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									                                        Anti-Discrimination Commission




                                           Fourth Annual Report – 2002-2003




All inquiries in relation to this report should be directed to:
The Anti-Discrimination Commission
GPO Box 197
Hobart - Tasmania 7001
Telephone: (03) 6224 4905
Facsimile: 03) 6233 5333
Email: Anti-Discrimination@justice.tas.gov.au
        ANNUAL REPORT 2002-2003



 O U R V IS IO N
            The Anti-Discrimination Commission co-operates with all Tasmanians in
            working towards a world where discrimination, prejudice, bias and
            prohibited conduct are indicators of a history that is no longer with us.

            The Anti-Discrimination Commission envisions a Tasmanian Community
            which recognises that all people are entitled to respect, dignity and
            appreciation for their contributions and themselves and where all are
            honoured for their diverse abilities and strengths.

            The Anti-Discrimination Commission’s work and practice is founded in
            principles of fairness, acceptance, recognition, co-operation and service to
            the community, recognising that discrimination is an expression of
            illegitimate power and the Anti-Discrimination Act 1998 recognises that
            this is abusive of individuals and the community as a whole. Within the
            Commission all staff will provide leadership in the application of these
            principles.


O U R V A LUE S
              equity as equal treatment ensuring equally fair and just outcomes
              encouraging diversity and participation at all levels
              ensuring at results are consistent with the beneficial principles
               embedded in the Anti-Discrimination Act.
              high standards of probity, integrity and conduct
              a strong commitment to accountability
              maximising the potential of individual employees, and ensuring a high
               quality of service.
              Encouraging and supporting staff development and multi-skilling


O U R O BJ E C TI VE S

           To provide individuals and groups with the opportunity to resolve
           grievances through an independent body and to assist in the solution of
           workplace, institutional and organisational structures, issues and
           interactions which have a negative impact on productivity and the general
           wellbeing.

           To promote the development of processes and services which are more
           transparent and based on fairness.

           To promote the Act in a positive way for all people, whatever their
           background, education, training or geographical location.

           To foster an inclusive society that acknowledges and respects our multi-
           cultural heritage, values diversity and treats everyone with proper
           appreciation and respect.

           To support and encourage a diverse/compassionate and socially just
           society that provides for the rights of all Tasmanians, including people
           from minority, disadvantaged and stigmatised groups.



                Anti-Discrimination Commission Tasmania
      ANNUAL REPORT 2002-2003




Hon. Judy Jackson MHA
Attorney General
Parliament House
Hobart




Pursuant to section 10 of the Anti-
Discrimination Act 1998 (Tasmania), it is
my pleasure to present our fourth Annual
Report.

This report covers the activities of the
Commission from 1 July 2002 to 30 June
2003.
                                             CONTENTS
I commend the report to you
                                            Commissioner’s Forward              1
                                            The Commission                     11
                                            Claims Handling                    14
                                            Anti-Discrimination UpDate!        15
Jocelynne A Scutt (Dr)                      Exemptions                         16
Commissioner
                                            Training                           17
                                            Community Education                19
                                            Commissioner’s Speaking Engagements 21
                                            Major projects 2002/03             22
                                            Statistics                         23
                                            Freedom of Information             27
                                            Staff Development                  28
                                            Organisation Chart                 29
                                            Financial Statement                30
                                            Claims Process Flow Chart          31
                                            Acknowledgements                   32
                                            ms process




             Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003




            FORWARD                                                Dr Jocelynne A Scutt



        Human rights laws will work only if they are drafted to do so, are
        passed by parliaments with a real commitment to their operation,
        are overseen in their implementation by bodies that have full and
        proper Government and Opposition support, and are interpreted
        ultimately by courts having some comprehension of what human
        rights are, and how they are denied to those outside the traditional
        portals of power.

                                                                           Jocelynne A. Scutt
                                           Revisiting the Racial Discrimination Act, 2003

Access to Law
Access to law is a touchstone of developments of the last quarter of the twentieth century.
Law, recognised traditionally as a mechanism for maintaining the power and position of those
already powerful, was embraced by a not insignificant sector of society as a means of
ensuring that the powerless could, and would, gain a voice. Developments in substantive and
procedural law effected important changes. In the former, consumer protection and equal
opportunity/anti-discrimination laws built on equitable principles in recognising that inequality
should be addressed through the legal system, to ensure some modicum of fairness and
justice for all. In the latter, developments in legal aid, the High Court’s determination in
Dietrich v. R. (1992) 177 CLR 292 and the ‘McKenzie’s friend’ principle sought to ensure that
those without funds to employ their own legal representation might nonetheless have the
benefit of representation or at least a skilled ‘voice’ assisting them to put their case in the
courtroom. Simultaneously, an emphasis on informality and eliminating technicality came
along with the growth of tribunals and alternative dispute resolution.

The Anti-Discrimination Act 1998 (‘the Act’) is a fine example of this development, with the
principle of procedural fairness lying alongside substantive fairness in its provisions.
Consistent with this is the principle that technicality and formality should not dictate
processes in Commissions or Anti-Discrimination or Equal Opportunity Tribunals. This is
enunciated in the relevant statutes and the authorities around Australia.

Consistent with the powers and functions of the Commissioner, to assist parties and
prospective parties, union, employer and other advocates, the legal profession, organisations
and the general public, Procedural Notes and pamphlets are issued and made available to all.

Consistent with the principle of least cost, least formality and technicality, and self-
empowerment, parties may be represented in the Tribunal and the Commission, only with the
authorisation (s. 61) or permission (ss. 85, 75) of the Tribunal (s. 85) or the Commissioner
(ss. 61 and 75). In cases dealing specifically with similar provisions in their respective Acts,
the Supreme Courts of the Northern Territory and Western Australia acknowledge their
importance in effecting the philosophy, vision and purpose of the Acts. Parties should be
able, and enabled, to represent themselves unless circumstances indicate otherwise,
discretion lying with the Commissioner and with the Tribunal in their respective roles.




Representation
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                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

In the Supreme Court of the Northern Territory, in Dew and Ors v. Anti-Discrimination
Commissioner and Anor [1996] NRSC 6 (20 February 1996), Chief Justice Martin observed
that the NT Act, by section 62, provided that the Commissioner:

    … may authorise a person nominated by a complainant or respondent to act on behalf of
    the complainant or respondent in any proceedings under the Act in respect of [a]
    complaint, and the person may act accordingly. Similarly, a person nominated by a
    complainant or a respondent to accompany him or her in any proceedings under the Act
    may be so authorised by the Commissioner and that person may then assist the
    complainant or respondent in the proceedings. The Commissioner is given power to
    withdraw any such authorisation if the Commissioner considers it appropriate to do so. A
    complainant or a respondent may be represented before the Commissioner by a legal
    practitioner with the leave of the Commissioner (s. 95). Read together and in context, s.
    62 being in that part of the Act dealing with complaints generally, and s. 95 in that part
    of dealing with the hearing, I take the intention of Parliament to be to enable the
    Commissioner to authorise any person , including a legal practitioner, to act under s. 62
    … I do not think that s. 62 is limited to an authority being given to a person at all stages
    of any proceeding under the Act other than proceedings before the Commissioner, but
    when it comes to proceedings ‘before the Commissioner’ (which I think means the
    hearing) then if the legal practitioner has represented or seeks to represent a party, then
    leave is required whether authority had been previously given for the legal practitioner to
    act on behalf of the party or not. The powers of the Commissioner in relation to the
    granting of authority, revoking authority and giving leave, are carefully designed so that
    the Commissioner may at different times in the course of the proceedings give
    consideration to the issues going to a fact and law as are then on foot, and to consider
    the degree of assistance which any party might reasonably require from time to time: at
    12

Referring to Natural Justice: Principles and Practical Application, by GA Flick, QC, and the
cases, Chief Justice Martin noted that permitting representation of any party before a tribunal
is discretionary, unless the rules governing the procedures of the tribunal validly provide
otherwise.

In Chamber of Commerce & Industry of Western Australia (Inc) v. Cmr of Equal Opportunity
– BC 200106994, the Western Australian Supreme Court found similarly as to the power of
the Commissioner to authorise and permit ‘agents’ including legal practitioners to represent
parties. In this, as in the NT case, because the issue was squarely before the court,
procedural fairness governed the argument and the issues were fully explored. The ratio
decidendi of each case is clear, and clearly articulated.

Under the NT Act, the Commissioner investigates, conciliates and conducts proceedings
(inquiries) into complaints. The authorisation and permission provisions extend, as Chief
Justice Martin observes, to each stage: investigation, conciliation, and inquiry, insofar as
representation by legal practitioners, advocates and other representatives are concerned.
This is consistent with Tasmania, albeit here the Commissioner engages in investigation and
conciliation of claims, whilst hearings or inquiries into claims are conducted by the Anti-
Discrimination Tribunal. It is axiomatic that if discretion is provided to the Tribunal and
Commissioner in relation to inquiries (hearings) and conciliations – where parties appear, it
will be provided to the Commissioner in investigations, where there is no ‘appearance’ of any
party before the Commissioner or Commissioner’s delegate or authorised person.




Provisions of the Act

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                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

The procedural provisions of the Anti-Discrimination Act 1998 are consistent with those of the
Sex Discrimination Act 1994, on which they are based. Section 61 of the Anti-Discrimination
Act 1998 mirrors the words of section 33 of the Sex Discrimination Act 1994, apart from the
reference to ‘organisation’:

    Acting on behalf of complainant

    33-                (1)     The Commissioner may authorise a person or organisation
                       nominated –

                             (a) by a complainant to act on behalf of the complainant; and
                             (b) by a respondent to act on behalf of the respondent.

                       (2)     The Commissioner may withdraw an authorisation if the
                       Commissioner considers it appropriate to do so: SDA 1994

    Acting on behalf of complainant

    61.                (1)       The Commissioner may authorise a person –

                             (a) nominated by a complainant to act on behalf of the
                             complainant; or
                             (b) nominated by a respondent to act on behalf of the
                             respondent.

                       (2)     The Commissioner may withdraw an authorisation if the
                       Commissioner considers it appropriate to do so: ADA 1998

An explanation for the excision of ‘organisation’ may be that there is no need to include
‘organisation’ for ‘person includes organisation, and hence the word is otiose: s. 3 SDA, s. 3
ADA. Equally it may be that organisations (including unions and organisations ‘on behalf of’
someone, or an organisation against which alleged discrimination or prohibited conduct was
directed) can have standing as claimants, in which case they are automatically ‘in’ the
investigation without any ‘authorisation for representation’ needed: s. 32 SDA, s. 60 ADA.

Interpretation and Intent
The former Sex Discrimination Commissioner advises that section 33 of the Sex Discrimination
Act 1994 applied in the same way as the similar provisions of the NT and WA Acts have been
interpreted, and that the intention as to section 61 was identical. She advises that the
interpretation of section 33 was confirmed during the Parliamentary debate on the Sex
Discrimination Bill 1994. Important were the reduction of cost and technicalities, and enabling
parties to have their own voice, make their own representations, and be empowered through
exercising their own direct control over matters affecting them.

The intention that section 61 had the same meaning as section 33 of the Sex Discrimination
Act and that its application was intended to cover all representatives, including lawyers, just
as sections 75 and 85 of the Act apply, is confirmed in correspondence of the Deputy
Parliamentary Counsel responsible for drafting the Anti-Discrimination Act 1998.




As noted in the Review of Administrative Appeals Processes conducted by the State Service
Commissioner:
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                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003



    According to the Department of Justice and Industrial Relations, when the provisions
    were originally drafted they were intended to reflect the provisions in the Sex
    Discrimination Act 1994, and are also reflected in a number of interstate jurisdictions: p.
    90

Observation indicates that this original intention is followed through in the Act, for not only
are section 33 and section 61 identical, but sections 75 and 85 of the Act (relating to
conciliation conferences: s. 75 and Tribunal inquiries: s. 85) are identical with section 45
(conciliation conferences) and 55 (Tribunal inquiries) of the Sex Discrimination Act 1994:

    Conciliated complaints

    45-                (1)       …
                       (2)       …
                       (3)       A person may be accompanied or represented by another
                       person at a conciliation conference only with the permission of the
                       Commissioner or authorised person.
                       (4)       If the Commissioner gives permission to one person to be
                       accompanied or represented by another person at a conciliation
                       conference –

                                  (a)     the Commissioner must notify any other person
                                  taking part in the conference of that permission at least 5
                                  days before the conference; and
                                  (b)     that person may also be accompanied or represented
                                  by another person.
                       (5)        …
                       (6)        …: SDA 1994

    Conciliation conference

    75.                  (1)     …
                         (2)     …
                         (3)     A person may be represented or accompanied by another
                         person at a conciliation conference only with the permission of the
                         Commissioner or authorised person.
                         (4)     If the Commissioner gives permission to one person to be
                         accompanied or represented by another person at a conciliation
                         conference –

                             (a) the Commissioner must notify any other person taking part
                             in the conference of that permission at leat 5 days before the
                             conference; and
                             (b) that person may also be accompanied or represented by
                             another person.
                         (5)      …
                         (6)      …: ADA 1998




    Hearing of inquiry

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                  Anti-Discrimination Commission Tasmania
              ANNUAL REPORT 2002-2003

    55-                 (1)       …
                        (2)       A person may be represented or accompanied by another
                        person at an inquiry only with the permission of the Tribunal.
                        (3)       …
                        (4)       If the Tribunal gives permission for one person to be
                        accompanied or represented by another person at the hearing of an
                        inquiry any other person taking part in the hearing may also be
                        accompanied or represented by another person: SDA 1994

    Hearing of inquiry

    85.                 (1)       …
                        (2)       A person may be represented or accompanied by
                        another person at an inquiry only with the permission of the
                        Tribunal.
                        (3)       If the Tribunal gives permission for one person to be
                        accompanied or represented by another person at the hearing of an
                        Inquiry, any other person taking part in the hearing may also be
                        accompanied or represented by another person.
                        (4)       …: ADA 1998

The approach of the Commissioner in Dew is consistent with that in Tasmania, namely:

             parties are obliged to seek authorisation of the Commissioner if they wish to be
              represented in the Commission during the investigation of a claim: s. 61
             parties are obliged to seek permission of the Commissioner if they wish to be
              represented in the Commission during the conciliation of a claim: s. 75
             parties are obliged to seek permission of the Tribunal if they wish to be
              represented in the Tribunal during the inquiry into a claim: s. 85

Consistent with the approach of the Commissioner in Dew, this does not affect in any way a
party’s right to seek representation – information, advice and assistance from anyone,
including lawyers, at any stage. Representation in the ordinary course outside the
Commission is not affected in any way by section 61, just as it is not affected by sections 75
and 85. It is axiomatic that people have a right to seek legal information, advice and
assistance whether from private lawyers, legal aid, or a community legal centre, etc at any
time they choose. It is confirmed in the Commission’s Procedural Notes and pamphlets.
Representation in the Commission or ‘before’ the Commissioner and Tribunal is what is
covered by sections 61, 75 and 85.

Facilitative Provision?
Sections 33, 45 and 55 of the Sex Discrimination Act do not refer explicitly to lawyers. They
do not need to do so. Rarely do provisions relating to leave to appear in courts, tribunals or
commissions refer explicitly to the legal profession. The intention is clear, the legal profession
were equally covered by sections 33, 45 and 55 as any other advocates or representatives.
There was no controversy. Similarly, sections 61, 75 and 85 of the Anti-Discrimination Act do
not refer explicitly to lawyers. There was no need for them to do so. It was accepted that
they, being based directly upon the Sex Discrimination Act provisions and founded in the
same principles, were intended to cover the legal profession, along with other advocates or
representatives. The Sex Discrimination Commissioner applied the same principle as is applied
by the Anti-Discrimination Commissioner under the Anti-Discrimination Act.

There is no controversy about section 75 and 85 in their application to legal practitioners.
There is no need for controversy about section 61, in light of its history, its wording
consistent with that of the Sex Discrimination Act, and the known intention as expressed by
all involved in its formulation and the foundation and formulation of the Anti-Discrimination
Act.
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                   Anti-Discrimination Commission Tasmania
            ANNUAL REPORT 2002-2003



It may be suggested that section 61 is ‘facilitatory’ or ‘facilitative’ only; that is, that it enables
the Commissioner to give permission to persons who are not legal practitioners to ‘represent’
parties in the Commission. This reading contends that section 61 does not relate to legal
practitioners and that therefore legal practitioners have an ‘automatic right’ to be in the
Commission. Why this would be so, when permission needs to be gained for legal
practitioners and others at conciliation and inquiry stage is not clear. The latter stages are
where representation could be indicated in that parties are present, matters are discussed or
revealed ‘in person’, parties may be questioned and cross-examined on affirmation or oath in
the Tribunal. Contrarily, at investigation stage parties are not present or asked to present
themselves, matters are not discussed or revealed ‘in person’, there is no giving of evidence
on affirmation or oath, there is no cross-examination, and the parties have every opportunity
to discuss the issues with their legal practitioners or anyone they choose, and to have their
assistance in writing their claim or response to the claim, and providing any information.

Section 33 of the Sex Discrimination Act, like sections 45 and 55, was not ‘facilitative’ or
‘facilitatory’ in this limited sense of applying to non-legal practitioners only. Nor was section
61 intended to be so. Perhaps the ‘McKenzie’s friend’ principle has influenced the analysis of
the Act’s provisions, so that a notion has crept in that section 61 applies not to legal
practitioners but is facilitatory of non-lawyers in ‘representing’ parties.

McKenzie’s Friend
The principal rule is that those who may address the court are litigants in person, or legal
practitioners admitted to practice. A legal practitioner admitted to practice in one jurisdiction,
but not admitted to practice in another, has a right of appearance in the first, but not the
second. A legally qualified person who is not admitted to practice cannot appear in court as
an advocate. This means that if a litigant wishes to be represented in court, she or he can be
represented only by a legal practitioner admitted to practice in the jurisdiction where the case
is heard. Generally, the bar table should be occupied only by legal practitioners admitted to
practice or litigants appearing in person. The sole modification arises out of McKenzie’s case.

McKenzie v. McKenzie [1971] P. 33; [1970] 3 WLR 472 established that ‘every party has a
right to have a friend present in court beside him to assist by prompting, taking notes and
quietly giving advice’. McKenzie’s friend was a lawyer, albeit without practising status within
the jurisdiction: Ian Hanger (now QC), admitted to the Queensland Bar in 1968 and at the
time of McKenzie’s case not being admitted to practice in London. He sat beside a family law
litigant, a client of his firm, who had neglected to communicate with his solicitors in the
months prior to the trial. When legal aid was withdrawn on the day immediately before the
trial, Mr McKenzie asked the firm to assist him. Mr Hanger was sent, and sat at the bar table
prompting Mr McKenzie who was unable to represent himself, or do so adequately. Eventually
the presiding judge lost patience, and sent Mr Hanger to the back of the court, ordering him
to speak with Mr McKenzie during adjournments only. When Mr McKenzie was dissatisfied
with the outcome, and the case went on appeal, the successful ground (devised by Mr
Hanger) was that the trial judge ‘was wrong to exclude me’.

In ‘McKenzie’s True Friend’, Justice Chesterman of the Supreme Court of Queensland relates
this tale, observing that the Australian lawyer effectively ‘made new law’. Since 1971, a
‘McKenzie’s friend’ is someone who has no right to address the court, ‘but who is permitted to
sit beside the litigant in order to prompt him, make suggestions to him and advise him, and
make notes’.




That is, this facilitative principle applies to court hearings, so that a litigant in person can
have the benefit of a ‘friend’ assisting them through the trial. The ‘friend’ is not an admitted
to practice legal practitioner, but someone with skills who may nonetheless assist. It is
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                   Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

difficult, however, to see that this is what section 61 of the Anti-Discrimination Act is aimed
at.

Distinct Stages - Investigation, Conciliation and Inquiry
Section 61 relates to the investigation stage of claims in the Commission, not to any ‘hearing’.
‘Hearings’ under the Anti-Discrimination Act are held by the Anti-Discrimination Tribunal.
Representation in the Tribunal is governed by section 85, which allows legal and other
representation at the Tribunal’s discretion. Parties are present in the Commission at
conciliation conferences, where a ‘friend’ may assist. But there is no need for a ‘McKenzie’s
friend’ principle here, for section 75 fixes discretion in the Commissioner to grant permission
to a representative (including a legal practitioner or any other ‘representative’) or
‘accompanying person’, just as section 85 places discretion in the Tribunal at inquiries. As
noted, both provisions extend to legal practitioners.

At the investigation stage, there is no need to resort to a ‘McKenzie’s friend’ argument, for
there is no conflict, in any event.

There is no dispute that a party has a right to have ‘someone’ – lawyer or not – to advise,
make suggestions to them, and ‘make notes’ throughout the entirety of the investigation of a
claim. All this is made clear, as it should be, in the Commission’s Procedural Notes and
pamphlets, and advice to claimants, respondents, the legal profession and the public
generally. It can be done, insofar as legal practitioners are concerned, in the ordinary way: in
their offices, along with the clients in conference. If not at the lawyer’s office, it can be
wherever the client and their lawyer (or anyone else) wish. It can be done in the union office
or the offices of employer groups, indeed anywhere a claimant might prefer to meet with
their lawyer or advocate, or a respondent might prefer to meet with theirs. There is no need
for them to ‘sit beside’ a party in the Commission ‘taking notes’ for no occasion arises for
them to do so in the investigation.

If a lawyer wishes to attend at the Commission for procedural advice, whether alone or with
their client, every facility will be provided for them to do so. Investigation and Conciliation
Officers and the Commissioner are accessible and ready to meet with legal practitioners, as
with union or employer advocates and others, claimants and respondents, or prospective
parties, with or without someone assisting them. It is up to them – albeit the courtesy of
making an appointment will be appreciated as facilitating the Commission’s work and
respecting the professional requirements of the Investigation and Conciliation Officers and
other staff.

However, insofar as the investigation itself is in issue, the Commissioner does not conduct
any investigation ‘in person’ with parties being questioned. Investigations are conducted
through correspondence, so that any party or witness is free at any time to have the advice
and assistance of anyone when responding to a claim, or replying to a respondent’s response
to the claim. Commission correspondence is open to be discussed with the party’s legal
practitioner or other advocate. This is a matter for them. The only requirement to attend at
the Commission is where a party is directed to attend a conciliation conference under section
75 – where permission is required for representation, and this is accepted all around, without
controversy.




What the Act requires is that, unless authorisation is granted under section 61, claimants and
respondents providing information to the Commission’s investigation do so for themselves,
not by lawyers or anyone else on letterhead signing off for them. For a party rightly expecting
the proper informality, lack of technicality, and low cost, receiving a response or reply from
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                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

the other party’s lawyer can be disconcerting, experienced as intimidatory whatever the
intention, and may be disempowering to the party who no longer answers for themselves.

Both claimants and respondents are advantaged by low cost, less formality, less technicality
as intended through these provisions. The rights of respondents and claimants are respected
equally through the fair and proper application of the principles embodied in sections 61, 75
and 85 of the Act.

Procedural Fairness in Authorisation and Permission for Representation, etc
To ensure procedural fairness, where a party requests authorisation or permission for
representation, the other party is asked for their view. This is taken into account alongside
other matters, such as health and age of the parties, nature and complexity of the claim.

These are set out in the Commission’s pamphlet Representation – Lawyers and Advocates,
referred to in the pamphlet Conciliation Conference – What You Need to Know, and
comprehensively related in Procedural Note No. 1 – Representation in the Commission –
Investigation of Claims and Procedural Note No. 2 – Representation in the Commission –
Conciliation Conferences.

If there is no respondent (where a claim has not yet been accepted for investigation) and a
request for authorisation under section 61 is made, health, age, nature and complexity of the
claim, etc are taken into account in assessing the request. The view of a respondent cannot
be sought, for there is no respondent from whom a view can be sought. There is no
respondent until the claim is assessed and a determination made to accept the claim for
investigation. If the claim is rejected for investigation, no respondent will be advised, for no
respondent exists. Hence, it would not only be unorthodox to ask for the view of a
‘respondent’ prior to accepting a claim for investigation, but it would be ultra vires. The power
to name a respondent is directly dependent upon the determination that a claim raises
possible discrimination or prohibited conduct within the meaning of the Act. If no possible
discrimination or prohibited conduct is discerned, there can be no respondent.

The Power of Procedural Fairness
Procedural fairness is an elementary principle of justice. It is effected in the Commission’s
claims processes in representation, and in the investigation of claims. This is to be expected.

In a fair system, claimants and respondents will be treated equally, so that power, position
and perceived importance do not skew the process, alleviating the powerful and important
from the provisions of the Act. In a dysfunctional society, the powerful and important are
treated as ‘above the law’, or expect themselves to be so treated. In a dysfunctional process,
the powerful and important will not be asked to provide a written account if a claim is made,
or investigated. Rather, they will not be questioned. If they are, they will be allowed to
escape providing their version of the facts by not answering at all, or answering elusively.
This is not even-handedness, and it does not accord with procedural fairness. It will not result
in substantive fairness.




Claimants are required to commit their claims to writing. This is as it should be, for:

       it assists claimants in clarifying their points of contention, and in knowing precisely
        what their claims are
       it assists the respondents in having a written recitation of what the claim is about,
        and what is said to have occurred as possible discrimination or prohibited conduct
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           ANNUAL REPORT 2002-2003

       it assists the Commission in being able fairly to assess the claim

The same is true for respondents. Committing themselves to writing:

       assists them in clarifying their reply to each part of a claim
       ensures that the claimant has a written recitation of what is said by the respondent
        to have occurred, and what is contended for in reply to the claim
       assists the Commission in being able fairly to assess the claim in the light of the
        response or specified information provided by the respondent

Consistent with procedural fairness, translation to English is provided by the Commission,
through translation services. Support or advice as to outside advocacy services are provided
in the writing of claims, responses or replies by claimants and respondents, where indicated.

The extension to both claimants and respondents of an equal right to be heard, equal time,
an equal opportunity to be informed, and a neutral investigator and decision-maker is fair,
and accords with proper requirements of a just process. However, this very equality and
fairness can be perceived as ‘unequal’ by those who are unaccustomed to being asked to
account for themselves, what they have or have not done, or what they are said, understood
or believed to have done, or not done. Extending ‘equal rights’ to both claimants and
respondents can be perceived as ‘unequal’ by those who are accustomed to seeing persons
lacking power, or less powerful, being disbelieved in favour of the powerful, or treated with
disdain and contempt whilst all respect and unquestioned belief is directed towards those in
positions of power.

Anti-discrimination law is an antidote to this way of looking at the world: the way that
expects the powerful to remain unquestioned, their version of events to be accepted without
equivocation as ‘right’, and the voice of the powerless or less powerful to remain unheard.
Anti-discrimination law aims to erect a strong, open, even-handed and egalitarian society out
of one which celebrates the powerful and downgrades the powerless as if they do not count,
and have no rights, particularly no right to a voice, to a fair process, or a fair hearing.

The Anti-Discrimination Act works towards effecting this change. This can be done, or at least
will be more readily done, with committed support from those who long for fairness and
equal respect for all, or need to affirm this as their belief, and their goal. The legislation
deserves support not only in its words, but in its application. When the Commission’s
processes are founded in procedural fairness and an awareness of the very core of the
legislation in its plan to eliminate discrimination, and are applied with integrity with the same
requirements placed upon respondents as upon claimants, they accord with the spirit and
letter of the Act. The vast bulk of people with whom the Commission engages recognise and
appreciate this. In turn, all at the Commission appreciate the courtesy and decency shown by
the majority in their exchanges with the Commission. Courtesy, decency and the positive
promotion of ethical values facilitate the Commission’s work. Courtesy, decency and the
positive promotion of ethical values facilitate the Commission’s work and the rights of all
Tasmanians. We thank claimants, respondents, witnesses and all who deal with the
Commission in this way.

By this means, dignity and respect will be promoted and preserved, and the rights of all
Tasmanians will be advanced and enhanced.

Review of the Act

    … what is most crucial is for Australians to develop a new, non-utilitarian
    notion of democracy, a sense that something is wrong if minorities and
    disadvantaged groups within our society have less possibility of having
    their human rights observed than socially dominant groups. Our present


                                                                                           9
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

    complacency about the protection of human rights in Australia is our
    greatest weakness.

                                                             Professor Hilary Charlesworth
                                           The Australian Reluctance About Rights, 1993

By Cabinet decision, the Anti-Discrimination Act 1998 is to be reviewed, commencing May
2004. This is a welcome development. All legislation can be improved, and the review
ensures that matters arising in the four years of operation of the Act can be addressed. The
Commission’s Annual Reports 1999-2000, 2000-2001 and particularly 2001-2002
comprehensively outline proposals for amendment, focusing on cogent and constructive
improvements to legislation which already seeks cogently and constructively to ensure that
discrimination and prohibited conduct may be ended or at least progressively ameliorated,
and the rights of all citizens may be positively enhanced.

These proposals have arisen out of discussion in the community, exchanges with claimants
and respondents, debate within the Commission amongst legal and administrative staff, and
communications with practitioners, unions and employer organisations, the public sector,
business and other organisations, Commissioners and staff interstate, and overseas
counterparts.

The State Service Commissioner’s Review of Administrative Appeals Processes has said that
this provides an opportunity to ‘reflect in section 61 the wording of sections 75 and 85’ as to
legal representation. As observation indicates, the Act’s wording is consistent, in that just as
there is no reference to ‘legal’ representation in section 61, so too there is no reference to
‘legal’ representation in either section 75 or 85, and it is accepted that both provisions relate
equally to lawyers as to any other ‘representatives’.

Insofar as representation generally is in issue, the Commission is fortunate in that Senior
Lecturer in Law, Ms Terese Henning, and Professor John Blackwood of the University of
Tasmania Law School have taken up the Commissioner’s invitation to include in their
important study of cases in tribunals and administrative law processes the important question
of representation. It is expected that the outcome of their research, when complete, will
assist in ensuring the continued integrity of the Commission’s approach.

    At any stage … a party can obtain legal advice or advice from an
    advocate. This means that the Commission will continue to deal with the
    party to the claim, and the party to the claim can (at their own expense)
    obtain advice from a lawyer/advocate outside the Commission about any
    aspect of the claim. The person obtaining legal advice does not need to
    tell the Commission that they have obtained the advice, for it is
    everyone’s right to do so.
                                                    Anti-Discrimination Commission
                                         Representation – Lawyers and Advocates, 2000




        THE COMMISSION


The Anti-Discrimination Commission is the administration of the Anti-Discrimination
Commissioner, an independent statutory authority established on 10 December 1999, with
corporate administrative support provided by the Department of Justice and Industrial
Relations.



                                                                                         10
                  Anti-Discrimination Commission Tasmania
            ANNUAL REPORT 2002-2003

Structure
Dr Jocelynne A Scutt was appointed the Anti-Discrimination Commissioner in 1999 for a five-
year term by the Minister for Justice and Industrial Relations, and is assisted by a team of ten
staff, established as the Commission.

The Commissioner
Dr Scutt graduated in law from the University of Western Australia in 1969 (LlB). In 1972
and 1973 she gained a Master of Laws (LlM) and Diploma of Jurisprudence (Dip. Juris.) from
the University of Sydney before studying overseas at Southern Methodist University, Texas
and the University of Michigan, Ann Arbor, the University of Cambridge, and the Max-Planck-
Institut in Freiburg-im-Breisgau. She gained another Master of Laws (LlM) and her Doctor of
the Science of Jurisprudence (SJD) in 1974 and 1979, and Diploma of Legal Studies (Dip
Legal Studies) in 1976. Subsequently she gained a Master of Arts (MA) from the University of
New South Wales (1984) and in 1994 was awarded the degree of Doctor of Laws (LlD)
(Honoris Causa) by Macquarie University. She has studied film at RMIT and AFTRS.

Dr Scutt has worked with the Australian Law Reform Commission, the Australian Institute of
Criminology, the Victorian Parliamentary Legal and Constitutional Committee, and was Deputy
Chairperson of the Law Reform Commission, Victoria, before going into private practice at the
Bar in 1986. She practiced primarily in Victoria, as well as in the Northern Territory and
Tasmania, and in New South Wales, South Australia and Western Australia, and undertook
opinion work in the Australian Capital Territory and Queensland, and remains on the ‘non-
practising list’ of the Victorian Bar.

Amongst others, her books include Women and the Law, Even in the Best of Homes –
Violence in the Family, The Baby Machine – Commercialisation of Motherhood, The Sexual
Gerrymander – Women and the Economics of Power, Breaking Through – Women, Work and
Careers, Taking a Stand – Women in Politics and Society, Living Generously – Women
Mentoring Women, Growing Up Feminist – The New Generation of Australian Women,
Growing Up Feminist Too – Raising Women, Raising Consciousness, The Incredible Woman –
Power and Sexual Politics (2 vols), Lionel Murphy – a Radical Judge, For Richer, For Poorer –
Money, Marriage and Property Rights (with Di Graham), and Poor Nation of the Pacific –
Australia’s Future?

Functions and Powers of the Commissioner
The functions of the Commissioner are:
        to advise and make recommendations to the Minister on matters relating to
            discrimination and prohibited conduct;
        to promote the recognition and approval of acceptable attitudes, acts and practices
            relating to discrimination and prohibited conduct;
        to consult and inquire into discrimination and prohibited conduct and the effects of
            discrimination and prohibited conduct;
        to disseminate information about discrimination and prohibited conduct and the
            effects of discrimination and prohibited conduct;
        to undertake research and educational programs to promote attitudes, acts and
            practices against discrimination and prohibited conduct;


           to prepare and publish guidelines for the avoidance of attitudes, acts and practices
            relating to discrimination and prohibited conduct;
           to examine any legislation and report to the Minister as to whether it is
            discriminatory or not;
           to investigate and seek to conciliate claims: ss. 5, 6

The Commissioner is empowered under the Act to:
       determine the procedures to be followed in any investigation or conciliation;

                                                                                        11
                  Anti-Discrimination Commission Tasmania
            ANNUAL REPORT 2002-2003

           intervene, with the leave of a court or tribunal, in proceedings before the court or
            tribunal that involve issues relating to acts of discrimination or prohibited conduct;
           to grant an exemption from the application of this Act in respect of any acts of
            discrimination or prohibited conduct;
           to do anything necessary or convenient to perform the functions of the
            Commissioner: ss. 7, 69

The Commissioner publishes Procedural Notes so that processes and procedures are
transparent and known to all.

The Minister
The Attorney-General, the Honourable Judy Jackson, MHA, is the Minister responsible in
Parliament for the Commissioner and her office, the Commission.

The Legislation
The Anti-Discrimination Act 1998 (Tasmania) was given royal assent on 10 December 1998,
being proclaimed on 10 December a year later.

The Act makes unlawful discrimination on attributes or identities including:

1. association with a person who has, or is believed to have, any of the attributes or
    identities in section 16, including
2. race/ethnicity                            3. age
4. sexual orientation                        5. lawful sexual activity
6. sex/gender                                7. marital status
8. pregnancy                                 9. breastfeeding
10. marital status                           11. family responsibilities
12. disability                               13. industrial activity
14. political belief or affiliation          15. political activity
16. religious belief or affiliation          17. religious activity
18. irrelevant criminal record               19. irrelevant medical record

The Act also covers the following prohibited conduct:
 any conduct which offends, humiliates, intimidates, insults or ridicules another person re
   gender, marital status, pregnancy, breastfeeding, parental status, family responsibilities
 sexual harassment
 victimisation (in relation to claims or complaints of discrimination, etc)
 inciting hatred (by a public act)—on race, disability, sexual orientation, lawful sexual
   activity, religious belief or affiliation, or religious activity
 publishing, displaying or advertising matter that promotes, expresses or depicts
   discrimination or prohibited conduct
 knowingly causing, inducing or aiding others to contravene the Act: ss. 17-21




Areas covered by the Act:
 employment (paid and unpaid)
 education and training
 provision of facilities, goods and services
 accommodation
 membership and activities of clubs
 administration of any law of State and any State program in relation to sex/gender, marital
    status, pregnancy, breastfeeding, parental status, family responsibilities
 awards, enterprise agreements and industrial agreements in relation to sex/gender, marital

                                                                                         12
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

    status, pregnancy, breastfeeding, parental status, family responsibilities: s. 22

EXCEPTIONS AND EXEMPTIONS UNDER THE ACT ARE CONTAINED IN PART 5 OF THE ACT.




                                                                                        13
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003



        CLAIMS HANDLING


A total of 1600 approx. phone enquiries and 60 approx. walk-in enquiries were handled,
relating to state and federal legislation. This does not include calls and appointments on
existing claims, or appointments or walk-in enquiries handled by the Commissioner.

In September 2002 an electronic case management system (Raemoc/Adrm – Anti-
Discrimination Records Management) was installed at the Commission. The reporting of claims
in this system changed from the old method of reporting. In the new system (Raemoc/Adrm),
a claim is recorded as one claimant and one respondent only. Multiple claimants and/or
multiple respondents are recorded as multiple claims. In some respects this more accurately
reports on the Commission’s work because under the manual system multiple claims were
generally recorded as one claim. However, it also underreports because not all
attributes/identities, prohibited conduct, and areas of activity can be recorded for each claim.

Consequently, statistics have been reported as follows:
1. A comparative chart of claims received under the old system for the period July–August
   2001 and July–August 2002
2. September 2001–June 2002 old system
3. September 2002–June 2003 new system

[The figures for September 2001-June 2002 and September 2002-June 2003 have not been
reported in a comparative graph as they have been registered under two very different
reporting systems.]



                                            Claims Received


                     50

                                27
                                              30                              2001
                     25
                                                        13            12      2002
                      0
                              Jul           Aug       Jul           Aug

                                     2001                    2002




September 2001 – June 2002      182 claims
September 2002 – June 2003      230 claims

[These figures (September 2001-June 2002 and September 2002-June 2003) have not been
reported in a comparative graph as they have been registered under two very different
reporting systems.]

Claims brought forward from 2001-2002 (old system)          117
Claims settled in 2002-2003 (old and new system)            277



                                                                                       14
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003




                                        Claims Lodged 2002-2003

                     80

                     70

                     60

                     50
              Nos




                     40

                     30

                     20

                     10

                      0
                                ct




                                 b
                                ov

                                ec




                                ar
                                 p
                          l




                                 n
                                 g




                                 r
                                ay
                                 n
                      Ju




                              Ap
                              Fe
                              Se
                           Au




                              Ju
                              Ja
                              O




                              M
                              D




                              M
                              N




[Claims in February are exceptionally high, as one claimant lodged 48 claims, one lodged six
claims and one lodged five claims.]




         ANTI-DISCRIMINATION
                                           UPDATE!

The majority of claims not rejected for investigation or dismissed following investigation are
resolved through conciliation. Relatively few claims are referred to the Anti-Discrimination
Tribunal for inquiry and of those that are, fewer result in a determination by the Tribunal,
because some are conciliated there, and some are withdrawn or otherwise settle. This means
that information about possible outcomes is not readily available to claimants and
respondents, legal practitioners and others. To remedy this, the Commission now publishes
Anti-Discrimination UpDate! a newsletter which carries reports of conciliation outcomes,
exemptions, articles and news on training, community education, conferences and seminars.
Conciliation outcomes are reported so as to preserve privacy.

Conciliation outcomes reported included:

       age (youth) discrimination in banking
       age (youth) discrimination in employment, re shiftwork
       industrial activity and political activity discrimination in employment - active unionist
        not interviewed for job albeit well-qualified
       family responsibilities discrimination in employment - shifts offered not
        accommodating childcare
       sexual harassment and sexual orientation discrimination in employment
       sexual harassment and sex/gender discrimination in provision of goods and services -
        sexualised gestures and words to a customer, by the checkout operator



                                                                                         15
                    Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

‘Sexual Harassment’ – a comparison of male and female sexual harassment claims, and ‘Age
Discrimination’ – a study of Commission claims involving children and youth, carried out for
the National Youth Law Centre, were lead articles in the issues for 2002-2003. ‘Age
Discrimination’ indicated that the youngest claimant was an eleven-year-old refused keycard
access to their own bank account. Most child and young person claims are made by a parent
or parents on their behalf; some are made by interested parties, including fosterparent/s,
extended family, and advocates. Over a three year period, 35 claims were made in respect of
43 children or young persons, four on their own initiative. In the majority (18.2%), disability
discrimination was an issue, whilst the remainder involved age discrimination, offensive, etc
conduct, and discrimination on grounds of gender/sex, race, sexual orientation, religious
belief, and parental status, family responsibilities and marital status per ‘association’
discrimination.

Anita George, Rebekah Francis, and Evelyn Robertson produced the first three issues of Anti-
Discrimination UpDate! Kristy Eulenstein worked on future issues, for production in 2003-
2004.



        EXEMPTIONS


Under Section 57 of the Act the Commissioner may grant an exemption unconditionally, or on
conditions, for up to three years; revoke an exemption, vary conditions or impose conditions
during the period of the exemption; and renew an exemption. So that the process is
transparent and the public has an opportunity to make submissions ‘for’ or ‘against’, knowing
what exemptions are being sought and why, the Commission advertises applications in the
Mercury, Advocate, Examiner and Government Gazette. Because it is important that an
opportunity is provided for all applicants to have ‘hands on’ information about the Act and
education in its principles and provisions, if granted, exemptions come with a condition that the
applicant secures community education or training from the Commission at least once annually.
Generally applicants welcome this opportunity.

A total of nine exemptions were granted in the period June 2002-2003:

          Types of exemption granted
          Disability access
          Gender specific positions (male and female)
          Race specific positions
          Restricted membership to people with an intellectual disability



          Type of organisation
          Government funded organisations
          Community organisations (non-profit)
          Private




                                                                                        16
                  Anti-Discrimination Commission Tasmania
            ANNUAL REPORT 2002-2003


                                              Exemptions Granted


                             18               17

                             16
                                                                      14
                             14

                             12

                             10

                              8

                              6

                              4

                              2

                              0
                                        2001-2002                2002-2003



         TRAINING


The Anti-Discrimination Commission operates a successful business through its Training Arm,
Anti-Discrimination Australia (Tasmania), providing generic and ‘tailored’ training in the public
and private sectors. During the year, Anti-Discrimination Australia (Tasmania) offered standard
courses:
                 1.    Contact Officer Training Course
                 2.    Anti-Discrimination Act 1998 – Overview
                 3.    Supervisory/Manager
                 4.    Diversity and Anti-Discrimination – Overview

In addition, a large number of organisations sought tailored courses to meet their specialised
needs. Some sought ‘per-claim conciliation’ where the Commission provides tailored sessions directed at
an identified problem prior to its becoming a fully-fledged dispute.

A total of 50 training sessions were delivered in July 2002-June 2003 generating an income of $33,635,
an increase on the 45 sessions delivered in July 2001-June 2002 with income of $23,592. Pre-claim
conciliation also generates income.




                                                                                               17
                      Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003




Delegates from the following organisations participated in training:

                 Hobart City Council
                 Northern Midland Council
                 Launceston City Council
                 Brighton Council
                 Sorell Council
                 Kingborough Council
                 Burnie City Council
                 Waratah/Wynyard Council
                 Kentish Council
                 Glamorgan/Spring Bay Council
                 Department of Infrastructure, Energy & Resources
                 Department of Police & Public Safety
                 Department of Health & Human Services
                 Department of Treasury & Finance
                 Department of Primary Industry Water & Energy
                 TAFE Tasmania
                 Women Tasmania
                 Migrant Resource Centre
                 Cosmos Recreation Services
                 Anti-Discrimination Tribunal
                 Tasmanian Fire Service
                 Forestry Tasmania
                 Metropolitan Transport Trust
                 Cerebral Palsy Tasmania
                 Australian Broadcasting Corporation
                 Mary’s Grange Nursing Home
                 Anglicare
                 Cadbury Schweppes
                 Wrest Point Hotel Casino
                 Australian Human Resources Institute
                 Aldersgate
                 Bonlac Foods
                 Simplot
                 Marine & Safety Board
                 Programmed Maintenance
                 Members Equity




                                                                       18
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003




A major seminar, Principles, Practices and Procedures, was organised and run at the Tram
Shed in Launceston on 25 June 2003. The Chairperson of the Anti-Discrimination Tribunal,
Helen Wood, Magistrate, participated along with the Commissioner and Commission staff. This
meant that participants received a practical exposition of the principles, practices and
procedures in relation to claims from receipt and assessment, through investigation, to Tribunal
review and inquiry. A total of 52 delegates from government departments, local government,
business, associations, the legal profession and private organisations attended.

Feedback from the Seminar has enabled the Commission to develop and offer the following
modules in the next financial year.

   Recruitment and selection processes
   Organisations’ rights and obligations: suitable for employers, corporations, clubs,
    associations, small businesses, sole traders/partnerships, recreational and sporting
    organisations, and volunteer groups
   Workplace harassment/bullying and sexual harassment
   Intersection of OH&S and Anti-Discrimination Act
   Responding to, and dealing with, claims of discrimination: What you need to know

‘Anti-Discrimination Politics’, a module designed for electorate and political staffers, is in
development, incorporating an overview of the Act, political affiliation, belief and activity
discrimination, and ‘information for constituents’.




         COMMUNITY EDUCATION


The Commission’s Community Education and Liaison Arm provides free education in the Act
and its operation, and the operation of the Commission, including –

   Information sessions
   Participation in Expos, etc
   Forums and other events jointly with other organisations
   ‘Outreach’ into the community, around the state
   Distribution of Commission pamphlets, leaflets, posters and newsletters, etc

INFORMATION SESSIONS
 Conducted with schools, colleges, unions, community groups, Vocational Educational and
   Training (VET), Health and Community Workers, Refugee Work Placement Program,
   Disability Services, and Productivity Plus.
 Participation in “That’s the way: to teach real … & to learn for life” organised and run by
   a University of Tasmania, Launceston Campus, committee of graduating education
   students focusing on the new curriculum documents, the Essential Learnings, and how
   they link to real life learning experiences
 Participation one-day interactive sessions on bullying and racism attended by students
   from six primary schools




                                                                                            19
                   Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003



EXPO/INFORMATION BOOTHS
 Participation in the Community Health and Safety Expo organised by the North West
   Christian School in Ulverstone
 Information booth, Family & Child Health Conference, Launceston
 Information display, Commonwealth Disability Discrimination Forum, Hobart
 Information display, Community consultations on racism against Arab and Muslim
   Australians, Hobart

DISSEMINATION OF PUBLICATIONS, ETC
Broadreaching dissemination of Commission publications at numerous meetings and
community events, and to interested individuals and organisations.

FORUMS
 The Commission organised and co-hosted a Hobart forum celebrating the 10th
   Anniversary of the Commonwealth Disability Discrimination Act 1992, jointly with the
   Human Rights and Equal Opportunity Commission (HREOC). Dr Sev Osdowzski, Human
   Rights Commissioner and Acting Commonwealth Disability Discrimination Commissioner,
   and Mr David Mason, Director of the Disability Rights Unit, Sydney, co-chaired.

   The Commission and Multicultural Tasmania co-hosted “‘ISMA’”– Listen - a community
    consultation on eliminating prejudice against Arab and Muslim Australians’ for HREOC.
    The Commissioner chaired and together with Mrs Pia Struwe, Investigation and
    Conciliation Officer, Ms Santi Mariso, Community Education and Liaison Officer, and Mr
    Stuart Beswick of Multicultural Tasmania facilitated the workshops/consultations. The
    report is available on
    http://www.humanrights.gov.au/racial_discrimination/isma/meetings/14june03.html

MEETINGS/DISCUSSIONS/CONSULTATIONS
 Productivity Commission Inquiry into the Operation of the Disability Discrimination Act
   1992(Cth) - meetings and discussions with Ms Helen Owens, Productivity Commissioner
   and her staff, Hobart
 Meeting with Ms Jo James, Manager of Riawunna Aboriginal Studies, University of
   Tasmania Launceston Campus
 Representatives of persons with a disability and local government representatives on the
   Disability Discrimination Act 1992(Cth) – meeting and consultations for Productivity
   Commission Inquiry and issues in Tasmania

PUBLIC HEARINGS
Legislative Council Select Committee on International Students – Public hearing: Submission
to Parliamentary Committee
Productivity Commission Inquiry into the Disability Discrimination Act 1992(Cth) – before
Commissioner Owens and Deputy Commissioner Kate McKenzie

OUTREACH
West Coast visit, in conjunction with Commissioner for Children, Ms Patmalar Ambikapathy –
 Consultations with community workers, local community, businesses, Local Government
   Representatives, teachers and students at Rosebery, Strahan, Queenstown, and Tullah
 Discussions on issues facing the Indigenous community on the North West Coast -
   organised by the Circular Head Aboriginal Corporation, attended by School Principal, Local
   Police, Health and Youth Workers, and local community




                                                                                      20
                 Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

COMMUNITY NETWORKS, ETC
 Involvement in and membership of various community networks relevant to the work of
   the Commission, including –
 Convenor of Police, Gay, Lesbian, Bisexual, Transgender Liaison Committee
 Committee member of Networking For Harmony (N4H), a project working towards
   eliminating racism and promoting harmony
 Committee member, Human Rights Week Organising Committee
 Attendance at many community events, consultations and meetings, for example -
   Launch of Reconciliation Calendar
 Oyster Cove Festival
 Philippine Festival
 Citizenship Education program
 Launch of Department of Immigration, Multicultural and Indigenous Affairs (DIMIA)
   Tasmania Settlement Plan
 Multicultural Liaison Officers seminar and other meetings



    COMMISSIONER’S SPEAKING AND OTHER ENGAGEMENTS


The Commissioner undertook a total of some 54 engagements in 2002-2003, ranging from
educational institutions, communities, local councils, and others. Additionally, the
Commissioner participated in numerous forums in other states, principally as keynote speaker.
She was a delegate to the Women’s International League for Peace and Freedom (WILPF)
international conference in Aotearoa/New Zealand, particularly in relation to Security Council
Resolution 1325, attended at the Human Rights Commission, and the Women’s Caucus on
Gender Justice, WILPF, Amnesty International and Women’s Tribunal, New York.
                               27




                                                           13




        2002-03
                                                                   1
                                                 9
                                        44




                                                                  13



                                                                            10




        2001-02
                                                                                   1




                  0       10        20          30        40      50       60      70    80

                                Local        Intrastate   Interstate   International




                                                                                        21
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

Conferences, events and venues at which the Commissioner was a speaker include:

   South East Women’s Emergency Service, Mt. Gambier, South Australia.
   10th Anniversary of Disability Discrimination Act, Hobart, Tasmania
   Celebrating Cultural Diversity Forum, Melbourne, Victoria
   Northern Midlands Council, Tasmania
   Asia Pacific Conference, Melbourne, Victoria
   Retrospectives on the Whitlam Government Conference, Canberra, ACT
   Women's Network Conference, Canberra, ACT
   ‘Better Ways to Blue’ – Alternative Dispute Resolution, Law School, University of
    Tasmania, Hobart
   Family Therapy Conference, Hobart, Tasmania
   Women’s International League for Peace and Freedom, Auckland, Aotearoa/New Zealand
   Caucus for Gender Justice, New York, New York, USA
   National Organisation of Women Students Conference, Townsville, Queensland


        MAJOR PROJECTS 2002-2003


Raemoc/Adrm
2002-2003 saw the introduction at the Commission of Raemoc/Adrm (Registration And
Effective Management Of Claims/Anti-Discrimination Records Management) an electronic case
management system.

The project was planned in three phases, installation and training, data migration and testing.

Raemoc/Adrm was installed with staff training in August 2002, data migration completed in
January 2003, and system-testing commenced March 2003, with follow-up staff training in
March 2003. During the testing stage limitations were identified. Further modifications were
needed and the Commission worked closely with the programmer to bring the system as close
as possible to an acceptable/workable standard. Limitations remain due to vast differences
between the legislative scheme Raemoc was designed to cover, and the more complex Anti-
Discrimination Act. Due to delays in implementing the project early in the financial year
2002-2003 and the operation of a dual system – manual and electronic - statistics have had to
be extracted manually. Electronic extraction will, however, always have limitations in
consequence of the narrow scope of the capacity of the system to tabulate and record
Commission claims.

Introduction of Raemoc/Adrm has facilitated management of investigation of claims, with a
more ready facility for measuring adherence to legislated and internal timeframes, supporting
investigation skills, and providing enhanced performance reports. Designed to record limited
types of complaint, confined to one sector, rather than complex claims, limitations are evident.
Raemoc cannot record the multiplicity of provisions, including discrimination and prohibited
conduct, nineteen attributes/identities and seven areas of activity (with numerous subsets
within both,), and exceptions existing under the Anti-Discrimination Act. Rarely, if ever, does a
Commission claim involve one attribute/identity only and one area of activity. Multiple
attributes/identities and areas of activity are the norm, along with multiple types of prohibited
conduct.


Administrative Support
From its inception, the Commission had no administration manager (or office manager) and
no dedicated administrative support. In 2001 the Department of Justice and Industrial
Relations commissioned a consultant to carry out an assessment of workloads and
administrative needs within the Commission. A recommendation from the Ashlin Report, in

                                                                                         22
                  Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003

July 2001, was the creation of two new positions - Manager Administration and Administrative
Assistant. The recommendation was implemented in late 2002 with additional funding from
the Department.

Office Modifications
A Risk Assessment Analysis was undertaken at the Commission in late 2002 identified a major
risk as of Security/Duty of Care to staff at the Commission. A proposal gained funding sourced
from the Department of Justice and Industrial Relations, and in February 2003 office
modification plans were commissioned through K Drew Architects. Specific safety concerns in
February 2003, requiring consultation by the Commissioner and staff with the Deputy
Commissioner of Police, the Secretary and Deputy Secretary of the Department of Justice, and
external legal representation and advice, provided an impetus to the project. In addition to
establishing clear boundaries defining Commission staff working areas and the general public,
duress alarm and key entry pads provide a sense of safety and confidentiality to the
Commission.



     STATISTICS


CONCILIATIONS
2001-2002 The Commissioner directed a total of 77 claims to conciliation, 56 being
successfully conciliated.

2002-2003 The Commissioner directed a total of 87 claims to conciliation, 55 being
successfully conciliated.

                             90
                             80
                             70                            84
                                           77
                             60
                             50
                                          56                55
                             40
                             30
                             20
                             10
                              0
                                     2001-2002         2002-2003

                                         Directed to conciliation
                                         Successful conciliation




REJECTIONS, DISMISSALS, WITHDRAWALS, REFERRALS
For the year, 106 claims were rejected, 58 claims were dismissed 41 claims were withdrawn
and 30 claims were referred to the Tribunal. The outcome of claims’ assessment and
investigation is that:

   A claim may be wholly rejected for investigation
                                                                                      23
                  Anti-Discrimination Commission Tasmania
            ANNUAL REPORT 2002-2003

   A   claim   may   be wholly accepted for investigation
   A   claim   may   be part-rejected for investigation, and part-accepted for investigation
   A   claim   may   be wholly dismissed after investigation
   A   claim   may   be wholly referred for conciliation after investigation
   A   claim   may   be wholly referred for inquiry after investigation
   A   claim   may   be part-dismissed after investigation, and part-referred for conciliation
   A   claim   may   be part-dismissed after investigation, and part-referred for inquiry
   A   claim   may   settle by agreement between the parties at conciliation
   A   claim   may   not settle at conciliation, so be referred to the Tribunal for inquiry

Sometimes a claimant withdraws a claim, generally because the claim has been resolved.
Occasionally a claimant withdraws part of a claim, the remainder continuing in the Commission.
Where a claim is part-dismissed, part-referred for conciliation, if a claimant seeks a Tribunal
review of the part-dismissal and the conciliation conference held by the Commission is
successful, generally the claimant withdraws the review from the Tribunal, as part of the
conciliated agreement.


                           REJECTS/WITHDRAWALS/DISMISSALS/REFERR
                                           ALS
                                         106




                                                                                             30
                                                                41




                                                                                 58
                  2002-03
                                                                        31
                                  50




                                               29




                                                           57




                  2001-02



                            0           50              100            150             200        250

                                             Rejected   Withdrawn    Dismissed   Referrals



Of the claims dismissed and rejected, 71 sought a review at the Anti-Discrimination Tribunal.
The vast bulk of ‘dismiss’ and ‘reject’ determinations are upheld by the Tribunal. Where a
‘reject’ determination is overturned, rarely if ever is the entire claim referred back to the
Commission for investigation: generally a specific part only returns for investigation. In one
case only has a dismissal been overturned by the Tribunal and returned to the Commission,
and in this case special circumstances existed.




TRIBUNAL REVIEW OF REJECTIONS/DISMISSALS
The Anti-Discrimination Tribunal handed down a total of 19 decisions on reviews sought by
claimants of decisions made by the Anti-Discrimination Commission.




                                                                                                        24
                       Anti-Discrimination Commission Tasmania
ANNUAL REPORT 2002-2003



              Anti-Discrimination Tribunal
                Decisions 2002-2003


                    21%




                                   79%




            Decisions Upheld   Decisions overturned




                                                      25
     Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003



NON-CLAIM OR PRE-CLAIM STATISTICS
An average of 130 telephone inquiries per month were registered which pertained to the Anti-
Discrimination Act. This does not include calls taken or made in relation to existing claims,
administration matters, community education or training, general enquiries or media. Recording
can be improved to ensure a wholly representative picture of this aspect of the operation of the
Commission, however the number of calls militates against the recording of every telephone
enquiry.

Walk-in and written inquiries are reported below, however, this does not include written
responses to telephone enquiries, where detailed information is provided to assist prospective
claimants in accordance with the Commissioner’s statutory obligation to provide procedural
assistance, nor detailed correspondence provided to prospective respondents, organisations, or
members of the public, etc, walk-in and appointments with the Commissioner.




                                             ENQUIRIES

                200

                150

                100

                 50

                  0
                 2001-02                                                        2002-03
                                            Written       Walk-in




SECTION 96 REQUESTS
Section 96 of the Act provides for a written request to be made to the Commissioner about the
requirements of the Act in relation to a specific situation. Section 96 requests numbered 6 for
2002-2003, including requests for specific advice in relation to:

   An organisation for unemployed persons aged 40 and above
   Access at intersections
   Electrical works and colour confusion
   Disability parking
   Transgender membership of a women’s organisation

As a comparison, from 1999-2002, some 6 section 96 requests were received by the
Commission, including, for example, irrelevant criminal record discrimination in the poppy
industry, and publication of political advertisements in a local government newspaper.




                                                                                       26
                  Anti-Discrimination Commission Tasmania
          ANNUAL REPORT 2002-2003



FREEDOM OF INFORMATION REQUESTS
The number of requests under the Freedom of Information Act 1991 has risen steeply, one
claimant making multiple requests in relation to multiple claims, and making duplicated
requests of earlier requests already responded to fully.

Total requests                       21
Requests granted                      9
Requests refused                      6
Requests granted in part              6

Requests refused on the following grounds
 One request was exempt under section 33 (information provided to the Commission in
   confidence)
 Two requests were refused under FOI but released in the spirit of section 12 of the FOI
   Act.
 Three were refused on the grounds that they were duplicates of earlier FOI requests.




                                       FOI Requests


                                                    13%




                                     87%

                                      2001-02     2002-03




                                                                                    27
                 Anti-Discrimination Commission Tasmania
           ANNUAL REPORT 2002-2003
        DEVELOPMENT/TRAINING


In accordance with the principle that it is important for all staff to be able to participate in an
interstate conference at least once annually, the opportunity is generally taken up through
conferences and meetings hosted by interstate Anti-Discrimination and Equal Opportunity
Commissions, or the Human Rights and Equal Opportunity Commission. This principle of
interstate-participation is followed because of the need for all staff to be able to interact with
their interstate counterparts, and to learn from interstate approaches. Equally importantly,
through this interaction the work of the Commission and appreciation of progressive
approaches within the Tasmanian polity and community generally will become more valued. In
addition, the sharing by Commission staff of their knowledge and perspectives developed
through applying the most comprehensive and forward-looking anti-discrimination legislation in
Australia and generally, is invaluable for the Commission generally, for staff development, and
for colleagues in other states and territories, and federally.

Development/training was undertaken as follows: TAFE Tasmania (‘Dealing with Difficult
People’), Qantas Q2B Online Booking, Word 2000 & Microsoft (Quill Consultancy) Mentoring
for Women, CyberRacism Conference (HREOC - Sydney), National Legal Officers Conference,
National Educators Conference (Melbourne), Commissioners Meeting (Sydney), Mental Health
First Aid Course (Red Cross), Administrative Certificate IV (Work & Training), Administrative
Certificate II (Work & Training).




                                                                                          28
                  Anti-Discrimination Commission Tasmania
         ANNUAL REPORT 2002-2003


          ORGANISATION CHART




                                                          Commissioner


                                   Executive
                                   Assistant




   Administration
    Admn                        Training             Community           Investigation/
                                                                         Investigation    Investigation/   Investigation/
      Manager
    Manager                    Consultant             Education           Conciliation
                                                                         /Conciliation     Conciliation     Conciliation
                                                       Officer               Officer
                                                                         Officer             Officer          Officer




Admn Trainee     Admn. Asst.


                                                                                                                            29
                Anti-Discrimination Commission Tasmania
       ANNUAL REPORT 2002-2003




           FINANCIALS



The Commission’s budget from Consolidated Funding for July 2002-June 2003 was $701,947 total
operations, with expenditure for the financial year of $751,946. This is an increase on the Commission’s
first budget (1999-2000) which was $302,000 – including expenditure for the Sex Discrimination
Commission (up to 9 December 1999) and the Anti-Discrimination Commission (10 December 1999-30
June 2000).

The Commission’s Revenue Fund comprises Commonwealth grants, traineeship funding, special projects,
fees for exemption applications (to contribute to advertising costs), and earnings from training.

Contribution made by Government agencies and other organisations internationally and interstate in the
form of travel, accommodation and associated expenses - some $15,000.

By any assessment, the Tasmania community is well-served by the Commission’s performance generally
and in respect of revenue expenditure/budget.

    [Refer to Department of Justice and Industrial Relations’ Financial Report in Annual Report 2002-
    2003.]




NOTES
Claimforms and pamphlets are available form the Commission and Website. There is no cost for lodging a
claim. Assistance or an interpreter available on request. Claims in languages other than English accepted
with provision for translation.
Website – www.justice.tas.gov.au/adc/adcfrontpage.htm
‘Claim’ and ‘claimant’ refer to ‘complaint’ and ‘complainant’ in the Anti-Discrimination Act 1998




                                                                                                 30
                Anti-Discrimination Commission Tasmania
ANNUAL REPORT 2002-2003




  CLAIMS PROCESS – FLOWCHART



  Claim lodged

                                                 Claim rejected

  Initial assessment

                                            Claimant may request review
                                                    by Tribunal
   Claim accepted



 Respondent asked to             Claim referred back                If rejection
      respond                      to Commission                  confirmed claim
                                                                       lapses



  Investigation of claim                                Claim dismissed



 Conciliation Conference held           Claimant                       No request
                                     requests review                  for review –
                                       by Tribunal                    claim lapses

 Agreement reached
   and registered
                                        Dismissal                     Dismissal
                                     overturned claim              confirmed claim
                                        to inquiry                      lapses

    Claim closed



                   Claim not
                    settled




      Referred
     to Tribunal
     for inquiry



  Directions conference held                             Appeal to Supreme Court



    Inquiry Hearing                        Court decision                       Appeal to
                                                                                High Court
                                                                                (by leave)

  Tribunal decision                     Claim closed

                                                                                Court decision

    Claim closed                        Claim closed

                                                                                Claim to UN
                                                                                Committee

                                                                                                 31
          Anti-Discrimination Commission Tasmania
       ANNUAL REPORT 2002-2003




             ACKNOWLEDGEMENTS


It is not so easy to achieve law or social reform in the interests of the relatively powerless.

                                                                                                 Beth Gaze
                              Law in Context – Gender, Race and Comparative Advantage, 1999

The strong and solid support of the community in recognising the importance of the Anti-Discrimination
Act 1998 and the work of the Commission is acknowledged and appreciated. Tasmania is fortunate to
have world-class anti-discrimination legislation, and the community and Parliament deserve
commendation for this. The requests from overseas, interstate and within the state for information
about the Act and its operation are a testament to the work and efforts over the years of lobbying and
formulation of the Act, by those who fought for it, framed it and brought it to fruition.

However, legislation is not enough. It must become operative, and those acting with due diligence and
skill to ensure that it does operate with integrity are entitled to proper and effective support. In
recognising the Act’s importance and the importance of supporting the work, commitment, due diligence
and integrity of those who put the legislation into effect, the Tasmanian community has provided the
ballast necessary to ensure the Commission’s continuing and effective operation and the Act’s fair and
proper application. I thank the community generally, and everyone who has shown their recognition and
support of the Commission’s integrity, effort and dedication Their consistent support demonstrates a
determination to maintain their own integrity along with that of the legislation.

This is notable, and noteworthy. It is consistent with the public interest. It is paralleled by the political
will demonstrated by the implementation of the principles and values of the legislation with respect to
refugees and law reform for significant relationships.

Tasmania has been described as a bastion of reason and compassion, and through a strong adherence
to the principles of the Anti-Discrimination Act and support for this approach, Tasmania is also
developing into the premier state with respect to fairness and equality. This has been demonstrated by
the positive and constructive welcoming of refugees and defence of their human rights and right to
respect. It is a strong and powerful symbol of the political will to embrace the values and integrity of the
Anti-Discrimination Act. It is this same political will which brought this legislation into being.

The knowledge that this is so sustains the work of the Commission, and me as Commissioner
administering the Act, along with all at the Commission.

Professional and structural support for the Commission’s work is important. The      Department of Justice
Library has from the inception of the Commission provided an exemplary service,      and I thank all Library
staff and in particular Alison Jekemovics. Grant Stokes’ property management         support and advice is
valuable. Nigel Robertson’s support in the implementation of Raemoc/Adrm has         been important. Brian
Smith’s continuing budget advice is appreciated.

Commission work is facilitated by the participation of external conciliators, including Richard Bennett,
Brian Smith and Dale Webster from the Department of Justice, and Judith Blades, Richard Connock,
Kathleen Ford, Ray Groom, Bob Hamilton and Mike Radburn. The Commission’s work experience
programme, involving schools, university and legal prac students provides a positive interaction between
the Commission, students and educational institutions. Thank you to Rebekah Francis, Kristy Eulenstein
and Emma Sundborn. Claremont High School’s mentoring programme in conjunction with Women
Tasmania has meant that I have been fortunate to mentor April Chivers, and in this capacity also to
mentor her school colleagues Gemma De Bomford and Michelle Rollins.




                                                                                                     32
                 Anti-Discrimination Commission Tasmania
       ANNUAL REPORT 2002-2003


I thank Evelyn Robertson and Santi Mariso for their work on this Annual Report, and generally, Katrina
Aird for her work in administration and as Executive Assistant, Valliborka Purkovic as Administrative
Trainee, Anita George and Di Ferguson for training, Leah Brown as Legal Cadet in investigations and
conciliations, Rebekah Francis, administration, investigation and conciliation, Maria Bek, administration,
Morgen Hughes, administration together with some investigation and conciliation, Philippa Grace,
investigation and conciliation, and Santi Mariso for community education and liaison, co-conciliation and
conciliation coordination.

The legal team of Sharyn Newman, Catherine Edwards and Pia Struwe requires particular recognition.
They have been exemplary in their work, with little administrative support until recently, and in
circumstances where some underperformance and lack of performance led to their taking on greater
claims workloads than their share.

The assistance of the Department of Police and Public Safety – Tasmania Police, in providing
plainclothes officers and 24 hour radioroom link-up for security in early 2003 is appreciated, particularly
from the Deputy Commissioner. I thank him and Tasmania Police for their advice and assurances to
Commission staff, and particularly to me as Commissioner, of proper recognition of safety issues and
duty of care. In this regard, I also thank Commission staff, Ms Leah Brown, Ms Rebekah Francis, Ms
Evelyn Robertson, Ms Santi Mariso, Ms Catherine Edwards and Mrs Pia Struwe. In circumstances where
abusive conduct was given external imprimatur, their support and acknowledgement of the high
importance I place on truth, honesty, integrity and the need for a safe workplace is acknowledged and
appreciated. Their placing on record to the Secretary and Deputy Secretary of the Department of Justice
and Industrial Relations my strong and active commitment to high standards of personal and
professional conduct, integrity, and active promotion of these high standards, was vital to the continuing
smooth operation and productivity of the Anti-Discrimination Commission. In the face of unacceptable
and destructive conduct in the workplace, their strength, intelligent and firmly committed support for
the Commission and Commissioner during this time is sincerely valued. I thank also those who
professionally and personally extended support, and members of the community, locally, nationally and
internationally, who spontaneously provided many, many valued spoken and written messages.


        When a democratic society does not meet the test of fairness, when … no
        attempt seems to be made at fairness, freedom is in jeopardy.
                                                                       Felix G. Rohatyn
                                                                       Commencement Speech, 1982




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                Anti-Discrimination Commission Tasmania

								
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