Best Practice for ADR in Equal Opportunity complaints

Peta Spyrou is a Doctoral student at the University of Adelaide Law School. She won a scholarship representing a partnership between the University and the Equal Opportunity Commission of SA. This scholarship supports students who have and interest in equal opportunity and human rights to develop interdisciplinary higher degree research skills.

 

Peta’s topic looks at disability discrimination complaints in the area of education from students who have a disability that manifests in complex behavioural issues. By focusing on the different ADR complaint-handling processes and tests for direct discrimination in SA and Victoria, Peta’s research aims to determine whether different outcomes and levels of satisfaction result under different systems. It also includes data from SA students who have made complaints to the Australian Human Rights Commission. Here  Peta explains the background and focus of her research.

 

  • What motivated you to devise this topic?

My interest in this topic is multi-dimensional: My personal connection to the disability community; intellectual interest in law; interest in this unique scholarship opportunity; and recognition of the benefits of an education, (developed by my upbringing from a family full of educators), all influenced this topic.

 

In mid 2017, a colleague, who happened to be an Alumni from the University of Adelaide, received an email from the University’s Graduate Centre advertising the scholarship and partnership with the Equal Opportunity Commission. Knowing of my personal interest in both disability advocacy and Law, my colleague forwarded this email to me and encouraged me to apply.

 

My interest in disability was sparked from my part-time caring role of a young person with disabilities. My connection to him and his family for now almost nine years fostered a keen passion in the areas of human rights and equal opportunity for people with a disability. This focus and passion are complimented by my intellectual interest in law, and belief in the value of evidenced-based research informing policy recommendations.

 

  • How does this partnership between the Law School and EOC work – what do you do and where?

Scholarship recipients can undertake either a PhD or Masters qualification under a collaborative arrangement with Dr Niki Vincent, Commissioner for Equal Opportunity SA, who supervises successful recipients alongside University of Adelaide academic staff.[1]

 

As part of my application process, I consulted with Dr Vincent directly. When formulating my topic, the Commission was receiving an increasing number of complaints from students with challenging behavioural issues as a result of their disability, who were alleging disability discrimination in education.

 

Initially, I wanted to examine what was best practice for resolving these complex disputes; however, I soon realised that a significant literature gap exists. The confidential nature of the ADR processes associated with Anti-Discrimination and Equal Opportunity Commissions mean that we do not know how these statutory bodies are resolving these complaints, if at all.

 

My partnership with the SA EOC has enabled other statutory bodies to partner with us to facilitate a comparative analysis. My research currently involves the Commissions in SA, Victoria and the Commonwealth, and I conduct my research from the South Australian Commission one day a week.

 

  • What, broadly speaking, is your thesis?

Students who have a disability that results in challenging behaviours, such as violent or threatening conduct, may affect the safety and wellbeing of themselves and others.

 

Educating these students presents teachers with unique challenges given the existence of competing duties: for example, the duty not to discriminate versus duty of care obligations.

 

Despite all Australian jurisdictions containing protections for students with a disability to access education free from direct or indirect discrimination, no legislative framework expressly addresses what the appropriate balance is between competing duties, interests or principles contained within anti-discrimination; work, health and safety; human rights and educational frameworks. Additionally, because all statutory bodies seek to resolve discrimination disputes through ADR, the confidential nature of both the process and any resulting agreements compound this ambiguity. As a result, a knowledge gap exists regarding how these statutory bodies resolve these disputes.

 

My research focuses on this gap and builds on existing ADR and discrimination literature by empirically examining disability discrimination complaints in relation to the protected area of education. It reviews settlement attempts under the different ADR processes in three Australian jurisdictions: SA, Victoria and, SA students who have made complaints to the Australian Human Rights Commission. This data will then be compared with publicly available judicial decisions.

 

The focus is on disability complaints raised by primary or secondary students who have challenging behaviours.

 

  • Could you outline the different EO structures that exist in Australia, including the use of ADR?

The dominant enforcement method under Australia’s anti-discrimination law is ‘compulsory conciliation’ at a statutory body. By this I mean that the overwhelming majority of frameworks require complainants lodge a complaint in writing to a statutory body for alleged breaches to the relevant Act. These bodies are tasked with the responsibility of upholding the objects of the legislation and attempt to settle disputes through ‘conciliation’, which is generally not defined in the Acts. If complaints cannot be resolved in this way, there is a potential for certain disputes to progress to a tribunal hearing, or federal courts if initiated with the Australian Human Rights Commission.

 

Victoria, however, has a slightly different system: It allows complaints to be lodged with either the Victorian Civil and Administrative Tribunal or with the Victorian Equal Opportunity and Human Rights Commission. Therefore, complaint lodgement at the Victorian statutory body is not a precondition to tribunal access. Even if a complaint is lodged with the Victorian Commission, the Act expressly allows for a range of different ADR processes to be used in an attempt to resolve the dispute.

 

My research investigates the intersection of the competing interests posed by students with challenging behaviours because of a disability. It seeks to determine whether the different complaint-handling processes in SA and Victoria results in any practical differences. It also compares results obtained through commissions and tribunals with outcomes of publicly available judgements. The purpose of this analysis is to examine whether the advantages of dispute resolution processes are being realised; whether one system receives higher satisfaction levels; and whether justice is achieved through non-litigious processes.

 

  • Can you explain the research plan that you are developing?

This research aims to address the literature gaps by both quantitative and qualitative means.

In working alongside the confidentiality constraints, the quantitative phase asks statutory bodies to provide data about educational complaints broadly, as well as specific data about complaints relating to students with complex behavioural issues. This initial phase is facilitated by the statutory body responding to a questionnaire which I modelled on the 1995 study conducted by Hunter and Leonard on sex discrimination outcomes (Rosemary Hunter and Alice M Leonard, The Outcomes of DIscrimination Cases (University of Melbourne, Faculty of Law, Centre for Employment and Labour Relations Law, 1995),  and after reviewing a relevant complaint (with the parent’s permission) that was lodged with the SA Commission.

 

The study’s qualitative phase aims to gauge user satisfaction on both the dispute resolution process and the outcome of the matter. This will be facilitated by semi-structured interviews with interested parties and professionals who have been involved in matters that fall within the project’s sample size. I will also use a scoping survey to determine the professionals I would like to interview. This is to ensure that the stakeholder has been involved in a matter that is relevant to my research. This second phase will also ask Commission staff to explain their complaints-handling model in relation to these disputes. It is hoped that this query will determine the scope of any issues associated with a lack of a statutory definition for conciliation, if at all.

 

  • Why do you think it is important to interview individuals as part of this exploration?

Literature suggests that people in dispute resolution settings, especially mandatory processes, often experience power imbalances leading to potential disadvantages or levels of vulnerability. Additionally, the personal circumstances of caring for a young person with disabilities may make parent advocates vulnerable negotiators in ADR settings.

 

My research examines this by giving a voice to users of relevant dispute resolution processes who are often not heard in policy development. In doing so, I will be uniquely placed to make conclusions with regard to what system best minimises the potential disadvantages of dispute resolution in complex disability discrimination disputes in education.

 

  • There is a lot of discussion about the definition and parameters of conciliation at the moment, what are your preliminary thoughts on that? What issues does that raise in your mind in relation to your research.

The absence of a universally accepted definition of conciliation may be a reason why much of the academic literature is focused on mediation, resulting in conciliation and mediation wrongly being used interchangeably. On one hand, this could mean that policymakers have created unplanned complaint-handling processes. In other words, legislatures could have created conciliation-based systems when they really meant mediation-based processes. On the other hand, the lack of a definition could provide the statutory body with broad discretion to resolve the dispute.

 

My research is in part looking at where the various complaint-handling processes lie along the ADR continuum. This may help commentators frame the discussion about the definition and parameters of conciliation.

 

  • What are you finding enjoyable about this experience? What are you learning and how do you think this will make a difference?

While I developed an interest in legal research in my undergraduate degree and through employment opportunities, being able to align my various interests and passions in a PhD topic that has the potential to assist an industry partner is an exciting aspect of my study.

 

1    Peta’s supervisors from Adelaide Law School are: Associate Professor Dr Bernadette Richards; Associate Professor Anne Hewitt and Senior Lecturer Margaret Castles.

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