Procedure for public investigation into complaints
Introduction
From April 13 2000, under amendments made by the Human Rights Legislation Amendment Act 1999, the President of the Human Rights and Equal Opportunity Commission has responsibility for investigation and conciliation of complaints of unlawful discrimination made under the Disability Discrimination Act, Racial Discrimination Act and Sex Discrimination Act. These functions were previously performed by the Disability Discrimination, Race Discrimination and Sex Discrimination Commissioners respectively.
The President has decided to continue on a trial basis the initiative of the Disability Discrimination Commissioner in undertaking public inquiry processes as a means of investigating complaints in appropriate cases under the Disability Discrimination Act.
This process is concerned with the investigation phase of complaints and does not preclude the possibility of conciliation. It is distinct from the process which applied prior to the April 2000 amendments when complaints, that could not be conciliated, were referred to and heard by the Human Rights and Equal Opportunity Commission (HREOC) as a tribunal. This process is also distinct from general public inquiries conducted by HREOC under a reference from the Attorney-General (such as the inquiry on Access to electronic commerce and new service and information technologies for older Australians and people with a disability) or inquiries initiated by HREOC under more general powers (such as the Homeless Children inquiry).
This document sets out procedures for this process in this trial period.
Criteria for public investigation
This process differs from the Commission's usual complaint investigation process in that it is an open and public process and may involve receiving and making public submissions from parties other than the complainant and respondent.
This approach is being trialled in view of
- assistance which may be gained by the President and the parties from a public process in identifying options for resolution of complaints which advance the objects of the Disability Discrimination Act
- assistance which may be gained by the President in determining whether the power to terminate a complaint under section 46PH of the Human Rights and Equal Opportunity Commission Act should be exercised
- benefits to be gained in promotion of awareness of and compliance with the legislation through conduct of an open inquiry process.
Whether inquiry into a complaint should be conducted publicly will need to be decided in the circumstances of that complaint, taking into account any views indicated by the parties to the complaint. In determining whether to undertake a public inquiry into a complaint, relevant factors may include:
- how far and how directly the subject matter requires consideration of interests of persons or organisations beyond the immediate parties to the complaint
- how far inquiry into the complaint involves inquiry into allegations regarding individual behaviour (which may be less appropriate for public inquiry) or alternatively involves broader issues of public or social policy (which may more appropriately involve public inquiry)
- whether open inquiry is possible without unreasonable disclosure of personal information (taking into account that public elements of an inquiry process need not directly identify the parties to the complaint)
- whether the subject matter of the complaint can be appropriately investigated by reference only to material available from the immediate parties to the complaint
- potential impacts (positive or negative) of conduct of an open inquiry process on prospects for resolution of the matter concerned and related matters
- available resources and priorities.
Consideration of views of parties
Appropriate decisions on most of these issues will require taking into account the views of the parties to the complaint.
In particular, consent by the parties to any release of personal information is critical for ensuring compliance with the Privacy Act and maintaining confidence of parties and potential parties in the Commission's processes.
More generally, if the complainant is not prepared to agree to his or her complaint being investigated by a public process, no public inquiry will be possible on the basis of the complaint (although the Commission may consider some other form of inquiry regarding the issue without direct reference to the complaint).
Agreement by the respondent will also be important in the interests of effective investigation and to ensure the maximum prospect of agreed resolution of the matter.
The views of the parties, on whether and in what terms the investigation of the complaint should include an open inquiry, should be sought and received in writing before the President makes a final decision to commence such an inquiry.
This should include provision of a draft Notice of Inquiry to the parties for comment. Parties should generally be given two weeks to comment on a draft Notice of Inquiry. Parties should be advised that it remains open to them to seek the Commission's assistance in resolving the matter by conciliation at any stage. Copies of the final Notice of Inquiry as issued should be provided to the parties.
Notice of Inquiry
A Notice of Inquiry should:
- state that the Commission has received a complaint
- identify the relevant legislative provisions
- identify the issue briefly
- state that the President is conducting a public inquiry for the purpose of investigating the complaint
- not identify individuals unless their consent is obtained in writing
- not identify parties other than individuals, except with their consent or where (1) the President or delegate is satisfied that this is appropriate in the circumstances and necessary in order to investigate the complaint and (2) the Commission's legal section advises that this will not contravene duties under the Privacy Act or other duties of confidentiality
- state the issues on which the President is seeking information or comment
- provide a date by which submissions are sought
- provide contact information for making submissions or requesting further information
- ensure that persons making submissions are aware of the intended publication of submissions and of the option of withholding consent to publication of identifying and contact information
- indicate the possible courses open to the President after submissions are received (see below).
As a general rule a six week period for submissions should be provided. A shorter or longer period may be appropriate depending on any need for urgency, the complexity of the matter and the range of interests to be taken into account.
Procedure following notice of inquiry and submissions
Possible courses after receiving submissions, depending on the circumstances, may include:
- Publishing an analysis of issues presented in submissions and any other investigation or research conducted, for the information of and possible comment by parties and others interested
- Convening a public hearing or forum to discuss the issues further
- Convening a conciliation conference
- Publishing a draft decision for comment
- Publishing a notice of the resolution of the matter (subject to exclusion of any matters agreed by the parties to be kept confidential)
- Publishing a decision to terminate the Commission's dealing with the matter where appropriate on the grounds provided by section 46PH (noting that in this case the complaint may be taken to the Federal Court and that in this case the process would be a formal legal proceeding between parties compared to the broader process of investigation available to the President).
As with other complaint investigations the President will seek to close matters being dealt with through the public inquiry procedure within a reasonable time (with a target of six months) either through agreed resolution or through exercise of applicable powers to terminate complaints.