22 September 2011

Discrimination law

The national Attorney General and Minister for Finance & Deregulation have launched a 65 page discussion paper [PDF] regarding the consolidation of Federal anti-discrimination law.

The paper covers the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) but does not cover the Marriage Act or involve the issue of same-sex marriage.

The Attorney-General comments that -
These acts are now substantially inconsistent and unnecessarily complex. This results in confusion in respect to obligations arising under the laws and can increase the cost for legal and specialist assistance. The release of the discussion paper recognises the community's strong interest in the effective operation of anti-discrimination laws.
The consultation has been promoted as providing -
an opportunity to clarify existing protections and address areas where there may be gaps including seeking community views on the recommendations of the Senate Standing Committee on Legal & Constitutional Affairs 2008 report into the effectiveness of the Sex Discrimination Act 1984 and also that Committee's Report into the Disability Discrimination & other Human Rights Legislation Amendment Bill 2009. The project also provides the opportunity to ensure consistency with other legislation including the Fair Work Act.
Submissions can be made until 1 February 2012. The consultations will inform development of exposure draft legislation, to be released for public consultation in early 2012.

The paper states that -
Consolidation of federal anti-discrimination laws provides an opportunity to consider the existing framework, and explore opportunities to improve the effectiveness of the legislation to address discrimination and provide equality of opportunity to participate and contribute to the social, economic and cultural life of our community.

Clearer and more consistent anti-discrimination legislation will make it easier for both individuals and business to understand rights and obligations under the legislation.

Commonwealth anti discrimination law is currently found in four separate pieces of legislation, each of which deals with different grounds of discrimination:
Racial Discrimination Act 1975 (RDA)
Sex Discrimination Act 1984 (SDA)
Disability Discrimination Act 1992 (DDA), and
Age Discrimination Act 2004 (ADA).
A fifth Act, the Australian Human Rights Commission Act 1986 (AHRC Act), establishes the Australian Human Rights Commission and regulates the processes for making and resolving complaints under the other four Acts. There are also provisions relating to discrimination in employment in the Fair Work Act 2009.

Many of the provisions in the legislation set out above implement Australia’s obligations under the seven core human rights treaties to which Australia is a party:
International Convention on Civil & Political Rights (ICCPR)
International Convention on Economic, Social & Cultural Rights (ICESCR)
International Convention on the Elimination of All Forms of Racial Discrimination (CERD)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
Convention on the Rights of the Child (CROC)
Convention on the Rights of Persons with Disabilities (CRPD), and
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
For example, the RDA is directed to implementing obligations under CERD. Australia’s international law obligations provide support for the constitutional basis for the consolidation bill. Together with the external affairs power, other heads of power are also available.

Current Commonwealth anti discrimination laws have been drafted over a period of nearly 40 years and consequently there are significant differences in the drafting and coverage of protections under each Act. These differences range from definitional inconsistencies to more significant issues such as different approaches to the tests for discrimination and to provisions relating to vicarious liability. Many of these differences are unnecessary and add to the complexity and regulatory burden of the legislation. We also have the benefit of 40 years experience with anti-discrimination legislation to consider if there are more appropriate mechanisms to describe and address discrimination in areas of public life.

The Government has decided, as part of Australia’s Human Rights Framework and as a Better Regulation Ministerial Partnership between the Attorney-General and the Minister for Finance and Deregulation, to consolidate existing Commonwealth anti-discrimination legislation into a single, comprehensive law. As part of this project, the Government is also delivering on its commitment to introduce new prohibitions on discrimination on the basis of sexual orientation and gender identity. In addition, the Government has also committed to consider, as part of this project, a number of the recommendations made by the Senate Legal & Constitutional Affairs Committee in its inquiry into the effectiveness of the SDA.

The Government has made it clear that this exercise will not lead to a reduction in existing protections in federal anti-discrimination legislation. In considering options for reform, the Government will keep the following principles in mind:
• a reduction in complexity and inconsistency in regulation to make it easier for individuals and business to understand rights and obligations under the legislation
• no reduction in existing protections in federal anti-discrimination legislation
• ensuring simple, cost-effective mechanisms for resolving complaints of discrimination, and
• clarifying and enhancing protections where appropriate.
Importantly, this discussion paper also considers the mechanisms in place to assist business in understanding and carrying out their obligations. There has been some criticism that business does not have adequate support in meeting their obligations under Commonwealth anti-discrimination laws. To address this, business may require guidance and assistance to establish policies and procedures that address discrimination issues. The discussion paper discusses possible reforms to establish or strengthen the mechanisms to assist business to meet their obligations.

The Government considers that enhanced protection of human rights and better outcomes for businesses should not be conflicting objectives in considering the development of a consolidated set of anti-discrimination laws.

The potential benefits of adopting or extending mechanisms to assist compliance with laws should be balanced with the implementation and ongoing costs of administering each mechanism for business and Government.

This discussion paper does not address the issue of same-sex marriage as the consolidation project will not alter the government’s position on this issue.

The discussion paper raises a number of questions around the existing framework, including a number of technical issues around the operation of the legislation. The following issues have been identified:
Meaning of discrimination – a consideration of current tests to establish direct and indirect discrimination, whether direct and indirect discrimination should continue to be separate concepts and how special measures should interact with the definition(s). This section also considers issues relating to the burden of proof for the various elements of the test of discrimination, the duty to make reasonable adjustments and other positive duties and the best way to prohibit harassment based on a person’s protected attribute/s.

Protected attributes – a consideration of the Government’s election commitment to include protections against discrimination on the grounds of sexual orientation and gender identity, whether other grounds of discrimination should be covered and whether protection should extend to discrimination on the basis of association with a person who has a protected attribute. This section also considers the issue of intersectional discrimination to determine whether our laws should better address situations where a person is discriminated against on the basis of more than one ground.

Protected areas of public life – anti-discrimination laws cover a range of areas of public life, including discrimination in employment, education, the provision of goods and services or requests for information. This section considers if there could be improvements made to how these areas of public life are covered, particularly for partnerships, sport and clubs, as well as examining protection for voluntary workers and domestic workers. This section also provides a discussion on vicarious liability of employers and statutory office holders.

Exceptions and Exemptions – anti-discrimination laws provide a framework to establish complaints of unlawful discrimination. However, not all discrimination is unlawful and there may be circumstances where it is appropriate to discriminate between people on the basis of attributes which would otherwise be protected. This section looks at key issues relating to exceptions and exemptions, including the use of a general limitations clause, inherent requirements and genuine occupational qualifications, religious exemptions and temporary exemptions.

Complaints and compliance framework – the current discrimination complaints process and considers issues such as improved alternative dispute resolution processes, representative actions for discrimination complaints and the availability of appropriate remedies for unlawful discrimination. It also examines other options to assist business and other people to not discriminate, including the use of co-regulatory approaches. Finally, it considers some issues that have been raised relating to the role and functions of the Australian Human Rights Commission.

Interaction with other laws and application to State governments – the interaction between the anti-discrimination laws and other Commonwealth, State and Territory laws, including how the laws should apply to State and Territory Governments and their agencies.
The paper asks the following questions -
1. What is the best way to define discrimination? Would a unified test for discrimination (incorporating both direct and indirect discrimination) be clearer and preferable? If not, can the clarity and consistency of the separate tests for direct and indirect discrimination be improved?

2. How should the burden of proving discrimination be allocated?

3. Should the consolidation bill include a single special measures provision covering all protected attributes? If so, what should be taken into account in defining that provision?

4. Should the duty to make reasonable adjustments in the DDA be clarified and, if so, how? Should it apply to other attributes?

5. Should public sector organisations have a positive duty to eliminate discrimination and harassment?

6. Should the prohibition against harassment cover all protected attributes? If so how would this most clearly be expressed?

7. How should sexual orientation and gender identity be defined?

8. How should discrimination against a person based on the attribute of an associate be protected?

9. Are the current protections against discrimination on the basis of these attributes appropriate?

10. Should the consolidation bill protect against intersectional discrimination? If so, how should this be covered?

11. Should the right to equality before the law be extended to sex and/or other attributes?

12. What is the most appropriate way to articulate the areas of public life to which anti-discrimination law applies?

13. How should the consolidation bill protect voluntary workers from discrimination and harassment?

14. Should the consolidation bill protect domestic workers from discrimination? If so, how?

15. What is the best approach to coverage of clubs and member-based associations?

16. Should the consolidation bill apply to all partnerships regardless of size? If not, what would be an appropriate minimum size requirement?

17. Should discrimination in sport be separately covered? If so, what is the best way to do so?

18. How should the consolidation bill prohibit discriminatory requests for information?

19. Can the vicarious liability provisions be clarified in the consolidation bill?

20. Should the consolidation bill adopt a general limitations clause? Are there specific exceptions that would need to be retained?

21. How should a single inherent requirements / genuine occupational qualifications exception from discrimination in employment operate in the consolidation bill?

22. How might religious exemptions apply in relation to discrimination on the grounds of sexual orientation or gender identity?

23. Should temporary exemptions continue to be available? If so, what matters should the Commission take into account when considering whether to grant a temporary exemption?

24. Are there other mechanisms that would provide greater certainty and guidance to duty holders to assist them to comply with their obligations under Commonwealth anti discrimination law?

25. Are any changes needed to the conciliation process to make it more effective in resolving disputes?

26. Are any improvements needed to the court process for anti-discrimination complaints?

27. Is it necessary to change the role and functions of the Commission to provide a more effective compliance regime? What, if any, improvements should be made?

28. Should the consolidation bill make any improvements to the existing mechanisms in Commonwealth anti discrimination laws for managing the interactions with the Fair Work Act?

29. Should the consolidation bill make any amendments to the provisions governing interactions with other Commonwealth, State and Territory laws?

30. Should the consolidation bill apply to State and Territory Governments and instrumentalities?