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Inquiries and Reports - Australia
Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Women’s Legal Centre
December 2001
‘Discrimination ... have you got all day?’: Indigenous women, discrimination and complaints processes in NSW is the report of a research project conducted by the Public Interest Advocacy Centre (PIAC) and the Wirringa Baiya Aboriginal Women’s Legal Centre (Wirringa Baiya).
The report is based on a consultation with 73 Indigenous women from a range of urban, regional and rural communities throughout NSW. PIAC and Wirringa Baiya held focus groups with women about their experiences of discrimination and their responses to it, whether they knew how to complain about discrimination, who to complain to and what changes would be needed to make them feel more comfortable about making complaints.
In all of the focus groups conducted, Indigenous women reported that they experienced discrimination, and in many cases this was regular and severe. Most of the discrimination suffered by Indigenous women was about race, which took place in many areas of life, including in shops, employment, renting houses, schools, and by pubs, clubs and the police.
Women had different responses to discrimination. Some women withdrew from or tried to ignore discrimination while others challenged it and attempted to educate or punish the discriminator. Many felt intense anger and hurt at being denied equal treatment. Only some women responded by making complaints.
Most of the women had very little knowledge about where to go for help or advice about discrimination, or who to complain to, even though many knew that there were laws against discrimination. There was some level of awareness of the Anti Discrimination Board (ADB) but little awareness of the Human Rights & Equal Opportunity Commission (HREOC).
Three main issues were raised about access to complaints mechanisms. Women wanted:
Other concerns the women expressed included:
Nine women who had made complaints to the ADB or HREOC were interviewed about their experiences of making a complaint. Most felt that they needed legal advice or other support to make a complaint. All said that they would prefer to deal with Indigenous staff. Some had difficulties in putting their complaint in writing. Several reported that they were not clear about the steps in the process and felt they needed clearer advice from the complaints agencies. Most commented that the time taken to resolve complaints was too long.
Based on the experiences of Indigenous women who participated in this project, the final report made the following main recommendations to the ADB and HREOC:
The project was funded by the NSW Department for Women through the Women’s Grants Program (2000).
Extracted below are three sections of the approximately 100 page report. These are first, the part of Chapter 5 that deals with women’s experiences of discrimination and second, the conclusion to Chapter 5 which summarises issues relating to women’s experiences, as well as their responses to discrimination, their knowledge about where to go for help or advice and the accessibility issues they raised, particularly in relation to the ADB and HREOC. Third, the report’s conclusions and recommendations are extracted.
The full report can be found at <www.women.nsw.gov.au/pdf/piac_report.pdf> or is available from PIAC (phone (02) 9299 7833).
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There were many examples of discrimination in the provision of goods and services, including discrimination by shops, credit unions, hire-car companies, restaurants and hospitals.
Many women spoke of being or having been treated like second class citizens in various shops. In fact, this issue was raised in every focus group. Women spoke about being served only after non-Indigenous customers who arrived later, not being served until requested, sneered at, ignored and given ‘the look’. Many said they had been watched closely by shop attendants or ‘followed around like a criminal’ as they did their shopping. This was compared to the friendly and courteous way the same shops appeared to treat non-Indigenous customers. A number said that encountering racism in shops had led them to change their shopping routine. Others found it more difficult to avoid racist attitudes. Discrimination against Indigenous people, particularly against youth, was also raised in the context of equal access to shopping centres. In Outer Suburb 1, one woman knew seven Indigenous young people who were barred from the local centre.
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One woman also reported discrimination by banks and credit unions, which she had little doubt was racially motivated. Another told of how the employees at her credit union treated her rudely and questioned her over signatories every time she went there to cash her wage cheque. This was despite the fact that she used the same branch, and often saw the same teller, each fortnight.
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Discrimination by doctors and hospitals was also raised, particularly by the Inner and Outer Suburb focus groups. One woman said she had a bowel operation at an outer suburban hospital about five years previously. The day after the operation, she was still lying in soiled bedclothes when she asked the nurse if she could have clean pads and a change of bed linen. She overhead the nurse saying to someone else ‘I’m not changing that black women’s bed’. Another woman saw a doctor who told her that ‘all Indigenous women get herpes’.
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Many women reported difficulties in securing rental accommodation, which they believed was as a direct result of their race. Some thought their difficulties stemmed more or equally from being single mothers. Some women said that they generally knew they could only get second rate private rental accommodation in their towns because they were Indigenous. This meant poor quality properties in need of repair (ie ‘the bottom of the barrel’), with landlords who rarely made any repairs.
One woman told of how once she had obtained rental accommodation quite easily, as she has a fair complexion. However, as soon as the landlord saw her children, who had darker skin, they ‘were sent packing’. Others had also been told flats and houses were available over the phone, but upon attending the real estate agent, ‘all of a sudden there were no places vacant’.
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One woman was denied rental accommodation by a real estate agent — her application was continually put aside. Upon making further inquiries, she was told by a staff member ‘we don’t let your type in, black people’.
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Many women were concerned about what they perceived to be the high unemployment rate of Indigenous people in their town or city. They said that employment opportunities for Indigenous people were mainly in Indigenous community organisations and designated Indigenous positions in mainstream government agencies. In some towns, other options included seasonal work (generally for men) or working for government benefits as part of CDEP. One woman said ‘You’ve got to be born into jobs (here), there’s never a black face in the shops’. The manager of the CDEP in Western Town 1 said that despite heavy subsidies available through government training schemes, employers in town were strongly opposed to employing Indigenous people.
Of particular concern to the women was the lack of employment opportunities for their children and the community’s youth. Barriers in accessing employment were seen as a strong disincentive for Indigenous school children. One woman said ‘A lot of them ask us why aren’t our kids going through to Year 12 and that. I said well, they get to Year 9 and they can look around the community to see that there’s no way for them to get jobs. I say where do you see a black person in the shop?’
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One women thought that Indigenous employees were generally less trusted than non-Indigenous employees. Her daughter, a teacher, was constantly being checked on at work. ‘There’s an assumption if you’re black that you don’t know anything’. One woman thought that in order to survive in a mainstream job, you had to ‘unzip your Aboriginality at the front door’.
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Many women in the group had been banned from various pubs and clubs in their lifetime, some more regularly than others. Many viewed these bans as in almost all cases totally unreasonable in the circumstances. Sometimes, minor arguments with bar or other staff following discriminatory treatment would rapidly escalate, police would be called and confrontations would become violent, with arrests and charges the result. This was particularly the case in the Western and Eastern Towns.
One woman from Outer Suburb 1 felt that many pubs and clubs discriminated unfairly against Indigenous people. She was at a pub one night in the early 1990s, eating dinner with her 8-year-old son. The rule at that pub was that children under 18 were allowed in that part of the premises until 8:30 pm. The bartender, who had previously made sexual advances towards her, which she had refused, approached and told her that her son would have to leave. As it was only 8 pm, she began arguing with him. Following this incident, the woman was banned from the club for 12 months. She said of the staff at the pub, ‘They treat Indigenous women like bitches and sluts ...and men like dogs. The majority of Indigenous people are barred from that pub’.
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A woman from Inner Suburb told of how she was refused entry to a nightclub. The bouncer said that the manager had given orders that they were barred. She asked on what basis and wouldn’t stop pressuring him for an answer. He finally said ‘I’m not allowed to let any blacks in the door’.
A number of women raised the issue of the police not protecting Indigenous victims of domestic violence. They thought police had an attitude that ‘they’ll work it out for themselves’. One woman was in a taxi with her partner about eight years ago. There was a violent confrontation and she asked the taxi to pull up at a police station, where she got out of the taxi and began calling for help. Two policemen came out and walked towards her. When they saw the situation, they walked back inside. She called out ‘Hello, this man’s about to bash me’. She went up to the police door and it was locked. She could see about seven or eight policemen working inside. One finally came out and the woman asked for an Aboriginal Community Liaison Officer (ACLO) but they said that none was on duty. She said she had an Apprehended Violence Order out against the man with her, and they asked whether she had a copy, and did not help her.
The women also spoke about the over-policing of Indigenous communities, and how they, their partners and children were often picked on, harassed and treated unfairly by the police. For example, one woman told of observing the police in Western Town 1 approach two Indigenous young men in a pub and start asking them questions. This turned into an argument and before long, the police were taking them in to be charged. The woman viewed the behaviour of the police as harassment. She said to one of them, ‘Excuse me, (name), but do you wake up with a chip on your shoulder for hatred towards blacks?’, and he said ‘Yes I do and I know your name and you’re barred’, and he told the publican to put her name on the list. She ended up being barred for a month.
Women spoke of discrimination by police against their loved ones. There was concern that police don’t treat Indigenous young people with any respect. One woman was sitting with a group of young Aboriginal people at the youth centre, and some police came along and didn’t notice her, and said to them ‘What are you doing here, you little boongs, why don’t you go home or I’ll lock you up’. One woman’s son had been bashed by the police when he resisted arrest, resulting in his hospitalisation. In Outer Suburb 1, concern was raised over the strip searching of two Indigenous children while at school.
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Many women talked about discrimination in schools against their children, by teachers and by non-Indigenous children. One said she sometimes wished that Indigenous people had their own schools, because ‘we wouldn’t have to go through all this racism’. The women were tired of their children coming home crying and of having to constantly defend and protect them. Many spoke of having children suspended or expelled as young as nine and 10 years old. Some felt that there were different behavioural standards for Indigenous children at schools, and that schools did not give them appropriate education.
One young woman told of how a teacher at her high school had called her a ‘dumb, black street kid who would never get your HSC’. He said to her once ‘Why don’t you leave now? You’re a waste of time and a waste of space’.
One woman in Eastern Town 2 raised an incident of possible racial vilification. She said that just last week, a colleague working alone one day at an Indigenous agency had gone downstairs to have a smoke and saw fresh graffiti on the front door saying: ‘The Ku Klux Klan was here’. She was so nervous that the writer may come back with a group that she contacted other Indigenous workers in town, who encouraged her to close the office for the rest of the day if she felt unsafe, which she did. Some women in Western Town 1 also said that vigilante groups operated in their town, though the details of this were not provided.
A number of women said they had experienced discrimination by neighbours. One woman’s next door neighbour regularly harasses her, calling her names and making racist comments. Her grandchildren are too terrified of him to play in her yard. His Indigenous neighbour on the other side had sold up and moved because she could not stand it anymore. Even his grandchildren call her names like ‘black bitch’. He says if he ever knew his place was next door to where Indigenous people live, he never would have bought it.
Another woman was also harassed by her neighbours to such an extent that she moved into her mother’s house for a short period because she felt unsafe. This was while she tried to convince the Department of Housing to re-house her elsewhere, which they would not do. She eventually had to move into private rental accommodation.
Other examples were of personal offensive encounters. One said that something that really annoys her is being asked ‘how much Indigenous’ she is. She said ‘I say, well, I’m — Indigenous! They go, well, how much are you, a sixteenth? And I say “Ohhhh, those old terms! Geez, we’re not living in the sixties.” I say “today’s the year 2000 and I don’t look at things like that and nor do our people.” I’m proud of who I am. It doesn’t matter how much I’ve got in me. It’s me, it’s who I am.’
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Many of the Indigenous women who participated in the focus groups had a high level of understanding of the meaning of discrimination. In all groups, Indigenous women reported that they experienced discrimination and in most cases this was reported to be regular and often severe. Overwhelmingly the discrimination suffered by Indigenous women was on the ground of race. Racial discrimination was experienced in many areas of life, including in the provision of goods and services, obtaining and keeping accommodation, in employment, in the benefits and services provided by clubs, in education and by the police.
Responses to discrimination varied. Some women withdrew from or tried to ignore discrimination while others challenged it and attempted to educate or punish the discriminator. Many felt intense anger and hurt at being denied equal treatment. Some women responded by lodging complaints.
Most of the women had very little knowledge about where to go for help or advice about discrimination, or who to complain to, even though many were aware that there were laws against discrimination. There was some level of awareness of the ADB but little awareness of HREOC. More women nodded their heads when these organisations were mentioned, than raised them in answer to questions about where to go for help with discrimination and where to complain. There was some level of awareness and use of the NSW Ombudsman, but little of the IRCs. Some women had used the ADB but none had used HREOC. ...
Discussion by all focus group participants raised many access issues. There were three primary issues, all inter-connected. One was the need for culturally appropriate information and education about the ADB and HREOC and what they can offer Indigenous women who have suffered discrimination. Another was also a strong desire to have face-to-face contact with ADB and HREOC staff, either through a permanent local office or officer, or regular community outreach visits, both for information and education and ideally for complaints processing. Lastly, there was the need for Indigenous complaints handling staff and Indigenous outreach workers to ensure the effective delivery of information and education, and to improve confidence in using discrimination complaints mechanisms for Indigenous women.
Women raised the difficulties of accessing information or processes which were largely written. Some expressed a lack of faith that a complaint would help the situation, either from their experience of dealing with other agencies and/or from their knowledge of ADB and HREOC processes. Some thought that long time frames, certainly beyond a year or so, had or would put them off using anti-discrimination processes. Lastly, women raised fears in relation to the potential cost of making a complaint, about the lack of available and appropriate legal advice and representation and about the need for support when making a complaint of discrimination through a process such as the ADB or HREOC.
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This report reveals that many of the Indigenous women interviewed have a sound understanding of the meaning of discrimination, and experience it on a regular basis. Overwhelmingly the discrimination suffered by Indigenous women was on the ground of race, sometimes combined with gender discrimination. Racial discrimination was experienced in many areas of life, including in the provision of goods and services, in pubs and clubs, in obtaining and keeping accommodation, in employment, in education and by the police.
Despite their intense experiences of discrimination, many of the women interviewed were not aware of where or how to complain about discrimination. They reported that they want culturally appropriate information from discrimination complaints bodies to be available in their communities. They want the opportunity for face-to-face contact and to ask questions with staff from the ADB and HREOC. They want the opportunity to deal with Indigenous staff when making a complaint. They want a process that does not rely too heavily on written correspondence, does not take too long or involve the risk of costs which they could not afford. The recommendations in this chapter are based on these findings.
This report could have made many recommendations in relation to preventing discrimination, for example, recommendations to ensure that police always respond appropriately to domestic violence calls. However, these are beyond the scope of the report, which is limited to examining women’s access to discrimination complaints mechanisms. Nevertheless, it is recognised that work needs to be done to reduce the incidence of discrimination affecting Indigenous women, as revealed in this report.
Indigenous women interviewed for this study expressed a strong desire for information about ways to complain about discrimination. They indicated that the most effective way of learning about discrimination and discrimination complaints mechanisms was direct communication through visits to communities by the relevant agency, with the opportunity to ask questions. This was more likely to be effective if conducted by Indigenous staff. Some women consulted for the project said that they knew about the ADB because of previous outreach visits; however, some women had never heard of the ADB.
The ADB recognises the need for outreach to Indigenous communities. Its Indigenous Team consists of three Indigenous officers, two of whom are dedicated to outreach, and make regular visits to Indigenous communities in urban and rural areas to raise awareness about discrimination issues. However, there is still insufficient staff in the unit to meet demand for both outreach and complaints handling (see Recommendation 2).
Recommendation:
1. That the ADB expand its program of visits to urban and rural Indigenous communities to explain and promote the ADB. Indigenous staff should be involved in such visits.
Indigenous women interviewed for this study expressed a strong preference for dealing with Indigenous staff for discrimination education programs and when making complaints. Indigenous staff were viewed as easier to approach, understand and relate to, and better able to comprehend their situation and respond appropriately, than non-Indigenous staff.
The ADB recognises that ensuring equal access to their service for Indigenous women and men involves the employment of Indigenous education and complaints handling staff. Its Indigenous Team consists of three Indigenous officers, one of whom is dedicated to complaint handling.
Some ADB complainants reported that they were not aware of having the option of requesting an Indigenous officer to handle their complaint, as when they rang up or wrote in, this was not offered. All Indigenous complainants should be offered the opportunity of choosing an Indigenous complaints handler.
Lastly, it is important that both male and female Indigenous complaint handling staff are employed. For example, women who lodge complaints about sex discrimination or sexual harassment may feel more comfortable with female staff.
Recommendations:
2. That the ADB expand its Indigenous Team by employing additional (female and male) Indigenous complaints handling and outreach staff.
3. That the ADB publicise the presence of Indigenous complaints handling staff and give complainants a clear choice about dealing with them.
Women consulted for the project, as in previous studies, were critical of the one- to two-year time frame for complaints to be resolved. They saw the long drawn-out nature of the complaints process as off-putting, stressful and frustrating. Time delays contributed to the decision by some women to withdraw their complaints from the ADB.
The waiting time for the allocation of non-urgent complaints in May 2001 was 12 months and this has doubled since the previous year when it was six months. Once a matter is allocated, it can take anything up to and over 12 months to then be finalised. In 1999–00 for example, 36% of all complaints were finalised by the ADB within three months, 53% within six months, 74% within 12 months and 26% took more than 12 months.
These backlogs and the time taken to deal with complaints should be reduced so that complaints are resolved faster. Additional complaints staff is needed to achieve this. Management considered that the ADB Indigenous Team requires at least two additional complaint handling positions to address existing delays and backlogs and ensure timely and efficient service delivery in the future.
Recommendation:
4. That the ADB take active steps to reduce backlogs of complaints and the time taken to deal with complaints. Additional complaints handling staff should be employed to achieve this.
Indigenous women, particularly those in rural and regional communities, felt very distant and therefore alienated from complaints bodies based in Sydney and in the case of the ADB, Newcastle and Wollongong. Many expressed support for the idea of agencies such as the ADB and HREOC having local offices, or a local presence of some sort. They felt that having a local ADB officer, for example, would mean that the community would have a significantly better opportunity to get to know the services of the ADB through that person. Further, they considered that a local ADB officer could more effectively assist the community to address local discrimination issues and promote the ADB as a complaints mechanism.
Staff based in various communities throughout NSW could be housed within other local agencies, in order to save costs. These additional staff could address the need for culturally appropriate outreach (see Recommendation 1) and, if they assisted with complaints handling, could contribute to reducing delays (see Recommendation 4).
Recommendation:
5. That the ADB establish offices or staff based in regional centres throughout NSW to provide outreach and complaint handling for Indigenous people.
Indigenous women indicated a need for culturally appropriate information about discrimination and complaints mechanisms. They wanted ‘Koori friendly’ brochures containing examples relevant to their lives and language they understood and related to.
The ADB has a range of brochures and fact sheets which provide information about the services of the ADB and how to lodge a complaint. One booklet, Know Your Rights: Guide for Aboriginal and Torres Strait Islander People, is specifically targeted at Indigenous people. However this is 33 pages long and is a resource document for Indigenous organisations rather than a popular information brochure.
There was no ADB (or HREOC) material on display at any of the ten Indigenous agency venues utilised for the project focus groups (including refuges, housing organisations, resource centres and Land Councils), though there were brochures from other agencies.
Shorter culturally appropriate promotional and information materials need to be developed by the ADB. These need to be effectively distributed and promoted through Indigenous and non-Indigenous organisations used by Indigenous people.
They also need to be in ‘Aboriginal English’. Aboriginal English is the name for a range of types of English spoken by many Aboriginal people. It is a dialect of English like Scottish and Irish and many other ‘Englishes’ and has a different set of sounds, its own rules for making sentences and different ways of being used by its speakers than Standard Australian English (Aboriginal English website, Edith Cowan University). Aboriginal English has recognition at a number of levels of government. There have also been some important developments in the recognition and understanding of Aboriginal English in Departments of Education around the country and in the legal system, following a number of key criminal cases involving Aboriginal English speaking witnesses.[1]
Recommendation:
6. That the ADB develop shorter promotional materials which are culturally appropriate for Indigenous communities. They should use Indigenous examples and images and be in Aboriginal English. They should be widely distributed through Indigenous media outlets and Indigenous and non-Indigenous organisations.
Many of the Indigenous women consulted for the project commented on the difficulty of accessing information or processes that rely heavily on reading and writing.
The Anti-Discrimination Act requires complainants to lodge complaints in writing. It is possible to record the details of a complaint on audiocassette however, a letter must still be lodged containing some basic details. The process of investigating and conciliating matters can rely heavily on written correspondence. Complainants receive letters requesting information and other advice and are generally expected to respond in writing. Several of the Indigenous women who had lodged complaints with the ADB found reading, understanding and writing letters a difficult part of the complaints process.
Recommendations:
7. That the ADB refer complainants to sources of assistance for making written complaints, and actively offer alternatives such as making an oral statement, having it recorded and then having the complainant check and sign it. This process should also be available if substantial additional information about the complaint is requested by the ADB.
8. That the ADB ensure that each step of the process is explained orally to complainants, in addition to relying on written communications.
The ADB publishes comprehensive statistics on all complaints, including complaints by Indigenous people. The ADB annual reports contain a breakdown of how many Indigenous people lodge complaints, on what ground and in what area. However, complaints by Indigenous men and women are not separated. It is important that information is available about the numbers of Indigenous men and women who use the services of the ADB, so that access by these groups can be evaluated.
Recommendation:
9. That the ADB collect and publish statistics on the number and nature of complaints made by Indigenous women and by Indigenous men.
Recommendation:
10. That the NSW Government allocate additional resources to employ Indigenous staff to meet demand for outreach and complaints handling and reduce backlogs and time taken to deal with complaints (see Recommendations 1, 2, 4 and 5).
Indigenous women interviewed for the project were unsure of where to go for advice or of who could assist them with discrimination matters. They reported a chronic lack of accessible free civil legal advice, particularly in the Western and Eastern Towns. Without appropriate and adequate support, they found it very difficult to address discrimination through processes such as the ADB and HREOC as these processes were frightening and difficult to navigate, on a practical and an emotional level.
Indigenous women need improved access to advice about discrimination. This should be a mixture of telephone and local face-to-face advice from culturally appropriate services. In addition, women need access to ongoing support, advice and in some cases, representation, where they choose to lodge discrimination complaints.
Recommendation:
11. That the NSW Government allocate increased resources to Indigenous community centres and Indigenous legal centres to ensure that legal and support services are available to Indigenous women seeking to complain about discrimination.
Indigenous women interviewed for this study expressed a strong desire for information about ways to complain about discrimination. Many had not heard of HREOC. They indicated that the most effective way of learning about discrimination and discrimination complaints mechanisms was direct communication through visits to communities, with the opportunity to ask questions. This was more likely to be effective if conducted by Indigenous staff.
The HREOC complaints section does not have a specific Indigenous outreach strategy. Twice a year presentations are made to particular key complaint stake holder groups and these include Indigenous groups. Indigenous groups may also be met when conciliations are held in regional and rural locations. HREOC policy units also have contact with Indigenous communities in the context of other projects such as the World Conference Against Racism however, these do not specifically promote or relate to the HREOC complaint handling function.
An effective and culturally appropriate outreach program for NSW would require the involvement of Indigenous staff, consultation with Indigenous communities and the development of a plan of visits. If successful, it would be likely to result in additional numbers of complaints, which would in turn require additional complaints staff (see Recommendation 12). Since this project has been undertaken, the HREOC Complaint Handling Section has advised that it is currently planning a new community education program in NSW which will focus on visiting community centres and legal services in urban and rural NSW and will involve Complaint Information Officers and Investigation/Conciliation Officers, including Indigenous staff.
Recommendation:
12. That HREOC conduct a program of regular visits to urban and rural Indigenous communities in NSW to explain and promote complaints mechanisms. Indigenous staff should be involved in such visits.
Indigenous women interviewed for this study expressed a strong preference for dealing with Indigenous staff for discrimination education programs and when making complaints. The experience of the NSW ADB and the Victorian Equal Opportunity Commission indicates that Indigenous peoples’ use of complaints procedures is more likely to increase if Indigenous staff are employed. The need for designated staff has also been documented by previous studies and consultations (see Chapter 2).
Current HREOC policy prefers the recruitment of complaint handling staff through the general recruitment process rather than create specific vacancies that are only open to Indigenous people and have to justify these positions as special measures or have identified positions. To encourage Indigenous people to apply for positions in the Complaint Handling Section, all positions are advertised in Indigenous media and encourage applications from Indigenous people. Therefore the HREOC Complaints Handling Section does not have an Indigenous complaints unit, or identified or designated positions or vacancies. Over the last four years, there have been two time periods totalling at least six months when there have been no Indigenous complaints officers.
To ensure equal access to their service by Indigenous women, it is vital that HREOC employs Indigenous staff to conduct outreach and complaints handling. While it is important to have staff that may be ‘identified’ as having knowledge and skills which enable them to communicate effectively with Indigenous people, the women consulted for this project indicated a desire for Indigenous staff. An effective outreach strategy, including the participation of Indigenous staff, would be likely to increase the numbers of complaints by Indigenous people, thus further increasing the need for Indigenous complaints handling staff.
Lastly, it is important that both male and female Indigenous complaint handling staff are employed. For example, women who lodge complaints about sex discrimination or sexual harassment may feel more comfortable with female staff.
Recommendations:
13. That HREOC employ (male and female) Indigenous complaints handling and outreach staff.
14. That HREOC publicise the presence of Indigenous complaints handling staff and give complainants a clear choice about dealing with them.
Women consulted for the project, as in previous studies, were critical of the time taken for complaints to be resolved. They saw the long drawn-out nature of the complaints process as off-putting, stressful and frustrating.
In 1999–00, 27% of all complaints were finalised by HREOC within three months, 53% within six months and 83% within 12 months. The time taken to deal with complaints should be reduced so that complaints are resolved faster.
Recommendation:
15. That HREOC take active steps to reduce the time taken to deal with complaints. Additional complaints handling staff should be employed to achieve this.
Indigenous women, particularly those in rural and regional communities, felt very distant and therefore alienated from complaints bodies based in Sydney. Many expressed support for the idea of agencies such as the ADB and HREOC having local offices, or a local presence of some sort. They felt that having a HREOC local officer, for example, would mean that the community would have a significantly better opportunity to get to know the services of HREOC through that person. Further, they considered that a local HREOC officer could more effectively assist the community to address local discrimination issues and promote HREOC as a complaints mechanism.
Staff based in various communities could be housed within other local agencies to save costs. These additional staff could address the need for culturally appropriate outreach (see Recommendation 1) and, if they assisted with complaints handling, could contribute to reducing delays (see Recommendation 4).
Recommendation:
16. That HREOC establish offices or staff based in regional centres throughout NSW to provide outreach and complaint handling for Indigenous people. These positions could be jointly funded by the ADB and HREOC, to provide services on behalf of both agencies (see Recommendation 5).
Indigenous women indicated a need for culturally appropriate information about discrimination and complaints mechanisms. They want ‘Koori friendly’ brochures containing examples relevant to their lives and language they understood and related to.
HREOC has a variety of brochures and information sheets that provide information about their services and how to lodge a complaint, however they are not specifically targeted at Indigenous people. There is a resources folder, Tracking Your Rights, for Indigenous organisations but there appears to be a lack of short, culturally appropriate and popularly written brochures. The resource folder includes a culturally appropriate video about discrimination and ways of responding to it.
There was no HREOC (or ADB) material on display at any of the 10 Indigenous agency venues used for the project focus groups (including refuges, housing organisations, resource centres and Land Councils), though there were brochures from other agencies.
Shorter culturally appropriate promotional and information materials need to be developed by HREOC to promote awareness of it as a discrimination complaints mechanism. These materials need to be effectively distributed and promoted through Indigenous and non-Indigenous organisations used by Indigenous people. They also need to be in ‘Aboriginal English’ (see Recommendation 6).
Since this project has been undertaken HREOC has advised that it recently developed posters, magnets and postcards to advertise the Complaints Infoline. These posters and magnets use an Indigenous based design. Also, HREOC is currently working with Streetwise to develop an advertisement about the complaint handling service for Indigenous newspapers and will look at developing promotional material about the legislation and the complaint handling process that will be appropriate for and targeted at Indigenous communities.
Recommendation:
17. That HREOC develop shorter promotional material which is culturally appropriate for Indigenous communities. Such material should use Indigenous examples and images. It should be in Aboriginal English and be widely distributed through Indigenous media outlets and Indigenous and non-Indigenous organisations.
Many of the Indigenous women consulted made comments about the difficulties of accessing information or processes that rely heavily on reading and writing.
HREOC requires complainants to lodge complaints in writing. However, if a person requires assistance to formulate a complaint or to reduce it to writing, staff are available to assist. In fact, HREOC has an obligation to take reasonable steps to provide appropriate assistance to a person who requires assistance to formulate a complaint or reduce it to writing (s 46P(4) HREOC Act). The process of investigating and conciliating matters generally relies heavily on written correspondence. Complainants receive letters requesting information, ideas for remedies and other advice and are expected to respond in writing.
Recommendations:
18 That HREOC refer complainants to sources of assistance with making written complaints, and actively offer alternatives such as making an oral statement, having it recorded and then having the complainant check and sign it. This process should also be available if substantial additional information about the complaint is requested by HREOC.
19. That HREOC ensure that each step of the process is explained orally to complainants, in addition to relying on written communications.
HREOC publishes statistics on complaints by ground and area of complaint on a national basis. However, it does not publish statistics on a state-by-state basis, nor on Indigenous complainants, except under the Racial Discrimination Act. It is important that information is available about which states complaints come from, about the numbers of Indigenous men and women who use the services of HREOC, and about what the nature of these complaints are. Such quantitative information is needed to monitor Indigenous people’s experience of discrimination and to evaluate their access to HREOC.
HREOC has advised that from the 2000–01 annual report onwards HREOC will be reporting on complaints received by sex for each Act and complaints received by ethnicity of complainant for each Act.
Recommendation:
20. That HREOC collect and publish statistics on the number and nature of complaints made in each state, and on the number and nature of complaints made by Indigenous men and women.
Recommendation:
21. That the Commonwealth Government provide additional resources to employ additional Indigenous staff to meet demand for outreach and complaints handling and reduce time taken to deal with complaints (see Recommendations 12,13, 15 and 16).
Indigenous women interviewed were unsure of where to go for advice or of who could assist them with discrimination matters. They reported a chronic lack of accessible free civil legal advice, particularly in the Western and Eastern Towns. Without appropriate and adequate support, they found it very difficult to address discrimination through processes such as the ADB and HREOC as these processes were frightening and difficult to navigate, on a practical and an emotional level.
Indigenous women need improved access to advice about discrimination. This should be a mixture of telephone and local face-to-face advice from culturally appropriate services. In addition, women need access to ongoing support, advice and in some cases, representation, where they choose to lodge discrimination complaints.
Recommendation:
22. That the Commonwealth Government allocate increased resources to Indigenous community centres and Indigenous legal centres to ensure that legal and support services are available to Indigenous women seeking to complain about discrimination.
No statistics on the gender or ethnicity of complainants are recorded in the NSW or Commonwealth Ombudsman’s annual reports. In May 2001 the Commonwealth Ombudsman’s office indicated that it was developing a new database which might address this issue (correspondence from Ombudsman’s Office). Since the Ombudsman’s Offices may be the only appropriate mechanism for some complaints about government agencies, it is important that there are appropriate services for Indigenous communities and that information is available about the numbers of Indigenous men and women who use the services of both offices.
Recommendation:
23. That the Offices of the NSW and Commonwealth Ombudsman collect and publish statistics on the number and nature of complaints made by Indigenous men and women.
Indigenous women interviewed for this study expressed a strong preference for dealing with Indigenous staff for discrimination education programs and when making complaints. They also identified a strong need for outreach through visits to communities.
Both the NSW and Commonwealth Ombudsman employ Indigenous officers to conduct Indigenous outreach programs and as complaint handlers, although in the case of the Commonwealth it is not clear whether this will be funded in future. The Commonwealth Ombudsman has two Indigenous officers to provide outreach and complaint handling throughout the whole of Australia, while the NSW Ombudsman has four designated positions.
Recommendation:
24. That the Commonwealth Ombudsman’s Office be funded to employ Indigenous complaints and outreach officers on an ongoing basis.
Neither the NSW nor the federal IRC publishes statistics of the gender or ethnicity of individual applicants. Only arbitrated cases are available on the public record in both jurisdictions, and these represent only a small percentage of total cases. Thus there is no statistical information available about the complaints made to either commission by Indigenous women. Since the commissions may be the most appropriate complaints mechanism for some complaints about discrimination in employment, especially unfair dismissal, it is important that information is available about the numbers of Indigenous men and women who make applications to both commissions.
Recommendation:
25. That the NSW and Commonwealth Industrial Relations Commissions collect and publish statistics on the number and nature of applications made by Indigenous men and women.
Both industrial jurisdictions are based in part on the concept of collective bargaining, which means that individuals are often represented by unions or employer associations. The commissions themselves do not have outreach programs.
The NSW Department of Industrial Relations has a public enquiry service for both employees and employers about award entitlements. It also inspects workplaces for award compliance. In March 1999 the department established an Indigenous workplace services unit. This unit provides information to Indigenous people about awards and conducts workshops on employment issues for Indigenous organisations if requested to do so.
The Commonwealth Department of Employment, Workplace Relations and Small Business has an award information and inspection service, but does not advertise specific services in this area for Indigenous people. The Office of the Employee Advocate provides information about individual workplace agreements but does not have any specific services for Indigenous people.
Recommendation:
26. That the Commonwealth Department of Employment, Workplace Relations and Small Business establish an Indigenous unit to provide information to Indigenous people.
Some of the women consulted for the project said they found aspects of ‘white man’s’ bureaucracy and law alienating, inappropriate and lacking an understanding of Indigenous women’s perspectives and experiences. They were sometimes reticent to complain to a non-Indigenous organisation about issues of race. As mentioned, many said they felt more comfortable and understood by Indigenous officers.
Indigenous people are under-represented as members of tribunals due to historic and continuing discrimination and disadvantage. Tribunal members bring a variety of perspectives and expertise to the task of hearing and deciding discrimination matters. In order to ensure a tribunal that has the relevant skills and expertise to hear Indigenous women on issues of discrimination, and that the tribunal reflect the composition of the community, there is a need for active steps to increase the number of Indigenous tribunal members.
Recommendation:
27. That the ADT take active steps to increase the number of Indigenous tribunal members hearing discrimination matters.
In order to pursue a discrimination matter in the Federal Court and FMS, a $50 lodgement fee is required, though this can be waived. To ensure that this jurisdiction is accessible to people who may be economically disadvantaged, the fee waiver policy should be widely advertised, including by staff servicing phone inquiries and on the Federal Court/FMS web site.
Recommendation:
28. That the Federal Court/FMS promote its policy on waiver of fees for people on low incomes lodging discrimination claims.
Some of the women interviewed for the project commented that if the process involved any costs at all, such as for advice, representation or lodging fees, they would not be in a position to access it. Both of the HREOC complainants mentioned the possibility of having to pay the costs of the other party as a factor in their decision not to proceed to the federal court, either for decision or for appeal.
The risk of an adverse costs order, no matter how small that risk may be, means that many disadvantaged people, including Indigenous women, will not proceed to the hearing stage of a complaint. A ‘no costs’ jurisdiction for discrimination matters (where each party pays their own legal costs regardless of which party succeeds) would be consistent with the objective of providing an accessible avenue of redress. While complainants would still have to cover the cost of their own legal representation (unless they were granted Legal Aid or could secure pro bono services), they would at least not have the additional costs risk to deter them from enforcing their rights.
Providing a ‘no cost’ jurisdiction in the FMS would provide complainants with a choice of jurisdictions, one a cost jurisdiction (the Federal Court) and the other a no cost jurisdiction (the FMS).
Recommendation:
29. That the Federal Government legislate to make the FMS a ‘no-cost’ jurisdiction for discrimination matters.
Indigenous people are under-represented on the bench due to historic and continuing discrimination and disadvantage. Judges and magistrates bring a variety of perspectives and expertise to the task of hearing and deciding discrimination matters. To ensure a bench that has the relevant skills and expertise to hear Indigenous women on issues of discrimination, and that the courts reflect the composition of the community, there is a need for Indigenous judges and magistrates to be represented on the bench in the Federal Court and FMS.
Recommendation:
30. That the Federal Court and FMS take active steps to increase the number of Indigenous judges and magistrates sitting on the bench hearing discrimination matters.
[1] In the state of Queensland the Department of Justice and the Attorney-General has developed an innovative project to facilitate communication with speakers of Aboriginal English in the courts, by alerting judges, magistrates and lawyers to the differences between the Aboriginal English and Standard English, so that any misunderstanding is quickly identified and remedied. This project involves a handbook and the training and accreditation of specialist communication facilitators (Language Varieties website, University of New England).
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URL: http://www.austlii.edu.au/au/journals/AUIndigLawRpr/2001/57.html