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Chapman, Anna; Mason, Gail --- "Women, Sexual Preference and Discrimination Law: A Case Study of the NSW Jurisdiction" [1999] SydLawRw 21; (1999) 21(4) Sydney Law Review 525



[*] Lecturer, Department of Gender Studies, The University of Sydney

[#] Lecturer, Faculty of Law, The University of Melbourne. This project was funded by the Australian Research Council. The authors thank Chris Puplick, President of the Anti- Discrimination Board (NSW), Michael Sparks (Manager, Complaints Resolution Branch) and Nancy Hennessey (formerly Manager, Legal and Policy Branch) for their time, co-operation and support of this project. We also thank Lucy Chesser for putting together much of the data on which this paper is based.

[1] This Part (Part 4C) was inserted into the Anti-Discrimination Act 1977 (NSW) by the Anti-Discrimination (Amendment) Act 1982 (NSW) (which commenced on 20 December 1982). Section 4(1) of the NSW Act defines homosexuality to mean a male or female homosexual. We use this terminology in our article when we are referring to this ground. In doing so we acknowledge the highly contested and problematic nature of the concept of homosexuality in legal discourse.

[2] See Equal Opportunity Act 1995 (Vic) s6(d); Anti-Discrimination Act 1991 (Qld) s7(1)(l); Equal Opportunity Act 1984 (SA) s29(1)(b); Discrimination Act 1991 (ACT) s7(1)(b); Anti- Discrimination Act 1992 (NT) s19(1)(c); Anti-Discrimination Act 1998 (Tas) (which at the time of writing has not come into operation). Note also the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and reg 4(a)(ix) Human Rights and Equal Opportunity Regulations (Cth) (SR No 407 of 1989) (although these provisions do not render discrimination unlawful as such).

[3] These provisions were included as Part 4C Div 4 by the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW).

[4] Anti-Discrimination Act 1977 (NSW) s49ZTA.

[5] The confidentiality requirements are contained in the Anti-Discrimination Act 1977 (NSW) s94(2).

[6] In October 1998 the Tribunal was abolished and its functions are now performed by the Administrative Decisions Tribunal.

[7] Hunter R & Leonard A, Sex Discrimination and Alternative Dispute Resolution: British Proposals in the Light of International Experience [1997] Public Law 298 at 299. Thornthwaite found that in the first 10 years of operation of the Anti-Discrimination Act 1977 (NSW), around 6 per cent of complaints in the area of employment were referred to the EOT: Thornthwaite L, The Operation of Anti-Discrimination Legislation in New South Wales in Relation to Employment Complaints (1993) 6 Australian Journal of Labour Law 31 at 33.

[8] For empirical accounts of race discrimination complaints, see Pentony P, Conciliation Under the Racial Discrimination Act 1975: A Study in Theory and Practice, Human Rights Commission Occasional Paper No 15, 1986; McNamara L, Research Report: A Profile of Racial Vilification Complaints Lodged with the New South Wales Anti-Discrimination Board (1997) 2 International J of Discrimination and the Law 349. On the resolution of sex discrimination complaints, see Hunter R & Leonard A, The Outcomes of Conciliation in Sex Discrimination Cases, Working Paper No 8, Centre for Employment and Labour Relations Law, University of Melbourne (1995). See also Morgan J, Interim Report on Examination of all Sexual Harassment in Employment Cases Closed in 1991 and 1992 (unpublished paper on the Victorian jurisdiction).

[9] See, for example, Thornton M, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990); Astor H & Chinkin C, in Dispute Resolution in Australia (1992); Thornthwaite, above n7; New South Wales Law Reform Commission, Discrimination Complaints-Handling: A Study, Research Report 8, 1997; Human Rights and Equal Opportunity Commission, National Review of Complaint Handling: Final Report of the Steering Committee, (1994); Equal Opportunity Commission (WA), Investigation and Conciliation: Report of the Steering Committee into Processes under the Western Australian Equal Opportunity Act 1984 (1994).

[10] See for example, Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti- Discrimination Board, 1997) at 19 (68 complaints); Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti-Discrimination Board, 1996) at 19 (68 complaints); Anti- Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 30 (60 complaints); Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 23 (57 complaints).

[11] Empirical research indicates widespread discrimination against lesbians and gay men in Australia. For example, a survey conducted in Victoria in the early 1990s of 1002 people indicated that 45.1 per cent of lesbians and 45.3 per cent of gay men reported some form of discrimination (including harassment) in employment, 28.9 per cent of lesbians and 25.9 per cent of gay men reported discrimination in education and 41.1 per cent of lesbians and 25.5 per cent of gay men reported discrimination related to their sexual preference in the provision of services: Gay Men and Lesbians Against Discrimination (GLAD), Not a Day Goes By: Report on the GLAD Survey into Discrimination and Violence Against Lesbians and Gay Men in Victoria, 1994 at 5. See also Mason G, Heterosexed Violence: Typicality and Ambiguity in Mason G & Tomsen S (eds), Homophobic Violence (1997); NSW Police Force and Price Waterhouse Urwick, Out of the Blue: A Police Survey of Violence and Harassment Against Gay Men and Lesbians (1995).

[12] For example in 19961997 women lodged 18 of the 68 homosexuality discrimination complaints and one of the homosexuality vilification complaints: Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 23; in 1995 1996 women lodged 17 of the 68 homosexuality discrimination complaints and three of the homosexuality vilification complaints: Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti-Discrimination Board, 1996) at 22; in 19941995 women lodged 16 of the 60 homosexuality discrimination complaints and six of the 19 vilification complaints: Anti- Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 38. For statistics from July 1982 to June 1987, see Thornthwaite, above n7 at 36.

[13] Less than 20 complaints under sexual preference grounds have gone to a full tribunal hearing. See, for example, the cases discussed in Chapman A, Sexuality and Workplace Oppression [1995] MelbULawRw 23; (1995) 20 MULR 311.

[14] The only full tribunal hearing involving a woman complainant under a State or territory sexual preference ground is: JM v QFG (1997) EOC 92876. The case went on appeal: QFG v JM (1997) EOC 92902 (Qld Supreme Court); JM v QFG (Qld Court of Appeal, Davies, Pincus, Thomas, JJA, 18 August 1998, unreported). We understand the complainant is, at the time of writing, seeking leave to appeal to the High Court. A woman complainant who identified herself as a lesbian has been successful under the then Victorian ground of political beliefs: Thorne v R (1986) EOC 92182. In addition, a woman complainant has successfully argued before the Human Rights and Equal Opportunity Commission that the Catholic Education Office discriminated against her on the ground of her sexual preference by refusing to classify her as a teacher in Catholic schools: Griffin v Catholic Education Office (1998) EOC 92928. The Commissioner reported the findings of the Inquiry to the federal Attorney-General.

[15] Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 27; Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 21. In the years 199596 and 199697, homosexuality discrimination complaints were not identified as being within the least likely to proceed group of complaints: Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti- Discrimination Board, 1996) at 24; Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 25.

[16] We note that the homosexuality vilification provisions did not come into effect until March 1994. Our study examined closed complaint files from January 1993 to February 1997.

[17] Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 20 (employment accounted for 58 per cent of all complaints, goods and services for 21 per cent); Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti- Discrimination Board, 1996) at 20 (employment accounted for 55 per cent of all complaints, goods and services for 24 per cent); Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 34 (57 per cent of all complaints were in the area of employment, 21 per cent were in the area of goods and services); Anti- Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 25 (61 per cent of all complaints were in employment, 17 per cent in the area of goods and services).

[18] See Hunter R, Indirect Discrimination in the Workplace (1992); Wilkie M, Australias Human Rights and Equal Opportunity Commission in MacEwen M (ed), Anti-Discrimination Law Enforcement: A Comparative Perspective (1997); Thornton, above n9 at 158159.

[19] Hunter & Leonard, above n8 at 9.

[20] Note that of the 27 homosexuality discrimination complaints which included the presence of a same sex relationship, 12 of these complaints related to six actual or assumed couples and were lodged by both women in the presumed relationship. The remaining 15 complaints were lodged by one woman alone.

[21] Millbank J, If Australian Law Opened its Eyes to Lesbian and Gay Families, What Would it See? (1998) 12 Australian Journal of Family Law 99; Leach T & Katzen H, The Relationships of Lesbians and Gay Men in The Law Handbook, (6th ed, 1997); GLAD, above n11; Senate Legal and Constitutional References Committee, Inquiry into Sexuality Discrimination (1997) ch 2; Equal Opportunity Commission Victoria, Same Sex Relationships and the Law (1998).

[22] Hope v NIB Health Funds Ltd (1995) EOC 92716 (Hope) (a decision of the EOT under the homosexuality ground). An appeal against this decision was not successful: NIB Health Funds Ltd v Hope & Anor (Supreme Court of NSW, Administrative Law Division, McInerney J, 15 Nov 1996). Contrast Wilson and Halloran v Qantas Airways Ltd (1985) EOC 92141 (a decision of the EOT under the grounds of homosexuality discrimination and marital status).

[23] Anti-Discrimination Act 1977 (NSW) s54.

[24] Gay and Lesbian Rights Lobby Inc, Legal Recognition of Same Sex Relationships (1995) at 6, Appendix A. See also Anti-Discrimination Board, Balancing the Act: A Submission to the NSW Law Reform Commissions Review of the Anti-Discrimination Act 1977 (NSW) (1994) at 298 301 (Attachment 4). The Equal Opportunity Commission Victoria has identified 34 Victorian statutes that discriminate against same sex relationships: Equal Opportunity Commission Victoria, above n21 at 63. See also Human Rights and Equal Opportunity Commission, Human Rights for Australias Gays and Lesbians, Human Rights Commissioner Occasional Paper No 5 (1997) at 1318.

[25] GLAD concluded that the more open a lesbian or gay man is about her or his sexual preference, the more likely that person is to experience discrimination: GLAD, above n11 at 5.

[26] There is no definitive legal test of non-sexual harassment and we base our description of this conduct as harassment on the definition used by the NSW Anti-Discrimination Board: Anti- Discrimination Board, Harassment in the Workplace: Guidelines for Managers (NSW, 1998) at 9; Anti-Discrimination Board, Harassment and Sexual Harassment Your Rights (NSW, 1998) at 1. Our purpose in characterising certain behaviour as harassing is to describe the conduct, not to make any assessment as to the likelihood or not that such behaviour would amount to harassment at law. Although outside the scope of this paper, it is important to point out that the actual injury of such behaviour may have more to do with its capacity to insult the complainant or diminish her sense of self-respect than it does with the notion of offensiveness. We note that Jenny Morgan has expressed reservations about a definition of sexual harassment where the operative phrase refers to the offensiveness of the conduct. Morgan argues that such language may promote the view that sexual harassment is a question of morality rather than equality. See Morgan J, Sexual Harassment and the Public/Private Dichotomy: Equality, Morality and Manners in Thornton M (ed), Public and Private: Feminist Legal Debates (1995) at 92.

[27] Morgan, above n8 at 2.

[28] Morgans interim report on sexual harassment does not specify the sex of the harassing party. It does state that 97.4 per cent of complainants were female. Morgan, above n8 at 1.

[29] Morgan, above n8 at 5.

[30] Hunter and Leonard, above n8 at 6.

[31] Id at 1011.

[32] Id at 1. Unfortunately Hunter and Leonard do not indicate how many complaints they excluded on this basis.

[33] Two of these involved questions asked in job interviews, one involved not awarding the complainant a full-time position (after on-going harassment in her part-time position with the respondent), and five involved dismissals (four of these also contained allegations of prior harassment).

[34] Thornthwaite, above n7 at 37.

[35] Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 20; Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti-Discrimination Board, 1996) at 20; Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 35 (substantially higher than one-third); Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 26 (considerably lower than one-third).

[36] Cornell D, The Imaginary Domain: Abortion, Pornography and Sexual Harassment (1995) ch 1 (Introduction) and ch 4 (Sexual Harassment). The emergence of harassment in these complaint files raises a series of questions that demand greater attention than can be given here. This analysis is the subject of a future publication by the authors.

[37] The ADB advised the complainant that this text probably did not constitute unlawful homosexuality vilification due to the operation of the religious exemption provisions in the Anti-Discrimination Act. The ADB referred to s49ZT(2) and s56(d) of the Act in its letter to the complainant.

[38] The other was withdrawn after the successful criminal prosecution of the respondent.

[39] We do however note that all complaints in our study were lodged in English and that there was no indication in any of the case files that an interpreter had been used.

[40] The question of whether complainants (and respondents) had legal or other representation is discussed below.

[41] Hunter and Leonard, above n8 at 2.

[42] Ibid.

[43] On power dynamics between complainants and respondents, see generally Thornton, above n9; Astor and Chinkin, above n9.

[44] Sections 88 and 88(1A) provide that a complaint may be lodged by a complainant on her own behalf alone, by a complainant on behalf of herself and someone else, by two or more persons on their own behalf or on their own behalf and on behalf of another person or persons, by a representative body on behalf of a named person or persons.

[45] Hunter and Leonard, above n8 at 2.

[46] Morgan, above n8 at 4.

[47] The Anti-Discrimination Act 1977 (NSW) provides, in effect, that where the alleged discriminatory conduct has been carried out by, for example, an employee, then that persons employer may be identified as a respondent and the individual employee concerned may also be liable as an accessory. Anti-Discrimination Act 1977 (NSW) s52, s53.

[48] Hunter and Leonard, above n8 at 5.

[49] This appears to be an informal practice (that is, not one found in the Complaint Handling Manual) that officers of the Board have developed presumably in response to the view that conciliating with the main respondent alone is likely to be faster, more manageable and may be more likely to result in systemic change than dealing in addition with an individual employee of this respondent.

[50] In Thornthwaites study of employment complaints lodged under the NSW Act from 1977 to 1987, around one-third of the cases each year involved government employers. She noted that this was disproportionately high given that less than 20 per cent of employees in NSW were engaged in State government employment at this time: Thornthwaite, above n7 at 3536.

[51] Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 21. Earlier reports record that less than 2 per cent of the respondents to all complaints were non-profit organisations: Anti-Discrimination Board, Annual Report 1994 1995 (Sydney: NSW Anti-Discrimination Board, 1995) at 39; Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 31.

[52] See generally, Australian Law Reform Commission, Equality Before the Law: Justice for Women, Report No 69 (1994) part 1, para 3.953.99; Anti-Discrimination Board, Balancing the Act, above n24 at 177.

[53] Sex Discrimination Commissioner, Submission to the Senate Standing Committee on Foreign Affairs, Defence and Trade Inquiry into Sexual Harassment in the Australian Defence Force, HREOC, 1993, para 6.2 quoted in Hunter and Leonard, above n7 at 5.

[54] Hunter and Leonard, above n8 at 5.

[55] Niland C, Discrimination and Conciliation: The Qantas Fiasco in Spender L (ed), Human Rights: The Australian Debate (1987) 152 at 156.

[56] Hunter and Leonard, above n8 at 6.

[57] Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 21; Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 39; Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 31. Presumably religious organisations are included in the less than 2 per cent of respondents under all grounds that are non-profit associations. See above n51.

[58] See Senate Legal and Constitutional References Committee, above n21. For an account of such submissions, see Morgan W, A Queer Kind of Law: The Senate Inquiries into Sexuality (1997) 4 International J of Discrimination and the Law 317.

[59] On this latter point, see generally, Herman D, The Antigay Agenda: Orthodox Vision and the Christian Right (1997).

[60] Anti-Discrimination Act 1977 (NSW) s89(1), s92.

[61] See Astor and Chinkin, above n9 at 6165; Thornton, above 143144; National Alternative Dispute Resolution Advisory Council, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper (Canberra, 1997) at 202 (definition of statutory conciliation); Bryson D, Mediator and Advocate: Conciliating Human Rights Complaints (1990) Australian Dispute Resolution Journal 136 at 136138.

[62] Hunter and Leonard note that such a passive approach appears to be a common feature of the practices of administering agencies. Hunter and Leonard, above, 8 at 1314.

[63] Note that this figure of 25.4 per cent includes declined cases (which constituted 15.2 per cent of all complaints). Hunter and Leonard, above n8 at 15.

[64] This complainant was unsuccessful before the EOT. The Tribunal determined that due to the nature of the employer respondent in the case, it lacked jurisdiction to hear the merits of the dispute.

[65] For the purposes of comparison, and with some slight alterations, these categories have been adapted from those used by Hunter and Leonard in their study of the conciliation of sex discrimination complaints: Hunter and Leonard, above n8 at 1416.

[66] Anti-Discrimination Act 1977 (NSW) s49ZQ(3).

[67] Hunter and Leonard, above n8 at 14.

[68] NSW Anti-Discrimination Board Complaints Resolution Branch, Complaint Handling Manual at 97. Note that the Complaint Handling Manual (especially chapter 10) largely identifies conciliation as being about the holding of a conference.

[69] After excluding declined cases and complaints where the complainant lost contact or withdrew the complaint prior to a conciliation conference, Hunter and Leonard calculated that in 53.3 per cent of the remaining cases no conciliation conference was held. Hunter and Leonard, above n8 at 14.

[70] Equal Opportunity Commission (WA), above n9 at 34.

[71] McNamara, above n8 at 359. In her study of complaints lodged under the NSW Act, Margaret Thornton found that out of 111 complaints settled by the ADB between 1 July 1986 and 30 June 1987, conferences were held in 46.8 per cent of cases. Of these, 15.3 per cent were voluntary conferences and 31.5 per cent were compulsory. Thornton, above n9 at 300. Note that this refers to complaints that were settled by the ADB.

[72] Thornthwaite, above n7 at 33.

[73] NSW Anti Discrimination Board Complaints Resolution Branch, above n68 at 99.

[74] Neither of these complaints proceeded to a hearing before the EOT. Both were withdrawn. We have no information about the circumstances of the complainants withdrawing them.

[75] We note the finding in the survey of ADB complainants conducted by the NSW Law Reform Commission that the percentage of complainants who thought they had been successful in achieving their objectives was substantially higher among those who had taken part in a conciliation conference than those who had not. NSW Law Reform Commission, above n9 at 31, 38, 45 and 112.

[76] NSW Anti-Discrimination Board, Balancing the Act, above n25 at 192.

[77] See Astor and Chinkin, above n9 at ch 12, esp 268269; Thornton, above n9 at ch 5.

[78] These figures roughly accord with the findings of Hunter and Leonard in relation to complaints lodged as sex discrimination. Hunter and Leonard, above n8 at 45.

[79] Legal Aid is not available in relation to proceedings of the ADB: NSW Anti-Discrimination Board, Balancing the Act, above n25 at 192.

[80] Hunter and Leonard found that 17.1 per cent of all complainants in their study had legal representation at some stage in the conciliation processes: Hunter and Leonard, above n8 at 4. McNamara found that just under 10 per cent of complainants in his study had legal representation (and approximately 7 per cent of respondents did). McNamara, above n8 at 361.

[81] Note that in two such complaints, each complaint contained the same two respondent organisations. These two complaints have been counted as giving rise to two different respondents (rather than four respondents). The two complaints arose out of the same conduct, were investigated and conciliated together and for all practical purposes were dealt with on the basis of having two respondents.

[82] Hunter and Leonard found that respondents were more likely than complainants to have legal representation in the pre-conciliation conference stage and at the conference, whereas complainants were more likely than respondents to have legal representation in the postconciliation conference stage. Hunter and Leonard, above n8 at Table 2.2 at 4 and Table 3.4 at 8.

[83] This difference in the responses of complainants and respondents might reflect that respondents are generally notified of the complaint some time after the investigation processes of the Board have commenced. A similar finding exists in relation to conciliation under the Western Australian statute: Equal Opportunity Commission (WA), above n9 at 3640.

[84] New South Wales Law Reform Commission, above n9 at 3536, and 5657.

[85] NSW Anti-Discrimination Board, Balancing the Act, above n25 at 195198.

[86] Id at 196.

[87] Redbacking is an internal procedure where the Board writes to the complainant requesting further information and then places the complaint into the backlog to await allocation to an officer.

[88] Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 28; Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti-Discrimination Board, 1996) at 25; Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 25. The targets are not referred to in the 19931994 annual report: Anti-Discrimination Board, Annual Report 19931994 (Sydney: NSW Anti-Discrimination Board, 1994) at 21.

[89] Ibid.

[90] McNamara, above n8 at 362363. A study of complaints lodged under the Western Australian Act has found that over half the complaints were resolved within six months: Equal Opportunity Commission (WA), above n9 at 1922. For a comparison of such time frames in Victoria, NSW and WA in the early 1990s, see Wilkie, above n18 at 103.

[91] Hunter and Leonard, above n8 at 12.

[92] McNamara, above n8 at 362363; Hunter and Leonard, above 12.

[93] The data entry sheets in all files were not always completed in relation to outcome. Accordingly, we have made a determination as to outcome based upon the file as a whole. It is possible that our numbers may differ from those recorded in the Boards internal data collection system. However, such discrepancies are likely to be minimal.

[94] We have followed the categories as they appear on the Code File Information Sheet. These tend to match those provided in the Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) but provide further sub-categorisation. Due to the small number of cases in our study we have one category of settled which encompasses the Boards categories of settled before conciliation and settled at or after conciliation. The Boards categories of formally declined and referred to the EOT and referred to HREOC do not apply to any cases in our study. The Annual Report 199596 (Sydney: NSW Anti-Discrimination Board, 1996) uses somewhat different categories. In particular, conciliated appears to have been replaced by the different categories of settled.

[95] Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 24. In 199596 37 per cent of cases were not proceeded with and in 199495, 44 per cent were not proceeded with: Anti-Discrimination Board, Annual Report 19951996 (Sydney: NSW Anti-Discrimination Board, 1996) at 25; Anti-Discrimination Board, Annual Report 19941995 (Sydney: NSW Anti-Discrimination Board, 1995) at 28. Note however, that in the 199495 year there is some lack of clarity as to whether these percentages include or exclude cases outside jurisdiction.

[96] These sections relate respectively to the provision of accommodation for six or less people in the respondents own home and to the religious practices of religious institutions.

[97] One of these cases was declined for a combination of reasons lacking in substance and the religious exemption provision.

[98] McNamara, above n8 at 368.

[99] Anti-Discrimination Act 1977 (NSW) s49ZS and s49ZT.

[100] Hunter and Leonard rely upon categories of lost contact/lapsed and withdrawn before conciliation conference and withdrawn after conciliation conference that are roughly comparable to the sub-categories used by the ADB. They also include a category of not resolved which is relevant primarily to Victoria, but also minimally in Sydney (HREOC). It is important to bear in mind that their study incorporates the different recording mechanisms of three jurisdictions.

[101] The categories joined here are: lost contact/lapsed, withdrawn before conciliation conference, and not resolved. The further addition of the category of withdrawn after conciliation conference would only increase this figure to 47.8 per cent. Note that no cases in our study were withdrawn after a conciliation conference had been held. Hunter and Leonard, above n8 at 1718.

[102] There were differences between the three jurisdictions they examined. In South Australia 55.7 per cent of complaints were settled, while in Victoria and Sydney (HREOC) the percentages were 31.5 per cent and 31.1 per cent respectively. Hunter and Leonard, above n8 at 1718.

[103] Thornton, above n9 at 151, 153, 157158; Astor and Chinkin, above n9 at 5053 (on ADR generally); Australian Law Reform Commission, above n52 at 83; Scutt J, The Privatisation of Justice: Power Differentials, Inequality and the Palliative of Counselling and Mediation in Mugford J (ed), Alternative Dispute Resolution (Canberra: Australian Institute of Criminology, 1986) at 191192.

[104] Hunter and Leonard, above n8 at 18. The Board, however, in its annual reports and coding system divides this category into settled before conciliation conference or settled at or after conciliation conference. See Anti-Discrimination Board, Annual Report 19961997 (Sydney: NSW Anti-Discrimination Board, 1997) at 24.

[105] We do not provide percentages here because of the small numbers and the fact that one case may appear in more than one category.

[106] These were response rates of 47 per cent and 61 per cent: New South Wales Law Reform Commission, above n9 at 2627, 5455.

[107] Id at 109.

[108] This can be contrasted to parties who proceeded to the EOT, where 60 per cent of complainants and 40 per cent of respondents stated they were satisfied: Id at 110.

[109] Ibid.

[110] This figure represents 26 per cent of all complaints lodged and 31 per cent of all non-declined complaints, both of which are higher than the 18 per cent and 22 per cent of cases categorised as settled.

[111] Thornton, above n9 at 152.

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