Inadequate legal protection forsakes the most vulnerable

Simon Rice

The government has announced discrimination protection for sexual orientation, gender identity and intersex status. But the reform is a hollow one, and will only disappoint. It gives nothing of real substance to the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning) community, and fails to deliver on a long-standing promise to simplify Australia’s ramshackle discrimination laws.

The reform will add to the jumble of personal attributes that are covered by the Sex Discrimination Act. A law that began as bitterly fought for declaration of women’s right to equality has since been treated as a catch-all: it now covers anything that has some conceptual link with ‘‘sex’’, from marital status to gender identity.

Perhaps loading up the Sex Discrimination Act with another protected attribute would not be a problem if the act offered effective protection. But it doesn’t, and the government has known that since at least 2008, when a senate committee reviewed the act.

For one thing, religious orders and schools, and voluntary organisations, are given an exemption that allows them to discriminate. For another, proving discrimination under the particular test in the act is a difficult technical exercise, and often an impossible one.

Such problems, and many more, are not unique to the Sex Discrimination Act. All five federal anti-discrimination laws need an overhaul, and that is exactly what the government has been working on since 2010.

The overhaul was announced jointly by the Attorney-General and Finance Minister as an exercise in deregulation, an important project to consolidate the laws into a single, accessible, easy-to-use, antidiscrimination law. The project resulted in a draft human rights and anti-discrimination law.

Last month, a senate committee reported favourably on the draft law, with some proposed changes. The government was then able to do what it promised – and what the community needs – and introduce a single, streamlined, contemporary, national anti-discrimination law. Instead, it avoided a fight it could have won and, as a fall-back, took advantage of bipartisan support for extending anti-discrimination protection to cover a person’s sexual orientation.

The fight that the government avoided was flagged by Coalition senators in the committee report. Even though they recognised that the current laws are ‘‘imperfect and capable of improvement’’, they rejected the bill as ‘‘fundamentally flawed’’. Some flavour of the fundamentalist nature of the Coalition senators’ view is given by their claim that the draft law shows ‘‘how close Australians, in the Year of Our Lord 2013, came to being captured by ‘the Nanny State’.’’

ABC chairman James Spigelman did the prospects of reform no favours. Last December he used the Human Rights Day oration to attack the proposed law for the sake of a single subsection which was, indeed, a potential curtailment of free speech. But, even on Human Rights Day, Spigelman offered none of his authority in support of the larger project, the much needed, well researched and well written reform that was the whole draft law.

Although the senate committee rightly rejected that single subsection, by then the horse had bolted. Spigelman was repeatedly quoted, and public debate was hopelessly skewed against the draft law. And the debate became burdened by other mischievous and ill-informed attacks, again ignoring the merits of reforming of an overly complex, underperforming system.

For example, it was mischievous of those, including Coalition senators and the Institute of Public Affairs, which damned the draft law for what it wrongly called its ‘‘reverse burden of proof’’. Those commentators have said nothing about the same mechanism that has existed for years in the Sex Discrimination Act itself, and in other laws such as the Fair Work Act and, before that, in WorkChoices.

And was it ignorance or mischief that led the Coalition senators to attack the draft law for using the same legal test for unlawful discrimination that is used in all existing federal, state and territory laws and has been for decades?

By the time the senate committee reported, a champion of the draft law, attorney-general Nicola Roxon, had resigned. Her successor Mark Dreyfus exhibited no enthusiasm for it, despite the committee’s endorsement. And co-sponsor of the reforms, Penny Wong, was silent.

Dreyfus’ reason for not pursuing the larger reforms is a spurious reference to balancing antidiscrimination laws with free speech. In light of the committee’s report, the draft law raises no so called ‘‘free speech’’ issues, and maintains exactly the same limits on racial vilification that now exist. The government has offered no plausible reason for not seeing through its promised reforms.

Introducing the reforms to the Parliament would of course have attracted opposition from, well, the opposition. But the Greens had supported the reforms in the Senate committee, and none of the independents had declared they were opposed; some had privately indicated their support.

In stark contrast to its determined pursuit of media reforms, the government has backed down on discrimination reforms even before there was a fight. Instead, it has merely given a new group of vulnerable people access to the same inadequate regime, and further compounded the compliance difficulties faced by business.

By abandoning the real reforms, the government has lost – for many years, perhaps – the opportunity for improvement. At the same time, it has turned its back on people who need real remedies for discrimination, and it has failed to deliver on its promise of lower regulation. It has wasted years of effort, resources and hope.

Simon Rice is a professor of law at the ANU College Of Law. 

This guest blog was also published as an opinion piece 
'Government gives up on discrimination reform' on 22 March 2013 in the Canberra Times.


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