Melbourne Law School - Theses

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    Reforming Australia's anti-discrimination legislation: individual complaints, the equality commission and tackling discrimination
    Allen, Dominique ( 2009)
    Australian courts hear very few discrimination complaints each year. Most complaints are resolved prior to hearing, in the privacy of conciliation. The hypothesis of this thesis is that the law is not operating as intended and there is a shortage of decisions because complainants are disinclined to use the formal legal system to resolve their complaint. Commentators have identified problems with both the substantive law and its interpretation, the problems related to proving discrimination and the lack of support available to complainants. This thesis considers the extent to which these problems are a factor in the high rate of settlement of complaints based on interviews of staff at the Victorian Equal 0pPoliunity and Human Rights Commission, lawyers and non-legal advocates practicing in discrimination law in Victoria, and a survey of complainants and respondents who have participated in conciliation. This is supported by an analysis of court decisions and complaint statistics. This research revealed that most complainants settle to avoid the time and energy required to pursue the complaint, the cost of litigating or the risk that if they are successful and awarded compensation, it may not cover their legal fees. It also identified problems with the resolution process, particularly the facilitative nature of conciliation and that there is little publicly available information about settlement outcomes. Furthermore, the research revealed that although complainants may initially seek wider remedies, most complaints are resolved with compensation and an analysis of substantive decisions showed that the tribunal most often orders compensation in Victoria. Drawing on mechanisms used overseas, this thesis proposes a strengthened model of individual enforcement. Under this model, complainants have direct access to a specialist 'equality' tribunal and can choose 'rights-based' conciliation or adjudication using less formal and less adversarial hearing procedures. In addition to remedying the complainant's experience, the tribunal is required to make an order targeting discrimination more broadly. The second part of this proposal is to introduce a statutory 'questionnaire procedure' to assist complainants with obtaining information relevant to their complaint and, for those who proceed to litigation, shifting the burden of proof to the respondent once the complainant has established prima facie discrimination. As a result of the proposed changes to the individual enforcement process, the equality commission would not be responsible for resolving complaints. The thesis proposes to add another enforcement 'tier' - enabling the equality commission to assist complainants with resolving the complaint. The thesis argues that the equality commission should use its assistance function strategically to develop the law and to obtain outcomes which benefit a group. Finally, the thesis argues that addressing discrimination with an individual complaints based process is limited because it is reactive and passive. The thesis concludes by presenting an overview of positive duties in the United Kingdom and shows how they attempt to overcome the limits of the individual complaints based approach in tackling discrimination.