HREOC Annual Report 2003-2004 : Chapter 4: Complaint Handling Section
Human Rights and Equal Opportunity Commission
Annual Report 2003 - 2004
Chapter 4: Complaint Handling Section
Overview
The Complaint Handling Section (CHS) is responsible, through the President, for investigating and conciliating complaints lodged under federal anti-discrimination and human rights law. The CHS also delivers a Complaint Information Service. Accordingly, the CHS plays a key role in fulfilling the Commission's objective of delivering an Australian society in which human rights are protected.
Each year around 9 000-10 000 people from all over Australia contact the Commission's Complaint Information Service either by telephone, TTY, post, e-mail or in-person to obtain information about the law the Commission administers and the complaint process. As many enquirers are unsure which organisation can best assist them, the work of Complaint Information Service staff frequently involves providing contact details for organisations that can more appropriately deal with the enquirer's concerns. If the enquirer's concern is one that the Commission can deal with, the enquirer is provided with information on how to lodge a complaint, and is either provided with the necessary forms or directed to the Commission's website and 'on-line' complaint lodgement facility.
Once a complaint has been formally accepted by the Commission, the goal of the CHS is to manage the complaint in a timely and unbiased manner. The CHS aims to allocate complaints to an officer for action within one month of receipt. While allocation to an officer may take a little longer than this at times, cases that need priority handling are dealt with straight away. Teams of Investigation/Conciliation Officers manage complaints on behalf of the President. The management of complaints may involve requesting information and responses to complaints, taking statements, undertaking site inspections, reviewing employment and medical records, facilitating settlement negotiations and conducting conciliation conferences in various locations, including regional and remote areas of Australia. If a complaint can be resolved through conciliation the matter is closed. Many complaints are dealt with in this way as parties recognise the benefits of a process where they have direct input into how the matter is resolved without having to resort to more formal court proceedings.
Where a complaint of unlawful race, sex, disability or age discrimination is unable to be resolved through a conciliation process or where the President is of the view that the complaint is, for example, lacking in substance or better dealt with by another organisation, the complaint will be terminated. Both parties to a complaint are advised in writing of the President's decision regarding a complaint. After a complaint is terminated, the complainant may decide to pursue the matter before the Federal Court of Australia or the Federal Magistrates Court.
Complaints that allege a breach of human rights or discrimination under the Human Rights and Equal Opportunity Commission Act 1986 cannot be taken to court. Complaints under this Act which have not been declined and are unable to be resolved through conciliation may be subject to a report to the Attorney-General and subsequent tabling in Parliament.
In 2003-04:
- 1 113 complaints were received
- 1 229 complaints were finalised
- 38 percent of finalised complaints were conciliated
- 85 percent of complaints were finalised within 12 months of lodgement
- 9 669 telephone/post/e-mail/TTY/in-person enquiries were received through the Complaint Information Service
A diagram of the complaint handling process is provided at Appendix 4.
Access to complaint services
The CHS aims to facilitate broad community access to its information and services. In meeting this challenge the CHS provides the following:
- The Complaint Infoline 1300 656 419 (local call charge) is open Monday - Friday between 9.00 am and 5.00 pm. This service offers enquirers the opportunity to call and discuss allegations of discrimination with a Complaint Information Officer. Enquirers can also e-mail complaintsinfo@humanrights.gov.au
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CHS webpage: www.human rights.gov.au/complaints_information/
This webpage provides the general public and potential users of the service with information about the Commission's complaint handling role and the complaint process. The webpage includes information on how to lodge a complaint, a complaint form, frequently asked questions about complaints and a conciliation register. The conciliation register contains de-identified information about the outcomes of conciliated complaints. The CHS webpage received 94 816 page views during this reporting year. - On-line complaint form. This service, which allows complaints to be lodged electronically, continues to be well utilised.
- Concise Complaint Guide. This can be accessed on the CHS webpage and downloaded in 14 community languages.
- Interpreter and Translation services. In the past reporting year the section utilised a range of interpretation and translation services. The main language groups assisted in 2003-04 were Farsi/Dari, Vietnamese and Arabic.
- Access working group. During this reporting year the CHS access working group provided training to Commission staff and staff of other anti-discrimination Commissions on service provision for complainants with an intellectual disability. The group also developed a plain English information sheet which explains the process by which complainants can lodge an application with the Federal Court or Federal Magistrates Court. This information sheet can also be downloaded from the Commission's webpage at: www.humanrights.gov.au/complaints_information/guides/court.html
- The Commission has formal arrangements with the Victorian Equal Opportunity Commission, the Queensland Anti-Discrimination Commission, the South Australian Equal Opportunity Commission, the Northern Territory Anti-Discrimination Commission and the Western Australia Equal Opportunity Commission, whereby CHS staff utilise facilities at these agencies for conciliation conferences, community education or training and display of CHS publications. The Commission also has informal arrangements with the Tasmanian Anti-Discrimination Commission and the Australian Capital Territory Human Rights Office.
- Conciliation circuits. Conciliation officers travel throughout Australia to conduct face-to-face conciliation conferences. Along with the conferences conducted in the greater Sydney area in this reporting year, CHS officers conducted 37 conferences in regional NSW (including Coffs Harbour, Wagga Wagga, Tamworth and Bourke); 77 in Victoria (including Melbourne Geelong, Bendigo and Benalla); 54 in South Australia (Adelaide and Port Augusta); 33 in Queensland (including Brisbane, Cairns, Hervey Bay, Toowoomba and Gin Gin); 18 in Western Australia (Perth and Newman); 11 in the Australian Capital Territory; nine in the Northern Territory (Darwin, Alice Springs and Katherine) and one in Tasmania.
Election of jurisdiction
In the majority of cases complainants have a choice to either complaints under either state or federal anti-discrimination law. The Commission has produced an information sheet about this process which is available on the Commission's website at: www.humanrights.gov.au/complaints_information/guides/jurisdiction.html
Key performance indicators and goals
- Timeliness - the section's stated performance measure is for 80 percent of complaints to be finalised within 12 months of date of receipt. In 2003-04, the CHS finalised 85 percent of matters within 12 months and the average time from receipt to finalisation of a complaint was seven months. A detailed breakdown of timeliness statistics by jurisdiction is provided in Table 11.
- Conciliation rate - the section's stated performance measure is for 30 percent of finalised complaints to be conciliated. In 2003-04, the section achieved this goal with a 38 percent conciliation rate.
- Customer satisfaction survey - the section's stated performance measure is for 80 percent of parties to be satisfied with the complaint handling process. Data for the past year indicates that 89 percent of parties were satisfied with the service they received and 57 percent rated the service they received as 'very good' or 'excellent'. Further details of survey results for this reporting year are provided below.
Customer satisfaction survey
Since 1997, the CHS has sought feedback on the complaint process from people lodging complaints (complainants) and people responding to complaints (respondents). This feedback is obtained by means of a Customer Satisfaction Survey which is predominately undertaken by telephone interview. Survey results for the period 1 July 2003 to 30 June 2004 indicate that:
- Eighty seven (87) percent of complainants and 93 percent of respondents felt that staff explained things in a way that was easy for them to understand.
- Eighty eight (88) percent of complainants and 95 percent of respondents felt that forms and correspondence from the Commission were easy to understand.
- Sixty five (65) percent of complainants and 81 percent of respondents felt that the Commission dealt with the complaint in a timely manner.
- Eighty three (83) percent of complainants and 93 percent of respondents described staff as unbiased.
In comparison with the last reporting year, there have been improved satisfaction ratings from complainants and respondents on the majority of the above measures.
Service Charter
The CHS's Service Charter provides a clear and accountable commitment to service. It also provides an avenue through which users can understand the nature and standard of service they can expect and contribute to service improvement. All complainants are provided with a copy of the Charter and respondents receive a copy when they are notified of a complaint against them.
In the 2003-04 reporting year, the Commission received three complaints about its services through this mechanism. It is noted that where parties have concerns about the complaint handling process, they are generally able to resolve their concerns through discussions with the officer handling the complaint.
Education and Promotion
The CHS also contributes to the Commission's function of promoting an understanding and acceptance of human rights. The CHS undertakes this through the activities outlined below.
Community education
In this reporting year, around 120 organisations throughout all states and territories attended information sessions on the law and the complaint handling process. The CHS Indigenous Information/Liaison Officer also met with around 90 different people/organisations during this year.
The organisations visited by CHS staff included: community legal centres, Aboriginal legal centres, multicultural organisations, universities, disability groups, professional associations and unions. The regions covered included: Lismore, Bourke, Armidale and Liverpool in New South Wales; Melbourne, Ballarat, Bendigo and Geelong in Victoria; Hobart and Launceston in Tasmania; Brisbane, Inala and Southport in Queensland; Perth, Geraldton, Newman, and Fremantle in Western Australia; Darwin and Katherine in the Northern Territory, and Adelaide, Mount Gambier and Port Augusta in South Australia.
Video/DVD on the conciliation process
During this reporting year, the CHS finalised a joint project with Job Watch Incorporated Victoria to develop a video/DVD on the Commission's conciliation process. The video/DVD entitled 'Pathways to Resolution' was produced by a professional production company with the input of CHS staff and staff of complainant and respondent advocacy groups, Job Watch Incorporated and Employers First. This audio-visual resource provides information for the general public and for complainants, respondents and advocates who may be involved in the complaint process. The video/DVD includes an explanation of what types of matters may come to the Commission, the process by which complaints will proceed to conciliation and the steps that may be taken if a complaint cannot be resolved through conciliation. With reference to an example case study, the video provides parties with an overview of a conciliation conference, outlines steps to take in preparation for conciliation, and demonstrates positive approaches to discussing issues and negotiating resolution outcomes.
The video/DVD was launched by the President in Sydney in March 2004. The President also undertook subsequent launches in Adelaide in conjunction with the South Australian Equal Opportunity Commission, and in Perth in conjunction with the Western Australia Equal Opportunity Commission. The Sex Discrimination Commissioner undertook a launch in Melbourne in conjunction with JobWatch Incorporated.
Captioned and uncaptioned versions of the video/DVD are available from the Commission, and a number have been distributed to legal and advocacy agencies and government departments throughout Australia. The video/DVD is provided on loan to complainants, respondents and advocates who are currently involved in complaints before the Commission. Sections of the video/DVD can also be viewed on the Commission's webpage at: www.humanrights.gov.au/pathways_to_resolution/index.html
Training
The Commission has two specialised training programs which provide knowledge and skills in statutory investigation and conciliation. All complaint handling staff are required to undertake these courses and the CHS also provides training to other organisations.
In February 2004, a statutory conciliation course was run in Sydney for Commission staff and staff of anti-discrimination agencies in New South Wales, South Australia, the Australian Capital Territory, Queensland, the Northern Territory and staff of the Office of the Federal Privacy Commissioner. In this reporting year, variations of the Commission's standard courses were also run for staff of a large independent complaint agency and a private education authority.
The Commission has, for the third year, worked in partnership with the Australian Public Service Commission to provide a two-day investigation training course for federal public servants. This course, which is a variation of the Commission's standard statutory investigation training program, provides theory and skills that can be applied to the investigation of internal complaints and breaches of the Australian Public Service Code of Conduct. In the past year, six such courses have been delivered in various locations around Australia, including Canberra, Melbourne, Brisbane and Adelaide. An in-house course was also conducted in Sydney for staff of a large Commonwealth Government department.
Research and policy
The Commission's Complaint Procedures Manual was revised and updated during 2003. The revised version was published in January 2004.
During 2003-04, senior CHS staff members contributed to presentations at the Community Legal Centres' National Conference in Hobart. CHS staff also presented papers at the National Anti-Discrimination /Equal Opportunity Commissions' Complaint Handlers/Legal Officers Conference in Melbourne, the Certified Practicing Accountants' Employment Symposiums in Sydney, Melbourne and Brisbane, and the National Mediation Conference in Darwin. A collection of some of these papers are found on the Commission's website at: www.humanrights.gov.au/complaints_information/papers.html
In this reporting year, five CHS officers continued study towards Certificate IV accreditation in Assessment and Workplace Training. Staff of the CHS also attended various seminars and training courses relating to their work. These included training in Auslan, 'Industrial Relations and the Law' seminars conducted by the University of Sydney, Australian Government Solicitor Law Group Seminars, the Community Legal Centres' National Conference, the National Anti-Discrimination/Equal Opportunity Commissions' Complaint Handlers/Legal Officers Conference, and the National Mediation Conference.
International activities
In this reporting year, the Commission's CHS was awarded a tender by the Asia Pacific Forum of National Human Rights Institutions to provide investigation training for staff of the Sri Lankan Human Rights Commission. This project involved the development and presentation of a five-day training course in human rights investigation which took place in Colombo from 8-12 November 2003. Thirty-four staff from central and regional human rights offices in Sri Lanka attended the course, which was conducted in English with simultaneous translation into Sinhalese and Tamil.
In November 2003, a senior CHS staff member attended the 'Roundtable on National Institutions and the Administration of Justice' in Copenhagen to participate in discussions about best practice in the investigation and resolution of complaints, complaint recording and reporting.
In February 2004, the Director of the CHS provided a briefing on best practice in complaint handling and measuring performance to senior executives as part of the 8th Annual Meeting of the Asia Pacific Forum of National Human Rights Institutions held in Kathmandu, Nepal.
During this reporting year, CHS staff also participated in providing information about the Commission's complaint handing work to visiting delegations from New Zealand, Mongolia, Iran, China, Japan and Vietnam. These delegations included representatives from human rights institutions, parliamentary and government institutions and non-government organisations.
Conciliation case studies1
Racial Discrimination Act
Under the Racial Discrimination Act 1975 it is unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. The Act also prohibits offensive behaviour based on racial hatred.
In this reporting year, the Commission received 159 complaints under the Racial Discrimination Act. The majority of these complaints related to employment, the provision of goods and services or racial hatred. The CHS finalised 185 complaints under this Act and 24 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Racial Discrimination Act are provided later in this chapter.
Alleged racial hatred in employment
The complainant, who is Aboriginal, claimed that while he was visiting a local Police Station as part of his work role, he was offended and humiliated when he overheard police officers making negatives remarks about Aboriginal people. Specifically, the complainant claimed that during a 10-minute period, one officer made the remark "f . . . Abo" at least "ten to fifteen times".
The police station confirmed that it had undertaken an investigation which supported the complainants allegations and recommended disciplinary action be taken against the officer who made the remarks. The officer concerned concurred that he made the alleged comments, but claimed that they were not directed towards the complainant but made with reference to certain Aboriginal young people who had stolen property from his car a few weeks earlier.
The complaint was resolved at a conciliation conference on the basis of a personal apology from the officer concerned and an ex-gratia payment of $2 000 and a statement of regret provided by the department.
Complaint of racial hatred at local club
The complainant, who is of Spanish origin, alleged that he was subjected to offensive comments based on his race when he attended a local club. Specifically, the complainant claimed that when speaking in Spanish with a family member the respondent called him a "wog" told him to speak English and said "Go back to your country".
The respondent claimed that he did not recollect the incident as he had been drinking on the day in question. He said that he may or may not have made the alleged comments.
The complaint was resolved by the complainant accepting an apology from the respondent.
Complaint of discrimination on the grounds of race and religion
The complainant claimed that he was discriminated against in his employment with a large manufacturing company because of his Jewish origin and religious beliefs. In particular, he claimed that while other casual employees were made permanent and new employees were employed, his appointment as a permanent employee was delayed for several months. He also claimed that his computer username was changed from his surname to 'Hitler's failure', and following this incident his wage payments were late and/or incorrect.
The company concurred that the computer username incident took place but denied that the complainant was treated less favourably by the company because of his race and/or religious beliefs. The company advised that the computer incident was investigated but the responsible person could not be identified and the company had apologised to the complainant regarding this incident. The company submitted that the disputes concerning the complainant's employment status and wages were resolved prior to the complaint being lodged with the Commission.
The complaint was resolved through a conciliation process. The employment relationship had broken down and the complaint was resolved on the basis of the complainant accepting an ex-gratia payment of $12 500 and payment of accrued annual leave entitlements.
Allegations of racial hatred in employment
The complainant, who is of Aboriginal descent, claimed that during her employment in an administrative position with a large transport company she was subjected to acts of racial hatred by unidentified staff. Specifically, the complainant claimed that someone left written messages on her desk saying 'G'lly Wog leave work early' and 'Black bitch'. The complainant resigned from her employment following the alleged incident.
The company stated that an investigation was conducted into the complainant's allegations but the responsible staff member(s) could not be identified.
The complaint was resolved through a conciliation process with the complainant accepting an ex-gratia payment of $3 000 and the company's commitment to revise its harassment policy within six months and introduce cross-cultural training within 12 months.
Complaint of sex and race discrimination in employment
The complainant, who is of Bosnian descent, was employed by a large private company as an engineer. She alleged that she was harassed and ostracised by staff, yelled at and belittled and eventually dismissed from employment. She claimed that she was removed from a project and told "it is work for a man not a woman" and was paid less than a man for doing the same work. She claimed that comments were made to her such as "Do not be scared, he is not Milosevic" and you "must behave politely in the country where there exists a much higher level of culture than in Bloody Bosnia". The complainant also alleged that she was told she did not have anything to contribute to a project because she was from "these Eastern countries".
The respondent company denied that the complainant was discriminated against because she was female and claimed that the complainant did not have the relevant supervisory skills for the position. The respondent stated that the complainant was not subjected to harassment on the basis of her race and denied that the alleged comments relating to the complainant's ethnic background were made. The respondent also advised that it had comprehensive affirmative action and anti-discrimination policies and was committed to diversity in the workplace. The respondent claimed that the complainant ceased work to travel overseas.
The matter was resolved through a conciliation process, with the respondent company agreeing to pay the complainant the sum of $20 000 compensation in full and final settlement of the complaint.
Complaint of racial hatred in employment
The complainant, who is of Indian descent, is employed as a carer at a Community Aged Care Centre. The complainant claimed that a resident of the centre subjected her to racial abuse on several occasions, including in the presence of other staff members, calling her a "black bitch", a "f . . . bitch" and suggesting that she return to India. The complainant stated that she was offended, insulted, humiliated and intimidated because of these comments about her racial background.
The respondent acknowledged that his comments were offensive and hurtful to the complainant and he apologised for his behaviour. He claimed that when the comments were made he was experiencing personal difficulties and problems with other residents and staff.
The complainant accepted a written apology from the respondent to resolve her complaint.
Sex Discrimination Act
Under the Sex Discrimination Act 1984 it is unlawful to discriminate against a person on the ground of their sex, marital status, pregnancy or potential pregnancy in many areas of public life including employment, education, provision of goods services and facilities, accommodation, clubs and in the administration of Commonwealth laws and programs. It is also unlawful to dismiss a person from their employment on the ground of their family responsibilities. Further, sexual harassment is unlawful in a variety of areas of public life, including employment, educational institutions, the provision of goods, services and facilities, registered organisations, the provision of accommodation, clubs and in dealings concerning land.
In this reporting year, the Commission received 353 complaints under the Sex Discrimination Act. The large majority of complaints related to employment. Twenty-eight percent of the complaints alleged pregnancy discrimination and a further 28 percent alleged sexual harassment. The Commission finalised 382 complaints under this Act and 47 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Sex Discrimination Act are provided later in this chapter.
Complaint of discrimination on the grounds of sex and pregnancy in employment
The complainant was employed as a solicitor with a large human resources and recruitment firm. The complainant claimed that while she was on 12 months maternity leave her position was permanently filled and the position she was given on her return to work was not commensurate in status to the one she had held prior to taking maternity leave. In particular, the complainant alleged that on returning to work she was not able to resume her former management responsibilities, was not provided with secretarial support and was refused access to her office, files, work material and contact with former colleagues. The complainant claimed that her employer relocated her to another office without good reason and at this office she was not provided with equipment or an appropriate work space. The complainant lodged a complaint with the Commission and did not return to work.
The respondent company claimed that while the complainant was on maternity leave a radical downsizing of the company took place, including a restructure of the legal department. The company denied that the complainant's position was filled permanently and advised that solicitors were employed on a contract basis to fill the complainant's position. The company denied that the complainant was treated less favourably because of her pregnancy and associated maternity leave.
The complaint was resolved through conciliation with the respondent agreeing to pay the complainant $61 000 inclusive of general damages and legal costs.
Alleged sexual harassment in employment
The complainant, who was employed as a bar attendant in a local club alleged sexually harassment by a co-worker. In particular, she alleged that the employee talked incessantly about his penis, simulated masturbation, held his genitals and asked the complainant questions of a sexual nature. The complainant stated that she complained to the Chief Executive Officer of the company about the co-worker's behaviour but no appropriate action was taken to address her concerns. The complainant chose not to return to employment after the alleged events and was considered by the employer to have abandoned her employment.
At a conciliation conference held by the Commission, the individual respondent admitted liability and apologised to the complainant both verbally and in writing. The complaint was resolved on the basis of these apologies and an agreement by the company to pay the complainant $23 000 and undertake sexual harassment training for staff.
Complaint of sex discrimination in employment with educational institution
The complainant alleged that she was discriminated against on the basis of her sex and victimized during her employment at the respondent educational institution where he worked as a lecturer. The complainant alleged that her supervisor had made negative remarks about the ability of women to work in the profession and written a report which negated her work and the work of other women in the field. The complainant claimed that her tenure confirmation was postponed, that she was set unachievable research targets, had a higher than average teaching load and was given less space, funds and technical support than male members of staff. Her allegations also included that she was not selected for promotion despite meeting the requisite qualifications and level of performance and was not offered acting higher duties. The complainant stated that as a result of an internal complaint she was finally given a promotion but the action taken by the institution did not address the stress and lost opportunities she had suffered.
The complainant's supervisor denied making the alleged comments and said that he had only made suggestions about how the complainant could strengthen her case for tenure. The respondent institution claimed that the complainant's tenure was postponed because her application was premature. The institution confirmed that the complainant had a relatively high teaching load but stated that this due to the demand for staff with particular expertise. The institution also claimed that the complainant was provided with the same opportunities for space, funds and technical support as everyone else. The institution advised that the complainant was not offered acting higher duties because there were other staff who were more senior at the time and that she was not initially offered a promotion because she had not reached the requisite targets. The institution stated that an internal review of the promotion decision found that while there was no collective bias by the selection committee, there may have been an apprehension of bias by the complainant's supervisor, who was also a member of the committee.
The complaint was resolved through a conciliation process. The terms of resolution included an apology to the complainant and payment of $22 500 in general damages plus legal costs.
Complaint of pregnancy discrimination in employment
The complainant was employed in a training role with a large communications company. The complainant alleged that while she was on maternity leave her position was filled on a permanent basis and there was no comparable role for her to return to at the end of her leave. The complainant also alleged that she requested to return to work on a part-time basis but that this was refused without discussion. The complainant claimed that the company's payroll office advised her that she had abandoned her employment as she had not lodged an application form for her maternity leave. The complainant subsequently resigned from her employment.
The respondent claimed that the complainant's role was not permanently filled while she was on maternity leave but a more senior person, who had been made redundant from another section of the respondent organisation, was temporarily placed in the role. The respondent stated that it was still in the process of assessing redeployment options for the complainant when the complaint of pregnancy discrimination was lodged with the Commission. The company claimed that while there was scope for employees returning from maternity leave to undertake part-time work, no part-time opportunities were available in the area where the complainant worked. The respondent conceded that its payroll office had mistakenly advised the complainant that it was of the view that she had abandoned her employment as her maternity leave application form had been misplaced.
The matter was resolved through conciliation with the complainant agreeing to withdraw her complaint in return for payment of $6 000.
Alleged pregnancy discrimination in the provision of goods and services
The complainant stated that when she was 14 weeks pregnant, she applied to participate in an outdoor adventure program and advised the associated company that she was medically fit to do so. The complainant claimed that she was told she could not participate in the program as it was the company's policy to exclude pregnant women. The complainant alleged that this approach was unfair as it did not allow for consideration of individual circumstances.
Upon receipt of the complaint, the company engaged two medical experts to provide advice regarding amendments to their policy to allow pregnant women to participate in the adventure program. On the basis of this advice, the company drafted a document outlining the changes it planned to make to allow pregnant women to participate on certain conditions. This document was provided to the complainant and discussed at length at a conciliation conference convened by the Commission. The parties agreed on changes to the policy and a time frame for their implementation.
Alleged sexual harassment in employment
The complainant, who was employed by a large Commonwealth Government agency, alleged sexual harassment by her manager. The complainant also alleged that the department was vicariously liable for the actions of the manager. The complainant alleged that her manager told her that she was very attractive, asked her out on a few occasions and often acted inappropriately toward her. She also claimed that he told sexually explicit jokes, discussed sex shows that he said he frequented and had sexually explicit photos in the workplace. The complainant resigned from her position and claimed that when her personal belongings were returned to her the package contained sexually explicit photos belonging to the individual respondent.
The government agency claimed that the complainant had not advised anyone of her allegations at the time or when she left the agency and therefore it had been unable to deal with the allegations. The agency also claimed that it had comprehensive polices about sexual harassment and staff were trained in these policies during their initial induction. While the individual respondent denied the allegations, he conceded that the photos in the package sent to the complainant belonged to him.
The matter was resolved through a conciliation process. The complainant agreed to withdraw her complaint in return for payment of $45 000 compensation, a statement of service from the agency and a work reference from the individual respondent.
Disability Discrimination Act
Under the Disability Discrimination Act 1992 it is unlawful to discriminate against a person on the ground of their disability in many areas of public life including employment, education, provision of goods, services and facilities, access to premises, accommodation, clubs and incorporated associations, dealing with land, sport and in the administration of Commonwealth laws and programs. It is also unlawful to discriminate against a person on the ground that they are an associate of a person with a disability and it is unlawful to harass a person because of their disability.
In this reporting year, the Commission received 483 complaints under the Disability Discrimination Act. The majority of these complaints concerned employment and the provision of goods, services and facilities. The Commission finalised 491 complaints under this Act and 43 percent of these finalised complaints were conciliated. Detailed statistics regarding complaints under the Disability Discrimination Act are provided later in this chapter.
Allegation of discrimination in employment because of medical condition
The complainant advised that she had been employed by the respondent manufacturing company for three years when she took seven weeks leave to undergo a hysterectomy and recover from surgery. The complainant claimed that the week before she was due to return to work she was advised that her position had been made redundant. She claimed that it was not a genuine redundancy and that no other employee had been made redundant. The complainant noted that there were several casual employees who should have been the first to be terminated if there was any downturn in business. The complainant alleged that her employment was terminated because she had taken time off work for medical reasons.
The respondent denied discriminating against the complainant on the ground of disability. The respondent agreed that no other person had been made redundant, but stated that one person who had left voluntarily had not been replaced. The respondent stated that the complainant was selected for redundancy because business had declined in the section in which the she worked and not in other sections.
To settle the complaint the respondent agreed to pay the complainant $8 000 and to provide her with a written apology and a statement of service. The respondent also agreed to provide staff training on anti-discrimination issues.
Complaint regarding access to fun park
The complainant complained on behalf of her daughter who has a physical disability and uses a wheelchair. The complainant claimed that when her daughter attended the fun park as part of an excursion, she was refused access to rides because she needed assistance to get on and off the rides.
The respondent company claimed that the complainant's daughter was refused access to two rides as she was unable to enter and exit the rides without assistance and that this action was consistent with relevant safety requirements. The respondent stated that since being advised of the complaint it had reviewed its rides and adjusted the physical requirements to allow people with disabilities to be assisted to enter and exit a number of rides.
The complaint was resolved through a conciliation process. The complainant agreed to withdraw the complaint and the respondent company agreed to pay the complainant's daughter $5 000 general damages and offer a disability organisation 50 free tickets each year for the next three years. The respondent company also agreed that within the next 12 months, it would implement an escort program which would allow people with disabilities to be offered selected seating at shows and therefore avoid waiting for long periods in queues.
Allegation of discrimination on the ground of visual disability in employment
The complainant has a minor visual disability. She claimed that she was interviewed for a position with the respondent government agency and employment was conditional upon her completing a successful pre-employment medical assessment. The complainant claimed that her completed medical assessment form contained the notation "further assessment recommended", but this was not followed through. The complainant alleged that the examining medical officer advised the employer that her visual disability precluded her from being employed.
After receipt of the letter of inquiry from the Commission, the respondent company arranged for a detailed assessment of the complainant's visual capabilities with reference to the specific duties of this position she was interviewed for.
The complaint was resolved at a subsequent conciliation conference. The complaint was offered, and accepted, employment with the respondent company. The company also agreed to pay the complainant $20 850, which was calculated on the basis of economic loss equivalent to what the complainant would have earned had she been employed at the time of her application and compensation for stress and anxiety.
Complaint regarding provision of cinema services for people with hearing impairments
The complainants who have hearing impairments, alleged that they were denied equal access to services and facilities provided by the respondent cinema. The complainants claimed that the respondent cinema did not have hearing augmentation systems for hearing impaired persons and therefore they could not hear the sound track of films shown in the cinema.
After considering the complaint, the respondent cinema company agreed to install infra red hearing aid systems in all its cinemas. The company also agreed to maintain the systems, install signage and train staff in the operation of the systems. The complainants visited the cinema after the hearing augmentation system was installed and were happy to withdraw their complaint on the basis of the action taken by the company.
Complaint of discrimination against child with Autism Spectrum Disorder
The complaint was made by parents on behalf of their son who has Autism Spectrum Disorder and other severe learning difficulties. The parents claimed that the government primary school their son attended was unwilling to act upon the requests of other professionals involved in their son's welfare and that his teacher failed to understand autism. The parents alleged that the school blocked their son's progress, made derogatory comments about him and did not fully carry out the requirements of his Individual Education Plan.
The respondent school claimed that the Principal had meet numerous times with the complainants and that they were often reacting to a version of what their son thought had happened at school. The respondent claimed it provided reasonable accommodation for the complainants' son, which included participation in a social skills group, development of a special speech program and provision of extra support from an aid who worked in his classroom.
The complaint was resolved through a conciliation process. The parents agreed to withdraw the complaint on the basis that the school would provide them with a statement of regret and $500 in acknowledgement of the difficulties they experienced during the previous school year. It was also agreed that if the complainants' son is assessed as requiring ongoing integration support he will receive this and the school will be provided with $2 000 for speech therapy for him for the next two and a half years.
Allegation of discrimination in employment because of psychiatric illness
The complainant states that he has a psychiatric illness, schizophrenia, and that when his disability had stabilised and he was fit for work, he applied through an employment agency for casual work at a local factory. The complainant claimed that he disclosed his disability at the job interview and was advised that he would not be employed because others with psychiatric illnesses who had been referred by the employment agency 'had not worked out'.
The employment agency denied that the complainant had been refused employment on the basis of his disability. The agency stated that the complainant was unsuccessful because he had no recent work references and the referees he had provided could not be contacted. The agency claimed that the complainant was advised that he would need to provide medical evidence that he was fit to work in the particular work environment.
The complaint was resolved on the basis of the respondent employment agency agreeing to reconsider additional information provided by the complainant, including references from recent work experience programs and support services and current medical evidence as to his fitness for work. The complainant was eventually offered employment.
Human Rights and Equal Opportunity Commission Act
Complaints under the Human Rights and Equal Opportunity Commission Act 1986 are not subject to the same process as complaints under the Racial, Sex and Disability Discrimination Acts.
Under this Act, the President can inquire into and attempt to conciliate complaints that concern alleged breaches of human rights by, or on behalf, of the Commonwealth. Human rights are defined in the Act as rights and freedoms contained in any relevant international instrument which is scheduled to or declared under the Act. They are the:
- International Covenant on Civil and Political Rights
- Declaration on the Rights of the Child
- Declaration on the Rights of Mentally Retarded Persons
- Declaration on the Rights of Disabled Persons
- Convention on the Rights of the Child, and
- Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief.
Under the Act the President can also inquire into and endeavour to conciliate complaints of discrimination in employment on specific grounds. These grounds include age, religion, sexual preference, trade union activity and criminal record.
If a complaint of alleged discrimination or alleged breach of a human right is neither conciliated nor declined, the President can undertake further inquiry. If the President is satisfied that the subject matter of the complaint constitutes discrimination in employment or is a breach of a human right, the President must report the findings to the Attorney-General for tabling in Parliament. The Commission's Legal Services assists the President in this part of the process. Further details of this process are provided in the Legal Section report in Chapter 5.
In this reporting year, the Commission received 118 complaints under the Human Rights and Equal Opportunity Commission Act. The majority of these complaints concerned alleged breaches of the International Covenant on Civil and Political Rights and discrimination in employment based on criminal record or age or trade union activity. The Commission finalised 171 complaints under this Act. Twenty-one percent of these finalised complaints were conciliated and nine percent were referred for reporting. Detailed statistics regarding complaints under the Human Rights and Equal Opportunity Commission Act are provided later in this chapter.
Complaint of religious discrimination in employment
The complainant claimed that he was being discriminated against on the basis of his religious belief in his employment as a driver with a large private transport company. The complainant advised that he attends church twice on Sundays, once in the morning and once in the afternoon, and according to his religious beliefs, cannot work on Sundays. He said that he had been with the company for more than 20 years and his religious beliefs had been respected in that he had not been required to work on Sundays. He claimed, however, that after a recent change in management there had been several occasions when he had been rostered to work on Sundays. The complainant said that he offered to work on Sundays until 6am and from 6pm onwards, however this offer was not accepted by the company.
Upon being notified of the complaint, the company arranged to discuss the matter privately with the complainant and a workable solution was reached whereby the complainant did not have to work on Sundays.
Alleged discrimination in employment on the ground of age
The complainant applied for a place in a graduate program offered by a large private company. The complainant was unsuccessful in his application and the reason cited was that the company was not considering applications from mature applicants.
In their response to the Commission's inquiries, the company confirmed that age was a factor in the decision not to assess the complainant's application. The company claimed that being under 23 years of age was an inherent requirement given that applicants they would need to interact with other graduates of a similar age. The respondents advised that this particular graduate program was the only one within the company where age was a relevant factor.
The complaint was resolved through a conciliation process. The complainant agreed to withdraw his complaint and the company agreed to pay the complainant an amount of $4 000 in general damages.
Complaint of discrimination in employment because of criminal record
The complainant was employed by a local government organisation as a field officer. He claimed that he disclosed that he had a previous conviction for assault when he applied for the position. He alleged that four weeks after commencing employment he was dismissed because of his criminal record.
The respondent organisation claimed that the complainant had a previous conviction for indecent language and this conviction had not been disclosed. The organisation agreed that the complainant's criminal record was the reason for his dismissal, but claimed that as the complainant's criminal record was relevant to the inherent requirements of the position, the decision to terminate his employment was not discriminatory.
The complaint was resolved through a conciliation process, with the respondent organisation agreeing to pay the complainant six weeks salary and provide a statement of regret.
Complaint by federal prisoner
The complainant is a federal prisoner of Hindu faith. The complainant claimed that he was not given proper food in accordance with his faith.
This complaint was dealt with through an early conciliation process which involved the Commission contacting the prison regarding the issues raised in the complaint and the prison agreeing to inquire into the matter and ensure that the complainant's concerns were addressed.
The complainant subsequently informed the Commission that the prison had taken action to ensure that he was provided with food in accordance with his religious beliefs.
Alleged discrimination in employment because of trade union activity
The complainant was employed as a Customer Services Officer with a large private transport company and was the trade union delegate in her workplace. The complainant claimed that in her role as union delegate she raised a number of concerns with management about occupational health and safety and staff entitlements. The complainant alleged that she expressed an interest in a number of promotional opportunities but was overlooked because of her trade union activity. The complainant advised that she had raised her concerns about this with a senior manager but was told that she "was always involved in trouble and was now a troublemaker".
The respondent company denied that the complainant was overlooked for promotions because of her trade union activity and the senior manager denied that the alleged comment was made to the complainant. The company claimed that the complainant was not offered a promotion because her work performance had steadily declined. The company also stated that the complainant was not getting along with staff members and had recently been counselled about her continued late arrival at work.
The complaint was resolved through a conciliation process. The complainant indicated that she wanted to resign and would be prepared to withdraw her complaint if she received her long service leave entitlements. The company agreed to provide the complainant with the entitlements that she had accrued to date.
Complaint of sexual harassment and discrimination on the ground of sexual preference
The complainant alleged that during his six years of employment as a sales representative with a building supply company he was sexually harassed and discriminated against on the basis of his sexual preference. The complainant alleged that other employees grabbed his penis and placed a poster on the staff notice board which characterised him as 'Mr HIV'. He also alleged that he was paged over the intercom system as "Mr Gay" and he claimed that his sexuality became a topic of daily discussion. The complainant advised that he resigned because of the harassment he experienced.
The respondent company denied that the complainant was sexually harassed or discriminated against because of his sexual preference. The company concurred that an offensive poster was placed on the staff notice board, but advised that this was removed and staff were counselled about such behaviour.
A conciliation conference was held and the parties reached an agreement to resolve the complaint. The terms of resolution involved the complainant agreeing to withdraw the complaint and the respondent agreeing to provide the complainant with an ex-gratia payment of $6 000, a statement of service and a statement of regret.
Age Discrimination Act
The Age Discrimination Act 2004 came into effect on 23 June 2004. Under this Act it is unlawful to discriminate against a person on the ground of their age or age group in many areas of public life including employment, provision of goods services and facilities, education, accommodation, access to premises and the administration of Commonwealth laws and programs. The procedures for handling complaints lodged under this Act are the same as the procedures for handling complaints of unlawful racial, sex and disability discrimination.
In this reporting period, the Commission received only one complaint under this Act. Accordingly, no statistics or conciliation information is included in this report. Full reporting of complaints under this Act will be included in the 2004-05 Annual Report.
Complaint handling statistics
Preliminary comments
The following statistical data provides information on enquiries handled by the Commission this reporting year, an overview of complaints received and finalised and specific details on complaints received and finalised under each of the Acts administered by the Commission.
It is important to note, when comparing complaint data between different agencies and across reporting years, that there may be variations in the way the data is counted and collected. Some additional information explaining the Commission's approach to statistical reporting is footnoted. Further clarification about complaint statistics can be obtained by contacting the CHS.
Summary
The overall number of complaints received and finalised in 2003-04 is slightly lower than the numbers received and finalised in the previous reporting year.
In 2003-04, 43 percent of complaints were lodged under the Disability Discrimination Act, 32 percent under the Sex Discrimination Act, 14 percent under the Racial Discrimination Act and 11 percent under the Human Rights and Equal Opportunity Commission Act.
There has been a decrease (13%) in the number of complaints received under the Racial Discrimination Act in 2003-04. As in the previous reporting year, employment and the provision of goods and services remain the main areas of complaint.
In comparison with the previous reporting year, there has also been a decrease (7%) in the number of complaints lodged under the Sex Discrimination Act. As in previous reporting years, sexual harassment (28%) and pregnancy discrimination (28%) are the main grounds of complaint and the vast majority of complaints relate to alleged discrimination in the area of employment (88%).
The number of complaints received under the Disability Discrimination Act in 2003-04 is consistent with figures for the previous reporting year. Once again, the main areas of complaint are employment (54%) and the provision of goods, services and facilities.
Complaints under Human Rights and Equal Opportunity Commission Act have decreased by 35 percent compared to the previous year. The overall decrease in complaints under this Act over the past three years can, in part, be attributed to the associated decrease in complaints received about conditions and treatment in immigration detention, which is reflective of the decreased number of detainees in Australia during the past reporting year. As noted previously, this decrease in complaints may also be the result of complaints of discrimination on the grounds of sexual preference, religion and trade union activity being taken under state or territory legislation where enforceable remedies are available.
Of all the complaints finalised in this reporting year, 38 percent were conciliated. Over the past two reporting years there has been an eight percent increase in the conciliation rate. There was also a further slight increase in the conciliation success rate this year with 65 percent of matters where conciliation was attempted being successfully resolved. In this reporting year, complaints under the Sex Discrimination Act had the highest conciliation rate (47%) and a high conciliation success rate (64%). Complaints under the Disability Discrimination Act had a conciliation rate of 43 percent and shared the highest conciliation success rate (70%). Complaints under the Racial Discrimination Act had a conciliation rate of 24 percent which is a nine percent increase in comparison with the previous year. There was also a 10 percent increase in the conciliation success rate for these complaints (51%). In this reporting year, 21 percent of complaints lodged under the HREOCA were successfully resolved which is an 11 percent increase in contrast with 2002-03 figures. There was also an increase in the conciliation success rate for HREOCA matters with 70 precent of matters where conciliation was attempted being resolved. HREOCA complaints that relate to alleged breaches of human rights by the Commonwealth generally have a low conciliation rate (seven percent in this reporting year) as they often concern broad policy issues which are difficult to resolve at the individual complainant level. However, HREOCA complaints regarding employment under the International Labour Organisations Convention (ILO111) have a much higher conciliation rate (29 percent in this reporting year).
Information on the geographical location, sex and ethnicity of complainants is provided in Tables 6, 8, 9 and 10 below. Demographic data voluntarily provided by complainants at the commencement of the complaint process2 provides additional information on complainants. This data, which is similar in many aspects to data obtained over the last few reporting years, indicates that many complainants (32%) knew about the Commission prior to lodging their complaint and the main source of information for others was legal centres/private solicitors and family/friends. The majority of complainants (67%) indicated that their main source of income at the time of the alleged act was from full, part-time or casual employment. Approximately 48 percent of complainants advised at the beginning of the complaint process that they were represented3. The main forms of representation were privately funded solicitors (44%), representation by a friend, family member or support person (16%) and representation by a community legal centre (15%). Self reported data on representation over the past two years points to an increased level of complainant representation by private solicitors.
Data collected on respondent organisation categories indicates that in the last reporting year approximately 45 percent of complaints were against private enterprise, 15 percent against Commonwealth departments/statutory authorities and eight percent against State departments /statutory authorities. The next main respondent organisation categories were educational institutions (five percent), trade unions (two percent) clubs and incorporated associations (two percent) and local government (two percent).
Complaint Information Service
Table 1A: Telephone, TTY, e-mail, in-person & written enquiries received
| Enquiry type | Total |
|---|---|
| Telephone | 8 518 |
| TTY | 14 |
| 435 | |
| In person | 104 |
| Written | 598 |
| Total | 9 669 |
Table 1B: Website enquiries
| Complaint Handling Section webpage page views | 94 816 |
Table 2: Enquiries received by issue
| Issue | Total |
|---|---|
| Race | 791 |
| Race - racial hatred | 390 |
| Sex - direct | 567 |
| Sexual harassment | 702 |
| Sex - marital status, family responsibilities, parental status, breast feeding | 253 |
| Sex - pregnancy | 513 |
| Sexual preference, transgender, homosexuality, lawful sexual activity | 184 |
| Disability - impairment | 1 522 |
| Disability - HIV/AIDS/Hepatitis | 32 |
| Disability - workers compensation | 209 |
| Disability - mental health | 381 |
| Disability - intellectual/learning disability | 83 |
| Disability - maltreatment/negligence | 36 |
| Disability - physical feature | 49 |
| Age - too young | 61 |
| Age - too old | 242 |
| Age - compulsory retirement | 7 |
| Criminal record/conviction | 221 |
| Political opinion | 22 |
| Religion/religious organisations | 175 |
| Employment - personality conflicts/favouritism | 284 |
| Employment - union/industrial activity | 125 |
| Employment - unfair dismissal/other industrial issues | 653 |
| Employment - workplace bullying | 749 |
| Human rights - children | 143 |
| Human rights - civil, political, economic, social | 332 |
| Immigration - detention centres | 41 |
| Immigration - visas | 112 |
| Prisons/prisoners | 91 |
| Police | 122 |
| Court - family court | 152 |
| Court - other law matters | 167 |
| Privacy - data protection | 102 |
| Neighbourhood disputes | 88 |
| Advertising | 39 |
| Local government - administration | 87 |
| State government - administration | 283 |
| Federal government - administration | 284 |
| Other | 691 |
| Total* | 10 985 |
* One enquiry may have multiple issues.
Table 3: Enquiries received by state of origin
| State of origin | Total | Percentage |
|---|---|---|
| New South Wales | 4 306 | 44 |
| Victoria | 1 698 | 18 |
| South Australia | 516 | 5 |
| Western Australia | 486 | 5 |
| Queensland | 1 642 | 17 |
| Australian Capital Territory | 184 | 2 |
| Tasmania | 138 | 1 |
| Northern Territory | 151 | 2 |
| Unknown/overseas | 548 | 6 |
| Total |
9 669 |
100 |
Complaints Overview
Table 4: National complaints received and finalised over the past three years
| 2001-02 | 2002-03 | 2003-04 | |
|---|---|---|---|
| Received | 1 271 | 1 236 | 1 113 |
| Finalised | 1 298 | 1 308 | 1 229 |
Table 5: Outcomes of national complaints finalised over the past three years
| 2001-02 (percent) |
2002-03 (percent) |
2003-04 (percent) |
|
|---|---|---|---|
| Terminated/declined | 55 | 56 | 51 |
| Conciliated | 30 | 32 | 38 |
| Withdrawn | 14 | 11 | 10 |
| Reported (HREOCA only) | 1 | 1 | 1 |
Table 6: State of origin of complainant at time of lodgement
| State of origin | Total | Percentage (%) |
|---|---|---|
| New South Wales | 489 | 44 |
| Victoria | 216 | 19 |
| South Australia | 124 | 11 |
| Western Australia | 82 | 7 |
| Queensland | 133 | 12 |
| Australian Capital Territory | 35 | 3 |
| Tasmania | 11 | 1 |
| Northern Territory | 17 | 2 |
| Unknown/overseas | 6 | 1 |
| Total |
1 113 |
100 |
Table 7: Complaints received and finalised by Act*
| Act | Received | Finalised |
|---|---|---|
| Racial Discrimination Act (RDA) | 159 | 185 |
| Sex Discrimination Act (SDA) | 353 | 382 |
| Disability Discrimination Act (DDA) | 483 | 491 |
| Human Rights and Equal Opportunity Commission Act (HREOCA) | 118 | 171 |
| Total |
1 113 |
1 229 |
* The Age Discrimination Act 2004 (Cth) came into force on 23 June 2004. As only one complaint was received under this Act during the 2003-04 reporting year, no figures on complaints under this Act are included in this report.
Chart 1: Complaints received by Act
Complaints received by Act
| Disability Discrimination Act | 43% |
| Sex Discrimination Act | 32% |
| Racial Discrimination Act | 14% |
| Human Rights & Equal Opportunity Commission Act | 11% |
Table 8: Complaints received by category of complainant by Act
| RDA | SDA | DDA | HREOCA | Total | |
|---|---|---|---|---|---|
| Individual male | 97 | 47 | 257 | 87 | 488 |
| Individual female | 54 | 305 | 221 | 22 | 602 |
| Joint/multiple | 4 | 1 | 4 | 5 | 14 |
| On others behalf | 1 | - | 1 | 4 | 6 |
| Organisation | 3 | - | - | - | 3 |
| Total |
159 |
353 |
483 |
118 |
1 113 |
Table 9: Country of birth - complainants
| RDA (%) |
SDA (%) |
DDA (%) |
HREOCA (%) |
Total (%) |
|
|---|---|---|---|---|---|
| Born in Australia | 32 | 73 | 69 | 39 | 63 |
| Born outside of Australia | 64 | 10 | 14 | 44 | 22 |
| Unknown | 4 | 17 | 17 | 17 | 15 |
Table 10: Indigenous status - complainants
| RDA (%) |
SDA (%) |
DDA (%) |
HREOCA (%) |
Total (%) |
|
|---|---|---|---|---|---|
| Aboriginal | 31 | 2 | 2 | 2 | 6 |
| Torres Strait Islander | 1 | - | - | - | - |
| None of the above | 68 | 98 | 98 | 98 | 94 |
Table 11: Time from receipt to finalisation for complaints finalised during 2003-04
| RDA (%) |
SDA (%) |
DDA (%) |
HREOCA (%) |
Cumulative Total | |
|---|---|---|---|---|---|
| 0 - 3 months | 17 | 19 | 16 | 22 | 18 |
| 3 - 6 months | 36 | 31 | 26 | 22 | 46 |
| 6 - 9 months | 18 | 25 | 28 | 19 | 70 |
| 9 - 12 months | 11 | 14 | 17 | 13 | 85 |
| More than 12 months | 11 | 9 | 11 | 9 | 95 |
| More than 18 months | 4 | 1 | 1 | 3 | 97 |
| More than 24 months | 3 | 1 | 1 | 12 | 100 |
Racial Discrimination Act
Table 12: Racial Discrimination Act* - complaints received and finalised
| Total | |
|---|---|
| Received | 159 |
| Finalised | 185 |
*Includes complaints lodged under the racial hatred provisions.
Table 13: Racial Discrimination Act - complaints received by ground
| Racial Discrimination Act | Total | Percentages (%) |
|---|---|---|
| Association | 6 | 2 |
| Colour | 31 | 10 |
| National origin/extraction | 26 | 8 |
| Ethnic origin | 85 | 27 |
| Descent | 4 | 1 |
| Race | 116 | 36 |
| Victimisation | 3 | 1 |
| Racial hatred | 45 | 14 |
| Aids, permits or instructs | 3 | 1 |
| Total* |
319 |
100 |
* One complaint may have multiple grounds.
Table 14: Racial Discrimination Act - complaints received by area
| Racial Discrimination Act | Total | Percentage (%) |
|---|---|---|
| Rights to equality before the law | 6 | 2 |
| Access to places and facilities | 11 | 4 |
| Land, housing, other accommodation | 7 | 2 |
| Provision of goods and services | 64 | 20 |
| Right to join trade unions | - | - |
| Employment | 133 | 42 |
| Advertisements | - | - |
| Education | 3 | 1 |
| Incitement to unlawful acts | 1 | - |
| Other - section 9 | 33 | 10 |
| Racial hatred | 61 | 19 |
| Total* |
319 |
100 |
*An area is recorded for each ground, so one complaint may have multiple and different areas.
Table 15: Racial hatred complaints received by sub-area
| Racial Discrimination Act | Total | Percentage (%) |
|---|---|---|
| Media | 12 | 39 |
| Disputes between neighbours | 5 | 16 |
| Personal conflict | 1 | 3 |
| Employment | 1 | 3 |
| Racist propaganda | 1 | 3 |
| Entertainment | 2 | 6.5 |
| Sport | - | - |
| Public debate | 2 | 6.5 |
| Other* | 7 | 23 |
| Total** |
31 |
100 |
* This category includes complaints in the area of education, provision of goods and services and comments made by people in the street and in passing vehicles.
** Only one sub-area is recorded for each racial hatred complaint received.
Table 16: Racial Discrimination Act - outcomes of finalised complaints
| Racial Discrimination Act | Total |
|---|---|
| Terminated | 111 |
| At complainants request - s.46PE | 1 |
| Not unlawful | 2 |
| More than 12 months old | 5 |
| Trivial, vexatious, frivolous, misconceived, lacking in substance | 57 |
| Adequately dealt with already | 5 |
| More appropriate remedy available | - |
| Subject matter of public importance | - |
| No reasonable prospect of conciliation | 41 |
| Withdrawn | 22 |
| Withdrawn, does not wish to pursue, advised the Commission | 20 |
| Withdrawn, does not wish to pursue, settled outside the Commission | 2 |
| Conciliated | 42 |
| Administrative closure* | 10 |
| Total |
185 |
*Not an aggrieved party, state complaint previously lodged.
Chart 2: Racial Discrimination Act - outcomes of finalised complaints
Racial Discrimination Act - outcomes of finalised complaints
| Terminated - other reason | 40% |
| Conciliated | 24% |
| Terminated - no reasonable prospect of conciliation | 23% |
| Withdrawn | 13% |
Sex Discrimination Act
Table 17: Sex Discrimination Act - complaints received and finalised
| Sex Discrimination Act | Total |
|---|---|
| Received | 353 |
| Finalised | 382 |
Table 18: Sex Discrimination Act - complaints received by ground
| Sex Discrimination Act | Total | Percentages (%) |
|---|---|---|
| Sex discrimination | 216 | 34 |
| Marital status | 28 | 5 |
| Pregnancy | 177 | 28 |
| Sexual harassment | 179 | 28 |
| Parental status/ family responsibility | 14 | 2 |
| Victimisation | 19 | 3 |
| Total* |
633 |
100 |
*One complaint may have multiple grounds.
Table 19: Sex Discrimination Act - complaints received by area.
| Sex Discrimination Act | Total | Percentage (%) |
|---|---|---|
| Employment | 556 | 88 |
| Goods, services and facilities | 41 | 6 |
| Land | - | - |
| Accommodation | 1 | - |
| Superannuation, insurance | 4 | 1 |
| Education | 8 | 1 |
| Clubs | 5 | 1 |
| Administration of Commonwealth laws and programs | 17 | 3 |
| Application forms etc | - | - |
| Trade unions, accrediting bodies | 1 | - |
| Total* |
633 |
100% |
* An area is recorded for each ground, so one complaint may have multiple and different areas.
Table 20: Sex Discrimination Act - outcomes of finalised complaints
| Sex Discrimination Act | Total |
| Terminated | 163 |
| At complainants request - s.46PE | - |
| Not unlawful | 7 |
| More than 12 months old | 11 |
| Trivial, vexatious, frivolous, misconceived, lacking in substance | 43 |
| Adequately dealt with already | 2 |
| More appropriate remedy available | 2 |
| Subject matter of public importance | - |
| No reasonable prospect of conciliation | 98 |
| Withdrawn | 30 |
| Withdrawn, does not wish to pursue, advised the Commission | 27 |
| Withdrawn, does not wish to pursue, settled outside the Commission | 3 |
| Conciliated | 173 |
| Administrative closure* | 16 |
| Total |
382 |
*Not an aggrieved party, state complaint previously lodged.
Chart 3: Sex Discrimination Act - outcomes of finalised complaints
Sex Discrimination Act - outcomes of finalised complaints
| Conciliated | 47% |
| Terminated - no reasonable prospect of conciliation | 27% |
| Terminated - other reason | 18% |
| Withdrawn | 8% |
Disability Discrimination Act
Table 21: Disability Discrimination Act - complaints received and finalised
| Disability Discrimination Act | Total |
|---|---|
| Received | 483 |
| Finalised | 491 |
Table 22: Nature of complainant's disability
| Disability Discrimination Act | Total | Percentage (%) |
|---|---|---|
| Physical disability | 201 | 25 |
| A mobility aid is used (e.g. walking frame or wheelchair) | 81 | 10 |
| Physical disfigurement | 10 | 1 |
| Presence in the body of organisms causing disease (HIV/AIDS) | 10 | 1 |
| Presence in the body of organisms causing disease (other) | 14 | 2 |
| Psychiatric disability | 122 | 15 |
| Neurological disability (e.g. epilepsy) | 39 | 5 |
| Intellectual disability | 21 | 3 |
| Learning disability | 33 | 4 |
| Sensory disability (hearing impaired) | 38 | 5 |
| Sensory disability (deaf) | 36 | 4 |
| Sensory disability (vision impaired) | 31 | 4 |
| Sensory disability (blind) | 17 | 2 |
| Work related injury | 61 | 7 |
| Medical condition (e.g. diabetes) | 55 | 7 |
| Other | 38 | 5 |
| Total* |
807 |
100 |
* One complainant may have multiple disabilities.
Table 23: Disability Discrimination Act - complaints received by ground
| Disability Discrimination Act | Total | Percentages (%) |
|---|---|---|
| Disability of person(s) aggrieved | 845 | 93 |
| Associate | 21 | 2.5 |
| Disability - person assisted by trained animal | 8 | 1 |
| Disability - accompanied by assistant | 1 | - |
| Harassment | 20 | 2 |
| Victimisation | 3 | 0.5 |
| Aids, permits or instructs | 8 | 1 |
| Total* |
906 |
100 |
* One complainant may have multiple grounds.
Table 24: Disability Discrimination Act - complaints received by area
| Disability Discrimination Act | Total | Percentage (%) |
|---|---|---|
| Employment | 484 | 54 |
| Goods, services and facilities | 227 | 25 |
| Access to premises | 35 | 4 |
| Land | - | - |
| Accommodation | 20 | 2 |
| Incitement to unlawful acts or offences | 2 | - |
| Advertisements | - | - |
| Superannuation, insurance | 15 | 2 |
| Education | 90 | 10 |
| Clubs, incorporated associations | 10 | 1 |
| Administration of Commonwealth laws and programs | 21 | 2 |
| Sport | 2 | - |
| Application forms, requests for information | - | - |
| Trade unions, registered organisations | - | - |
| Total* |
906 |
100% |
* An area is recorded for each ground, so one complaint may have multiple and different areas.
Table 25: Disability Discrimination Act - outcomes of finalised complaints
| Disability Discrimination Act | Total |
|---|---|
| Terminated | 227 |
| At complainants request - s.46PE | 2 |
| Not unlawful | 19 |
| More than 12 months old | 7 |
| Trivial, vexatious, frivolous, misconceived, lacking in substance | 99 |
| Adequately dealt with already | 7 |
| More appropriate remedy available | 7 |
| Subject matter of public importance | - |
| No reasonable prospect of conciliation | 86 |
| Withdrawn | 50 |
| Withdrawn, does not wish to pursue, advised the Commission | 45 |
| Withdrawn, does not wish to pursue, settled outside the Commission | 5 |
| Conciliated | 205 |
| Administrative closure* | 9 |
| Total |
491 |
*Not an aggrieved party, state complaint previously lodged.
Chart 4: Disability Discrimination Act - outcomes of finalised complaints
Disability Discrimination Act - outcomes of finalised complaints
| Conciliated | 43% |
| Terminated - other reason | 29% |
| Terminated - no reasonable prospect of conciliation | 18% |
| Withdrawn | 10% |
Human Rights and Equal Opportunity Commission Act
Table 26: HREOCA - complaints received and finalised
| Human Rights and Equal Opportunity Commission Act | Total |
|---|---|
| Received | 118 |
| Finalised | 171 |
Table 27: HREOCA - complaints received by ground
| Human Rights and Equal Opportunity Commission Act | Total | Percentage (%) |
|---|---|---|
| Race (ILO 111) | - | - |
| Colour (ILO 111) | - | - |
| Sex (ILO 111) | - | - |
| Religion (ILO 111) | 11 | 8 |
| Political opinion (ILO 111) | 2 | 2 |
| National extraction (ILO 111) | - | - |
| Social origin (ILO 111) | - | - |
| Age (ILO 111) | 18 | 14 |
| Medical record (ILO 111) | - | - |
| Criminal record (ILO 111) | 27 | 21 |
| Impairment (including HIV/AIDS status) (ILO 111) | - | - |
| Marital status (ILO 111) | - | - |
| Disability (ILO 111) | - | - |
| Nationality (ILO 111) | - | - |
| Sexual preference (ILO 111) | 9 | 7 |
| Trade union activity (ILO 111) | 17 | 13 |
| International Covenant on Civil and Political Rights | 37 | 29 |
| Declaration on the Rights of the Child | - | - |
| Declaration on the Rights of Mentally Retarded Persons | - | - |
| Declaration on the Rights of Disabled Persons | - | - |
| Convention on the Rights of the Child | 6 | 5 |
| Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief | - | - |
| Not a ground within jurisdiction | 1 | 1 |
| Not a human right as defined by the Act | - | - |
| Total* |
128 |
100 |
*One complaint may have multiple grounds.
Table 28: HREOCA - complaints received by area
| Human Rights and Equal Opportunity Commission Act | Total | Percentage (%) |
|---|---|---|
| Acts or practices of the Commonwealth | 41 | 32 |
| Employment | 82 | 64 |
| Not act or practice of the Commonwealth (not employment cases) | 5 | 4 |
| Total* |
128 |
100 |
* An area is recorded for each ground, so one complaint may have multiple and different areas.
Table 29: HREOCA - non-employment complaints received by sub-area
| Human Rights and Equal Opportunity Commission Act | Total | Percentage |
|---|---|---|
| Prisons, prisoner | 12 | 26 |
| Religious institutions | - | - |
| Family court matters | - | - |
| Other law court matters | 3 | 7 |
| Immigration | 22 | 48 |
| Law enforcement agency | 1 | 2 |
| State agency | 1 | 2 |
| Other service provider (private sector) | 1 | 2 |
| Local government | - | - |
| Education systems | - | - |
| Welfare systems | 2 | 4 |
| Personal or neighbourhood conflict | - | - |
| Health system | - | - |
| Other | 4 | 9 |
| Total |
46 |
100% |
Table 30: HREOCA - Outcomes of finalised complaints
| Human Rights and Equal Opportunity Commission Act | Total |
|---|---|
| Declined | 120 |
| Does not constitute discrimination | 15 |
| Human rights breach, not inconsistent or contrary to any Human right | 29 |
| More than 12 months old | 4 |
| Trivial, vexatious, frivolous, misconceived, lacking in substance | 44 |
| Adequately dealt with already | 5 |
| More appropriate remedy available | 9 |
| Withdrawn, does not wish to pursue, advised the Commission | 11 |
| Withdrawn, does not wish to pursue, settled outside the Commission | 3 |
| Withdrawn or lost contact | - |
| Conciliated | 35 |
| Referred for reporting* | 15 |
| Administrative closure** | 1 |
| Total |
171 |
*Complaints in this category were not conciliable and therefore transferred from the Commission's Complaint Handling Section to Legal Services for further inquiry and possible reporting.
**Not an aggrieved party, state complaint previously lodged.
Chart 5: Human Rights and Equal Opportunity Commission Act - outcomes of finalised
complaints
Human Rights and Equal Opportunity Commission Act - outcomes of finalised complaints
| Declined | 62% |
| Conciliated | 21% |
| Referred for reporting | 9% |
| Withdrawn | 8% |
Endnotes
- It is noted that complaints are generally resolved at conciliation on the basis of 'no admission of liability' by the respondent.
- 73% of complainants returned the Intake Form in this reporting year.
- Representation status may change during the complaint process.
19 November 2004