Simon McKeon and Rachel Ball
21 November 2012
This week Federal Attorney-General Nicola Roxon announced changes to the anti-discrimination laws. 2011 Australian of the Year Simon McKeon and the HRLC's Rachel Ball say that although the Bill makes significant strides in the right direction, it also misses some important opportunities.
The days of serious arguments against equality are over. The idea that a woman might miss out on a promotion because of her sex, or be denied access to goods and services because of her race is abhorrent to most Australians.
Unfortunately, that doesn't mean these things don't still happen, which is why effective anti-discrimination laws are a vital part of our legal framework.
Our current anti-discrimination laws were passed and amended in dribs and drabs over 30 years. There are some aspects that work well and many others that don't. There is certainly a need to reconcile the laws, remove unjustified inconsistencies and strengthen and modernise protections.
The Anti-discrimination and Human Rights Bill 2012, released by the Government on Tuesday, makes significant strides in the right direction, but also misses some important opportunities.
The Bill consolidates Commonwealth laws covering discrimination on the basis of race, sex, disability and age, and adds new protections from discrimination on the grounds of sexual orientation and gender identity. It also strengthens protections against workplace discrimination on the basis of other attributes, including religion and political opinion.
Importantly, the Bill simplifies the law and removes some of the unnecessary complexities that prevent individuals from accessing justice when they have experienced unfair discrimination. These same amendments will also make it easier for business and service-providers to understand and comply with their legal obligations. For example, clarifying the definition of discrimination, introducing a shifting burden of proof and requiring parties to pay their own legal costs constitute substantial improvements on the current regime.
These improvements are needed because all too often discrimination complaints veer away from ascertaining what happened and why and are instead consumed by unhelpful and costly legal arguments about technical, and often arbitrary, definitional and evidentiary requirements.
On the downside, the Bill maintains some of the unjustified carve-outs in existing laws, such as the extremely broad exception that allows religious bodies to discriminate on the basis of sexuality, marital status, sex and other attributes as long as the discrimination is necessary to avoid injury to religious sensitivities. It also misses the opportunity to include new protections against unfair discrimination on the basis of domestic violence and irrelevant criminal record.
Most significantly, the Anti-discrimination and Human Rights Bill maintains an essentially reactive, complaints-based system. This individualised approach needs to be supplemented by mechanisms that can respond to systemic issues and prevent discrimination from happening in the first place. For example, a stand-alone right to equality before the law could be used to address the source, rather than the symptoms, of discrimination.
Of course, laws alone can't eliminate unfair discrimination. Improved community attitudes and social and institutional structures are also required to effect real change. However, a strong law can set authoritative standards, perform an educative function and provide a mechanism for redress for victims of discrimination.
We've seen the damage that flows from discrimination and there's abundant evidence demonstrating that equality of opportunity contributes to more cohesive, prosperous and healthy societies.
From a business perspective, the prevention of discrimination and harassment can lead to improved efficiency and productivity. Clearer laws also make compliance more straightforward. From a human rights perspective, protection from discrimination and the promotion of equality is fundamental to our inherent dignity and the realisation of our full potential.
The Government's Bill recognises that we've moved beyond the time when anti-discrimination laws were perceived as an insult to liberty or a threat to the economy. Ultimately, it's in everyone's interest that we do our best to prevent discrimination from occurring in the first place and to ensure accountability and remedies for victims.
Simon McKeon is an investment banker, business leader and 2011 Australian of the Year. Rachel Ball is the Director of Advocacy and Campaigns at the Human Rights Law Centre.
This article first appeared in the Drum.
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.
In July 2011 the HRLC convened a conference to encourage and inform debate on the Commonwealth Government's consolidation of its anti-discrimination laws. Check out this page for a wrap-up of the conference, speakers presentations and materials and video footage and photos from the day.