December 2021 Modernising the regulatory framework In her study of equality commissions in the US, Canada, the UK and Sweden, Aimee Cooper began her conclusions by observing what Australia is ‘doing well’. ‘In particular’, she said, she had ‘a renewed appreciation for the strong focus that Australia’s Human Rights Commissions have on genuine alternative dispute resolution’: Multiple stakeholders in the USA, UK and Sweden spoke about their frustration at the lack of quality accessible alternative dispute resolution for discrimination and harassment claims. While each jurisdiction does have some form of mediation available in certain circumstances, it did not appear to be anywhere near the level of accessibility and reliable quality we have here in Australia.43 In the Discussion Paper prepared by the Attorney-General’s Department in 2011 on the consolidation of discrimination laws, the Commission’s conciliation process was described as ‘a low-cost, informal and flexible alternative dispute resolution process designed to achieve a negotiated resolution between the parties’,44 saying that ADR processes prior to commencing court proceedings have several advantages, ‘including reducing costs and stress for all parties’.45 The Commission currently provides a flexible complaint resolution process that extends beyond a single model of ADR. While the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) refers to ‘conciliation’,46 in practice the complaint resolution process is best classified as a hybrid ADR model, which can span the traditional facilitative model of mediation and the more advisory aspects of statutory conciliation. The Commission notes, in this respect, that the majority of the Commission’s conciliators are nationally accredited mediators who are also specifically trained to facilitate a more evaluative ADR process that may be appropriate to the particular matter. The Commission facilitates over 1,000 conciliations each year with notable variety in terms of subject matter, complexity of issues, participant engagement and legal understanding and accessibility requirements. The Commission can and regularly does customise the conciliation process, to the extent possible given the statutory requirements of the Act, to maximise informed participation and prospects of resolution.47 In 2020–21 the Commission received 3,113 complaints. One complaint may raise a number of grounds and areas of discrimination and be against one or more respondents. The Commission finalised 2,624 complaints during 2020–21. The Commission conducted approximately 1,517 conciliation processes, of which 70% were successfully resolved.48 The format of conciliation can be structured to address issues such as a power imbalance between the parties: While the majority of [the Commission’s] conciliation processes are conducted in the form of a face-tomeeting between the parties, it will not always be necessary or appropriate to bring the parties together and in some cases, this may be inappropriate and will frustrate resolution. For example, where there is a significant power imbalance between the parties, where one of the parties is emotionally vulnerable or where a face-to-face meeting may exacerbate feelings of distress and anxiety, alternative conciliation formats are employed. These alternative formats include in-person shuttle, which involves the parties being at the same location and the conciliator conveying messages between the parties, telephone shuttle negotiations and teleconferences.49 104 FREE AND EQUAL An Australian Conversation on Human Rights