News
HRLC releases submission to Government Discussion Paper
24 January 2012
On 24 January 2012, the Human Rights Law Centre released its submission in response to the Attorney-General department’s discussion paper on the consolidation of federal anti-discrimination laws. The HRLC’s submission, Realising the Right to Equality, recommends simplifying, strengthening and updating the law to ensure that Australia fulfils its human rights obligations under international law.
The HRLC’s submission calls on the Federal Government to ensure that the consolidated Act reflects, unequivocally, the aims of promoting substantive equality and eliminating discrimination, in line with Australia’s international obligations. The submission also calls for reforms that would actively promote equality and address structural discrimination. These include, for example, making explicit the duty to promote equality and eliminate discrimination. Also, clarifying the meaning of ‘special measures’ to ensure the definition reflects international law and to make it clearer that special measures are positive steps taken to help level the playing field for vulnerable and disadvantaged groups.
The submission makes the case that all people should be treated equally before the law and discrimination must be prohibited in all areas of public life. Gaps and loopholes in the current laws should also be closed. For example, arbitrary and outdated exemptions for religious bodies, clubs, partnerships (of any size) or voluntary work. Rather, all exceptions and exemptions should be assessed under a broad ‘general exceptions test’ which requires a principled and balanced assessment, on a case-by-case basis.
The submission also makes a number of key recommendations for strengthening protections and making the law more accessible, including:
The HRLC’s submission calls on the Federal Government to ensure that the consolidated Act reflects, unequivocally, the aims of promoting substantive equality and eliminating discrimination, in line with Australia’s international obligations. The submission also calls for reforms that would actively promote equality and address structural discrimination. These include, for example, making explicit the duty to promote equality and eliminate discrimination. Also, clarifying the meaning of ‘special measures’ to ensure the definition reflects international law and to make it clearer that special measures are positive steps taken to help level the playing field for vulnerable and disadvantaged groups.
The submission makes the case that all people should be treated equally before the law and discrimination must be prohibited in all areas of public life. Gaps and loopholes in the current laws should also be closed. For example, arbitrary and outdated exemptions for religious bodies, clubs, partnerships (of any size) or voluntary work. Rather, all exceptions and exemptions should be assessed under a broad ‘general exceptions test’ which requires a principled and balanced assessment, on a case-by-case basis.
The submission also makes a number of key recommendations for strengthening protections and making the law more accessible, including:
- simplifying the test for discrimination by removing unnecessary technicalities such as the ‘comparator test’ and clarifying the duty to make reasonable adjustments;
- sharing the burden of proof between the person bringing a discrimination complaint and the respondent;
- prohibiting harassment and vilification on the basis of an attribute protected by the Consolidated Act;
- expanding the list of protected attributes to include religion, criminal record, political opinion, nationality, industrial activity, family/carer responsibilities, homelessness, experiences of domestic/family violence and other relevant status; and
- ensuring that the definitions of ‘sex‘, ‘gender identity’ and ‘sexual orientation’ are defined broadly and protecting Intersex persons from discrimination;
- clarifying that intersectional discrimination, which is based on a mix of protected attributes, is also unlawful;
- relieving the some of the burden placed on individuals who bring discrimination complaints, for example, by reducing the risk of being ordered to pay a respondent’s legal costs; and
- strengthening the Australian Human Rights Commission’s powers, for example, by enabling it to inquire and investigate broader range of issues, make binding agreements, issue compliance notices and run cases before the courts.
If adopted, the HRLC’s recommendations would not only bring Australian law into line with our human rights obligations, it would also help build a more equal Australia, thereby reducing the financial and non-financial costs of discrimination.
