Hits and Misses in Proposed Australian Anti-Discrimination Law
By Dominique Allen
On November 20, 2012 the Australian government released its long-awaited Bill which combines the five federal anti-discrimination Acts into one streamlined Act and improves existing protections. The Bill is the result of a public consultation a year ago that stemmed from the 2009 human rights consultation which failed to result in a human rights Act, hence the new Bill’s title – Human Rights and Anti-Discrimination Bill 2012– even though it is solely about discrimination.
Despite ongoing criticism, Australia’s federal anti-discrimination Acts remain largely the same as when they were enacted, though there has been some tinkering with provisions. The primary problems are the inconsistencies in defining discrimination and the areas in which discrimination is prohibited; the cost of litigation; the likelihood of a low compensation award; the onus of proof rests on the complainant except in relation to indirect sex, age and disability discrimination; and the Australian Human Rights Commission cannot advise or assist complainants so the system relies on the individual complainant for enforcement. As a result, most claims are settled or withdrawn so the courts hear few cases each year.
In this context, the Bill is received with cautious optimism. The Bill reflects the government’s goal of consolidating separate Acts into a single Act and much of the text is just about that. Amongst this, there are positive changes. The Bill contains a single, simplified definition of discrimination which specifically avoids using the terms ‘direct’ and ‘indirect’ discrimination; a general defence of ‘justification’ meaning conduct will not be unlawful if it is undertaken in good faith for the purposes of achieving a legitimate aim in a manner proportionate to that aim; a shifting burden of proof once the complainant has established a prima facie case; an improved remedies provision which directs courts to focus on systemic orders; and it protects two additional attributes – sexual orientation and gender identity. In addition, the Bill includes mechanisms aimed at compliance but the government was adamant it would not increase the regulatory burden on business, so they are voluntary. Of note, the Australian Human Rights Commission will be able to issue guidelines, review an organisation’s policies and procedures, and develop compliance codes for industry which will limit liability if a claim is made.
Undoubtedly due to the government’s focus on decreasing regulation for business and streamlining the existing laws, the Bill continues to rely on the individual complaints system to address discrimination. The Australian Human Rights Commission will not have a role in enforcing the law either by assisting complainants or taking action in its own name and it can only intervene in proceedings related to the Bill or human rights proceedings with leave of the court. The Bill will not redirect the law at promoting equality. This is evident in the Bill’s title and the absence of any real reference to equality apart from an objects clause which continues to recognise both the principle of equality and that special measures may be required to achieve substantive equality. The government rejected the introduction of a right to equality before the law, continuing to limit this to racial equality (enshrining the right to equality for Indigenous peoples in the Constitution is the subject of a separate inquiry). The government also rejected introducing a positive duty to eliminate discrimination and promote equality.
While the positive changes described above are welcomed, it is important that this Bill is seen as the first step in modernising Australia’s aging anti-discrimination laws so that they target disadvantage and inequality.
Dominique is a Senior Lecturer at Deakin University, Melbourne, Australia and teaches and researches on anti-discrimination law.