Occasional Paper of the NSW Anti-Discrimination Board
ADDRESSING SYSTEMIC DISCRIMINATION IN THE
PUBLIC SECTOR
REPORT OF STUDY TOUR UNDERTAKEN
APRIL / MAY 2002
MAGGIE SMYTH AND ANGELENE FALK
LEGAL AND POLICY BRANCH
ANTI-DISCRIMINATION BOARD NSW
March 2003
ADDRESSING SYSTEMIC DISCRIMINATION IN THE PUBLIC SECTOR:
Report of study tour undertaken April/May 2002
Publication / copyright information
ISBN 0-9750693-0-6
© Anti-Discrimination Board of New South Wales
Released March 2003
Published by the Anti-Discrimination Board of NSW, an agency of the Attorney General’s Department of
NSW for and on behalf of the Crown in right of the State of New South Wales.
This publication is protected by copyright. Apart from any use permitted under the Copyright Act 1968
(Cth), no part may be reproduced without acknowledgment.
The information contained in the document has been formulated with all due care, skill and
consideration. The views stated in the Report are those of the authors. The State of New South Wales
accepts no responsibility for the accuracy of any information contained in the document or for any loss,
damage, action, liability, suffering, costs or expenses which may be incurred as a result of relying upon
the document.
2
Contents
EXECUTIVE SUMMARY .......................................................................................................................... 3
PART 1: BACKGROUND ......................................................................................................................... 5
PURPOSE OF THE STUDY TOUR ................................................................................................................. 5
STRUCTURE OF THIS PAPER...................................................................................................................... 6
ORGANISATIONS CONSULTED ................................................................................................................... 6
CONTEXT OF REVIEW AND REFORM ........................................................................................................... 7
PART 2: SYSTEMIC DISCRIMINATION AND AUSTRALIAN RESPONSES .......................................... 8
THE ISSUE OF SYSTEMIC DISCRIMINATION ................................................................................................... 8
Definitions ...................................................................................................................................... 8
Systemic discrimination and the public sector .......................................................................... 9
CURRENT LEGISLATIVE MECHANISMS FOR ADDRESSING SYSTEMIC DISCRIMINATION UNDER THE ANTIDISCRIMINATION ACT NSW .................................................................................................................... 12
Educative, research and inquiry functions ............................................................................... 12
Industrial relations jurisdiction .................................................................................................. 14
Specific provisions of the ADA dealing with EEO in the Public Sector.................................. 14
Referral of matters by the Minister ............................................................................................ 15
Dealing with complaints lodged with the President ................................................................. 15
LIMITATIONS ON THE ADA’S CAPACITY TO DRIVE SYSTEMIC CHANGE THROUGH THE LODGEMENT OF COMPLAINTS15
Research into complaint handling function of the ADB .......................................................... 16
Specific issues............................................................................................................................. 18
Current proposals for reform in NSW ........................................................................................ 21
POWERS AND INITIATIVES IN OTHER AUSTRALIAN JURISDICTIONS ................................................................ 23
PART 3: POWERS AND OTHER INITIATIVES FOR ADDRESSING SYSTEMIC DISCRIMINATION IN
THE PUBLIC SECTOR: INTERNATIONAL PERSPECTIVE ................................................................. 25
UNITED KINGDOM.................................................................................................................................. 25
Overview ...................................................................................................................................... 25
Measures to address race discrimination in the UK ................................................................ 26
Complaints mechanisms and other enforcement strategies under the Race Relations Act 29
MEASURES TO ADDRESS GENDER DISCRIMINATION IN THE UK .................................................................... 35
The Sex Discrimination Act ........................................................................................................ 35
European Union and gender equity ........................................................................................... 35
Work and family ........................................................................................................................... 36
MEASURES TO ADDRESS DISABILITY DISCRIMINATION IN THE UK ................................................................. 37
Positive Obligations .................................................................................................................... 37
Other initiatives ........................................................................................................................... 38
THE UTILITY OF PUBLIC DUTIES AND THE UK ENFORCEMENT MECHANISMS ................................................... 38
THE ROLE OF INTERNATIONAL MEASURES IN EFFECTING CHANGE IN THE UK AND ACROSS EUROPE ................ 39
European Convention on Human Rights ................................................................................... 40
Human Rights Act 1998 UK ........................................................................................................ 40
The European Union ................................................................................................................... 41
CANADA ............................................................................................................................................... 45
Federal legislation ....................................................................................................................... 45
British Columbia .......................................................................................................................... 47
OBSERVATIONS AND CONCLUSIONS ......................................................................................................... 49
APPENDIX A: LIST OF PERSONS / ORGANISATIONS CONSULTED ............................................... 51
APPENDIX B LEGISLATIVE PROVISIONS GOVERNING EEO IN THE PUBLIC SECTOR IN
AUSTRALIA ........................................................................................................................................... 53
APPENDIX C MATERIALS PROVIDED BY AGENCIES AT MEETINGS.............................................. 54
Executive Summary
This report is the result of a study tour undertaken by two officers of the Anti-Discrimination Board of
NSW in 2002. The purpose of the tour was primarily to examine international legislative and policy
approaches to addressing systemic discrimination in the context of the public sector. Human rights,
public sector and non-government agencies were consulted in the United Kingdom, Brussels and
Canada.
3
The report begins by discussing issues of discrimination in the NSW public sector, legislative
approaches to addressing systemic discrimination in Australia and current limits to affecting systemic
change in this jurisdiction.
The report then considers the legislative framework governing anti-discrimination matters in the
countries visited and describes legislative and policy initiatives, law reform agendas and public sector
responses to addressing systemic discrimination.
The following observations can be made of the countries visited:

There is a trend toward enacting pro-active legislative models for addressing systemic discrimination
by imposing a range of positive duties upon potential respondents and a move away from sole
reliance upon reactive complaint based models;

There is a trend away from using impartial complaint handling models to resolve issues of
discrimination by conciliation and towards models which provide complainants with direct access to
tribunals in conjunction with options for alternative dispute resolution;

There is a trend toward providing anti-discrimination boards or commissions with the capacity to act
in tribunal cases on behalf of complainants or in the public interest; and

Linking international agreements on human rights and anti-discrimination to economic advantage
appears to have the potential to affect significant changes in domestic social policy.
Our conclusions are that:

There is a need to consider whether a more pro-active positive duty could be imposed on the public
sector in New South Wales to prevent and eliminate discrimination and to promote equality in
employment, service provision and education;

There is a need to examine the potential to reposition anti-discrimination legislation generally to
impose positive duties subject to appropriate defences;

While it is important that individuals can take action and obtain redress for unlawful discrimination, a
system which is primarily focused on individual complaints is limited in its ability to address issues
which are systemic in nature;

A set of provisions could be considered to further assist in influencing the way in which decisions are
made, jobs are designed, work is organised and services are delivered with the potential to result in
lasting structural and cultural change. Such provisions would be more able to compel pro-active
change where clear powers exist in Boards or Commissions to enforce compliance;

There should be consideration of appropriate safeguards, whether by way of a Bill of Rights or by
other means, which ensure that Parliament enacts laws which promote equality and that the agents
of government act in accordance with such principles; and

Consideration could be had as to whether there are other approaches which could be taken under
the current anti-discrimination legislative framework to further effect systemic outcomes.
4
Part 1: Background
Purpose of the study tour
In 2001 Maggie Smyth and Angelene Falk of the Legal and Policy Branch of the Anti-Discrimination
Board NSW (“ADB”) were awarded the SGE Travelling Fellowship in Public Sector Management to
enable a study tour, which could be of benefit to the public sector generally, to be undertaken in
April/May 2002. The State Government Employees’ Credit Union sponsored the Fellowship in
partnership with the Premier’s Department. The purpose of the study tour was to visit relevant
Commissions for Human Rights in the United Kingdom and Canada and to visit members of the
European Union in Belgium in order to gain insight into the international experience of:



the operation and utility of specific provisions of applicable anti-discrimination legislation in
addressing systemic discrimination in the public sector;
the role of the European Union in advancing anti-discrimination protections internationally;
and
the development of initiatives aimed at improving compliance with anti-discrimination
legislation and outcomes, particularly in relation to employment and service provision in the
public sector.
Visits were also made to public sector agencies and non government organisations in order to gain an
understanding of public sector and non government responses to both the legislative regimes and the
development of pro-active approaches to the prevention and elimination of discrimination in those
jurisdictions.
Although focused on the prevention and elimination of discrimination in the public sector, we also
expected the analysis to have some application to the private sector.
As a result of the trip we expected the following outcomes:



increased knowledge and experience of international human rights law and policy, particularly
of the operation of discrimination models in similar legal systems to that in existence in
Australia;
ability to bring knowledge of international trends to the development and analysis of proposals
for legislative and policy reform in order to increase the prevention and elimination of
discrimination in the public sector; and
ability to raise proposals to increase efficiencies in dealing with discrimination matters.
5
Structure of this paper
This paper is structured into a number of parts. Part 1 provides the background relevant to the study
tour. Part 2 looks at the kinds of systemic issues that continue to arise in the NSW public sector and the
current mechanisms which exist for addressing those issues. Some limited critique is provided of those
mechanisms. Part 2 also describes the kinds of anti-discrimination models which exist in other
jurisdictions around Australia.
Part 3 examines legislative and policy approaches to systemic discrimination in an international context.
The UK and Canadian models are described along with the role of international law in advancing human
rights. Part 3 then considers the lessons which may be gained from examining the international position
and poses some questions for further consideration.
The purpose of the paper is to provide an opportunity for the ADB and others to consider antidiscrimination legislation in the context of international trends. It is hoped that the paper will generate
debate more broadly regarding current legislative and policy approaches and the nature of reform that
may be required in the future in order to further assist anti-discrimination agencies to achieve systemic
outcomes.
Organisations consulted
In London meetings were arranged with the Chief Inspector of Fire Services of HM Fire Service
Inspectorate, representatives from the Commission for Racial Equality, Metropolitan Police - Scotland
Yard Race Unit, Chairman Disability Rights Commission, Equal Opportunity Commission, Human Rights
Unit and the Race Equality Unit of the Home Office.
In Brussels meetings were arranged with the European Union Directorate General for Employment &
Social Affairs (Immigration & Asylum), Directorate Anti-Discrimination, Directorate Employment & Social
Affairs, Directorate General for Employment, International Lesbian and Gay Association Europe and the
Belgian Centre for Equal Opportunities and Opposition to Racism.
In Canada meetings were arranged with the Canadian Human Rights Commission and Pay Equity Task
Force in Ottawa. In Vancouver we arranged meetings with the British Columbian Human Rights
Coalition, BC Human Rights Commission, British Columbian Public Interest Advocacy Centre and an
academic who as a consultant has recently completed a large study on pay equity issues, Ms Nitya Iyer.
For full contact details see Attachment A.
6
Context of review and reform
The study tour was undertaken at a time when legislative reform of anti-discrimination legislation was on
the agenda in New South Wales. After eight years, in December 1999 the NSW Law Reform
Commission released Report 92: Review of the Anti-Discrimination Act 1977 (NSW). While the ADB had
made submissions to the Law Reform Commission throughout the review, the release of the report
required the Board to critically analyse the recommendations of the Commission in order to make
submissions to the Attorney General in relation to the proposed reforms. In this context a key objective
of the Anti-Discrimination Board has been to assist in the successful development of a legislative
framework that is best able to effectively and efficiently protect the human rights of the people of NSW.
The research undertaken as part of the study tour will assist the Board in advancing proposals for
legislative reform and in the implementation of those reforms. Irrespective of the ultimate outcome of the
reform process, the study provided an opportunity to reconsider a range of methods for addressing
systemic discrimination in the NSW context.
7
Part 2: Systemic Discrimination and Australian Responses
The issue of systemic discrimination
The study tour proceeded on the knowledge that issues of systemic discrimination continue to exist in
the NSW public sector. We also proceeded on the basis that the elimination of systemic discrimination is
in the public good and that anti-discrimination legislation is particularly effective where it has the
capacity to lead to systemic outcomes.
In our view systemic change is required to further develop a public sector where equity and diversity are
fully understood, valued and implemented for the benefit of all, not only in relation to employment
practices but also in relation to service delivery and education. The nature of complaints and inquiries
received by the ADB, the nature of cases before the Equal Opportunity Division of the Administrative
Decisions Tribunal of New South Wales (“the ADT”) involving some governments departments and
workforce profile statistics all indicate that issues of systemic discrimination against particular groups in
the public sector remain.
Definitions
“Systemic discrimination” is a term which is not universally defined. Many commentators rightly refer to
“indirect” or “effect” based discrimination as a form of systemic discrimination.1 The term can also
describe discrimination of a certain type (sex, race, disability, homosexuality etc) that is widespread,
persistent and which entrenches inequality. Systemic discrimination can exist where legislation, policies,
procedures, practices, organisational structures or workplace cultures enshrine discrimination. In the
later case, this discrimination is sometimes referred to as “institutionalised” discrimination. Systemic
discrimination may involve allegations of a pattern of violations or a systematic failure to protect the
rights of a group of individuals.
Examples of systemic discrimination
1
2

The ADB’s C-change: report of the enquiry into hepatitis C related discrimination found that
disability discrimination against people as a result of their hepatitis C status was rife.2 While the
inquiry found that hepatitis C related discrimination takes many forms and occurs in a number
of areas of public life, of particular note are the findings that hepatitis C discrimination in health
care settings is widespread and that such discrimination in employment is also commonplace.
The causes of the endemic nature of hepatitis C discrimination were found to be the result of
an often complex interaction between a fear of hepatitis C transmission and the fact that
infection is generally linked to the highly stigmatised behaviour of injecting drug use. The report
makes a number of recommendations that require particular government departments to take
action to prevent and eliminate discrimination on the basis of a person’s hepatitis C status in
employment and service provision.

The failure of our public transport system and public buildings to be accessible to people with
certain mobility disabilities is a wide spread issue of discrimination in the provision of services
and access to facilities which is embedded in physical structures and designs.

The over representation of Indigenous peoples in the NSW criminal justice system is a result of
factors which include institutionalised racial discrimination against Indigenous peoples in
employment, access to housing, education and goods and services.

The continued failure to pay women and men equal pay for performing work of equal or
comparable value is a result, amongst other factors, of entrenched gender bias present in the
mode and methods of valuing work. The NSW Inquiry into Pay Equity and the NSW Industrial
Relations Commission in Re Equal Remuneration Principle found evidence of the
undervaluation of work historically performed by women or characterised as female in certain
occupations and industries. The more recent decision of the Commission in the Librarians’
case recognised that the work performed by State Government employed Librarians under the
Peter Bailey and Annemarie Devereux, “The operation of Anti-Discrimination laws in
Australia” in (ed.) David Kinley, Human Rights in Australian Law, Federation Press, Sydney,
1998, p. 310.
November 2001. See executive summary at pp. 12-19 and Chapter 2 “The Nature and
Extent of Hepatitis C related discrimination.”
8
Crown Librarians, Library Officers and Archivists Award had been undervalued on the basis of
gender.3

The higher proportion of women compared to men in the public sector who are in lower paid
positions and who are in casual employment is likely to be the result of a number of factors
including structural barriers which continue to limit women’s participation in the labour market.
Systemic discrimination and the public sector
In the experience of the ADB there are a number of issues of systemic discrimination that remain
outstanding. In the context of public sector organisations, of great concern is the fact that a number of
them continue to be the subject of discrimination complaints and to take an individualised approach to
resolving discrimination issues, which are often systemic or endemic in nature. Indeed a review into
NSW Government administration set up as long ago as 1977 draws attention to the existence of
systemic discrimination, embedded in departmental rules and procedures.4
Complaints
Statistics show that the President of the ADB continues to receive a large number of complaints against
public sector organisations as employers, service and education providers. In 2001-2002 around 17% of
complaints (representing 168 complaints) were against the NSW public sector agencies. 5 At June 2001
public sector employees represented an estimated 11% of the total number of employed persons in
NSW.6
It is also fair to say that there are some NSW government departments which take a litigious approach
to many complaints lodged with the President under the Anti-Discrimination Act, 1977 (NSW) (“the
ADA”), generally decline to seek resolution of matters or address the underlying issues raised in
complaints and are repeat respondents. A number of issues including sexually hostile work
environments, homophobia, racism, demotion and dismissal of pregnant women, failure to
accommodate employees with carers responsibilities and dismissal of employees with disabilities
continue to come to the attention of the ADB.
Some complaints are not resolved at the Anti-Discrimination Board and are referred to the Tribunal. In
2001-2002, 12% or 175 complaint were referred to the Tribunal for hearing. Some of those complaints
are resolved at the Tribunal without a formal hearing. In 2001 there were 11 complaints against the
NSW public sector heard by the Tribunal. Of those cases, 3 complaints were found in favour of the
complainant. The respondent appealed in 2 of these cases both of which remain unresolved to date. 7
By way of comparison, there were 17 complaints against non-NSW public sector respondents heard by
the Tribunal in 2001-2002. Of those 6 complainants were successful. The respondent appealed in 2 of
these cases. In one of these cases the appeal was dismissed, the other case remains unresolved. 8
3
4
5
6
7
8
Re Crown Librarians, Library Officers and Archivists Award Proceedings - Application
Under the Equal Remuneration Principle (2002) EOC 93-197, (2002) 111 IR 48.
NSW Government, Directions for change: Review of NSW Government Administration,
Interim Report, Sydney, NSW Government Printer, 1977, p. 231 cited in Una Spence,
Promises and compromises: Negotiating justice under anti-discrimination law, PhD thesis,
University of New South Wales, Sydney, 2001, p. 35.
This figure includes state government departments, state statutory bodies and public education
but does not include local government and hospitals. See Anti-Discrimination Board, Annual
Report 2001-2002, p. 27.
NSW Premier’s Department Review and Reform Division, Overview Report for the NSW
Public Sector Workforce Profile 2001, p. 7.
Russell v Commissioner of Police, NSW Police Service & Ors [2001] NSWADT 32, Amery &
Ors v State of New South Wales [2001] NSWADT 37.
These statistics do not include judgments that consider procedural issues such as applications
for costs, access to documents etc.
Statistics for 2000
Complaints against NSW public sector respondents: 7
Complainants who succeeded against NSW public sector respondents: 1
The respondent in this matter did not appeal the decision.
Complaints against non NSW public sector respondents: 15
Complainants who succeeded against non-NSW public sector respondents: 6
9
On some occasions the public sector has demonstrated an unwillingness to settle discrimination
complaints made against it. One of the most disturbing examples of the Government’s insistence on
defending complaints against it is its response to the complaint relating to the late Edward Russell. The
complaint alleged that 11 police officers unlawfully discriminated against Edward Russell on the ground
of his race and subjected him to unlawful racial vilification. The complaint also alleged that the Police
Service, as the employer of the police officers, was vicariously liable for their unlawful acts. Mr Russell
was alive when the complaint was lodged but died in 1999 while in custody. Mr Russell was an
Aboriginal person.
The complaint concerned events which took place in the early morning on 11 December 1993. Mr
Russell failed to stop for a random breath test while driving a stolen ute and was ultimately pursued by
four police vehicles. The pursuit came to an end when the vehicle Mr Russell was driving ran down an
embankment. What followed next has been the subject of several enquiries, including an enquiry by the
Internal Affairs Department of the Police Service and the New South Wales Ombudsman. Mr Russell
made a statement about the incident to his solicitor while in jail. Mr Russell claimed that four to six police
officers rammed his head into the door of the vehicle as he was getting out and used abusive language
towards him, including the term “black cunt”. He further stated:
I recall that the one or two police officers had pinned me down as I cried out ‘help help’. Whilst I
was lying face down on the ground, they trod on both of my hands which were at my side. They
then placed my hands behind my back in the middle of my back. They dragged me up and said
‘Get up you black cunt’. I recall saying ‘Yes I’m getting up. Don’t force me to get up. I’m getting
up’. Handcuffs were placed on me whilst I was getting up and I was dragged 50 metres up a hill.
The handcuffs were placed with my hands behind my back. One policeman hit me in the ribs
towards the right rib and wounded me. I recall saying ‘What did you do that for?’ The right arm
was used in the assault. Two policeman dragged me up to the car and forced me into the car. I
then asked them for my shoes but they said ‘We’re not getting your shoes’. They took me to the
police station’...I had continued nightmares about the events of that night for quite a long period
of time...The events terrified me because I thought I could have been dead, because I was on my
own.9
Unbeknown to the police officers present at Mr Russell’s arrest, three members of a family overheard
and saw parts of the incident. One member of the family alleged that he heard a person calling out “You
black bastards are causing all the trouble around here” and frequent bad language including repeated
use of the term “black cunt”. The same witness also claimed that he saw Mr Russell being carried by at
least three police officers, while one of the officer’s punched him and heard him cry out. 10
Ultimately, the ADT preferred the evidence of Edward Russell and the independent witnesses about the
racially abusive language that was used by the police officers and the use of excessive force. 11 The ADT
concluded that the Police Service and the named police officers acted unlawfully and breached sections
19 and 20C of the ADA. The Tribunal ordered the NSW Police Service and the named police officers to
pay $30,000 to the Estate of Mr Edward Russell.
The New South Wales Commissioner for Police lodged an appeal against this decision with the Appeals
Panel of the Administrative Decisions Tribunal. The Appeals Panel referred three questions of law to the
Supreme Court of New South Wales.12 An appeal against the Supreme Court’s decision was then
lodged by the Commissioner for Police in the New South Wales Court of Appeal.13 The position of the
Commissioner for Police has been that the police service is not providing a service under the ADA and
that there is no vicarious liability under that Act for the actions of constables as they are not employees.
The appeal before the Appeals Panel of the Administrative Decisions Tribunal is yet to be determined.
The respondent appealed in one of these cases, which is yet to be determined.
9
10
11
12
13
Statistics for 1999
Complaints against NSW public sector respondents: 13
Complainants who succeeded against NSW public sector respondents: 6
Complaints against non-NSW public sector respondents: 16
Complainants who succeeded against non-NSW public sector respondents: 3
Russell v Commissioner of Police, New South Wales Police Service & ors [2001] NSWADT
32 at [78-80].
at [69 - 72].
at [82]. See also [108 - 113].
Commissioner of Police, NSW Police Service v Estate Russell & Ors [2001] NSWSC 745.
Commissioner of Police v Estate of Russell [2002] NSWCA 272.
10
Another example of the litigious approach taken by some NSW Government Departments is the case of
Peck v Commissioner of Corrective Services [2002] NSWADT 122. In this case the Department of
Corrective Services contested a complaint lodged by a man who was refused a position in the
Department as
Overseer - Catering on the basis of a medical assessment which deemed him unable to carry out the
inherent requirements of the position of a correctional officer. The complaint raised similar issues to
those raised in a decision of the Appeal Panel of the ADT in Maxwell v Department of Corrective
Services [EOD] [2001] NSWADTAP 21 which found against the Department. The ADT determined in the
Peck decision that the respondent had unlawfully discriminated against the complainant on the ground
of his disability and ordered the respondent to pay the complainant $40,000 by way of damages. It
seems that the ADT may have awarded the complainant damages in excess of $40,000 had it not been
for the limit imposed by the ADA on the quantum of damages the ADT may award.
In Peck v Commissioner of Corrective Services No 2 [2002] NSWADT 244 the ADT considered the
complainant's application for an order that the respondent pay his legal costs. One of the issues that the
Tribunal took into account was the public interest in the determination of the complaint by the Tribunal.
The Tribunal considered the fact that it was required to reconsider the earlier decision handed down by
an Appeal Panel of the Tribunal in Maxwell v Department of Corrective Services. The majority of the
Tribunal concluded that the complainant should not be required to bear the cost of the respondent's
decision to contest the principles articulated in the Maxwell decision. It held:
Had the Respondent been prepared to apply the principles established in the Maxwell decision
to Mr Peck's circumstances, there would have been, in the opinion of the Tribunal, little or no
scope for contesting Mr Peck's complaint.
More recently, the ADT awarded costs of $77,000 against the respondents in the decision of Borg v
Commissioner, Department of Corrective Services [2003] NSWADT 35. In an earlier decision the ADT
determined that the respondents were jointly and severally liable in respect of the sexual harassment
and race discrimination the complainant was subjected to. The ADT also found that the Department of
Corrective Services victimised the complainant by delaying her transfer to another place of work.14 One
of the reasons the ADT exercised its discretion under section 114(2) of the ADA to grant the
complainant’s application for costs was that the Department of Corrective Services’ defence of the
complaint “lacked any real prospects of success from the outset”.15 This decision is particularly
noteworthy because the ADT does not usually award costs in anti-discrimination cases.
EEO in the public sector
The Office of the Director of Equal Opportunity in Public Employment (“ODEOPE”) provides information
on the profile of NSW government employees and is involved in recruitment strategies to increase the
representation of “EEO groups” in the NSW public sector. ODEOPE has developed a Distribution Index
which measures the extent to which a particular EEO group is distributed across salary levels compared
with other employees. A value of 100 indicates that the distribution of the EEO group in question across
salary levels is equivalent to that of other staff. Workforce profiles are one way of evaluating whether
systemic discrimination exists in the public sector.
In 2000 women represented 54% of the NSW Public Sector workforce with a distribution index of 91.
Women represented 50% of working age population in NSW.16 In 1996, women represented 51% of the
NSW public sector. At June 2001, 57.9% of public sector employees were female. By comparison, 44%
of the state’s employed persons were women.
However the average remuneration rate for women is less than that of men. In 2001 the average
remuneration rate for non-casual employees in the public sector was $47,781 or 87.6% of the average
for men. The average rate for women was $45,008 and the average for males was $51,372. 17 In
14
15
16
17
Borg v Commissioner, Department of Corrective Services & Anor [2002] NSWADT 42
Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 at
[48].
Women - Comparative tables 2000 - NSW Public Sector available at:
www.eeo.nsw.gov.au/stats/women00.htm
NSW Premier’s Department Review and Reform Division, Overview Report for the NSW
Public Sector Workforce Profile 2001, Review and Reform Division, p. 7.
11
addition, 62.3% of the 94,215 employees with full-time equivalent annual remuneration rates below
$39,355 were women compared to only 31.8% of the 28,529 employees with remuneration rates above
$64,400.18
Women also constituted 69.4% of temporary employees and 67.4% of casual employees, 55.6% of
permanent employees, 20.6% of contract executives and 35.5% of contract non-executive staff in the
public sector.19
An estimated 12% of the working age population in NSW have a disability. 20 An estimated 7% of the
NSW working age population have a disability that would require work-related adjustments. In 2000, 6%
of the NSW Public Sector workforce had a disability. In 2000, 1.9% of the NSW Public Sector Workforce
had a disability that required work-related adjustments. People with a disability have a distribution index
of 101. The distribution index for people with a disability requiring work-related adjustment was also
101.21 The representation of people in the public sector requiring adjustment in 1996 was 2.6%.
In 2000 1.5% of NSW Public Sector employees were Aboriginal and Torres Strait Islander people with a
distribution Index of 82.22 In 1996, Aboriginal people and Torres Strait Islanders represented 1.4% of
New South Wales public sector employees.
The statistics for people from a Non-English Speaking background refer to people whose first language
was not English. Approximately 19% of the NSW working age population in 2000 were people whose
first language was not English. In 2000 13% of people working in the NSW Public Sector did not learn
English as their first language with a distribution index of 96.23 In 1996, people whose first language was
not English represented 15% of the NSW public sector.
The complaint statistics, case law and workforce profile statistics indicate at least to a certain extent, a
failure of some government departments to fully embrace equality of opportunity and treatment in
employment and in the provision of services. In our view, there is a need to re examine the use of
current mechanisms and consider alternative processes and strategies if those objectives are to be
fulfilled.
Current legislative mechanisms for addressing systemic discrimination under the AntiDiscrimination Act NSW
The primary legislative mechanisms for addressing systemic discrimination in the NSW discrimination
jurisdiction are:24





Educative, research and inquiry function of the ADB;
Interventions of the President of the ADB in the Industrial Relations jurisdiction;
Part 9A of the ADA: EEO in the public sector;
Referral of matters by the Minister; and
Lodgement of complaints under the ADA with the President.
Educative, research and inquiry functions
The ADA empowers the Board to undertake educative and research functions for the purpose of
eliminating discrimination and promoting equality and equal treatment of all human beings. In the year
2001-2002 the Board’s inquiry service received 15,072 calls. The Board has also developed a self
funding respondent education unit. The Board also has a more limited rights based education role and
18
19
20
21
22
23
ibid, p. 8.
ibid.
This figure excludes people who are permanently unable to work because of a disability.
People with a disability - Comparative tables 2000 - NSW Public Sector available at:
www.eeo.nsw.gov.au/stats/pwd00.htm
Aboriginal people and Torres Strait Islanders - Comparative tables 2000 - NSW Public
Sector available at: www.eeo.nsw.gov.au/stats/atsi00.htm
Racial, ethnic & ethno-religious minority groups - Comparative tables 2000 - NSW
Public
24
Sector available at: www.eeo.nsw.gov.au/stats/nesb00.htm
See also Public Sector Employment and Management Act 2002 (NSW) s. 19 which provides
provides that appointment is to be on merit.
12
undertakes consultations with community members on gay, lesbian, bisexual, transgender, Indigenous
and disability issues. In the year 2001-2002 the Anti-Discrimination Board delivered 781 information and
training sessions attended by over 16,600 people.25 The Board also produces a range of factsheets and
guidelines to educate the people of NSW in relation to their rights and responsibilities under antidiscrimination legislation.
In addition the Legal and Policy Branch of the ADB prepares submissions and papers in order to effect
systemic change through law and policy reform.
The Board is also empowered to undertake research and conduct inquires.26 From 1978 the Board has
undertaken inquiries and published a number of research reports which have resulted in legislative and
policy change.27 The most recent is the inquiry into hepatitis C discrimination conducted in 2001. The
inquiry proposed a multi faceted approach to the resolution of the systemic issue of hepatitis C
discrimination through education, legislative reform (some of which focuses on strengthening complaints
mechanisms) and policy and process changes in key sectors.
25
26
27
Anti-Discrimination Board, Annual Report 2001-2002, p. 48.
s. 119. For the purpose of eliminating discrimination and promoting equality and equal
treatment of all human beings, the Board may, by resolution, determine to:
(a) carry out investigations, research and inquiries relating to discrimination and in particular
discrimination against a person or persons on the ground of:
(i) age;
(ii) a characteristic that appertains generally to persons of a particular age;
(iii) a characteristic that is generally imputed to persons of a particular age;
(iv) religious or political conviction;
(v) a characteristic that appertains generally to persons of a particular religious or political
conviction;
(vi) a characteristic that is generally imputed to persons of a particular religious or political
conviction;
(vii) mental disability;
(viii) a characteristic that appertains to persons having a mental disability or any particular
mental disability;
(ix) a characteristic that is generally imputed to persons having a mental disability or
any
particular mental disability;
(x)-(xii) *
*
*
*
(xiii) membership or non-membership of an industrial organisation; or
(xiv) a characteristic that appertains generally to membership or non-membership of an
industrial organisation or a characteristic that is generally imputed to members or nonmembers of an industrial organisation;
(b) acquire and disseminate knowledge on all matters relating to the elimination of
discrimination and the achievement of equal rights;
(c) arrange and co-ordinate consultations, discussions, seminars and conferences;
(d) review, from time to time, the laws of the State;
(e) consult with governmental, business, industrial and community groups and
organisations in order to ascertain means of improving services and conditions
affecting minority groups and other groups which are the subject of discrimination and
inequality;
(f) hold public inquiries; and
(g) develop human rights programmes and policies.
s. 120(1)The Minister may refer to the Board for report any matter relating to:
(a) a law or a proposed law; or
(b) a practice, an alleged practice or proposed practice of any person or class of persons,
which conflicts with or may give rise to conflict with this
Act or the regulations.
(2) The Board shall conduct an examination into any matter referred to it by the Minister
under subsection (1) and report to the Minister its findings and conclusions.
See reports by the ADB into issues of discrimination and superannuation (1978), physical
disability (1979), political conviction (1980), age (1980), intellectual disability (1981),
homosexuality (1982), trade union membership and non-membership (1983), religious
conviction (1984), protective legislation at work (1984), women and access to credit (1986),
HIV/AIDS discrimination (1992), pregnancy discrimination (1992), Hepatitis C Inquiry
(2001).
13
The conduct of public inquiries, educational activities and other law and policy reform initiatives have a
vital role to play in advancing the protection of human rights, reducing discrimination including systemic
discrimination and supporting compliance with anti-discrimination laws.28
Industrial relations jurisdiction
In NSW there is also some ability to effect systemic change by utilising the powers of the President to
intervene in matters before the NSW Industrial Relations Commission regarding issues of discrimination
pursuant to the Industrial Relations Act 1996 (NSW). Increasingly the industrial jurisdiction is
considering discrimination and harassment in an industrial context and the fundamental human rights
encompassed by its prohibition. For example, at the highest level, the decision of the Full Bench of the
NSW Industrial Relations Commission in Re Equal Remuneration Principle considered discrimination in
relation to remuneration and determined that:
The fixing of a rate of pay for, or the payment of a wage or salary to, a woman where that rate
of pay, salary or wage has been fixed differently because of the women’s sex is presumptively
an infringement of her human rights…29
The President of the ADB has intervened in a number of cases which have resulted in outcomes to
assist in the prevention and elimination of discrimination in the terms and effects of industrial
instruments. The President’s strategy has been to intervene primarily in test cases to help ensure that
matters directed at the prevention and elimination of discrimination and the advancement of pay equity
are included in any guiding principles established by the Commission. Other interventions have occurred
in cases which raise issues of important public policy which have the potential to effect a broad range of
employees.
Ensuring non discriminatory terms and conditions of employment in industrial instruments is one
strategy for addressing systemic issues across industries and occupations and for reducing the
incidence of complaints of discrimination. Together with effective education of industrial parties, the
incidence of discrimination in the implementation of the terms and conditions set down in industrial
instruments may also be reduced.
Specific provisions of the ADA dealing with EEO in the Public Sector
Following the review of NSW government administration in 1977 which highlighted the unequal status of
women and minority groups in government employment and their under representation at the decision
making levels,30 the ADA was amended in 1980 to require government instrumentalities to devise
management plans in order to implement equal employment opportunity.31 The Office of the Director of
Equal Opportunity in Public Employment (“ODEOPE”) was created to advise and assist departments
with their plans, evaluate their effectiveness and to report annually on the operation of those plans. The
Equal Employment Opportunity (“EEO”) program for the NSW Public Sector aims to achieve fair
outcomes for everyone in Public Sector employment and to enhance employment opportunities for four
identified EEO groups; women, Aboriginal people and Torres Strait Islanders, members of racial, ethnic
and ethno-religious minority groups, and people with a physical disability.32
ODEOPE:
28
29
30
31
The role of education and training is discussed in research conducted by Rosemary Hunter
and Alice Leonard, “The Outcomes of Conciliation in Sex Discrimination Cases”, Centre
for Employment and Labour relations Law Working Paper No 8 August 1995, Melbourne
University, pp. 29 - 30.
[2000] NSWIRComm 113; (2000) EOC 93-099; (2000) 97 IR 177.
NSW Government, Directions for change, p. 179ff.
See Part 9A of the ADA.
Part 9A of the ADA provides that the object of that Part is to eliminate and ensure the absence
of discrimination in employment on the grounds of race, sex, marital status and physical
impairment and to promote equal employment opportunity for women, members of racial
minorities and physically handicapped persons in the authorities to which the Part applies. Part
9A has not been amended to make reference to other grounds of discrimination covered by the
ADA or to reflect the definition of disability which applies in relation to unlawful
discrimination under that Act. Part 9A does not relate to the provision of services or education
by the public sector.
14

provides support, assistance, guidance and advice to Public Sector agencies on their EEO
programs;



monitors the EEO Program throughout the Public Sector;
advises the Government on employment policies and practices;
collects EEO statistical data and maintaining a statistical database on EEO throughout the
NSW Public Sector;
produces publications designed to assist managers and employees understand EEO and its
application in the workplace; and
carries out particular programs and initiatives.


The ADA also allows the Director to refer a management plan to the Board where the Director is
dissatisfied with any matter relating to the preparation, amendment or implementation of a management
plan.33 Where a referral is made, the Board may undertake an investigation into the issues and make
recommendations to the Director or to the authority which is under investigation. The Board may also
make a report to the Minister.34 On receipt of a report, the Minister may direct an authority to amend its
management plan. An authority is bound to comply with such a direction.35 To date no referrals have
been made to the Board by the Director.
Referral of matters by the Minister
The Minister has the power to refer any matter to the ADT for inquiry as a complaint.36 This power does
not appear to have been exercised. The Minister may also refer to the Board for report any matter
relating to a law or proposed law or a practice or proposed practice which may give rise to conflict with
the ADA.37 The Board is required to conduct an examination into any such matter referred and report to
the Minister its findings and conclusions. Such a referral has not been made to the Board since 1978. 38
Dealing with complaints lodged with the President
Access to redress under the ADA is complainant driven. Under the ADA a person who is aggrieved by
discrimination in an area of public life covered by the legislation is able to make a complaint in writing to
the President of the Anti-Discrimination Board.39 The President has a statutory duty to investigate all
such complaints and where appropriate, to attempt to conciliate their resolution. In the event that
conciliation is unsuccessful and in certain other circumstances, the President may refer a complaint to
the Tribunal for determination.
The ADA also provides that a person may make a complaint on their own behalf and on behalf of others.
In some circumstances a “representative body” may make a complaint on behalf of named individuals.
These provisions are not widely used.
There is no capacity for the President of the Board to accept a “representative complaint” (a complaint
made on behalf of a class or group of people who are not necessarily named) but the ADT may
determine that a complaint referred by the President is to be dealt with as a representative complaint.
Where the ADT decides to hear a complaint as a representative complaint and makes a finding of
unlawful discrimination, damages may not be awarded. Individual complaints by those covered by the
class are required in order for damages to be awarded.
Limitations on the ADA’s capacity to drive systemic change through the lodgement of
complaints
There is no doubt that the current mechanism for resolving complaints has resulted in effective redress
for complainants in many circumstances. In addition to providing a remedy for a complainant,
33
34
35
36
37
38
39
s. 122M of the ADA.
s. 122R of the ADA.
s. 122S of the ADA.
s. 95 of the ADA.
s. 120 of the ADA.
In 1978 a referral was made to the Board by the Premier to report on the practice of
preferring, from time to time, female applicants for the position of principal at girl’s high
schools, and male applicants for the position of principal at boy’s high schools. See AntiDiscrimination Board, Examination of a Practice in the NSW Teaching Service under section
120 of the Anti-Discrimination Act, September, 1979.
See s. 88.
15
conciliation may also provide the opportunity for systemic outcomes such as organisational and policy
changes, to form part of the settlement of a complaint. Resolution of complaints of indirect discrimination
also have the potential to positively impact on people other than an individual complainant. 40
However the current legislative regime in relation to complaints has certain limitations for redressing
broad ranging issues of discrimination, the elimination of which is fundamentally in the public interest, or
to effect broader ranging social and policy change.
Research into complaint handling function of the ADB
There have been a number of studies into the effect, utility and accessibility of the ADB’s complaint
resolution function with some studies also being undertaken in relation to other Australian antidiscrimination jurisdictions.41 The current legislative complaint process has been criticised for its
limitations in redressing discrimination, including systemic discrimination. Key criticisms raised by
research can be summarised as follows and are discussed in more detail below:













need for access to information, assistance in making a complaint, support, advice,
representation, advocacy;
inability of ADB to actively investigate complaints;
inability to act on behalf of complainants;
onus in establishing a case being on the complainant;
adversarial nature of the process;
increasing formalism and legalism in the process;
reliance upon written correspondence between parties and the Board;
emphasis on procedural fairness and impartiality, perhaps at expense of achieving
better outcomes;
inequalities of bargaining position between complainants and respondents;
failure to identify all potential issues in complaints;
delays;
individualised focus; and
reactive not pro active model.
In 1997 a survey of complainants and respondents who had been parties to complaints lodged under
the ADA was carried out by consultants and published by the NSW Law Reform Commission in order to
assess parties satisfaction with the process.42 That study found that while parties generally found the
ADB staff courteous and helpful, had understood the complaint and kept them informed about its
progress, 45% of complainants were of the view that the process took too long. In addition, only 32% of
complainants felt successful in achieving their original objectives in making the complaint. 43 Twenty nine
% of complainants were dissatisfied with the fairness of the process. A high proportion of Indigenous
40
42
43
However criticisms have been made of anti-discrimination agencies failure to consistently
identify complaints as ones which involve an issue beyond the individual complainant. See
Rosemary Hunter and Alice Leonard, The outcomes of conciliation in sex discrimination
cases, op. cit. p. 9 which was a study of over 200 sex discrimination cases from South
Australia, Victoria and HREOC. See also Chapman and Mason’s study of 50 ADB
homosexuality complaint files where they formed the view that one quarter contained claims
of indirect discrimination. Only one case identified indirect discrimination on the case file data
sheet. Anna Chapman and Gail Mason, “Women, sexual preference and discrimination law: a
case study of the NSW jurisdiction,” Sydney Law Review, Vol 21, No. 4, 1999, p. 531.
41
Some studies have also been conducted in other anti-discrimination jurisdictions.
See: AnnemarieDevereux, “Human Rights by Agreement? A Case Study of the Human Rights
and Equal Opportunity Commission’s Use of Conciliation”, Australian Dispute Resolution
Journal, Vol. 7, 1996, p. 280. This was a study of around 40 conciliation files finalised in the
1989-1990 financial year under the federal anti-discrimination Acts. See also Report of the
Steering Committee into Processes under the Western Australian Equal Opportunity Act 1984,
Investigation and Conciliation, cited in (ed.) David Kinley, Human Rights in Australian Law,
Sydney, Federation Press, 1998, p. 293, n. 6. The Report is based on data collected from a
random telephone survey of 196 complainants and respondents where files were finalised in
the 1991/2-1992/3 financial year, an examination of 225 Equal Opportunity Commission
complaint files, ministerial submissions and interviews with Commission staff.
NSW Law Reform Commission, Discrimination complaints-handling: A study, Research
Report 8, Sydney, 1997.
ibid, p. 31.
16
people believed that their complaint was not handled fairly (39%).44 The study also recorded
recommendations made by complainants to improve the complaints handling process, including
reduction in delays, increases in staff, better access to ADB offices through extended hours and more
locations and more publicity and information. Some complainants also wanted the ADB to provide more
active support to complainants and to have greater powers to investigate matters on behalf of
complainants.45
In 1997 the ADB conducted a limited study into women’s experience of making complaints to the Board
or the HREOC.46 The object of the survey was to identify women’s experience of making complaints of
discrimination before, during and after lodging a complaint, and establishing their support needs.
Comments on the ADB’s complaints handling processes fell into four main categories:




the time taken and delays experienced in the complaint handling process
lack of awareness/understanding of the complaint handling process and information provision
customer service issues
need for more education/information on anti-discrimination law and processes.
The Report detailed the kinds of support women said would assist them in bringing and sustaining
complaints of discrimination and harassment. A number of recommendations were made as to how
those support needs could be met.
A study conducted by Anna Chapman on discrimination complaint handling in NSW looked particularly
at the role of Alternative Dispute Resolution (ADR) in discrimination complaints.47 A purpose of the study
was to have the potential to inform policy development and law reform debates about the appropriate
form of discrimination law.48 Chapman argues that adversarial values, marked by significant power
inequalities, have regrettably been imported into the discrimination jurisdiction. 49 She states that the
appearance of the adversarial ideal is worrying given informalism was adopted in discrimination
jurisdictions out of a recognition that formalism, with its adversarial culture, was inappropriate in this
area of law.50 Chapman argues that such adversarial ideologies are present in the centrality accorded to
procedural fairness and the construction of the parties as formally equal individuals who “drive” the
dispute resolution processes to a conclusion. She argues that the presence of lawyers, particularly
those acting for respondents, has provided much of the impetus for creeping legalism in relation to
conciliation.51 In short, Chapman criticises the refusal to advocate on behalf of complainants and the
limited role of investigation based on what information parties are capable and willing to provide. 52 She
summarises the concerns of scholars, legal practitioners and discrimination agencies in the Australian
context as being in relation to:





44
45
46
47
48
49
50
51
52
53
power dynamics between complainants and respondents and the impact of these
forces on the outcomes of conciliation;
the individual focus and reactive (rather than pro-active) model of dispute resolution
encompassed in the jurisdictions;
increasing formalism in conciliation conferences and the role of lawyers in this;
the nature of a confidential process in privatising conflict and behaviour from public
scrutiny and approbation; and
different ways in which outcomes and success in these jurisdictions may be
measured.53
ibid, p. 38.
ibid, pp. 51 - 52.
ADB, Women’s experience of making complaints to the NSW Anti-Discrimination Board or
the federal Human Rights and Equal Opportunity Commission, 1997.
Anna Chapman, “Discrimination Complaint-Handling in NSW: The Paradox of Informal
Dispute Resolution”, Sydney Law Review, Vol. 22, p. 321. This article draws on earlier
empirical research conducted for an earlier project examining a group of complaints lodged
under the ADA by women under the homosexuality discrimination and vilification
provisions. See A Chapman and G Mason, “Women, Sexual Preference and Discrimination
Law: A Case Study of the NSW Jurisdiction”, Sydney Law Review, Vol. 21, 1999, p. 525.
Anna Chapman, ibid, p. 350.
ibid, p. 350.
ibid, p. 323.
ibid, p. 323.
ibid, pp. 335-343.
ibid, p. 323.
17
A PhD study by Dr Una Spence has also examined the complaint handling function of the ADB.
Interviews were conducted from 1999 to 2001 with complainants and complaint handling staff. The aim
of the study was to look at the impact of anti-discrimination legislation on the lives of people who
believed they had been discriminated against.54 The research indicates a fair degree of dissatisfaction
on the part of complainants in the complaint handling process. Concerns included issues of
complainant’s having to bear the onus of producing evidence to back their case, the inability for the
Board to actively investigate complaints or to advocate for complainants.
While the report recommends further research, particularly in relation to the perspective of respondents,
Spence makes a number of recommendations for change.55 She proposes that consideration be given
to a model where the Board would take action on behalf of the complainant.56 The model proposed
reflects to an extent the strategy adopted in Britain under the Sex Discrimination Act 1975 and the Race
Relations Act 1976. Such a model is said to have been strongly endorsed by complainants.57
Conciliation would be carried out by an external agency. Two models are proposed as to when
conciliation might occur, either before or after investigation.58
In December 2001 the Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Women’s Legal
Centre published a report examining Indigenous women’s experiences of discrimination, their responses
to discrimination and the factors which influence Indigenous women’s understanding of their rights and
access to discrimination complaints mechanisms.59 The report is based on quantitative ABS data and
data collected by the ADB and the Human Rights and Equal Opportunity Commission (HREOC) and
qualitative data drawn from focus group consultations. Those consultations were conducted in ten rural
and urban locations in NSW and from interviews with women who had used ADB and HREOC
complaints processes.60
The report made a number of conclusions and recommendations to assist in increasing Indigenous
women’s access to discrimination complaints mechanisms. The report found that despite Indigenous
women’s intense experiences of discrimination, many of the women interviewed did not make
complaints to the ADB.61 Recommendations included the provision of additional complaint handling
staff, expansion of rural outreach and the development of culturally appropriate promotional materials. In
relation to the complaints process, the report included recommendations that the ADB refer
complainants to sources of assistance for making written complaints, ensure that each step of the
process is explained orally to complainants in addition to relying on written communications and that
steps are taken to reduce backlogs of complaints and time taken to deal with complaints. 62
Specific issues
The inability of the President to initiate a complaint into possible discrimination on his or her own motion
is a limitation on the capacity of the ADA to effect systemic change. In particular the more vulnerable a
community is to discrimination the more difficult it can be for members of that community to bring an
individual action to redress that discrimination. This is often because of fears of victimisation or because
the very disadvantage suffered makes people less likely to be able to access complainant driven
remedies. In some instances these factors also lead to people withdrawing their complaints. The
Combined Community Legal Centre’s Group (NSW) has argued that the emphasis on individual
complaint mechanisms is problematic for the following reasons:
54
55
56
57
58
59
60
61
62
Una Spence, op cit, p. 10.
ibid, pp. 363-371.
ibid, p. 363.
ibid, p. 363 referring to research carried out by Gregory on the British experience: J Gregory,
Dispensing informal justice: Research discussion series No 5, Manchester: Equal
Opportunities Commission, 1993.
ibid, pp. 363-367.
Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Women’s Legal Centre,
“Discrimination….have you got all day” – Indigenous women, discrimination and complaints
processes in NSW, Sydney, December 2001.
ibid. A total of 73 women participated in the focus groups and / or were interviewed for the
project. See p. 5 of the report.
ibid, p. 64.
For recommendations see chapter 7 at pages 64-67. Recommendations were also made to
NSW Government to increase funding to the ADB and to organizations able to provide legal
and support services to Indigenous women seeking to complain about discrimination.
18








those who are most marginalised, and most in need of protection from the law, are the
least likely to trust or have contact with complaint bodies;
individuals who lodge complaints are among the least likely in the community to be
able to comply with the procedures necessary to establish their case;
the nature of the discriminatory conduct may be such that individuals affected are less
likely to complain, due to concerns that publicity regarding the incident will expose
them to further discrimination or harassment;
individuals are more likely to be affected by significant delays in complaints handling,
there is often a significant imbalance of power between complainants and
respondents, particularly in relation to the capacity of the parties to bear the costs
involved, often leads to unsatisfactory settlements at conciliation. Complainants are
less likely to have the financial resources to proceed to hearing;
conciliated settlements do not produce binding precedents;
“burn out” by complainants because of the demands of the process; and
the inability of a system based on individual complaints to deal with systemic
discriminatory practices.63
The confidential nature of most settlements is a further limitation upon the capacity for those complaints
that are successfully conciliated to influence future conduct of other potential respondents. Rosemary
Hunter and Alice Leonard suggest that a less categorical approach to the issue of confidentiality could
be adopted in Australia. They argue that their research suggests that anti-discrimination agencies and
parties could make decisions in each case about the requirements of confidentiality or publicity, taking
into account the public interest to be served by publicising conciliated outcomes.64
Delays in dealing with complaints due to insufficient resources and inefficiencies in the legislative
scheme can also limit the effectiveness of the complaints process in effecting change. For the year
2001/2002 25% of allocated complaints were finalised in one month, 38% in two months, 48% in three
months, 65% in six months and 87% in twelve months.65 At present there is a substantial queue of
complaints awaiting allocation. A special team has been set up to deal with complaints in the queue.
One of the issues that contribute to the delay is the amount of work needed to process complaints that
are lodged outside the statutory time limit of 6 months. Administrative law requirements mean that a
labour intensive process is needed for the President to determine whether to accept a complaint outside
the time limit. The Board has recommended changes to the relevant legislative provisions to help ensure
a more efficient and effective process.
The President is also restricted in his or her ability to contribute to the outcomes of matters being heard
by the Tribunal. The President has no power to intervene in such proceedings and may only be present
if the Tribunal requests that an officer of the ADB assist the Tribunal.66 This is in contrast to other antidiscrimination jurisdictions in Australia where generally powers of intervention and/or the ability to
represent complainants in the relevant Tribunal exists.67
63
64
65
66
67
Combined Community Legal Centre’s Group (NSW) Human Rights and Discrimination SubCommittee, Submission on the Human Rights Legislation Amendment Bill 1996 to the Senate
Legal and Constitutional Committee Inquiry into the Bill, March 1997, p. 8, cited in
Australian National Council on AIDS, Hepatits C and Related Diseases, Barriers to access
and effective use of anti-discrimination remedies for people living with HIV and HCV,
Occasional Paper No 1, July 2001, prepared for ANCAHRD by Julia Cabassi, member of the
ANCAHRD Legal Working Party, p. 6.
See Rosemary Hunter and Alice Leonard, The outcomes of conciliation in sex discrimination
cases, op cit, pp. 25-26.
Anti-Discrimination Board NSW Annual Report 2001-2002, p 33.
s. 101A of the ADA.
Federal: Under s. 11(1)(0) of the Human Rights and Equal Opportunity Commission
Act 1986 the Commission may intervene in proceedings that involve human rights
issues.
Victoria: Equal Opportunity Act 1995 s. 134A: effect of provision is that the
Commission, if joined by the Tribunal, is a party to a complaint referred. Section 60 of
the Victorian Civil and Administrative Tribunal Act 1998 gives the Tribunal general
power to join a person to proceedings where desirable to do so. Queensland: AntiDiscrimination Act 1991 section 235(j) provides that the Commission may intervene in
proceedings that involve human rights issues. South Australia: s. 95(8a) of the
Equal Opportunity Act 1984 provides that where a complaint is referred by the
Commissioner to the Tribunal for hearing, the Commissioner lodges the complaint
with the Tribunal. Section 95(9) provides that the Commissioner must assist the
19
complainant on request in the presentation of the complainant’s case to the Tribunal.
Section 24 also provides the Tribunal with a broad power to join persons and allow
interventions. Western Australia: s. 93(2) of the Equal Opportunity Act 1984
provides that the Commissioner shall upon request assist the complainant in the
presentation of their case in the Tribunal. Section 93A provides that the
Commissioner may assist complainant where a matter is on appeal to the Supreme
Court. Section 111 gives the Tribunal a broad joinder power. Tasmania: s. 7 of the
Anti-Discrimination Act 1998 provides that the Commissioner may intervene in
proceedings before the court or tribunal that involve issues relating to acts of
discrimination or prohibited conduct. Northern Territory: s. 13(a) of the AntiDiscrimination Act 1992 empowers the Commissioner to carry out investigations and
hearings into complaints. Section 13(q) provides the ability to intervene in
proceedings that involve issues of equality of opportunity or discrimination.
20
Current proposals for reform in NSW
What have been the responses of policy makers and law reform agencies to these issues?
In essence the Law Reform Commission of NSW (“the LRC”) recommended the retention of the current
model of complaint handling along with limited additional powers aimed at increasing the ADB’s capacity
to deal with systemic discrimination. The LRC’s review of the ADA did not examine Part 9A or the
functions of ODEOPE. In relation to complaint handling, some of the more significant proposals in terms
of assisting with redressing issues of systemic discrimination relate to the lodging of complaints, more
comprehensive representative complaint provisions, power of the President to initiate complaints, ability
to issue non binding codes of practice, President’s powers to intervene in Tribunal proceedings and the
ability for the Tribunal to refer matters to the Industrial Relations Commission. However there were also
recommendations made which in the Board’s view, are counter to increasing the effectiveness of the
system, such as the proposal to limit the capacity of representative bodies to make complaints on behalf
of named persons.

Lodging complaints
Currently under the ADA there are specific requirements for lodgment which limit who may lodge a
complaint on behalf of another person. There is only capacity for a person who does not claim they have
been discriminated against to lodge a complaint on behalf of a person who is aggrieved where that
person has a disability or is under 18 years of age. In some circumstances a “representative body” may
make a complaint on behalf of named persons. There is no additional capacity for another person such
as a solicitor, advocate, carer or family member to lodge a complaint on behalf of an aggrieved person
unless the person lodging the complaint is also aggrieved. The LRC recommended that:



a complaint may be lodged by a legal practitioner on behalf of a complainant; 68
a complaint may be lodged by a parent or guardian on behalf of a child or other
person who lacks the capacity to give informed consent. Consent of the child or
disabled person is not to be required;69 and
In the case of a disabled person who does have the capacity to give informed
consent, a complaint may be lodged on behalf of that person, by an agent who may
be, but need not be a lawyer.70
The Board’s position is that it is preferable to allow any person or body (whether incorporated or not) to
make a complaint on behalf of another person, provided that other person consents to the making of the
complaint where they have capacity to do so. This would be a more effective system for lodging
complaints as it would :


provide better access to the legislation for disadvantaged people who may require
assistance but who cannot afford legal advice or representation; and
avoid increased expense and delay which may be caused where a person such as an
advocate, carer or community representative purports to lodge a complaint on behalf of
another person with their consent on the assumption that they are able to do so, only to find
out that the complaint cannot be accepted by the Board.
Specific provisions can then be incorporated to deal with complaint lodged on behalf of people who lack
capacity.
The Law Reform Commission also stated that the capacity for a representative body to make a
complaint should be limited to vilification complaints.71 The Board does not agree with this limitation as it
decreases the capacity of organisations like unions and community organisations to bring complaints on
behalf of named persons. Rather, representative bodies should be able to lodge any complaint on behalf
of another.

68
69
70
71
Initiating complaints
Recommendation 101.
Recommendation 103.
Recommendation 104.
See text of the LRC Report at paras 8.27-8.33.
21
The Law Reform Commission also recommended that the President be given the power to initiate a
complaint upon referral by the Minister.72 The Board supports the capacity of the President to initiate
and lodge complaints but does not agree with the requirement that the Minister refer the matter. There
are four broad justifications for allowing the President to initiate complaints. Such a power:




furthers the objectives of the proposed legislation
is in the public interest
allows discrimination to be addressed which would otherwise be ignored because of
barriers to the lodging of individual complaints
overcomes some shortcomings in the individual complaint based system.
The Board’s view is that any such power should not be subject to political considerations. In making a
decision to initiate a complaint regarding a matter of systemic discrimination and/or a matter of public
interest the President must be able to independently act in his or her role as the administrator of NSW
anti-discrimination laws. Requiring permission from the Attorney to initiate such complaints jeopardises
the independence of the President and may decrease the capacity of the President to meaningfully
achieve the objects of the anti-discrimination regime.
Initiation powers are currently in NSW legislation relating to statutory office holders like the
Ombudsman, the Health Care Complaints Commissioner and the Community Services Commissioner.
That legislation does not require Ministerial approval in order to initiate a complaint. 73 The Board has
argued that an independent power of the President to initiate complaints would therefore ensure
consistency with relevant NSW complaint handling legislation.

Tribunal proceedings
The Law Reform Commission recommended that the Tribunal should have the power to grant the
President of the ADB leave to intervene on behalf of a complainant, where considered appropriate, in
proceedings before the Tribunal.74 The Board did not agree with that recommendation in the absence of
a more comprehensive reconsideration of the role of the President.
In summary the Board’s position has been that the President should have a role in proceedings in the
Tribunal as follows:
72
73
Recommendation 125.
Health Care Complaints Act 1993 (NSW)
8 Who may make a complaint?
A complaint may be made by any person including, in particular, the following:
*
the client concerned
*
a parent or guardian of the client concerned
*
a person chosen by the client concerned as his or her representative
*
(including a lawyer) for the purpose of making the complaint
*
a health service provider
*
a member of Parliament
*
the Director-General
*
the Minister.
Ombudsman Act 1974 (NSW)
13 Decision for investigation
(1) Where it appears to the Ombudsman that any conduct of a public authority
about which a complaint may be made under section 12 may be conduct referred
to in section 26, the Ombudsman may, whether or not any person has complained
to the Ombudsman about the conduct, make the conduct the subject of an
investigation under this Act.
74
Community Services (Complaints, Reviews And Monitoring) Act 1993 (NSW)
83 Functions of Commission
(1) The Commission has the following functions:
(d) to inquire, on its own initiative or at the request of the Minister
for Community Services, the Minister for Aged Services or the Minister
for Disability Services, into matters affecting service providers and
persons receiving, or eligible to receive, community services.
Recommendation 146.
22




that the President have the power to initiate a complaint and as such the President is a party to
proceedings;
that the President have the power to intervene as of right in applications for an original decision
in the Tribunal;
that the President have the power to intervene as of right in Appeal Panel matters; and
that the President have the power to appeal a decision of the Tribunal.
A power to appeal a decision of the ADT is consistent with the President’s powers under section 187(d)
of the Industrial Relations Act 1996 (NSW). Under that section the President may appeal a decision of a
single member of the Commission if the President considers that the decision is inconsistent with the
principles contained in the ADA. The Board’s view is that the President should be able to appeal both to
an Appeal Panel of the Tribunal and to the Supreme Court.
The Board has also recommended that section 101A of the ADA is retained so that the Tribunal may
appoint an officer of the Board to appear at an inquiry to assist the Tribunal.
The Board has sought changes to the legislative scheme to allow a more efficient and flexible approach
to dealing with issues of discrimination. Such reforms have the potential to assist in addressing systemic
discrimination issues. However to date government has not introduced legislation to effect such
changes.
Powers and initiatives in other Australian jurisdictions
All State, Territory and Federal anti-discrimination Acts provide for a system of investigation and
conciliation of complaints. In South Australia and Western Australia, the relevant Commissioners must
provide assistance or legal representation to the complainant at the Tribunal stage if requested. In the
Northern Territory, the Commissioner is also empowered to hear matters.75
In addition to the individual complaint mechanisms, a range of provisions exists in state, territory and
federal anti-discrimination legislation to assist with eliminating systemic discrimination.76 All Australian
jurisdictions provide for representative complaints to be made and generally provide for the relevant
Commissioner to intervene in proceedings involving discrimination and human rights issues. A number
of jurisdictions provide for a complaint initiation power and / or an inquiry power.
The Anti-Discrimination Act 1998 (TAS), the most recently enacted anti-discrimination legislation of all
the States and Territories, provides a clear power for the Commissioner to initiate a complaint. Section
60(2) of the Act provides that the Commissioner may investigate any discrimination or prohibited
conduct without the lodgement of a complaint if satisfied that there are reasonable grounds for doing so.
The Discrimination Act 1991 (ACT) also provides a power to initiate a complaint. Section 80 provides
that the Commissioner may, of his or her own motion, investigate conduct that appears to the
Commissioner to be unlawful under certain provisions of the Act. The Act provides that such an
investigation is to be conducted as far as is practicable, as though it were an investigation in relation to a
complaint. Where the investigation discloses unlawful conduct and conciliation is unlikely, the person
who was the object of the unlawful conduct may require the Commissioner to refer the conduct to the
Tribunal as if the person had complained of the conduct.
Under the Victorian Equal Opportunity Act 1995 the Equal Opportunity Commission may conduct an
investigation into a matter where a contravention of the Act may have occurred. A matter may become
75
76
South Australia: s. 95(8a) of the Equal Opportunity Act 1984 provides that where a
complaint is referred by the Commissioner to the Tribunal for hearing, the
Commissioner lodges the complaint with the Tribunal. Section 95(9) provides that the
Commissioner must assist the complainant on request in the presentation of the
complainant’s case to the Tribunal. Western Australia: s. 93(2) of the Equal
Opportunity Act 1984 provides that the Commissioner shall upon request assist the
complainant in the presentation of their case in the Tribunal. Section 93A provides
that the Commissioner may assist complainant where a matter is on appeal to the
Supreme Court. Northern Territory: s. 13(a) of the Anti-Discrimination Act 1992
empowers the Commissioner to carry out investigations and hearings into complaints.
Unfortunately a comparison of the outcomes achieved by different legislative models
in
Australia is beyond the scope of this paper.
23
the subject of investigation upon referral of a matter by the Tribunal to the Commission, where a matter
comes to the Commission’s attention in the course of undertaking its educative and research function or
where the Commission becomes aware of other matters in the course of dealing with a complaint.
Generally such an investigation may only be carried out where:



the matter is of such a serious nature that it warrants the investigation;
it concerns a possible contravention in relation to a class or group of people; and
the lodging of a complaint by one person would not be appropriate.
Investigations are to be conducted in the same manner, as nearly as practicable, as if it were a
complaint. If after investigation the Commission is satisfied that a contravention of the Act has occurred,
the Commission must attempt to resolve the matter by conciliation. If conciliation is not appropriate or
not successful, the matter may be referred to the Tribunal. The Tribunal may make orders to stop the
discriminatory conduct and / or to prevent future contraventions of the Act. The Act does not prescribe a
particular role for the Commission at the Tribunal stage.
The Equal Opportunity Act (SA) also makes provision for the institution of inquiries and is similar to the
Victoria model. Section 93A of the Act provides that in certain circumstances the Tribunal may refer a
matter to the Commissioner for investigation. The SA Act also provides for the Commission to represent
complainants at hearing.
While the WA Act does not provide an initiation power as such, the Equal Opportunity Act (WA) provides
that where a complaint is referred to the Tribunal for hearing, the Commissioner must represent the
complainant upon request.
Federally, under section 11(f) of the Human Rights and Equal Opportunity Commission Act the
Commission is empowered to inquire into any act or practice that may be inconsistent with or contrary to
any human right. Such an inquiry may involve conciliation or a report to the Minister.
The Disability Discrimination Unit of the Human Rights and Equal Opportunity Commission has recently
adopted a new approach to complaint investigation and reporting of complaint outcomes. Where the
parties consent, the Commission has conducted public inquiries into discrimination complaints which
raise issues of systemic discrimination. An example is that Unit’s inquiry into a complaint of disability
discrimination in the provision of services. The complaint was from a person with a hearing impairment
who alleged discrimination in the failure to provide captioning at a cinema. Although initially the
complaint was lodged against one cinema, the Unit broadened the usual complaint investigation process
into a “public investigation” involving a number of cinema chains, film distributors and interested
disability bodies. The result was that a number of cinemas across Australia agreed to provide such
captioning as part of particular cinema services.
The Disability Unit is advocating for a range of approaches to address systemic discrimination and is
asking other agencies to re-examine current methods for dealing with complaints. This includes reexamining certain assumptions that have been made over time like the need for complaints to be kept
confidential in the absence of statutory requirements to do so. In addition to conducting complaints in a
more public manner with the consent of the parties, the Unit canvases the use of standards and
exemptions as a means of achieving larger scale systemic change.77
All State, Territory and Federal jurisdictions have legislation dealing with Equal Employment
Opportunities in the public sector. Generally the provisions focus on the development of EEO
management plans and emphasise the merit principle. Those provisions are set out at Appendix B.
77
Graham Innes, Deputy Disability Discrimination Commissioner Human Rights and Equal
Opportunity Commission, The Role of Public Inquiries and Exemption Powers in
Eliminating Disability Discrimination, Constructing Law and Disability Conference,
Australian National University, 4 December 2000.
24
Part 3: Powers and other initiatives for addressing systemic discrimination in the public sector:
International perspective
There are innovative processes and initiatives occurring around the world in relation to discrimination
matters. We visited the UK, Brussels and Canada. The UK has a very different model to that in place in
NSW. Particularly in the area of race discrimination, the British model has moved towards a more proactive system for dealing with systemic racial discrimination, particularly in the public sector. Domestic
events such as race riots, a damning report finding institutionalised racism in the police service and to
some extent international law have provided the impetus for this approach. These matters are examined
in some detail below.
In Canada, we focused on the federal legislation and the legislation of the province of British Columbia.
While the federal legislation has a number of pro-active measures a review of the Act has recommended
an entirely new regime specifically targeted at focusing on mechanisms to address systemic
discrimination. We chose British Columbia because it had legislation that appeared to confer broad
ranging powers upon the Commission. However the potential of those provisions may not have been
fully realised. While in Canada, the British Columbian system was under review. An entirely new model
which abolishes the Human Rights Commission and provides direct access to a Tribunal will come into
force on 31st March 2003.
United Kingdom
Overview
In Britain there are five statutes dealing with human rights and discrimination matters each administered
by a separate agency. They are:




Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000, administered
by the Commissioner for Racial Equality (CRE)
Disability Discrimination Act 1995 administered by the Disability Rights Commission (DRC)
Sex Discrimination Act 1975 and Equal Pay Act 1970 administered by the Equal Opportunities
Commission (EOC)
Human Rights Act 1998 administered by the Human Rights Unit, formerly of the Home Office, now
of the Lord Chancellery Department (HRU).
The issue of whether the legislation should be amalgamated and whether it should be administered by a
single body is currently on the agenda following Directives from the European Union which will require
discrimination law in the UK to prohibit discrimination on the grounds of ethnic origin, religion or belief
and sexual orientation. This has focused attention both on substantive issues and the systems for
administrating anti-discrimination and human rights laws.
From our discussions with representatives from each organisation it appears that the CRE and the EOC
are of the view that creating additional Commissions to deal with the grounds would not necessarily be
most efficient or effective. However there is also some concern that creating a single Commission may
diminish the focus currently afforded to groups represented by the current structure of separate
Commissions. The DRC opposes a single Commission on that basis.78 A Parliamentary enquiry into the
issue was underway during our visit. Since then the government has announced terms of reference to
examine the long-term feasibility of a single “equality commission.” It is to be noted that while the
government prefers the prospect of a single Commission, uniform equality legislation is not being given
the same emphasis.79
Discrimination legislation in the UK provides a range of mechanisms for dealing with systemic
discrimination. For example, under the Race Relations Act 1976 the Commission for Racial Equality has
power to take legal action against certain acts of unlawful discrimination, including carrying out an
investigation if the Commission suspects that an organisation is discriminating on racial grounds. If the
Commission is satisfied that unlawful discrimination has taken place, the Commission may issue a “nondiscrimination” notice. If not complied with, the Commission can apply to a court for an order to obey the
notice. Similar powers exist under the Sex Discrimination Act and Disability Discrimination Act.
78
79
“Single equality commission a step closer”, Equal Opportunities Review, June 2002, No. 106,
p. 9.
ibid, p. 10.
25
The Race Relations Act goes further and confers a positive duty upon public bodies to promote racial
equality and eliminate racial discrimination. Failure to fulfil the duty may be enforced by the Commission
taking legal proceedings against the body. The Equal Opportunities Commission and Disability Rights
Commission are advocating for comparable provisions.
Individuals may also take action under the Acts. The Commissions do not perform a complaint-handling
role but rather determine whether to assist complainants to run their matter in the relevant Court or
Tribunal.
The Human Rights Act is akin to a “Bill of Rights” and gives enforceability in UK law to certain provisions
of the European Convention on Human Rights.
These schemes are examined in more detail below.
Measures to address race discrimination in the UK
The Impact of the Lawrence Inquiry: a new positive duty
Issues of institutional racism, ethnic representation in the public service and private employment,
disadvantage and the need for positive measures appeared to be high on the agenda during our visit to
the UK. A history of race riots in the UK has led to a number of inquiries and initiatives. There is an
emphasis on empowering local communities to assist in identifying problems and solutions in order to
redress entrenched disadvantage.
Of particular significance was the report of the Stephen Lawrence Inquiry by Sir William Macpherson,
published on 24 February 1999 (“the Report”). That inquiry was in relation to the murder of Stephen
Lawrence, a young black man, and the flawed investigation carried out by the Metropolitan Police
Service. The report appears to have had a significant effect on Britains’ public institutions and has
resulted in substantial changes being implemented in some areas, most notably, in the Police Service
itself.
The Report found evidence of “institutional racism” in the Metropolitan Police Service. The Report
defined institutional racism as:
The collective failure of an organisation to provide an appropriate and professional service to
people because of their colour, culture or ethnic origin. It can be seen or detected in processes,
attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance,
thoughtlessness and racist stereotyping which disadvantage minority ethnic people. 80
The Report accepted that institutional racism exists not only in the Metropolitan Police Service and other
police services but also in other institutions. The Report stated that:
It is incumbent on every institution to examine their policies and the outcome of their policies
and practices to guard against disadvantaging any section of our communities…there must be
an unequivocal acceptance of the problem of institutional racism and its nature before it can be
addressed, as it needs to be, in full partnership with members of minority ethnic communities.
Extensive recommendations were made by the Report in relation to the Police, including the need for
legislative reform to the Race Relations Act 1977 to extend its application to the law enforcement
functions of policing. At the time of the Report, the Race Relations Act 1977 applied to police only in
their employment practices and in providing services to individuals, which could include their treatment
of victims. The proposal of the Report, which has now been enacted pursuant to the Race Relations
(Amendment) Act 2000, prohibits race discrimination in the exercise of police law enforcement powers
including stop and search, arrest, detention, charging and treatment of suspects. It also implements the
Report’s recommendation:
80
The Stephen Lawrence Inquiry Report Of An Inquiry By Sir William Macpherson Of Cluny
Advised By Tom Cook, The Right Reverend Dr John Sentamu, Dr Richard Stone Presented to
Parliament by the Secretary of State for the Home Department by Command of Her Majesty.
February 1999.
26
that the full force of the Race Relations legislation should apply to all police officers, and that
Chief Officers of Police should be made vicariously liable for the acts and omissions of their
officers relevant to that legislation.
The Act goes further extending coverage of the Race Relations Act 1976 to the functions of public
authorities in general, not just the police. From 2 April 2001, the amended Act applies to all the functions
of public authorities that were previously excluded. This brings within the scope of the amended Act the
law enforcement or control functions of government agencies, including the police, the Crown
Prosecution Service, the probation service, Customs and Excise, the immigration service, the prison
service, and the regulatory functions of local authorities, including environmental health, trading
standards, licensing, and child protection. The Act also covers discrimination where a public function is
being carried out by a private company or a voluntary organisation on behalf of a public authority. This
means for example that the amended Act applies to prison discipline in private prisons as well as
prisons run by the Prison Service.81
In addition, the Race Relations Act now includes pro-active mechanisms to promote race equality in all
aspects of the work of public authorities. The Act imposes a general duty on all public bodies to promote
racial equality, eliminate racial discrimination in employment and service delivery and to promote good
race relations between different racial groups. The Home Secretary (and Scottish Ministers, in Scotland)
has the power to make Orders placing specific duties on some or all public bodies which will set out in
more detail action that public authorities need to take in order to better comply with the general duty.
The CRE has the power to enforce these duties by issuing compliance notices to a public authority
which it believes to be failing to fulfil any specific duty laid down and, if necessary, to seek a court order
to enforce the notice (see below). At the time of our visit a period of public consultation was occurring in
relation to Draft Codes of Practice that the Commission for Racial Equality is empowered to develop.
Codes provide guidance to public authorities on how to fulfil their general and specific duties. 82 To date
a statutory Code of Practice on the Duty to Promote Racial Equality has been issued as well as a
number of guidelines.83
The new legislative framework assists in avoiding race discrimination by placing a positive duty on
public authorities to assess the impact on race equality of all aspects of its operations. It is an attempt to
address issues of systemic and institutionalised racial discrimination by promoting the public sector as
the instrument of change. The Home Office states that it wishes to be the best practice model and has
published racial equality schemes and action plans and extensive research on the ethnic composition of
the workforce.84
Actions taken by the Police, the Home Office and the Fire Brigades following the Lawrence
Inquiry
The Metropolitan Police Service has developed and begun to implement a plan in response to the
recommendations of the Lawrence Inquiry. However the initiatives of the Police go further than issues of
race and strategies have also been implemented in relation to gay, lesbian, bisexual and transgender
(GBLT) communities as a response to the Soho nail bombings.
Internally strategies are aimed at increasing the membership of the police service to be reflective of
minority communities and combating internal racism and homophobia. Recruitment initiatives, internal
training on racism, homophobia and all other forms of discrimination is occurring at all levels. There is a
strong focus on developing relationships between police and communities and a range of innovative
strategies are being employed. Consultation with local communities is occurring, initiatives for reporting
crime which do not involve visiting police stations have been developed particularly to encourage the
reporting of GBLT hate crimes, community intelligence gathering is being improved and a number of
resources have been developed regarding diversity in policing. A major resource on identifying and
combating hate crime refers to the role of police officers as “defender and upholders of human rights”. 85
81
82
83
84
85
The amended Act does not apply to: the work of the Houses of Parliament or the security
services, judicial or legislative acts and decisions not to prosecute, certain immigration and
nationality functions where discrimination is permitted on grounds of nationality or ethnic or
national origin.
See Appendix C for a list of draft consultation publications.
See A guide for public authorities, A guide for further and higher education institutions, A
guide for Schools, Ethnic monitoring: a guide for public authorities.
See Appendix C.
Association of Chief Police Officers, Identifying and Combating Hate Crime, p. 24.
27
Of note is the way in which the Police now deal with hate crime. A hate crime is defined as a crime
where the perpetrator’s prejudice against any identifiable group of people is a factor in determining who
is victimised. A racist or homophobic incident is any incident which is perceived to be racist or
homophobic by the victim or any other person. Family Liaison Officers and Community Safety Units
have been developed to specifically respond to hate crime. The official Police policy is now to consider
families and survivors as partners to an investigation and that each individual’s needs are paramount.86
There is also the ability for increases in sentences where a racist element forms part of the crime.
Tackling racism is stated to be a priority and has been described by one Police Commissioner as
contributing to:
one of the biggest gaps in confidence between the Met and the people we serve. 87
But what is perhaps most profound is the acceptance by the Police Commissioner of the findings of the
Lawrence Inquiry of institutionalised racism. There is no attempt to deny the findings or to down play
their significance. Rather, at least at the policy level, there has been an acceptance of the need for
radical change. The philosophy is that the need for good community relations is fundamental to good,
effective policing:
We can reduce crime and the fear of crime and catch those actively involved in criminality, by
working with local partnerships and by involving communities.88
There is emphasis on police contributing positively to “neighbourhood renewal” and supporting
communities.89
The progress and will of the Police to effect change was confirmed by those we spoke to at the
Commission for Racial Equality and the Race Unit of the Home Office.
The findings of the Lawrence Inquiry have also impacted on other public sector authorities such as the
Fire Brigades. In March 1999 the Home Secretary said that one of the key criteria for judging the
success of public services was how effectively they promoted fairness and equal opportunity both in the
provision of services and in their own employment practices. He described the fire service’s record as
unacceptable and in July 1999 published targets for recruitment, retention and progression of ethnic
minority staff in the fire, police, probation and prison services and for the Home Office itself. For the fire
service, targets for the recruitment, retention and progression of women were also to be set. 90
In September 1999 the HM Fire Inspectorate undertook a review of fire services in relation to equality
and fairness. As at March 1998, there were only 513 people from black and ethnic minorities and 436
women employed in a service with a uniformed (excluding control room staff) strength of 33,597 and a
retained service of 14,483.
The report of the review made 23 recommendations aimed at wide spread changes to increase equality
ranging from the role of leadership, the need for policies and procedures to the need to consider more
flexible work practices.91 The role of rank structure and a culture of fear and mistrust in some brigades
had significant implications. There has also been acknowledgment of the implications the culture has on
community trust of the brigades.
In 2000 the Equal Opportunities Task Group developed an action plan.92 One aim was to move to a
“team culture” based on trust not fear. These principles have been further expanded in the 2001 action
plan.93
86
87
88
89
90
91
92
93
Metropolitan Police, Protect and Respect: everybody benefits, New Scotland Yard, London,
April 2001, p. 4.
ibid, p. 6.
ibid, p. 1.
Identifying and Combating Hate Crime, op cit, pp. 18, 51-74.
Home Office, Equality and Fairness in the Fire Service: A thematic review by HM Fire
Service Inspectorate, Part One, September 1999, p. 11.
ibid, pp. 9-10.
Home Office, Toward Diversity: Promoting Cultural Change, 2000.
Equal Opportunities Task Group, Toward Diversity II: commitment to cultural change: the
second fire service equal opportunities action plan, December 2001. See also a review
regarding fitness for duty by the Home Office, Fit for Duty? A Thematic Review by HM Fire
28
Complaints mechanisms and other enforcement strategies under the Race Relations Act
Overview
The Race Relations Act 1976 (UK) makes it unlawful to discriminate against anyone on grounds of race,
colour, nationality (including citizenship), or ethnic or national origin in the areas of employment, training,
housing, education and the provision of goods, facilities and services.94 Unlike the Australian model, the
Race Relations Act provides a system of direct access to a Court or Tribunal in relation to an alleged
breach of the Act. The Commission for Racial Equality does not have a complaint handling function
comparable to those in Australia. Rather, complaints are lodged directly with the relevant Court or
Tribunal.
Broadly speaking, the Act combines the right of individual access to legal remedies with the strategic
functions of the Commission for Racial Equality which has powers to enforce the law in the public
interest. The functions of the Commission for Racial Equality in relation to the enforcement of the Act
may be summarised as follows

Formal Investigations
For the purpose of carrying out its duties, the Commission may conduct formal investigations
into any matter, and where it discovers conduct which contravenes the Act it is empowered to
issue a non-discrimination notice. A discrimination notice can require an organisation not to
contravene the Act, take positive action and report on changes made. Where a discrimination
notice is not complied with, the CRE may take legal action to enforce compliance; 95

Legal proceedings
The Commission is empowered to institute legal proceedings in respect of persistent
discrimination.96 The Commission also has the sole right to institute legal proceedings in
respect of discriminatory practices and advertisements, and instruction and pressures to
discriminate — such as employers instructing employment agencies not to send them
applicants from ethnic minorities, or companies instructing their workers to discriminate in the
way they provide goods or services;97

Acting on behalf of complainants
The Commission also has certain powers to assist individual complainants in cases where
special considerations justify the assistance.98
The CRE is run by 15 Commissioners (including the chairperson), who are appointed by the Home
Secretary. The Commissioners guide the work of around 200 staff based at offices in London,
Birmingham, Leeds, Manchester, Edinburgh and Cardiff. The CRE also helps to fund, and works closely
with, a network of Racial Equality Councils. These organisations work in local areas and among local
communities to tackle racial discrimination and promote racial equality. There are currently over a
hundred Racial Equality Councils or similar organisations.
94
95
96
97
98
Service Inspectorate of sickness absence and ill-health retirements in the fire service,
February 2000.
The Race Relations Act has been amended and no longer deals with vilification other than to
amend the Public Order Act 1936 to include incitement to racial hatred. It is now a criminal
offence under the Public Order Act 1986 to use threatening, abusive or insulting language or
behaviour in order to stir up racial hatred. This includes distributing racist leaflets. The Crime
and Disorder Act 1998 also created new 'racially aggravated offences', such as harassment,
assault, grievous bodily harm, and criminal damages, which carry significantly higher
penalties. All suspected criminal offences and any racist incident are to be reported to the
police. For racially offensive material in the media complaints are made to the Press
Complaints Commission or the Broadcasting Standards Authority in relation to a
contravention of media codes of practice. Complaints about racially offensive advertisements
are made to the Advertising Standards Authority.
ss. 48 and 58(a).
s. 62(b).
s. 63(c).
s. 66(d).
29
From 1 April 2000 to 31 March 2001, the budget expenditure of CRE, including grants to Racial Equality
Councils, remuneration of Commission members and an average of 198 staff, was UKL 16,593,000. 99
The Commission's responsibilities also extend beyond enforcement into the area of promoting equality
of opportunity and good relations between the different racial groups generally. The functions of the
Commission are:
(a) to work towards the elimination of discrimination;
(b) to promote equality of opportunity, and good relations, between persons of
different racial groups generally; and
(c) to keep under review the working of this Act and, when they are so required by the
Secretary of State or otherwise think it necessary, draw up and submit to the
Secretary of State proposals for amending it.100
The Commission may:




Develop statutory codes;101
Work with public bodies, businesses, and organisations from all sectors to promote policies and
practices that will help to ensure equal treatment for all;
Run campaigns to raise awareness of race issues, and encourage organisations and
individuals to play their part in creating a just society; and
Ensure that all new laws take full account of the Race Relations Act and the protection it gives
against discrimination.
Procedures for dealing with individual complaints or claims
Where the allegation is one of discrimination in employment, the complaint is presented directly to an
Industrial Tribunal.102 The parties are offered the services of the Advisory, Conciliation and Arbitration
Service (ACAS) to assist with reaching a settlement.103 ACAS is an independent body set up to act as a
go-between in disputes and is not part of the Commission for Racial Equality. However, if a complainant
has sought assistance from the CRE, an officer may assist in settling the matter through ACAS on
behalf of a complainant. If the matter is settled through ACAS, the complaint cannot go to the Tribunal
and must be withdrawn.
If the complaint is presented to the Tribunal and is “well founded”,104 the Tribunal may make orders
declaring the rights of the complainant and respondent in relation to the act to which the complaint
relates and may also order compensation.105 The Tribunal also has the power to make a
recommendation that the respondent take action within a specified time to obviate or reduce the adverse
effect on the complainant of any act of discrimination related to the complaint. 106
If a complainant is unsuccessful they will not automatically be ordered to pay the other side's legal costs.
Costs may be awarded if the Tribunal is of the view that the complainant acted unreasonably in pursuing
the case.
An appeal against the Tribunal's decision may be made to the Employment Appeal Tribunal, but only on
a point of law. Appeal cases are eligible for public funding. There is no legal aid for employment Tribunal
matters at first instance, the rationale being that individuals should not require legal representation in
order to present their case to the Tribunal. However, as the legal complexities increase, so to has the
need for representation. In some cases, unemployed or low income earners may be eligible for
assistance under another scheme.
Where the “claim” is one of discrimination in areas other than employment, it may be made the subject
of civil proceedings like any other claim in tort or (in Scotland) in reparation for breach of statutory
duty.107 Proceedings are brought in the County Court in England and Wales and in the Sheriff Court in
99
100
101
102
103
104
105
106
107
Commission For Racial Equality, Annual Report 2000, pp. 32-33.
s. 43.
s. 47.
s. 54.
s. 55.
s. 56(1).
s. 56(1)(a) and (b).
s. 56(1)(c).
s. 57(1).
30
Scotland.108 All remedies which would be possible had the matter been heard by the High Court or Court
of Session are available, including compensation for injury to feelings. There is no ceiling to the
compensation that a court can award, but awards tend to be lower than those made by Tribunals.109 If a
complainant is unsuccessful they will usually have to pay the other side's legal costs. Legal aid is
available for such non-employment matters. The conciliation services of ACAS are not available in civil
cases. However the parties are free to attempt a resolution with the assistance of representatives or
advocates. If the CRE has been asked to assist, a complaints officer may attempt conciliation. In 2000
CRE officers settled 83 cases at an early stage of the process for a total sum of UKL 418,320.110
Various agencies in the UK can provide advice to complainants. In some cases, they may also provide
legal representation. Broadly these organisations are:


a local racial equality council;
a citizens advice bureau or another local advice service, a complainant aid body or a law
centre;

a trade union (if the incident is related to work, there is a union at the workplace, and the
complainant is a member); and

the nearest CRE office.
The CRE is bound by law to consider all applications for assistance in cases of alleged discrimination.
The CRE does not have the resources to support every case, but everyone who applies receives some
preliminary advice. Decisions to support a case are usually made on the basis of the strength of the
case, but other factors also come into play, such as whether or not the case meets the CRE’s priorities;
whether the applicant already has, or could have, access to alternative representation; and if the CRE
believes it is reasonable to expect an applicant to pursue their case without its help. The CRE expects
trade unions to advise their members on discrimination claims and will refer applicants who are trade
union members to their union, in the first instance. The Race Relations Act sets out three criteria for use
by the CRE in deciding which cases to support. The criteria are:111

cases that test a point of law;

cases that are too complex for an individual to deal with on their own; and

cases that deserve any other special consideration.
In exercising its discretion, the CRE will also take into account:





whether the case has a reasonable chance of success;
whether the case falls within certain priority areas;
the likely costs of supporting the case;
whether help is available from other sources; and
whether the applicant is able to continue without CRE help.
Once an application for assistance is received, a CRE complaints officer contacts the complainant to
make an appointment for an interview if necessary. The purpose of the interview is to get a fuller picture
of the case, and to explain CRE and legal procedures.
Where appropriate, the CRE complaints officer assists a complainant to complete the relevant forms
and to collect the evidence needed to prove the case. If the case is against an employer, the complaints
officer will also try to settle the case through ACAS on behalf of the complainant if appropriate.
All decisions on all applications are made by a committee of CRE Commissioners (the Legal
Committee), which meets every six weeks. Decisions by the committee are final. The committee usually
makes two decisions on each application:
108
109
110
111

An initial decision on advice and assistance: as long as the complaint falls within the scope of
the Race Relations Act, and is not outside the time limits set by the tribunals and courts, a
complainant will initially be offered advice and assistance. Complainants are notified within two
months whether the CRE can offer advice and assistance, pending a final decision on
representation.

A final decision on legal representation: this depends on the CRE’s view of the merits of the
case, as demonstrated by the available evidence from both sides, and on fulfilment of the other
criteria for supporting a case (see above). The CRE complaints officer will assist complainants
to gather the evidence and prepare the case where appropriate. Until a firm offer of legal
representation is made from the CRE the complainant must be prepared to take full
responsibility for its progress. Legal representation will be subject to certain conditions, which
s. 57(2).
In the past damages had been caped at UKL 11,000.
Commission For Racial Equality, Annual Report 2000, p. 13.
s. 66.
31
the complainant will be asked to agree with. In general, complainants are notified within four
months whether the CRE can offer legal representation. Delays can occur for various reasons;
for example, where the other side fails to cooperate in responding to the complainant’s
allegations.
If the CRE is unable to offer assistance or legal representation, reasons are provided for this. The
complainant may continue to take the case to the tribunal or court without the CRE's help. The CRE
refers complainants to other agencies or solicitors who may be able to help.
In 2000, around eleven thousand people approached the CRE in person or by telephone, for advice
about their complaints. One thousand five hundred and fifty three made formal applications for
assistance. Of those, full representation was offered to 164 applicants and 148 received limited
representation. CRE secured 77 out of court settlements. A further 18 cases were successfully heard at
tribunals and courts. Twenty-two cases were dismissed.112
CRE Legal Follow Up
CRE also seeks to follow up all cases which have resulted in significant findings of racial discrimination,
whether or not the CRE provided full representation. The purpose is to prevent further breaches of the
Act. In 2000 CRE considered 2,702 employment tribunal decisions. Sectors which caused particular
concern, such as construction and security companies, were followed up and agreed to make revisions
to their equal opportunities policies.
We were advised that the CRE generally tries to follow up cases where courts have found in favour of
complainants and made orders other than compensation, to find out if the respondent has made
changes. If changes have not been made, the CRE may approach the organisation informally,
requesting compliance. If the respondent does not comply, the CRE can consider launching a formal
investigation. In 2000, 18 preliminary inquiries were dealt with. As a result of these inquiries, successful
working relationships and agreements designed to prevent or eliminate discriminatory practices, were
achieved in a range of sectors, including local government, broadcasting and the medical profession.
Formal investigations
The Commission may on its own initiative conduct formal investigations and it may be required to do so
by the Secretary of State. Formal investigations can be carried out for any purpose connected with the
Commission's duties.113 A formal investigation can occur as a result of a number of adverse findings
against a respondent. Even where there are no court or tribunal findings, the CRE may be notified of an
institutional issue and undertake preliminary investigations. The CRE may then determine to launch a
formal investigation.
For every formal investigation there must be terms of reference, and a number of requirements must be
fulfilled before the Commission can embark on an investigation.114 There is no restriction (other than that
implied in the Commission's duties) as to what matters the terms of reference of a formal investigation
may include. The CRE makes application to the County Court to approve the terms of reference and
launch the investigation on those terms.
An investigation may be undertaken generally into an organisation or industry or it may be in relation to
specific named persons. Unless the terms of reference confine the investigation to the activities of
named persons (in which case those persons must be given notice of the holding of the investigation),
the Commission is required to give 'general notice' of the holding of the investigation (eg. by taking
space in a newspaper). Where the investigation is confined by its terms of reference to the activities of
named persons, and the Commission proposes to inquire into whether such a person has committed an
unlawful act, the Commission is required to inform the person of its belief that they may have committed
an unlawful act. The Commission must also inform the person of the proposal to investigate the act and
it must offer them the opportunity of making oral and/or written representations.
The Act also gives the CRE broad powers to require production of information.115 Where a person fails
to comply with a notice requiring the production of information, or where the Commission has
reasonable cause to believe that the person intends not to comply with it, the Commission can apply to
a designated county court or a sheriff court for an order requiring compliance.
112
113
114
115
Commission For Racial Equality, Annual Report 2000, p. 13.
s. 48(1).
s. 49(1) and (2).
s. 50.
32
Following (or during) a formal investigation, the Commission may recommend changes in practices or
procedures for the purpose of promoting equality of opportunity and/or good relations between persons
of different racial groups. It is also open to the Commission to make recommendations to the Secretary
of State for changes in the law.116
Examples of use of formal investigation power
In November 2000 the CRE announced its decision to conduct a formal investigation into the Prison
Service. The decision followed concerns regarding the murder of Zahid Mubarek at HM Young Officers
Institution Feltham; findings by an Employment tribunal in the case of Claude Johnson, a Brixton Prison
auxiliary officer; and the findings of the Chief Inspector of Prisons regarding the privately run prison,
Parc. The investigation has broad terms of reference.117
In July 2000 a formal investigation was made into staffing arrangements at the Crown Prosecution
Service between 1990 and 2000. The decision to undertake the investigation was made in light of
information suggesting that racial segregation persists within the Croydon branch and that management
have failed to take effective action to end it. The investigation found the allegations that staff were
segregated to be substantiated. The DPP accepted the CRE findings and agreed on a 5-year plan to
rectify the situation.
Non-discrimination notice
If, in the course of a formal investigation, the Commission becomes satisfied that a contravention of the
Race Relations Act has occurred, it is empowered to serve a non-discrimination notice on the person
concerned.118 A non-discrimination notice requires the person on whom it is served not to contravene
specified provisions of the Act. In addition to this primary requirement the notice:
116
117
118
119

will require the recipient, where compliance with the primary requirement involves changes in
his practices (or any other change), to inform the Commission when the changes are made and
what they are, and also to take reasonable steps to make the changes known to persons
concerned (eg. to employees);

may require specified information to be furnished to the Commission so that compliance with
the notice can be monitored, and it may specify how and when the information should be
supplied for a period of 5 years.119
s. 51(1).
The investigation is examining the nature and frequency of incidents of racial discrimination
occurring in prison, the nature and frequency of complaints of alleged racial discrimination
by prison staff and prisoners and any barriers that prevent such complaints being made, the
way that incidents and complaints of racial discrimination in relation to prison staff and
prisoners are investigated and dealt with by prison governors and prison officers, the nature
and effectiveness of action, if any, taken by governors and prison officers in response to
incidents and complaints, the circumstances leading to the murder of Zahid mubarek in HM
Young Officers Institution Feltham, and any contributing act or omission on the part of the
Prison Service, references in reports on individual prisons by her majesty’s Chief inspector of
Prisons to (a) the investigation by prison governors and prison officers of incidents or
complaints of racial discrimination, (b) action to follow up such incidents, (c) promotion of
racial equality and good race relations and (d) any standards of such investigation and follow
up that have been set for the Prison service as a whole, and the response by Prison governors
to any such reference in reports of HM Chief inspector of prisons.
s. 58(5). The Commission may not serve a notice on a person unless it has first notified that,
for specified reasons, it is contemplating doing so, offered an opportunity to make written
and/or oral representations within a specified period of not less than 28 days, and taken into
account any representations so made.
s. 59. The recipient of a non-discrimination notice has a right of appeal against any
requirement of the notice on the ground that the requirement is unreasonable, either because it
33
The significance of a non-discrimination notice is that, when final, it renders the recipient liable for the
next five years, should it persist in committing unlawful acts, to proceedings by the Commission for an
injunction in the High Court (if a private respondent) or judicial review (if a public respondent). 120
Example of use of non-discrimination notice
On 5 December 2000 the CRE served a non-discrimination notice against Hackney Council following a
two-year period during which the CRE had relied on an agreement with Hackney to deliver change. The
agreement had been reached following a finding of unlawful discrimination in the wake of a formal
investigation that arose following a large number of successful tribunal cases against the Council. The
notice requires the council to report to the CRE over the next five years. If Council does not comply, it
will face court action.
Persistent discrimination
The Commission has certain powers to deal with persistent discrimination. These powers are available
to deal with the situation in which a person on whom a non-discrimination notice has been served or
against whom a court or tribunal finding has been made seems to the Commission likely, unless
restrained, to contravene the Act. In this situation, the Commission may seek an injunction or order from
a designated county court or a sheriff court.121
Special enforcement arrangements in relation to discriminatory practices and advertisements,
and pressure and instructions to discriminate
In addition to its general powers and functions in relation to the enforcement of the Act, the Commission
has special powers and functions in relation to the provisions dealing with discriminatory practices and
advertisements, and pressure and instructions to discriminate. Only the Commission may institute legal
proceedings in respect of contraventions of these provisions.
The formal investigation and non-discrimination notice procedures (but not the persistent discrimination
procedure) are available to the Commission to deal with discriminatory advertisements, and pressure
and instructions to discriminate. The Commission also has special powers to institute legal proceedings
for such contraventions of the Act. These proceedings may be:
(a) an application for a decision whether the alleged contravention occurred;
or
(b) in order to prevent a further contravention, an application to a designated county or to a
sheriff court for an injunction or order.122
Unlike the persistent discrimination procedure, these powers are available whether or not the person
concerned is the subject of a non-discrimination notice or a court or tribunal finding.
Codes of practice
The Act provides that the Commission may issue codes of practice containing guidance to assist with
the elimination of discrimination in the field of employment and the promotion of equality of opportunity
in that field between persons of different racial groups. The CRE is required to consult on the
development of the Codes. They are laid before Parliament. Any code issued under the Act is
120
121
122
is based on an incorrect finding of fact or for any other reason. Appeal is to the industrial
tribunal if it is an employment matter, and to the county court of sheriff court for other
matters.
s. 62.
s. 62(1).
s. 63(1) and (2).
34
admissible in evidence and may be taken into account by the tribunal or court. The CRE has developed
a statutory Code and series of guidelines to assist the public sector to comply with their general and
specific duties.
Measures to address gender discrimination in the UK
The Equal Opportunities Commission was established under the Sex Discrimination Act in 1975. It is set
up as an independent statutory body to work towards the elimination of discrimination on the grounds of
sex or marriage, to promote equality of opportunity for women and men, to keep under review the Sex
Discrimination Act and the Equal Pay Act and to provide legal advice and assistance to individuals who
have been discriminated against.
The Sex Discrimination Act
The Sex Discrimination Act 1975 (SDA) prohibits sex discrimination against individuals in the areas of
employment, education, and the provision of goods, facilities and services and in the disposal or
management of premises. It also prohibits discrimination in employment against married people. It is not
unlawful to discriminate against someone because they are not married. There are also provisions
prohibiting discrimination on the grounds of gender reassignment in the employment field with certain
exceptions. Victimisation because someone has tried to exercise their rights under the Sex
Discrimination Act or Equal Pay Act is prohibited. The Sex Discrimination Act applies to women and
men of any age, including children.
There are some “positive action” exceptions allowing discrimination in training, or encouragement to
apply for particular work in which members of the relevant sex are under-represented.
The Equal Pay Act
The Equal Pay Act 1970 (EPA) gives an individual a right to the same contractual pay and benefits as a
person of the opposite sex in the same employment, where the man and the woman are doing:
 Like work; or
 Work rated as equivalent under an analytical job evaluation study; or
 Work that is proved to be of equal value.
The employer will not be required to provide the same pay and benefits if it can prove that the difference
in pay or benefits is genuinely due to a reason other than one related to sex.
Employment related claims including equal pay claims are brought in the employment Tribunal. Other
claims are brought in a county court in England and Wales or in a sheriff court in Scotland.
European Union and gender equity
The European Union (EU) appears to play an important role in advancing issues of gender equity. As
discussed below, European Union law is part of the domestic law in England, Wales and Scotland
because of the European Communities Act 1972. The effect of this is that UK tribunals and courts must,
wherever possible, interpret domestic law in accordance with EU law. Where EU law has direct effect,
this will take precedence over domestic law and individuals will be able to rely on EU law where
domestic law does not provide a remedy. EU law has direct effect in relation to gender issues in the
following cases:

Any individual can rely on A141 (ex A119) Treaty of Rome in equal pay cases which provides that
men and women should receive equal pay for equal work; and

Individuals bringing a claim against an emanation of the state (which includes employers in the
public sector) can rely on provisions of EU Directives where those provisions are: sufficiently clear
and precise; unconditional and unqualified; and not subject to further implementing measures.
There are a number of EU Directives that deal with gender equity issues.123
123
See: Equal Pay Directive (75/117): This provides that all discrimination on
the
ground of sex in respect of all aspects of pay should be eliminated.
35
Work and family
From a policy perspective, of interest was the position of the Commission in relation to the role of the
Commission and the work and family debate. The Commission has made it a priority to move away from
being seen as an organisation for women and towards a “gender” organisation which also represents
the interests of men. In relation to the work and family debate, the EOC takes the view that the debate
should centre on work and life balance. While the Commission states that there is no evidence to
suggest that there is any real backlash regarding employers’ accommodation of people with family
responsibilities, the Commission’s view is that it is an equity issue for those without family
responsibilities. The Commission’s view is that all workers should be afforded flexibility and that issues
of the redistribution of work arise.
In relation to provision of arrangements to allow workers to accommodate their family responsibilities,
there is legislation in the employment sphere which will impose on employers a “duty to consider”
requests for flexible work arrangements from parents with children under 6 years of age, or in the case
Equal Treatment Directive (75/207): This provides that there should be no
discrimination on grounds of sex, either directly or indirectly, nor by reference
to marital or family status, in access to employment, training, working
conditions, promotion or dismissal.
Social Security Directive (79/7): This requires equal treatment of men and
women in statutory schemes providing protection against sickness, invalidity,
old age, accidents at work and occupational diseases and unemployment. It
does not require equalisation of pension ages.
Occupational Social Security Directive (86/378): This aimed to implement
the principle of equal treatment for men and women in occupational social
security schemes.
Pregnant Workers Directive (92/85): This requires minimum measures to
improve the safety and health at work of pregnant women and women who
have recently given birth or are breastfeeding, including a right to maternity
leave.
Working Time Directive (93/104): This provides for minimum health and
safety requirements for the organisation of working time. It requires minimum
periods of daily and weekly rest and annual leave, breaks and maximum
weekly working time. It contains provisions relating to night work, shift work
and other patterns of work.
Parental Leave Directive (96/34): This provides for all parents of children up
to a given age to be defined by Member States, to be given up to 3 months'
unpaid parental leave. It also provides for individuals to take unpaid time off
when a dependant is ill or injured.
Burden of Proof Directive (97/80): This required any necessary changes in
Member States' judicial systems to ensure more effective implementation of
the principle of equal treatment.
Part-time Workers Directive (98/23): This prohibits discrimination against
part-time workers unless justified on objective grounds. It requires part-time
workers to receive pro-rata pay and benefits to full-timers. It does not require
a right to work part-time.
Framework Directive on Fixed Term Work (99/70): This aims to prevent
fixed term workers from being less favourably treated than permanent
workers unless the difference in treatment is objectively justified and to limit
the use of successive fixed term contracts. The UK is due to transpose this
Directive into regulations by 10 July 2002.
Framework Directive for Equal Treatment in Employment and
Occupation (2000/78): This requires Member States to implement legislation
prohibiting discrimination on grounds of sexual orientation and religious discrimination by 2
December 2003 and on grounds of age and disability by 2 December 2006.
European Commission Recommendation and Code of Practice on the protection of the dignity of women and men at
work (92/131): This contains recommendations to employers, trade unions and employees on avoiding and dealing with
sexual harassment. A new Directive is soon to come into force regarding sexual harassment.
European Council Recommendation on Childcare (92/24): This recommends initiatives so that the workplace takes into
account the needs of all working parents with responsibility for the care of children.
36
of parents of children with disabilities, children who are younger than 18. The proposed duty was a
recommendation of the Work and Parents Taskforce report published in November 2001. The duty is to
come into force from 6 April 2003.124 Under the duty employees with 26 weeks continuous service may
request a change to the hours they work, a change to the times when those hours must be worked, or to
work from home. Employers must follow a process in arriving at their decision. Employees who are
eligible to request flexible working under the new rights will have the option to take their claim to an
employment tribunal if they think their employer has not followed the correct procedure.
While representing a compromise, it is arguable that this positive duty to consider the needs of
employees with certain carers responsibilities is an important step in promoting equity. For example the
ADB advocated for a duty to attach to employers to accommodate an employee or prospective
employee subject to a defence of unjustifiable hardship in relation to the proposed amendment to the
ADA to introduce discrimination on the ground of responsibilities as a carer. There may also be some
merit in setting out the process to be followed and factors to be considered by employers in reaching a
decision.
The Australian Council of Trade Unions (“ACTU”) has recently announced its intention to launch a test
case regarding work and family. A proposal based on the UK model forms part of the ACTU’s
application. Under the ACTU application parents would be able to apply to vary their hours of work, the
arrangement of their hours of work, or their place of work (including working from home) in order to meet
their parenting responsibilities. Employers could only refuse the application if the employee’s attendance
is critical to the operational requirements of the business.
Measures to address disability discrimination in the UK
The Disability Rights Commission was established in 2000 to administer the Disability Discrimination Act
1995. The DRC provides advice, support and enforcement of the law. It also has a policy, research and
publications capacity. In its first year the DRC handled 65,000 calls. Conciliation is outsourced but like
the other Commissions, the DRC case workers may attempt to resolve a matter on behalf of a
complainant. In the first year the DRC directly supported 41 new cases with the aim of tackling
widespread forms of discrimination and to clarify aspects of the legislation that are untested or unclear.
Positive Obligations
The Disability Discrimination Act defines a disabled person as someone with "a physical or mental
impairment which has a substantial and long-term adverse effect on his ability to carry out normal dayto-day activities". Discrimination has been prohibited in the areas of employment and the provision of
goods and services. The employment provisions provide a positive obligation on employers to make
reasonable adjustments for people with disabilities. The goods and services provisions are being
phased in over time. Treating a disabled person less favourably because they are disabled in the
provision of services has been unlawful since December 1996. Since October 1999, service providers
have had to consider making reasonable adjustments to the way they deliver their services so that
people with disabilities can use them. By 2004 service providers will have a positive duty to make
reasonable adjustments to provide access to people with disabilities.
New duties introduced in 2002, extend the Disability Discrimination Act to cover every aspect of
education. The Special Educational Needs and Disability Act 2001 amends the Disability Discrimination
Act Part 4 to prevent discrimination against people with disabilities in their access to education. Chapter
1 of the new Part 4 of the Disability Discrimination Act sets out the requirements on those providing
school education. The duties make it unlawful to discriminate, without justification, against pupils and
prospective pupils with disabilities, in all aspects of school life.
There are two key duties involved in ensuring that schools do not discriminate against pupils with
disabilities. These are:

not to treat pupils with disabilities less favourably; and

to take reasonable steps to avoid putting pupils with disabilities at a substantial disadvantage.
This is known as the reasonable adjustments duty.
The Act requires local education authorities and schools in England and Wales to draw up accessibility
strategies and accessibility plans to improve access to education at schools over time. The strategies
124
Work and Parents Taskforce Report, About Time: Flexible Working, November 2001. For
information on the new flexible working provisions see the Equal Opportunities Commission web site at www.eoc.org.uk
37
and plans have to address three distinct elements of planned improvements in access for pupils with
disabilities:

improvements in access to the curriculum;

physical improvements to increase access to education and associated services; and

improvements in the provision of information in a range of formats for pupils with disabilities.
The planning duties also update the requirements on governing bodies to provide information in their
annual report about arrangements for pupils with disabilities at the school. The governing body of a
maintained school, in its annual report to parents, must explain the admission arrangements for pupils
with disabilities, how the governing body helps pupils with disabilities gain access and what it will do to
make sure they are treated fairly. The new Part 4 of the Disability Discrimination Act extends these
duties.
The DRC also has the power to develop Statutory Codes and has developed Codes in relation to
Education and providers of services.125
Other initiatives
The DRC advocated for the power to assist people to bring matters under the Human Rights Act. Such a
power was not granted. However the DRC distributed 6,000 copies of the report “The Implications of the
Human Rights Act for Disabled People.” The report highlights areas of concern raised by the Act such
as people with disabilities being denied the right to privacy in institutions, not receiving life-saving
treatment because of other’s judgements about the value of their lives, being denied the equipment and
assistance required to live in dignity at home and those with learning disabilities not being allowed to
make their own healthcare decisions.126
The DRC’s strategic plan usefully sets out the objectives of the organisation for 2001-2004.127 Their plan
is to spend UKL 11 million per year, delivering those objectives and employing 150 staff. The DRC plans
to directly support around 75 cases annually, to complete at least one major formal investigation and to
complete a legislative review by 2002.
The Disability Rights Commission has launched a public consultation on recommendations for changes
to the Disability Discrimination Act - its first review of the legislation. The recommendations include:

making it easier for people with disabilities, particularly mental health service users, to get
protection under the DDA;

preventing employers from making disability-related inquiries before a job is offered (except in
a few specified circumstances); and

calling for an EU Directive to prevent discrimination on the grounds of disability in relation to a
broad range of goods and services.128
The utility of public duties and the UK enforcement mechanisms
In the UK there was a focus on the “modernisation” of Britain’s public services. Good race relations and
increasingly, equality generally, is seen as central to the program for change. Accompanying that is the
notion that there is a “duty” upon the public sector to achieve equality.
The UK model goes beyond the current mechanisms in NSW. The UK general and specific duties,
together with the Code of Practice which details the means by which bodies are to meet their duties,
give a clear basis for the integration of racial equality issues in all aspects of employment and service
delivery. In addition, the CRE is empowered to take enforcement proceedings where there is non
compliance with a duty.
The Disability and Equal Opportunity Commissions are of the view that the positive duty should be
extended to cover other grounds. However there have been some criticisms that the race duty is
perhaps a bit too focused on process rather than outcomes. None the less, it is a model which goes
beyond mere reporting and makes real attempts to tackle systemic issues.
125
126
127
128
Codes are available on the DRC’s web site, www.drc-gb.org
Disability Rights Commission Annual Review 2000-2001: Championing change for disabled
people, p. 19.
Disability Rights Commission, Strategic Plan 2001-2004.
Responses to the consultation were due in August 2002.
38
Some argue that the equality duty in section 120 of the Government of Wales Act 1998 has a greater
emphasis on outcomes. That statutory duty requires the government to:
make appropriate arrangements with a view to securing that its functions are exercised with
due regard to the principle that there should be equality of opportunity for all people.
The Welsh Assembly’s equality provision applies to all devolved functions of government in Wales,
which includes education, economic development, health, local government, social services, planning,
transport, housing and industry. In addition, a similar statutory clause requires the Welsh Assembly to
adhere to an equality duty in the conduct of all its business.
The duty has been described as an “absolute duty” as there are no derogation clauses that apply to it.
Academics have stated that in effect, it confers positive rights on the citizens of Wales. It has also been
described as a so-called “fourth generation” equality law as it is a legal imperative that required the
Welsh Assembly Government to effectively promote equality of opportunity.129 In addition, under the
equality duty the Assembly can be subject to judicial review in the courts and may be investigated by the
Welsh Administration Ombudsman, if groups or individuals feel that the Assembly has failed to comply
with its terms.130
It is argued that this legal duty goes beyond the statutory requirements placed upon other UK
legislatures as it effectively requires government to be pro-active. A recent report of the effects of the
duty since its enactment concludes that the statutory duty is the most significant factor driving the
equality agenda in Wales.131 The report details a wide range of reforms and initiatives which have been
introduced as a result of the provision. Such initiatives include undertaking an equal pay audit on the
grounds of gender, disability and ethnicity and negotiating a pay deal in the public sector, addressing
institutional racism following from the Lawrence Inquiry focusing on staff recruitment, promotion and
development, provision of training to staff, use of contractual terms and contract compliance in relation
to equality in respect of goods and services provided and the employment practices of those that the
legislature does business with and reforming policy processes.132
The report concludes that there would be benefits in having a positive duty to promote equality across
the UK. The report states that in framing such legislation it would be useful to build upon the nonprescriptive, all embracing approach of the Welsh equality duty model as well as the approach of the
Race Relations Amendment Act 2000 which places a positive duty on public authorities to promote
racial equality and establishes specific enforceable duties.
There is also strength in the powers afforded Commissions to undertake formal investigations and issue
non discrimination notices. However some agencies discussed the limitations of the use of the power
where a respondent choses to fight the issuing of the notice. The Commission’s actions are subject to
judicial review and in some cases large sums of money can be spent defending a decision to commence
an investigation. It was suggested that a less prescriptive law regarding the commencement of
investigations may be more effective.
The role of international measures in effecting change in the UK and across Europe
The more pro-active models present in the UK are the result of a number of factors. Domestic matters
have been outlined above, but there has also been a substantial role played by the European Union and
international conventions to advance equality measures. We discussed the role of the European Union
in progressing anti-discrimination measures across Europe with the Anti-Discrimination, Employment
and Social Affairs Directorate of the European Commission. Recent Directives from the European
Commission mean that the UK and other member States must go further to enact a number of reforms
including new grounds. Of particular interest was the relationship between the economic benefits which
attach to membership of the European Union and the capacity of the European Union to advance social
policy.
129
130
131
132
Institute of Welsh Affairs An Absolute Duty: Equal Opportunities and the National Assembly
for Wales, June 2002, p. 8.
ibid.
ibid.
ibid.
39
European Convention on Human Rights
The European Convention on Human Rights was adopted in 1950 and was ratified by the United
Kingdom in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms
in the UN Declaration on Human Rights, adopted in December 1948. The Convention is a treaty of the
Council of Europe, which was established after the end of the Second World War with the aim of
protecting Europe against totalitarianism and a repeat of the wartime atrocities. The Council of Europe is
separate from the European Union (EU). The Council of Europe has its own Court of Human Rights in
Strasbourg.
The Convention on Human Rights is also intended to protect human rights in countries that are
democratic by seeking to secure a fair balance between the general interest of society and the
protection of the individual’s fundamental rights. It was a first step taken by the governments of
European counties for the collective enforcement of certain rights stated in the Universal Declaration. 133
Human Rights Act 1998 UK
The UK Parliament decided that rights under the Convention should be enforceable in the UK courts
and tribunals. The Human Rights Act 1998 came fully into force in the UK on 2 October 2000 to allow
cases concerning those rights given under the European Convention on Human Rights to be dealt with
by British courts.134 Prior to the Act, if an individual wished to challenge the British Government for noncompliance with the Convention, he or she generally had to go to the European Court of Human Rights
in Strasbourg, but only after showing that there was no remedy in British courts. This meant that a case
could take several years to be decided and was expensive.
The main provisions of the Human Rights Act mean that:




it is unlawful for public authorities to act in a way which is incompatible with convention
rights.135 A case may be brought in a UK court or tribunal against the authority where it does
so. However it is not unlawful if as a result of a provision of primary legislation it could not have
acted differently;
courts are required, as far as possible, to interpret all legislation, whenever enacted, in a way
which is compatible with Convention rights. Where it is not possible to do so, a court may:

quash or disapply subordinate legislation or

if it is a higher court, give a declaration of incompatibility for primary legislation
thereby triggering a new power allowing a Minister to make a remedial order to
amend the legislation to bring it into line with the Convention rights;
UK courts and tribunals are to take account of the case law of the Court and the Commission in
Strasbourg and the Committee of Ministers. They will also be bound to develop the common
law compatibly with the Convention rights; and
when introducing legislation, Government Ministers must make a statement about its
compatibility with Convention rights.
If it is not possible for a court to reconcile the Convention with an Act of Parliament, the Act remains law.
Judges in Britain will have no power to declare legislation unconstitutional. This is seen to safeguard the
Sovereignty of Parliament. However, if one of the higher courts has declared primary legislation
incompatible with the Convention, a new power is triggered allowing a Government Minister to amend
the legislation to bring it into line with the Convention rights without waiting for a new Act of Parliament.
133
134
The Human Rights Act 1998: Guidance for Departments, 2000, p. 5.
Before the Act came fully into force all staff of courts and tribunals were to be trained
to
135
enable them to deal with Convention points in the cases that came before them.
Public authorities were to review their legislation and procedures for compliance with
the Convention rights and train staff. A Human Rights Task force, chaired by a Home
Office Minister, was set up to assist the Government in the preparations for
implementation of the Act.
The phrase “public authority” is not expressly defined in the Human Rights Act but
would
include Government Departments; local authorities; police, prison, immigration
officers; public prosecutors; courts and tribunals; non-departmental public bodies; and
any person exercising a public function.
40
A person, non-government organisation, group of individuals and in some cases a company or other
body who believes that his or her Convention rights have been breached by a public authority can seek
redress in the courts. He or she is able to sue the Public Authority under the Act, or rely on his or her
Convention rights in any other proceedings involving the Public Authority e.g. judicial review, criminal
trial.
Individuals will still be able to bring a case in Strasbourg, if they are not satisfied with the outcome of
their case in Britain or if they have “exhausted all domestic remedies” first. This could occur if an Act is
declared to be incompatible by a UK court but Parliament fails to amend the Act.
The rights of the Convention referred to in the Human Rights Act are:136












Article 2 Right to life.
Article 3 Freedom from torture and inhuman or degrading treatment or punishment.
Article 4 Freedom from slavery and forced or compulsory labour.
Article 5 Right to liberty and security of person.
Article 6 Right to a fair and public trial within a reasonable time.
Article 7 Freedom from retrospective criminal law and no punishment without law.
Article 8 Right to respect for private and family life, home and correspondence.
Article 9 Freedom of thought, conscience and religion.
Article 10 Freedom of expression.
Article 11 Freedom of assembly and association.
Article 12 Right to marry and found a family.
Article 14 Prohibition of discrimination in the enjoyment of Convention rights.

Article 1 of Protocol 1:
Right to peaceful enjoyment of possessions and protection of property.

Article 2 of Protocol 1:
Right to education.

Article 3 of Protocol 1:
Right to free elections.

Articles 1 and 2 of Protocol 6:
Right not to be subjected to the death penalty.137
While representing a political compromise of sorts, none the less the Human Rights Act has potential for
increasing the protection of human rights in the UK. The decisions and actions of public authorities may
now be subjected to greater scrutiny. For example, while the UK system of judicial review is largely
focused on whether a decision maker acted “unreasonably”, the Strasbourg Court has traditionally
looked at the substance and merit of a matter and seeks to give a practical and effective interpretation to
the rights. In addition, terms and expressions in the Convention are to be given the same meaning for all
the countries bound by the Convention, not simply the meaning given in the UK. These principles of
interpretation adopted by the Strasbourg Court, are to be followed by the UK courts and tribunals. 138
The European Union
Overview
The UK is a member of the European Union. The European Union was established after the 2 nd World
War largely to pursue economic objectives. The process of European integration was launched on 9
May 1950 when France officially proposed to create “the first concrete foundation of a European
federation”. Six countries (Belgium, Germany, France, Italy, Luxembourg and the Netherlands) joined
from the very beginning. Today, after four waves of accessions (1973: Denmark, Ireland and the United
Kingdom; 1981: Greece; 1986: Spain and Portugal; 1995: Austria, Finland and Sweden) the EU has 15
Member States and is preparing for the accession of 13 eastern and southern European countries. 139
The European Union is not a new State replacing existing ones nor is it comparable to other
international organisations. Its Member States delegate sovereignty to common institutions representing
136
137
138
139
Article 1 is introductory. Article 13 is not included in the Act.
A protocol is a later addition to the Convention.
The Human Rights Act 1998: Guidance for Departments, 2000, p. 8.
See the EU’s web site @: http://europa.eu.int
41
the interests of the Union as a whole on questions of joint interest. All decisions and procedures are
derived from the basic treaties ratified by the Member States.
Principal objectives of the Union are:

Establish European citizenship (Fundamental rights, Freedom of movement, Civil and political
rights);

Ensure freedom, security and justice (Cooperation in the field of Justice and Home Affairs);

Promote economic and social progress (Single market, Euro, the common currency, job
creation, regional development, environmental protection);

Assert Europe's role in the world (Common foreign policy and security, role of EU in the world).
The EU is run by five institutions:





European Parliament (directly elected by the peoples of the Member States. The members
group in Political parties rather than countries);
Council of the Union (composed of the governments of the Member States, it is the
Community's legislative body. For a wide range of Community issues, it exercises that
legislative power in co-decision with the European Parliament);
European Commission (initiator of proposals for legislation; guardian of the Treaties and takes
steps to enforce compliance; manager and executor of EU poicies and of international trade
relations);
Court of Justice (compliance with the law); and
Court of Auditors (management of the EU budget).
Community law (regulations, directives and decisions) must be complied with by Member States and in
the case of directives and decisions, must be implemented into national law. Regulations generally have
effect in national law without the need for a Member State to take measures to implement them. The
European Court of Justice in Luxembourg may rule on Community law matters.
European Court of Justice
Community law is directly applicable in the courts of all the EU Member States. In this context, the role
of the Court of Justice is to provide the judicial safeguards of the Community legal system. The Court of
Justice is to ensure that EU law is observed and upheld in the interpretation and application of both the
Treaties and all Community activities.
The Court of Justice has responsibilities and powers in relation to:





disputes between Member States;
disputes between the EU and Member States;
disputes between institutions;
disputes between individuals and the EU; and
opinions on international agreements.
Various forms of action may be taken before the court including:






proceedings for failure to fulfil an obligation;
proceedings for annulment;
proceedings for failure to act;
actions for damages;
appeals; and
preliminary rulings (assist in the uniform interpretation of Community law. They are given when
national courts refer disputes pending before them to the Court of Justice).
What happens if a Member State does not comply with Community Law?
A major responsibility of the European Commission is to ensure that Community law is applied properly
by the Member States. If it is considered that a Member State does not fulfil its obligations under the
Treaty, the Commission, mainly through the “failure to act” procedure, can initiate proceedings by
requiring the State concerned to submit its observations. If these do not satisfy the Commission, a
reasoned opinion is delivered, requiring the matter to be resolved by a specific date. After that
Commission action in this respect may also include legal proceedings before the Court of Justice. Under
certain circumstances, the Commission can fine individuals, firms and organisations for infringing Treaty
law.
An example in the UK context is action taken by the union for skilled and professional people. That
union complained to the European Commission that the Working Time Directive of the EU has been
“unlawfully and inadequately” implemented in the UK. The Commission upheld the union’s complaint
42
and confirmed that it was the responsibility of employers to ensure that the legal minimum of breaks and
holidays are taken by workers. Under Britain’s interpretation of the Directive, workers can “choose” not
to take breaks and holidays. Unions say this has pressured employees into working more hours than
they wish to. The Commission also stated that the system whereby workers can “volunteer” to work
additional hours above the statutory 48 hour week limit is also unlawful. The government had until the
end of June 2002 to respond to the Commission’s letter. If the government satisfies the Commission that
UK law has been brought into line with the Directive or that the Commission’s assessment is incorrect
proceedings will be dropped. If the government does not take remedial action the case may be taken by
the Commission to the European Court of Justice.140
Role of the EU in advancing anti-discrimination protections
The EU may only act where it has been granted power to do so under the Treaties. Until more recently,
the EU did not have the power to act in relation to fundamental rights. It was not until 1999 when the
Treaty of Amsterdam came into force that anti-discrimination was included as a basic founding principle
of the Union. Article 13, approved as part of the Amsterdam Treaty, provided the European Union with a
legal basis to take action to combat discrimination on grounds of racial or ethnic origin, religion or belief,
disability, age or sexual orientation.
The general principles of Article 13 are not themselves legally binding. To give effect to Article 13, the
Council of Ministers approved two directives proposing minimum standards of legal protection against
discrimination throughout the European Union and an Action Programme to support practical efforts in
the member states to combat discrimination. All proposals were unanimously adopted in record time. 141
As a result, there will be, for the first time, a comprehensive set of anti-discrimination measures and a
minimum standard of legal protection against discrimination that will apply across the European Union.
The Article 13 package



An Employment Directive, which requires member states to make discrimination unlawful on
grounds of religion or belief, disability, age or sexual orientation in the areas of employment and
training.
A Race Directive, which requires member states to make discrimination on grounds of racial or
ethnic origin unlawful in employment, training, education, access to social security and health care,
social advantages, access to goods and services, including housing.
An Action Programme, to run from 2001-6, which will allocate 100 million euros over six years to
fund practical action by member states to promote racial equality in all the areas covered by the two
directives.
Both directives require member states to introduce or amend their laws and procedures to comply with
the directives. Compliance with the Race Directive is required by 19 July 2003. Compliance with the
Employment Directive in relation to religion and sexual orientation is required by 2 December 2003, and
in relation to disability and age by December 2006.142 From the date for compliance, member states will
also be expected to ensure that their laws, regulations and administrative provisions, as well as
employment contracts and collective agreements, are non-discriminatory. States wishing to become
members of the EU will have to show how they comply with the Directives in order to be considered.
Key aspects of the Directives are as follows:

140
141
142
Direct and indirect discrimination is defined. The definition of direct discrimination is very similar to
that in UK legislation. The definition of indirect discrimination is broader than the one in current UK
law. The test for indirect discrimination is whether:
“an apparently neutral provision, criterion or practice would put persons of a racial or ethnic
origin at a particular disadvantage compared with other persons.”
The directives provide that indirect discrimination will be unlawful unless the provision, criterion or
practice “is objectively justified by a legitimate aim and the means of achieving that aim are
appropriate and necessary.”
Equal Opportunities Review June 2002, No. 106, p. 3.
European Commission The fight for equality: Action by the European Community to combat
discrimination, Employment and Social Affairs, Luxembourg.
There is some concern amongst the lesbian and gay community in the UK that the directives
do not go far enough. Specifically, discrimination on the ground of sexual orientation will only
be prohibited in employment. Gay and lesbian community groups are advocating for the
extension of rights to all areas of public life.
43

Harassment is to be regarded as a form of discrimination. It is defined as unwanted conduct related
to any of the grounds covered by the directives, or conduct which is intended, or has the effect of,
violating an individual's dignity and creating a humiliating, intimidating or hostile environment.

Burden of poof: Of particular note is that the directives recognise that it is often very difficult for
complainants to obtain evidence in discrimination cases, where the relevant information is often in
the respondent's hands. Both directives state that when a complainant establishes before a court or
tribunal “facts from which it may be presumed that there has been direct or indirect discrimination,”
it is for the respondent to prove that discrimination has not occurred.

Victimisation: Both directives include protection against victimisation as a consequence of
complaining of discrimination, or bringing or taking part in discrimination proceedings.

Positive action is permitted: Both directives recognise that equal treatment may not be sufficient to
overcome the weight of accumulated disadvantage experienced by discriminated groups. They
permit member states to take positive action measures to “prevent or compensate for” situations of
inequality.

Defence of rights: Both directives enable organisations with an interest in combating discrimination,
including non-governmental organisations (NGOs), to support complainants or to bring proceedings
on their behalf (with their approval).

Bodies to promote equal treatment: In the Race Directive only, there is an obligation on each
member state to designate a body, along the lines of the CRE, to promote racial equality. Such
bodies should have powers to assist victims of discrimination to pursue their complaints, conduct
independent surveys concerning discrimination, and publish independent reports with
recommendations relating to such discrimination.

Third country nationals: Both directives apply to any person who is within a member state when the
act of discrimination occurs. Therefore, neither directive excludes third-country nationals from
protection. Both directives, however, plainly state that discrimination based on nationality is outside
their scope and cannot be used to challenge conditions that a member state applies to the entry or
residence of third-country nationals, and any treatment they receive as a result of their legal status.

Genuine occupational qualification: Member states are permitted to allow difference in treatment on
any of the grounds covered by the directives where the nature of a particular job, or the context in
which it is carried out, justifies this. The Employment Directive permits member states additional
leeway to permit difference in treatment on grounds of religion or belief where the employment is in a
church or other organisation with a religious ethos.

Public information: Both directives require member states to publicise widely both their existing laws
on equal treatment and non-discrimination, in the areas within each of the directives, and any new
measures they adopt to bring their laws in line with the directives.

Social dialogue: Both directives require member states to promote dialogue between both sides of
industry “with a view to fostering equal treatment” including through workplace monitoring, collective
agreements, codes of conduct, research, or exchange of good practice.
Many of these issues have been raised by the ADB as matters requiring reform in NSW. In the Board’s
view the test for indirect discrimination under the ADA requires simplification and a shift of the onus of
proof, the legislation requires amendment to specify harassment as a form of discrimination and there is
a need to make specific allowance for organisations and employers to take positive action or introduce
special measures in order to promote equality of opportunity and address past and present
disadvantage.
Also of interest is that all members of the European Union will be required to establish bodies to
promote equal treatment and that such bodies should have the power to assist complainants. Australian
jurisdictions maintain impartial complaint handling functions which are in contrast to the European trend.
As referred to above, research indicates that such impartiality has been the subject of criticism by
complainants.
44
Changes to UK legislation
A number of changes to UK law will need to be made as a result of the Directives including the
enactment of legislation to prohibit discrimination on the ground of religion, age, disability and sexual
orientation. In relation to race, a number of changes are required including enacting a wider definition of
indirect discrimination, shifting the burden of proof where a prima facie case is established, providing
protection in additional areas, removing exceptions which are not permitted in the directives, permitting
organisations to bring proceedings on behalf of individual complainants such as representative actions,
ensuring that sanctions for unlawful discrimination available to courts and tribunals are “effective,
proportional and dissuasive”, abolishing laws and regulations that are contrary to the principle of equal
treatment, and declaring as null and void any provisions contrary to this principle in individual or
collective contracts, internal rules for public and private organisations, and rules of trade unions and
professional organisations. The UK government is currently undertaking consultation on proposed
changes and has produced a consultation document.143
Canada
In Canada there are a number of pro-active models to assist with the elimination of discrimination. We
were particularly interested in looking at legislative models which included pro-active powers like the
power to initiate complaints. Both the federal Human Rights Act and the province of British Columbia’s
Human Rights Code provided various powers to address systemic discrimination such as the capacity to
initiate a complaint, to be joined as a party to complaints, to act in Tribunal proceedings in the public
interest and to undertake inquiries and reports into discriminatory practices. However a number of
factors have limited the capacity of Commissions to make the best use of those powers. Active
consideration of recommendations for reform were underway during our visit.
Federal legislation
The Canadian Human Rights Commission administers the Canadian Human Rights Act. The Act applies
to all employers and providers of goods, services, facilities and accommodation within the legislative
power of the federal Parliament. Generally that means federal government and governmental agencies,
Crown Corporations, telecommunications, postal service, banks, transport and airlines.
Complaint based system
The current Canadian Federal anti-discrimination legislative scheme has some similarities with the ADA.
Discrimination is not defined in the Act but has been held by Canadian courts to include adverse effect
(what we know as indirect discrimination) and systemic discrimination. The Act provides the
Commission with a complaint handling role in relation to complaints of discrimination including pay
equity. Like the position under the ADA, the Commission must investigate every complaint lodged.
Emphasis is on the conciliation of complaints. If the Commission declines to continue with a complaint,
the rights of the complainant are extinguished. There is no ability for a complainant to require a matter to
be referred for hearing by the Tribunal. Each complaint that is referred has been assessed by the
Commission as warranting consideration by the Tribunal. The Commission then acts in every complaint
referred to the Tribunal in the public interest. The Commission also has the power to initiate a complaint
but disappointingly, has never exercised that power.
Limitations to a complaint based system: Pay Equity
The limitations of a complaint based model to address systemic discrimination was under consideration.
In relation to pay equity, the Human Rights Act provides that it is a discriminatory practice for an
employer to establish or maintain differences in wages between male and female employees employed
in the same establishment who are performing work of equal value.144 In order to obtain redress for pay
inequity, an employee or union must make a complaint of discrimination under the Human Rights Act.
The complaint based scheme has been criticised for a number of reasons; the scheme requires an
employee or union to make a complaint, pay inequity is addressed in a reactive manner resulting in
uneven implementation, there are problems in the interpretation of the legislation, there are long delays
and expenses incurred. Although pay equity cases represent less than 8% of all matters within the
Commission’s jurisdiction that are before tribunals or courts, they absorb about one half of the
143
144
UK Government, Towards Equality and Diversity: Implementing the Employment and Race
Directives: Consultation Document, December 2001.
s. 11.
45
Commission’s total spending on legal services. In 2000-2001, the Commission estimated expenditure of
almost 2 million dollars on lawyers, expert witnesses and research necessitated by pay equity cases in
litigation. Indeed there are cases which have run in the tribunal for more than 7 years.
The litigation has not been without success. A complaint brought against the federal Treasury Board by
the Public Service Alliance of Canada was resolved in 1999 when the government agreed to pay 3.5
billion dollars in back wages and interest to 200,000 current and former public servants, most of whom
were clerks, secretaries, librarians and health care workers, in order to correct long standing wage
discrimination. However the Commission has advocated for reform. In the Commission’s view, pay
equity should be viewed as a human right. There should be a uniform implementation scheme not
dependent upon complaints but one which would apply pay equity consistently across the federal
jurisdiction.145
We also met with members of the Pay Equity Task Force which is reviewing pay equity laws in Canada.
The Task Force is examining the possibility of a more proactive model to address pay inequity in
federally regulated employment. Ontario and Quebec have more pro-active legislation. In Ontario
employers must compare male and female dominated jobs, determine if there is a wage gap and if so
redress and maintain it. The critique against that model is that there is no audit of compliance. There are
also limitations in that comparisons must be made within the same enterprise. The Task Force must
report by March 31st 2003.
Limitations on a complaints based system: complaints other than pay equity
In 2000 the Canadian Human Rights Act Review Panel conducted a review of the Human Rights Act
and made 165 recommendations for reform.146 The Panel pointed to a number of barriers to dealing with
systemic discrimination and effecting equality under the current complaint based system. Long delays
are experienced in relation to complaints dealt with by the Commission and a large backlog of
complaints exits. In addition, powers to initiate complaints have not been used, perhaps because of a
conflict of the various roles played by the Commission which includes impartial complaint handling and
because of the pressure that a back log creates to process individual complaints. One submission to the
Panel stated that:
Resources are currently being diverted from the more systemic oriented tasks of the
Commission to complaint investigations. This reactive method is a bottomless pit. A complaints
based system will never effect significant change or achieve substantive equality. A proactive
approach needs to be taken, by assuring research, education and regulation making powers
receive the funding required. The Commission needs to bring forward cases that will have a
broad impact on disadvantaged grounds, by more actively addressing systemic discrimination
(Canadian Ethnocultural Council).147
The Panel concluded that:
The current process, for resource and other reasons, seems focused on the individual
complaint system. This ties its resources to the priorities of complainants regardless of the
potential benefit to other individuals besides the complainant. This tying up of resources and
the institutional conflicts created by the various roles of the Commission must be resolved so
that the Commission can set priorities in pursuit of the goals of the Act.148
The Panel recommended that a number of tools be implemented to achieve the goals of the Act. In
relation to the reform of the complaints process, the Panel recommended that complainants have direct
access to the Tribunal. Complaints would be lodged directly with the Tribunal and the Commission could
determine whether to become a party to complaints. Alternative dispute resolution would be provided at
the Tribunal by a Tribunal member who would not hear the case if it proceeded to hearing. The Panel
was of the view that the UK and other experience showed that unrepresented litigants are rarely
successful in the discrimination jurisdiction. Accordingly a legal clinic would be set up to provide legal
representation to complainants and provision would also be made for impecunious respondents to be
legally represented.
145
146
147
148
Canadian Human Rights Commission, Time for Action: Special Report to Parliament on Pay
Equity, February 2001, p. 13.
Report of the Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision,
Ontario, 2000.
ibid, p. 13.
ibid, p. 26.
46
The Commission would provide advice to complainants and assist with putting together the initial claim.
The Commission would then consider whether the nature of the case was such that it should be
represented in proceedings. The Commission would have a strengthened policy, educative, research
and code of practice role:
We are recommending a new orientation for the Commission, one that will integrate the use of
the various new tools we recommend, rather than one that finds many of its resources
consumed processing individual complaints which may vary greatly in their impact on the
ultimate goal of advancing equality.
Towards positive duties
Other reforms proposed by the Panel focused on repositioning the legislation as imposing positive
duties upon employers and service providers. The Panel recommended that there should be a duty on
the part of employers and service providers to promote equality and eliminate discrimination in much the
same way that the Canadian Labour Code creates a general duty for employers to ensure the protection
of the safety and health of its employees at work. The duty would be detailed by statutory requirements,
guidelines and best practice codes. There would also be a duty to provide accommodation to the point
of undue hardship. The change in the language of the Act would not change the meaning of
discrimination but rather would signal a change in the approach to attain the purpose of the Act.
The Panel also recommended that the Act require employers with more than 5 employees to have an
“internal responsibility system” to deal with human rights matters. The system would have a number of
elements including management-labour cooperation, polices and programs promoting equality
development, the provision of training, grievance procedures, monitoring, liaison etc. The system would
also deal with the provision of service by the employer to the public. Where the employer could show
that it had an effective internal responsibility system in place for the resolution of complaints, the
Tribunal may dismiss a claim unless the claimant proves that the system failed to deal fully with the
human rights issues raised or failed to provide an adequate remedy.
The Commission also administers the Employment Equity Act. That Act applies to federally regulated
private sector and public sector employers and designated bodies in the public sector which employ
more than 100 employees. The Act requires positive steps to be taken by employers to identify barriers
and implement measures to increase employment of under-represented groups such as women,
members of visible minorities, Aboriginal people and people with disabilities. The federal Commission is
responsible for auditing employers to see if they have complied with the Act. The Commission can take
legal action if the Act is not complied with. Action does not depend on a complaint being lodged.
The Employment Equity Act is a further example of legislation which imposes a positive duty upon
employers. While some of the requirements of process which must be complied with before the
Commission may take enforcement proceedings against an employer have been criticised, the Review
Panel which considered the Act has recommended its retention. The Review Panel stated that:
The EEA is based on the assumption that the best demonstration that a workplace is free of
systemic discrimination is that the representation of disadvantaged groups in the employer’s
work force reflects their representation in the pool of available workers. In this way, the EEA
shows a way in which discrimination may be approached on a systemic basis. Furthermore, the
EEA is based on a proactive approach to the problem. It requires that employers carry out the
steps set out in the EEA aimed at eliminating systemic discrimination.149
At the time of our visit the recommendations of the Panel had not been implemented. The Commission
was considering options under the current legislative scheme for addressing systemic discrimination,
such as making reports to parliament.
British Columbia
At the time of our visit a recent change in government in British Columbia (BC) had led to a period of
uncertainty in relation to the future of human rights protections in that province. Large cuts had been
made to the Human Rights Commission of BC and government was considering its future by conducting
a Human Rights Review. The Commission also faced a large backlog of complaints, many of which
involved public sector agencies, and criticisms of bias. The system of Legal Aid, which previously
applied to complaints in the Tribunal, had also been cut. Since our visit legislation has been passed
which abolishes the Commission and provides direct access to the Tribunal.
149
ibid.
47
Measures to address systemic discrimination
The legislation current at the time of our visit interested us because of its apparent focus on
mechanisms to address systemic discrimination. As well as having a complaint handling role similar to
that under the ADA, the Commission had additional powers to address systemic discrimination and
further the purposes of the Code.
Under the Human Rights Code the Commission had the power to become a party to Tribunal
proceedings. The Commission had exercised that power in more than 75 hearings since 1997 resulting
in the establishment of important precedents and the achievement of systemic outcomes. The
Commission had also intervened in a number of cases involving human rights in the BC Supreme Court
and Supreme Court of Canada.
Since 1999 the Commission had exercised its power to become a party at the investigation stage of
complaints. The Commission stated that being a party to complaints assisted in focusing settlements on
systemic outcomes. The Commission also had the power to initiate a complaint but that power has not
been exercised.
When deciding whether to exercise these functions the Commission had regard to the purposes of the
Code. Factors considered when deciding whether to become a party to a tribunal proceeding were:

Does the complaint involve an allegation of systemic discrimination?

Does the complaint identify a systemic cause, a systemic impact and/or the potential
for a systemic remedy?

Could the complaint lead to a resolution, either through adjudication or mediation, that
will have a significant social impact?

Could the resolution impact upon a significant number of people in the province who
have membership in the protected group?

Does the complaint raise legal issues that are of significant importance to the
Commission?
The Code also supported the development and implementation of employment equity and special
programs by enabling the Commission to provide advice and assistance to employers wishing to
implement employment equity programs and to approve programs submitted to the Commission. This is
a little like the exemption application process carried out by the ADB in making recommendations to the
Attorney General as to whether an application for an exemption from the ADA is appropriate to redress
past or present disadvantage or is otherwise in accordance with the principles of the Act. The Code also
permitted the Commission to conduct research and to hold public hearings and consultations regarding
human rights issues. This power had been used successfully to place the need for a number of
legislative and policy changes on the agenda.150
All of these functions were carried out by a Deputy Chief Commissioner who had the role of furthering
the purposes of the Code. Together they formed the Commission’s “public interest program”. 151 Despite
this separation of roles, the Commission was none the less subject to criticisms of bias as a result of
exercising those powers.
Further developments: towards a new model
Since the visit, the British Columbian government has completed its review of human rights and passed
legislation to abolish the Commission and provide direct access to the Tribunal of that province. 152 The
Attorney General’s department states that under the new model the education function will be carried
out by the Ministry of Attorney General, the Human Rights Tribunal and a publicly-funded independent
150
151
152
From 1999 to 2001 4 reports were carried out. They are: Factors Affecting Older Women in
Canada: Implications for Mandatory Retirement, Jumping Through Hoops: Stories from
British Columbians with disabilities accessing government programs and services, Its Time To
Act: Improving Access to Government Information for People with sensory Impairments and
Other Disabilities, Not Good Enough: Representation of Aboriginal People, People with
Disabilities and Visible Minorities in the British Columbia Public Service.
For further information on all aspects of the Commission’s Public Interest Program see: BC
Human Rights Commission Achievements of the Public Interest Program Four Year Review,
March 31 2001.
See Human Rights Code Amendment Act 2002, to commence 31 March 2003.
48
legal clinic.153 Under the legislation the Tribunal may allow any person or organisation to intervene in
Tribunal proceedings even if they are unaffected by the outcome of those proceedings.
The Human Rights Coalition, the major non-government human rights advocacy organisation for BC,
submitted to the review that the Commission should be abolished and that direct access should be
provided to tribunals together with the establishment of a legal services clinic. 154 Their reasons centred
around the apparent short falls of the complaint handling process as a result of delays, inconsistencies
in decision making, complexity and cost of complaints, tensions surrounding the roles of the
Commissioners and a lack of overall flexibility in complaint handling processes. However the Coalition
also proposed that a Centre for Excellence in Human Rights be established with a clear mandate of
human rights education, research and promotion.
While the model of direct access to the Tribunal is in line with the recommendations of the Federal
Review Panel, the abolition of the Commission means that there may be no clear advocate in the public
interest.
Observations and conclusions
In order to address systemic discrimination in the public sector a system is required which has the
capacity to further effect cultural change, not only in relation to employment practices but also in relation
to the provision of services to the public and the provision of education. Although in its early stages, the
new positive duty upon the public sector to promote race equality in the UK seems to have the capacity
to contribute to this process as it requires equality issues to be integrated into all aspects of employment
practice, planning, policy making, service delivery and education. Lessons can also be drawn from the
apparent success of the implementation of the Wales statutory equality duty.
It is critical to success that any duties on the public sector are accompanied by appropriate enforcement
procedures if they are to be more than a reporting mechanism. It seems appropriate that the obligation
to enforce compliance with public duties, which is fundamentally in the public interest, should lie with an
independent body such as a Board or Commission, rather than upon individuals. Similarly critiques of
the Canadian Employment Equity legislation indicate that an ability to enforce compliance with EEO
principles, by the Canadian Commission carrying out audits, has led to some positive outcomes.
However the Canadian experience also draws attention to inherent tensions where a Board or
Commission is given pro-active powers while simultaneously having an impartial complaint handling
function. We know that criticisms have been made by complainants and advocates in the NSW context
of the Board’s inability to advocate for complainants. Criticisms have also been made of the limitations
on the Board’s ability to facilitate complaints that may have a systemic or public interest aspect. To that
end, aspects of international models such as the UK system of direct access to tribunals coupled with a
strong public interest and preventative role for Commissions, may warrant further consideration. Further
research could examine in more detail the relative success of such models in achieving systemic
outcomes in comparison to complaint based models.
There may also be measures that could be adopted under the current legislative regime in order to
further effect systemic outcomes. Consideration should be had as to whether complaints should be
handled confidentially in all cases, whether matters of indirect discrimination could be further identified
or whether additional focus is required on achieving systemic outcomes as a primary goal of conciliation
in appropriate cases. Regard could also be had to the power of the Director of Equal Opportunity in
Public Employment to refer management plans of public sector agencies for investigation by the Board.
An all of Board approach to targeting systemic issues in a particular public sector could engage all or
any of the above approaches if properly resourced.
Consideration may also be given to reframing discrimination legislation generally to impose positive
obligations, for example to provide non-discriminatory workplaces, schools and access to services
subject to an appropriate defence having regard to the recommendations of the Canadian Review
Panel. Such a move has the potential to refocus anti-discrimination legislation from a reactive complaint
driven system to a more pro-active mechanism.
153
See letter from the Attorney General at
http://www.gov.bc.ca/ajp/down/190920_Jul_19-
02_min.pdf
154
The establishment of a legal services clinic appears still to be under negotiation between the
Coalition and the government.
49
Finally, the role of the European Union in effecting change has been significant. Further consideration of
the ability for Australia to link economic benefits with social change in our region might be something for
a national Human Rights Alliance to pursue. At minimum, support for a Bill of Rights or similar
instrument appears to be crucial if we are to have a foundation for and true integration of an equality
agenda in the future. Similarly further examination by NSW government of human rights and equity
contract compliance mechanisms is warranted. An effective mechanism would ensure that those
contracting with the NSW government had a pro-active approach to dealing with systemic
discrimination.
Issues of systemic discrimination remain in the NSW public sector. The legislative and policy changes
aimed at addressing institutionalised racism which occurred in the UK as a result of the Lawrence
Inquiry show that cultural change requires strong leadership and the political will to enact pro active
powers to affect change. In our view fundamental change is required to get a more proactive and
effective system in place. A public sector which is truly representative of the community which it seeks to
serve, which positively embraces principles of non discrimination in employment, service delivery and
education, has the potential to be a leader in effecting cultural change. The experience of the ADB is
that such a state of affairs has yet to be realised. Clearly we are far behind other countries which have
an active agenda of considering these issues. In our view, positive action is long over due.
We sincerely thank the SGE Credit Union and Premiers Department for sponsoring the study tour. We
are grateful to the Director General Laurie Glanfield and the Attorney General Bob Debus for granting
permission to undertake the tour. We also thank the President of the Board Chris Puplick and our
colleagues for supporting our application and for allowing us to take the time to consider our work in an
international context.
50
Appendix A: List of Persons / Organisations Consulted
LONDON and MANCHESTER
GRAHAM MELDRUM
Chief Inspector of Fire Services
HM Fire Service Inspectorate
DTLR Horseferry House
Deam Ryle Street
London SW1P 2 AW
DAVID ZILKHA
Commission for Racial Equality
Elliot House, 10-12 Allington Street
London SW1E 5EH
JOHN SHIPLEY Scotland Yard, Race Unit
Room 929-930
New Scotland yard
Broadway London SW1H OBG
PAUL MRAZEK
Commission for Racial Equality
Glen House, Stag Place, London SW1
BERT MASSIE
Chairman Disability Rights Commission
7th Floor, 222 Grays Inn Road
London WCIX 8HL
ALICE LEONARD
Equal Opportunity Commission
Alice.Leonard@EOC.ORG.UK
MARK DE PULFORD
Home Office, Human Rights Unit
IAN CHEESEMAN & KIMBERLEY BINGHAM
Race Equality Unit, Home Office
Room 1285, 12th Floor
50 Queen Anne Gate, London
BRUSSELS
SANDRA PLATT
Directorate General for Employment & Social Affairs (Immigration & Asylum)
CEC European Union
46 Rue de Luxembourg
BARBARA NOLAN
Anti-Discrim, Employment &
Social Affairs Directorate
European Commission
5th Floor, Room 22
Rue Joseph II 37,1000 Brussels
BRENDAN SINNOT
Head of Disability Unit
Directorate General for Employment
ILGA-Europe
Metta Vadstrup, Information Officer
Ave. de Tervueren 94/1
B-1040 Brussels
DIRK DE MEIRLEIR
51
Belgian Centre for Equal Opportunities and Opposition to Racism
“Residence Palace” entrance C5 (left wing next to Press centre) 8th Floor
Rue de la Loi 155
1040 Brussels
CANADA
KERRY BUCK, Director
RENA RICHER Internat. Programs Officer
Canadian Human Rights Commission
10th Floor, 344 Slater St
Ottawa K1A 1E1
GWENN HUGHES
Pay Equity Task Force
Suite 900, 9th Floor
130 Albert St,
Ottawa
SUSAN O’DONNELL & PETER BEAUDIN
British Columbian Human Rights Coalition
#1300-510 West Hastings St (at Richards)
Down Town Vancouver
HARINDER MAHIL (Roz Currie)
Acting Chief ComMissioner
Human Rights Commission
306-815 Hornby St
Vancouver V6Z 2E6
British Columbian PIAC
Suite 815, 815 West Hastings St
(cnr Hastings and Howe Sts)
Down Town Vancouver
NITYA IYER
Heenan Blaikie LLP
Suite 2200, 1055 West Hastings Street
Vancouver, British Columbia V6E 2E9
52
Appendix B legislative provisions governing EEO in the public sector in Australia
See Equal Opportunity Act 1984 (WA): The purpose of Part IX of the Act is to eliminate and ensure the
absence of discrimination of employment on all the grounds covered by the Act and to promote equal
employment opportunity for all persons in the authorities bound by part IX of the Act. Part IX is about the
promotion of equal employment opportunity - it does not require authorities to review and evaluate the
way they provide goods or services to the public.
Equal Opportunity In Public Employment Act 1992 (QLD): The legislation aims to promote equality of
employment opportunity in the public sector by requiring agencies to develop an EEO management plan
to enable members of the target group to pursue careers within the public sector as effectively as people
who are not members of the target group. The target group includes Aboriginal Australians and Torres
Strait Islanders; people who have migrated to Australia and whose first language is a language other
than English and their children; people with a physical, sensory, intellectual or psychiatric disability; and
women. The Act specifically states that nothing in the Act requires any action that would be incompatible
with the principle that recruitment, selection, promotion and transfer are to be dealt with on the basis of
merit. The term merit is not defined in any part of the Queensland Act.
Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (CTH): Each relevant authority
must develop and implement a program to eliminate discrimination and to promote equal opportunity for
women, Aboriginal and Torres Strait Islanders persons, people who have migrated to Australia and
whose language is not English and their children persons with a physical or mental disability. Like the
Queensland Act, the Commonwealth Act explicitly states that nothing in the legislation requires any
action that would be inconsistent with the principle that decisions affecting employment should be dealt
with on the basis of merit. The Equal Employment Opportunity (Commonwealth Authorities) Act 1987 is
reinforced by various provisions in the Public Sector 1999 (CTH). Section 18 of the Public Sector Act
1999 requires Agency Heads to establish workplace diversity programs in order to give effect to “APS
Values”. These values include the promotion of equity in employment and the making of employment
decisions on merit. “Merit” is defined in s 10(2) of the Act.
The Northern Territory’s Anti-Discrimination Act 1992 (NT) stipulates that one of the Anti-Discrimination
Commissioner’s functions is “to promote within the public sector the development of equal opportunity
management programs”. The Northern Territory Act provides no guidance about what such a
management program should consist of. However, such guidance has been provided to agencies by an
Employment Instruction issued by the Office of the Commissioner for Public Employment. In addition,
section 28 of the Public Sector Employment and Management Act (NT) requires the Chief Executive
Officer of each agency to prepare an annual report which must include information about “equal
opportunity management programs and other initiatives designed to ensure that employees employed in
the Agency have equal employment opportunities”.
The legislation in Tasmania, Victoria, South Australia and the Australian Capital Territory that supports
each jurisdiction’s anti-discrimination regime do not include provisions that are analogous to Part 9A of
the New South Wales Act. In these jurisdictions, the legislative basis for public sector equal employment
opportunity regimes are located in statutes that deal with public sector employment more broadly.
For example, the State Service Act 2000 (TAS) includes a statement of “State Service Principles” which
stipulates that “employment decisions are based on merit” and that the State Service “promotes equity
in employment” and “provides a workplace that is free from discrimination and recognises and utilises
the diversity of the community it serves. Section 34 of the same Act requires heads of agencies to
“develop and implement a workplace diversity program to assist in giving effect to the State Service
Principles”.
In Victoria, the Public Sector Management and Employment Act 1988 (VIC) requires agency and public
authority heads to establish employment processes that ensure that employment decisions are based
on merit and that equal employment opportunity is provided. In addition, the Commissioner for Public
Employment has issued a Direction on “Managing and Valuing Diversity”, and this Direction is binding
on all public service agencies under the Act. Along other initiatives, the Direction requires all public
service agencies to develop “workforce plans take into account opportunities for increasing the
participation of designated EEO groups (Aboriginal and Torres Strait Islander people, people with a
disability, people from a non-English speaking background and women) and declared disadvantaged
groups at all organisational levels”.
The public sector equal employment opportunity schemes in South Australia and the Australian Capital
Territory are supported by broadly similar provisions in the Public Sector Management Act 1995 (SA)
and the Public Sector Management Act 1994 (ACT) respectively.
53
APPENDIX C Materials provided by agencies at meetings
These materials are filed in the ADB library
Commission for Racial Equality
Commission for Racial Equality Annual Report 2000
Commission for Racial Equality, The Race Relations (Amendment) Act 2000: Strengthening the Race
Relations Act, December 2000
Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality,
Consultation Draft, December 2001
Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality, A
Guide For Schools, Consultation Draft, December 2001
Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality, A
Guide For Institutions of Further and Higher Education, Consultation Draft, December 2001
Commission for Racial Equality, Statutory Code of Practice on the Duty to Promote Race Equality, A
Guide for Public Authorities, Consultation Draft, December 2001
Commission for Racial Equality, Ethnic Monitoring: A Guide for Public Authorities, Consultation Draft,
December 2001
Commission for Racial Equality, Consultation Questionnaire
Commission for Racial Equality, Applying for Assistance From the Commission For Racial Equality,
Guide and Application Form
Commission for Racial Equality Working for Racial Equality in Sport
Employment Tribunals Service How to apply to an Employment Tribunal-England and Wales
Employment Tribunals Service Understanding Tribunals: What do Industrial Tribunals do?
The Home Office Race Unit
Home Office, Race Relations (Amendment) Act 2000: New Laws for a Successful Multi-Racial Britain
Home Office, A choice by right: Summary of the report of the working group on forced marriage, June
2000
Home Office, Statistics on Race and the Criminal Justice System: A Home Office Publication Under
Section 95 of the Criminal Justice Act 1991, 2000
Home Office, Race Equality: The Home Secretary’s Employment Targets, First Annual Report: Staff
Targets for the Home Office, the Prison, the Police, the Fire and the Probation Services, 27 October
2000
Home Office, Race Equality: The Home Secretary’s Employment Targets, Second Annual Report, Staff
Targets for the Home Office, the Prison, the Fire and the Probation Services, November 2001
Home Office, Community Cohesion: A Report of the Independent Review Team Chaired by Ted Cantle,
undated, post July 2001
Home Office, Building Cohesive Communities: A Report of the Ministerial Group on Public Order and
Community Cohesion, undated, post July 2001
Home Office, Connecting Communities: Race Equality Support Programmes, September 2001
UK Government, Towards Equality and Diversity: Implementing the Employment and Race Directives,
Consultation Document, December 2001
54
Home Office, P Weller, A Feldman and K Purdam, Religious Discrimination in England and Wales:
Home Office Research Study 220, February 2001
Home Office New Laws…Race Equality
Metropolitan Police
Metropolitan Police, Taking Fear Away From the Community: Operation Athena: The Racial and Violent
Crime Task Force, February 2001
Metropolitan Police Tackling hate together, Community Safety Units-protecting our communities
Metropolitan Police Policing Diversity: MPS Handbook on London’s Religions, Cultures and
Communities
Metropolitan Police Protect and Respect: Everybody benefits
Association of Chief Police Officers Identifying and Combating Hate Crime
Metropolitan Police Family Liaison Officer: Who we are and what we do
Fire Service
Fire Service Recruitment: Start a new life-save someone else’s
Fire Service Fire Service Circular 6/1999: Equal Opportunities in the Fire Service: Statistics and ethnic
minority target setting
Home Office Fire Policy Unit Fire Service Equal Opportunities Statistics 1997 & 1998
Home Office Strategies for the recruitment as firefighters of women and people of an ethnic minority
background
Home Office Strategies for the recruitment as firefighters of women and people of an ethnic minority
background for Royal Berkshire Fire and Rescue Service
Home Office Strategies for the recruitment as firefighters of women and people of an ethnic minority
background for West Yorkshire Fire Service
Home Office Fit for Duty? Seeking a healthier fire service: A thematic Review by HM Fire Service
Inspectorate of sickness absence and ill-health retirements in the fire service
Home Office Equality and Fairness in the Fire Service: A Thematic Review by HM Fire Service
Inspectorate: Founding a Cultural Equality: Part One Main Report September 1999
Home Office Toward Diversity: Promoting Cultural Change: The Fire Service Equal
Opportunities Action Plan 1 June 2000-31 May 2001
Home Office Toward Diversity II: Commitment to Cultural Change: The second Fire Service Equal
Opportunities Action Plan December 2001
Disability Rights Commission
Disability Rights Commission 2004-What it means to You: A guide for disabled people
Disability Rights Commission 2004-What it means to You: A guide for service providers
Disability Rights Commission Making access to goods and services easier for disabled customers: A
practical guide for small businesses and other small service providers
Disability Rights Commission Bringing the DDA to life for small shops: Improving access to goods and
services for disabled customers: Clothes Shop case study
Disability Rights Commission Bringing the DDA to life for small shops: Improving access to ggods and
services for disabled customers: Café case study
Disability Rights Commission Strategic Plan 2001-2004
55
Disability Rights Commission Inclusive design: Products that are easy for everybody to use
Disability Rights Commission Annual Review 2000-2001 Championing change for disabled people
Equal Opportunities Commission
Human Rights Unit
Human Rights Unit Human Rights Act: An Introduction
Human Rights Unit A New Era of Rights and Responsibilities: Core guidance for public authorities 2
October 2000
Human Rights Unit, The Human Rights Act 1998: Guidance for Departments
Human Rights Act 1998 UK
Home Office Study Guide: Human Rights Act 1998
Home Office Private Sector Public Service Human Rights for all: The Human Rights Act 1998
European Commission
European Commission The fight for equality: Action by the European Community to combat
discrimination, Employment and Social Affairs, Luxembourg
European Commission European Union action to combat racism: European Commission contribution to
the world conference against racism, racial discrimination, xenophobia and related intolerance Durban,
South Africa, 31 August – 7 September 2001, Employment and Social Affairs, Luxembourg 2001
Centre for Equal Opportunities and Opposition to Racism Brussels
Centre for Equal Opportunities and Opposition to Racism Brussels Altertness and Expertise
Canadian Human Rights Commission
Canadian Human Rights Commission A Place for All: A Guide to Creating an Inclusive Workplace 2001
Canadian Human Rights Commission Legislative Review of the Employment Equity Act: Report and
recommendations to the House of Commons Standing Committee on Human Resources Development
and the Status of Persons with Disabilities April 2002
Canadian Human Rights Act
Equal Wages Guidelines 1986
Canadian Human Rights Commission Employment Equity Report 2001
Canadian Human Rights Commission Time for Action: Special Report to Parliament on Pay Equity
February 2001
Canadian Human Rights Commission Employment Systems Review: Guide to the audit process,
Employment Equity May 2000
Canadian Human Rights Commission Framework for Compliance Audits Under the Employment Equity
Act: Audit Process, Assessment Factors and Survey Questionnaire, Employment Equity January 2000
Department of Justice Canadian Human Rights Act Review June 2000
Pay Equity Decisions:
Northwest Territories v Public Service Alliance of Canada [2001]
Bell Canada v Canada (Human Rights Commission) (CA)
Bell Canada v Canada (Human Rights Commission) (TD)
Pay Equity Task Force
56
Pay Equity Task Force Pay Equity: Some Basics March 2002
Pay Equity Task Force Review of Section 11 of the Canadian Human Rights Act and the Equal Wages
Guidelines 1986: Consultation Process Strategy March 2002
Pay Equity Task Force Pay Equity Task Force Research Agenda January 2002
Pay Equity Task Force Review of Section 11 of the Canadian Human Rights Act and the Equal Wages
Guidelines 1986: Discussion Paper March 2002
BC Human Rights Commission
Human Rights Code
British Columbia Human Rights Commission Guidelines for the Deputy Chief Commissioner’s
participation as a party to a complaint at the investigation stage
Government of British Columbia B.C Human Rights Review: Report on Human Rights in British
Colunbia 1994
British Columbia Human Rights Commission Annual Report 2000/01 Equality Through Access
British Columbia Human Rights Commission Achievements of the Public Interest Program: Four Year
Review, March 2001
BC Human Rights Coalition
Committee for the Advancement of Human Rights Submission to Administrative Justice Project: Human
Rights Review November 2001
Committee for the Advancement of Human Rights Response to Human Rights Review: A background
paper for the Administrative Justice project February 2002
Public Interest Advocacy Centre
Patricia MacDonald BC Public Interest Advocacy Centre Section 15(1) of the Canadian Charter of
Rights and Freedoms and Discrimination on the basis of poverty or social condition, May 2002
57