Introduction
When a complaint is received from the Australian Human Rights Commission (AHRC), CR will take action to obtain necessary information from the relevant areas within Defence in order to provide a comprehensive response on behalf of Defence.
Legislation Overview
Racial Discrimination Act
The Racial Discrimination Act makes it unlawful to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life, including employment and service in the Australian Defence Force (ADF). The Act also prohibits the victimisation of a person in relation to a potential complaint or a complaint made under this Act.
Sex Discrimination Act
The Sex Discrimination Act makes it unlawful to treat a person of the opposite sex less favourably than a person of the same sex in circumstances that are the same or are not materially different on the basis of:
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the person’s sex;
- a characteristic that pertains generally to persons of the person’s sex; or
- a characteristic that is generally imputed to persons of the sex of the aggrieved person.
The Act provides an exemption to Defence in relation to women holding a position involving the performance of combat duties; or in prescribed circumstances in relation to combat duties.
This Act also prohibits a person from sexually harassing another person by making an unwelcome sexual advance, or an unwelcome request for sexual favours, or engaging in other unwelcome conduct of a sexual nature in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.
The Act also prohibits the victimisation of a person in relation to a complaint made or potential complaint made under this Act.
Human Rights and Equal Opportunity Act
The Human Rights and Equal Opportunity Act details the structure of the Australian Human Rights Commission (the Commission) and provides the Commission with the authority to investigate any complaint of unlawful discrimination.
The Act permits the Commission to inquire into complaints of unlawful discrimination and any act or practice that may be inconsistent with or contrary to any human right, as defined in the International Covenant on Civil and Political Rights, the Declaration of the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons, and the Declaration on the Rights of Disabled Persons.
The Act also prohibits victimisation in relation to a potential complaint or a complaint made to the Commission, including complaints made pursuant to other legislation administered by the Commission.
Disability Discrimination Act
The Disability Discrimination Act prohibits discrimination or harassment based on physical, mental, intellectual or psychiatric disability, disease, disorder or illness in relation to employment (including service in the ADF). The Act also prohibits the victimisation of a person in relation to a potential complaint or a complaint made under this Act.
The Act contains specific exemptions for the ADF in relation to performance of combat duties, combat-related duties or peacekeeping service.
Age Discrimination Act
The Age Discrimination Act prohibits less favourable treatment, either directly or indirectly because of age, characteristics generally pertaining to age, or characteristics generally imputed to people of that age. The Act also prohibits the victimisation of a person in relation to a potential complaint or a complaint made under the Act. The Act exempts a number of laws that relate to Defence from its application.
AHRC Actions
Conciliation Conferences
The Australian Human Rights Commission must attempt to settle complaints by conciliation. A conciliation conference provides that applicant and Defence (and other respondents) the chance to talk about the issues raised in the complaint and look for solutions. Unless the complaint is terminated, or the complainant withdraws the complaint, the Australian Human Rights Commission will usually arrange a conciliation conference in an attempt to resolve the matter. The Australian Human Rights Commission may compel attendance at a conciliation conference. The conciliation process is flexible and complaints may be settled by an exchange of letters, telephone negotiation through the Conciliation Officer or by a telephone conciliation conference.
The following people usually attend a conciliation conference:
- A conciliator from the Australian Human Rights Commission (usually the staff member who has had carriage of the investigation), who conducts the conciliation conference.
- The complainant, who may be accompanied by a legal representative, friend, family member or a union representative.
- Director Complaint Resolution or Director General Fairness and Resolution, on behalf of Defence, assisted by legal counsel.
- Other respondents, who may be accompanied by a legal representative, friend, family member or a union representative.
Settlement
During conciliation conferences, the parties may agree to settle the complaint. This will not occur in all cases that go to conciliation.
The nature of any settlement will vary depending on the complaint, but they may include:
- an apology,
- compensation for lost wages,
- the introduction of anti-discrimination training; or
- practical changes to facilities and services.
Breaches of Human Rights and Equal Opportunity Commission Act 1986
If the complaint is made under Human Rights and Equal Opportunity Act and is not resolved following the conciliation conference, the Australian Human Rights Commission may make a finding that the Act has been breached. In these circumstances, the President of the Australian Human Rights Commission must report on their findings to the Attorney-General who will present the report to Parliament.
Breaches of other legislation administered by the Australian Human Rights Commission
Where a complaint under other legislation administered by the Australian Human Rights Commission is not resolved through the conciliation process, the Australian Human Rights Commission will terminate the complaint. Defence may, however, be subject to separate legal action through the Federal Court or Federal Magistrates Court on the same issues if initiated by the complainant.
Respondents
Under legislation administered by the Australian Human Rights Commission, Defence, like all employers, may be held responsible for a breach of the Acts by Defence personnel unless:
- it can establish that it has taken all reasonable steps to prevent the breach; or
- the person was acting outside the course of their duty.
Where individuals have been named as respondents and Defence is of the view that it will not be vicariously liable, respondents may wish to seek independent legal advice, as a claim for financial compensation may be made against them personally. In some cases, Defence and individual respondents will be found liable and responsible for pay financial compensation.
Legal assistance for respondents
Access to Defence or Commonwealth funded legal representation is not an automatic right. The granting of assistance is discretionary and each case will be decided on its merits and no assumption should be made that an application will be approved.
The availability of legal representation is different for ADF members and APS employees. Links to information about legal representation is provided below.
ADF members
Defence Instruction (General) PERS 12–1—General Scope of Legal Assistance Provided to Service Personnel and Legal Aid to Australian Defence Force Members Overseas.
APS Employees
Legal Services Directions 2005 (see appendix E—Assistance to Commonwealth employees for legal proceedings)
Further Information
Further details on the legislation can be obtained from the Commission's web site or contact CR on (02) 6127 2971or email CR. (It should be noted that privacy cannot be guaranteed when using the email service.)