Equality and Non-Discrimination Laws

The following content draws upon, in part, the Joint Australian NGO Coalition's fact sheets prepared for the Universal Periodic Review.

Consolidation of Equality Laws

Australia has enacted a number of laws to prevent discrimination, including the Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth), Sex Discrimination Act 1984(Cth) and the Age Discrimination Act 2004 (Cth). Together, these laws provide only piecemeal protection of the right to non discrimination.

Specifically, Australia's anti-discrimination laws are deficient in that they:

  • are reactive and complaints-based;
  • fail to actively promote equality or address systemic discrimination;
  • do not address all grounds of discrimination or intersectional discrimination. Under domestic law, sex, race, age and disability are all protected attribute. This is a narrower set of grounds that under international human rights treaties and does not include, for example, protection against discrimination on the grounds of sexual orientation, gender identity, religion or social status; and
  • are ineffective in areas that have been granted permanent exemptions, for example under the Sex Discrimination Act 1984 (Cth), sporting clubs, religious bodies and charities are permanently exempt from the operation of the Act.

The UN Human Rights Committee noted in their 2009 Concluding Observations on Australia that it "remains concerned that the rights to equality and non-discrimination are not comprehensively protected in Australia in federal law" and recommends that Australia "adopt Federal legislation, covering all grounds and areas of discrimination to provide comprehensive protection to the rights to equality and non-discrimination". The Committee on Economic, Social and Cultural Rights, and the Committee on the Elimination of Racial Discrimination have similarly recommended that Australia strengthen its anti-discrimination laws.

In April 2010, the Australian Government announced a commitment to "harmonise and consolidate Commonwealth anti-discrimination laws". Australia should use this opportunity to ensure that its equality laws meet the anti-discrimination and equality obligations articulated in its international obligations.

Constitutional Guarantee of Equality

The Australian Constitution does not enshrine the right to equality and non-discrimination. As a result, anti-discrimination laws may be overridden by subsequent legislation, as is the case with the Northern Territory Intervention laws.

What the UN Human Rights Council recommended in the Universal Periodic Review

In January 2011 Australia was reviewed by the UN Human Rights Council during the Universal Periodic Review (or UPR) (a process whereby the human rights performance of all UN member states is reviewed by other states).  In June 2011 Australia provided its response to the 145 recommendations made by the Human Rights Council.

The Government has accepted over 90 per cent of the recommendations and has committed to incorporating the recommendations it has accepted into the National Human Rights Action Plan.

 

In relation to Australia's equality and non-discrimination laws, the Human Rights Council made a number of relevant recommendations.   Australia has responded to these recommendations as set out in the following table.

Recommendation

Stance

Explanation

Implement measures to enforce anti-discrimination law on a national level according to international standards (recommendations 86.23, 86.41, 86.45 and 86.46).

Already reflected

Australia accepts the recommendation on the basis it is reflected in existing laws or policies and Australia will continue to take steps to achieve relevant outcomes.

Consider establishing an independent commissioner for children’s rights (recommendation 86.29).

Already reflected

Step up measures, such as human rights education in schools, to promote a more tolerant and inclusive society (recommendation 86.58).

Already reflected

Enact comprehensive legislation which consolidates Commonwealth anti-discrimination laws in a way which addresses all prohibited grounds of discrimination and promotes substantive equality (recommendations 86.42 and 86.44).

Accepted

The consolidation of federal anti-discrimination law into a single streamlined Act will enhance the regime and give effect to the Government’s commitment to prohibit discrimination on the grounds of sexual orientation and gender identity in addition to existing grounds of protection.

Adopt special legislation to prevent and combat violence against women and girls and to prosecute and punish the perpetrators (recommendation 86.73).

Accepted

States and Territories have in place legislation to criminalise violent conduct and sexual assault together with mechanisms to prosecute and punish perpetrators. The Australian Government has introduced legislation to prioritise the safety of children in family law proceedings and communicate that family violence and child abuse are unacceptable.

Take regular measures to prevent hate speech, including prompt legal action against those who incite discrimination or violence motivated by racial, ethnic or religious reasons (recommendation 86.98).

Accepted

The Australian Government will continue to administer a strong framework for the prevention of hate speech and incitement to violence.

Facilitate the provision of sufficient funding and staffing for the Human Rights Commission and different commissioners, including the recently appointed Commissioner against racial discrimination (recommendation 86.27).

Accepted

The Australian Government will continue to adequately fund the Australian Human Rights Commission. Australia recently announced funding for a standalone Race Discrimination Commissioner, in addition to the new position of an Age Discrimination Commissioner.

Strengthen Australia’s efforts to promote equality, non-discrimination and tolerance through the monitoring of racially motivated violence and inclusion of human rights education in school and university curriculum (recommendations 86.57).

Accepted

The Australian Government will continue to take steps to monitor racial violence. Discussions with States and Territories regarding human rights education will inform the development of the Australian Curriculum.

Take measures to ensure the equal and full enjoyment of the basic rights of all citizens and combat racial discrimination against minority communities, including Muslim communities and Indigenous communities (recommendations 86.59 and 86.60).

Accepted

Australia’s new multicultural policy includes a National Anti-Racism Partnership and Strategy, establishment of the Australian Multicultural Council, a ‘multicultural ambassadors’ program and a Multicultural Youth Sports Partnership Program.

Enhance the contacts and communication between Aboriginal and Torres Strait Islander communities and law enforcement officials, and enhance the human rights training of those officials (recommendations 86.95,  86.96 and 86.98)

Accepted

The Australian Federal Police and State and Territory police have a range of cultural awareness and human rights training in place. Additional human rights training will be delivered throughout the federal public sector including the AFP from 2011.

Fully implement the Racial Discrimination Act and the revision of federal laws to be compatible with the United Nations Declaration on the Rights of Indigenous Peoples (recommendation 86.24).

Accepted-in-part

The Racial Discrimination Act 1975 has been fully reinstated in relation to the Northern Territory Emergency Response as of 31 December 2010.

The Australian Government supports promotion of and respect for the principles in the Declaration on the Rights of Indigenous Peoples, and considers that current federal laws are consistent with the spirit of the Declaration.

Grant comprehensive protection to rights of equality and non-discrimination through the enactment of federal equality legislation (recommendation 86.42).

Accepted-in-part

The consolidation of federal anti-discrimination law into a single streamlined Act will enhance the regime and give effect to the Government’s commitment to prohibit discrimination on the grounds of sexual orientation and gender identity in addition to existing grounds of protection.

Establish a National Children’s Commissioner to monitor compliance with the Convention on the Rights of the Child (recommendation 86.28).

Accepted-in-part

The Australian Government is currently exploring a possible role for a national children’s commissioner.


Australia responded to more specific recommendations in relation to equality and non-discrimination for particular groups or communities, namely