In a major submission to the Commonwealth Attorney-General, who is reviewing the laws, the Human Rights Law Centre has called for the Government to use this critical opportunity to address gaps in the laws and strengthen existing protections.

The HRLC’s Director of Policy and Campaigns, Rachel Ball, said there are a number of federal anti-discrimination laws in Australia and the Government’s decision to consolidate them into a single Act should be welcomed. However, Ms Ball warned that without updating the substance of the laws being consolidated, existing flaws would continue to hamper Australia’s efforts to eliminate discrimination and continue to put Australia in breach of international law.

“There’s not much point if the process is simply going to result in all the old outdated laws being rolled into a ‘new’ Act. This opportunity to weed out existing problems should be used to also modernise and strengthen Australia’s equality laws to ensure they meet our international human rights obligations,” Ms Ball said.

The HRLC urges the Government to make certain the new Act includes a positive duty to eliminate discrimination and promote equality, similar to the current laws in Victoria and the United Kingdom.

“To create a society free from discrimination, you need your equality laws to be proactive. So as well as providing more accessible and user-friendly remedies for individual cases of discrimination, laws needs to adress structural inequalities if they are to bring about substantive equality,” Ms Ball said.

Specifically, the HRLC recommends equipping the Australian Human Rights Commission with investigative and compliance powers allowing the commission to issue compliance notices to organizations and enter binding agreements with them.

The HRLC’s submission builds a case for expanding protections to cover all areas of public life and additional attributes, including a person’s status as homeless or a victim of domestic violence.

“Research has shown that discrimination is a major causal factor of homelessness and can systematically exclude people from access to goods, services, the justice system, health care, employment and housing. This is something that improved equality laws could help to address,” Ms Ball said.

The HRLC also calls on the Federal Government to reconsider its position regarding permanent exemptions for specific areas of public life – including the exemption for religious organisations which the Government has indicated it will not be altering.

“Current exemptions for religious bodies are arbitrary and outdated. Religious bodies should not be above the law, yet current laws effectively give them a free license to discriminate. This needs to be overhauled,” Ms Ball said.

The submission provides an overview of how existing technical and legal barriers to the elimination of discrimination could be removed. For example, sharing the burden of proof between a person making a complaint and the respondent along with reforming the problematic comparative tests for discrimination, would make equality law more accessible and therefore tangible for general members of the public.

The Government is due to release an exposure draft of the legislation soon.

A summary of the HRLC submission as well as a full copy can be found online at:  http://www.hrlc.org.au/content/realising-the-right-to-equality/

For further information or comments please contact:
Rachel Ball, HRLC Director of Policy and Campaigns, on 0434 045 919 or rachel.ball@hrlc.org.au

The HRLC recommends the Consolidated Act reflect the aims of promoting substantive equality and eliminating discrimination. The submission also makes a number of key recommendations for strengthening protections and making the law more accessible, including:

• making explicit the duty to promote equality and eliminate discrimination;
• guaranteeing equality before the law and prohibiting discrimination in all areas of public life;
• simplifying the test for discrimination by removing unnecessary technicalities such as the ‘comparator test’ and clarifying the duty to make reasonable adjustments;
• sharing the burden of proof when discrimination complaints are heard by the Courts;
• prohibiting harassment and vilification on the basis of all attributes;
• expanding protections to include gender identity; sexual orientation; intersex status; religion, criminal record, political opinion, nationality, industrial activity, family/carer responsibilities, homelessness, experiences of domestic/family violence and other relevant status
• clarifying that intersectional discrimination, which is based on two or more protected attributes, is also unlawful;
• removing arbitrary and outdated blanket exemptions for religious bodies, clubs, partnerships or voluntary work and replacing these with a broad ‘general exceptions test’ which requires a principled and balanced assessment on a case-by-case basis;
• relieving the burden placed on complaints, for example, by reducing the risk of being ordered to pay a respondent’s legal costs; and
• strengthening the Australian Human Rights Commission’s powers, for example, by enabling it to inquire and investigate broader range of issues, make binding agreements, issue compliance notices and run cases before the courts.

If adopted, the HRLC’s recommendations would not only bring Australia in line with our international human rights obligations, it would also contribute to a fairer, healthier, more inclusive and prosperous Australia.

“All political parties should show principled leadership and support the Expert Panel’s recommendations. The evidence is clear that Australians support equality, fairness, recognition and respect for Aboriginal and Torres Strait Islander peoples,” says the Human Rights Law Centre’s Director of International Human Rights Advocacy, Ben Schokman.

“Not all citizens are treated equally under the Australian Constitution. While it is commonly accepted that racial discrimination has no place in the Australian community, our Constitution continues to allow discrimination on the basis of race.”

“Given the Australian Constitution was drafted in the 1890s, it is not surprising that our foundational document still reflects some the racist attitudes of the time,” Mr Schokman said. “The Expert Panel’s recommendations provide us with a rare opportunity to update the Australian Constitution to better reflect our community’s contemporary values.”

The Expert Panel, which consists of Aboriginal and Torres Strait Islander leaders, constitutional experts and politicians from all parties, carried out an in-depth community consultation process, travelling to 84 urban and remote locations to host public events and also receiving 3,600 public submissions.

“Throughout the consultation process, Australians have made it clear that they want meaningful recognition for Aboriginal and Torres Strait Islander peoples in the constitution and that they want any racist elements removed. The Human Rights Law Centre also strongly considers that the Australian Constitution should promote equality and prevent and protect against racial discrimination,” Mr Schokman said.

In its submission to the Expert Panel in September 2011, the Human Rights Law Centre identified gaps in Australia’s compliance with its international human rights obligations, highlighting the need for constitutional reform.

“In recent years, a number of highly respected, independent international human rights bodies and experts have made specific recommendations in areas where Australia is failing to meet its legal obligations, particularly the rights of Aboriginal and Torres Strait Islander peoples. The Expert Panel’s recommendations show that Australians agree. Recognition and equality in the Australian Constitution would be a small but crucial step to help address the serious disadvantage and discrimination that is experienced by many Aboriginal and Torres Strait Islander peoples.”

A copy of the Human Rights Law Centre’s submission to the Expert Panel is available at http://www.hrlc.org.au/content/topics/indigenous/towards-constitutional-recognition-for-aboriginal-and-torres-strait-islander-peoples-29-sept-2011/.

Ms Ezeilo is an independent expert mandated by the UN Human Rights Council to advocate for the prevention of trafficking in persons in all its forms and to encourage measures to uphold and protect the human rights of victims.

In her preliminary report, released on 30 November 2011, Ms Ezeilo said that “Australia has demonstrated strong leadership in combating trafficking in persons regionally and domestically, however it needs to devote greater attention to the rights and needs of victims.”

Ms Ezeilo highlighted the need to improve support services, including accommodation, legal assistance and counselling services, to suspected victims of trafficking and de-link government support from participation in criminal justice processes. She also praised the recent release of an exposure Bill to expand the definition of trafficking to better address labour exploitation and forced marriage.

During Ms Ezilo’s country mission, the Human Rights Law Centre provided a briefing paper on the application of people smuggling laws to persons who may have been trafficked. The briefing paper makes the point that where a person has been recruited by means of deception for the purpose of exploitation – as may be the case for many of those charged with people smuggling offences – they meet the definition of a trafficked person under the Protocol and should be provided with adequate assistance and protection, not criminalised and subjected to lengthy jail terms in Australian prisons.

On this topic, Ms Ezilo expressed her concern about “the possibility of trafficked persons including children being arrested, detained for long periods and deported for breach of migration regulations without proper identification especially given the strong migration control policy of Australian government.”

A full report of the Special Rapporteur’s mission will be submitted to the UN Human Rights Council in June 2012.

In preparation for that mission, and at the request of the UN Office of the High Commissioner for Human Rights, the Human Rights Law Centre and Anti-Slavery Australia prepared a major Briefing Paper to the Special Rapporteur. Mallesons Stephen Jaques provided substantial pro bono research assistance in preparing the paper.

The Briefing Paper provides an overview of trafficking in persons in Australia, including:

• the main forms and manifestations of human trafficking;
• existing or planned laws, policies and plans of action to address trafficking in persons;
• existing or planned bilateral or multilateral agreements to address trafficking;
• support services for victims of trafficking; and
• priorities for reform.

In the view of both the HRLC and Anti-Slavery Australia, the most effective way to address human trafficking and severe exploitation is to “incorporate a human-rights based approach into measures taken to prevent and end trafficking in persons and to protect, assist and provide access to adequate redress to victims, including the possibility of obtaining compensation from the perpetrators”. From a human rights perspective, we have identified the following priorities for reform:

• reviewing Australia’s anti-trafficking laws to ensure compliance with Australia’s international obligations including obligations to prohibit forced labour and practices similar to slavery;
• investing in research to strengthen our understanding of emerging issues such as forced marriage, child trafficking and organ removal;
• consulting with community stakeholders to develop legal and policy initiatives to respond to the emerging issue of forced marriage, including multilingual guidelines for government agencies and NGOs working with people who have experienced forced marriage;
• strengthening pathways to effective remedies for trafficked people by building effective networks and referral protocol between support services and pro bono lawyers representing clients in compensation matters;
• facilitating and supporting family reunion between trafficked people and dependent children;
• improving victim support by ensuring all trafficked people have appropriate access to safe and sustainable housing;
• developing protocol and guidelines for government agencies and support services working with child victims of trafficking to ensure the protection of human rights;
• improving coordination between federal and state government agencies to ensure a coordinated and efficient response to trafficking;
• developing a publicly available resource on accommodation options for trafficked people, which provides information and guidance on the provision of housing to trafficked people; and
• developing multilingual information and resources for all people entering Australia and for communities identified as most vulnerable to trafficking.

The Centre is concerned about the impact of the proposed laws on women and children experiencing family violence and considers that they would constitute unjustifiable limitations on human rights contained in the Charter of Human Rights and Responsibilities Act 2006. Child abuse is a critical issue that must be addressed as a matter of urgency and priority. However, measures to address child abuse should be appropriately adapted to achieve this aim and should not punish women who are themselves victims of violence.

The submission is available here.

• the role and functions of the Race Discrimination Commissioner and the powers of the Australian Human Rights Commission;
• developments related to the Northern Territory Emergency Response; and
• racially motivated violence, particularly against international students.

The HRLC has provided an update to the Australian Government and to the Committee on Australia’s response to the Concluding Observations. 

Overview and Summary

There are four Federal statutes governing discrimination law: the Racial Discrimination Act 1975 (Cth); the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), and the Age Discrimination Act 2004 (Cth). The Australian Human Rights Commission Act 1986 (Cth) governs, amongst other things, the procedure for obtaining redress in discrimination matters.

In April 2010, the Federal Government announced its intention to streamline the Federal antidiscrimination Acts into a single comprehensive law (Consolidation Project).

The Federal Government stated:

A single Act will address current inconsistencies and make the system more user-friendly by clarifying relevant rights and obligations. It will also provide the opportunity to review the complaints handling process and the related role and functions of the Australian Human Rights Commission. Importantly, there will be no diminution of existing protections currently available at the Federal level.

The Federal Government has indicated that the exposure draft legislation for the consolidated anti-discrimination law (herein Consolidated Act) will be released sometime in 2011.

The Consolidated Act should strengthen and modernise Australia’s Federal anti-discrimination laws. In this paper, the Human Rights Law Centre (HRLC) focuses on the need for the law to contribute to a more equal society by recognising and addressing systemic discrimination.

In order for the law to effectively eliminate barriers to equality, it must recognise and address the systemic discrimination that is entrenched in institutions, policies and practices. Systemic discrimination creates and perpetuates disadvantage for whole groups of people and is not effectively addressed through individual complaints.4 If we recognise and respond to systemic discrimination, we will address the causes as well as the symptoms of inequality, thereby ensuring that discrimination does not occur in the first place and creating a fairer, more just and more inclusive Australia.

This paper explores how the reactive nature of the current regime does little to address systemic discrimination and promote substantive equality and makes a series of recommendations designed to ensure that the Consolidated Act is an effective tool in addressing systemic discrimination.

The HRLC would like to thank Clayton Utz, a leading Australian law firm, for their substantial assistance in researching and drafting this submission.

Click here to download the submission

There are a number of federal anti-discrimination laws in Australia which aim to tackle discrimination on the basis of race, sex, disability and age. In April 2010, the Australian Government committed to examining gaps in the existing anti-discrimination laws and consolidating them into a single Equality Act.

The HRLC’s Director of Policy and Campaigns, Rachel Ball, said the move towards a single Equality Act is a welcome one.

“The consolidation process presents an important opportunity to not only simplify and streamline the laws, but also to strengthen and modernise them. Promoting equality and fairness for all, requires a well-resourced, comprehensive system of prevention, regulation, enforcement and monitoring,” Ms Ball said.

Currently, anti-discrimination laws are reactive and complaints-based. The law is passive until discrimination occurs, at which point it requires individual victims to enforce compliance with complex legal standards through burdensome proceedings.

Ms Ball said despite Australia’s long-held aspiration to provide ‘a fair go’ for all, Australia could do better when it comes to equality and is hoping the website will become a focal point of activities for and by organisations with an interest in improving equality and anti-discrimination laws.

“Some of our most pervasive problems – violence against women, barriers to participation in public life for people with disability and Indigenous disadvantage, to name a few – are all mired in discriminatory frameworks, institutions and attitudes. We’ll be encouraging all interested parties to bring their ideas to the table and help Australia take a leadership role when it comes to some our most important human rights laws,” Ms Ball said.

The website, created and moderated by the Human Rights Law Centre, was created with financial assistance from the Australian Attorney-General’s Department, but will be published independently and will showcase the opinion and views of a range of organisations, through guest blogs, comments boards, a twitter feed and various resources.

The Government has said it will release an exposure draft of the proposed Equality Act some time this year.

1. Repeal the ‘inherent requirements’ test in the 2010 Act to instead allow religious organisations a blanket exception to discriminate when employing gays, lesbians, single mothers and others if this discrimination is consistent with their religious beliefs (rather than only permitting discrimination where it is an “inherent requirement” of the job in question).
2. Remove the ‘sweeping coercive powers of investigation’ given to the Victorian Equal Opportunity and Human Rights Commission.
3. Restructure the Commission to require an independent chair of the Board rather than the Commissioner.

The proposed changes have rightly caused significant concern among many in the community, particularly the gay and lesbian and broader GLBTI communities. A new website has been set up to help people express their opposition to the religious exceptions – please see this link.

Any watering down Victoria’s anti-discrimination regime is a giant step backwards for Victoria’s equal opportunity framework. The arguments against weakening the Commission’s investigation powers and widening the religious exceptions were explored in the opinion piece by Rachel Ball written in response to the media reports earlier in February.

What is unclear at this stage is the precise extent the powers of the Commission will be wound back.  The Victorian Coalition’s commitment to remove “sweeping coercive powers” is somewhat vague but the surrounding text refers to the investigation powers of the Commission, the power to issue a compliance notice and the power to compel documents and witnesses – all of which are key features of the new Act which enable the Commission to tackle systemic discrimination, in accordance with the recommendations of former public advocate Julian Gardner who conducted an extensive review of the 1995 Act. The very existence of these powers facilitates co-operation by parties – they provide the “stick” to encourage compliance by business and other duty holders. If the Commission is stripped of these powers the objectives of the new Act will ring hollow indeed. Importantly, the exercise of these powers is also subject to important safeguards including the requirement that the Commission act compatibly with the Charter. The power to compel documents and witnesses is a particularly unusual target given the Commission has long since exercised these powers in relation to its conciliation functions. These compulsion powers and investigation and inquiry powers more generally are already commonplace in equal opportunity legislation in other Australian jurisdictions.

Further detail on the HRLC’s position on these potential changes can be found in the HRLC Equal Law in Victoria Policy Document.