ࡱ>   g HbjbjVV rr<r<?{""||D0000|0X$x x x x x ---XXXXXXX$Ze]V4X-+ ---4X||x x  IX[>[>[>-|x x X[>-X[>[>VXhWx 4$&֞a3rrW(W_X0XW(]:]PW]W8--[>-----4X4X[>---X----]---------" B: HUMAN RIGHTS COMMISSION CONCILIATION UNDER THE RACIAL DISCRIMINATION ACT 1975: A STUDY IN THEORY AND PRACTICE by Patrick Pentony Occasional Paper No. 15 November 1986 Australian Government Publishing Service Canberra 1986 C Commonwealth of Australia 1986 ISSN 0810-0314 ISBN 0 644 05672 X Published in the International Year of Peace The Occasional Paper Series This is the fifteenth in the Human Rights Commission's Occasional Papers series. It was prepared for the Commission by Patrick Pentony. Occasional Papers are issued by the Commission from time to time to deal in depth with a particular problem or subject. In some cases they are intended to provide an analytic review of a subject, raising what are seen to be key issues and arguments. In other cases, they may set out facts or background to assist in a better understanding of a problem or a subject area. Their overall objective is to promotoe greater awareness and public discussion of human rights. None of the views that may be expressed or implied in the Occasional Papers series are necessarily those of the Human Rights Commission or its members, and should not be identified with it or them.ccasionalPaper No.1Incitement to racial hatred: issues and analysis. October 1982.OccasionalPaper No.2Incitement to racial hatred: the international experience. October1982.OccasionalPaper No.3Words that wound: proceedings of theConference on Freedom of Expression and Racist Propaganda. February1983.OccasionalPaper No.4Compendium of human rights courses in Australian tertiary institutions.August 1983.OccasionalPaper No.5Aboriginal reserves by-laws and human rights. October 1983. (iv) Occasional OccasionalPaper No. Paper No.76The teaching of human rights. August 1984. Epilepsy and human rights. October1984.OccasionalPaper No.8The right of peaceful assembly in the A.C.T. February 1985.OccasionalPaper No.9Teaching, enacting and sticking up for human rights. March 1985.OccasionalPaper No.10Legal and ethical aspects of the management of newborns with severe disabilities. August 1985.OccasionalPaper No.11The treatment of disabled persons in social security and taxation law.January 1986.OccasionalPaper No.12Prisoners' rights: a study of human rights and Commonwealth prisoners.September 1986.OccasionalPaper No.13Getting a fair go: case studies ofoccupational socialisation and perceptions of discrimination in a sample of seven Melbourne high schools. August 1986. Occasional Paper No. 14The Right of Peaceful Protest Seminar. Papers. November 1986. (v) FOREWORD This study gives an account of conciliation processes developed under the Racial Discrimination Act 1975 (Cwlth) and presents it in the context of general theories of conflict resolution, with some comparisons with methods used by other bodies working in related fields in Australia and New Zealand. When the Human Rights Commission invited Patrick Pentony, former Associate Professor, Department of Psychology, Australian National University to make the study in 1982, it was envisaged that his report would be published as one in a series of monographs reporting major research studies in the field of human rights. Delays in preparing the report for publication and the restricted budget available to the Commission in the final months before it was to cease operations in December 1986, forced the Commission to abandon this plan. A limited number of copies of the work are now being made and distributed to major libraries so that the report will be available to people interested in studying the way that conciliation was used to implement the Racial Discrimination Act in Australia in its first few years. The views expressed in this report are not necessarily those of the Human Rights Commission or its members and should not be identified with it or them. November 1986  PREFACE This Monograph had its origin in a project directed towards the work being undertaken by the conciliation staff of the Commissioner for Community Relations in the implementation of the Racial Discrimination Act 1975 (Cwlth). Work on the project began in September 1982, almost seven years after the promulgation of the Act, when I accompanied two of the conciliators for sixteen days on a working tour of a number of provincial centres on the coastal and tableland areas of northern New South Wales and Queensland as far north as Rockhampton. It became apparent during the tour and from examination of reports and other relevant material that, while the Act was directed against discrimination on grounds of race, colour or ethnic or national origin against any member of the diverse communities that make up the Australian population, the main conciliatory activity was in the area of relations between the Aboriginal and non-Aboriginal sections of society. While it is true that members of other ethnic groups discussed, with the officers, problems that ranged from difficulties experienced in the immigration of relatives to dissatisfaction with the way a complaint was dealt with by a police officer, the steps taken to resolve the issues to the satisfaction of the persons concerned seemed in such cases to fall short of conciliation as I understand that term. They involved activities which I have called intercession and included such procedures as advising on courses of action to be taken, explaining the rules and practices governing the situation, checking out, where appropriate, the position of the other party and reporting back and, in some cases, making notes of issues raised with a view to further investigation or representation with the appropriate officials on return to Canberra. That is, much of the work involved clarifying issues, giving information and undertaking follow-up action. From discussion with the officers and subsequent analysis of reports, this seemed to be characteristic of the work in relation to matters other than situations involving disputes between Aboriginals and non-Aboriginals. Such activities are of considerable significance in contributing to the well-being of our multi-cultural society. That they constitute an important part of the work undertaken under the Act is indicated in Chapter 5. However, to the extent that we view conciliation as involving face-to-face confrontations between opposing parties, with the conciliator endeavouring to bring about a constructive and amicable resolution of the dispute, the bulk of such work occurs in the area of relations between Aboriginals and non-Aboriginals. For this reason, in discussing conciliation under the Act, I have focused on this area. Although envisaged initially as an account of the work of the conciliators, the project was gradually expanded in an attempt to place this work in a broader context. In the process two themes emerged. The first is the nature of conciliation and its role in dispute settlement and conflict resolution. The second is the problem of achieving equitable and harmonious relations between two Sections of society with a history of inequality and exploitation of the one group by the other. While the focus throughout is on relations between members of the Aboriginal and non-Aboriginal communities, I have attempted to extend the discussion to the broad issue of intercommunity relations in general. I wish to thank: the Law Foundation of New South Wales and John Schwartzkoff and Jenny Morgan for permission to quote from and make use of their report on Community Justice Centres; Dr Andrew Trim n of Massey University for permission to make extensive use of his reviews of conciliation under both the Australian and New Zealand Acts; an anonymous member of a Consultative Committee on Community Relations for permission to use a lengthy tape-recorded account of experiences on such a committee; and Mrs Norma Sarra for permission to use her account of experiences leading to the formation of the Bundaberg Consultative Committee on Community Relations. I am also indebted to many people for assistance in bringing this undertaking to fruition. The members of the Human Rights Commission, and in particular the Chairman, Dame Roma Mitchell, and the Deputy Chairman, Mr Peter Bailey, provided constructive criticism and made valuable suggestions as the project took shape. The first Commissioner for Community Relations, the Hon. A.J. Grassby, provided information and encouragement in the initial stages of the work, and his successor, Mr Jeremy Long, continued to provide generous help and support. The conciliation staff in the Human Rights Commission, in particular Mr George Wyer, Chief Conciliator, and Mr Philip Moss, Senior Conciliator, who took me with them on a long working tour, and Ms Erna Valetti, Complaints Officer, were invariably helpful in discussing their work, supplying information and making available relevant publications and related material. Dr Severin Ozdowski, who supervised the project, was extremely helpful in administrative matters and in organising appointments and interviews with persons whom he considered I should meet. Mrs Josephine Tiddy, the South Australian Commissioner for Equal Opportunity, gave me a detailed account of the conciliation procedure followed in her office and checked the relevant section of the manuscript. Mrs Fay Marles, Victorian Commissioner for Equal Opportunity, was not only generous with her time in discussing the work of her office, but also supplied extensive notes made during a tour of North America devoted to a study of conciliation practices under equal opportunity legislation. The staff of the Surry Hills Community Justice Centre and Mr Clive Graham provided (x) demonstration of their mediation procedures and explained the underlying rationale. Particular thanks are due to the many informants, Aboriginal and non-Aboriginal, complainants and respondents, who patiently and courteously shared something of their experiences with me and helped me towards a greater awareness of community relations in Australia. Finally, but by no means least, I want to thank the office staff of the Department of Psychology of the Australian National University for their patient and cheerful co-operation in the long and tedious task of typing the manuscript. P. Pentony April 1985 (xi) CONTENTS Page Foreword Preface CHAPTER 1 CHAPTER 2 CHAPTER 3 CHAPTER 4 CHAPTER CHAPTER 6 CHAPTER 7 CHAPTER 8 CHAPTER 9 CHAPTER 10 CHAPTER 11 CHAPTER 12 CHAPTER 13 CHAPTER 14 CHAPTER 15 APPENDIX BIBLIOGRAPHYIntroduction The conciliation process The nature of the task Discrimination in respect of Ethnic Communities The form and context of discrimination against Aboriginal people Developing a strategy of conciliation Settling the matter of the complaint When settlement is not reached Some perspectives on the operation of the Act Consultative Committees on Community Relations Conciliation in practice - comparative aspects On social change The New Zealand experience Conciliation as a confidence game Review and reflections9 30 40 57 64 73 89 95 112 128 150 166 180 190 200 204 CHAPTER 1. INTRODUCTION On 13 October 1966, Mr Paul Hasluck, in his capacity as Minister for External Affairs, signed the International Convention on the Elimination of All Forms of Racial Discrimination on behalf of Australia. At that time there was no specific prohibition in Australian law of racial discrimination and no legal or administrative machinery to combat it. Such provision for the protection of the rights of the members of minority groups as existed was limited to that provided by the common law. To ratify the Convention, it was necessary to establish machinery to combat racial discrimination and this was achieved finally on 31 October 1975 when the Racial Discrimination Act 1975 (Cwlth) came into force.1 The Act was passed by unanimous decision of all the parties in both Houses of the Commonwealth Parliament. While this unanimity reflected the common desire of the members of both Houses to eliminate racial discrimination, agreement as to the means whereby this was to be achieved was arrived at only after long debate and in a spirit of compromise. The Bill introducing the legislation followed the definition used in the International Convention. It set out to make it unlawful for a person to do an act involving discrimination based on race, colour, descent or national or ethnic origin which impairs the enjoyment of fundamental rights and freedoms.2 2 The machinery established to implement the legislation consisted of the appointment of a Commissioner for Community Relations3, who was invested with powers designed to settle matters of complaint of racial discrimination and to promote harmonious relations between the different community groups. The area of contention among the legislators was centred around the powers of the Commissioner and the sanctions to be imposed on offenders under the Act. While there was general agreement that the long-term aim was harmonious inter-personal and inter-group relations, and that the best hope for achieving this lay in a process of education and the cultivation of good will among all sections of the community - a view stressed repeatedly through the debate - there were differences of opinion as to how, in the short term, complaints of racial discrimination should be investigated and what sort of action should be taken against those guilty of racial discrimination. One school of thought favoured reliance on conciliation with recourse to civil court processes through existing courts as a last resort when the Commissioner 7 or an officer on the Commissioner's staff - was unable to effect a settlement through conciliation. The opposing view held that the Commissioner should be given powers for the gathering of evidence involving, where necessary, the use of legal compulsion for the disclosure of information and also powers for the institution of proceedings directed towards imposing penalties on offenders and providing redress for aggrieved parties. Those who 'favoured reliance on conciliation argued that the legislation was breaking new ground in very complex territory. As one member put it: For the great majority of the Australian people, this legislation does break a new field. In our society there is a very strong body of opinion ... that we will not lessen the incidence of racial tension and racial discrimination by passing fairly stringent laws about it. So taking these factors into account, I think there is a case for saying that at the beginning we ought to adopt a rather soft approach as a first step. He went on to say that it might well prove in the longer term that stronger legislation was necessary, but that as a first step a drastic and draconian approach was undesirable. Rather, as he put it: If this legislation is to have value the value is to be found in the consultation, the conciliation and the education provisions.4 The opposing viewpoint held that, while it might not be possible to change people's attitudes and moral values by legislation, nevertheless legislation served a very valuable purpose by defining rights and responsibilities between people. Though it might not change inward attitudes and beliefs, the application of the law could deter overt acts of racial discrimination and reduce the incidence of its more malignant and injurious expression. To achieve such effects the legislation must have force in the form of sanctions for breaches of its provisions and the Commissioner must have power to make investigations and to compel the disclosure of relevant information. In the absence of such sanctions and powers the legislation would lack 'teeth' and have no impact on offenders. In the end, the conciliatory approach prevailed. Acts of racial discrimination which the Bill covered were declared unlawful but not offences. This was the emphasis underlying the Bill, and consequently the Commonwealth's endeavours were directed towards conciliation and education processes rather than towards prosecution and punitive action. The Bill, as finally passed, made the role of the Commissioner consistent with this emphasis. Such power as he was given was that necessary for the fulfilment of his conciliatory role. Since conciliation requires that the parties to a dispute be brought together for discussion and negotiation, the Commissioner was given the important power of being able to call compulsory 4 conferences. He could, where necessary, require the attendance at such conferences of: the person who lodged a complaint of an act of racial discrimination; the person who was alleged to have committed the act; and any other person whose presence at the conference the Commissioner (or a delegate empowered by the Commissioner to conduct such conferences) considered would be conducive to the settlement of the matter. Failure, without reasonable excuse, to attend a compulsory conference when so directed rendered the person liable to a penalty of $250. In the interests of allowing free and open discussion, provision was made for the proceedings of such compulsory conferences to be privileged in that nothing said or done in the course of the conference could be used as evidence in any subsequent court action taken under the Racial Discrimination Act. Should the Commissioner be unable to resolve the matter of complaint by conciliation, he could issue a certificate to the aggrieved party stating that a conference had been called and that he had been unable to settle the matter. The aggrieved party could then institute a civil action in a court of competent jurisdiction for one or more of a series of remedies specified in the Act. The general thrust of the legislation is indicated by the following words which closed the debate on the Bill: A lot of people are opposed to a racial discrimination Bill. They believe that the law should not attempt to enforce morals in this area. Of course, it is true to say that the basic solution to discrimination lies with individuals. In the end the law cannot solve the problem at all; it depends on the people having the proper 5 attitudes to one another and not allowing matters such as are referred to in this Bill to affect their decisions about people. In the end, one cannot legislate for morals. But at the same time the law has always had a part to play - the common law and the statute law - in embodying the moral attitudes of society. I personally believe that a racial discrimination Act, as this will now become, embodying as it does the aspirations of our society for attitudes that ought to exist between individuals in the society will, in the end, promote the proper relationship. However, that relationship has to be promoted in the right way. There is a passage in the New Testament about which I have always wondered where it is said that you ought to settle your differences on the way to court. In a way this Bill embodies that very concept. In other words, it attempts to settle the differences on the way to court. It is to be hoped that all those differences whenever they arise will be settled in accordance with the conciliation procedures that have been adopted and that are now being adopted by both sides of this chamber. I believe that that is the only way by which this problem can be solved. I hope the court will never hear a case. It is a great hope maybe a vain hope, but let it be the wish of all of us. Although the Act puts the emphasis on conciliation as the means whereby complaints arising under its provisions were to be resolved, there is remarkably little in the legislation to indicate how the conciliation process should be conducted or what qualifications the officers empowered to conduct it should have. It allowed very considerable latitude to the Commissioner and those working with him in conducting investigations either informally or through compulsory conferences. It would seem that, in their wisdom, the legislators, recognising the very complex nature of the matters to be conciliated and the subtle and sensitive interpersonal issues involved, considered it advisable to leave the details of the conciliation process to the discretion of the conciliator, who could take into consideration the particular circumstances of the case. On the matter of the qualifications of those who might be empowered to conduct investigations into complaints, the Act was silent. While it provided that a Commissioner shall be 6 appointed and allocated Certain powers and functions, it did not state what qualifications are required for a person to be so appointed. It was prescribed that the staff of the Commissioner should be persons appointed or employed under the Public Service Act 1922-1974 (Cw1th), but did not specify their number, qualifications or level of appointment. Such matters were left to be determined by negotiation between the Commissioner, when appointed, and the relevant government authorities. The Racial Discrimination Act accorded the Commissioner the powers of a Permanent Head under the Public Service Act. It required of him that he should, as soon as practicable after 30 June each year, prepare and furnish to the Attorney-General, a report of the operations of the Commissioner during the year. In turn the Attorney-General was required to cause a copy of the report to be laid before each House of Parliament within 15 sitting days of that House after the report is received by him. The Commissioner was thus accorded very considerable autonomy and freedom of action in pursuing the objectives of the Act. His annual reports to December 1981 provide much of the material we will be considering. Insofar as this introductory chapter is concerned with the legislative provisions and the administrative arrangements made for giving effect to them, the following extract from the Sixth Annual Report 1980-81 of the Commissioner is informative: It was...my responsibility when my appointment took effect as Commissioner to organise the ways and means for the implementation of the law. Following exhaustive discussions for many months previously with the Public Service Board and community representatives from all over Australia it was agreed that there should be a complement of 31 which provided for an organisational establishment in the Australian 7 Capital Territory, New South Wales, Victoria, Queensland, South Australia and Western Australia. The whole concept was that there would be a small, dedicated team, properly distributed throughout Australia, who would be sensitive and active and above all, be imbued with a sense of mission. The advertisement for the staff went out throughout the whole of Australia on 20 December 1975. The response to those advertisements was to bring offers from many Australians outstanding in the field of human rights. The establishment, approved by the then Attorney-General, Mr Enderby, and by the Public Service Board, was subject to further scrutiny during the period of the caretaker Government when Senator the Hon. Ivor Greenwood was Attorney-General of Australia. He examined the establishment and the proposals and approved them and so we went ahead with plans to put flesh on the skeleton of a law which had just been passed. A further development took place when Senator Greenwood was replaced and his successor, the Hon., now Mr. Justice, Robert Ellicott, was in fact to become the Minister responsible for the Racial Discrimination Act. By a change in administration arrangements on 22 December 1975, the Hon. Michael Mackellar, the then Minister for Immigration and Ethnic Affairs, was made the Minister responsible for the Act. In relation to staffing, the situation was disastrous. The staff consisted of a small team of four or five. As time went on the staff was built up and was eventually to number 12 and has never exceeded that number. The build-up, however, was purely temporary. Not one single officer at any level was in fact a member of the Office but simply on loan temporarily and there was no establishment. The control of the Office went back to the Attorney-General in the person of Senator the Hon. Peter Durack, who continues to have the responsibility, and the Office remains suspended in limbo as far as establishment, staff, and continuity are concerned. This has been the position for six years while for most of that time there have been announcements made of the intention to establish a Human Rights Commission which would absorb the Office and therefore make any establishment superfluous.6 Soon after that report was written, the Human Rights Commission was established (on 10 December 1981), under the Human Rights Commission Act 1981. From that date the Commissioner has implemented the Racial Discrimination Act on behalf of the Commission, into whose office his staff were absorbed. This report is primarily concerned with the approach to racial discrimination and its amelioration developed by the relatively small staff working with the Commissioner over the years from 1975 to 1983 when the study was made. CHAPTER 1 ENDNOTES The South Australian Parliament passed a Prohibition of Discrimination Act in 1966, which made racial discrimination a criminal offence. Australia, House of Representatives, Debates, 1975, vol. 94, p. 285. Hereafter, references to the Commissioner for Community Relations are, for ease of discussion, in the form 'he', 'his', etc. Australia, House of Representatives, Debates. 1975, vol. 94, p. 1303. ibid., p. 3250. Commissioner for Community Relations, Sixth annual report 1980-81, AGPS, Canberra, 1981, pp. 76-7. 9 CHAPTER 2. THE CONCILIATION PROCESS The Racial Discrimination Act 1975 was directed toward the elimination of racial discrimination by conciliatory means rather than by the imposition of punitive sanctions. It was hoped that this approach, in which the emphasis was on education and the cultivation of mutual understanding between the different sections of the population, would lead to changes in attitudes and behaviour that would make for equity in relationships and community harmony and co-operation. In view of the significance given to it in the Act, the nature of the conciliation process will now be considered. An attempt will be made to differentiate conciliation from closely related processes; some guiding principles for the conduct of conciliation conferences will be outlined; and some innovative attempts to introduce conciliatory procedures into conflict situations will be reviewed. The nature of conciliation Braun defines conciliation as 'an attempt to settle disputes with the help of an outsider who assists the disputants in their negotiations'. He goes on to say 'Its sole objective is the settlement of a controversy by bringing the parties to voluntary agreement' .1 It is important to note the use of such terms as 'disputes', 'disputants', 'negotiations', 'controversy' and 'agreement'. For conciliation to occur there must exist a dispute between two parties who have an interest in negotiating a settlement. Where there is no dispute there can be no conciliation. This point may seem obvious but it needs to be made because the term 'conciliation' is sometimes used loosely to include interventions which would be more appropriately described as 10 intercessions. An intercession occurs when someone makes a representation on behalf of a person or group that has a grievance. Thus members of Parliament often make representations to government departments on behalf of one or more of their constituents. Such representation often results in action which resolved the grievance, but it would be a misuse of the language to describe it as conciliation. Conciliation is involved when a dispute between two parties - the principals - is so intractable that they are unable to negotiate a settlement without the assistance of a third party whose role is to facilitate movement towards agreement. It has much in common with two other forms of intervention from which it may be distinguished. These are mediation and arbitration.2 To mediate means, literally, to stand in the middle, although the term 'mediation' is often used interchangeably with 'conciliation'. Mediation, in the strict sense, refers to the relaying of one party's position on the matter in dispute to the other party. 'Shuttle diplomacy', in which the principals do not make personal contact but convey messages to each other via an intermediary on possible solutions to their dispute, is an example of mediation. Mediation usually takes place without bringing the parties together physically. When it does involve a situation in which the principals come together with a mediator, the role of the latter is limited to facilitating the exchange of messages. In a sense the mediator acts as. agent for both parties in assisting them to get their messages through to each other. The mediator does not take control of the situation, define the rules of the interaction or bring in outsiders to influence the attitudes and behaviours of the principals. He assists by reflecting and at times reformulating the content of the messages being exchanged, helps to clarify the points at issue and remove misunderstandings and tries to ensure that the messages sent are the messages received. 11 Mediation is thus a relatively weak or mild form of intervention. It is employed in situations where the parties place considerable emphasis on their autonomy and resent any suggestions that others have a right to interfere in, or influence them in the management of, their affairs. For instance, mediation is the term typically used to describe attempts to settle conflicts or disputes between nations where national pride and sovereignty are of considerable significance. In sharp contrast to mediation with its emphasis on the rights of the principals to determine the nature of the negotiations, and in particular to determine the terms of settlement, is the process of arbitration. Arbitration is the settlement of disputes through binding decision by one or more outsiders other than members of a court of justice acting in their capacity as official judges.3 The parties to the dispute may refer the matter voluntarily to arbitration or the reference may be compulsory in accordance with relevant legislation. In the former case there is an understanding that the parties will abide by the outsider's decision, which is termed an award. In the latter case, awards are final and binding by law. To compare the process of arbitration with the processes of mediation and conciliation Braun groups them together and makes the following comments: In settling disagreements through arbitration, the terms of the peace treaty are fixed by the outside person or body, while under the mediation procedure the decision as to whether and under what conditions the dispute should be terminated is made by the parties themselves. The award rendered by the arbitrator is final and binding, the recommendation made by the conciliator may or may not be accepted by the parties. Under arbitration the controversy is adjusted according to the outsiders' views, under mediation to the parties' views. The award expresses the arbitrator's opinion as to the just and fair settlement of the issues submitted to him, while the recommendation of a conciliator must be largely based on 12 considerations of expediency. A conciliator may recommend an arrangeable solution not in conformity with his personal concept of an equitable solution if he believes that, in view of the relative bargaining strength of the disputants or for other reasons, this arrangement would be most suitable to secure for some time stable relations between the parties. Though ... the arbitrator cannot completely disregard such factors as the relative economic power and the character of the parties, the grounds of his decision must be largely considerations of fairness and justice. Arbitration,. thus, is more judicial in character than conciliation. Procedural principles of the type governing the . activities of the courts are applied to a larger extent.4 Mediation and arbitration thus constitute two extreme positions in the intervention by an outsider in the process of helping the parties to a dispute to arrive at its resolution. In mediation the outsider has, at least in theory, no 'direct influence on the substance of the agreement. In arbitration the outsider determines the substance of the agreement. Between these two extremes lies the process of conciliation. In conciliation, the outsider may go beyond relaying messages between the parties by contributing information and suggestions which may open wider possibilities for the solution of the dispute. He or she may encourage the 'parties to make compromises until they reach a point of agreement. The conciliator may contribute ideas as to how the differences can be resolved. On their part the principals to the dispute may accept such suggestions in toto or they may reject them or they may use the suggestions as a basis for further discussion and in this way they may move toward agreement. The conciliator becomes more involved in the relationships between the parties than does the mediator. Whereas the - latter is essentially a go-between, the former is more typically a conductor of negotiations. In mediation the parties tend to be separated and the exchanges impersonal whereas in conciliation the parties are usually brought together in face-to-face situations and the exchanges are likely to be highly personal and emotionally charged._: In 13 consequence, the conciliator is required to exercise more control over the interactions between the parties than is the mediator. There is a greater need to exert authority in respect of the manner in which the negotiations will be conducted. To carry out this task the conciliator convenes meetings between the parties at which attendance may be made compulsory, determines who is to attend such meetings and what matters are to be dealt with in them. He or she also has responsibility for ensuring that orderly discourse takes place at such meetings and that a social climate conducive to the settlement of the dispute is created. We can thus note four separate levels of intervention by a third, or outside, party when an individual or group seeks such assistance in respect of some matter of concern arising from transactions with another party. At the lowest or minimal level of involvement by the outsider there is .intercession, which typically takes the form of making representations on behalf of, or seeking information for, the party that has sought assistance. At this level no dispute exists as yet between the parties. The good offices of the outsider are being called upon to promote communication or clarify an issue. At the second level of involvement by the outsider, there is mediation in which the outsider acts as a go-between to enable the parties involved to resolve the issue between them. It may follow on from an intercession when the second party responds to the representations or inquiries made, or it may occur when the outsider offers his or her services in an already well-established dispute. At the third level there is conciliation, in which the outsider becomes involved in determining both the content and manner of conducting the negotiations but leaves the final determination of the terms of settlement to the disputing 14 parties. Conciliation may follow on from mediation when the latter proves inadequate for resolving the issues and it will almost certainly incorporate elements of mediation. At the fourth level there is arbitration, in which the outside party - whether an individual or a panel constituting a tribunal - gives a ruling or award on the issue which determines the terms of settlement. In legislation governing the settlement of disputes there is usually provision for the application of all levels of intervention on the basis that the higher levels are invoked only when the matters at issue cannot be resolved at a lower level. The three lower levels are often loosely grouped under the heading of conciliation. They are differentiated here to help describe differences in the way in which complaints from different sections of the population have been dealt with under the Racial Discrimination Act 1975. Throughout this report the emphasis will be on conciliation as defined above. Conciliation procedure As discussed above, the purpose of conciliation is not to resolve the dispute by an imposed decision, but to assist the parties to arrive at a mutually acceptable settlement. This means that the conciliator must exercise understanding, imagination and persuasive power to develop a common ground on which the parties can meet. The conciliator's role is not to assign blame or make judgements, but to adjust the conflicting interests in the most constructive manner possible. The first. aim of the conciliator must therefore be to understand the nature of those interests and to be sensitive to any hidden agenda or covert considerations which impede settlement. When it is clear where the interests of the parties lip, suggestions may be made which open up possibilities for compromise developed from ideas which are quite new to the principals. 15 Although conciliators cannot act in a manner contrary to law, they are not bound to follow procedural rules or codes. Their activities are not judicial in character. Their tactics are determined more by considerations of equity and expediency than by legal practice. The strength of the conciliation process lies in its informal and flexible character, which offers wide scope for the generation of diverse possibilities for the resolution of the issues. It is important that the parties be able to explore all avenues open to them for settling their differences. For this reason it is not possible to lay down fixed rules for the conduct of conciliation. Effective conciliation calls for a good deal of improvisation on the part of the person who conducts it. Yet at the same time it is important that conciliation be conducted in an orderly manner and that it have some basic structure or be based upon some broad plan or strategy. Unless this is the case, there will be grave danger of arbitrariness and chaos in the meetings. So while the detailed content and the moment to moment tactics should be left as open as possible to allow for adaptation to changing circumstances, it is important that there be some overall design to the proceedings. People who have submitted their dispute to conciliation in the hope of reaching an equitable and lasting settlement want to be sure that their case has been dealt with in an orderly, though not necessarily conventional, way. That is, they want to feel confident that the conciliator knows what he or she is doing and has some broad plan to which he or she is working. This confidence that the dispute is being dealt with in an orderly and systematic manner is a very important element in the facilitation of agreement. It helps to create a calm and dignified atmosphere which clears the way for the development of negotiations between the parties. 16 forms and applications, and tactical variations which provide flexibility in dealing with the particular circumstances of the specific case. Some broad principles and some of the circumstances which determine tactical variations can be considered. General principles of conciliation The conciliator is attempting to promote communication and understanding between the participants and will conduct the meetings in accordance with the generally accepted principles of good interpersonal relations. This will mean being attentive to and considerate of the views of both parties, remaining calm and reasonable even though the climate of interaction becomes emotionally charged, and being clear and unambiguous in communicating his or her perceptions and thoughts. Fisher and Ury, from their study of negotiation processes in a variety of situations and at levels ranging from family interaction to international disputes and settlements, have formulated four major principles as guidelines for negotiators and hence for conciliators who would attempt to influence and shape such negotiations: Separate the people from the problem. The aim is to change the parties from being antagonists to 'being joint problem solvers. This means changing the context from one of being a contest in which there is a winner and a loser with each party trying to score against the other to one in which the problem or issue is the focus of attention and the parties are, in metaphorical terms, seated side by side, working on the problem. The way to go about this is by being 'hard' on the problem or issue which must be thoroughly worked through, but 'soft' on the people by treating them as beings of good will and possessed of problem-solving resources who want a constructive outcome to the matter. In formulating the problem, focus on interests rather than positions. People take positions in disputes in order to satisfy their interests, but positions once taken tend to become rigid as the parties get locked into them and the negotiations become a contest with 'face saving' a major aspect. Pbsitions, in fact, 17 only partly represent the parties' interests, which are invariably very complex. The parties usually have many common as well as conflicting interests. By focusing on interests the problem may be opened up with new possibilities for its resolution emerging. Generate alternative suggestions for resolving the issue. The outsider is in a position to take a wider perspective on the matters at issue than are the parties. He or she may also have had considerable experience in conciliating similar disputes and may therefore be more aware of possible ways of resolving the matter. Encourage the use of generally accepted standards of just and fair dealing in the evaluation of proposed terms of settlement. The goal of conciliation is to arrive at a settlement that will be stable, that is, one that will be adhered to by the parties for a substantial period. This is unlikely to occur if a -settlement is reached which is unfair to, or does not meet the interests of, one of the parties.5 While the foregoing are general principles which would seem to hold for conciliation in its various applications, their detailed implementation in any given case will be influenced by the particular circumstances in which the conciliation is occurring. Although it is not possible to consider all situations which may affect their tactical application, some relevant variables can be considered. Variables that affect conciliation tactics The following factors may affect the tactics employed by conciliators. Intensity of emotional involvement of the participants. Conciliation may take place in a calm atmosphere with rational discourse or it may take place in a highly charged atmosphere where physical violence can easily be triggered. Experienced conciliators vary their intervention according to the emotional climate. In the calm and rational context they encourage a broad exploration of the issues by the parties while also leaving a lot of initiative to the parties. They 18 tend to act more like mediators being relatively inactive. At the other end of the scale, where the atmosphere is highly charged, they concentrate on the central issue and they become very active. The rationale is that while it is desirable that the parties work out their own solutions after a full airing of their differences, people who are highly charged emotionally are unable to handle or integrate many ideas and, if left to their own resources, will engage in an escalating confrontation that will get out of control. Extent of the case load. When the case load becomes heavy the emphasis necessarily moves towards getting settlements in minimum time. Under such circumstances the conciliator can be expected to concentrate on those aspects which favour a quick settlement. Expediency is likely to become more relevant than equity. The existence of a massive backlog of some 10,000 cases waiting for formal hearings in the U.S. Equal Opportunity Commission seems to have influenced conciliation practice there.6 Whether the issues being conciliated are of a one-shot or a recurrent nature. One-shot cases are those in which the matter being dealt with is treated as an isolated event independently of other aspects of the relationship between the parties. Recurrent cases are those in which the relationship between the parties is a salient feature and the event under consideration is treated as one more manifestation - or symptom - of an unsatisfactory relationship. A dispute over the terms of termination of employment of an individual whose services are no longer required could be an example of a one-shot case. A dispute between a married couple over whether or not to adopt a child might be an example of a recurrent conflict that manifests itself in various forms of disagreement. In the one-shot case the emphasis is likely to be on achieving an equitable settlement in terms of the circumstances of the particular case. In the recurrent case the emphasis would more likely be on the relationship between the parties and on helping them to develop more effective ways 19 of managing their relationship. Attempts at changing relationships, or established patterns of interaction, whether between individuals or between groups are usually more time consuming and more demanding on the intervening third party than are the settlements of isolated incidents. A matter of particular concern in this review is the situation in which disputes and conflicts arise as a function of the relationships that exist between different community groups. Insofar as disputes arise between persons because of their membership of different racial, ethnic, religious or other groups, we are dealing with recurrent cases. It is often argued that, in such cases, treating the disputes in isolation is ineffective. The first Australian Commissioner for Community Relations called such a practice a 'band-aid procedure17 and the first New Zealand Race Relations Conciliator used the metaphor of an ambulance at the foot of the cliff instead of a fence at the top.8 Both argued for attempts to change the interaction patterns between the groups by educational means. During the last two decades there have been attempts by behavioural scientists to develop ways of opening channels of communication between groups in conflict. The hope in such studies was that improved communication might lead to changes in interaction between members of the opposing groups and point the way to the ultimate resolution of the conflict. While such attempts do not constitute the conciliation and settlement of specific disputes, they have features similar to those of the conciliatory process. The attempts in question consist of bringing together representatives of conflicting groups under the leadership or direction of a third party skilled in facilitating interpersonal communication. Intergroup conflict amelioration. Several reports describing attempts to ameliorate conflict between opposing groups by bringing together representatives of the groups for concentrated encounters over periods ranging from a few days 20 to several weeks have appeared in the social science literature. The parties brought together include Greek and Turkish Cypriot officials9, Ethiopian, Kenyan and Somali administrative and academic personne110, police and members of the community in the ghetto area of a major city in the south-west of the United States11, police and black community leaders12, Jews and Arabs in Israe113, Irish Protestant and Catholic citizens from Belfast14, and business executives and activists from community groups15. The aim common to all these projects was to help the participants to distinguish between productive and counter-productive approaches to conflict and to take some steps, however limited, towards implementing a productive approach. The general principle underlying the design of these studies was that when groups in a state of friction come together to work for superordinate goals, they develop co-operative relations.15 The need for mutual support and acceptance which becomes manifest in joint endeavours runs counter to expressions of hostility. One consequence is the humanisation of the image of the 'enemy' and a resulting change in the respective stereotypes each party holds of the other. The superordinate task typically posed for the participants in such encounters is the finding of constructive ways of dealing with their conflict. That is, they are asked to approach the issues that divide them in the role of problem solvers. In outlining the sequence of events that might be expected to occur in such attempts to bring groups in conflict together Lakin tells us that they might be expected to go through the following stages: Participants express their pent-up resentments toward the other group, with consequent relaxation of some defences. Each participant is directed to ask himself, 'What are my inner feelings and reactions to this interaction?' As each participant becomes a more 21 sensitive observer of his own modes of communication, he is able to listen better to his antagonist's point of view and to try to understand the latter's feelings. The participant's increased understanding of his reactions to counter group members decreases the potency of his own group's stereotyped judgements. He comes to see his opponents as multifaceted individuals with unexpected feelings and attitudes. 4. A joint task helps bridge group barriers and reduces feelings of mutual estrangement. This vital stage in the process is contingent on the prior steps and the establishment of superordinate goals or 'making common cause' with the opposing group.-7 In this sequence the first step is the communication of the accumulated grievances and feelings of anger and hostility that the opposing parties hold towards each other. This seems to be a basic requirement in achieving some common ground in serious disputes and conflicts. If it does not take place, little progress can be expected. Once it has taken place the air is cleared for a more direct and rational approach to the practical issues involved in the conflict. The conflict must be recognised and confronted and not suppressed, denied or distorted. For this ventilation of grievances to take place and be listened to by the opposing party usually requires the presence of a neutral but active third party who ensures a fair hearing for both sides. While the various workshops in conflict resolution are based on the same general principles and are alike in their broad strategy, there are many tactical variations depending upon the nature of the conflict and persons involved, the particular skills and orientations of those conducting the workshops, and such constraints as time, location, funding. For purposes of illustration the approach employed in one study - that involving police and ghetto residents in Houston, Texas18, will be considered. The design for this project was adapted from one initially developed for dealing with labour-management conflicts.19. 22 this design, after an initial general session in which the structure and rules for the project are explained, the parties separate to form sub-groups ('in-groups'), each made up of members of one side. Each in-group examines its own position and the way it sees its operations in relation to those of the opposing group. The objective is to make clear to itself and later to the opposing group what its intentions, purposes and goals are and what assumptions, attitudes and feeling exist among its members. The effect of this self-examination is expected to reveal that the members have rather less in common than they had believed and also to bring out more appreciation of the basis of the conduct and aims of the opposing group. In the next stage the two opposing in-groups come together and exchange their perceptions of themselves and their opponents. These exchanges are expected to bring out new aspects which had not been taken into account. The workshop then splits again into in-groups to enable the members to absorb and digest the new input and to restructure their images of themselves and their opponents. The groups then come together again, with perceptions that should be mutually in closer accord than were the initial perceptions. The final step is to try to work out together some practical steps for reducing their conflict. The rationale underlying the procedure is that as the parties bring out the bases for their behaviour, often revealing aspects hitherto hidden from or unappreciated by their opponents, the surface antagonism is diminished. This makes it easier to develop improved working relations. The thesis is that insight into one's own group leads to a more accurate perception of how it affects other groups, with consequent increase in empathy towards the latter and greater readiness to collaborate with them. It is moreover claimed that the procedure can be applied to any group conflict, however intense, provided that neither side is committed to a continuation of the conflict. 23 In the Houston study, a series of six-week workshops were conducted in which 1400 police and an equal number of community members took part. Each workshop had 200 officers and community members. Each person participated in one three-hour session a week over the six weeks. Sessions were run each day over a five-day week for forty officers and community members. The meetings were held in a neighbourhood community hall and at the police academy. Attempts were made to get a representative cross-section of the community, with particular attention to the inclusion of minority groups, poverty groups and dissidents. The police usually attended in uniform but outside their regular tour of duty. They received extra salary for their eighteen hours of participation. the group leaders, or 'trainers', were professional psychologists of doctoral level with considerable experience in group work. Funds for the project were provided by business and industrial organisations in Houston. Each six-week workshop cost approximately $20,000 in salaries for police and trainers and organisational expenses. Attendance by police was compulsory, but on the part of the community citizens it was voluntary. There were, of course, variations in the perceptions of the opposing groups among the different members. The authors, however, provide us with composite stereotypes as representative of the respective perceptions: Police Self-Image. As officers we are ethical, honest, physically neat and clean in appearance, dedicated to our job, with a strong sense of duty. Some officers are prejudiced but they are in a minority, and officers are aware of their Prejudice and lean over backwards to be fair. We are a close knit, suspicious group, distrustful of outsiders. We put on a professional front; hard, calloused, and indifferent, but underneath we have feelings. We treat others as nicely as they will let us. We are clannish, ostracized by the community, used as scapegoats, and under scrutiny even when off duty trying to enjoy ourselves. We are the blue minority. Police Image of the Community. Basically the public is co-operative and law-abiding, but uninformed about the duties, procedures, and responsibilities of the police officer. The upper class, the rich,support the police, but feel immune to the law and use their money and 24 influence to avoid police action against themselves and their children. The middle class support the police and are more civic-minded than upper or lower classes, the major share of police contact with the middle class is through traffic violations. The lower class has most contact with the police and usually are unco-operative as witnesses or in reporting crime. They have a different sense of values, live only for today and do not plan for tomorrow. As police officers we see the Houston Negro in two groups. Negro - industrious, productive,moral, law-abiding, and not prone to violence; 'nigger' - lazy, immoral,dishonest, unreliable, and prone to violence. Community Self-Image. We lack knowledge about proper police procedures and do not know our rights, obligations, and duties in regard to the law. There is a lack of communication among social, geographical, racial, and economic segments of the community. We do not involve ourselves in civic affairs as we should, and we have a guilty conscience about the little crimes (traffic violations) we get away with, but are resentful when caught. We relate to the police as authority figures, and we feel uncomfortable around them. The black community feels itself second class in relation to the police. The majority of the community is law-abiding, hard working, pays taxes, is honest and reliable. Community Image of Police. Some police abuse their authority, act as judge, jury and prosecutor, and assume a person is guilty until proven innocent. They are too often psychologically and physically abusive, name-calling, handle people rough, and discriminate against blacks in applying the law. Police are cold and mechanical in performance of their duties. We expect them to be perfect, to make no mistakes and to set the standard for behaviour. The police see the world only through their squad car windshield and are walled off from the community. Our initial reaction when we see an officer is 'blue' .21 An attempt was made to assess the effects of the project by means of a post-study questionnaire which was given to 800 police and 600 citizens. The citizens were much more enthusiastic than the police, who expressed a grudging to moderately good acceptance of the project. From the police point of view, the major gain was that the community got some 25 appreciation of the difficulties encountered by the individual . . police officer. There was also some reduction in prejudicial attitudes among the police. On the part of the community a common reaction was an increased appreciation of the police officer as an individual and as a human being. Objective evidence of the effectiveness of such studies is rarely clear-cut. In this case the project was embarked upon in the fear that the racial riots which engulfed some other large cities (e.g. the Watts outbreak) would hit Houston. In fact there was no rioting in that city in the following year. But this was equally true of other large cities without such a program. Indeed, after the very turbulent years of the late 1960s in the urban ghettos of the United States, more than a decade of relative calm descended upon the country. In this particular case, an interesting index of gain was a drop of about 70 per cent in citizen complaints about police behaviour. There were also reports of changed behaviour on the part of particular police officers - that, for instance, officers would 'stop their squad cars to talk with black people in their neighbourhood for no reason other than to meet them' .22 In one case a white police officer organised his own group of blacks and whites to continue discussion in his home. The project had its problems. Because the attendance of the community members was on a voluntary basis, it was inconsistent and this caused some discontinuity in the sessions. There were intrusive and abortive interventions by militants and dissidents, which raised the level of suspicion and defensiveness among the police. Some extreme right wing groups attended to take copious notes and write slanted articles about 'brainwashing'. Some police were not sympathetic and tried to sabotage the program. The demands on the resources of the leaders in handling very difficult groups were very heavy and many resigned from the project. 鱨վ one-third of the leaders were minority group members and they seemed to enjoy a distinct advantage with both the police and community members. 26 seemed to enjoy a distinct advantage with both the police and community members. Projects such as this Houston study do not constitute conciliation as such, but in their attempts to ameliorate relations between potential disputants they have much in common with it. Essentially both conciliation and conflict amelioration are methods of softening the boundaries between individuals and groups and making them more permeable so that constructive interaction can take place and new alliances with superordinate goals can take shape. In effect, such attempts at conflict amelioration are educational extensions of the conciliation process. The central point of this chapter has been that conciliation is a process in which a third party intervenes in a dispute between two principals with a view to helping them to arrive at a mutually satisfactory resolution of their differences. It is an intermediate process, between acting as a messenger or go-between and acting as an adjudicator imposing a solution the parties are obliged to accept. It involves the conciliator in setting the stage for the interaction between the contending parties and determining the rules that will apply in their negotiations. Conciliation is often employed in a context of dispute settlement where failure to achieve a resolution by this means opens the way for the referral of the matter to an arbitrating body or tribunal which has the power to make an award which will be binding on the disputants. In such a context there may be occasions where for good reasons (e.g. for purposes of equity where there is great disparity in the power of the disputants or where it is desired to establish a precedent) the intervening third party may wish to get the matter before a tribunal rather than assist the parties to settle it between themselves. 27 It is not my purpose to question the merits or otherwise of such a course of action. I would merely point out that it would not conform to the requirements of our definition. It would not be a case of helping the parties to settle their dispute on the way to court. It would not be conciliation. 28 CHAPTER 2 ENDNOTES K. Braun, Labor disputes and and their settlement, rev. edn, Johns Hopkins, Baltimore, 1955, p. 53. See Appendix for further discussion of the terms 'mediation' and 'conciliation'. ibid., p. 149. ibid., p. 150. R. Fisher & W. Ury, Getting to yes: negotiating agreement without giving in, Houghton Mifflin, New York, 1981. F. Manes, Study tour of United States and Canada, Victorian Commissioner for Equal Opportunity, Melbourne, 1982. Human Rights Commission,-Annual report vol. 2: report of the Commissioner for Community Relations, AGPS, Canberra, 1982, p. 2. A.D. Trlin, 'The New Zealand Race Relations Act: conciliators, conciliation and complaints 1972-1981', (1982) 34,2 Political Science, 170-193. J.W. Burton, Conflict and communication, The Tree Press, New York, 1969. R.E. Walton, 'A problem-solving workshop on border conflicts in Eastern Africa', (1970) 6 Journal of Applied Behavioural Science, 453-89. R.L. Bell et al., 'Small group dialogue and discussion: an approach to police-community relationships', (1969) 60,2 Journal of Criminology and Police Science, 242-6. E.B. Klein et al., 'When warring groups meet: the use of a group approach in police-black community relations', (1971) 6 Social Psychiatry, 93-9. 29 M. Lakin, Interpersonal encounters: theory and practice in sensitivity training, McGraw Hill, New York, 1972. I.W. Doob & J.W. Foltz, 'The Belfast workshop: an application of group techniques in a destructive conflict', (1973) 12,2. Journal of Conflict Resolutidn, 489-512. L.D. Brown, 'Can "haves" and "have-notes" co-operate?: two efforts to bridge a social gap', (1977) 13,2 Journal of Applied Behavioural Science, 211-24. M. Sherif ed., Intergroup relations and leadership, Wiley, New York, 1962. M. Lakin, op. cit., p. 241. R.L. Bell et al., op. cit. R.R. Blake & J.S. Mouton, 'The intergroup dynamics of win-lose and problem solving in union management relations', in M. Sherif ed., op. cit.,pp. 99-140; R.R. Blake et al., 'Union management intergroup laboratory: strategy for resolving intergroup conflict', (1965) 1,1 Journal of Applied Behavioural Science, 25-57 R.L. Bell et al., op. cit., p. 244. ibid., p. 246.  30 CHAPTER 3. THE NATURE OF THE TASK The Racial Discrimination Act 1975 imposed on the Commissioner for Community Relations the task of eliminating, so far as was possible, all forms of racial discrimination. In doing so the Commissioner was to rely primarily on the use of conciliation in the settlement of matters giving rise to complaints of discrimination and on education as a means of changing community attitudes and practices in regard to race relations. Critics of the Act decried the lack of powers available to the Commissioner for its enforcement. Thus Kelsey maintained that the methods of enforcement provided were quite inadequate to the task to be performed.' In his view what was required was a change in the power structure which would involve the inclusion of minority groups in the process of decision-making rather than reliance on inadequate procedures for the settlement of individual complaints. A less radical criticism was offered by Jayasuriya, who stressed the lack of penal provisions and punitive clauses and the absence of even basic investigatory powers.2 He took the view that in raising expectations which could not be fulfilled owing to lack of enforcement powers the Act would result in frustration and anger. He foresaw that both the victims and the potential discriminators would come to conclude that it was a token gesture which was not to be taken seriously. Aware of such criticisms, the first Commissioner for Community Relations decided that only by the most earnest application of the provisions of the Act could its potentialities be demonstrated and its weaknesses revealed. On this basis he applied himself, and the resources available to him, to the implementation of the Act to the limit of his powers. In accordance with the legislation and the sentiments expressed 31 by the legislators, the Commissioner and his -staff undertook, from the beginning, the two functions of: 1. settling complaints of racial discrimination by conciliatory means; and developing harmonious community relations through educational programs. The two functions were complementary. It would be easier to settle complaints of discrimination in a community where relations between the groups are predominantly harmonious than in one where they are characterised by conflict and hostility. By the same token, the conciliation process, when conducted effectively and leading to a meeting of minds, offers great scope for experiential learning of considerable potency for the participants in the dispute. Together they offer potential for creating harmonious relationships among racial and ethnic groups. For conciliation to take place it is necessary to have a complaint. Table 1, prepared from the Commissioner's records, shows the number of complaints per financial year over a period of almost eight years from the commencement of operations Both the number of complainants and the number of matters - the situations giving rise to the complaints - can be seen to have increased up to the year 1979-80. In the year 1980-81 the number of matters continued to rise, but the number of complainants fell. Changes in the counting procedures occurred in subsequent years with the advent of the Human Rights Commission. Records were no longer kept of the number of complainants joined in each matter. Also, some complaints which would previously have been counted in the Commissioner's statistics came to be listed as human rights complaints. 32 TABLE 1ComplainantsMatters (a)1975-76359(b)(8 months)1976-77622(b)1977-788615001978-799766281979-8013947161980-819047421981-826351982-83512Situation giving rise to the complaint. Not available. Source: Commissioner for Community Relations. The complaints cover a wide spectrum of issues and include derogatory remarks about race or nationality, refusal of service, discrimination in respect of housing or employment, and harassment by neighbours, government officials or police. The Commissioner's reports to the end of 1981 list briefly each complaint and its outcome; an excerpt from the 1980-81 report (Table 2) provides a cross-section of the complaints received. It is apparent from this extract that complaints of racial discrimination arise more frequently in respect of the treatment of Aboriginal people than in respect of any other racial or ethnic group. Although they comprised some one and half per cent of the Australian population, in 1980-81 they lodged in the vicinity of 40 per cent of the complaints. (Table 3). TABLE 2 Race/Ethnic State! Group Territory M or C Respondent Complaint as stated Outcome Aboriginal NSW Aboriginal Qld Aboriginal Qld Yugoslav NSW Asian NSW Aboriginal Qld Aboriginal NT Aboriginal Qld Ukranian NSW Indian Vic Aboriginal Qld European NSW Indian NSW Aboriginal NSW Not stated Qld Aboriginal Qld New Zealand NSW Police Community Council Community Council Radio stations Newspaper Hotel School Agents for landlord Newspaper Aboriginal who was drunk staggered into police officer. Police officer handled him roughly and at the police station struck him in the back of the head with a closed fist. Another Aboriginal was told that he would be shot if he was ever found drunk again Dismissal Direction to leave Song which appears to ridicule Europeans Discriminatory article Refusal of service Discriminatory practices Inadequate service by landlord's agent Discriminatory remarks by journalist Incident reported in person to Inspector of police by officers accompanied by an Aboriginal leader. Matter taken into account by defence counsel Referred to NCDEO. Continuing Inquiries initiated. Directions to attend compulsory conference have been issued No unlawful act No unlawful act Inquiries initiated. Continuing Complainant has asked for action to be deferred pending direct action by him Resolved after discussion with agent No unlawful act Source: Commissioner for Community Relations, Sixth Annual Report 1980-$1, AGPS,-Canberra, 1981, p. 102. 34 TABLE 3 No. of No. of other Total N complaints complaints of relating to complaints Aboriginals New South Wales91164255Victoria19179198Queensland18642228South Australia42639Western Australia5446100Tasmania178Northern Territory261036Australian Capital75966Territory388533921 Source: Commissioner for Community Relations, Sixth annual report 1980-81, AGPS, Canberra, 1981, p. 51. It can be seen from Table 3 that Victoria had comparatively few complaints from Aboriginals in comparison With those from other groups. This presumably was attributable to the relatively small numbers of Aboriginal people in that State and to the large ethnic communities of European origin in Melbourne. Table 3 also shows that in Queensland the figures were broadly the converse of those for Victoria. Queensland has a comparatively large Aboriginal population. Furthermore, the policies pursued by the Queensland Government have been less favourable to Aboriginal people than those pursued by other States on the eastern seabord. 35 The total numbers of complaints for States and Territories other than New South Wales, Queensland, Victoria and the Australian Capital Territory were relatively low because the Commissioner, as a matter of policy in making the best use of his limited staff, confined the activities of his Office largely to the eastern States. The high incidence of complaints of racial discrimination in respect of Aboriginal people was foreseen in the debate during the passage of the legislation. Indeed, for some speakers the term 'racial discrimination' seemed to be virtually synonymous with discrimination against this section of the population which has been the victim of oppression through nearly two centuries of white occupation. The relative severity of discrimination against Aboriginals is reflected not only in the proportion of complaints coming from them but also in the comparative difficulty in settling the issues that give rise to the complaints. Dealing with complaints When a complaint is made of racial discrimination, steps are taken to inquire into and, where possible, to settle the matter. We can note four levels in this process. At the simplest level, on inquiry it is found that the act complained about is not prohibited by the Act. It may, for instance, be that there was in fact no discrimination. In other words, the complainant received exactly the same treatment as any other members of the community would have received. It may be that critical or derogatory statements were made about the race or ethnic group of the complainant, but these have not been prohibited under the Act. It may be that there was some misunderstanding on the part of the complainant of the nature of the act that was the subject matter of the complaint. In such cases the matter is usually dealt with by advising the complainant of the situation, and the issue is closed. 36 At the next level of difficulty, it emerges on inquiry that the complainant has grounds for complaint, but the matter can be resolved by informal means. For instance, officers may inform the respondent of the situation and the respondent may take appropriate steps to remedy the matter. Or the parties may come together informally with the conciliator and work out a solution to their dispute. At the third level, the Commissioner (or his or her delegate) has the power to call a compulsory conference for the purpose of settling the matter of the complaint. This power is resorted to when settlement by less formal means seems unlikely. C,Nrer the period from 1975 to 30 June 1984, a total of eighty-five compulsory conferences were called. The following excerpt from Community Relations Paper No. 11, issued by the Commissioner in April 1981, conveys something of the nature of compulsory conferences: The largest number of compulsory conferences under the Racial Discrimination Act 1975 have been convened in New South Wales country towns. Compulsory conferences bring complainants and respondents together and afford to each a measure of protection ... not available in informal conferences. They are an effective means for resolving complaints and bringing respondents, often for the first time, to the table with Aboriginal people. They are a means for educating those with power that they are not above the law and that Aboriginal people have rights under the law for the first time in 200 years.3 Finally, when the matter of complaint cannot be settled by a compulsory conference, the aggrieved parties may take their case to a court of competent jurisdiction for redress of their grievances. This, however, can only be done after obtaining a certificate from the Commissioner for Community Relations stating that he has convened a compulsory conference and that at the date of the certificate the matter has not been settled. 37 a measure of some moment for it exposes the parties - more .particularly the respondent - to the costs and stress of court action. It is understandable that the parties generally prefer to settle the matter before it reaches this stage. The following brief report, taken from Community Relations Paper No. 11 of April 1981, indicates the type of transaction that may occur in more difficult cases: Complaint as stated Hotel Four Aboriginals sought service in a hotel. The Publican said they could have one drink and then they would have to leave. When the men protested, the Publican told them to leave or he would call the police. Inspector of Police was in the hotel office at the time and became involved in the discussion. He allegedly supported the Publican and would not listen to the Aboriginals' point of view. Outcome/basis of settlement Compulsory conference held. Directions to attend were issued to Publican, the Inspector of Police, complainant, witnesses and a member of local Consultative Committee on Community Relations. Respondent, who did not attend, and Inspector advised that the matter to be dealt with at compulsory conference was sub judice because of a charge of unseemly words against one of the complainants. Summons relating to this charge had been served in the late afternoon of the working day prior to the conference. A second compulsory conference was called which all previous parties, except the complainant charged with unseemly words, were directed to attend. Publican left the conference unexcused claiming the matters to be discussed were sub judice. Inspector was excused from the conference with the consent of the complainants for the same reason. The conference failed to settle the matter. A certificate under the RDA 1975 was foreshadowed. Senior counsel had advised on the challenge. At the request of the principal complainant, officers settled the matter between the parties on the basis of the payment of $1,000. Further action by the Commonwealth against the respondent for non-compliance with a direction to attend a compulsory conference was discontinued in the consideration that the matter had been settled.4 During the period to 30 June 1984 a total of thirty certificates involving fifteen matters have been issued. (A separate certificate is issued to each person where two or 38 more are joined in a complaint, as in the above case.) These involved complaints against public service departments, hotel licensees and real estate agents. Since such a high proportion of the complaints of racial discrimination came from members of the Aboriginal community, and since recourse to the more coercive procedures for effecting settlement has been almost entirely restricted to cases involving Aboriginals, it is clear that the most stringent tests of the efficacy of the Act occur in the area of relations between the Aboriginal and non-Aboriginal groups. It is here that the conciliation process comes under the most severe challenge. The strengths and limitations of the legislation and the procedures used to implement it are most likely to be found by examining their operation in this seemingly intractable area of community relations. But, before taking up the matter of combating discrimination against Aboriginals, the situation of the non-Aboriginal ethnic communities with respect to the problems they encountered, the complaints they made and the way in which the provisions of the Act were used to ameliorate their position will be considered. Although Aboriginals were disproportionately over-represented in the proportion of complaints, some two-thirds of the total number of complaints emanated from members of the 'ethnic' communities. The nature of these complaints and how they were dealt with under the Act will be examined in Chapter 4. 39 CHAPTER 3 ENDNOTES B. Kelsey, 'A Radical approach to the elimination of racial discrimination', (1975) 1,2 University of New South Wales Law Journal, 56-96. D.L. Jayasuriya, 'An analysis of the Race Relations Bill.', (1976) 2,9 Identity, 31-3, 36. Commissioner. for Community Relations, Discrimination against Aboriginals in country towns of New South Wales, (Community Relations Paper 11), Office of the Commissioner for Community Relations, Canbera, 1981, p ibid., p. 39-40. 40 4. DISCRIMINATION IN RESPECT OF ETHNIC COMMUNITIES On 28 June 1983 this letter appeared in the Canberra Times: Sir, - May I contribute to the discussion on multi-culturalism in Australia in the light of comments that have been circulating recently. One gets the impression that the so-called 'dinkum Aussie' is beginning to thin out in the ranks and that the Anglo-Saxon dominance may be weakening. This is due to the increasing number of non-Anglo-Saxons in the community and is influencing the attitudes of Australians. We recognise the fact that the Aborigines were here before us, but as Anglo-Saxons have been the dominant population (since about the 1830s, when the European population exceeded the native population), we have been traditionally regarded as 'the Aussies'. We should not be ashamed of thinking of ourselves in this light, as those of Anglo-Saxon descent have made this country what it is today. As a fifth generation Australian whose grandfather was a 1915 Anzac, I deplore the moves to 'dilute' our heritage, which is a very strong feature of this country. To quote from They're a Weird Mob, written 25 years ago, 'There are far too many New Australians in this country who are still mentally living in their homelands, who mix with people of their own nationality and try to retain their own language and customs, who even try to persuade Australians to adopt their customs and manners. Cut it out. There is no better way of life in the world than the Australian. I firmly believe this.' Returning to one aspect of the situation in 1983, the arguments so far advanced to alter our national language with a view to accommodating non-English speaking migrants are unconvincing and will bring about confusion, resentment and division in Australia. We have abundant evidence of the success of ethnic pressure groups in persuading us that we should adapt to their needs. When prominent academics and educators take up the cry, people start to believe the story. 41 Finally, I would like to support P. and R. - (Letter, February, 13): May we get this off our chests, for all the letters that make us feel the Aussie is a dying race? W.14 This letter is quoted as an introduction to the problems confronted by members of the 'ethnic' communities, the attitudes with which they have to content and the task undertaken by the Commissioner for Community Relations in trying to promote an open society willing to accept diversity and change in its life patterns. To the extent that it argues for a closed monolithic and static culture and society to which newcomers to the country must adapt and conform, it ignores their very human social and emotional needs. The term 'ethnic' derives from the Greek ethnos, meaning nation or folk, and refers to the folk ways - the customs, values and traditions - accepted among the particular group. In this sense we are all ethnics. But the term as commonly used in this country has come to denote all those, other than Aboriginals, who have not, for any one of a number of reasons, become relatively indistinguishable in their beliefs, language, lifestyles or related characteristics from such people as the writer of the above letter. 'Ethnics' may be recent arrivals from the United Kingdom or third or fourth generation Australians living in the Chinatowns of our capital cities. They may be members of national groups - Greeks, Italians, Germans - seeking to preserve some aspects of their customs and culture. They may be people who subscribe to a particular set of religious beliefs. The relevance of ethnicity in Australian society in the closing decades of the twentieth century has been brought out in a paper published by the Commissioner for Community Relations .2 There it was pointed out that in the thirty years to 1975 some 3.5 million people came to Australia, by 1975 anyone who was alive in Australia at the time of World War II 42 was in a minority and 40 per cent of all Australians were a product of post-war migration. The 3.5 million new arrivals 'came from 140 different ethnic backgrounds speaking 90 different languages and practising 40 different religions'. They had formed more than 2300 ethnic organisations dedicated to ethnic pluralism by maintaining their original culture and had established some hundreds of schools in which some 100,000 children received training in 'their original language, culture and traditions while also attending Australian state or independent schools'. This massive influx, resulting in something of a demographic revolution, has been accomplished in a remarkably peaceful way, which says much for the resourcefulness and basic good will of both the new arrivals and the receiving population. There has been a relative absence of riots or communal conflict or strife. This, however, is not to say that all has been sweetness and light in the incorporation of the newcomers into the Australian population. For many the process of establishing themselves in their new land has been an arduous struggle to overcome difficulties arising directly or indirectly from their ethnic status. While overt hostility and communal violence were largely absent from relations between the different sections of the Australian society, there was on the part of the more established sections of the population little appreciation of, or sympathy with, the situation in which members of the different ethnic groups found themselves. For the most part, it was blandly assumed that the newcomers would move quickly into the workforce, acquire fluency in the language and adopt the prevailing manners and customs. In attempting to understand the nature of the contribution made by the Racial Discrimination Act 1975 in ameliorating the disabilities suffered by the ethnic communities, we can begin by considering the subject matter of the complaints made to the Commissioner and in particular how these complaints compared with those made by members of the Aboriginal community. As has already been noted, the Aboriginal people 43 not only account for a disproportionately large share of the complaints, but also account for virtually all those complaints which require the use of the powers available to the Commissioner for their resolution. We might therefore ask if there are any features which distinguish the content of complaints by members of the 'ethnic' groups from the matters raised in Aboriginal complaints. Trlin reports that when the subject matter of each complaint was examined and classified: ...the pattern for each of the two ethnic categories was different.. .In comparison with 'Other' [i.e. 'ethnic'] complainants the percentages of Aboriginal complaints accounted for by Sections 9 and 15 were much lower and the percentages for Sections 11 (access to public places, facilities), 12 (land, housing) and especially 13 (provision of goods and services) were much higher. Indeed while accounting for only 31.5 percent of all complaints [in his sample], Aborigines accounted for 95.8, 75.0 and 64.6 per cent of the complaints under Sections 11, 12 and 13 respectively. Overall, these findings could lead one to the conclusion that Aborigines are more likely to experience discrimination at the hands of 'gatekeepers' such as hotel managers, landlords and other business proprietors. To temper this conclusion, however, it must be acknowledged that members of other ethnic-groups may have avoided such discrimination by patronising businesses owned and operated by members of their own groups in the major metropolitan areas.3 It would seem that, as compared with Aboriginal people, it is comparatively rare for a member of one of the ethnic communities to experience the unambiguous and insulting confrontation of being refused entry to public places and facilities, access to land or housing, and provision of goods and services because of his or her ethnic identity. Since such refusals constitute the most extreme forms of racial discrimination and reflect the most intractable racist attitudes, it can be said that such discrimination as has been encountered by ethnic communities has been of a less extreme form and presumably more responsive to intervention procedures than that applying in respect of the indigenous people. 44 When we turn to those complaints which have disproportionately high frequencies among the ethnic groups we find that, on Trlin's calculations, some three-quarters fall under s.9, which, as he puts it, 'is distinguished by its very broad application'. This section makes unlawful any act which involves a distinction, exclusion, restriction or preference, based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any field of public life. That is to say, some three-quarters of the complaints are based not on deeds which clearly constitute infringements of specific provisions of the Act but rather on more general and less clearly defined issues of human rights. Of the remaining complaints he found that approximately half fall under s. 15 which, in Trlin's summary account, makes it unlawful to 'discriminate in the hiring, dismissing, promoting, providing of training opportunities or setting of work conditions for employment'.4 It is usually difficult to establish bias or discrimination in employment matters. Many variables may be salient in determining such matters as dismissal, hiring, promotion or training. They include the qualifications and performance of the individual, the merits of others who are competing for the position or promotion and the special requirements of the duties to be performed. Complaints under s.15 are, therefore, like those under s.9, more likely to prove difficult to establish as being based on racial discrimination. In effect, if we accept Trlin's classification, in over 85 per cent of the complaints emanating from members of ethnic communities, there is likely to be some difficulty in establishing that an unlawful act of racial discrimination took place. To the extent that conciliation is undertaken 45 when preliminary inquiries indicate that an unlawful act of racial discrimination has occurred, it would seem that there has been relatively limited scope for its application in respect of grievances arising among ethnic communities. This does not mean that the complaints emanating from members of ethnic groups are groundless. It means only that they do not lend themselves to conciliation under the. Racial Discrimination Act as we have defined conciliation in Chapter Nature of complaints From an examination of the annual reports of the Commissioner for Community Relations it appears that complaints made by persons of ethnic background largely do not proceed to conciliation for one of the following reasons: the complaint is based on an occurrence which is not unlawful under the Act; or inquiries indicate that the occurrence complained about did not involve racial discrimination; or the matter complained about is settled to the satisfaction of the complainant without the necessity of proceeding to conciliation. Occurrence not unlawful under the Act Not all behaviour which reflects racist attitudes has been made unlawful by the legislation. The most obvious exceptions are expressions of a derogatory and insulting nature made by individuals or organisations, and offensive references to racial or national groups in the media. These figure very prominently in the grievances of members of ethnic groups. The Commissioner's report for 1980 stated: 46 Salient features of the community relations scene in Sydney during the past year have been: Intensive propaganda campaigns in the suburbs by racist organisations, including the widespread distribution of fake letters purporting to emanate from the Sydney Office. Outbreaks of brought about by some suburban. newspapers publishing offensive material based on race or birthplace. Neighbourhood disputes marked by racist name7calling.5 Racist name-calling occurs in a wide variety of situations. It probably occurs most frequently in neighbourhood disputes,but complaints have been made of its use by teachers in addressing pupils and by police in interrogating suspects. Related behaviour of an offensive nature includes racist jokes, advertisements which depict particular groups in undignified ways, and media reports which identify by the use of ethnic and racial terms individuals involved in police inquiries and criminal charges. However, unless the racist expressions give rise to physical acts that infringe the safety or rights of others, they do not constitute unlawful acts. In the framing of the legislation, in deference to the right of freedom of speech, the use of derogatory terms and the making of statements which are offensive to particular groups were not prohibited. Legally, the Commissioner has had no power to act in respect of complaints in this area. That he has in practice made representations to those who cause offence in such ways - and often succeeded in having remedial action taken - reflects his concern for the feelings of the people involved and his commitment to the cause of harmonious community relations.6 Not racial discrimination 47 do not involve racial discrimination. These can be noted in the tabulated case lists included in the Commissioner's reports to 1981. Thus a person of Welsh background alleged 'victimisation and denial of entitlement to war pension and repatriation medical services' against a Commonwealth department. Inquiry revealed that this person was 'ineligible for benefits as former merchant seaman'.7 In another case a person of Italian origin lodged a complaint against 'Australian and overseas governments' on the grounds that 'acceptance of Australian citizenship led to loss of compensation from former country'. The finding was that this was 'not racial discrimination'.8 It would seem that in a substantial number of cases the event complained about occurred for reasons other than racial discrimination. When this became apparent at the initial inquiry stage the complainant would be advised and the matter closed. From the viewpoint of the Commissioner the important issue in all cases was that the complaint should be taken seriously and investigated in order that the complainant might be satisfied that the matter had received full consideration. Matters settled by minimum intervention In many cases where the complainant has a grievance that is covered by the legislation, only minimal intervention is required to settle the matter. While accompanying two officers from the Human Rights Commission on a field trip in 1982 I observed such a case. We visited a Sikh community in a small provincial centre in respect of some matters which had been raised on previous field trips. After these had been attended to and in the course of some social exchanges, one of the young men in the community raised the question of the difficulty some recently arrived wives of community members had in passing the test to obtain a driver's licence. This man, who had grown up in Australia, had, like some others in the community, recently gone back to the Punjab, where he had 48 married and he had then brought his wife to Australia. She was not fluent in the English language and had difficulty in passing the test on the rules of the road, even though she knew them well, because the test was administered in English. Since provision has been made for persons whose native language is not English to take this test in their mother tongue in the case of many European languages, the young man wondered whether it would be possible to arrange for such new arrivals from India as his wife to take this test in a language with which they are familiar. The officer listened attentively and suggested to the man that he take the matter up with the local inspector of police. He told him that if there was any difficulty in the matter the Commission would take it up, but in the first instance, in the interests of good community relations, it would be better if the necessary arrangements could be made locally without intrusion from outside. The man seemed quite happy about this and said he would discuss the matter with the inspector. As we left, the officer commented, There you have an example of the genesis of a complaint. If it is necessary we will take the matter up, but [the Sikh in question] is a very able young man who is quite capable of handling the matter tactfully with the police. We encourage people to resolve their own problems and we refrain from interfering as far as possible consistent with our responsibilities. We see this as having developmental value for the individual and for the community. In this case the Sikh had the right to ask for the test to be taken in the language of the applicant. No doubt the failure to make provision for this was related to a lack of demand for it in the past. No doubt too there would be some minor inconvenience in making arrangements in a provincial centre for the testing of applicants for driving licences in a language that is not widely used. The matter, however, was obviously one that could be settled by reasonable people working together. Printed in Australia by C. J. THOMPSON, Commonwealth Government Printer, Canberra  The position may be summarised by saying that there are broad principles which are common to conciliation in its different  Doctor Alleged medical malpractice Employer Unjust dismissal Picture Harassment theatre Cattle Refusal to deliver station telegrams to Aboriginals Council Community objection to proposed establishment of an Alcoholic Rehabilitation Centre on a property Government Discrimination through Office imposition of penalty without reasonable explanation Employer Discrimination in employment Employer Discrimination in employment Resolved after conference with councillors Resolved. After discussions an extension of time was sought and agreed to Inquiries initiated Referred to NCDEO. Continuing Lapsed. Further details not provided Services are private and therefore there is no obligation or agreement to carry out Telecom business Property sold and an alternative site was acquired Referred to appropriate authority. Continuing The issuing of a certificate is the most extreme measure the Commissioner can take in the settlement of complaints. 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