Thirty years ago in the New South Wales’ (NSW) Upper House, Premier Wran delivered his visionary Second Reading to establish the Anti-Discrimination Board, stating, "the protection of fundamental rights and freedoms of the individual is of paramount importance to governments. The principle that all human beings are born equal, have a right to be treated with equal dignity, and a right to expect equal treatment in society is a principle firmly upheld by my government."
NSW was the second Australian state to enact anti-discrimination law after South Australia, but it was the first to establish a dedicated Anti-Discrimination Board (ADB). Its role then was to conduct quasi-judicial inquiries into discrimination complaints and develop human rights policies. Today, the ADB's powers are in the investigation and conciliation of complaints.
Thirty years is a good passage of time for considering the impact of the ADB. Thirty years of changes in the workplace and in social attitudes across NSW, but to what end?
The most recent management book from Robert Sutton, Professor of Management at Stanford University entitled, The No Asshole Rule - Building a Civilised Workplace and Surviving One That Isn't, has been a bestseller in Australia. Its popularity attests to the fact that workplaces remain the number one location for bullying and discrimination. If so, what does this say about the effectiveness of the ADB?
Not much - last year, as with every year, most of the complaints to the ADB were made by women about sex discrimination in the workplace, 10 per cent were about individual males. Over half of the complaints do not even get looked at, either withdrawn or the ADB “declines” to investigate. Only 10 per cent end up in being publicly aired at the Administrative Decisions Tribunal (ADT).
Two reports into the ADB by the NSW Law Reform Commission attest to the ADB’s failures. The first in 1999 recognised a "significant discrepancy between discrimination in theory and practice”. Professor Sutton observes that such "discrepancies", or bullying and discrimination, damages victims and batters bystanders.
Workplace performance also takes a dive with a decline in innovation, co-operation and morale. Then there is the cost of the victim’s ongoing retribution towards the employer. Corporate reputations can take a hard hit and prospective employees look elsewhere.
The second Law Reform Commission Report in 1997 relied on surveys of employers and employees who had dealt with the ADB. The results were not encouraging. Feedback was "very diverse, ranging from the extremely positive to the extremely negative". Participants stated that, "in the long run, it was often cheaper to settle a claim than to dispute it, whatever the merits of the case”. Whatever the merits? This sums up the ADB’s justice process - settlement through "conciliation".
Last year most complaints (33 per cent) looked at by the ADB were settled before, at, or after conciliation. The conciliation process involves the ADB acting as the third party, brokering a deal between the employer and employee.
The deal is the victim gets a payout, resigns, and withdraws their complaint. Employer insurance usually covers the payout, generally less than the statutory limit of $40,000. In return for the money, the victim signs a legal contract to withdraw the complaint and say nothing to anyone, especially the media.
This practice fails to prevent bullying and discrimination. In many cases the perpetrator remains in their job, perhaps transferred, rarely dismissed. Lip service replaces attitude change.
Take a look at one of the ADB's "successful conciliation" case studies:
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