CHAPTER 6
Complaints Process
6.1
The terms of reference required the committee to examine whether the Act
provides effective remedies including examining the effectiveness, efficiency
and fairness of the complaints process. The committee received detailed evidence
concerning the inherent limitations of the individual complaints system as well
as the practical difficulties involved in pursuing complaints and how these
might be addressed.
Limitations of the individual complaints model
6.2
A recurring theme in the evidence was that the Act is ineffective in
addressing systemic discrimination because it adopts an enforcement model based
upon individual complaints and remedies. For example, Mr Mathew Tinkler of
PILCH submitted that the existing Act:
...treats discriminatory conduct as a personal dispute between
two parties rather than as an unacceptable act. Also, it relies upon the
ability of an individual, in particular, to understand a fairly complex area of
law, to elect to make a complaint and then to pursue a remedy, while also
assuming that the individual has the resources and the capacity to do that.[1]
6.3
Similarly, the Queensland Council of Unions considered the exclusive
adoption of an individual complaint model the greatest limitation on the
capacity of the Act to advance gender equality.[2]
6.4
The Women’s Electoral Lobby also discussed the intrinsic difficulties in
using an individual complaint mechanism as means of eliminating systemic
discrimination:
[T]he complaints-based model relies upon victims identifying and
standing up for their rights and prompting social change through individual
litigation and its subsequent ripple effect. It assumes that victims have the
time, security and resources to pursue such litigation, despite the financial
and psychological costs of pursuing a complaint in the public interest against
a corporate respondent.[3]
6.5
Dr Belinda Smith argued that the model of enforcement via complaints by
affected individuals, with only compensatory damages, is fundamentally weak and
cannot address systemic discrimination.[4]
She told the committee:
I do not think we are ever going to get at systemic
discrimination if we always leave it up to the disadvantaged victim to bring
these claims. We need an agency that has some capacity to support applicants or
to initiate claims themselves.[5]
6.6
The Collaborative submission pointed out that the complaints system
adopted by the Act also assumes that there will be a single respondent who can
be identified and held accountable for each act of discrimination but that this
is not necessarily the case. The submission stated:
As discrimination is woven into the historic fabric of society,
it is frequently impossible to identify a single respondent who can be held
responsible for a specific act of discrimination. Unless an unbroken causal
thread connects the complainant and respondent with the act of discrimination,
the complaint fails.[6]
Issues regarding the complaints process
Introduction
6.7
Much of the evidence to the inquiry concerned the practical operation of
the complaints process. HREOC submitted that:
In comparison with judicial determination, the HREOC complaint
process with its focus on informal dispute resolution, provides an accessible,
timely and cost efficient way for parties to deal with discrimination related
disputes. While the complaint process has a necessary focus on individual
remedy, it also operates as a significant educative force and a means to
achieve outcomes that contribute to the broader social change objectives of
anti-discrimination law.[7]
6.8
In particular, HREOC argued that the conciliation process allows for a
wide range of negotiated outcomes and for early intervention in disputes:
[O]utcomes achieved through conciliation extend beyond those
likely to be awarded in a judicial process. Outcomes can include training
and/or changes to policy and procedures which have benefits for similarly
situated individuals and groups and contribute to furthering the social change
objectives of the SDA. Additionally, conciliation allows for early
intervention in disputes which means that employment relationships can be
restored or maintained and effective, practical remedies can be achieved
without the need for formal and often lengthy legal proceedings.[8]
6.9
HREOC advised that in 2007-08 48 per cent of complaints under the Act were
finalised within 6 months and 94 per cent within 12 months.[9]
This represents the time from receipt of the complaint to finalisation by
HREOC.
6.10
However, HREOC’s complaint handling is only part of the process as far
as the parties are concerned since complaints which cannot be conciliated may
then be pursued in the Federal Court or the Federal Magistrates Court. HREOC
explained that:
[W]here a complaint has been terminated by HREOC, irrespective
of the reason for termination, the affected person can make an application to
the court for the allegations in their complaint to be heard and determined.[10]
6.11
HREOC advised that:
Over the past six reporting years, on average, 28% of terminated
complaints under the SDA were pursued to court. The SDA has the highest number
of applications to the courts as a proportion of terminated complaints.[11]
Difficulties for complainants
6.12
In this context, much of the evidence to the committee was highly
critical of the complaints process. For example, the Association of
Professional Engineers, Scientists and Managers Australia stated that pursuing
a complaint:
...can result in victimisation, may be a difficult, time
consuming and emotionally challenging process and, even if resulting in a
positive outcome, the process may take too long to provide a practicable and
useful solution to the complaint.[12]
6.13
Similarly, the Shop, Distributive and Allied Employees’ Association
submitted that the complaints process is too long, too legalistic, too costly,
does not deliver justice to complainants and does not address systemic
discrimination.[13]
6.14
Ms Catharine Bowtell of the ACTU told the committee that one of the key
problems is the time taken to resolve complaints:
If you compare anti-discrimination timeframes with workplace
relations timeframes, you can lodge an unfair dismissal complaint with a New
South Wales tribunal at the moment and you will be conciliated within three
weeks. If it is not resolved at conciliation, it will be listed for hearing
within another three weeks. If you look at the way anti-discrimination
complaints are handled, it is probably 12 months from lodging the complaint to
getting anywhere near the court. Then you have the formalities of court
proceedings, which means that it is probably 18 months to two years from
complaint to outcome for a complainant.[14]
6.15
Ms Bowtell explained the importance of quickly resolving sex
discrimination complaints related to employment:
[I]f you are looking to address a workplace based complaint, the
most important thing you can do is to keep people in work. If the complaint is
not resolved—that is, they have been either dismissed or suffered a
detriment—and that is not resolved until some time down the track, you do not
have any remedial outcomes in the workplace, because the complainant is
separated from the workplace. Her outcome is not seen by her colleagues and so
on, so it does not have that flow-on effect that a rapid response can have
where things are fixed, everyone is back, relationships are back to normal and
work can continue.[15]
6.16
Miss Elnaz Nikibin of UNIFEM Australia considered that a fundamental
difficulty with pursuing a complaint under the Act is the risk of liability for
the costs of the respondent:
You might have the costs to pay for a lawyer to represent you,
but it is a much heavier burden if you have to pay for the costs of the other
side if you lose. That is not covered by legal aid and it would not be covered
by lawyers acting on a pro bono basis. Even if we offered a free legal service
the costs of paying the other side’s representatives is enough to turn someone
away from pursuing a claim under the Sex Discrimination Act.[16]
6.17
The Women’s Electoral Lobby also argued that the cost of pursuing
complaints deters potential complainants, especially since claims that cannot
be conciliated have been dealt with by the Federal Court and the Federal
Magistrates Court.[17]
Professor Thornton told the committee that research she was conducting in
relation to anti-discrimination legislation across the country suggested there
was a decline in the lodgement of complaints as well as a decline in the number
of complaints proceeding to a formal hearing. She attributed this to the
difficulties now confronting complainants:
We have had a shift away from specialised tribunals to
generalist tribunals. That means that the normal rule is that loser pays in
terms of costs, so the individual complainant then is less likely to initiate a
formal hearing. This has happened at the federal level, for example. Compare
that with a specialist tribunal that was set up to operate within a particular
jurisdiction, where the individual could appear without being legally
represented.[18]
6.18
Mr Ian Scott of Job Watch noted in relation to Victoria, that the
drawbacks of the federal jurisdiction mean that sex discrimination claims,
particularly test cases, are more regularly pursued under state legislation:
In the federal jurisdiction, costs follow the event once the
matter goes to the Federal Court. ...If it was what we would call a test case,
which might relate to systemic discrimination or whether someone is covered by
the Act, our advice to our client might be, ‘We’ll go through the state
jurisdiction because your case is risky and, generally speaking, if you lose in
the Victorian system, each party bears its own costs.’[19]
6.19
This appears to be consistent with the experience in other jurisdictions.
Legal Aid Queensland submitted that the Commonwealth complaints process is
slower and more formal than the complaints process under Queensland’s
anti-discrimination legislation and, as a result, it is common for their legal
practitioners to pursue sex discrimination complaints under the state
legislation.[20]
6.20
A further issue raised in relation to the complaints process concerned
the power imbalance between the parties. The Australian Women’s Health Network
considered that:
Probably the most unfair aspect of the complaints process is the
inequality of the power relationship between the complainant and the
respondent. This is particularly pertinent during mediation processes where the
parties must sit across the table from each other.[21]
6.21
PILCH expressed similar concerns particularly in relation to sexual
harassment complaints. PILCH submitted that:
[M]any victims of sexual harassment have little confidence in
the complaints based system, which may, in some cases, exacerbate the trauma
associated with sexual harassment.[22]
6.22
Ms Michelle Panayi of PILCH expanded on the difficulties sexual
harassment complaints face:
The other reason that it is very difficult for victims to go
through the external complaints process is that they fear they will lose their
jobs. They fear the publicity that the case attracts. They feel that no one
will want them if they know this has happened to them or they have spoken out
about it. Victims of sexual harassment can be likened to whistleblowers where
they can be seen as troublemakers. They are concerned about the impact that
their going through this process will have on their future career.[23]
Issues for respondents
6.23
The Victorian Automobile Chamber of Commerce (VACC) noted that the time
and costs involved in defending a complaint are also significant and that
employers therefore sometimes feel compelled to make a payment on commercial
grounds.[24]
6.24
ACCI also submitted that many employers simply settle claims, regardless
of the strength of the applicant’s case, in order to avoid the costs of
litigation:
It is well known that many employers simply settle claims (in
cases where either party is unsure whether they have legal grounds to initiate
or defend proceedings) to make them “go away” (similar to what occurs in unfair
dismissal jurisdictions). In most cases, legal advisors will recommend this as
the most prudent approach to avoid the costs of litigation.[25]
6.25
In addition, Mr Scott Barklamb of ACCI told the committee that companies
have a further incentive to settle even speculative claims because of the
possible damage to the company’s reputation:
A lot of very major companies make very significant efforts and
investments in this area. ...They take their reputational efforts in this area
very seriously. When claims emerge, often speculatively, as we have said, as
part of a dismissal or performance management-type processes, there is an extra
effort to settle. They are not necessarily ...making solely a financial
calculation. There is a reputational calculation involved. Even if the company
believes its processes were entirely compliant and would navigate the
litigation successfully there is an extra incentive to settle.[26]
Suggested changes to the complaints process
6.26
Many witnesses and submissions made specific proposals for changes to
the complaints process. These included:
-
providing more assistance to complainants;
-
broadening the standing provisions;
-
extending the time limits for lodging complaints;
-
altering the burden of proof;
-
expanding the remedies available to complainants;
-
limiting liability for costs; and
-
improving complaint handling procedures.
6.27
In considering these proposals, it is important to note that the
complaints process under the Act is shared with other federal anti-discrimination
legislation including the Racial Discrimination Act 1975, the Disability
Discrimination Act 1992 and the Age Discrimination Act 2004. As an officer
of the Attorney-General’s Department pointed out to the committee:
Whatever changes are made in relation to how you handle a sex
discrimination complaint might apply equally to other areas, such as disability
or race.[27]
Legal representation for
complainants
6.28
The committee received consistent evidence that most complainants
experience difficulty obtaining legal representation in sex discrimination and
sexual harassment matters. Mr Mathew Tinkler of PILCH submitted:
In our experience, very few victims of sex discrimination and
sexual harassment have the means to afford representation and even fewer
qualify for a grant of Legal Aid. We also say that the sensitive nature of
sexual harassment and its impact upon a complainant mean that the formality of
legal representation is often desirable for many victims.[28]
6.29
The National Foundation for Australian Women pointed to existing legal
aid guidelines as a barrier to complainants obtaining legal representation:
Legal Aid guidelines are currently very restrictive. It is
extremely difficult to get legal aid to commence an action under the SDA.
Individuals are often in a complex area of law dealing with well-resourced and
experienced respondents.[29]
6.30
Similarly, Associate Professor Beth Gaze noted that legal aid is
difficult to obtain and that this has particular impact on women in
marginalised groups:
Despite the power in the HREOC Act for the Attorney-General to
provide legal aid in unlawful discrimination matters, it appears that virtually
no such aid is provided, either by the Attorney or in the legal aid system, and
that in many cases women must negotiate the complaints, conciliation and
adjudication system unrepresented. Legal aid is very difficult to obtain in
such cases because it is necessary to pass an extra merits test that is very
difficult to satisfy, is not imposed in other areas of law, and suggests that
there is no general public interest in the enforcement of human rights laws and
respect for the human rights of all members of society. These features affect
most adversely the women in the most vulnerable positions: indigenous women,
migrant and ethnic minority women, women with disabilities, pregnant women and
poor and low skilled women.[30]
6.31
Legal Aid New South Wales explained that, under the existing
Commonwealth legal aid guidelines, applicants for legal aid in discrimination
matters are required to show a strong prospect of substantial benefit being
gained by both the applicant, and the public or a section of the public. Legal
Aid New South Wales argued that “this is an unduly high threshold for remedial
or beneficial legislation.”[31]
6.32
Professor Thornton suggested that the lack of legal aid to complainants
has skewed the interpretation of the Act:
One of the difficulties is in the jurisprudence that emerges
from this jurisdiction. As suggested, very few cases have gone on to public
hearing, unless it is a well-to-do respondent. Often a state government or a
multinational has challenged a decision in a complainant’s favour at the lower
level. As a result of domination by powerful respondents, the jurisprudence has
become skewed in a particular way so that the focus tends to be on the form of
the legislation rather than on the substance...
To keep skewing the interpretation of the legislation in a
particular way over time, I think, is not at all beneficial for complainants.
For it to be possible to have legal aid in this regard, I think, would help
redress the balance.[32]
6.33
Several submissions recommended broadening legal aid guidelines to provide
individual complainants with greater access to legal advice and representation.[33]
National Legal Aid advised that the existing agreements between the legal aid
commissions and the Commonwealth, which incorporate the Commonwealth legal aid
guidelines, expire on 31 December 2008 and that negotiation of the new
agreements has commenced.[34]
6.34
HREOC made a related recommendation that funding provided to the working
women’s centres, community legal centres, specialist low cost legal services
and legal aid to assist people make complaints under federal
anti-discrimination law should be increased. HREOC argued that these specialist
advocacy and legal centres are “an important point of contact and support for
people wanting to make complaints to HREOC.”[35]
6.35
Other organisations argued that complainants should be provided with
legal advocacy and advice either through HREOC or a new body established for
this purpose.[36]
For example, Ms Bowtell of the ACTU submitted:
We would like to see a body able to assist complainants with
their litigation. It could be a separately funded agency. It depends to some
extent on how much HREOC is responsible for compliance as to whether it can
also assist with prosecutions. But there can be models whereby a separately
funded legal unit can consider public interest-type litigation on behalf of
complainants or representative action on behalf of complainants.[37]
6.36
The proposals for broadening the powers of HREOC in relation to advocacy
and enforcement of the Act are discussed in more detail in Chapter 10.
6.37
Finally, Mr Geoffrey McMahon suggested that there is a need for better
protection of individuals who report or witness discrimination and harassment,
akin to whistleblower protection. He pointed out that the tactics of
perpetrators of discrimination and harassment include denial, delaying action,
defaming the complainant and destroying evidence. In his view, it is therefore
necessary to provide a “shield” for individuals who report discrimination and
that this function should be performed by a separate agency to the agency
responsible for investigation and enforcement (“the sword”).[38]
Standing to bring complaints
6.38
At present, under subsection 46P(2) of the HREOC Act a complaint can be
lodged with HREOC on behalf of an affected person or persons. However, under
subsection 46PO(1) of the HREOC Act court proceedings can only be commenced by
an affected person. The former President of HREOC, Mr John von Doussa explained
to the committee:
At the moment a complaint can be brought by an individual who is
aggrieved or by some body or an organisation on behalf of that person, and the
commission will look at the complaint. But if it is not resolved when it comes
to the point of issuing proceedings, it is only the aggrieved person who can
issue the proceedings.[39]
6.39
This means that public interest organisations are unable to pursue
proceedings in the Federal Court or the Federal Magistrates Court on behalf of
an individual complainant. HREOC argued that:
[T]here are sound reasons of public policy to enable appropriate
organisations with a legitimate interest in a particular subject-matter to
commence discrimination proceedings, particularly where the claim involves a
systemic problem that affects a wide class of persons.[40]
6.40
While Part IVA of the Federal Court of Australia Act 1976 permits
representative proceedings in some circumstances, HREOC argued that:
[T]he rules are technical and complex, compounded by the fact
that the requirements at the HREOC and Federal Court stages are not
consistent. ...Furthermore, the Federal Magistrates Court does not permit
representative proceedings, which limits such proceedings to the more expensive
Federal Court jurisdiction. Indeed, to date very few representative proceedings
have been commenced under any of the Federal discrimination Acts.[41]
6.41
HREOC recommended that the provisions under the HREOC Act relating to
standing to bring claims under the Act (and other federal discrimination Acts)
should be amended to widen the scope for proceedings to be brought by public
interest-based organisations.[42]
Limitation periods
6.42
Currently, the President of HREOC has a discretion, under paragraph
48PH(1)(b) of the HREOC Act, to terminate a complaint lodged more than 12
months after the alleged discrimination. PILCH noted that this limitation
period is problematic in sexual harassment cases where complainants often delay
making a complaint due to fear of retaliation or as a result of suffering mental
illnesses or disorders caused by the harassment.[43]
6.43
However, ACCI pointed out that a complainant can still lodge a complaint
directly with the Federal Court or the Federal Magistrates Court and submitted
that it is unclear whether the 6 year limitation period generally provided for
under state and territory legislation applies to claims lodged directly with
the courts. It is likely that section 79 of the Judiciary Act 1903 means
that such limitation periods are applicable. Nevertheless, ACCI recommended an
absolute limitation period be applicable to claims under federal
anti-discrimination legislation.[44]
6.44
Where a complaint is terminated by the President of HREOC, a complainant
has 28 days to lodge proceedings in the Federal Court or the Federal
Magistrates Court though the court has a discretion to allow further time.[45]
HREOC argued that:
...28 days is an insufficient period for applicants to seek
appropriate advice as to whether to commence court proceedings, and to arrange
legal assistance, especially given that:
-
victims
of discrimination and sexual harassment are typically from socially
disadvantaged groups;
-
a
significant portion of complainants who lodge complaints under the SDA with
HREOC are not legally represented;
-
access to
free legal advice and representation in relation to discrimination matters is
limited; and
-
once
proceedings are commenced, applicants face an inherent risk of an adverse costs
order.[46]
6.45
For these reasons, HREOC suggested that this 28 day period should be increased
to 60 days.[47]
Burden of proof
6.46
Some organisations argued that the burden of demonstrating that discrimination
has occurred should not fall entirely upon the complainant. The Collaborative
submission explained the difficulties complainants experience because they bear
the burden of proof:
Proving that the ground of any less favourable treatment was
sex, marital status or pregnancy or potential pregnancy can be very difficult,
as all evidence of the reason for the action lies with the employer. Unless an
employer explicitly states that the reason for an action is the sex, marital
status or pregnancy of the person affected..., it will often be hard to
convince a court why the action was taken. The law provides no assistance to
complainants to prove their case, and often they will have to rely on the court
drawing inferences from circumstantial evidence, or even form the absence of
any evidence at all.[48]
6.47
Associate Professor Simon Rice also pointed to the difficulties involved
in proving that a respondent’s conduct was caused by discrimination:
A complainant must therefore prove the reason for another
person’s conduct, when all knowledge of it is in the mind of the other person,
any evidence of it is in the control of the other person, and the power to
contradict any allegation is with the other person. A complainant must prove as
fact, on balance of probabilities, the unarticulated reason for a person’s
conduct – a very difficult exercise. This approach to proof often enables a
person to avoid accountability for their discriminatory conduct, simply because
they are not called on to explain it.[49]
6.48
HREOC proposed three options for altering the burden of proof to make
establishing causation more achievable:
The first option is to give guidance under the SDA on relevant
common law principles that already apply. It is not effectively changing the
law. It would just be reflecting what the common law principles are about
drawing adverse inferences when a party has the means to put evidence before
the court and they have failed to do so.
The second option is drawing on the experience in the UK and
throughout Europe. That is a shifting evidential onus whereby once an applicant
...can establish a prima facie case that there is a relationship between their
attribute and the treatment, the evidential onus shifts to the respondent to
explain why they acted as they did. The third option ...is a complete reversal
of onus.[50]
6.49
The second option identified by HREOC would involve inserting in the Act
a provision similar to section 63A of the Sex Discrimination Act 1975 (UK)
which in paraphrased form provides:
Where ...the complainant proves facts from which the tribunal
could, apart from this section, conclude in the absence of an adequate
explanation that the respondent—
(a) has committed an act of discrimination against the
complainant...
the tribunal shall uphold the complaint unless the respondent
proves that he did not commit ...that act.[51]
6.50
HREOC explained that this provision implements a directive of the
European Union on the burden of proof in sex discrimination cases. HREOC quoted
the explanation given by the Equality and Human Rights Commission (UK) of the
effect of section 63A:
The effect of s.63A of the SDA is that the [employment tribunal]
must find unlawful discrimination where the claimant proves facts from
which the [employment tribunal] could conclude - in the absence of an adequate
explanation from the respondent - that the respondent has unlawfully
discriminated, unless the respondent provides a non-discriminatory explanation
for the act complained of. (emphasis in original)[52]
6.51
Associate Professor Simon Rice favoured this option of a shifting burden
of proof. He noted that:
A shifting burden is well-known and well-established in areas of
Australian law, most relevantly in anti-discrimination provisions in workplace
relations law. Section 809 of the Workplace Relations Act (Cth) is only the
latest enactment of a provision that can be traced back through s298V Workplace
Relations Act 1988 (Cth) and s 334 Industrial Relations Act (Cth) to s 5 of the
Conciliation and Arbitration Act 1904 (Cth). ...
In light of the significant international recognition of a
shifting burden as a preferable method of inquiring into alleged
discrimination, and the century-long operation of such a provision in workplace
discrimination legislation in Australia, I submit the SDA should be amended to
shift the burden of proof in terms similar to those in the UK SDA and s809
Workplace Relations Act (Cth).[53]
Amount of damages
6.52
HREOC publishes details of the amounts awarded to successful
complainants by the Federal Court and the Federal Magistrates Court in sex
discrimination and sexual harassment cases since April 2000. The overall awards
in sex discrimination cases range from $750 to $41,000. In sexual harassment
cases, the range is from $1,000 to $28,000, apart from one case in which a
complainant who had been subjected to rape, harassment and victimisation was
awarded $390,000.[54]
6.53
The committee received conflicting evidence regarding the adequacy of these
damages awards. VACC suggested there should be a statutory ceiling on damages
awarded for pain, humiliation and suffering caused by sex discrimination.[55]
Similarly, Mr Scott Barklamb of ACCI noted that small to medium sized
enterprises are not subject to different damages or different obligations in
relation to sex discrimination and that the damages awards can be quite
significant for those enterprises.[56]
6.54
On the other hand, the Collaborative submission stated that:
Except in a few exceptional cases, remedies granted under the
SDA have been very low, and arguably do not fully compensate women for their
loss, especially where discrimination or harassment leads to termination of
employment. ...
While awards for back pay are common, awards for pain and
suffering, and for front pay are often not given, or are unjustifiably low.
Pain and suffering awards are often only several thousand dollars, which is
quite inadequate in a matter where a complainant has had to persist with
litigation in which her competence, personality and motives may have been
subject to attack and where she has had to risk the possibility of paying the
respondents costs if she lost.[57]
6.55
Similarly, NACLC submitted that the damages awarded by the courts in sex
discrimination and sexual harassment matters are “extraordinarily low”.[58]
NACLC argued that these low awards are manifestly inadequate to compensate for
the loss suffered and that this discourages women from pursuing claims under
the Act:
For some women who experience sex discrimination and sexual
harassment, the inadequacy of the remedy makes it not worth bringing a formal
complaint, or seeing it through to its conclusion at hearing, particularly
given the financial and emotional cost of bring a successful action, much less
the risk of costs for an unsuccessful one. Thus the lack of an appropriate
remedy discourages complaints, or at the very least acts as a disincentive for
women to use the SDA to address discrimination.[59]
6.56
The Law Council noted that a further impact of low monetary awards may
be to trivialise the nature of the conduct prohibited by the Act:
The historically low levels of compensation generally awarded
under the SD Act have been criticised as being reflective of a view that
discrimination against women, and sexual harassment in particular, is
unimportant. It has been observed that low levels of monetary compensation
trivialise the serious nature of the conduct involved in complaints of sex
discrimination and the often devastating impact on the complainant.[60]
6.57
NACLC recommended that damages awarded for discrimination matters should
be increased to a comparable level to tort claims.[61]
However, the Law Council did not support a general approach of assessing
damages along the lines of personal injuries claims, arguing instead that “the
measure of damages has to be appropriate to discrimination claims.” The Law
Council suggested instead that subsection 46PO(4) of the HREOC Act could be
amended to provide that, in unlawful discrimination cases which involve
termination of employment, damages should be assessed having regard to the
common law principles which apply to awards of damages in termination of
employment cases.[62]
Remedies
6.58
Some evidence to the committee argued more broadly that the existing
remedies available for breaches of the Act are inadequate. For example, the
Women’s Electoral Lobby explained that the remedies available under the Act have
no capacity to produce systemic changes:
Even if an employer is found to have discriminated, they will
only be ordered to compensate the victim. The courts lack power to order
systemic corrective orders—such as a change in policy, the introduction of a compliance
program that might prevent further discrimination, or an audit to ascertain
further or more widespread incidence of discrimination similar to that of the
individual complainant—or to set reform standards. In this way, the laws are
more focussed on redressing, not preventing harm or promoting equality.[63]
6.59
Similarly, Dr Smith told the committee that:
To make the system more sophisticated and preventative ...we
need a range of remedies and sanctions, not merely compensation. Under the
existing system, it does not matter whether an employer has discriminated 10
times blatantly, egregiously and intentionally, the court can still not order
anything but redress for the victim. It cannot say, ‘You need to develop a
policy. You need to take this legislation seriously. You need a whack over the
head.’ It cannot do any of that. It is all about what you have caused to the
victim post facto.[64]
6.60
The Collaborative submission also noted that the remedies provided for
under the Act “do not address systemic issues such as requiring employers to
change their systems, to prevent similar discrimination occurring in future.”[65]
The submission went on to argue that:
Systemic remedies should be explicitly part of the court’s
powers and courts should be directed in awarding remedies to do what is
necessary not only to compensate the particular complainant but to ensure that
any discriminatory practices identified are changed so that others will not be
similarly affected.[66]
6.61
Professor Thornton made a similar recommendation that subsection 46PO(4)
of the HREOC Act should be amended to allow for court orders requiring
respondents to discontinue discriminatory practices or to perform acts that aim
to create a non-discriminatory environment.[67]
6.62
Dr Smith argued that the sanctions available for breaches of the Act
should be expanded not only to include corrective and preventative orders, but
also punitive damages or public penalties for egregious acts of discrimination.[68]
However, Ms Bowtell of the ACTU submitted that the focus should be on
preventative orders rather than adopting the US approach of awarding punitive
damages:
[O]ur preference is not so much for punitive damages but for
broad orders that go beyond compensating the individual to organisational
change at the workplace. It is preventative orders rather than punitive orders.
That would be our preference.[69]
Costs orders
6.63
NACLC noted that the risk of having to pay the respondent’s costs, if a
complaint is unsuccessful, is a significant barrier to the pursuit of
complaints under the Act:
For those clients who have the capacity to earn an income, or
any assets to lose, the risk of an adverse costs order in the Federal Court or
Federal Magistrates Court if they lose is a risk they cannot afford to take.[70]
6.64
To address this issue of costs deterring complainants, NACLC recommended
that there should be routine capping of costs in unlawful discrimination
matters dealt with by the Federal Court and the Federal Magistrates Court.[71]
Order 62A of the Federal Court Rules permits the Federal Court to make
such an order but NACLC noted that this mechanism has not been successfully
used. NACLC submitted that:
Clearly a costs capping mechanism can be used successfully, as
has been demonstrated in migration matters where costs have been routinely
capped. Such a process could easily be applied to unlawful discrimination
matters.[72]
6.65
Alternatively, UNIFEM Australia recommended that the Act (or other
appropriate legislation) contain a provision that, as a general rule, costs
will be borne by each party.[73]
Job Watch also recommended replacing the current rule that costs follow the
event with a rule that, in all but the most exceptional circumstances, each
party will bear its own costs.[74]
Job Watch acknowledged that respondents have a right not to be burdened with
unmeritorious or vexatious claims but submitted that an appropriate balance
between the rights of respondents and complaints could be struck by prohibiting
a costs order against a party unless the party:
-
issued proceedings which were vexatious or frivolous; or
-
acted unreasonably during the proceedings, including by failing
to accept a reasonable offer of settlement, causing the other party to incur
costs.[75]
6.66
Mr Scott of Job Watch explained how this approach operates in the
Victorian Civil and Administrative Tribunal (VCAT):
There is a list of things that VCAT can take into account when
considering to make a cost order ordering the losing party to contribute to the
winning party’s costs. It is usually things like: frivolous or vexatious
complaint; no reasonable prospect of success; and unnecessary delays, such as
not attending hearings...[76]
Complaint handling
6.67
In relation to the process for handling complaints, NACLC submitted
that:
While conciliation conferences are a great assistance to many
complainants and respondents to reach a mutually satisfactory outcome, such a
conference is not always appropriate. [77]
6.68
In particular NACLC argued, firstly, that if the conciliation process is
overly lengthy this increases the burden on already stressed complainants.
Secondly, in sexual harassment cases, it is inappropriate and potentially
damaging to have the complainant sit in the same room as the respondent to
negotiate a settlement.[78]
6.69
NACLC suggested that there should be the capacity for HREOC to undertake
expedited conciliation or for a matter to be directly referred to a hearing
where conciliation is inappropriate.[79]
However, HREOC stated that:
Conciliation may be attempted at any time during the complaint
process, including very early in the process. An early conciliation model is
frequently used in complaints lodged under the SDA which raise issues about
negotiation of flexible work arrangements, returning to work after a period of
maternity leave or where parties are in an ongoing relationship or have already
tried to resolve the matter directly.[80]
6.70
Furthermore, HREOC noted that:
The appropriateness of attempting conciliation is assessed on a
case by case basis and it is not undertaken with every complaint.[81]
6.71
Finally, HREOC argued that the format of conciliation can be structured
to address issues such as a power imbalance between the parties:
While the majority of HREOC’s conciliation processes are
conducted in the form of a face–to-meeting between the parties, it will not
always be necessary or appropriate to bring the parties together and in some
cases, this may be inappropriate and will frustrate resolution. For example,
where there is a significant power imbalance between the parties, where one of the
parties is emotionally vulnerable or where a face-to-face meeting may
exacerbate feelings of distress and anxiety, alternative conciliation formats
are employed. These alternative formats include in-person shuttle, which
involves the parties being at the same location and the conciliator conveying
messages between the parties, telephone shuttle negotiations and
teleconferences.[82]
6.72
Dr Sara Charlesworth suggested Australia consider adopting a dispute
resolution process similar to that used by the New Zealand Human Rights
Commission with the focus being on resolving complaints in the most effective,
efficient and informal manner.[83]
Dr Charlesworth described the four main stages in this dispute resolution
process as follows:
-
Triage of complaints which involves assessment as to whether the Commission
is the right agency and whether information can help the parties clarify or
resolve their complaint.
-
Complaints that relate to unlawful discrimination are either passed to
the duty mediator (to start to deal with on the day); or acknowledged and
assessed further (if the nature of the complaint suggests that immediate
intervention will not be productive).
-
After assessment, complaints are assigned to mediators.
-
Where matters are unresolved after mediation, they are referred to the
Human Rights Review Tribunal. At this stage, the Office of Human Rights
Proceedings, an independent part of the Human Rights Commission, may also be
involved in providing legal representation to complainants.[84]
6.73
Dr Charlesworth argued that the New Zealand complaint handling process
has a number of advantages:
The system of triage, in particular, has enormous potential. In
a recent project on pregnancy discrimination we found that those who are
experiencing workplace discrimination require the sort of practical support and
non-technical, non-legalistic advice that the NZ system apparently provides in
this phase... The role of the Duty Mediators is also an innovative one that
would, especially in the employment context, facilitate the speedy resolution
of disputes in an informal way that works to maintain rather than exacerbate
any rupture of the employment relationship.[85]
6.74
An alternative proposal was put by union groups, including the ACTU. They
recommended that the Australian Industrial Relations Commission, or the
proposed body Fair Work Australia, should deal with complaints of workplace
discrimination and harassment or have shared jurisdiction with HREOC and the
Federal Court.[86]
For example, the ACTU submitted that:
Given the significant majority of discrimination complaints are
employment related, and the proven capacity of the [Australian Industrial
Relations Commission] to resolve complaints effectively and efficiently, the ACTU
would support the referral or shared jurisdiction of employment related complaints
with Fair Work Australia...
Employees and their trade unions have conventionally seen the
Workplace Relations Act and the Australian Industrial Relations Commission
...as preferable mechanisms for dealing with workplace disputes about
discrimination.[87]
6.75
However, there was some evidence suggesting that the existing complaint
handling processes are adequate. For example, Mr Ian Scott of Job Watch told
the committee:
In my experience of HREOC—which is limited because I often go to
the state jurisdiction—I have found their conciliators to be very professional,
very good at their job, and willing to go maybe beyond duty to help the parties
come to an agreement. From that perspective, it is very good.[88]
6.76
In addition, HREOC submitted that feedback from complainants and
respondents on its complaints handling service was overwhelmingly positive. HREOC
provided a summary of the 2007-08 customer satisfaction survey results for
complaints under the Act which included findings that:
-
78% of parties felt that HREOC dealt with the complaint in a
timely manner.
-
94% of parties did not consider staff to be biased.
-
93% of parties were satisfied with the service they received.
-
64% of parties rated the service they received as very good or
excellent.[89]
6.77
Furthermore, HREOC noted that:
Complaints under the SDA have a consistently high rate of
conciliation which has increased to 53% in the last reporting year.[90]
Reporting on complaints and
outcomes
6.78
Several submissions recommended publication of more detailed de-identified
information concerning complaints received by HREOC and their outcomes.[91]
The Women’s Electoral Lobby noted that the outcomes of conciliated complaints
are generally confidential and that this limits the availability of information
required for the purposes of educating potential complainants and respondents
in order to reduce discrimination.[92]
Professor Thornton explained that:
[C]onciliation is the main mode of dispute resolution in this
jurisdiction. That means that about 98 per cent of complaints never go beyond
the conciliation level and there is agreement that conciliation occur behind
closed doors.
...Material is published now—it is a little bit better than it
used to be—that tends to focus on statistics and so on. I think having more
material available to help other complainants would serve a very important
educative function. What is the point of having a jurisdiction that operates
almost entirely in private, behind closed doors, and then has very little money
to communicate to the general public the outcome of those decisions or
settlements that have been ...effected that way?[93]
6.79
Dr Charlesworth also submitted that there would be benefits in
publishing more detailed information on inquiries and complaints:
There needs to be a serious and committed attempt to collect and
publish detailed deidentified data on the inquiries and complaints made to
HREOC. This would enable both the monitoring of the efficacy of the SDA and
HREOC processes and practices. Good data collection and analysis is vital not
only for reporting and accountability purposes, but also for monitoring trends
in complaints and for the education and research activities undertaken by
HREOC. Such data can form the basis of feedback to employer associations,
unions, government and the broader community so that discrimination issues can
be tackled in a proactive way.[94]
6.80
HREOC gave evidence that some de-identified information is already
published:
[T]he general confidentiality of the conciliation process or any
terms of agreement that may be entered into by the parties does not prevent
HREOC from providing public information in a de-identified form about issues
raised in complaints and outcomes obtained through conciliation. HREOC has
developed a conciliation register that provides de-identified summaries of
conciliated complaints. HREOC also publishes de-identified case studies in its
annual report, on its webpage and in policy documents.[95]
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