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“There’s not much point if the process is simply going to result in all the old outdated laws being rolled into a ‘new’ Act.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

“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/.

Following Nicola Roxon’s appointment as Attorney-General on 15 December 2011, the Human Rights Law Centre prepared a Briefing Paper for the Attorney on Human Rights Iniatiatives for 2012-14.

The Briefing Paper details seven actions which  the Attorney-General could take to demonstrate principled human rights leadership, promote equality and human dignity, enhance government accountability and do better in guaranteeing fairness for all.

• 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

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.

The submission to the Commonwealth Attorney-General’s Department considers each of 145 recommendations made to Australia by the international community during Australia’s Universal Periodic Review before the UN Human Rights Council.

The recommendations ranged from enacting a comprehensive national Human Rights Act, to recognising same-sex marriage, to enshrining Indigenous and racial equality rights in the Constitution, to abolishing mandatory immigration detention.

The Centre’s submission considers each of these recommendations in terms of Australia’s concrete obligations under international human rights law and identifies whether, on that basis, they must be accepted, should be accepted, or should be rejected.

According to a legal analysis of the recommendations conducted by the Human Rights Law Centre, the Australian Government must immediately implement at least 55 of the UPR recommendations in order for Australia to avoid continuing breaches of its legal obligations under international law.  The HRLRC’s media release is available in [PDF] and [word].

Australian NGO Coalition

The Centre has also been involved in the coordination of a major NGO Coalition submission to the Attorney-General’s Department regarding prioritisation and practical implementation of the 145 recommendations.

The Australian Government has committed to fully consider the recommendations “in the coming months” and to formally respond to them at the UN Human Rights Council in Geneva in June. Australia’s response presents both a test and an opportunity for the protection of human rights at home and the enhancement of our international standing and reputation abroad.

For further information about Australia’s Universal Periodic Review, see http://www.hrlrc.org.au/content/universal-periodic-review-ngo-delegation-updates/.

On 8 November 2010, the Human Rights Law Resource Centre made a Submission to UN CESCR on the Right to Sexual and Reproductive Health of Prisoners and Detainees.

The HRLRC submission examines the particular sexual and reproductive health rights of prisoners, noting that the principles referred to in the submission also apply to people held in immigration detention, psychiatric facilities and other places of detention. 

The HRLRC considers that special consideration should be given to the rights of persons in detention in the general comment because:

• persons deprived of liberty are placed in a vulnerable position; and
• the fact of detention imposes upon the State additional positive duties to ensure the protection of their human rights.

Furthermore, the HRLRC considers that the rights of women detainees require particular attention in order to ensure non-discrimination in the provision of the right to sexual and reproductive health.

• Submission to Senate Legal and Constitutional Affairs Committee dated 26 October 2010
• Attachment A – Policy Paper on Promoting Equality and Addressing Discrimination
• Attachment B – Letter to Attorney-General regarding Anti-Discrimination Law Consolidation Project

 The Bill seeks to amend the Sex Discrimination Act 1984 and the Age Discrimination Act 2004, to implement two of the government’s election commitments, to strengthen protections against sex discrimination and sexual harassment, and to introduce a dedicated position of Age Discrimination Commissioner in the Australian Human Rights Commission.

In the HRLRC’s view, however, the proposed reforms fail to address major shortcomings of the Sex Discrimination Act 1984 identified in the 2008 report of the Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality.

Importantly, the changes do not respond to one of the key findings of the Senate Committee, namely that ‘the most fundamental limitation of the Act is its reliance on enforcement through individuals pursuing complaints’.  This recognition demands a transformation in the way our laws deal with discrimination and promote gender equality; moving from a reactive, complaints-based model to a progressive rights-based model which actively promotes equality.  Tinkering around the edges is not enough.

On 27 August 2010, the UN Committee on the Elimination of Racial Discrimination released its Concluding Observations following a review of Australia’s compliance with the International Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The Committee welcomed a number of recent positive developments in Australia, including the National Apology to the Stolen Generations, the endorsement of the UN Declaration on the Rights of Indigenous Peoples, the commitment to “Close the Gap” in Indigenous health inequality, and Australia’s closer engagement with a number of UN human rights instruments and mechanisms.

The Committee raised serious concerns about a range of Australian laws, policies and practices, including the Northern Territory Intervention, the suspension of the Racial Discrimination Act, the treatment of refugees and asylum seekers, and the impact of Australia’s counter-terror laws.

The CERD Committee also expressed its regret that many recommendations from previous reports have not been properly implemented in Australia, including in relation to deaths in custody, the socio-economic disadvantage of Aboriginal and Torres Strait Islander peoples, gross over-representation of Aboriginal and Torres Strait Islander peoples in the prison population, Aboriginal land rights and the mandatory detention of asylum seekers.

The Committee made over 20 recommendations for concrete action to address racial discrimination, disadvantage and inequality in Australia, including in relation to Australia’s legal framework, Indigenous peoples, refugees and asylum seekers, and multiculturalism and racial harmony.

Australia’s Legal Framework

The Committe recommends that the Government:

• comprehensively implement the International Convention on the Elimination of All Forms of Racial Discrimination in Australian law;
• strengthen federal anti-discrimination laws to ensure comprehensive and entrenched protection against racial discrimination;
• consider expanding the powers, functions and financing of the Australian Human Rights Commission, including the appointment of a  full-time Race Discrimination Commissioner;
• develop a legal framework to prevent acts of Australian corporations which negatively impact on the rights of Indigenous peoples domestically and overseas and to regulate the extra-territorial activities of Australian corporations abroad;
• ensure that acts of racial hatred are criminalized and prosecuted; and
• consider ratifying those international human rights treaties which it has not yet ratified,such as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), the Optional Protocol to the Convention Against Torture, and ILO Convention No 169 concerning Indigenous and Tribal Peoples in Independent Countries.

Aboriginal and Torres Strait Islander Peoples

The Committe recommends that the Government:

• amend the Australian Constitution to include the recognition of Aboriginal and Torres Strait Islanders as First Nations Peoples;
• consider the negotiation of a treaty agreement to build a constructive and sustained relationship with Indigenous peoples;
• reset the relationship with Aboriginal people based on genuine consultation, engagement and partnership and that Government actions affecting the Aboriginal communities respect Australia’s human rights obligations and conform with the Racial Discrimination Act;
• reform and remedy the discriminatory impact that the Northern Territory Emergency Response has had on affected communities, including restrictions on Aboriginal rights to land, property, social security, adequate standards of living, cultural development and work;
• amend the Native Title Act 1993 to address the persisting high standards of proof required for recognition of the relationship between Indigenous peoples and their traditional lands, and the fact that in spite of large investmenst of time and resources by Indigenous peoples, many are unable to obtain recognition of their relationship to land;
• increase access to justice for Indigenous peoples, including through increased funding for Aboriginal legal aid and interpretative services;
• in light of the grossly disproportionate incarceration of Indigenous people, dedicate sufficient resources to address the social and economic factors underpinning Indigenous contact with the criminal justice system, including by adopting a justice reinvestment strategy, continuing and increasing the use of Indigenous courts and conciliation mechanisms, diversionary and prevention programs and restorative justice strategies;
• ensure the provision of adequate health care to prisoners;
• adopt all necessary measures to preserve native languages and develop and carry out programmes to revitalize Indigenous languages and bilingual and intercultural education for Indigenous peoples respecting cultural identity and history; and
• implement appropriate compensation payment schemes for the Stolen Generations and in relation to Indigenous Stolen Wages.

Refugees and Asylum Seekers

The Committe recommends that the Government:

• review the regime of mandatory detention of asylum seekers with a view to finding an alternative to detention, ensuring that the detention of asylum seekers is always a measure of last resort and is limited by statute to the shortest time reasonably necessary, and that all forms of arbitrary detention be avoided;
• expedite the removal of the suspension on processing visa applications from asylum seekers from Afghanistan;
• develop appropriate reception arrangements, in particular for children;
• amend domestic law, in accordance with article 5 (b) of the Convention, to ensure that the principle of non-refoulement is respected when proceeding with return of asylum-seekers to countries; and
• continue its cooperation with UNHCR in regard to the above.   

Multiculturalism and Racial Equality and Harmony

The Committe recommends that the Government:

• develop and implement an updated comprehensive multicultural policy and strengthen the race and cultural dimensions of its Social Inclusion Agenda;
• ensure that counter-terrorism laws and practices do not include racial profiling, which may contribute to increased stigmatization of certain groups, and do not discriminate in purpose or effect on grounds of race, colour, descent, or national or ethnic origin;
• in light of recent attacks on international students, particularly Indian students, intensify efforts to combat racially motivated violence, including by requiring law enforcement authorities to collect data on the nationality and ethnicity of victims of such crimes and ensuring that judges, prosecutors and the police apply, in practice, existing legal provisions which consider the motive of ethnic, racial or religious hatred or enmity an aggravating circumstance;
• include human rights education in the national curriculum; and
• ensure that an anti-racism strategy be established under the new Human Rights Framework and that an education program for all Australians, with particular reference to combating discrimination, prejudice and racism.

The Committee’s findings and recommendations are available here.

An HRLRC media release is here.

The major NGO Report to the Committee, together with 9 Fact Sheets on key issues in respect of Australia’s compliance with CERD, is here.