Lessons for the Federal Government in State and Territory Discrimination Laws

By Holly Kendall

This article is part of our March theme, which focuses on an ongoing challenge to Australian society: Race & Discrimination. Read our Editorial for more on this theme.

Recently the Federal Government announced that it intends to consolidate the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004 into one act to increase the effectiveness of the Human Rights Framework in Australia. The discussion paper states that the consolidation creates “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.”

The existence of both Federal and State discrimination laws is a result of our constitutional structure. The Australian Constitution gives the Federal Government explicit powers including the power to make laws with respect to “external affairs” which covers international treaties. As a result the Federal government has the power to agree to international conventions like the International Convention on the Elimination of all forms of Racial Discrimination and is obliged to legislate for its implementation. The States have plenary powers (the vesting of power to a subordinate body) to legislate in respect to issues that are not within the Constitution. As a result State discrimination laws tend to cover areas where there are no international treaties and vary across each jurisdiction. Issues covered by state laws include breast feeding, trans-sexuality, race and racial vilification and HIV status to name but a few.

Right Now is taking this opportunity to look into our own backyards and see what is being done at a state and territory level that should be adopted into the Federal scheme.

Defining Discrimination

Currently at the federal level there are two different categories of definitions of direct discrimination.

The Age, Disability and Sex Discrimination Acts all use the same “comparator test” but each Act uses different wording that creates confusion and inconsistency. In essence this test requires discrimination to be established by comparing the treatment of the complainant to the treatment of others who lack their protected attribute (i.e. their age, disability or sex). The complainant must prove they have been treated differently to a person in comparable circumstance who lacks their protected attribute, that this caused a detriment or disadvantage and that the differential treatment was because of their protected attribute. This test requires that a person in materially the same circumstances must be identified to prove differential treatment. Identifying “the comparator” has left judges to rely on “hypothetical comparators” to reconstruct how the discriminator might have acted. This introduces significant uncertainty.

The Racial Discrimination Act 1975 uses a test based on the International Convention for the Eradication of Racial Discrimination. It states that discrimination is imposed when a condition is imposed that is unreasonable, which a person does not or cannot comply with and the condition nullifies or impairs the enjoyment of a human right in public life. This includes any action that would prevent them from participating in political, economic, social, cultural or any other field of public life.

Given the lack of a single definition this is clearly an area where the Federal government could do with some help. Is the answer to be found in the “detriment test” used in the Australian Capital Territory and Victoria? This is a simple test which requires the complainant to establish that unfavourable treatment occurred, which caused detriment or disadvantage and the treatment was caused by the complainant’s protected attribute. In this case though a comparator may be useful it is not required and does not add the extra elements of demonstrating the treatment nullified or limited a complainant’s enjoyment of their human rights effectively reducing barriers to enforcement.

Positive Duties

Traditionally in Australia discrimination legislation has been framed in the negative as a duty to refrain from discriminatory action. The objective of legislation is now moving from preventing detriment to creating equality. An essential part of this is redressing inequality through positive actions including employment assistance, education and training, scholarships and the adoption of quotas. Currently only the Disability Discrimination Act 1992 contains an explicit duty to make reasonable adjustments including the provision of ramps for accessible access to buildings where there is either direct or indirect discrimination. This duty is considered implicit in the other Acts.

In contrast the Victorian Equal Opportunity Act 2010 creates a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation in relation to employment, education, the provisions of goods and services and access to buildings. An example of compliance with the duty would include a business having policies to prevent discrimination and harassment and ensuring staff are trained and aware of their obligations.

The implementation of a positive duty aims to reduce systematic discrimination which could be beneficial in redressing issues such as the failure to provide services in accessible languages or the under-representation of specific groups in the workforce. This provision has been criticised for lacking an effective enforcement mechanism as a breach can be the subject of a public inquiry or investigated by the Victorian Equal Opportunity and Human Rights Commission but is not grounds to lodge a complaint. Considering the legislation has only been in effect since August 2011 more time will be required to assess whether this provision is successful in meeting its objective.

Sexual Orientation and Gender Identity

New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and Tasmania prevent discrimination on the basis of sexual orientation and gender identity which applies equally to males who identify as females, females who identify as males and intersex people, and applies regardless of whether a person is legally recognised as a member of that sex.

This kind of protection is long overdue at the Federal level. This is an issue that has been identified to be rectified in the consolidation.

Voluntary Workers

Currently the only Federal protection for voluntary workers is under the Racial Discrimination Act 1975. Queensland, South Australia, Tasmania and the Australian Capital Territory are leading the pack in protecting voluntary workers against all forms of discrimination and sexual harassment in the workplace. Though there is some concern that introducing a broad protection of voluntary workers in the Federal Act would place an additional burden on organisations, it is also thought that it may encourage volunteerism. Volunteering provides great value to the community with 5.2 million people engaged in voluntary work in 2006. Volunteering is an important part of the public life of the community and clearly is no place for discrimination. Considering that the majority of states and territories already extend protection to voluntary workers it is unlikely that it will be a significant burden to introduce this requirement across the nation.

Requests for Information

At the Federal level there are currently two separate tests to determine whether a request for information is discriminatory. Under the Age, Disability and Sex Discrimination Acts a request for information is discriminatory if a request is made in connection with or for the purpose of  an act, which it would be unlawful to discriminate (i.e. employment, provision of goods and services, etc), the request is made of people only with a protected attribute and the request does not fall within an exemption. A request for information may also be discriminatory pursuant to the Racial Discrimination Act 1975 where the request is made only of people of a particular race.

Victoria and Queensland have introduced a much simpler test. Requests for Information are prohibited when the information could be used to discriminate against a person on the basis of a protected attribute. There is an exception where the information will be used for a non-discriminatory purpose, such as compliance with Occupational Health and Safety legislation and the onus is on the requestor to prove the information will not be used for a discriminatory purpose. The Victorian legislation takes it a step further providing that the requestor cannot disclose the information unless it is necessary for a non-discriminatory purpose, and it cannot be produced or disclosed in court.

Implementing a simpler test makes it easier for individuals and organisations to know their rights and responsibilities and create an environment of equal opportunity.

Investigations of Alleged Unlawful Discrimination

Currently the Australian Human Rights Commission has no powers to investigate discrimination until a complaint is made. This means that the Commission is limited in its ability to investigate systematic or broad discrimination where potential complainants are unwilling to come forward or are unaware of the process for making a complaint. In many ways this has meant that reform has been slow and piecemeal, especially as complainants that do come forward often do not wish to proceed to litigation because of the financial and emotional costs.

The Victorian Equal Opportunity and Human Rights Commission has the power to investigate issues of discrimination without an individual complaint, to seek enforceable undertakings and apply to the Victorian Civil and Administrative Tribunal to enforce those undertakings. The introduction of these powers at a Federal level could potentially compromise the Australian Human Rights Commission’s role as a neutral conciliator. Though Fair Work Australia does have the power to investigate issues of discrimination in relation to employment, this does not go far enough. To avoid duplication the Australian Human Rights Commission should cover the field of what does not fall within Fair Work Australia’s jurisdiction. This could be done through a separate arm to ensure there is no conflict with the Commissions role as a neutral conciliator. These powers are important in assisting those that are most effected by discrimination and to facilitate progress from a culture of anti-discrimination to one of equal opportunity.

The consolidation of the Federal Discrimination Acts is an excellent opportunity to create a clearer and more effective protection of human rights in Australia. We often look overseas for best international practice; in this case the Federal government could learn a thing or two from looking in its own backyard.