On the record
Appendix 1 - The Human Rights and Equal Opportunity Commission complaints process
Under the HREOC Act, the Commission is able to investigate complaints of discrimination in employment on the basis of criminal record.
There are usually two parties to a complaint: the complainant and the respondent. The complainant is the person who lodges the complaint with the Commission and is generally the person who has been directly affected by the alleged discrimination. The respondent is usually the party who has been alleged to have discriminated. The complaints process involves the following steps:
- A complaint must be made in writing.
- The Commission makes an initial assessment of the complaint and decides whether it is covered by the HREOC Act. If it is covered a recommendation is made to the President of the Commission to commence an inquiry into the complaint.
- An Investigation/Conciliation officer then commences an investigation and may contact the complainant for further information. The President writes to the respondent to seek comments on the complaint, ask questions regarding the circumstances of the complaint and seek relevant employment documents. The respondent is also invited to make submissions in relation to any exemption, exception or defence that may apply.
- Once all of the relevant information and documentation has been gathered, the President will decide to either:
- Decline the complaint for any of the reasons outlined in the HREOC Act including: if an exception applies and therefore the alleged acts are not discriminatory; if the complainant does not wish the inquiry to continue; if the complaint is out of time; if the complaint is lacking in substance; if an alternative remedy has been sought and the Commission feels the matter has been adequately dealt with; or if another remedy can more effectively deal with the matter.
- Attempt to settle the complaint through conciliation where both parties have an opportunity to discuss and resolve the matter on their terms.
- If the complaint is declined, the President advises the complainant of this in writing and explains the reasons for the decision. The respondent will also be notified.
- If the complaint is to be conciliated, the Investigation/Conciliation Officer assists the parties to try to reach an agreement. The Officer may call a conciliation conference. The conference gives the parties the opportunity to discuss the situation with the help of someone independent and settle the matter on their own terms. If the matter is conciliated, then the matter is considered to be finalised.
- If a complaint which has not been declined for one of the statutory reasons and cannot be conciliated, the President may undertake further Inquiry. The President will make a tentative finding which is given to the parties. They are asked to make submissions in relation to the tentative finding, either orally or in writing.
- If, after receipt of these submissions and further consideration of the matter, the President finds that the practice does not constitute discrimination, he issues a report containing his findings and reasons. This report is given to the parties.
- However, if the President finds that the practice does constitute discrimination, he will issue a notice to the respondent of his findings, the reasons for his findings and any recommendations made as a result of the findings. The respondent will be given 28 days to reply and state what action they have taken or propose to take in response to the findings and recommendations.
- The President will then forward a report to the parties and the Attorney-General, which will include his findings and recommendations as well as any action taken or proposed to be taken by the respondent.
- The Attorney-General tables the report in federal Parliament.
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