Commission-initiated Discrimination Complaints Policy

Original Created: 18/10/2012

This version Approved: 11/06/2013

1. Purpose

The purpose of this policy is to provide criteria to assist the Human Rights and Discrimination Commissioner determine when to utilise her ‘commission-initiated’ complaint powers in s.48 of the Human Rights Commission Act 2005 (‘HRC Act’) in respect of discrimination and other related matters such as sexual harassment and vilification.

2. Definition

Discrimination complaint means any unlawful act under the ACT Discrimination Act 1991, including sexual harassment, vilification, victimisation and discrimination.

Human Rights audit means a review of ACT law conducted under s.41 of the Human Rights Act 2004.

3. Philosophy and Human Rights Obligations

The Human Rights Commission believes that all people deserve to be treated with dignity and respect and is committed to the principles of natural justice and procedural fairness. The ‘commission-initiated’ powers in s.48 are significant and the Commission is committed to acting reasonably and fairly in their use.

Consistent with their obligations as public authorities under the Human Rights Act 2004, the Commissioner and her staff will take into account human rights in their decision-making and actions under this Policy. The right to equality (s.8) will be particularly relevant to alleged unlawful discrimination, but rights to privacy (s.12) and fair trial (s.21) may also be relevant, amongst others.

4. Background

Section 48 of the HRC Act provides the Commission with the power to on its own initiative consider:

(a) an act or service that appears to the commission to be an act or service about which a person could make, but has not made, a complaint under this Act; or

(b) any other matter related to the commission’s functions.

The purpose of this policy is to provide guidance for how, and when, the Human Rights and Discrimination Commissioner will exercise this power in handling complaints of discrimination under the Discrimination Act 1991 and the HRC Act.

5. Relevant Factors

Sub-section 48(3) suggests that, without limiting when the Commission may consider a matter by a commission-initiated consideration, it may commence such a consideration if:

(a) the complainant has withdrawn the complaint for any reason; but

(b) the commission is satisfied that it is in the public interest to consider the complaint.

The HRC Act provides the following examples, which provides further guidance.

  1. The complaint appears to reveal a systemic problem about an activity or a service.
  2. The complaint, if substantiated, raises a significant issue for the ACT, or an issue of public safety.
  3. It may be possible for action in relation to the complaint to be taken under another Act if the complaint is substantiated by, for example, reporting a health professional to a health profession board or making an application for an occupation discipline order in relation to the health professional to the ACAT

6. Assessing a matter for commission-initiated consideration

Consistent with the above, in assessing such matters, the Commissioner will consider the following in electing to utilise this power:

  1. If the complaint, taken at its highest, would raise serious issues of discrimination under the Discrimination Act, which are not merely peripheral to the conduct complained about ;
  2. If the complaint raises systemic discrimination issues, or may significantly affect an individual;
  3. If the complaint raises serious public safety or other public interest issues eg violence;
  4. The detriment potentially suffered by a complaint or respondent if the Commission elected to take such action;
  5. The group affected is particularly vulnerable eg a child, detainee or person with severe disability.
  6. The manner and nature of information sought from the respondent; and
  7. Any remedy initially appears reasonable and easily implemented by a respondent.

7. Information to Respondent

If the Commissioner does elect to exercise this power, all communication with the respondent should emphasise that the Commission has not made a judgment or decision about the issues raised, and any finding would not be made without inviting their input.

Consideration should be given to initially approaching a respondent informally to discuss the matter in order to determine if a formal, written process is required. Any such approach should only provide information on a de-identified basis.

8. Process for an own-motion complaint

An own motion complaint may be handled in a number of ways, at the discretion of the Commissioner, and subject to the

  • Commission’s powers and obligations under the HRC Act. Generally, the process of an own motion complaint:
  • Will not include any form of conciliation;
  • May include a short, informal consideration process, if the Commission is seeking to quickly remedy an issue of concern with the consent of respondent(s). Such a process should not be used when the Commission is considering releasing a ‘final report’, a ‘third-party report’, or a ‘commission-initiated report’ as defined under the HRC Act.
  • When the Commission is considering writing a report of some kind, then a written consideration process should be used. All relevant parties (eg the informer, aggrieved person(s) and respondent(s)) should be notified that the Commission has commenced a commission-initiated consideration.
  • The Commissioner may consider utilising powers under sections 73 and 74 of the HRC Act requiring parties to attend an interview or provide certain documents, taking into account the restrictions on the use of such material under s.75 of the HRC Act.
  • Consistent with the Commission’s accountability measures, any commission-initiated consideration should be completed within 250 days.

9. Commission-Initiated Reports

Section 84 of the HRC Act states that the Commission must not include an adverse comment in relation to a person in a report unless that person has been given a reasonable opportunity to respond.

Recommendations made in a report under the HRC Act place certain obligations on those entities subject to recommendations, including telling the commission in writing about the action the entity has taken in response. If an entity does not comply, the Commissioner can publish details of the failure or report them to the Minister.

10. Interaction with HR Act

If a party to a commission-initiated consideration is a public authority, consideration must be given to including some analysis of whether the public authority has discharged its obligations under the HR Act as part of the consideration, including addressing any human rights concerns in recommendations made at the conclusion of the consideration.

S.48(2) of the HRC Act states the Commission may commence a commission-initiated consideration on any ‘other matter related to the Commission’s functions’. As the Commission’s functions include promoting compliance with the Human Rights Act, and the Human Rights Commission’s powers under s.41 including the review of territory laws for human rights compliance, it is arguable s.48 may be used to commence an own-initiative human rights consideration with related powers under the HRC Act. The conduct of Human Rights Audits will be subject to another policy.

11. Review

This policy will be regularly reviewed as part of the Commission’s policies and procedures.