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Procedures and remedies for dealing with complaints of racial discrimination and vilification

Keynote speech by Dr William Jonas, Aboriginal and Torres Strait islander Social Justice Commissioner and Acting Race Discrimination Commissioner, Human Rights and Equal Opportunity Commission, Australia

Presented to the Sixth International Workshop of National Human Rights Institutions in Copenhagen

11 April 2002

The obligation to afford an effective remedy

While prevention of racial discrimination, incitement and racial vilification is the priority of both the international scheme to combat racism and domestic policy, victims of racism are not forgotten. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, (ICERD), commits all member countries to "assure to everyone within their jurisdiction effective protection and remedies … against any acts of racial discrimination", "as well as the right to seek … just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination".

In its General Recommendation No. 26 (March 2000) the Committee on the Elimination of Racial Discrimination emphasised that punishment of the perpetrator would not on its own satisfy article 6. "Just and adequate reparation or satisfaction for any damage" would usually require an award of financial compensation.

An earlier General Recommendation (No. 17, March 1993) recommended ICERD States Parties consider establishing national commissions to promote the principles of the Convention. Interestingly the list of suggested functions does not include complaint handling. Yet already the Paris Principles, adopted in 1991, saw complaint handling as a desirable feature of national human rights institutions, though not an essential feature.

The complaint handling function could involve:

a. Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality.

b. Informing the party who filed the petition of his rights, in particular the remedies available to him, and promoting his access to them.

c. Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law.

d. Making recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations and administrative practices, especially if they have created the difficulties encountered by the persons filing the petitions in order to assert their rights.

Australia's conciliation model

Australia pioneered the conciliation model of complaint resolution in a period when European race discrimination laws typically created a criminal offence relying on the police for enforcement. The national legislation implementing ICERD is the 1975 Racial Discrimination Act or RDA.

In Australia - a federation of 8 constituent States and Territories - there are 9 separate anti-race discrimination systems at work with some overlap between each State or Territory law and the national RDA. Nevertheless, coverage and process are sufficiently similar to justify treating the 'Australian model' as distinct for our purposes today.

In Australia only an aggrieved person, or a trade union on behalf of a member, can submit a complaint of race discrimination. The complaint must be in writing (whether posted or emailed). It does not need to have been drawn up by a lawyer and, in fact, complaints rarely are.

In the national institution it is the President who investigates complaints. She does so through her delegate, the Director of Complaint Handling. She can terminate a complaint on any one of a number of grounds:

Where it appears a complaint can be resolved by the parties themselves, the institution will try to help them reach a fair agreement. Conciliation processes are flexible and sometimes matters may be settled by exchange of letters, telephone negotiation through the officer handling the matter, or by a telephone conciliation conference.

Sometimes the parties will be brought together in a 'conciliation conference' which is an informal, impartial and private process. The conciliation officer sets the standards for the conference. If the conciliation officer agrees, a party may have a lawyer, advocate or support person at the conference. However, legal representation is not necessary and, if it is agreed to, is at the party's expense.

The Australian institutions have powers to compel the production of documents and attendance at conferences. These powers are rarely used in practice since parties are generally co-operative. While the negotiated outcome of conciliation must be lawful, there are no statutory limits on its extent.

Where the parties cannot reach an agreement, the complainant is entitled to have the matter adjudicated by an independent, quasi-judicial specialist tribunal in the States and Territories or in the Federal Court under the RDA. Thus while a judicial determination is always available as a last resort, complainants must usually attempt conciliation before seeking one.

Examples of remedies agreed and awarded

Conciliated cases

Conciliation example 1

The complainant claimed that she was the victim of discrimination after a promotion in that:

The respondent agreed that the allegations made by other staff members against the complainant were unfounded and that the official performance warning was not justified. However, the respondent stated that, while the complainant may have been treated less favourably by her co-workers, this was because of 'internal conflicts' rather than the complainant's race.

Outcome: The complaint was settled by conciliation with the respondent agreeing to issue the complainant with a letter of apology, pay the complainant $15,000 compensation, reimburse costs incurred by the complainant in pursuing the complaint and publish a tribute to the complainant in the organisation's newsletter.

Conciliation example 2

The complainant claimed that she was speaking to a friend in her first language, which is Italian, while waiting for an appointment at a community club. The complainant alleged that the Club Secretary approached her and said, "Be quiet. This is an Australian Club and you ought to speak English. This is the Club rule".

The Club Secretary eventually admitted making the alleged remarks. The Club President advised that there had never been a policy that people must speak English while on the Club's premises.

Outcome: The complaint was resolved by conciliation with the Club Secretary of the Club providing a personal written apology to the complainant. The Secretary was also counselled by the Club Committee.

Court and tribunal verdicts

Determination example 1

At a workshop organised by the local Council of which both parties were members, the respondent suggested a 'solution' to an issue in the Aboriginal community was to "shoot them". The complainant, an Aboriginal councillor, and two Council staff were present and gave evidence that the comment was not made flippantly. The tribunal noted: "Suggesting that a particular group of people … should be shot is simply offensive. It is made more so when such a suggestion is made by the holder of a public officer who has no doubt sworn an oath to appropriately serve all of the people in the ward which he represents [including the Aboriginal community referred to]." The respondent was ordered to pay $1,000 compensation to the complainant. The Commissioner took into account the fact that an apology had been offered and that the respondent had undertaken cultural awareness training. [2]

Determination example 2

A complainant of Ugandan descent established he had experienced racial discrimination and harassment in employment to the point where he was at the time of the hearing incapacitated for work. He was awarded $30,000 in general damages and $25,000 for loss of earning capacity. [3]

Evaluation of the conciliation model

Criticisms of conciliation

One criticism of the reliance on conciliation in discrimination cases is that it has the effect of defining discrimination as an unwanted 'trespass' to the individual rather than an unlawful act against community standards.[4] It is also noted that conciliation is unlikely to bring about structural change or 'effect substantive equality'. [5]

'Settling' discrimination cases through conciliation, carried out in private, detracts from recognition of the pervasive problem which is discrimination. It turns a structural matter into a question of individual or personal harm. [6]

Australian research to some extent contradicts this, although more could be done to achieve systemic change through conciliation. The process offers an opportunity for the complainant to request and the respondent to offer or agree to a policy change benefiting everyone in the complainant's class. [7]

There has also been criticism of the justice of conciliated outcomes. Theoretically the outcome may be tailor-made to suit the parties' needs. In practice, without a precedent or benchmark (or 'tariff'), the outcome depends on the complainant's self-estimation and the respective bargaining power of the parties. Universal principles of justice do not come into play.

Advantages of conciliation

On the other hand, the advantages of conciliation for resolving race discrimination disputes include that:

Procedural safeguards and administrative provisions

In a conciliation model where the complaint can proceed into open court, there are some fundamental procedural safeguards which must be ensured during complaint handling.

Australian legislation protects the confidentiality of the conciliation process by making evidence of things said or done by the parties during the attempt at conciliation inadmissible during a subsequent court or tribunal hearing, if any. [9]

Although no legislation defines conciliation or sets out the process or procedures to be followed, Australian courts have imposed a minimum standard of procedural fairness because of the legal hazard faced by the respondent if conciliation is flawed (namely the risk of court proceedings). Thus, for example, the conciliator must be independent and objective. [10]

Moreover, at the national level, the institution's decisions and actions in relation to a complaint can be subject to judicial review. A decision to decline a complaint, or to terminate one, is reviewable on a number of grounds. Two influential grounds are, first, that the decision-maker took irrelevant considerations into account and, second, that natural justice and procedural fairness were denied.

Irrelevant considerations include the complainant's behaviour in dealings with the institution, the seriousness of the matter (unless it is properly declined as 'trivial'), and officers' perceptions of the futility of pursuing the complaint.

The two rules of natural justice typically referred to in reviews on this ground are that the person affected should be told the case being made out against him or her and have an opportunity of replying to it. [11] Procedural fairness is somewhat broader and covers the decision-making process more generally. Most importantly it requires even-handedness and impartiality in the decision-maker.

Assisting the courts

Intervention function

When the Australian Commission was established in its current form in 1986, one of its functions was the power to intervene, with the leave of the court, in proceedings that involve discrimination issues [12] or human rights issues generally. [13]

One of the most important cases in which the Commission successfully intervened was Teoh. This case challenged a deportation order issued against the Vietnamese father of seven Australian children. The Commission argued that the Minister's decision to deport Mr Teoh had failed to take into account his children's rights. These include the rights to know and be cared for by their father (CROC article 7), to preserve their family relations (article 8) and to maintain personal relations and direct contact with both parents on a regular basis. [14] (article 9). Australia's highest court agreed that the Minister should make the best interests of the children affected a primary consideration in his decision. [15]

More recent Commission interventions have been approved in the case brought on behalf of the asylum seekers rescued by the Norwegian vessel Tampa and refused permission to land in Australia, [16] a case brought to challenge the continued detention of an offender from Vietnam for some 4 years after the expiration of his sentence of imprisonment pending his deportation [17] and a case brought by Australia's Catholic Bishops to prevent single women accessing IVF assisted reproduction technology. [18]

Amicus curiae

Since April 2000 the Commission also has the possibility of appearing as amicus curiae or friend of the court in cases under legislation we administer. Actually, unlike the intervention function which is a whole-Commission function, the amicus role is exercised independently by each of the Commissioners individually. As Race Discrimination Commissioner I can seek to appear as amicus in cases dealing with complaints under the RDA. Conflict of interest is avoided as I no longer have any role in complaint handling at the conciliation stage. That is the sole responsibility of the Commission's President through her delegate.

Any Commissioner may seek to appear as amicus in one of three circumstances:

1. where the outcome may significantly affect the human rights of non-parties
2. where the case has significant implications for the administration of the legislation OR
3. where special circumstances satisfy the Commissioner that assisting the court would be in the public interest.

I have yet to appear as amicus in any proceedings. My colleague the Sex Discrimination Commissioner has appeared as amicus in one case involving a complaint of sex discrimination brought by a female professional kick boxer refused registration to practice her profession in her state of residence. Although the Commissioner's interpretation of the Sex Discrimination Act was adopted by the court, the complainant was unsuccessful in her claim. [19]

Conclusions

Australia's legal regime for the protection of human rights is in many ways unique because we do not enjoy the protection of a Bill of Rights. Most human rights, including the prohibition of racial discrimination, do not enjoy constitutional protection.

Thus these principles have been slow to filter into our legal consciousness and, it must be said, are still too easy to ignore. The Teoh principle and the courts' acceptance of international standards influencing the evolution of the common law make limited impact on the enjoyment of rights in Australia. The national government is not only free to pass legislation excluding the operation of human rights but also to award itself retrospective immunity from performing its human rights obligations.

In this legal environment, court decisions on individual complaints and the Commission's amicus and intervention roles are almost the only means of expanding human rights jurisprudence in Australia.

Notes

1. Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA) section 46PH.
2. Jacobs v Fardig (1999) EOC 93-016.
3. Rugema v Southcorp Packaging (1997) EOC 92-887.
4. Margaret Thornton, 'Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia', (1989) 52(6) Modern Law Review 733-761, at page 735.
5. Id, page 760.
6. Jocelynne Scutt, 'Privatisation of Justice: Power Differentials, Inequality and the Palliative of Counselling and Mediation', in Jane Mugford (ed), Alternative Dispute Resolution (Australian Institute of Criminology, Canberra, 1986), 185-211, at page 192.
7. In a review of sex discrimination cases, researchers found almost one-half of conciliated settlements in two Australian states involved policy changes: Rosemary Hunter and Alice Leonard, The Outcomes of Conciliation in Sex Discrimination Cases (Centre for Employment and Labour Relations Law, University of Melbourne, 1995) page 28.
8. Hilary Astor and Chiristine Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) page 12; Committee on the Elimination of Racial Discrimination, Summary Record of the 444th Meeting, 6 August 1979, UN Doc. CERD/C/SR.444, para. 32.
9. See for example, Equal Opportunity Act 1984 (South Australia) section 95(7).
10. Koppen v Commissioner for Community Relations (1986) EOC 92-173.
11. Kioa v West (1985) 159 CLR 550; see page 558.
12. Re race discrimination see RDA section 20(1)(e).
13. HREOCA section 11(1)(o).
14. UN Convention on the Rights of the Child articles 7, 8 and 9 respectively.
15. Minister for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
16. Minister for Immigration and Multicultural Affairs & Ors v Victorian Council for Civil Liberties; Minister for Immigration and Multicultural Affairs & Ors v Eric Vadarlis [2001] FCA 1329.
17. Luu v Minister for Immigration and Multicultural Affairs [2001] FCA 1136.
18. 'McBain Case', heard 4-6 September 2001; decision reserved.
19. Ferneley v Boxing Authority of NSW and State of NSW [2001] FCA 1740.

Last updated 19 September 2002