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ADC Annual Report 1999/2000

Law, Policy and Conciliation

The obligation to investigate, conciliate and, if necessary, hear complaints lies at the core of the Anti-Discrimination Commissioner’s functions. The Act provides that if the Commissioner is to hear a matter, he must not have been involved in the investigation or conciliation of the complaint. As a result, the Commissioner has delegated the powers to investigate and conciliate complaints to the conciliators, who act as delegates in receiving complaints, deciding on whether to accept or reject them; conducting an investigation; making a decision as to whether the complainant has established a prima facie complaint; and, where necessary, conducting a conciliation conference.

Throughout all stages of the process the Office of the Anti Discrimination Commissioner maintains both absolute confidentiality and absolute impartiality. Often complainants will believe that the Commission’s function is to assist them. This is incorrect. The Commission’s function is to investigate, conciliate and if need be determine complaints. Each of these functions requires complete neutrality. Any advice the Commission’s staff gives to complainants or respondents only goes to the form and procedure of complaints – not as to how to conduct a complaint.

Complaint Handling in 1999/2000

Complaint numbers maintained roughly the same high level as in the previous year (1998/1999). The steady flow of complaints certainly indicates that discrimination issues are not abating. As well, there has been a significant increase in matters referred to hearing. Appeals remain quite common. The details of hearings and appeals appear below.

With few exceptions, the Commission has fulfilled its statutory obligation to determine the outcome of a complaint to the prima facie stage within six months of accepting the complaint. This is one of the most rapid response times of any similar agency in the country. The Law Policy and Conciliation division is continuing to refine and improve processes to provide for an improved turn around time in complaints. The rapid processing of complaints is one significant factor in their eventual successful resolution.

One significant step in the improved processing of complaints has been the introduction in 1999 of a database within the Law Policy and Conciliation division that facilitates the better management, coordination and reporting of complaints, hearings and appeals. While the introduction of the database has been valuable, there is still significant scope and need to improve information technology within the division in order to both increase effectiveness and user access to the facilities of the Commission.

Representation

The parties, and in particular respondents will, from time to time, request that they be represented in the proceedings by solicitors. Section 62 of the Act gives a delegate a discretion as to whether to allow representation. The normal expectation is that parties will not require representation. Guidelines are in place in relation to the exercise of a delegate's discretion. These guidelines were developed from the decision of Bailey J in Darwin Port Authority et al v Anti-Discrimination Commissioner. Briefly stated, a delegate may agree to representation, normally by a solicitor, depending on:

1. The seriousness of the matter
2. The complexity of the factual and legal issues
3. The ability to conduct a case
4. Fairness to the opposite party
5. The availability of alternative access to legal assistance or advice.

Representation may also be granted where, for example, for reasons of geographical remoteness, it is more convenient to allow representation. The guiding principle is that of fairness to the parties.

There is authority to suggest that review of decisions not to approve representation is by way of judicial review in the Supreme Court and not by way of appeal to the Local Court. (MAS Berhad v ADC & Lee)

Enquiries

The first contact most people have with the Office of the Anti-Discrimination Commissioner is by making an enquiry. Advice given in response to enquiries is both free and confidential. Advice that is given goes to the issues covered by the Act and the procedures utilised by the Commission.

There is a low number of calls received from rural and remote communities in the Territory. Due to isolation and language barriers, residents in these communities may be among the most in need of the protection afforded them through the Act. It is hoped that the production of videos and other material in Aboriginal languages, for distribution to these remote communities, will help redress this need.

There was a similar number of enquiries received this year (914) compared with the previous year (1010) indicating significant public awareness of the existence and functions of the Commission.

Complaints

It is a requirement of the Act that all complaints be in writing. Complaints must be lodged within 6 months of the alleged prohibited conduct (which includes discrimination, sexual harassment, seeking unnecessary information, etc) taking place. A delegate has the power to accept complaints out of time, however this discretion is not often exercised, and usually only where a complainant is able to demonstrate that the lapse of time occurred through no fault of their own. The delegate also occasionally allows in material out of time where it forms part of a continuing pattern of prohibited conduct such as sexual harassment.

There is tabular and graphical information relating to complaints at the conclusion of this section.

Upon receipt of a complaint, a delegate, upon being satisfied that a complaint is within time, then examines it to ascertain whether the activity complained of falls within an area covered by the Act and, if it is a discrimination complaint, whether there is any evidence that the activity is related to an area covered by the Act. As noted earlier in this report the Act covers six areas of activity (education, work, accommodation, goods, services and facilities, clubs and insurance and superannuation).

The area that generated the largest number of complaints was that of work. Much educational activity and attention has been directed over the last year to the development and implementation of policies and training in the workplace to help eliminate discrimination.

The other preliminary check is to ascertain whether any of the attributes covered by the Act are related to a complaint of discrimination. The "attributes" as defined by the Act are set out earlier in this report. The Act prohibits discrimination based on any of the specified attributes.

It is here that some misconceptions can arise. The office can be contacted by a potential complainant who alleges that they have been discriminated against, however if they are unable to demonstrate that the discrimination was based on any of the attributes listed above, the complaint is rejected.

The usual practice is to write to the Complainant, pointing out that no attribute appears to be relevant to the complaint.

The decision to accept or reject a complaint must be made by the conciliator within sixty days of the complaint being received by the Commission. If a complaint is accepted an investigation is carried out.

Of the 289 complaints closed for the year 32% were rejected at the outset.

Investigation

Most people are unfamiliar with an investigation or inquisitorial process, many having only had experience of the adversarial process experienced in the courts. The process gives the parties time to think about the issues and clarify them and to gather relevant information. It removes the risk of "sudden death" for the complainant because the necessary information to support the case is not in the first document. It also benefits respondents by acting as a screening process for complaints before they become public matters.

A delegate has a wide discretion in the form that an investigation under the Act may take. The issues may be clear after an initial exchange of correspondence, or after a second exchange it is normal for both parties to twice be able to provide material rebutting the position of the other party, or putting evidence favourable to their case to a delegate.

From time to time, it is necessary to interview witnesses. Up to a dozen witnesses have been interviewed in relation to one complaint. All interviews are taped. The transcript is then provided to both parties for their comment. Taking transcripts slows down our process somewhat and is extremely resource intensive, but provides certainty about what the witness can attest to and the issues in a complaint, and is considered a worthwhile sacrifice for this reason.

Medical or business records may also be sought, and occasionally police records. There are powers to compel attendance at proceedings under the Act and the production of records if necessary.

Prima Facie Decisions

A delegate makes the prima facie decision from information on file. It is not a finding of fact or of liability. But, essentially a test. The test to be applied in order to find that there is prima facie evidence is that there is sufficient evidence that there is a probability that if the matter went to a hearing the complainant would be found to be entitled to an order under Section 88 of the Act. The complainant bears the burden of proof, i.e. the complainant must be able to demonstrate that there is evidence to establish the probability that they would be entitled to an order as described. At this stage, the complaint is either dismissed or prima facie evidence is found and the complaint proceeds to a conciliation conference or a hearing depending on the circumstances.

Of the 289 complaints closed for the year 65 (23%) were dismissed at the prima facie stage.

Following the decision of Trigg SM in MAS Berhad v ADC & Lee appeals from a prima facie decision can only be made by the complainant if a decision is made to reject a complaint. There were six appeals from a prima facie finding either concluded or on foot in 1999/2000

Conciliation Conferences

Conciliation is at the heart of the Act. Conciliation allows the parties to come together to reach a mutually satisfactory agreement about the complaint. At a conciliation conference the complainant and respondent meet, with a conciliator, to discuss, and if possible, resolve the complaint in an environment that is free from the emotion and formality of a hearing. It also reduces the delay, time and inconvenience of a full hearing.

A conciliation conference can occur during either the investigation phase or after a favourable prima facie decision for the complainant. A Hearing Commissioner may also determine that there is scope for conciliation between the parties during the hearing stage.

Hearings

If a complaint cannot be settled by conciliation after the finding of a favourable prima facie decision for the complainant the matter will be referred to hearing. The Commissioner initially holds a directions hearing. At these hearings the parties come together to establish dates for filing Points of Claim by the Complainant (a document setting out the substance of the complaint), Points of Defence by the respondent (a document setting out the nature of the defence), the number of witnesses and how much time will be needed, whether or not the parties will be represented, a hearing date and any other matters that need to be clarified.

A total of 51 matters have been referred to hearing over the year. This is a marked increase from 19 in the previous year. However, many of the 51 matters referred to hearing involve a single complaint against a number of respondents. Further, 29 of the matters referred to hearing consist of complaints surrounding the establishment of an Aboriginal Interpreter Service. Hearing of these matters has been delayed to allow for further discussions between the parties. It is hoped these matters will be resolved before going to hearing.

The Commissioner has held 13 directions hearings this year. At a directions hearing the matter may be referred back to conciliation or a hearing date may be set. Six cases were referred back to conciliation and those six settled. The parties may continue to hold discussions amongst themselves concerning settlement right up until hearing.

While the outcome of conciliated settlements is generally confidential, two matters may be cited by way of example. In MAS Berhad v Lee, Malaysian Airline Systems published an apology to Mr Jude Lee in the NT News on 29 November 1999. In the apology MAS acknowledged that seeking certain medical information from Mr Lee and seeking him to sign an indemnity agreement was alleged by Mr Lee to be unlawful discrimination. MAS apologised to Mr Lee for any hurt and embarrassment caused.

In Sutherland v Rorkes Drift (Fugitives Drift P/L) an apology was published in the NT News on 6 December 1999. In that apology, Mitch McNamee acknowledged the current design of his popular bar did not properly consider the needs of people with impairments. He undertook to ensure that any future development of Rorkes Drift would properly address equality of access. Mr McNamee also acknowledged that as a result of Ms Sutherland’s complaint he acquired a much better understanding of the obligations of building owners under the Act.

The most notable of the hearings has been the interlocutory proceedings in Garovic v Pinecot. The respondents raised questions of jurisdiction of the Commission in relation to vicarious liability (where the employer is held to be responsible for the actions of their employee). The decision, handed down in September 2000, finds that an employer is vicariously liable for the actions of their employees under the terms of the Act.

Appeals

Appeals lie from the Commission to the Local Court under s.106 of the Act. In MAS Berhad v ADC & Lee Trigg SM interpreted this section as providing for appeals only on decisions that effectively bring a matter to finality (i.e. the rejection of complaints, negative prima facie decisions or hearing orders).

Appeals Finalised During 1999/2000

Matters Part Heard

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