Statutory conciliation in a human rights context - presented by Joana d’Orey Novo​

1. Dispute Resolution at
the Australian
Human Rights
CommissionJOANA D’OREY NOVO
SENIOR INVESTIGATOR/CONCILIATOR
25 AUGUST 2015

2. Investigation and Conciliation
Service
Statutory investigation and conciliation of complaints
alleging discrimination and breaches of human rights
under federal discrimination and human rights legislation:
 Australian Human Rights Commission Act 1986 (Cth)
 Racial Discrimination Act 1975 (Cth)
 Sex Discrimination Act 1984 (Cth)
 Disability Discrimination Act 1992 (Cth)
 Age Discrimination Act 2004 (Cth)

3. The Complaint Process
Complaint triage
Closure Formal response Early conciliation
Court option Conciliation Not resolved Resolved
Resolved Not resolved
Court option / Reporting

4. Statutory Conciliation
 Conciliator assists parties to explore issues and negotiate
mutually satisfactory resolution
 Held face-to-face around Australia, by telephone or
through a shuttle process
 Conciliator bound by confidentiality provisions, but not
parties
 Attendance is at conciliator’s discretion
 Commission can compel attendance at a compulsory
conciliation conference
 Conciliator must have regard to nature of conciliation
settlements

5. Conciliation Process
 Preparatory discussions
 Pre-conference meetings
 Conciliator’s remarks
 Party opening statements
 Discussion and exploration of issues
 Caucus meetings
 Negotiation

6. A Blended Process
 Facilitative elements
 Evaluative elements

7. A Narrative to Inform Practice
 We are not disinterested neutrals – we have a
professional interest to educate about the law and
further the objects of the law
 We are impartial in that we are not advocates for
complainants or respondents in particular disputes and
we do not have a personal interest in the outcome of
complaints
 We provide information rather than telling parties what to
do or making determinations

8. A Narrative to Inform Practice
 We are here to assist both complainants and respondents and
provide a high quality professional service
 We aim to ensure that the process is fair for all involved and
this may require active intervention and treating complainants
and respondents differently to enable a more ‘equal playing
field’
 We aim to ensure that complainants and respondents make
informed decisions and explore all options for resolution
 Our interventions are focussed on maximising the potential for
resolution

9. Conciliation Resources & Initiatives
 Information sheets for parties
 Information sheet for lawyers and other representatives
 Preparation questions
 Conciliation video – Pathways to Resolution
 Conciliation Register

10. Some Draft Statistics
 The Commission finalised 2,251 complaints and received
20,020 enquiries
 There was a 72% conciliation success rate
 51% of all complaints were conciliated
 26% of agreements included outcomes that were
systemic in nature
 The complaint process took an average of 3.7 months
 92% of parties were satisfied with the process, with 73%
rating the service as ‘very good’ or ‘excellent’
 88% of parties thought our process was fair

11. Challenges for Statutory
Conciliators
 Ideological nature of disputes
 Balancing facilitative and evaluative aspects of
conciliation
 Maintaining perception of impartiality
 Addressing inherent and other power imbalances
 Party perceptions about the strengths and weaknesses
of a complaint
 Principal/agent issues
 Time/resource constraints

12. Specific Tools for
Statutory Conciliation
 A smorgasbord of ideas and options
 Bring the other into the room
 Conciliator dance
 Find the pea under the mattress
 Focus on the issue rather than the behaviour
 Generic few –v- Specific one
 Butter before you cut
 Help them see the forest and the trees
 Questions before statements
 ‘Achievable’ –v- ‘Reasonable’
 What’s in it for them