without disclosing any associated personal information, so long as agencies take appropriate care in this respect. Of course if it is not possible in a particular case to conduct a more open investigation without breaching privacy requirements then such an investigation cannot proceed into that complaint, however unfortunate this might seem.

There are more general non disclosure requirements common in legislation which are not restricted to personal information but in all cases these are subject to an exception such as that in HREOCA section 49 which prohibits disclosure of any information relating to the affairs of another person "except in the performance of a duty under or in connection with this Act or in the course of acting on behalf of the Commission".

Acting on behalf of the Commission, of course, includes authorised actions in the course of investigation or inquiry functions provided under the legislation.

Rather than there being a simple prohibition on use and disclosure of information regarding complaints, provisions such as HREOC section 49 present administering authorities with issues for decision. These include:

• what use or disclosure is justified to advance the objectives of the legislation? For example it might be possible and appropriate to disclose the nature of a complaint but not the identity of one or more parties.
• connected with this, what would be an unreasonable disclosure of personal information for Privacy Act purposes?
• what information should be protected to maintain the confidence of parties in the process (and the willingness of a complainant to proceed with the particular complaint) even if disclosure is not legally prohibited?

Acting on the sorts of ideas set out in this paper, HREOC has been experimenting since 1999 with investigating a small number of complaints through public inquiry processes. At present there are not any formal procedures in place on commencing and conducting public inquiries, but I can sum up practice in and lessons from inquiries so far as follows:

Whether an inquiry into a complaint should be conducted publicly will need to be decided in the circumstances of that complaint, taking into account any views indicated by the parties to the complaint. In determining whether to undertake a public inquiry into a complaint, though, relevant factors may include:

• how far and how directly the subject matter requires consideration of interests of persons or organisations beyond the immediate parties to the complaint
• how far inquiry into the complaint involves inquiry into allegations regarding individual behaviour (which may be less appropriate for public inquiry) or alternatively involves broader issues of public or social policy (which may more appropriately involve public inquiry)
• whether open inquiry is possible without unreasonable disclosure of personal information (taking into account that public elements of an inquiry process need not directly identify the parties to the complaint)
• whether the subject matter of the complaint can be appropriately investigated by reference only to material available from the immediate parties to the complaint
• potential impacts (positive or negative) of conduct of an open inquiry process on prospects for resolution of the matter concerned and related matters
• available resources and priorities.

Appropriate decisions on most of these issues will require taking into account the views of the parties to the complaint. In particular, consent by the parties to any release of personal information is critical for ensuring compliance with the Privacy Act and maintaining confidence of parties and potential parties in the Commission's processes.

More generally, affected parties should be given an opportunity to be heard regarding a proposed public inquiry into a complaint because some parties to complaints may also regard the publication of a notice of inquiry or other steps in inquiring publicly into complaints as an adverse or potentially adverse action.

Clearly an inquiry will proceed more effectively and appropriately with the co-operation of the parties than if a respondent, in particular, feels compelled to resist an inquiry by legal means if possible or by non-cooperation. In a number of cases to date, however, initial concerns from respondents have been dispelled once it has been made clear that the purpose of an inquiry is not a "show trial" of ritual public condemnation - any more than private investigation and concilation processes as administered by Australian anti-discrimination authorities have proven to be some sort of Spanish Inquisition, as critics in the 1980s expected or claimed to expect.

Indeed, in some cases respondents have welcomed the open nature of this process once it became clear to them that there was an opportunity to place the particular complaint in an industry or issue wide context and seek a resolution using a wider range of knowledge and resources than that particular respondent may have.

The views of the parties, on whether and in what terms the investigation of the complaint should include an open inquiry, will therefore be sought and received before the President makes a final decision to commence such an inquiry. This will include provision of a draft Notice of Inquiry to the parties for comment. Parties will also be advised that it remains open to them to seek the Commission's assistance in resolving the matter by conciliation at any stage.

A Notice of Inquiry:

• states that the Commission has received a complaint
• identifies the relevant legislative provisions
• identifies the issue briefly
• states that the President is conducting a public inquiry for the purpose of investigating the complaint
• will not identify individuals unless their consent is obtained in writing
• will not identify parties other than individuals, except where the President is satisfied that this is appropriate in the circumstances and necessary in order to investigate the complaint and that it does not contravene duties under the Privacy Act or other duties of confidentiality
• states the issues on which the President is seeking information or comment
• provides a date by which submissions are sought
• provides contact information for making submissions or requesting further information
• includes statements intended to ensure that persons making submissions are aware of the intended publication of submissions and of the option of withholding consent to publication of identifying and contact information
• indicates the possible courses open to the President after submissions are received.

As a general rule a six week period for submissions is provided. A shorter or longer period may be appropriate, however, depending on any need for urgency, the complexity of the matter and the range of interests to be taken into account.

Possible courses after receiving submissions, depending on the circumstances, may include:

• Publishing an analysis of issues presented in submissions and any other investigation or research conducted, for the information of and possible comment by parties and others interested
• Convening a public hearing or forum to discuss the issues further
• Convening a conciliation conference
• Publishing a draft decision for comment
• Publishing a notice of the resolution of the matter (subject to exclusion of any matters agreed by the parties to be kept confidential)
• Publishing a decision to terminate the Commission's dealing with the matter where appropriate on the grounds provided by section 46PH (noting that in this case the complaint may be taken to the Federal Court and that in this case the process would be a formal legal proceeding between parties compared to the broader process of investigation available to the President).

As with other complaint investigations the President will seek to close matters being dealt with through the public inquiry procedure within a reasonable time (with a target of six months) either through agreed resolution or through exercise of applicable powers to terminate complaints.

Obviously, the public approach to complaint investigation will not suit every issue or every complaint. Many complainants may prefer an entirely private dispute resolution approach, and the Commission cannot and will not seek to put them through a more extensive social policy inquiry if there are reasonable prospects for an appropriate resolution being achieved more simply or quickly through conciliation.

I am convinced though that this approach has potential to achieve real progress in advancing the objects of the legislation.

As with the exemptions process, public inquiry into complaints works mainly using the internet, to issue a notice of inquiry, seek and publish submissions, and publish a report or decision.

However, where appropriate and as resources permit, the process can also include a face to face public forum or hearing. For example the captioned movies inquiry has consisted of several meetings of a public forum involving each of the major movie exhibitors, disability community representatives and HREOC. This process led to an agreed trial of open captioning in selected cities for a number of films. Without being premature I can say that as a result of this process there are excellent prospects for captioning to be extended more broadly on a more permanent basis.

The public inquiry we conducted arising out of an individual complaint on access to local government elections in Newcastle has produced broader outcomes in my view than all previous electoral complaints under the DDA put together, precisely because of the public nature of the process. The inquiry resulted in establishment by the Australian Electoral Council - of which all Electoral Commissions are members - of a committee, including the Commission and community representation, to develop a standard definition for access, and set benchmarks for its achievement over a period of years. Of course, continuing openness and accountability in this process will be critical in achieving improved access in practice and in ensuring that all access issues - whether for people with physical or sensory or other disabilities - are appropriately considered.

The public inquiry we conducted into complaints regarding interference with hearing aids from digital mobile phones has likewise provided a forum for exchange of community and industry views about better access to solutions and for clarifying the responsibilities of service providers and mobile phone suppliers. As a result of this, and assisted by the Commission's report on the inquiry, negotiations for broad based resolution of these complaints are currently progressing well.

The public inquiry process has several benefits:

• It enables broad community participation in discussion of important policy issues raised in the context of complaints rather than whichever individual or organisation happens to be the complainant having to take all the running;
• It reduces the risk of a complainant potentially accepting a less than adequate resolution which affects the community more broadly because of a lack of knowledge of other options or a lack of support and resources
• In some cases it may enhance the prospects for agreed resolution of complaints by providing the parties to the complaint with a wider range of information, perspectives and options than they would otherwise have had available
• It secures more publicity both for discrimination issues and for positive outcomes than the more usual confidential complaint handling process generally does: bearing in mind that the leading object of the DDA is the elimination of discrimination, rather than the resolution of particular complaints
• In some cases, just discussing a draft notice of public inquiry with the parties may help to clarify the issues and move matters towards resolution.

I am not for a minute questioning the appropriateness of confidential processes where sensitive issues of personal information are involved. But there is not much personal and sensitive information, after all, in examining whether telecommunications systems, or television broadcasts, or government information, or services provided through the internet, or public transport, or buildings like shops or schools or post offices or cinemas or the offices where government services are provided, are accessible. These issues always have a wider impact than for the particular complainant and respondent alone and frequently require wider input and expertise than the complainant, respondent and anti-discrimination agency may have immediately available to them.

I noted earlier that in some cases a complaint may present a mixture of public and private issues and that it may be possible to separate these and conduct a public investigation of the public policy issues in a way which does not infringe privacy and which in fact may assist with the resolution of the particular individual complaint as well as advancing the objects of the legislation on a larger scale. Let me give some examples.

Disability discrimination complaints, perhaps more so than other grounds of discrimination, often involve reference to issues where the words of the legislation itself do not provide the answer to whether unlawful discrimination has occurred or not if the facts alleged did occur. What are the inherent requirements of a particular job? What does unjustifiable hardship mean in particular circumstances? Is a particular rule which has a differential effect on people with disabilities reasonable or not? Is a restriction which applies to people with infectious diseases "reasonably necessary in the interests of public health"? Is the person's condition a disability anyway?

These issues are relevant where an administering agency, like HREOC and a number of others, has power to terminate or discontinue handling a complaint where satisfied that the matter does not involve unlawful discrimination. Even if the agency has no power to discontinue dealing with a complaint on this basis, answers to these questions will be relevant to the parties in determining their approach to conciliation. In my view an agency's approach to these issues will often be both better informed and more credible with the parties and with the public at large if it is informed by broader discussion and inquiry rather than being based only on the agency's own view and perhaps those of the immediate parties to the complaint. (The same might be said in other areas such as vilification on grounds of race or sexuality where the legislation expressly refers to community standards of reasonable discourse: how better to test community standards than by opening the question to community input?) This sort of inquiry should often be possible to conduct without needing to disclose personal information or inquire publicly into particular events of a complaint.

Another strategic avenue is suggested by the provision of the HREOC Act that the President has power to terminate dealing with a complaint on a number of grounds. These include that she thinks that some other more appropriate remedy is reasonably available to the person aggrieved by the act alleged.

A similarly worded power is provided under section 64 of the Tasmanian legislation and section 81 of the A.C.T. legislation. The NSW legislation (section 90) provides that the President may at any stage decline to entertain a complaint where satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance, "or that for any other reason the complaint should not be entertained".

Other Australian jurisdictions do not provide the same broad scope for complaints to be discontinued where there is a more appropriate remedy available. In my view such a power should be provided where it is not, and more systematically and openly exercised where it is, including by using a public inquiry approach to this aspect of relevant complaints.

This approach was utilised in the public inquiry conducted by HREOC into the complaint about access to Summer Hill railway station in Sydney. After all of the issues were canvassed in the public process described above Commissioner Halliday (who at that time as portfolio commissioner still had complaint investigation powers) declined the complaint. She reasoned that it was not the role of HREOC to micro-manage the Sydney rail system. She said that if Cityrail could demonstrate that they were adequately progressing towards making the system accessible the selection of stations to be re-fitted should be made by the experts in the area, and based on more appropriate criteria than by who and where complaints were lodged.

Use of a power to terminate or discontinue complaints, on the basis of a more appropriate remedy elsewhere, raises some of the same issues as granting exemptions on this basis. The need for accountability is a reason in favour of applying a public inquiry approach to these decisions as it is with exemptions. This need is perhaps particularly acute under the Federal legislation since the recent legislative amendments meant among other things the end of the "decline review" procedure whereby the President reviewed and sometimes rejected primary decisions by a Commissioner to decline a complaint. Termination decisions are now made by the President and the review procedure is therefore no longer in existence.

The possibility of exemption applications based on an organisation's or industry's own remedies does not make redundant the issue of appropriate use of powers to terminate complaints and strategic use of the power to inquire publicly into and report publicly on whether this power should or should not be used in a particular case.

As I noted earlier, exemption applications seeking recognition of positive measures to eliminate discrimination have been rare, and there are reasons to think they may remain rare, even if anti-discrimination agencies give broader encouragement to this use of exemption powers. Complaints, however, arrive every day.

All too often, the complaints which arrive could in fact be described as the same complaint over and over again. Even if such a complaint is successfully resolved each time for each individual by conciliation processes, this does not seem to be the most efficient use of scarce anti-discrimination agency resources, and it does not indicate great progress being made in the large scale objective of eliminating discrimination.

The "habitual respondent" issue noted by Margaret Thornton is, I think, well known to all anti-discrimination agencies.

This is particularly the case with large public sector organisations. In most if not all cases these organisations have been made subject to a range of equal employment opportunity and other access and equity requirements including a range of reporting and complaint mechanisms. Some important questions, then, are:

• why are the scarce resources of specialist anti-discrimination agencies still being consumed in dealing with complaints about these organisations when other remedies and preventive measures have been provided; and
• if the other remedies and measures provided for are not being effective, why not?

These issues appear at least as important for public reporting purposes as the statistics and success stories which are more commonly reported.

Reading through decisions from HREOC as a tribunal on complaints from public sector employees in many cases shows detailed discussion of particular events between people which are not necessarily well suited to public examination, either in terms of privacy or in terms of efficient use of resources. What could be more appropriately the subject of examination though,in almost any such case, is why the matter has come before a specialist anti-discrimination body at all, in other words whether and why there are not more appropriate immediate and mainstream remedies in place.

Courts and the role of anti-discrimination agencies

Before I conclude I want to comment briefly on another aspect of discrimination cases being transferred from specialist to mainstream consideration. I mean, the cessation of HREOC’s function in hearing as a tribunal cases referred to it which could not be resolved by conciliation. This function was removed in the wake of the High Court's decision, in Brandy v Bell, that in making the Commission's decisions enforceable the previous legislation conferred judicial power on the Commission, which not being a court is not allowed under the Constitution. The result was that we were left with the Commission making decisions which were not legally binding.

The government decided in these circumstances that if complaints were not resolved by HREOC's investigation and conciliation processes they should be able to go straight to the court, without an unenforceable hearing process in between.

There has been widespread concern in the disability community and advocacy circles that this legislation would in effect mean the "death of the DDA", with the court process and in particular the prospect of costs against unsuccessful complainants being seen as too daunting.

People making these comments do not seem to have recalled the view put forward by a leading practitioner in this area, Chris Ronalds, in her 1990 discussion paper "National Employment Initiatives for People with Disabilities". This paper, which provided the real starting point for development of the DDA, included the following recommendation:

"In any development of national comprehensive legislation to provide rights in employment and other areas for people with disabilities, consideration be given to providing direct access to the Federal Court for a hearing when conciliation can not or should not proceed and that a determination by the Human Rights and Equal Opportunity Commission not be established as an integral part of the process"

Although I would insist that some valuable work has been done through the HREOC hearing process - well I would say that, wouldn't I - in a real sense all that has happened with recent legislative changes is that the DDA has returned to the enforcement scheme originally conceived for it as a result of quite extensive community consultations at the time.

Decisions under the new procedures have started coming out of the Federal Court and the Federal Magistrates Court in the last few weeks. The cases so far give very encouraging signs on several issues:

• There is no indication at this point that the Court is any slower than the Commission in getting cases heard or decided
• The cases so far do not show the judges or federal magistrates taking any narrower view than the Commission on critical issues of interpretation, either on issues of procedure (such as what can be regarded as included in the "complaint") or on substantive issues, such as whether a condition or requirement has been imposed and whether the complainant was able to comply with it, for indirect discrimination purposes
• Comments in a number of cases where the complaints were dismissed but the court decided that costs should not be awarded against the complainant, should be interesting to people concerned about the costs issue.

Obviously it is still very early days for the new procedure, but it does not sound to me as if the complaints procedure under the DDA is quite dead yet.