Too Much Discrimination Is Never Enough for Some

16th November 2016

Amidst the tumult and shouting over the QUT students’ plight and Bill Leak cartoon, the prescient words of a client, similarly faced with false accusations of discrimination resonate: Where are my human rights? A very good question that deserves an answer from the Human Rights Commission and every other statutory tribunal entrusted with responsibility to administer anti-discrimination laws in this country.

Accusations without concomitant consequences are not only threatening freedom of expression in the realm of race, but everyday working relationships between businesses and employers and employees in ever increasing cries of discrimination, harassment, unfair dismissal and bullying. Just tick the box and lodge the complaint. Don’t worry about evidence, personal culpability or responsibility. Its how you feel that matters.

The Australian workplace today is vastly different to the world of work I encountered as a young graduate in 1982. No responsible business owner supports the sexist, racist and discriminatory behaviour that was once commonplace. However, the good will of businesses is being sorely tested.

At the heart of the problem is the very low threshold for accepting complaints, the lure of money and the reverse onus of proof that has become the moniker of discrimination grievances. Add to the mix, zealous lawyers and advocates desperate to believe anyone with a hard luck story and you have a biased and belligerent system stacked against the accused. It took the Australian Newspaper journalists only a couple of weeks to expose the questionable claims of racism against Bill Leak, but two months for the Human Rights Commission to notify him. A Federal Circuit Court Justice needed only 83 paragraphs to explain that Ms Prior’s case against three QUT students had no reasonable prospect of success. Conciliators at the Human Rights Commission didn’t bother informing the students of the complaint for fourteen months.

During my career I have represented employers and employees, accusers and accused. I can confidently state that nobody wins these cases. Most complaints are settled during conciliation because the angry and frustrated accused person or business is ever so politely persuaded to pay money to their accuser. The complainant is rarely satisfied but at least he or she has a few more dollars in their pocket. What an appalling system.

The Fair Work Commission, which also has responsibilities in the area of discrimination and workplace bullying, receives more than 14,000 unfair and unlawful dismissal complaints every year using a simple form that complainants’ complete and lodge without so much as cursory vetting. Out of time, not actually dismissed, on probation, it doesn’t matter. Pay the filing fee and the form is sent to the former employer requiring a written response. The Fair Work Commission boasts of settling eighty per cent of those complaints at conciliation of which half include a payment to the complainant. Money solves all problems when it comes to business and it seems employment as well. You decide whether that is fair.

An additional problem is oversupply. I recently recounted an exchange with the President of the Human Rights Commission at a small business conference this year where Professor Triggs noted the largely ephemeral role of state and territory anti-discrimination agencies, due to the overlap of federal, state and territory laws but was reluctant to endorse rationalization of the myriad systems regulating Australians.

Why so reluctant to let go? How many anti-discrimination laws are too much?

Unlawful discrimination in the area of employment proscribed by four statutes and administered by the Australian Human Rights Commission is mirrored in the Fair Work Act 2009, and eight State and Territory statutes. Thirteen separate laws covering the same subject matter. The Fair Work Act doesn’t override these ‘mirror laws’, but does preclude anyone from getting a hearing if they have shopped their complaint around to multiple jurisdictions. Nevertheless, no one can explain the efficacy of multiple touch points for anti-discrimination complaints.

In the financial year 2014/2015 the Human Rights Commission received 988 complaints in the area of employment based discrimination and harassment from a total of 2388 complaints covering race, colour, sex, religion, political opinion, national extraction, social origin, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity.

Forty-eight percent of complaints processed by the Human Rights Commission in the same year were terminated, declined, withdrawn or discontinued. That’s right, almost half of all complaints didn’t cut the mustard! Nevertheless, hapless employers were required to undergo the expense of responding to spurious, frivolous and vexatious complaints. It looks like the court of last resort. I wonder how the State and Territory agencies spend their time and taxpayers money?