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• removing arbitrary and outdated blanket exemptions for religious bodies, clubs, partnerships or voluntary work and replacing these with a broad ‘general exceptions test’ which requires a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.

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. 

Launching the strategy, Minister Rudd outlined that “the fundamental purpose of Australian aid is to help people overcome poverty. This also serves Australia’s national interests by promoting stability and prosperity both in our region and beyond. We focus our effort in areas where Australia can make a difference and where our resources can most effectively and efficiently be deployed.”

Responding to this mission statement, the Australian Council for International Development said that “The new purpose of the program, focused squarely on helping people overcome poverty, brings clarity and focus. It stresses that it is in Australia’s national interest to assist people in the developing countries that surround Australia – and beyond.”

Under the strategy, the Government has developed “five strategic goals for the overall aid program” and defined “ten specific development objectives that seek to give effect to these strategic goals”.

Regrettably, and contrary to the recommendations of many NGOs (including in the HRLC submission), the Independent Review Report did not recommend, and the new strategy does not adopt, a human rights-based approach to aid and development. This is despite strong evidence that a human rights-based approach is empowering and can substantially enhance aid effectiveness and efficiency.

According to the Human Rights Law Centre’s Rachel Ball, “A charity-based approach to aid and development issues will only take us so far. In devising, delivering and assessing aid programs, the Australian Government must acknowledge systemic inequalities and unjust power relations. It is no coincidence that time and time again, the hardest hit by poverty and natural disasters are the marginalised and disadvantaged.”

This disappointment notwithstanding, it is very pleasing that the ten “development objectives” include a focus on empowering women, girls and people with disability. According to ACFID CEO, Marc Purcell, “Women make up more than 50% of the world’s population. Human development can only occur if discrimination and inequality between men and women is addressed front and centre. We welcome the prioritisation of gender equality.”

The ten development objectives also include a commitment to strengthen civil society and to “improve security, enhance justice and human rights for poor people”. According to Minister Rudd, “human rights, for the first time therefore, has been formally included within the core development objectives of the Australian aid portfolio”. Mr Purcell said that ACFID is “very pleased that the Government has recognised the importance of civil society in building human development and expanding freedoms in communities.”

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.

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/.

As Prime Minister Julia Gillard continues to assure the public of her unyielding determination to return the budget to surplus by 2013 at all costs, she should revisit her first speech to parliament in 1998 in which she lamented the national obsession with ‘the health of our economy rather than the morals and goals of our society’.

A healthy economy is vital, but will not single-handedly take care of us when we’re sick, give our kids a good education or create a safe and cohesive society. A healthy economy is even less reliable if we care about fairness, freedom and the humane treatment of the most vulnerable members of our community.

If we look past the dollar signs, there are few concepts that encapsulate the ‘morals and goals’ of Australian society better than equality. Equality is an important determinant of health, education and community outcomes, in addition to being an essential part of a fair and free Australia.

The cherry on top is that in more equitable societies the economy also wins, with diverse labour markets boasting better productivity.

Despite our long-held aspiration to provide ‘a fair go’ for all, Australia could do better when it comes to equality. 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.

The Gillard Government is currently consolidating federal anti-discrimination laws into a single Equality Act. The process has been promoted as an exercise in addressing inconsistencies and reducing regulation. This approach prioritises the short-sighted wish lists of peak business organisations and is an inappropriate agenda for the reform of some of our most important human rights laws.

The Government should show that it is serious about achieving equality by ensuring that the draft Bill, due to be released later this year, also strengthens and modernises our laws.

A key problem with existing anti-discrimination laws is that they 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.

Imagine if this was Government’s response to systemic economic issues: if individual consumers were relied upon to identify and prosecute unfair market practices; if inflation rates were left to rise and fall unrestrained by monetary policy; if public corporations were under no obligation to record and report on their financial position. 

The better approach is to establish a well-resourced, comprehensive system of prevention, regulation, enforcement and monitoring – just as the Government does in many other areas. Our current equality regime falls short in this respect and looks like the legal framework of a government ambivalent about equality.

Our new Equality Act should introduce positive duties to take proactive, outcome-oriented steps to promote equality. It should strengthen the Australian Human Rights Commission’s role in issuing guidelines and approving equality action plans and it should provide new powers for the Commission to conduct investigations, prosecutions and public inquiries into serious instances of systemic discrimination.

A new Equality Act should cover all grounds of discrimination, including sexual orientation, gender identity, religion and homelessness – discrimination on all of these grounds is currently lawful, widespread and detrimental to individual and community health and wellbeing.

A new Equality Act should also put an end to the ‘free passes’ that allow various groups, such as religious institutions and men’s clubs, to discriminate, regardless of whether the discrimination is fair and reasonable in the circumstances.

Serious efforts to address discrimination tend to be denounced with accusations of “social engineering”. That is how Senator Flo Bjelke-Petersen described the Sex Discrimination Act 1984 during parliamentary debates around its passage. It is also the basis upon which the coalition rejected some of the more critical and progressive recommendations in the most recent parliamentary report on the effectiveness of the Sex Discrimination Act.

The fact is that all societies are engineered and it just happens that ours is constructed in a way that favors the wealthy, white, able-bodied male with no caring responsibilities. Our anti-discrimination laws need to do more to break down the legal, social and institutional structures that perpetuate this status quo.

No one expects a piece of legislation to create a utopia entirely free from unfair discrimination. Nor do we expect trade practices laws to guarantee a perfectly functioning market or criminal laws to completely prevent crime. We should, however, expect laws that identify and address problems as effectively as possible.

Back in 1998, Julia Gillard claimed that ‘individuals are immeasurably strengthened by being members of a team, of a society, and that a strong community provides the best platform from which individuals can excel.’

The PM knows that there are many types of riches that Governments should pursue. It’s time for this Government to put its money on equality.

Rachel Ball is the Director of Policy and Campaigns at the Human Rights Law Resource Centre

In opposition, the Victorian Coalition campaigned for a “stronger, fairer and safer” Victoria, but early hopes that Ted Baillieu would lead a government committed to fostering an inclusive and discrimination-free society are already beginning to fade.

Over the weekend, the State Government committed to reforming Victoria’s Equal Opportunity Act 2010 in two ways.  First, they’ll scrap measures designed to actively promote equality, including by stripping powers from the Victorian Equal Opportunity and Human Rights Commission.  Second they’ll expand the ‘permanent exceptions’ that give religious groups and entities – including those that provide public services using public monies – a free license to discriminate against de facto couples, gays, lesbians and single mums, among others.

The Government has announced these changes in the name of business sector productivity and the protection of the human right to religious freedom and belief.  On both counts Baillieu’s plan is fundamentally flawed.

 The powers of the Equal Opportunity and Human Rights Commission to promote equality and to investigate and respond to systemic discrimination were introduced because reactive, complaints-based laws alone are not effective in eliminating unfair discrimination. 

Complaints-based laws are passive until discrimination occurs, at which point they require individual victims to enforce compliance with complex legal standards through burdensome proceedings.  No matter what the outcome of these proceedings, the discriminatory frameworks, institutions and attitudes that gave rise to them are left intact.   

Imagine if the Government’s response to crime was to require the victim to track down his or her assailant, fund and run the legal case against them and then keep an eye on their attacker to make sure he or she doesn’t strike again.

It’s uncontroversial that to properly address crime, workplace safety and consumer rights, we need well-resourced, comprehensive systems of prevention, regulation, enforcement and monitoring.  Why the fuss when the same principle is applied to tackling discrimination?      

The Commission’s ability to conduct investigations, prosecutions and public inquiries into serious instances of systemic discrimination is an essential part of a proactive regime to promote equality. 

What’s more, these measures are not a threat to a productive business sector.  In fact, in more equitable societies the economy also wins, with diverse labour markets boasting better productivity through enhanced innovation, expanded customer bases and reduced absenteeism and turnover amongst employees.

There is a rapidly growing body of economic, epidemiological and medical evidence that more equal societies are healthier, better educated and more productive and that discrimination is harmful not only to the individual, but to society as a whole. 

The second of the Baillieu Government’s proposed changes is to expand the free licenses given to religious groups to discriminate against those who don’t share their religious beliefs or sexual morality.  These ‘permanent exceptions’ set religious groups apart from others who are subject to legal checks and balances that require them to show that any differential treatment is fair and reasonable. 

If a school condoned the bullying of a child with a disability, we’d be appalled.  If a hospital openly refused to hire Liberal voters, there’d be outcry.  If a secular welfare agency fired their receptionist because they didn’t want a Christian on the payroll, there would be no question that the receptionist should be entitled to lodge a complaint with the Commission. 

The fact is that the impact of religiously motivated discrimination extends far beyond the church walls, intruding into both the public sphere and our private lives.  Under the proposed changes, the law will allow publicly subsidised private schools to sack single mothers or expel gay or lesbian students – although we are reassured by the Australian Christian Lobby that this will always be done in “a loving way”. 

These harms are felt by the broader community, so the broader community is entitled to expect a response from Government. 

Baillieu has argued that subjecting religious groups to equality laws constitutes a violation of our international human rights obligations. 

In fact, human rights law recognises that freedom of religion, like most rights, is not absolute.   This means that where it conflicts with other rights – such as the right to equality – religion is not an automatic, pre-determined trump.  Just as our right to privacy must be balanced against legitimate security and law enforcement measures, so too must religious beliefs be balanced against sometimes competing interests.   

Overall, the proposed changes beg the question: why are the wish-lists of a small number of peak business lobbies and religious groups being prioritised over all others?  Why are the personal views of a few more important than equality rights for all?  

Our anti-discrimination laws need to break down the legal, social and institutional structures that perpetuate discrimination, not reinforce them.  The proposed changes do the exact opposite.   

Rachel Ball is the Director of Policy and Campaigns at the Human Rights Law Resource Centre (www.hrlrc.org.au)

The HRLRC has prepared a comprehensive submission, Towards a Tasmanian Charter of Human Rights, which recommends that a Tasmanian Charter have the following key features:

• The Charter should promote a dialogue about human rights between parliament, the executive, the courts and the community.  (The Proposed Model is a dialogue model.)
• The Charter should only recognise and protect the human rights of human beings.  (The Proposed Model only protects the rights of human beings.)
• The Charter should enshrine all civil, political, economic, social and cultural rights recognised by the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.  (The Proposed Model does not adequately enshrine economic, social and cultural rights.)
• The Charter should balance rights, responsibilities and other interests.  It should recognise that certain rights are absolute, such as the right to protection from torture and cruel, inhuman or degrading treatment.  All other human rights should be subject to such reasonable limits as can be demonstrably justified in a free and democratic society.  (The Proposed Model provides appropriately for limitations of human rights.)
• The Charter should establish robust pre-legislative human rights scrutiny mechanisms.  New bills introduced into parliament should include a statement as to their ‘human rights compliance’ and a Joint Committee on Human Rights should review the human rights compatibility of all bills.  (The Proposed Model includes Statements of Compatibility but does not establish a Joint Parliamentary Committee.)
• The Charter should bind ‘Tasmanian public authorities’, including Ministers, bodies created by Tasmanian laws and undertaking public functions, and private entities that perform public functions on behalf of Tasmanian public authorities.  (The Proposed Model binds bodies ‘funded or controlled’ by government, but it should bind all bodies who ‘exercise functions of a public nature’ on behalf of the government.)
• The Charter should require that public authorities act compatibly with rights and give proper consideration to human rights in decision making.  (The Proposed Model requires public authorities to act compatibly, but only provides a limited requirement for the proper consideration of human rights.)
• The Charter should require courts to interpret all Tasmanian law compatibly with human rights, but only so far as is possible consistent with statutory purpose.  The Act should not empower courts to invalidate legislation.  (The Proposed Model does both these things.)
• Where legislation cannot be given a human rights-consistent interpretation, the Supreme Court of Tasmania should have the exclusive power to make a Declaration of Incompatibility.  Such a declaration would not affect the validity of the legislation but would require that parliament reconsider that legislation within a specified period.  The decision as to whether to amend, repeal or leave the legislation untouched would be entirely a matter for parliament.  (The Proposed Model provides for this dialogue between the courts and parliament.)
• The Charter should provide people with effective judicial and non-judicial remedies where their human rights are breached by a Tasmanian public authority.  There should be a stand alone cause of action and all relevant relief, including compensation, should be available.  (The Proposed Model does not contain a stand alone cause of action and expressly states that damages will not be available.  It currently has a confusing regime of judicial and non-judicial remedies.)
• The Charter should contain recognition of the human rights of Aboriginal People in the Preamble, in particular their distinct role and place as the First Peoples of Tasmania.  (The Proposed Model does not currently include this reference.)

The HRLRC further recommends that the Tasmanian Charter be accompanied and complemented by a comprehensive program of human rights education, both for the public and community sectors, and that legal and advocacy services be adequately resourced to enable people to understand and vindicate their human rights.