Why the AHRC process fails sexual harassment complainants

Compulsory conciliation, far from delivering justice to complainants, systematically advantages respondents and trivialises the seriousness of sexual harassment as a legal wrong.

Compulsory conciliation entrenches the power imbalance

Sexual harassment arises from an imbalance of power, and compulsory conciliation does nothing to correct it.

Harassment typically involves someone in authority exploiting that position over a subordinate who depends on them for their livelihood. That power imbalance does not evaporate when the parties are forced to conciliate. Often, it is exacerbated.

Practitioners and commentators have long cautioned that alternative dispute resolution processes tend to entrench existing power imbalances. Defenders point to safeguards, such as prohibiting intimidation and allowing advocates to participate, but where complainants attend without representation, these safeguards are least likely to be invoked or enforced.

More fundamentally, the AHRC’s conciliation process is remarkably opaque. Without comprehensive qualitative research into what actually happens in these private conciliations, it is impossible to verify whether theoretical protections translate into procedural fairness.

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A system that cannot demonstrate it is fair should not be compulsory.

Delay compounds the power imbalance

The power imbalance is compounded by delay. Complainants routinely wait six months or more before they have an opportunity to attend a conciliation, and sometimes considerably longer.

For complainants, delay also means prolonged uncertainty and psychological distress.

Sexual harassment is often accompanied by anxiety, depression, and disruption to employment and personal relationships. A six-month wait keeps complainants in limbo, while respondents, well positioned to wait, use delay strategically. The longer a complainant waits, the more likely they are to accept a lower settlement or abandon their claim altogether.

This delay, in the context of a compulsory process, is simply indefensible.

The root cause of these delays is obvious.

The AHRC is under-resourced, and compulsory conciliation is likely a fundamental reason for this. Abolishing compulsory conciliation would allow applicants who want to conciliate to do so more quickly.

Conciliation should be a choice

To be clear, the objection is not conciliation itself, but rather to the fact that it is compulsory.

When chosen freely by a complainant who understands their options, conciliation can be a legitimate pathway. Some complainants prefer the relative speed, privacy, and informality over adversarial court proceedings, or wish to avoid retraumatisation. These are valid choices.

But conciliation must be a choice. Empowering victims means giving them agency over how their complaint is resolved.

The outcomes of compulsory conciliation speak for themselves. Available data and practitioner experience indicate that settlements at the AHRC stage are abysmal, especially where complainants are unrepresented. Better‑resourced complainants with experienced counsel achieve higher outcomes.

In contrast, access to the court system and the ability to force the respondent to respond to a claim and face accountability are the keys to shifting the power imbalance. Once a matter is before the court, the respondent faces real pressure to resolve because the alternative is being forced to file a defence and engage with the legal merits of the claim.

For this shift to work, however, complainants must be able to access the court system without being ground down by cost, delay, and further intimidation, which, unfortunately, is what often happens during the conciliation process.

A better path forward

Conciliation should not be compulsory for a complainant. The complainant should be able to elect whether they would like to utilise the AHRC process or not.

Expanding access to funded legal assistance would further rebalance negotiations. The decision in Magar v Khan illustrates what is possible when access barriers are removed. In that case, a young, visa-dependent casual worker, represented pro bono, achieved the highest award in the jurisdiction’s history, demonstrating what victims can achieve when empowered to shift the power dynamic through the court system.

Recent reforms provide cause for cautious optimism. The Australian Human Rights Commission Amendment (Costs Protection) Act 2024 ensures successful applicants recover their costs while protecting them from adverse costs orders unless they have acted unreasonably. This reform, in particular, is an important step in removing barriers to complainants wanting to pursue their rights through the court system.

Conclusion

The AHRC conciliation model was designed for a different era. An era in which sexual harassment was treated as a private grievance rather than a serious legal and moral wrong.

It is time to stop forcing complainants through a process that entrenches the very power dynamics it is supposed to dismantle, and to do everything we can to ensure the courtroom door is genuinely open.

Penelope Parker is a senior associate with Maurice Blackburn.