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ADC Annual Report 2000/2001

Law, Policy and Conciliation

Matthew Storey

Director

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 Process - Overview

The Act allows for a person to make a written complaint to the Anti-Discrimination Commissioner alleging discrimination or other prohibited conduct (which includes sexual harassment, failure to accommodate a special need and discriminatory advertising). The Act prohibits discrimination on the basis of the following attributes:

1. race;
2. sex;
3. sexuality;
4. age;
5. marital status;
6. pregnancy;
7. parenthood;
8. breastfeeding;
10. impairment;
11. trade union or employer association activity;
13. religious belief or activity;
14. political opinion, affiliation or activity;
16. irrelevant medical record;
17. irrelevant criminal record;
18. association with person who has, or is believed to have, an attribute referred to in this section.

Discrimination on these grounds is only prohibited in the areas of

1. education;
2. work;
3. accommodation;
4. goods, services and facilities;
5. clubs;
6. and insurance and superannuation.

The complaint process involves four stages. A written complaint is received by the Commission. The Commission makes a determination as to whether the complaint on its face is within jurisdiction. If so, the complaint is accepted. The complaint is then investigated, following which the Commission makes a determination as to whether there is prima facie evidence of prohibited conduct. If so, the complaint is referred to conciliation. If the complaint can not be conciliated, it is referred to a Hearing before the Anti-Discrimination Commissioner or a Hearing Commissioner. Because of the risk that involvement in the complaint before hearing may raise an appearance of bias, delegates of the Commissioner, rather than the Commissioner himself, deal with all complaints up to hearing stage. If the complainant can prove their case on the balance of probabilities, the Commissioner may award damages of up to $60000 and make orders in the nature of an injunction.

An appeal may be made against a decision to reject a complaint at any stage of the process or against the decision at hearing to the Local Court.

Complaint Handling in 2000/2001

Complaint numbers in 2000-2001 (333) is roughly equal to the average number of complaints over the last four years. The figure is significantly down from the previous period's total (531 complaints in 1999-2000). Whilst it is refreshing to see a reduction in the number of complaints, the decrease in complaints requires some examination.

Analysis of the complaints by gender of complainant and area of complaint suggests that the major decrease occurred in the number of complaints received in the area of Goods, Services and Facilities (GSF). The number of complaint "files" opened in the GSF area fell from 112 in 1999-2000 to 35 in 2000-2001.* The number of complaint files opened in the "work" area fell from 138 in 1999-2000 to 99 in 2000-2001. The most significant decrease was in the number of complaints from men about GSF matters (from 76 in 1999-2000 to 20 in 2000-2001). This analysis would support an analysis that the reduction may be due to the establishment of an Aboriginal Interpreter Service.

* (It should be noted that a "file" is used to describe the investigation of the matters raised by a single complainint with respect to a single factual scenario. A "file" may involve a number of complaints against a number of individual respondents. Thus, the 333 complaints received during 2000-2001 were contained within 160 "files".)

With very 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. Those complaints that were not dealt with in under six months were, on the whole, received earlier in the period before the implementation of revised, and efficient complaint investigation procedures.  The rapid processing of complaints is one significant factor in their eventual successful resolution.

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 additional videos and other material in Aboriginal languages, for distribution to these remote communities, will help redress this need.

The number of enquiries received this year (670) was lower than that received in the previous year (914). However, it should be noted that during the period the Commission commenced it web page which has been recording up to 3000 hits per day.

Acceptance of Complaints (Sections 65 and 66)

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 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 216 files closed for the year 77 (36%) were rejected at the outset.

Following the decision of Trigg SM in MAS Berhad v ADC & Lee appeals from a section 66 decision can only be made by the complainant if a decision is made to reject a complaint. There were 9 appeals from decisions under sections 65 and/or 66 either concluded or on foot in 2000/2001. One of these was successful.

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 guiding principle is that of natural justice. That is a party is given an opportunity to comment on any issue that may adversely affect their interests.

From time to time, it is necessary to interview witnesses. Up to a dozen witnesses have been interviewed in relation to one complaint. The form of interview may vary. Under the provisions of the Act a delegate may simply note a record of an oral conversation or, at the other end of the spectrum, a witness may be required to attend the Commission and give evidence under oath.

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.

Representation

Section 62 of the Act gives a delegate a discretion as to whether to allow representation. Over the period the Commission has altered its view on representation of parties during the complaint investigation process. Parties will now normally be allowed to have legal representation unless a particular detriment to a party to a complaint can be shown.

The liberalization of the ability to be represented ensures both the prompter investigation of complaints, a greater understanding of the role of the Commission and, often, a quicker resolution of complaints without the need to refer a matter to hearing. It also reflects the reality that many parties to a complaint were receiving legal advice "in the background".

The guiding principle in determining whether to allow legal representation in the complaint investigation process is that of fairness to the parties.

Prima Facie (section 76) 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 described by Martin CJ in the Northern Territory Supreme Court in Dew v Anti Discrimination Commissioner (1996) 130 FLR I at 17. His Honour noted "...that if the evidence remains as it is there is a probability that at trial of the action the plaintiff will be held entitled to relief. 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 216 complaints closed for the year 37 (17%) were dismissed at the prima facie stage.

As with decisions under section 66, 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 5 appeals from a prima facie finding either concluded or on foot in 2000- 2001.

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.

Of the 216 complaints closed for the year 38 (18%) were settled between the parties. Generally such settlement occurs with the facilitation of a conciliator either subsequent to a section 76 finding or during the course of an investigation.  For details of outcomes of formal complaints files see page 54.

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 first step in the hearing process is a Registrar's Conference. At these forums 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.

One of the most serious shortcomings of the procedures established by the Act is there is no clear statutory mechanism to deal with a party who unduly delays in filing their hearing documents.

A total of 31 matters have been referred to hearing over the year. 22 of these involved complaints relating to the establishment of an Aboriginal Interpreter Service (some of these were erroneously reported as having been referred to hearing in 1999-2000). The hearing of these complaints occurred in July 2001. Closing submissions in this matter are set down for September 2001. Of the other matters already listed or referred for hearing, six have settled prior to hearing and the remainder have been set down for hearing later in 2001.

In addition to the matters referred to hearing over the period, significant progress has been made on eliminating a backlog of hearing cases that had been carried over from the previous reporting period. The following table sets out the status of all matters currently listed for hearing before the Commission.

MATTER		OUTCOME
Ankin & Ors v Northern Territory (A large number of complaints are comprised in this Hearing)		Part Heard, set down for September
Barton-Johnson v Darwin Turf Club		Listed for Hearing, October 2001
Bell v Quinlan		s.102 application listed for September 2001
Bishop v Lend Lease		Settled prior to hearing
Cooper v Jewel Group		Settled prior to hearing
Fry v Santos Petroleum		Settled prior to hearing
Garovic v Pinecot P/L		Adjourned, pending judicial review.
Ljuduraj v THS & Ors		Settled prior to hearing
Lewin v TEABBA & Cummings		Dismissed per s. 102
MacLeod v JSK Nominees P/L & Ors		Awaiting Listing
McDonnell v Richards		Direction for pleadings made
Renouf v ABC & Gibson		Heard, awaiting decision
Russell v Chubb Security Ltd		Settled prior to hearing
Smith v Ciarla		Settled prior to hearing
Weigand v NT Correctional Services		Listed for hearing, September 2001
Weigand v Pidgeon		Direction for pleadings made
Page v Fugitives Drift		Direction for pleadings made

Appeals

Appeals lie from the Commission to the Local Court under s.106 of the Act. Two Local Court decisions decided in may 2001 are of particular significance to the operations of the Commission. These are the interlocutory decisions in Trenow v ADC and Fiorido v ADC & Territory Housing. Both were decisions of Mr Trigg SM. Trenow concerned the nature of an appeal against a decision to reject a complaint pursuant to section 66 (and section 65) of the Act. Fiorido concerned the nature of an appeal against a decision to reject a complaint pursuant to section 76 of the Act.

In these decisions Mr Trigg determined that generally an appeal against these decisions will be an appeal on the materials upon which the delegate of the Commissioner made the original decision. These decisions clarify that Mr Trigg's earlier decision of McDermott v Lawrie which held that an appeal under section 106 is a hearing de novo only applies in the instance of an appeal against a decision of the Commission reached after hearing, not to decisions under sections 66 and 76.

The decisions in Trenow and Fiorido have led to a much quicker resolution of decisions appealed to the Local Court. However, a question must still be raised as to the appropriateness of the location of the Hearing and Appeal functions under the Act and whether these lead to the best resolution of grievances for Territorians.

Appeals Finalised During 2000/2001

Matters Part Heard

Outputs Outcomes

The Law, Policy and Conciliation section of the Commission represents a distinct output group for the purposes of the outputs measurement of the Agency.

In Budget Paper No 2 this output group is described as complaint resolution. The following performance measures are identified in the Budget Papers.

A.   Complaint Resolution

Complaint acceptance, investigation, conciliation and hearing

The broad heading of complaints resolution is further refined for the purposes of performance measurement within the agency. The following outputs have been identified as representing the activities of the section. The 2000-2001 figures in the following tables now represent actual figures (unlike the estimates included in Budget Paper No. 2).

Output 1: Answer enquiries

Description: This output refers to phone, email written or in person enquiries about rights and obligations under the Anti-Discrimination Act 1992.

Output 2: Assess Complaints

Description: This output refers to the acceptance or rejection of written complaints lodged with the Commission under section 66 of the Anti-Discrimination Act 1992.

Output 3: Investigate Complaint files

Description: This output refers to the investigation of complaints under section 74 of the Anti-Discrimination Act 1992 (note the measure of this output "complaint files"; differs from output 2 in that one "complaint file" may contain a number of "complaints").

Output 4: Conciliate Complaints

Description: This output refers to the conciliation of complaints under section 78 of the Anti-Discrimination Act 1992.

Output 5: Hear Complaints

Description: This output refers to the hearing of complaints under section 83 of the Anti-Discrimination Act 1992.

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