While the federal government has called only for a ‘consolidation’ of Commonwealth anti-discrimination laws, the review process provides an opportunity for us to rethink the framework of these laws and the conception of discrimination that underpins it. A dichotomy developed by Oxford equality law expert, Sandra Fredman, between fault-based and capacity-based models of anti-discrimination laws is a useful one for illustrating how the current Commonwealth laws operate and their weaknesses. Comparing the Australian laws with equivalent laws in the United Kingdom and Canada highlights how regulation overseas has matured and kept pace with the changing conception and phenomena of discrimination while the Australian laws have lagged behind in fundamental ways.

The Fault and Capacity-Based Approaches

Different conceptions of discrimination naturally prompt different models of regulatory response. All three countries – UK, Canada and Australia - started with a narrow conception of discrimination and correspondingly limited legal mechanisms to address the problem. 

Discrimination was originally understood only as intentional or reckless conduct of misguided or biased individuals. This narrow understanding of discrimination underpins a fault-based model of regulation whereby tort-like laws prohibit the aberrant conduct and hold individual perpetrators to account. Those found to be at fault are required to provide redress to the victims. Under this approach of regulating equality, three things are assumed: that discrimination is an unusual occurrence, carried out as an individual act, and the act harms an identifiable victim. The focus is on discrimination as a wrongful act that inhibits equality and thus must be regulated.

Alternatively, if discrimination is defined more widely to also include all barriers to equality that are built into rules and criteria, practices and the environment, a regulatory response that looks for a person at fault before anything is to be done to address the problem would be misguided. Under this wider conception of discrimination, the most useful questions might not be about fault, blame or wrong-doing but about capacity – who is in the best position to do something about the problem and how much should they do? Evidence of inequality would trigger a duty to take action to address inequality rather than a search for a particular perpetrator. In this capacity-based model of regulation, the focus is on inequality rather than discrimination and responsibility for addressing inequality is widely shared.

Both the UK and Canada have moved beyond the narrow conception of discrimination and their original fault-based regulatory approaches. Although they have used different mechanisms, outlined below, these countries have both developed their original tort-style complaints mechanisms in a way that reflects Fredman’s capacity-based approach. In comparison, Australia’s laws have never really matured.

Australia – Relying on the Fault-Based Approach

Australia’s anti-discrimination laws epitomise Fredman’s fault-based model. The laws prohibit discrimination on specific grounds and characterise discrimination perpetrated by individuals as a wrong, providing victims with a tort-like right of complaint. Orders can be made compelling the discriminating employer or service provider to compensate a victim but only after the harm has been done and the victim has proven that the employer or service provider caused the harm.

Australian anti-discrimination laws largely impose a negative duty on employers and service providers not to discriminate but no other obligations. Under this system, there is little pressure on duty-holders to address discrimination proactively and the pressure is  minimised by the complexity of the definitions of discrimination, the heavy burden of proof for complainants, and the enforcement structure under which the entire onus for bringing a discrimination complaint rests on the individual. For those who risk the cost and time of litigation, many victims are unable to establish discrimination and for those that do, courts usually award compensation despite the availability of wider, systemic remedies.

Under the current laws, exclusionary barriers that are embedded, systemic and part of the normalised environment are not characterised as discrimination and thus go unchallenged and unchanged.

Canada and the United Kingdom – the Capacity-Based Approach

How are the laws different in Canada and the UK? There is not scope here to canvass each system entirely but we can identify key features which illustrate how they have both shifted from a strictly fault-based approach to a capacity-based approach which reflects a broader conception of discrimination and more widely shared responsibility for addressing it.

The Canadian anti-discrimination laws look similar to Australia’s in that they essentially establish a complaints-based framework. However, this complaints-based framework has developed in key ways that distinguish it from the Australian model and reflects an understanding of discrimination as being more than an individual act for which only an individual perpetrator should be held responsible.

We have identified three key features of that system which indicate the shift to a capacity-based approach. First, the complainant does not bear a heavy burden in proving discrimination but is only required to show a prima facie case before the burden shifts to the respondent to establish a justification or defence. This small but very significant feature of the rule against discrimination says that discrimination is not unusual or unlikely but is pervasive and likely and can be subtle, so time and energy need not be spent by victims trying to prove discrimination; it can be presumed from evidence of inequality. Second, the obligation to provide reasonable accommodation or adjustments requires duty holders under the Canadian Human Rights Act RSC 1985, c H-6 to make accommodation up to the point of ‘undue hardship’ in respect of all protected groups and it applies in respect of both direct and indirect discrimination. Third, in the case of Meiorin, the Supreme Court of Canada adopted a ‘unified’ test for discrimination which erases the legal distinction between direct and indirect discrimination. In its unanimous judgement, the Court described the distinction as ‘chimerical’, ‘vague’, ‘difficult to justify’ and ‘unrealistic’. Among other things, this change assists complainants by removing a complex and almost arbitrary distinction from the challenges complainants face in enforcing their right to be free of discrimination in whatever form it manifests. 

The UK has also maintained an individual complaints-based model but, recognising the inherent limitations of this approach, it introduced complementary positive duties on public authorities to promote equality across a range of attributes. In addition to the duty not to discriminate public authorities are now also required to audit their policies and procedures to assess their impact on equality, revise them if necessary and produce an ‘equality scheme’ in conjunction with stakeholders and affected groups that explains how they will meet their obligations. The Equality and Human Rights Commission possesses a range of escalating sanctions which it uses to enforce the duty, starting with encouraging voluntary compliance and, ultimately, judicial enforcement and punitive sanctions. The clear benefit of positive duties is they move to an anticipatory, action-oriented capacity-based approach. Positive duties do not rely on an identified act of unlawful behaviour to activate them, nor are they hindered by the tangled definitions of discrimination. The responsibility for addressing discrimination is shared by bodies capable of foreseeing the impact of their actions and policies on particular groups.

Moving to a Capacity-Based Approach in Australia

This overview of Canada and the United Kingdom shows that these countries agree in principle upon a capacity-based approach and have introduced measures appropriate to that country’s circumstances for achieving this. While we cannot simply transplant either approach into Australia, we need to acknowledge that the fault-based approach which we have reflects an outdated, narrow understanding of discrimination and has failed to adequately address inequality.  We need to develop more effective mechanisms which move beyond this approach. The federal government’s current review and consolidation project presents a unique opportunity to reform our anti-discrimination laws and move beyond the fault-based approach. As we all develop proposals and responses to the government’s Discussion Paper, it might be helpful to ask whether a proposal moves us beyond the narrow definition of discrimination and questions of who’s at fault. Unless we expand the conception of discrimination to include all barriers to equality and develop better legal mechanisms to extend responsibility for promoting equality, Australia will continue to lag behind. 

Dr Belinda Smith teaches law at the University of Sydney and Dr Dominique Allen teaches law at Deakin University. Both authors have written extensively about anti-discrimination law in Australia and researched anti-discrimination laws in comparable countries. For more information about the fault and capacity-based approaches, please contact the authors directly.