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EQ - September 2006

This Edition

A Charter of Human Rights for Victoria

?It?s a commonsense move that will simplify our laws and bring together our human rights in one piece of legislation.?
- Attorney General Rob Hulls

Victoria has become the first state in Australia to introduce a Charter of Human Rights and Responsibilities. Enacted in Parliament in July 2006, the Charter is essentially a form of insurance to ensure Governments continue to respect and protect human rights. It compels State and local Government to take human rights into account in developing policies and legislation and in delivering services; this will ensure members of the community are not treated unfairly.

Under the Charter the Commission will become the Victorian Equal Opportunity and Human Rights Commission and take on a range of new functions. The Commission?s role will be to:

Commission CEO, Dr Helen Szoke said, ?The Commission appreciates that the Government has a reasonably sound record of respecting human rights but without a mechanism that create checks and balances, our system of government is not fully equipped to adequately address human rights issues.? So what will this ?mechanism? mean for Victoria? How will Victorians be better off under the Charter?

As the Charter will inform Government policy and legislation, Victorians can expect that human rights will be taken into account in the drafting of new policies and legislation, and Victorians can be assured of an inclusiveness that respects the rule of law, human dignity, equality and freedom.

Those who work for the Government must also observe human rights to ensure members of the community are treated fairly. The Charter also requires that the State Government, now and in the future, continues to make new laws that are fair and to strike a balance between new powers and protecting the rights of Victorians.

The Charter of Human Rights and Responsibilities will come into operation on 1 January 2007. The Commission has set in motion a range of initiatives to bolster community awareness, understanding and support of the Charter. These include the community education, community stakeholder engagement, a Human Rights Conference to be held early in 2007. Updates will continue to be posted on our website at. Click here for the latest updates on the Charter of Human Rights and Reponsibilities.

Education will play a pivotal role in increasing awareness of the Charter, providing workshops and seminars across Victoria. Alongside this, the Commission will continue to engage key stakeholders to assist in the further development of an education strategy. This includes establishing a Human Rights Education Advisory Committee brings together representatives from key community and legal bodies that will provide both input and perspective into the development of the community awareness strategy.

In March 2007, the Human Rights Conference will launch the new branding for the Commission and aim to identify the potential impact of the Charter. In developing the conference, the Commission has set up a Conference Reference group that comprises representatives from peak bodies. This is a way of extending its partnerships in an attempt to bring a human rights focus to a wider audience. The role of the reference group will be to contribute ideas and to help shape and consolidate objectives and scope of the conference.

In bringing ?human rights? to the people, the Commission is developing two programs: the Community Artists Program and the Human Right Ambassador Program.

The Community Artists program will engage artists to develop a community-based program that will explore representations of human rights, with a focus on freedom, respect, equality and diversity. With the latter, a group of ambassadors from different areas of Victoria will travel across the State to promote the issue of human rights to a wide spectrum of people which an emphasis on the services sector.

For more information on any if these initiatives or if you would like to be involved in either of these programs, please contact George Bisas, Manager Education Services on 9281 0128.

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New Independent Voting for the State Election

by Tony Clark, Vision Australia

In July of 2006, the Victorian Parliament passed groundbreaking legislation which will, for the first time, allow a significant part of our community to cast a secret vote. A timely development, for this year marks the 150 year anniversary of the Victorian Parliament.

In preparation for the 2006 State Election, the Victorian Electoral Commission (VEC) has developed Electronic Voting Kiosks to be piloted at the election on Saturday, 25 November. While the details are yet to be finalised, the system that is being piloted is not remote online voting; if individuals wish to use this system, they will have to go to an E Centre.

While electronic voting is set to enhance the voting experience for many, a significant outcome is how it will enable people with visual impairments to cast a secret ballot. On arrival at the E centre, you will have your name marked off the roll for you and be issued a smart card which contains your requested settings, your electorate and entitles you to a single vote. At the kiosk, you will find a smart card holder, a number key pad and a screen. When you insert your card (which has tactile markings) the kiosk will be set up for your personal requirements. You will have the options to put on headphones and listen, and select larger print and reverse contrast options for viewing. If the keypad is not to your liking, you can use the touch screen.

The kiosk will take you through the process of casting your vote. One of the advantages of the system is that it will clearly tell you if you have cast an informal vote. While you can still decide to cast an informal vote if you choose, this addresses the situation where votes are made informal inadvertently. The kiosk then verifies your vote for you. Once your vote is cast, your card cannot be used again until reset by an Electoral Official.

Although locations are yet to be confirmed, the VEC is currently exploring six pilot centres in areas including Kooyong, Melbourne City, Shepparton and Ballarat. These centres will be established as early voting centres and therefore open two weeks prior to the election. Electronic voting at E Centres will also be available on election day. As with standard voting centres, you will be able to cast your vote regardless of where you live.

In adopting fully inclusive approach to developing this system and a wide range of other benefits, and in developing and implementing a Disability Action Plan and supporting it with resources, the VEC is making a real effort in providing an equitable voting environment.

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Promoting Cultural Diversity on Melbourne?s Public Transport

In April 2006, the Commission launched the ?Just Like You? campaign, featuring advertising on public transport and in the commuter newspaper Mx. Funded under the Department for Victorian Communities? Social Policy Action Plan: A Fairer Victoria, the ?Just Like You? campaign highlighted racial and religious diversity as a strength by portraying people from CALD backgrounds in familiar settings. The underlying message of the campaign was that, as Victorians, we all share many similarities even though we may come from different backgrounds.

Public transport was identified as an ideal setting for such a campaign for a number of reasons. As Equal Opportunity Commission Victoria CEO, Dr Helen Szoke noted, ?Public transport travel puts us in close contact with people from all cultural backgrounds and walks of life. Mutual respect is essential to ensure a safe and pleasant journey for everyone.?

The campaign was made possible through the Fairer Victoria funding as well as partnerships forged with public transport operators who generously provided their advertising space for free. Additionally, a partnership with the Department for Victorian Communities (DVC) provided an important context for the campaign and extended the reach of its message much further than would normally be possible. This came in the form of a major advertising campaign from March until June 2006, which featured the ?Just Like You? slogan included in advertising on television, radio and metropolitan press, as well as, a small run of postcards.

Just like you poster 1 Just like you poster 2 Just like you poster 3

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Discrimination: It?s Still Against the Law campaign

In April Equal Opportunity Commission Victoria teamed up with the office of the Victorian Workplace Rights Advocate in an awareness raising campaign to ensure public knowledge of equal opportunity rights at work in light of Federal Government changes to Industrial Relations laws.

The Discrimination: It?s Still Against the Law campaign targeted pregnant women, parents and carers ? groups identified as being amongst the most vulnerable under the changes - and consisted of three postcards featuring equal opportunity rights in the workplace for each target group. About 25,000 postcards were printed and distributed through unions and community organisations. The cards and campaign information is also available on both the Commission?s and Advocate?s websites.

image of campaign postcard

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The High Price of Ignoring Equal Opportunity Law

Victorians paid out almost $500,000 in discrimination settlements at the Equal Opportunity Commission Victoria last year.

Figures released by the Commission in April show more than 100 businesses and organisations paid cash settlements to people who suffered unfair treatment. ?These figures should be a wake-up call for employers to get serious about discrimination,? said Dr Helen Szoke, Commission CEO.

?The payouts are just the start. Organisations involved in discrimination complaints waste precious management and staff time in resolving the dispute, not to mention the cost of negative publicity which can ruin hard-won reputations. And then there?s the cost of replacing an employee who leaves because of a complaint. Employers and managers who ignore equal opportunity laws do so at their peril because each complaint can cost them dearly.?

The negotiated payouts ranged from $350 for a woman who was sacked shortly after starting a new job because her boss wanted someone ?younger and prettier? through to larger sums including $20,000 for a night-shift nurse who was groped by a male colleague.

Each payout was agreed through negotiations between the people involved in the complaint. Payouts are only one possible outcome to a complaint at the Commission. While the commission is not a court or tribunal and has no power to award compensation, it offers a confidential, impartial conciliation process at no charge.

Hundreds of complaints are resolved once both sides have had a chance to voice their views in a neutral environment ? with no money changing hands. Other common outcomes reached at the Commission include apologies, job reinstatements or references, and an agreement by organisations to undertake equal opportunity training and establish equal opportunity policies and internal complaint resolution procedures.

?One of the major roles of the Commission is to help organisations develop their own policies and procedures to minimise the possibility of complaints coming to us in the first place,? Dr Szoke said.

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Amendments to the Racial and Religious Tolerance Act

Recent amendments to the Racial and Religious Tolerance Act (RRTA) brings greater clarity to the application of the law by making it more difficult for complaints of racial and religious vilification that have been declined by the Equal Opportunity Commission Victoria to reach a hearing at the Victorian Civil and Administrative Tribunal.

The amendments also strengthen the investigative powers of the Commission and make a clear statement that people are free to teach and proselytise about their religion as long as they do so without vilifying others.

The RRTA prohibits vilification, which is the incitement of hatred, serious contempt, revulsion or severe ridicule against others on the basis of their race or religion. Incitement is serious behaviour which involves more than just merely holding a view or expressing an opinion; it is the encouragement or promotion of hatred towards others which can have serious personal and social consequences.

The Act was never designed to provide remedies for mere offence such as that caused by racially stereotyping comments, off-hand remarks or racist jokes. Yet increasingly these have been the nature of some of the complaints to come to the Commission. In 2004/05, there were 49 complaints of racial or religious vilification made to the Commission. About half of those complaints were declined.

While the Commission has the power to decline complaints it considers frivolous, vexatious, misconceived or lacking in substance, we are obliged to refer the matter to the Tribunal for adjudication on the request of the person making the complaint. While the Commission?s complaints processes are free, confidential and do not require a lawyer, matters brought before the Tribunal can be costly and invariably attract media attention and legal fees.

Under the recent amendments, the Commission will no longer be required to refer complaints that it has declined to the Tribunal on request. Instead the person making the complaint will have to make a separate application to the Tribunal for consideration. This procedural reform was recommended by Tribunal President Justice Stuart Morris last year, when convicted paedophile and Wiccan Robin Fletcher claimed the way the Salvation Army taught Christianity in prison vilified witches. Rejected by the Commission, Mr Fletcher took the complaint to the Tribunal, which also dismissed the complaint but at some cost to the Salvation Army, prison authorities and taxpayers.

In dismissing the complaint, Justice Morris described Mr Fletcher?s claims as ?hopeless? and ?preposterous? and called for changes to the law; Justice Morris? call for reform was taken on board. The amendments give the Tribunal broad discretion to decide if a complaint should proceed to a hearing.

This change clarifies the law against those who misunderstand it or seek to misuse it, without watering down the protection it provides to the community.

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Work/Life balance ? Rhetoric or Reality?

On the morning of Friday 16 June 2006, an audience of 200 at the Melbourne Museum were entertained and engaged by media personality Julie McCrossin and an expert panel on how we as a community can achieve Work/Life Balance.

Panel members included the Commission?s Helen Szoke, Dr Don Edgar, former director of the Australian Institute of Family Studies and author of The War Over Work, Tony Steven, Chief Executive of the Council of Small Business Organisations of Australia, Cath Bowtell, Industrial Officer of the ACTU and Melissa Carfax-Foster, Director of Operations, Epworth Hospital, Richmond.

One of the key themes that emerged was that Australian parents and carers must challenge the entrenched idea that workers have limitless time for their job, with personal and family needs coming second. People in senior positions should lead the way by refusing to accept work hours and conditions that unreasonably encroach on their personal lives.

?We will never achieve work/life balance until we, as a society, make a radical social shift away from this outdated model of the ideal worker who is full-time, male and unencumbered by family responsibilities.? Said Commission CEO, Dr Helen Szoke said.

In an event evaluation, 85 per cent of the audience said they found the discussion very useful and 95 per cent said they would use the discussion in their work and personal lives, including a handful of people saying it would help them in their Work Choices negotiations.

Photo of the event 1

Crowd photo

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Brochures launched in Accessible Formats to help People with Vision Disabilities

The Equal Opportunity Commission Victoria has launched its ?Your Right to a Fair Go? brochure in Braille, audio cassettes and CDs making vital information about discrimination, harassment and vilification available to people with vision disabilities.

Commission CEO, Dr Helen Szoke said, ?It?s time to stop talking about the needs of people with disabilities and focus instead on their rights ? which are the same as everyone else.?

The Commission receives more complaints about discrimination on the basis of disability than any other personal characteristic. In 2004/5, the Commission received 739 complaints on the grounds of disability, which is about a quarter of all complaints.

The ?Your Right to a Fair Go? brochure provides an easy-to-understand guide to:

The information is available on the Commission?s website ? http://www.humanrightscommission.vic.gov.au/ ? in formats including PDF, RTF, large print and audio files.

After monitoring the response to this brochure, more Commission literature will be produced in accessible formats. An ?Easy English? version of the brochure is also in production as part of the Commission?s commitment to keeping all Victorians informed of their rights.

To order a free copy of the ?Your Right to a Fair Go? brochure in Braille, cassette and CD call Paula Crimmins on (03) 9281 7122 or email paula.crimmins@eoc.vic.gov.au.

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The 6th Human Rights Oration

Each year, to mark the United Nations Human Rights Day, the Equal Opportunity Commission Victoria hosts the annual Human Rights Oration. The aim is to focus on human rights and how they affect the lives of all Australians. The enactment of the Victorian Charter of Human Rights and Responsibilities provides the ideal context for discussion and is a significant step towards the advancement of human rights.

The 6th Human Rights Oration will be held on 13 December 2006 and Julian Burnside QC will deliver the oration. Julian is a passionate advocate of human rights and has given countless hours of his professional expertise as a barrister to assist the cause of refugees. In 2004 he helped establish the Justice Project ? a group that supports basic human rights for all and provides humanitarian assistance. In 2005 he won the Human Rights Law Award Medal.

Join us in marking this important day - 12pm-2pm, Wednesday 13th December 2006 at Zinc at Federation Square, Melbourne. For further information please contact Slavka Scott on 9281 7150.

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Regional Visits

In continuing the extension of the Commission?s services to regional Victoria, Commission staff have been actively visiting a number of regional centres to meet with community leaders, conduct education sessions and conciliate complaints. Staff from the complaints branch conducted more than 50 complaint conciliations across Ballarat, Echuca, Geelong, Mildura, Morwell, Portland, Shepparton, Swan Hill, Traralgon, Wangaratta, Warrnambool and Wodonga in the past year.

Conciliations are often more challenging in country areas where close-knit communities prevail. This is because people involved in a complaint often have some kind of ongoing relationship and there is usually community knowledge about what is happening. Moreover, the lack of alternative job opportunities often means there is greater value in working through the employment relationship rather than severing it.

In relation to general complaints handling, the Commission found it useful to commence discussions with those involved at the earliest opportunity. The use of enquiry meetings can be difficult but they are an effective way to explore possible resolutions to issues raised.

During the regional visits community members have an opportunity to raise issues of concern with our staff. These include:

As preventative measure, the other focus of the regional visits was to meet with local service providers and community groups to provide education on the Commission?s services. The overall response was positive towards suggestions of equal opportunity training and local councils were keen to assist where possible.

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Are you EO Ready?

Bullying, discrimination, sexual harassment ? your organisation may be found legally liable for the discriminatory actions of its staff unless it can show that it took reasonable precautions to prevent such action happening.

Becoming EO ready will help your organisation:

Our training programs will help your managers and staff to understand their individual and shared responsibilities, and to develop the skills and confidence to act appropriately.

Click here to find out more about workshops run by the Commission.

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Legal Update

(1) High Court Decision regarding ?Reasonableness?

State of New South Wales v Amery [2006] HCA 14 (Indirect sex discrimination in employment)

A recent decision of the High Court highlights its caution in dealing with anti-discrimination claims. The complainants were female ?supply casual? teachers employed by the NSW Department of Education. Casual teachers, whether performing short-term emergency teaching or long-term senior ?supply casual? roles, have a separate pay scale to permanent teachers. Unlike permanent teachers, supply casuals cannot be redeployed to other districts to teach. The highest payment level for supply casuals is 20% less than permanent teachers. The complainants lodged complaints of sex discrimination:

The NSW Administrative Decisions Tribunal found that it was unreasonable to pay female teachers at a lower salary scale, as they performed work of equivalent standard and value to permanent staff. The respondents appealed this decision all the way to the High Court.

The High Court?s decision

Gummow, Hayne and Crennan JJ found that a difference in the pay scales between casual and permanent employment does not amount to any imposition of a condition on staff because the Department did not expressly demand compliance.

There was no discrimination on the ground of sex in the terms on which employment was offered to the complainants because they were not offered employment as ?teachers.? The Department instead offered them employment as ?casual teachers?. It could not be regarded as a condition in the terms of employment as a ?casual teacher? that, in order to access the higher pay scale, the employee must cease to be a casual teacher.

Gleeson CJ, unlike the majority, held that the Department did impose a requirement that, in order to access the higher pay, teachers had to be permanent employees. Despite this, it was reasonable to pay casual and permanent teachers differently because permanent staff could be required to redeploy.

Kirby J was the sole dissenter who considered that the appeal should be denied. Kirby J agreed with the decision of the NSW ADT. Kirby J also criticised the way the majority narrowly characterised the terms on which employment was offered to the complainants, (as ?casual teachers.?) Kirby J also rejected the idea that a ?condition? had to be something the employer expressly demanded of employees.

This approach taken by the majority could impact on the capacity of employees to successfully demonstrate that a condition of work is unreasonable. Employers could impose discriminatory conditions by narrowly defining the employment on offer. It is worth noting, however, that the possible effect this case might have on complainants is still unclear because the pay scales were implemented by the NSW Department of Education under a specific statutory scheme.

This case demonstrates that complainants can sometimes face an extremely drawn out and costly process if they wish to pursue legal redress.

(2) Recent Decisions Regarding Sexual Harassment

The following two cases demonstrate that context can have a significant bearing on whether a tribunal will make a finding of sexual harassment. In addition, in certain circumstances, a one-off proposition and profession of love may amount to sexual harassment, even if the proposition is not explicitly sexual.

(a) Brown v Richmond Golf Club [2006], NSWADT 104

A complainant, Maree Brown, alleged that the General Manager of a Golf Club sexually harassed her by calling her ?babe?, ?honey? and ?sexy? once each on separate occasions and kissed her amorously on the lips after a dinner. The respondent claimed he had merely attempted to give her a peck on the cheek.

Decision ? Sexual Harassment & Sex Discrimination

The NSW Administrative Decisions Tribunal held that the General Manager had not called the complainant ?sexy? but had called her ?babe and ?honey?. Notwithstanding the mild nature of the language and infrequency of its use, this discriminated against the complainant. A male employee would not have been addressed in the same way. It also amounted to sexual harassment. The Tribunal observed that language which may be regarded as acceptable in some contexts will be unacceptable in others.

The Tribunal gave consideration to the context of the club; ?a conservative club in middle Sydney?; the inequality of the relationship between the parties; their recent acquaintanceship and ?the inherent over-familiarity of the terms?. There was no evidence to satisfy the Tribunal that the kiss had occurred. A peck on the cheek was capable of constituting sexual harassment but it would depend on the context.

The Tribunal did not make any orders, as the complainant advised that she was not seeking a remedy.

(b) K v S and N Company [2006] QADT 11

The complainant, Ms. K was employed as an administrative assistant at a business operating out of the respondent, Mr S?s home.

The complainant alleged that the respondent asked her how many children she had and how old her children were. Thinking these questions amounted to general chit-chat at the time this did not trouble her then. In hindsight, she considers that the respondent was trying to find out a little about her life. The respondent also acknowledged that he had asked the complainant whether she would like her children to live in his home.

Each week fresh flowers, usually one dozen long-stemmed red roses, appeared on the table in front of her desk. The complainant said nothing to the respondent about the roses and conceded that she thought the regular placing of flowers in her work area was a nice gesture.

The complainant came to work with a broken toe. The respondent insisted on taking her to hospital, despite the complainant politely declining his invitation. In the car, the respondent said to her, ?I?m falling in love with you and would like you and your children to move in with me.? The complainant told the respondent that she was shocked about his proposal and that would never happen as she was in a relationship with someone already. The respondent was aware of that and that she was very happy. He then told her to think about it and that it was her choice.

The Tribunal made the following findings:

The Tribunal took into account that:

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Complaints Resolution through the Commission

The Commission has an impressive track record of resolving complaints quickly and efficiently. For example in 2004/2005, 67% of complaints were finalised within three months of lodgement. The speedy resolution of complaints benefits everyone involved.

For the complainant, it means that a difficult circumstance in their life is dealt with quickly, enabling them to move on, irrespective of outcome. For the respondent, it means an opportunity for their positions to be considered and for matters to be resolved at an earlier stage than was previously possible.

The Commission helps people resolve complaints of discrimination, sexual harassment and racial and religious vilification. As it is not a tribunal or a court, the Commission does not prosecute, make judgments for or against either side, or award compensation. Instead, it helps people resolve issues by mutual agreement. This is done through a conciliation process that is confidential, impartial, free and simple.

Victorian equal opportunity and vilification laws protect the right to a fair go. Whether it is discrimination or unfair treatment based on a personal characteristic (e.g. age, disability, gender etc), sexual harassment or vilifying behaviour because of someone?s race or religion, the Commission has Complaint Officers who are on hand to assist the complainant (the person making the complaint) in preparing their written statements and to answer their queries.

Once the complaint is lodged, an Investigator, who keeps the complaint confidential and remains neutral, will gather relevant information. The Investigator will also inform the respondent (the person or organisation that the complaint is about) about the details of the complaint and discuss the matter with them. Based on the information gathered by the Investigator, the Commission may refer the matter to conciliation or decline the complaint.

While there are a number of ways that complaints can be conciliated, it is common for the Commission to hold a conciliation meeting where complainants and respondents can discuss the issues and resolve them by mutual agreement. The complainant and respondent will be expected to participate as fully as possible in the conciliation meeting and are welcome to bring a support person, lawyer or advocate with them. Many complaints are resolved at conciliation.

Complaints can be declined by the Commission for a number of reasons and depending on the reasons offered by the Commission, the complainant may take the complaint to the Victorian Civil and Administrative Tribunal (VCAT).

The Commission?s website has a detailed step by step guide to the complaint investigation and conciliation process.

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