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

The year in review

Resolving discrimination and human rights issues

One of our core functions is to help people resolve complaints about discrimination and breaches of human rights.

Delivering a best-practice national complaints service

Our complaints process provides a way in which individuals and groups can voice and resolve disputes about discrimination and human rights. Our complaint work is also central to our role in protecting and promoting human rights and complements our policy and education work. The number and type of complaints we receive often highlight systemic discrimination problems. We use this information to help address the underlying factors that lead to discrimination – developing education programs or suggesting policy reforms for workplaces, service providers, educational institutions and others.

How does our complaints system work?

The Commission’s President is responsible for the Commission’s complaint function. The President undertakes this work with the help of staff who have specialised knowledge and skills to manage and resolve complaints about discrimination and breaches of human rights.

We operate a national Complaint Information Service which allows people from all areas of Australia to contact us and obtain information about the law and the complaint process.

Enquires can be made by telephone, TTY, SMS, email, by letter and also in-person.

In providing this service, we also utilise a range of interpretation and translation services. The main language groups we assisted during the year in review were Mandarin, Tamil, Spanish and Vietnamese. Auslan interpreters were used on seven occasions.

Complaints made under the Discrimination Acts

Our complaint process focuses on alternative dispute resolution, and is flexible and responsive. Complaints are resolved through a process known as conciliation. In conciliation, we help the people involved in a complaint to try to find a way to resolve their dispute.

Depending on the issues raised in a complaint, and the surrounding circumstances, conciliation may be offered straight away or undertaken after a written response to the complaint has been provided. In many cases conciliation involves an officer facilitating a face-to-face meeting of the parties. Officers travel to various locations throughout Australia, including regional and remote areas, to hold these meetings.

Conciliation may also be conducted in other formats. For example, officers may have telephone discussions with the parties and convey messages between them or hold a teleconference.

In an effort to assist parties to prepare for involvement in the conciliation process and to assist broader understanding of our conciliation work, we provide a conciliation register on our website – de-identified summaries of complaints that have been conciliated by the Commission (see www.humanrights.gov.au/complaints_information/register/). During the year under review, over 200 new cases were added to the register.

Where a complaint of unlawful race, sex, disability or age discrimination cannot be resolved through conciliation, the complaint is terminated. Complaints may also be terminated where the President is satisfied that an inquiry into the complaint should not be undertaken or continued because, for example, the complaint is lacking in substance or better dealt with by another organisation. After a complaint is terminated, the complainant may then apply to have the matter heard and determined by the Federal Court of Australia or the Federal Magistrates Court of Australia.

Complaints under the Australian Human Rights Commission Act

Complaints lodged under the Australian Human Rights Commission Act, which allege a breach of human rights or discrimination in employment by or on behalf of the Commonwealth*, cannot be taken to court for determination. Where complaints under this Act have not been declined or resolved and the President believes that the subject matter of the complaint constitutes discrimination or a breach of human rights, he or she will report the findings to the Attorney-General for tabling in federal Parliament.

The Australian Human Rights Commission Act gives us the function of inquiring into ‘any act or practice that may be inconsistent with or contrary to any human right’. This function is performed by the president through the Complaint Handling Section.

The ‘acts’ and ‘practices’ to which this function relates are, essentially, those done by or on behalf of the Commonwealth*. Significantly this excludes acts and practices by individuals, corporations and other levels of government.

The reports, which are tabled in Parliament, can include recommendations for preventing a repetition of the act or continuation of the practice as well as the payment of compensation or other remedies. These are not enforceable; they are recommendations and there is no mechanism for enforcement. However the government may implement the recommendations by changing policy to prevent further similar acts or practices.

Under the Australian Human Rights Commission Act, the Commission can also inquire into ‘acts’ or ‘practices’ without first receiving a complaint if either, it is requested to do so by the Minister or it appears to the Commission to be desirable to do so.

* Commonwealth means Commonwealth employees, departments, agencies and authorities etc.

Assisting other organisations

We provide training to assist other organisations to increase their understanding of rights and responsibilities under the law as well as manage internal complaints about discrimination and breaches of human rights.

We have specialised training programs that provide statutory investigation and conciliation training to other organisations on a fee-for-service basis.

In 2009–10, we provided:

• conciliation training for staff of the Office of the Privacy Commissioner
• two investigation training programs for staff of a NSW state government department
• complaint investigation training for representatives from the Australian Sports Commission and various sporting codes in South Australia
• advanced conciliation training for staff of the South Australian Equal Opportunity Commission
• complaint information service training for staff of the New Zealand Human Rights Commission.

During 2009–10, we developed a customised workshop on discrimination and human rights for managers and staff of Immigration Detention Centres. To date the course has been run in Canberra and Perth. It is proposed that the course will be run in other locations around Australia during 2010–2011.

Our performance

Key performance indicators for our complaint service, as well as our performance against them during the year under review, are summarised in the People and performance section

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Resolving discrimination and human rights issues through legal avenues

We provide specialist, independent legal analysis of human rights and discrimination issues to a wide range of groups, including governments, parliaments and the courts. The Commission has a responsibility to review existing and proposed legislation, prepare submissions and inquire into complaints of alleged breaches of human rights. We also appear in court to make submissions on matters that deal with human rights or discrimination.

Assisting courts on discrimination matters

Amicus curiae: The role of each of our Commissioners includes assisting the Federal Court or Federal Magistrates Service as amicus curiae in discrimination matters. An amicus curiae is a ‘friend to the court’ who assists the court on points of law in cases. They are generally not parties to the proceedings, do not file pleadings or lead evidence and may not lodge an appeal.

The Commissioners’ amicus curiae function can only be exercised with the leave of the Federal Court or the Federal Magistrates Court where the court is hearing an application alleging unlawful discrimination under Division 2, Part IIB of the Australian Human Rights Commission Act.

Power to intervene: The Commission itself has a power to intervene, with a court’s leave, in proceedings involving issues of race, sex and disability discrimination, human rights issues and equal opportunity in employment (otherwise known as ‘intervention issues’). It may seek to do so in proceedings when:

• intervention is sought or required by the courts
• the proceedings involve an ‘intervention issue’ as referred to above
• the intervention issue is significant and not peripheral to proceedings
• the intervention issue/s will not be adequately or fully argued by the parties to the proceedings.

We seek leave to intervene in matters where significant issues arise in relation to the interpretation of the discrimination law. We make submissions about what we consider to be the appropriate interpretation or application of the law, and attempt to influence the court as to the correct interpretation.

In this way, if successful, our intervention can lead to changes or refinement of the law. The function of intervening is separate from the amicus curiae function given to individual Commissioners in relation to unlawful discrimination proceedings.

Over time, we have intervened in a range of proceedings in matters before the High Court, Federal Court, Family Court, Australian Industrial Relations Commission, Refugee Review Tribunal and State and Territory Coroner’s Courts.

During the year under review the Commission considered the merits of appearing in 30 matters, but we decided to appear in just one case, the outcome of which was decided in June 2009. That case was Aurukun Shire Council & Anor v CEO Office of Liquor Gaming and Racing in the Department of Treasury, which concerned the proper construction of s8 and s10 of the Racial Discrimination Act in relation to alcohol restrictions and special measures.

The Aurukun Shire Council and the Kowanyama Aboriginal Shire Council operated licensed premises in their towns. In May 2008, the Queensland Government amended the Liquor Act 1992 (Qld) (‘Liquor Act’) by removing the ability of a ‘local government’ to apply for or hold a general licence after 1 July 2008. As a result, from 1 July 2008 the two councils were unable to renew their licences.

Both councils lodged proceedings in the Queensland Supreme Court where they argued that the relevant provisions of the Liquor Act were invalid because they were inconsistent with the provisions of the Racial Discrimination Act 1975 (Cth) (‘RDA’). The government argued the reason for the change to the Liquor Act was to improve the health and wellbeing of people living in 19 discrete Indigenous communities, two of which are Aurukun and Kowanyama.

The applicants lost. They subsequently appealed to the Queensland Court of Appeal and the Commission was granted leave to intervene in those proceedings. We made submissions in relation to the three issues before the court: (i) did the changes to the Liquor Act engage a right protected by s10 of the RDA?; (ii) if so, was the right interfered with contrary to s10 of the RDA?; and (iii) if so, were the changes a ‘special measure’ under s8 of the RDA?.

On 1 March 2010, the Queensland Court of Appeal found that, although the right to ‘equal treatment before the law’ and the councils’ property rights were engaged, the changes to the Liquor Act either did not interfere with these rights in contravention of the RDA or were a ‘special measure’ under s8 of the RDA.

The judges’ reasoning supported our submission for a broad construction of the right to ‘equality before the law’ and the importance of consultation with beneficiaries when introducing ‘special measures’ that seek to achieve equality.

The applicants have lodged an application for special leave to appeal to the High Court and are waiting to hear if they will be allowed to appeal.