Sharing the burden in the fight for equality

Joanna Shulman

In the absence of a human rights act, discrimination laws are our best shot at addressing inequality. This is by no means a small task. The Disability Discrimination Act ambitiously lists its aims as: the elimination of discrimination against persons on the ground of disability (in certain areas); to ensure that persons with disabilities have the same rights to equality before the law as the rest of the community; and to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community. 

In other words, the various federal discrimination acts attempt to correct the imbalance that exists between the oppressor and the oppressed. Discrimination law attempts to address stereotypes and change policies and processes that result in marginalisation. It aims to ensure that all Australians are entitled to ‘a fair go’. And it can be very effective - research shows that societies with strong equality laws are more socially cohesive and more productive.

So it is evident that discrimination law plays a vital role in ensuring that society as a whole benefits from the safeguarding of important rights. Yet, the very mechanism chosen to redress the various acts of discrimination that occur in our society does anything but facilitate a fair go. In fact, the mechanism is inaccessible both to those who can use it and to those who should.

Unlike the UK, Canada and US, only individuals (or their representatives) who have been discriminated against can make a complaint of discrimination to the Australian Human Rights Commission. This individual may not be the only person to experience the discrimination. The discrimination may be in the form of a broader policy or process that has a discriminatory effect on people with certain characteristics.

In other words, it is up to the individual alleging discrimination to take on society’s inequities, on behalf of all Australians - even where the discrimination is part of a policy or process that has broader implications for society. And we require these same individuals to bear the cost of doing so!

We need to also recognize the particular vulnerabilities of the individuals who have been discriminated against. These individuals have been treated negatively because of a particular attribute, be it race, disability, age or sex. This same attribute can mean that it is more difficult for the individual to assert their rights and complain of discrimination. Individuals are also reluctant to bring a discrimination complaint as they often want to maintain their relationship with the discriminator, particularly if it is an employer or education provider.

If a complaint is made to the Australian Human Rights Commission, it then requests the Respondent (the discriminator) to attend a voluntary conciliation. Conciliation can be a fraught process for the individual concerned, and often pitches an individual against a company or government entity (think David and Goliath.) Due to insufficient funding of advocacy and legal organisations, it is not unusual for an individual to turn up alone, or with a support person, to face a team of lawyers and executives.

If conciliation is not successful or does not occur, the only option is for the individual is to pursue a case through the Federal Courts, at their own cost. If they lose in court, the individual also needs to bear the legal costs of the other party. Our experience is that compensation offered in conciliation is generally very low, as are court awards in this jurisdiction. Therefore, the decision to litigate in a costs jurisdiction is made even more difficult when legal costs for the matter could easily be three or four times the potential compensation. In addition to costs considerations, there are other barriers to accessing justice within the current discrimination framework – for example, barriers to physical access, the psychological costs and the time commitment involved in pursuing litigation. Add in a disability, or a poor grasp of English and these barriers multiply.

It’s not surprising then that most discrimination cases settle, many on terms that do not reflect the seriousness of the discrimination, or which result in inadequate compensation to the complainant. It is also not surprising that these settlements do little to change discriminatory practices, particularly because respondents insist on settlements being confidential. Quite frankly, its cheaper for them to continue to discriminate, and pay small sums of money to silence an individual when they speak up about it, than it is to change their policies and processes to ensure that they are not discriminatory.

Two simple amendments, would assist in overcoming these barriers.  

Legislating for the adjudication of Federal discrimination complaints in a no costs jurisdiction, in line with state and territory discrimination tribunals, and discrimination provisions under the Fair Work Act. Indeed, the standard advice in Community Legal Centres to complainants is where possible, to choose the state over the federal discrimination system, in matters that are likely to be litigated.

And secondly, providing the Australian Human Rights Commission and advocacy associations with the standing to bring complaints of discrimination on behalf of individuals.  This would remove the burden from marginalised individuals to pursue complaints, and would assist in addressing systemic and repeat incidents of discrimination.

Advocates and lawyers have been arguing for these amendments for some time now. The consolidation and reform of discrimination legislation is our opportunity to share the burden of fighting for equality, amongst all of us who benefit from it.

For a further discussion of these issues, please take a look at the submissions prepared by a several community legal centers on behalf of the National Association of Community Legal Centres.    

Joanna Shulman is the CEO of Redfern Legal Centre and previously was the Principal Solicitor at the NSW Disability Discrimination Legal Centre. She teaches discrimination law at the University of Sydney and the University of New South Wales




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