Guide to Consideration
The Commission’s Role
Anyone can make a complaint alleging a breach of the Discrimination Act 1991 to the Human Rights Commission. When the Commission receives a complaint it will usually allocate the complaint to the Human Rights and Discrimination Commissioner.
Commission staff are not advocates for either the person making a complaint or the person or organisation the complaint is about.
The Commission is not a court or tribunal and cannot determine whether discrimination has occurred. The Commission’s role is to try to help the parties resolve the complaint.
The Commission’s process is confidential. We will not reveal if we have received a particular complaint to anyone who may enquire.
How the Commissioner deals with complaints
The Commissioner will decide whether to close the complaint, or consider the complaint and/or to refer the complaint to conciliation.
The Commissioner may close complaints at any time and may close them prior to allocation in certain circumstances, such as, a complaint that is not a complaint which may be made under the Human Rights Commission Act 2005, eg outside jurisdiction.
The Commission may also decide to refer a complaint, or matter that forms part of a complaint, for conciliation at any time if it is satisfied the complaint or matter is appropriate for conciliation and is likely to be successfully conciliated.
The Commissioner will usually send a copy of the complaint to the person or organisation complained about, and invite a response from them.
In some circumstances, the Commissioner will consider a complaint further. Consideration of complaints generally involves the exchange of written information between the complainant, the respondent, and the Commission.
The Commissioner will take into account rights under the Human Rights Act 2004 in dealing with the complaint. Rights of particular relevance are the right to equality (s.8) and right to fair trial (s.21). If the respondent is a public authority, such as an ACT Government agency, the Commissioner may also consider the impact of their human rights obligations on their alleged conduct.
What is Conciliation?
A conciliation conference is a meeting between the two parties to attempt to resolve the complaint. The aim of conciliation is to allow both parties to discuss the allegations made in the complaint and to attempt to find a practical and fair way of resolving the complaint.
The complainant and the respondent usually meet “face-to-face” although this may not always be suitable.
The conciliator will meet with each party privately before the conference to make sure that they are clear about the aim of conciliation and the way the conference will proceed.
Sometimes parties will bring an advocate or a support person to the conference to assist parties to participate in the conference as positively as possible.
Lawyers are usually not allowed to attend the conciliation although they may be allowed to be on hand to give advice to their clients during breaks.
The conciliator is impartial and ensures that the conference is run fairly and that each party can put their point of view without being interrupted to help negotiate an outcome.
The conciliator does not push a recommended way of settling the complaint but may suggest ideas to the parties to consider.
The conciliator does not make a decision about who is right or wrong or what should be done about it.
Conciliation is a confidential process and if a complaint is not settled though conciliation and the complainant requests the complaint to be referred to the ACT Civil and Administrative Tribunal (ACAT), no information about the conciliation process will be given to the Tribunal.
Complaints can be resolved in a number of ways. Staff at the Commission are able to provide information to the parties about ways that previous complaints have been resolved.
What happens after agreement is reached?
If an agreement is reached at conciliation it is signed by both parties and registered at the ACAT.
Either the complainant or the respondent can ask the ACAT to enforce a conciliation agreement if they believe that the other party has not kept the agreement.
What happens if the complaint is not resolved?
If an agreement cannot be reached after a conciliation conference the Commission will write to the parties and inform then that the complaint is not conciliable. In most cases, the complaint will then be closed, although in some circumstances the Commissioner may continue to consider the matter further.
Where the Commission closes a complaint for any reason other than it is withdrawn or successfully resolved through conciliation, the complainant may ask the Commission to refer the complaint to the ACAT. The complainant has 60 days from the date of closure to ask the Commission to refer the matter to the ACAT.
The Commission will notify the respondent if the complainant does, or does not, request for their complaint to be referred to the ACAT.
What if I have more questions?
If you have more questions about the complaint process and conciliation please contact the officer who is handling your complaint or the Intake Officer at the Commission.