Guest Blogs

Dr Dominique Allen

29 November 2012

“What’s in a Name?” Shakespeare’s Juliet once asked, and this was the question I asked myself when opening the government’s long-awaited and surprisingly titled Human Rights and Anti-Discrimination Bill 2012.

The Bill is the result of two early inquiries by the then Rudd government – a Senate inquiry into the effectiveness of the Sex Discrimination Act 1984 and the national human rights consultation which failed to result in a human rights Act. The government made a commitment to enact some recommendations from those inquiries, to conduct further inquiries into other recommendations and, simultaneously, to decrease the regulation and red-tape faced by business in complying with five inconsistent federal anti-discrimination laws. The result is the Human Rights and Anti-Discrimination Bill 2012. One shouldn’t let the title mislead – although it deals with the functions of the Australian Human Rights Commission, this Bill is about consolidating and improving anti-discrimination laws and the only human right it deals with is the right to non-discrimination.

As others on this site have said, the Bill contains many positive changes which should be suported. Unfortunately, it lacks measures to achieve equality and any real reference to the goal of promoting equality, apart from an objects clause which recognises the principle of equality and that special measures may be required to achieve substantive equality.

Equal opportunity refers to the principle of non-discrimination and treating likes alike.  While this is certainly an important goal, it is arguably not one that will result in genuine equality. At the heart of substantive equality is the idea that it is necessary to accommodate difference so that people can participate equally. This is a dynamic understanding of the idea of ‘equal opportunity’, and one which is better captured by the more active term ‘equality’. 

While equal opportunity is a part of the Australian discourse, equality is not. Victoria’s new Act is titled the Equal Opportunity Act 2010 like its three predecessors, even though the review leading to it recommended naming it the Equality Act and including measures to promote equality. The Australian Human Rights Commission even lost ‘Equal Opportunity’ from its title in 2008 and while most of its State and Territory equivalents are named an Equal Opportunity or Anti-Discrimination Commission, none are named an Equality Commission. Other jurisdictions are willing to put ‘equality’ at the forefront of what they are about by including the word in the titles of statutes and commissions – witness the Equality Commission for Northern Ireland, Britain’s Equality and Human Rights Commission, the Equality Act 2010 (UK), Ireland’s Equality Authority and Equality Tribunal, and the Promotion of Equality and Prevention of Unfair Discrimination Act (South Africa).

Of course, this Bill is about more than a name – it’s what’s inside that counts.

Inside, the Bill is about non-discrimination. The principle of non-discrimination means that everyone should be treated equally and not be subject to adverse treatment due to irrelevant characteristics, such as race, sex, age and disability. Over the last 30 years, this idea opened the doors to employment and education opportunities for members of marginalised groups and made it unlawful for other service providers to discriminate but it has not eradicated systemic, ingrained discrimination. The Bill recognises that there are valid exceptions to the non-discrimination principle by including a general defence of ‘justification’, exceptions for situations which would otherwise be discriminatory, special measures and temporary exemptions.

So what’s in a name? The focus on non-discrimination means that the Bill doesn’t redirect the law at promoting equality, as its name aptly advises. This is evidenced by the absence of a positive duty to eliminate discrimination and promote equality and a general right to equality before the law (this continues to be limited to racial equality. Enshrining the right to equality for Indigenous peoples in the Constitution is the subject of a separate inquiry).

Despite these gaps, the Bill is welcomed because of the improvements it offers to the existing federal laws but the Bill must be seen as a first step. The second step is to name ‘equality’ as a goal and introduce measures that proactively promote equality, rather than measures which address discrimination retrospectively once an individual complaint has been made.

Dr Dominique Allen is a Senior Lecturer at the School of Law, Deakin University and teaches and researches on anti-discrimination law.

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There are a number of federal anti-discrimination laws in Australia and the Australian Government has committed to consolidating these laws into a single Act – a process which many hope will also address gaps in the law and strengthen existing protections. This website is to encourage and facilitate discussions about the consolidation process and help inform and engage the community and organisations with an interest in equality and anti-discrimination laws.

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