the ACT government Inclusive, Proressive, Equal: Discrimination Law Reform discussion paper considers options for responding to recommendations made by the ACT Law Reform Advisory Council (LRAC) in its 2015 review of the Discrimination Act 1991 (ACT).
The Government aspires to use a Statement of Principles in reforming the Territory's discrimination law:
- Broader and stronger protections: Any changes to discrimination law should create broader and stronger protections to send a clear message that our society believes in equality and respect.
- Clear, simple, and user-friendly: Discrimination laws should be as clear, simple, and user-friendly as possible, to make it easier for people to know their rights and obligations.
- Align with our human rights framework: Discrimination laws should align with our human rights framework, meaning that any exceptions should be reasonably justifiable and proportionate to legitimate objectives under the Human Rights Act 2004, and other human rights should also be protected.
- The same standard for everyone: Discrimination laws should be comprehensive and consistent. Everyone should enjoy the same standard of protection, unless there are principled reasons based on reasonable and objective criteria to distinguish between the different protected groups.
- Promote systemic and preventive change: Discrimination laws should promote systemic and preventive change
The LRAC recommendations were
Coverage of the Act – Public life
6.1 The Discrimination Act should be amended to prohibit discrimination generally (in all areas of life) with an exception for private conduct.
6.2 If, contrary to Recommendation 6.1, the current specified areas of coverage are retained, then the Discrimination Act should be amended to cover conduct in the areas of organised sport, government functions, and the conduct of competitions.
Positive duty
5.1 The Discrimination Act should be amended to include a positive duty to eliminate discrimination.
5.2 The positive duty should apply to public authorities immediately, and should apply to private bodies and community organisations after a period of three years.
5.3 The ACT Human Rights Commission should be empowered with a range of regulatory tools to monitor, investigate and enforce the positive duty.
Justification defence
18 The Discrimination Act should be amended to repeal Part 4 (Exceptions to Unlawful Discrimination) and to replace it with a general limitations clause that operates as ‘justification defence’, allowing a person who has engaged in unlawful conduct (discrimination, harassment, vilification and offensive conduct) to show that their conduct was a justifiable limitation on the right to non-discrimination having regard to the factors set out in section 28(2) of the Human Rights Act 2004 (ACT).
Exceptions
19.1 The statutory authority exception should be limited to an exception for an act done under an order of a court or tribunal which is mandatory and specific about conduct that must be performed in the absence of a non-discriminatory alternative.
19.2 Exceptions for religious bodies, educational institutions and workers are available only for conduct that can be justified as a reasonable limit on the right to equal and effective protection against discrimination, having regard to the factors set out in section 28 Human Rights Act 2004 (ACT).
19.3 The Discrimination Act should be amended so that the exception for voluntary bodies: i. be limited to allowing exclusion from membership of a person who is not a member of the group of people with a protected attribute for whose benefit the voluntary body was established, and ii. be limited to the provision of benefits, facilities or services to members of the voluntary body.
19.4 The clubs exception should be either repealed or limited to allow clubs to only discriminate in terms of membership on the basis or race, sex or disability only if the club has the main purpose of providing benefits to that group of people
19.5 The sport exception should be limited to only reasonable discrimination when it is justified to take into account the strength, stamina or physique of competitors
19.6 The exception for genuine occupational qualifications should be repealed or made available for every attribute, with exemptions available.
19.7 The exception for inherent requirements of work should be extended to cover any protected attribute (not just disability) provided that a general duty to make reasonable adjustments is also introduced into the Discrimination Act.
19.8 The exception allowing for discrimination in the terms of insurance and superannuation should be limited to where it is reasonable having regard to right to non-discrimination and relevant statistical and actuarial data.
19.9 The exception allowing for discrimination in the employment of domestic workers be limited to where it is reasonable having regard to non-discrimination.
In response the Government asks the following questions, commenting that it "intends to amend the Discrimination Act to prohibit discrimination in all areas of public life, with an exception for private conduct. The Government welcomes comments on how this could best be achieved and what the limits of ‘public life’ and ‘private conduct’ should be" -
Justification
- Should the exceptions in the Discrimination Act: be removed and replaced with a general limitation / single justification defence that applies where discriminatory conduct is reasonably justifiable, or be refined to make them simpler, stronger, and better aligned with our human rights framework?
- What concerns or considerations would be required in introducing a single justification defence to replace existing exceptions as applicable to: Religious bodies Voluntary bodies Licenced clubs Sports Employment Workers in private homes Insurance and superannuation companies?
- Should the Discrimination Act be amended to remove the exception permitting acts done under statutory authority?
- Should the Act keep a narrower exception to permit acts done directly to comply with a specific court or tribunal order?
- Should religious bodies be permitted to discriminate when providing goods or services to members of the public?
- Should religious health care providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?
- Should any other religious service providers only be permitted to discriminate on the ground of religion in employment decisions where the duties are of a religious nature?
- Are there any other circumstances in which religious bodies should be permitted to discriminate in employment decisions? Should a sector-based approach be adopted? Should an attribute-based approach be adopted?
- Should some sectors or types of organisations be prevented from relying on the general religious bodies exception? For example, organisations that receive a certain proportion of public funding?
- Should religious bodies only be permitted to discriminate against members of the public on some grounds, and not others? If so, which grounds should be permissible?
- Should voluntary bodies be permitted to discriminate when limiting their membership or services to groups of people protected by discrimination law where the organisation’s reason for existence is to promote the interests of that group of people?
- Should voluntary bodies only be permitted to discriminate when limiting their membership or services to groups of people protected by discrimination law as a special measure (that is, in order to ensure that those people have equal opportunities with other people and/or meet their special needs)? Alternatively, should the exception for voluntary bodies be removed?
- Should licenced clubs only be permitted to discriminate when limiting their membership or services to groups of people protected by discrimination law as a special measure (that is, in order to ensure that those people have equal opportunities with other people and/or meet their special needs)?
- Should the exceptions relating to licenced clubs protect any of the groups protected under the Discrimination Act, not just race, sex, disability, or age? Alternatively, should the exceptions for licenced clubs be repealed?
- Should the exceptions permit people to be excluded from sport on the basis of their sex, sex characteristics, gender identity, or disability only where this is necessary for fair, safe, and effective competition?
- Should discrimination against people in sport be prohibited entirely for children under 12 (except for permitting age-segregated teams?)
- Should the exception for sport apply a wider range of protected attributes under the Discrimination Act?
- Should the employment exceptions apply to all attributes?
- Should the employment exceptions be extended to apply to a wider range of protected attributes? Should the genuine occupational qualifications test be replaced with a single inherent requirements test?
- Should the law impose a duty to make reasonable adjustments not just for people with disabilities, but for people with any protected attribute?
- Should the provisions allowing jobs to be declared in regulations as having genuine occupational qualifications be removed?
- Should insurance and superannuation providers be required to provide consumers with the data on which decisions about them are based (or a meaningful explanation of that data)?
- How would organisations be supported to meet the positive duty?
- What additional functions and powers would the Human Rights Commission need to monitor organisations to ensure they are meeting the positive duty?
- What resources would be necessary to inform organisations of steps necessary to comply with the positive duty? .
