By Adam Fletcher
As part of its National Human Rights Framework released in April last year, the Federal Government announced its commitment to re-engage with the international human rights system and take several measures here in Australia to improve protection of, and respect for, human rights.
One of these measures was the consolidation of the four separate Acts which constitute the Federal anti-discrimination regime into a single piece of legislation to ‘reduce the regulatory burden’ on stakeholders and ‘make the system more user-friendly by clarifying relevant rights and obligations.’ Lest that sound like code for watering the regime down to make life easier for those who might find themselves the subject of discrimination claims, the Government has stressed that ‘there will be no diminution of existing protections currently available at the federal level.’
This consolidation project is a gargantuan task. The goal of simplification is a worthy one, but there are a few hurdles for the Government to overcome. For one thing, a significant body of experience and jurisprudence has built up around the current Sex, Disability and Racial Discrimination Acts, and is beginning to grow around the more recent Age Discrimination Act. Much of it will remain relevant under a consolidated Act, but some probably won’t, which could make life difficult for practitioners – at least temporarily.
Another issue is that tests for what constitutes discrimination under the different Acts vary considerably, with some requiring courts to compare people’s treatment with that of a ‘comparator’ – someone who doesn’t have the protected attribute but is otherwise in the same circumstances. If no such person exists, the court effectively has to make him or her up. This is the test used in the Age, Sex and Disability Discrimination Acts, but not the Racial Discrimination Act (or ACT or Victorian anti‑discrimination legislation).
The Racial Discrimination Act is perhaps the most closely based on international human rights law, having been enacted in 1975 to implement many of the provisions of the Convention on the Elimination of All Forms of Racial Discrimination (CERD – which Australia ratified in September of that year). It even contains a guarantee of equality before the law, which human rights lawyers would dearly love to see replicated more widely. Its test for discrimination (derived from Article 1 of the CERD) is also unique, involving ‘nullification or limitation of enjoyment of a human right.’
It is impossible to cover adequately the many differences between the four Acts in a blog post – suffice it to say there are plenty and they will be difficult to merge. If you would like to explore them in more depth, the Equality Law Reform Project has prepared a very handy comparison table.
The Castan Centre will be preparing a response to the Government’s Discussion Paper over the next couple of months, but our initial reflection is that there are at least some areas in which ‘existing protections currently available’ need to be strengthened, rather than just maintained.
One is the burden of proof in anti-discrimination cases, which falls entirely on the complainant – at least in cases of direct discrimination. As the Government’s Discussion Paper notes, “[f]ew overseas jurisdictions follow the Australian approach of imposing the full burden of proof on the complainant.” In the UK, EU, Canada and the US the burden shifts to the respondent once a complainant has established a prima facie case. This makes sense, because few victims of discrimination are likely to be in a position to produce documentary evidence – particularly if they have been, for example, fired from a job or excluded from a club and no longer have access to records or witnesses.
In reviewing the operation of the Sex Discrimination Act in 2008, the Senate Standing Committee on Legal and Constitutional Affairs recommended that the burden should shift as it does under UK law. The Government responded that “[a] reversal of the onus of proof would need to be applied consistently across all grounds of discrimination. The Government will consider this recommendation as part of the consolidation project.”
The burden is not just evidentiary either – this article on a current case in the Federal Court emphasises the dedication and sacrifice required to win a contested discrimination case – particularly against a large corporation. In consultations to date, practitioners and rights advocates have reported that this issue prevents many potentially meritorious cases from proceeding, which is clearly a sign that this aspect of the system requires attention.
Another issue is the vexed one of exemptions and exceptions, which are effectively deliberate gaps in protection. At a forum in Canberra on 10 November, representatives of Church organisations stressed that the right to be free from discrimination had to be balanced against the right to freedom of religion. More specifically, some (though not all) wish to exclude those who do not share their faith from employment or participation opportunities.
The Australian Christian Lobby argues that any restrictions on freedom of religion are inherently dangerous. I respectfully disagree. Under article 18(3) of the International Covenant on Civil and Political Rights (ICCPR), restrictions may be placed on freedom of religion if they are ‘necessary to protect…the fundamental rights and freedoms of others,’ and few rights are more fundamental than the right to be free from discrimination – hence article 2(1) of the ICCPR:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Given that religious exemptions/exceptions from anti-discrimination laws have been around since the beginning, it is likely that some will be transferred to the new consolidated law. However, it seems like a good time to consider whether the exemptions/exceptions are still appropriate and/or compatible with fundamental human rights. For example, most people probably agree that churches ought to have control over whom they appoint to the clergy, but should lay employees in hospitals and schools (such as IT staff and gardeners) be in the same category? What about volunteers at welfare agencies? Should there be different requirements if the organisation in question receives public funding? This is a major controversy in the US and the UK. Even if existing exemptions and exceptions are maintained, we will argue that they should not be automatic, so that organisations must at least justify them.
Of course people may also face discrimination because of their faith, rather than their lack of it. The Castan Centre submission on the Government’s Discussion Paper will also canvass whether religion should be a protected attribute under the new legislation. The Government has already committed to adding gender identity and sexual orientation to the existing attributes (age, disability, sex and race), but this raises the question of other attributes recognised in international human rights law, including religion.
Taking a step back from all this detail, the Government’s consolidation project is a great opportunity to reflect on why we have anti-discrimination laws. Large scale discrimination has been at the root of many of the worst episodes in history, including war and genocide. On a more personal level, it strips people of their dignity and can have terrible effects on their lives. Ultimately, eliminating discrimination requires changing people’s attitudes, but these laws (plus appropriate enforcement mechanisms) are key to achieving this goal. We Australians like to think we live in a pretty egalitarian society, but in reality there is a surprising amount of work to be done on the equality front. With this in mind, we should grasp this opportunity to strengthen and extend our anti‑discrimination laws.