Investigating for Resolution

Date: 8 November 2012

Jodie Ball

Deputy Director, ICS

Session outline

1. Approaches to investigation

2. Investigations at the AHRC

3. Key characteristics of investigating for resolution

4. Benefits

Approaches to Investigation

• Criminal law investigations

• Civil law investigations

• Complaint investigations undertaken by NHRIs & anti-discrimination institutions

Approaches to Investigation

The investigation work of National Human Rights Institutions & anti-discrimination institutions:

• Not criminal or civil investigations

• Civil law action may follow

• The institutions can assist complainants or intervene in subsequent judicial action

Approaches to Investigation

The investigation work of National Human Rights Institutions & anti-discrimination institutions:

• Inquisitorial rather than adversarial

• Not strictly bound by judicial forms or procedures

• Generally the institution has a role to facilitate the resolution of a

complaint through a form of Alternative Dispute Resolution (ADR)

Approaches to Investigation

The investigation work of National Human Rights Institutions & anti-discrimination institutions

• Generally confidential can have public aspects

• Generally ‘paper-based’ process but can include oral hearings

• Possible powers to compel information & documents.

Approaches to Investigation

The purpose of investigations conducted by NHRIs & anti-discrimination institutions can be classified as:

• Investigation for resolution

• Investigation for administrative determination

• Investigation for referral for judicial action

Investigations at the AHRC

• Racial Discrimination Act 1975

• Sex Discrimination Act 1984

• Disability Discrimination Act 1992

• Age Discrimination Act 2004

• the Australian Human Rights Commission Act 1986 covers human rights breaches and discrimination in employment based on religion, sexual preference, criminal record, trade union activity or political opinion

Investigations at the AHRC

Four young Aboriginal women claimed that staff at the respondent supermarket abused them, gestured at them and did not permit them to enter the store because of their race. The complainants claimed staff subsequently accused them of stealing.

The complainant was employed as a manager with the respondent consultancy firm. The complainant said that after she announced her pregnancy, she was given negative performance reviews and subsequently told that her employment would be terminated.

Investigations at the AHRC

The complainant alleged that she was sexually harassed by a co-worker at the aged care facility where she works. The complainant claimed the co-worker made comments about her breasts and on one occasion pushed her on a bed, lay on top of her, grabbed her genitals and breasts and rubbed himself against her. The complainant said she made an internal complaint, but this was not taken seriously.

Investigations at the AHRC

The complainant is 67 years old and applied for several positions through the respondent recruitment company. He claimed that despite his qualifications, the respondent did not invite him for an interview. The complainant said the respondent advertised that it offered a 'young and dynamic culture'.

The complainant lodged the complaint on behalf of her husband who has epilepsy and is accompanied by a seizure alert dog. The complainant claimed that the respondent shuttle bus company discriminated against her husband by not allowing him to be accompanied by his seizure alert dog on the bus.

Investigations at the AHRC

Complaint

Response to complaint

Try to resolve complaint (conciliation)

Resolved Not resolved

Court option Report to Parliament

Investigating for Resolution

Purpose

The purpose of the investigation is to:

• Gather sufficient information to attempt resolution of the complaint

• Assess whether the complaint meets the substance threshold for conciliation

Investigating for Resolution

Purpose

“ a claim which presents no more than a remote possibility of merit or

which does no more than hint at a just claim would ordinarily, I think, be

found to be lacking in substance.”

Assal v Department of Health, Housing and Community Services (1992) EOC 92-409

Investigating for Resolution

Role of the Investigator

• Fair and impartial

• Inquisitorial not adversarial

• Gather the best evidence

Investigating for Resolution

Conducting investigations

• Level of investigation can vary

• Principles of natural justice and procedural fairness apply

• Investigations are planned and targeted

Investigating for Resolution

Investigation Plan

a. Who is(are) the complainant(s)?

b. What is alleged?

c. Who is(are) the respondent(s)?

d. What law is relevant?

e. Handling factors?

f. Evidence matrix

Investigating for Resolution

Key

questions

Evidence on

hand

Evidence to

be sought

and source

Method

Evidence Matrix

Investigating for Resolution

Conducting investigations

• Generally ‘paper-based’

• Power to compel the production of information and documents

• Investigations are confidential

• Information gathered is analysed

1. Review key questions – fact and law

2. What is agreed/confirmed - fact and law?

3. What is in dispute – fact and law?

4. In relation to what is in dispute - how persuasive are the arguments and why?

[Assess the evidence]

Investigating for Resolution

Analysing Information and Evidence

Benefits of this approach

• Increased efficiency

• Consistent with legal context

• Enhances focus on resolution