Last Updated 17 August 2021
The Queensland Human Rights Commissioner is obliged to attempt to resolve a complaint by conciliation if the commissioner thinks it can be resolved in that way (ss 158–164AA Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act)). This includes cases where the commissioner is considering whether or not to accept an out-of-time complaint.
The commissioner can direct a person to attend a conciliation conference and, if necessary, enforce that direction as a court order (s 159 Anti-discrimination Act). The commissioner can order costs against a person who fails to attend at a conciliation conference (s 160 Anti-discrimination Act). Additionally, a respondent can request that the Queensland Human Rights Commission (QHRC) conduct an early conciliation conference without providing a written response.
What is conciliation?
Conciliation is not defined by the Anti-discrimination Act. In general terms, conciliation is an alternative dispute resolution process by which the parties to the complaint come together with the assistance of a third party (the conciliator). It is the conciliator’s role to assist the settlement of the dispute without telling the parties involved what they must do. However, a conciliator may suggest possible settlement terms to either or both parties.
The conciliation conference is held in private (s 161 Anti-discrimination Act). Interpreters may be present (s 162 Anti-discrimination Act), but representation (legal or otherwise) is allowed only with the commissioner’s permission (s 163 Anti-discrimination Act) or the permission of the conciliator conducting the conciliation on the day. As a general rule, representation (legal or otherwise) will be allowed unless the representative is so disruptive that their continued presence is not assisting with the process of conciliation.
Procedure for conciliation
The usual procedure for conciliation is that both parties meet in a conference room at the QHRC’s office. However, it does not have to be a face-to-face meeting and could be conducted by phone or in separate rooms.
One or two conciliators from the QHRC conduct the conference. To begin with, one of the conciliators will welcome the parties to the conference, introduce all persons present to each other and then set down the basic ground rules for the conciliation. The usual ground rules will be that the conciliation conference procedure is entirely confidential, that each of the persons concerned should listen to and not interrupt the other party when they are speaking, that the whole purpose of conciliation is to attempt to find a settlement, and that the conciliator’s job is to take a neutral position and assist the parties in resolving their dispute. The conciliator then normally provides an oral summary of the complaint and a summary of the investigations of the QHRC as well as any response by the respondent.
Once this introduction has been given, the conciliator will then call on the complainant to talk about the complaint and in due course ask the respondent to respond. The matter then proceeds with discussion from both sides, assisted by the conciliators. Each side can at any time speak privately with their legal representative, with the conciliator or both. Sometimes, the conciliation proceeds with the parties in separate rooms and the conciliator acting as a go-between until the matter has been settled.
If the conference does resolve the complaint with an agreement, the terms of the agreement must be recorded, signed by both the complainant and the respondent, and then filed with the relevant tribunal (s 164 Anti-discrimination Act). Once this occurs, the conciliation agreement is then enforceable as if it were an order of the tribunal. The order can be filed in a court of competent jurisdiction and enforced as an order of that court.
If the order covers monetary matters only, it can be enforced in the Magistrates Court up to a $150 000 limit, in the District Court from $150 000 to $750 000 and in the Supreme Court for any amount above $750 000.