Three-quarters of discrimination complaints declined or discontinued

Almost three-quarters of discrimination complaints made to the Australian Human Rights Commission are dismissed or abandoned, prompting legal experts to argue the body is “toothless” and hamstrung by outdated thinking.

Only 30 per cent of the 2562 complaints of sex, race, disability or age discrimination received by the commission in 2022-23 were resolved through conciliation between the parties, the latest data shows. A further 60 per cent were terminated, declined or discontinued, while 9 per cent were withdrawn.

Maurice Blackburn principal Josh Bornstein is critical of the legal obligation on claimants to take their cases to the commission first, before applying to the courts.Credit: Joe Armao

The commission doesn’t have the power to decide whether unlawful discrimination has occurred. Instead, it tries to resolve claims through conciliation. Outcomes can range from an apology to reinstatement to a job, compensation for lost wages or policy changes.

If the complaint can’t be resolved through conciliation, complainants may then be able to take their case to court.

“It is toothless in the sense that it has no capacity to compulsorily resolve a dispute,” employment barrister Ian Neil said.

“I strongly support the idea that there should be some compulsory process of mediation or conciliation for every complaint of unlawful discrimination.”

Maurice Blackburn Lawyers’ principal lawyer and national head of employment law, Josh Bornstein, is critical of the legal obligation on claimants to take their cases to the commission first, before applying to the courts.

“In my view, they shouldn’t be compelled to do that. The great problem with the conciliation process at the Human Rights Commission is it doesn’t have the resources to efficiently conciliate all of the complaints it receives and as a result there are lengthy delays for the parties,” he said.

“There’s no good policy reason for why this should be the case. Victims should have agency about accessing the legal system.

“I think it’s a product of thinking years ago about the need to get parties together to do it all very quietly and under the radar. I think that thinking is outdated and hasn’t served us well.”

Forty-six per cent of complaints in 2022-23 were made under the Disability Discrimination Act, 22 per cent under the Sex Discrimination Act and 19 per cent under the Racial Discrimination Act.

The highest number of complaints came from NSW with 37 per cent, followed by Victoria at 20 per cent and Queensland at 18 per cent.

Of those that went ahead in 2022-23, 55 per cent were finalised within nine months and 85 per cent within a year, 15 per cent taking longer than a year.

An Australian Human Rights Commission spokesperson noted the independent body had a range of functions, including investigating discrimination complaints, and did not have the power to make findings that the law had been breached.

“In addition, the commission has proposed a range of reforms to strengthen federal discrimination laws that would introduce new co-regulatory powers to broaden the commission’s role in line with other areas of law such as privacy and consumer rights,” they said.

Attorney-General Mark Dreyfus declined to comment.

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