1.1 This Report sets out the findings of a series of surveys of persons who have had some experience of the complaints resolution processes established under the Anti-Discrimination Act 1977 (NSW) ("the ADA").

WHAT IS UNLAWFUL DISCRIMINATION?

1.2 The aims of the ADA are to eliminate discrimination in specified circumstances and to promote equality of opportunity between all persons. To achieve these aims the ADA makes it unlawful to discriminate against a person on the grounds of race, sex (including pregnancy discrimination and sexual harassment), marital status, homosexuality, disability, age and transgender status. A person may also not be discriminated against or harassed because of the race, sex etc of any of their relatives, friends or associates. The ADA also prohibits the vilification of a person because of that person's race, homosexuality, HIV/AIDS status or transgender status.

1.3 The discrimination and harassment covered by the ADA has a limited scope: it must occur in the provision of employment, state education, goods or services, accommodation or membership of a registered club.

1.4 The ADA also contains general exceptions which apply across the Act as a whole, and special exceptions which apply either to particular areas of operation or to specific grounds of discrimination. Respondents may also apply for an exemption from the Act. Such exemptions are granted, in limited circumstances, by the Attorney General on the advice of the ADB. Thus, an act or conduct which would otherwise constitute unlawful discrimination under the ADA may not be an offence if it falls within an exception under the ADA, or is an act or conduct in relation to which an exemption has been granted.

1.5 In order to constitute a complaint under the ADA, an act must therefore be:

(a) discriminatory on the basis of one or more of the unlawful grounds;

(b) within one of the specified areas; and

(c) not subject to any exception or exemption under the Act.

1.6 Unlawful discrimination may be either direct or indirect. Direct discrimination means treating someone less favourably because he or she belongs to a particular group or category. For example, refusing to employ a person because of his or her race or sex would constitute direct discrimination. Indirect discrimination means treating someone according to a requirement that applies equally to all people but has an unequal effect on some people. For example, an employer who requires all employees to be taller than 180 cm may be likely to discriminate against women and people from some ethnic groups. Similarly, a requirement for "years of experience" may discriminate against newly arrived migrants, women re-entering the workforce after broken periods of employment or young people recently entering the workforce.

HOW ARE DISCRIMINATION COMPLAINTS RESOLVED?

1.7 The ADA gives people who have been unlawfully discriminated against a right to seek redress for the loss or injury they have suffered as a result of the unlawful discrimination. To facilitate this process, the ADA establishes the Anti-Discrimination Board ("ADB") and the Equal Opportunity Tribunal ("EOT").

The ADB's complaints-handling process

1.8 The ADA states that a complaint alleging a breach of the Act must be made in writing by or on behalf of the aggrieved person to the President of the ADB within six months of the occurrence of the alleged conduct. Although this is technically the first stage of the ADB's complaints-handling process, many people tend first to telephone, write to or visit the ADB with enquiries about discrimination. Information provided by the ADB's enquiries service on available options often helps people to resolve problems without proceeding to make a formal complaint.

1.9 According to the ADB's Annual Report for 1995-6, staff at the ADB responded to a total of 20,470 enquiries during that period and received nearly 2,000 complaints. Together with the backlog from the previous year, this brought to almost 3,000 the number of complaints handled by the ADB in 1995-6. The ADB finalised 52% (or 1,543 out of a total 2,964) of these complaints in the course of the year. Of these, 16% were considered to be outside jurisdiction and were declined; 3% were referred to the federal HREOC; 17% were formally conciliated; 37% were not proceeded with; 18% were formally declined; and 9% were referred to the EOT.

Referral to the EOT

1.10 A person complaining of discrimination may not file a matter directly with the EOT. As stated above, the President can refer to the EOT matters that remain unsettled after conciliation or matters in which conciliation is considered inappropriate. When referring a complaint to the EOT, the President must provide a report detailing the ADB's investigations into the complaint, excluding any information which was obtained in the course of conciliation proceedings.

1.11 The EOT is responsible for conducting inquiries into complaints of discrimination referred to it, and on the basis of its inquiries will make final determinations. The EOT may also conduct its own conciliations of the matters referred to it. The Tribunal is not bound by the formal rules of evidence when conducting an inquiry, and may inform itself of any matter as it sees fit. It also has powers to hear complaints as representative complaints and to issue non-publication and suppression orders. If it finds a complaint substantiated, the EOT may make certain orders pursuant to section 113, including an award of damages up to a maximum amount of $40,000. The EOT may also dismiss the complaint if it is satisfied that the complainant does not wish to proceed with the complaint or if it lacks substance.

1.12 The following flow chart, reproduced from the ADB's 1994-95 Annual Report at page 25, illustrates the complaint resolution process under the ADA.

The Board's President receives a written complaint	The complaint is obviously not covered by the law	We write a letter to the person making the complaint explaining this and indicating who else (if anyone) might be able to help
	The complaint appears to be covered by the law	The complaint is allocated to one of the Board's Conciliation Officers	The Conciliation Officer investigates the complaint by getting information from everyone directly involved (that is, from the person/ organisation/ group making the complaint - and from the person/ organisation/ group against whom they are alleging discrimination - the respondent).	The complaint does not appear to involve unlawful discrimination	The President writes to the complainant explaining this.
				The complaint appears to involve discrimination that is against the law	The conciliation Officer tries to conciliate the complaint by helping the people involved in it to find a private settlement they can agree on. This might involve calling in those involved to one or more conciliation conferences.	The complaint is conciliated.
						The complaint is not conciliated.	The complaint may be referred to the Equal Opportunity Tribunal.	The Tribunal hears arguments and evidence and makes a judicial decision that must be obeyed.

Purpose of this study

1.13 This study was commissioned by the New South Wales Law Reform Commission to assist it in its review of the operation of anti-discrimination legislation in New South Wales. The Commission formed the view that it would be desirable to obtain specific information on the perceptions of people with direct experience of the ADB and the EOT. Accordingly, it commissioned Keys Young to design and carry out sample survey research on the following six groups:

• People making initial enquiries of the ADB by telephone.
• People who had made formal, written complaints to the ADB.
• People with whom the ADB had had "no further contact" after its initial response to a written complaint.
• People who had been Respondents to complaints handled by the ADB, or who had represented Respondent organisations such as companies or government departments.
• Complainants whose cases had gone to the EOT.
• Respondents in cases which had gone to the EOT.

1.14 This Report describes the conduct and findings of these six surveys, the first of which was conducted by telephone, the remaining five by mail. These represented the first systematic surveys that had been carried out in relation to the experience and opinions of clients of the ADB and the EOT.

1.15 At the beginning of the study, officers of the Commission and the ADB prepared lists of topics or questions which they believed could usefully be examined through the survey research. Keys Young drew on this material in preparing drafts of the various questionnaires required. It was understood from the outset that the clients being surveyed would not necessarily have a clear understanding or recall of the ADB's or the EOT's procedures or terminology. Further, it was understood that good response rates could not be expected if the questionnaires were unduly long or difficult to understand. Accordingly, every effort was made to keep each questionnaire as short and simple as possible and to use wording which would apply equally well to a diverse range of situations. One particular limitation was that it was possible to establish only in broad terms how far through the ADB's processes a given complaint had gone.

1.16 In the course of carrying out these surveys, the Commission and the study team referred to several earlier pieces of Australian research that have touched on related issues. The most relevant published document in this context appears to be the Report of the Steering Committee into Processes under the Western Australian Equal Opportunity Act 1984, published in 1994. Reference is also made to a 1990 Keys Young Report on Evaluation of the Health Services (Conciliation and Review) Act 1987 for comparative purposes. This study documents survey research carried out with health service users and providers with experience of the health services complaints procedures then operating in Victoria.

1.17 Over the course of the study, officers of both the Commission and the ADB worked closely with Keys Young on the development of the survey material and on the organisation and administration of the surveys. With some clerical assistance from the Commission, ADB staff prepared and checked lists of relevant names and addresses for all the postal surveys and organised both initial and follow-up mailouts. In order to ensure that clients' privacy was respected at all times, only ADB staff and clerical assistants had access to the names of the complainants and respondents approached. Replies went directly and anonymously to Keys Young, so that neither the ADB, the EOT nor the Commission could have any knowledge of who did or did not take part in the study.