New Anti-Discrimination Laws Neglect Most Vulnerable – Human Rights and Anti-Discrimination Bill 2012

The Federal Government recently released an exposure draft of its proposed Human Rights and Anti-Discrimination Bill 2012 which is being hailed as a major step forward for the protection of victims of discrimination.

The Bill consolidates five Statutes dealing with discrimination into one, namely the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth),
Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth) and Australian Human Rights Commission Act 1986 (Cth), the latter being a separate piece of legislation dealing with the making of complaints under discrimination complaints on the grounds of race, disability, age and sex in addition to offering further protections.

If enacted, the Draft Bill will introduce a number of important reforms to anti-discrimination laws.

Despite the outcry by the business community, the process of harmonisation of the legislation produces greater uniformity and therefore arguably makes it easier for businesses and service providers to both understand and comply with their legal obligations.

There has been an alarming response to the legislation on various grounds by business groups, however when the legislation is examined closely, it is apparent that it does not constitute a radical change to anti-discrimination laws.

Although it may be a step in the right direction, it doesn’t fulfill it’s promise in addressing all forms of discrimination.

The Bill provides employers and service providers with the opportunity to engage in processes which ensure they have defences in place to defeat discrimination claims, achieved by simply having their human resources policies approved by the Human Rights Commission, and by making sure they comply with the terms of those policies.

Anti-discrimination laws have been introduced incrementally in an ad hoc fashion  over a period of 30 years and are fragmented. The revisions were seen as being necessary to enable inconsistencies to be  reconciled and/or removed in addition to strengthening discrimination laws.

Commonwealth laws and state and territory laws generally cover the same grounds and areas of discrimination. However there are still some gaps in the protection provided between different states and territories and at a Commonwealth level.

The expectation that certain persons who belong to minority groups will somehow cause trouble or present greater risk  is typically based on ignorance, bigotry, pejorative assumptions and entrenched but misinformed stereotypical misconceptions.

The Bill affords protection for the first time at the Federal level against discrimination on the grounds of sexual orientation and gender identity, aligning with existing standards in State and Territories. It also strengthens
protections against workplace discrimination on the basis of other attributes, including religion and political opinion.

Protection against discrimination has traditionally been achieved via the listing of what are referred to as ‘protected attributes’. These are found in s17 of the Bill, however the Commonwealth parliament has expanded the range of
protected attributes which now include the following:

1.  Age
2.  Political opinion
3.  Breast feeding
4.  Potential pregnancy
5.  Pregnancy
6.  Disability
7.  Family responsibilities
8.  Race
9.  Gender identity
10. Religion
11. Immigrant status
12. Sex
13. Industrial history
14. Sexual orientation
15. Marial or relationship status
16. Social origin
17. Medical history
18. Nationality or citizenship

The above list, whilst appears to be comprehensive,  illustrates that there are still gaps or deficiencies that currently exist in federal anti-discrimination laws.
One has to fall within one of the above categories to be considered to be a potential victim of unlawful discrimination.

There are protected attributes which are conspicuous by their absence from the above list, such as ‘irrelevant criminal records’ and ‘social status’, leaving
many people vulnerable to ongoing discrimination if they are homeless or unemployed.

Businesses will be able to positively discriminate against people they believe could be a risk, even though there is no legitimate foundation for such belief.
People experiencing homelessness face violations of a wide range of their human rights on an everyday basis. Rights to  health and education can become inaccessible to homeless people, and the right to personal security can be under constant threat. The right to vote can be problematic without having a fixed address in order to enrol.

Statistics show that out of the 100,000 people classified as homeless in our country, approximately 10% are under 12 years of age, whilst  36% are between 12 and 24 and 42% are women. Hence, around half of Australia’s homeless are women, children and young people. Human rights, including the right to be protected from unlawful discrimination in public life, belong to all Australians, regardless of their housing or social status.

Unfortunately there is also an extremely broad exception in the Bill permitting religious bodies to discriminate on the basis of sexuality, marital status, sex and other attributes as long as the discrimination is necessary to avoid injury to religious sensitivities.

The religious businesses exemptions is simply a piece of social engineering by government which tends to perpetuate existing misogynistic and homophobic attitudes. It is widely known that Catholic schools and welfare agencies have fired teachers and workers on the grounds that they are homosexuals.

Homosexuals, unmarried women, single mothers, or muslims are perfectly capable of being a teacher in any institution yet religious schools openly discriminate against people based on their sexuality, marital status and religion. In so doing they are fostering a dogma which blatantly contravenes the principles of equality opportunity and non-discrimination.

In practical terms it makes a farce of gender equality as women can work and study hard, but still be denied a job in many government funded religious businesses even though they may be able to perform the inherent requirements of a particular job and indeed be the best candidate. If people of a certain faith receive preferential employment this cannot  be described as equality opportunity.

Discrimination on religious grounds is an area of discrimination which has been neglected by parliaments and the legal system, and most commonly occurs in the employment of teachers at Catholic schools, with reports of applicants being peremptorily dismissed upon disclosing that they are not of adherents to the catholic faith. In a secular, multicultural society where many religions form a small part of our society, there should be exist no
institutionalised discrimination between one group and another. Where individual religious beliefs come into conflict with secular law in secular society, as in employment or medical circumstances, those religious beliefs
must be relegated in importance.

Unfair discrimination on the basis of domestic violence is also another critical omission in providing remedies for  the damage suffered by certain victims whose interests havn’t been protected in the legislation. The Australian Law Reform Commission (ALRC) recently conducted an enquiry into domestic and family violence which explored the impact of domestic and family violence on women, especially in the workforce.

It was also one of several factors that compelled the Commission to explore options to expand and strengthen protection against the discrimination women  experience as a result of being victims and survivors of domestic and family violence. Despite the Government identifying early support for the introduction of protections against discrimination related to domestic and family violence, a specific ground for family violence discrimination is not provided for in the draft legislation.

Although discrimination takes a variety of forms, research suggests that it is common for victims and survivors of domestic and family violence to be denied leave or flexible work arrangements to attend to violence-related matters, such as attending court or moving into a shelter; have their employment terminated for violence-related reasons, including a drop in performance or attendance occasioned by domestic or family violence;be transferred or demoted for reasons related to violence.

Victims and survivors of domestic violence don’t just experience discrimination in the workplace but in other areas of public life, such as in the provision of services and access to housing. Victims and survivors may be
denied access to housing where it is known that they are in a violent situation, or they may be evicted from housing because of the abusive and threatening behaviour of their partner. Existing discrimination laws do not provide adequate protection to victims of family violence, victim or survivor who is denied access to flexible work arrangements to attend counseling or a medical appointment or leave to attend court.

The Draft Bill abolishes the current “comparator test” used to determine whether a person has been the subject of direct discrimination.  The comparator test, which is applied under the Age Discrimination Act, the Disability Discrimination Act and the Sex Discrimination Act, was regarded as confusing and difficult to apply.

Under the “comparator test” where X was dismissed from their employment on the grounds of pregnancy under current Federal discrimination law,
X had to prove they were treated less favourably than someone in her circumstances who was not pregnant. The draft bill proposes a “detriment test”, which operates in Victoria and the ACT, and involves establishing that a person has been treated unfavourably because of a protected attribute, without any necessity to consider how a person with the attribute X has would have been treated without that attribute in the same or similar circumstances. In X’s case, X would merely need to show that the dismissal was motivated by her pregnancy.

In terms of “indirect discrimination”, the new test requires merely proving that an employer has  imposed a condition, practice or requirement that would disadvantage an employee with a protected attribute.

The Bill introduces a concept of discrimination which has been re-defined, and is based on what is described as “unfavourable treatment” because a person has a particular protected attribute/s.

Unfavourable treatment under the Bill includes harassment or offensive, insulting or intimidatory behaviour.  Conduct including speech can be unlawful because it causes offence, with the result that many persons have registered their opposition to the legislation on the grounds that it impinges on freedom of speech.

The Racial Discrimination Act classifies language which “offends” or “insults” on the basis of race as unlawful, and the Bill proposes extends this
application to other types of discrimination. The Australian Press Council
chair Julian Disney has characterised this as an unacceptably broad and severe limitation on freedom of speech.

Anti-discrimination and freedom of speech, and the need to balance such values, were the subject of discussion and deliberation by the Federal Court of Australia in arriving at the decision that Andrew Bolt had breached the Racial Discrimination Act.

Other notable features of the Bill which have an impact on  discrimination law include the imposition of or the proposal to impose a policy which has the effect or likely effect of disadvantaging people who possess a particular protected attribute/s. Under the Bill either proposing to treat another person unfavourably or proposing to impose a policy will be treated the same way for the purpose of discrimination.

The Bill states that it is unlawful to discriminate against another person if the discrimination is connected with any “area of public life” which is in line with the manner in which discrimination laws have operated in the past. However the Bill stipulates that areas of public life include but are not limited to:

  • work and work-related areas;
  • education or training;
  • the provision of goods, services or facilities;
  • access to public places;
  • provision of accommodation; and
  • dealings in estates or interests in land;

There are various exceptions in the Bill where conduct will not be unlawful. The bill provides for the defence of simple “justifiable conduct” which means that if the conduct is undertaken in good faith to achieve a “legitimate aim”, and a reasonable person would consider that the conduct would achieve that aim by “proportionate means”, then it will not be unlawful conduct.

If the conduct concerns discrimination on the grounds of disability, conduct is not justifiable where there is a reasonable adjustment that could have been made (which wasn’t) which could have lessened or removed the discriminatory effect.

For an employer, the Bill also includes the defence of inherent requirements of work, to ensure employers can hire employees who are able to undertake the required work, membership and activities of clubs or member-based associations; participation in sporting activities; the administration of Commonwealth laws and Territory laws, and the administration or delivery of Commonwealth programs and Territory programs.

The Bill renders it unlawful to sexually harass a person where circumstances including a person’s sex, age, marital or relationship status, sexual orientation, religion, race or disability and the harassment is connected to an area of public life as defined by the Act. Racial vilification is also unlawful. It will also be unlawful to request or require information for the purpose of engaging in discriminatory conduct or deciding whether to enter into such conduct.

The Bill provides that where a claim of discrimination is raised and unable to be conciliated or dealt with and comes before a court of law, and the Applicant provides evidence establishing the existence of discriminatory conduct, the Respondent must proffer evidence which establishes the conduct complained of was not unlawful.

This is not dissimilar to the situation in relation to adverse action claims under the Fair Work Act 2009 (Cth), which frequently include claims based on discrimination in employment. Adverse action laws caused a similar panic over the alleged reversal of the burden of proof, yet the High Court has not necessarily implemented the laws in relation to adverse action in the manner persons foreshadowed.

Although there has been concern expressed that this would result in the reversal of the burden of proof, this is an exaggerated claim and the legislation would seem to merely shift the manner in which evidence is dealt with.

The changes the Bill introduces give greater prtection for individuals and has been explained by the Government to be supportable on the basis that the person who is making a particular decision or engaging in conduct which may be seen as discriminatory is in the best position to know and understand the reasons for their actions and should be prepared to explain them.

Under the new system a complainant would be required to advance evidence to show a prima facie or apparent case of discrimination. If successful in doing so, the burden then shifts to the respondent to demonstrate that the action complained of was justified. It seems reasonable to place some of the evidentiary onus on respondents to claims, and in this respect isn’t any different from  the way that other legal civil processes work.

All the legislation requires of businesses and service providers is that they make reasonable efforts to have relevant policies in place, which they implement and ensure that adequate procedures are in place following a complaint. It is arguable that only then should an organisation be reasonably entitled to any premise of a presumption of innocence. Many persons acquainted with the operation of anti-discrimination laws would be aware of how they are abused to persecute and marginalise victims with insufficient legal sophistication to pose any real threat or challenge to large organisations engaging in discriminatory conduct. Discrimination claims are inherently difficult to prove.

Under the proposed reforms, parties would no longer face the risk of being forced to pay the costs of their opponent if they lost which was a disincentive for parties to bring actions. The bill also allows a person who claims to have  faced discrimination on multiple grounds such as race, gender and age to lodge a single complaint.

The Australian Human Rights Commission also has the ability to dismiss complaints that lacked merit.

The Bill also vests in the Commission the power to issue guidelines to assist people to avoid partaking in unlawful conduct or conduct contrary to  human rights. Any guidelines provided and any attempts to comply with them may in turn be taken into consideration in the event of a complaint of discrimination being made and assessed.

The Bill suggests voluntary compliance methods whereby the Commission can review policies, programs and action plans, and any subsequent report
by the Commission may be used in any subsequent complaints of discrimination, whether dealt with by the Commission or a court of law.

The intention of the legislation is to encourage persons and organisations to be proactive in taking steps to assist in compliance, and in doing so, reduce
their exposure to claims.

Under the Bill Employers may be held liable for the unlawful conduct of all company officers, from directors, to employees and agents unless they have taken precautions, and exercised due diligence to avoid the discriminatory conduct.

It is therefore both productive and  prudent for Employers to take preventative action by reviewing existing policies and programs and where necessary implement policies and programs with respect to the new legislation.

When formulating policies and in declaring what status such policies have, Employers and service providers should exercise caution, given the fact that even proposing to impose a policy will be treated under the legislation in the same manner as it such policies had been adopted.

However, Employers are always able to make use of the Human Rights Commission’s capacity to review proposed policies and programs particularly if there are issues identified which are potentially controversial.

The proposed draft bill will be the subject of an inquiry conducted by the Senate legal and constitutional affairs committee allowing community
feedback prior to legislation being introduced into the parliament.

However, far from being radical as has been claimed, the Bill is disappointing in it’s neglect of a significant number of Australians who aren’t covered by the legislation, but continue to suffer the effects of discrimination in various areas of life.


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