Law Reform Advisory Council
Review of the ACT Discrimination Act 1991
Submission of the ACT Human Rights and Discrimination Commissioner
June 2014
Objects of the Discrimination Act
1. Should the objects of the Discrimination Act be amended? If so, how? For example, should they
recognise certain inequalities; should they refer to substantive equality; should they recognise the
right to equality; should they require beneficial interpretation?
As the Consultation Paper observes, the objects of an Act provide a snapshot of the central concerns
at the time an Act was passed. In the current objects, there is a strong emphasis on achieving equality
between men and women, and addressing sexual harassment. This is because gender equality,
particularly in the workplace, and the need for women in particular to be able to work in an
environment free from sexual harassment (with women being more likely to experience such
treatment) were prominent issues at the time the Act was drafted. These issues remain important to
the ACT community. However, since the Act was drafted, there has also been a significant amount of
work done to highlight and address other inequalities in our community.
Recent consultation by the Children and Young People Commissioner with school children around the
ACT has highlighted the ongoing importance of the Discrimination Act, and the objects for which it
stands. I believe that strengthening and broadening the objects is an important and timely
amendment given the evolution of equality concepts as evidenced by developments in this, and other
jurisdictions. Nonetheless, I and my Commissioner colleagues continue to advocate that community
education retains an important place alongside the law in promoting equality and encouraging people
to change discriminatory attitudes and behaviour.
The current objects refer to the principle of ‘equality of opportunity’, which is a way of achieving what
is known as ‘formal equality’. This means creating a situation where the same rules apply to
everyone, in an attempt to be equal. It is now recognised that simply treating everybody in the same
way, or providing the same opportunities to all, will not achieve an equal outcome because some
people start from a more disadvantaged or marginalised position than others. A more relevant
concept is that of ‘substantive equality’, which encompasses the idea that it may be necessary to
provide reasonable adjustments or take special measures (which is already reflected in s.27 of the Act)
that recognise past disadvantage, in order to achieve true equality. A change to the objects could also
reflect a broader area of protected attributes. The Equality Act 2010 (UK) has adopted this approach,
recognising ‘the desirability of reducing socio-economic inequalities’.
I propose to extend the objects of the Act to better reflect the range of protections required to
achieve equality for all, and the more modern concept of ‘substantive equality’. The objects should
also specifically state that this is ‘beneficial’ legislation. This means that because the Act is designed
to provide a benefit, if there is an ambiguity about the way it is to be interpreted, the meaning that
best provides that benefit should be adopted.
1
The Human Rights Act 2004 (HR Act), the first comprehensive human rights legislation in Australia, has
strengthened the legal foundation of equality and non-discrimination in the ACT. In particular, s.8 of
the HR Act sets out the guarantee of ‘recognition and equality before the law’. It specifies that
‘everyone has the right to equal and effective protection against discrimination on any ground’.
Section 30 of the HR Act requires that all ACT laws must be interpreted in a way that is consistent with
this ‘equality right’ (and any other relevant rights) wherever possible.
The Victorian Scrutiny of Acts and Regulations Committee in 2009 recommended that the objectives
of the equivalent legislation in Victoria include that an objective of the Act is to ensure protection
from discrimination to the greatest extent possible consistent with the rights in the Victorian Charter
of Human Rights and Responsibilities.1 The subsequently passed Equal Opportunity Act 2010 has an
‘objectives’ section that reflects these principles and provides a useful comparison, as Victoria is the
only other Australian jurisdiction that has both anti-discrimination and human rights legislation.
Accordingly, I propose that the objects be amended to reflect that the Act aims to:




Eliminate discrimination, harassment, vilification and victimisation in all areas of public life;
Encourage the identification and elimination of systemic causes of discrimination, harassment,
vilification and victimisation;
Further promote and protect the right to equality set out in the Human Rights Act 2004
Promote and facilitate the progressive realisation of equality, as far as reasonably practicable,
by recognising thato Discrimination can cause social and economic disadvantage and that access to
opportunities is not equitably distributed throughout society;
o Equal application of a rule to different groups can have unequal results or outcomes;
o The achievement of substantive equality may require the making of reasonable
adjustments and reasonable accommodation and the taking of special measures.
Defining discrimination
2. Should the definition of discrimination be amended in any way? If so, how? For example, should it
be defined to make it clear that direct and indirect discrimination are not mutually exclusive, or to
remove the distinction altogether?
I am aware of recent discussion nationally about amending the traditional definitions of discrimination
to remove the distinction between direct and indirect discrimination. While I appreciate the
motivation for such an approach, I have yet to see a practical example of how such a definition has
been adapted into legislation. Further, I believe the ACT’s current focus on unfavourable treatment, as
opposed to ‘less favourable’, already provides an improved definition compared to other jurisdictions.
The test of ‘less favourable’ tends to require a comparison of the way the aggrieved person was
treated against the treatment of another person. The test of ‘unfavourable treatment’ requires no
such comparator.
Although many jurisdictions both in Australia, and internationally, rely on tests of discrimination which
set up this dichotomy of ‘direct’ and ‘indirect’ discrimination,2 I accept that the distinction can be
conceptually difficult for parties to complaints, and sometimes even for decision makers. The problem
1
Scrutiny of Acts and Regulations Committee, Victoria, Exceptions and Exemptions in the Equal Opportunity Act 1995
(2009), 7 Recommendation 1; Charter of Human Rights and Responsibilities Act 2006 (Vic).
2
See for example Equality Act 2010 (UK) Pt 2, Chp 2.
2
in determining which type of discrimination is applicable in a particular matter has led to complainants
pleading both types, adding to the complexity of complaints. It has also led to lengthy and complex
litigation about whether or not ‘direct’ and ‘indirect’ discrimination are mutually exclusive.3
A Roundtable meeting of discrimination law experts concluded that the distinction between direct and
indirect discrimination has shown itself to be unworkable and recommended the adoption of a
streamlined statement that avoids a mutually exclusive distinction between direct and indirect
discrimination.4 The Roundtable proposed that a single definition could make both understanding of,
and compliance with, the law easier. The definition of discrimination proposed in that report was
based on the International Labour Organisation Convention 111, which appears in s 3(1) of the
Australian Human Rights Commission Act 1986 (Cth)), and the Convention on the Elimination of All
Forms of Discrimination against Women, and is as follows:
Discrimination includes
(a) any distinction, exclusion, preference, restriction or condition that is made on the
basis of a protected attribute which has the purpose or effect of, and
(b) any condition, requirement or practice that has or may have the effect of
impairing or nullifying the recognition, enjoyment or exercise, on an equal footing, of
equality of opportunity or treatment.5
As the Roundtable noted, this definition of discrimination clearly encompasses, in an inclusive
approach, what has been known as direct and indirect discrimination, and reflects the wording of
s.5(2) of the Sex Discrimination Act 1984. However, the Roundtable did not explicitly recommend the
above proposed definition, and I believe this demonstrates the practical challenge of implementing
such a change. While I would welcome further consideration of this issue, at this stage I would favour
retention of both direct and indirect discrimination based on unfavourable (not less favourable)
treatment.
3. Should the definition of discrimination be amended to include conduct on the basis of more than
one attribute?
The Discrimination Act could define discrimination to include reference to one or more attributes, or a
combination of attributes. This approach was taken in the Exposure Draft of the Commonwealth’s
Human Rights and Anti-Discrimination Bill. Further, it is the approach in a number of other
jurisdictions. In Canada, for example, discrimination includes conduct ‘based on one or more
prohibited grounds of discrimination or on the effect of a combination of prohibited grounds’.6
I note this would be a minor amendment to the current approach in s.4A that the discriminatory
reason doesn’t need to be the dominant or substantial reason for doing an Act. Defining
discrimination to include reference to one or more attributes would reduce the need for complainants
to make multiple complaints when they cannot easily or accurately attribute the discriminatory
conduct to one single attribute. In practice complainants tend to use only one complaint form where
there are multiple attributes and events over time. In addition I note that any difficulty here could be
3
See for example, Judith Edgeley v Federal Capital Press of Australia Pty Limited [1999] ACTSC 95 (1 October 1999);
Edgley v Federal Capital Press of Australia Pty Limited [2001] FCA 379.
4
Discrimination Law Experts’ Roundtable, Report on Recommendations for a Consolidated Federal Antidiscrimination
Law in Australia, (29 November 2010, as updated 31 March 2011), 7 Recommendation 2.
5
Ibid.
6
Canadian Human Rights Act (R.S.C., 1985, c. H-6) s 3.1.
3
eased by reversing the onus of proof, i.e. the respondent would need to show treatment was not done
for a discriminatory reason. I discuss this further below at Q56.
4. Should a duty to make reasonable adjustments to accommodate the needs of a person with a
disability be made explicit in the Discrimination Act?
I support an amendment to the Discrimination Act making the duty to make reasonable adjustments
to accommodate the needs of a person with a disability explicit.
Jurisprudence in the ACT suggests that unlawful discrimination will occur where a person does not
make ‘reasonable adjustment’ for a person with a disability in certain areas of public life.7 In 2009 the
Commonwealth amended the Disability Discrimination Act 1992 to explicitly include this
requirement.8 However, the ACT Discrimination Act does not currently expressly include this
requirement. While a duty to make reasonable adjustments to accommodate the needs of a person
with a disability may be inferred through the operation of, for example, s.49(1)(b) of the
Discrimination Act, this is somewhat unclear.
As the Consultation Paper notes, amendment of the ACT Discrimination Act to include an express duty
to make reasonable adjustments to accommodate the needs of a person with a disability would not
mean any major change to the existing law, but would bring greater certainty and clarity to this issue,
and would harmonise ACT discrimination law with Commonwealth law. I believe that this is
particularly important as the ACT is a human rights jurisdiction.
5. What factors should be considered when assessing the reasonableness of adjustments?
In Victoria, the reasonableness of an adjustment is decided having regard to ‘all relevant facts and
circumstances’. This includes factors such as:
 The person's circumstances and the nature of their disability;
 The nature of the required adjustment;
 The financial circumstances of the employer or service provider and the effects on the service
provider of making the adjustment;
 The number of people who would benefit from or be disadvantaged by the adjustment; and
 The consequences for the employer or service provider and the person of making the
adjustment.9
The factors noted in Victoria’s 2010 Equal Opportunity Act aimed at assisting the assessment of what
constitutes a ‘reasonable’ adjustment are a useful mechanism bringing greater clarity. Indeed, under
that legislation, an education authority is not required to make reasonable adjustment if they are
complying with the Federal Disability Standards for Education.10 In principle I support this approach.
7
In Couper v ACT Housing [2004] ACTDT 4 (22 June 2004) the former ACT Discrimination Tribunal recognised the
existence of an implied positive duty to make adjustments, to accommodate disability in order to avoid a finding of
discrimination in areas of public life, other than employment.
8
Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth) s 17, inserting s 5(2) into the
Disability Discrimination Act 1992 (Cth).
9
See Equal Opportunity Act 2010 (Vic) ss 9(3), 17(2), 19(2), 20(3), 22(2), 32(2), 33(3), 45(3) and 58(2).
10
Equal Opportunity Act 2010 (Vic) s 40(4).
4
When assessing the reasonableness of adjustments a harmonised approach between Commonwealth
and State and Territory levels is both appropriate and desirable.
However, I have some concerns that the Federal Disability Standards for Education has been
interpreted in a restrictive manner, and one inappropriate for the ACT when taking into account the
ACT’s status as a human rights jurisdiction with an explicit right to education since 2012.11 In Walker v
State of Victoria [2012] FCAFC 38, the Full Court affirmed the decision of Tracey J in Walker v State of
Victoria [2011] FCA 258, which held that the standard grants educational authorities a broad
discretion about what adjustments are required.12 Further, while the Standards require that a school
consult with a student or his or her parents, the Court was not clear as to how extensive such
consultation must be.13 On this basis, I submit that the Federal Standards may better be used as a
component or factor to be taken into account when assessing the reasonableness of adjustments,
rather than used as a complete defence. This is consistent with the fact that the ACT is a human rights
jurisdiction. This issue aside, the Victorian legislation appears to provide a useful model.
6. Should such a duty exist to accommodate the needs of people based on other attributes, such as
age, sex and carer’s responsibilities?
In the interests of substantive equality, an express and positive duty to accommodate needs
associated with any protected attribute should be placed on employers and ACT Public Authorities.
While this will extend the obligations on employers and Public Authorities, it will not affect service
providers or other organisations.
I note that s.24 of the Northern Territory Anti-Discrimination Act provides that ‘a person shall not fail
or refuse to accommodate a special need that another person has because of an attribute’, subject to
a reasonableness test. This may be a useful starting point in framing a positive duty on employers and
ACT Public Authorities to accommodate the needs of people based on any protected attribute.
I have long argued that a positive duty to accommodate the needs of people based on their family
responsibilities should be imposed on employers. In the Commission’s submission to the then Human
Rights and Equal Opportunity Commission’s 2005 Striking the Balance Inquiry, made on behalf of most
members of the Australian Council of Human Rights Agencies’, I noted:
[T]he number of inquiries and complaints being received by agencies on the ground of
carer/parental status indicates that there is some way to go before employers fully
understand their obligations to accommodate family responsibilities at work. It may
also suggest that people are becoming more assertive of their need to have their family
responsibilities reasonably accommodated at work, even though their rights in this
regard remain inadequately protected.14
An express and positive duty on employers and ACT Public Authorities to accommodate the needs of
pregnant women in the workplace is also urgently required. Pregnancy in the workplace is a significant
11
Human Rights Act 2004 (ACT) s 27A; inserted by Human Rights Amendment Act 2012 (ACT) s 6. This right came into
force on 1 January 2013.
12
Walker v State of Victoria [2012] FCAFC 38, [86] affirming Walker v State of Victoria [2011] FCA 258, [284].
13
On the facts the Court held that consultation was extensive, so did not address this point. See Walker v State of Victoria
[2011] FCA 258, [285].
14
ACT Human Rights Office, Submission to the Human Rights and Equal Opportunity Commission ‘A Territory and State
human rights agencies response to HREOC Discussion Paper “Striking the Balance: Women, Men, Work and Family”’, 17
October 2005, 10.
5
obstacle to the equal participation of women in the workforce. The Commission’s submission to the
then Human Rights and Equal Opportunity Commission’s Striking the Balance inquiry also noted that:
A common concern for participants in this submission is the continuing high rates of
pregnancy discrimination, which is a disturbing indicator of the attitudes and barriers
that confront workers with young families. As one Commissioner noted ‘it is
disheartening that some employers fail to recognize the fundamental rights of pregnant
workers which have been enshrined in law for so many years….This kind of
discrimination remains one of the ongoing obstacles to the equal participation of
women in the workforce’.15
The Australian Human Rights Commission has found that this still remains an issue. In a 2014 Report,
the Commission found that one-in-two mothers reported experiencing discrimination in the
workplace at some point during pregnancy, parental leave or on return to work. 16
Other attributes, such as race, are also relevant in this context. It is reasonable that employers and
ACT Public Authorities provide health and safety and other information to employees in languages
other than English, if required.
These are just illustrative examples, and it is likely that similar examples could be found for all
protected attributes.
7. Should harassment and vilification be included as conduct that is prohibited in relation to the
same attributes as discrimination?
I believe that the Discrimination Act should be amended to make it unlawful to vilify someone on
more grounds than is currently the case. The most extensive reform would be to make vilification
unlawful on the basis of any attribute protected by unlawful discrimination under the Act, as is the
case, for example, under s.19 of the Tasmanian Anti-Discrimination Act 1998. The Tasmanian
legislation provides:
s 19. Inciting hatred
A person, by a public act, must not incite hatred towards, serious contempt for, or
severe ridicule of, a person or a group of persons on the ground of –
(a) The race of the person or any member of the group; or
(b) Any disability of the person or any member of the group; or
(c) The sexual orientation or lawful sexual activity of the person or any member of the
group; or
(d) The religious belief or affiliation or religious activity of the person or any member of
the group.
However, I believe that further community consultation may be necessary for such a change, including
consideration to determine if the same thresholds, tests and exceptions are used for all forms of
vilification. Targeted exceptions may be a simpler option, as different thresholds and tests for
vilification based on specific attributes may cause confusion for the community.
15
Ibid 9.
Australian Human Rights Commission, National Review on Discrimination Related to Pregnancy, Parental Leave and
Return to Work: Headline Prevalence Data (April 2014), 4.
16
6
Alternatively, a more moderate approach would be to add some, but not all, of the currently
protected attributes. I submit that disability is one in particular that should be added as a ground of
vilification as a priority, which would extend the current ground of HIV/AIDS status. Enquiries to the
Commission since I became Commissioner a decade ago reveal that at times the disability community
is subjected to unfair vilification.
Recent instances of religious vilification in Canberra, for example the attack on the Canberra Islamic
Centre, may indicate other possible areas of need. The Commission has previously encountered some
difficulties when responding to complaints about discrimination on the basis of racial vilification. 17
This could be ameliorated either by including religious vilification under the Discrimination Act
(perhaps subject to a different threshold, test or exception), or by clarifying the definition of ‘race’
under the Act.
I note that the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (which became the
Racial Hatred Act 1995 (Cth) and introduced Part IIA of the Racial Discrimination Act) states:
The term “ethnic origin” has been broadly interpreted in comparable overseas common
law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and
Mandla v Dowell Lee [1983] 2 AC 548 (HL) per Lord Fraser at p.562). It is intended that
Australian courts would follow the prevailing definition of “ethnic origin” as set out in
King-Ansell...
The term “race” would include ideas of ethnicity so ensuring that many people of, for
example, Jewish origin would be covered. While that term connotes the idea of a
common descent, it is not necessarily limited to one nationality and would therefore
extend also to other groups of people such as Muslims.18
Although no Australian decision has conclusively held whether ‘race’ extends to Muslim or Jewish
people,19 both New South Wales and Tasmania have amended their anti-discrimination legislation so
as to explicitly include these groups. In each state’s Act, ‘race’ is defined as including ‘ethnic, ethnoreligious or national origin’.20 In introducing the Anti-Discrimination (Amendment) Bill 1994, which
expanded the definition, Chris Hartcher made the purpose behind the amendment clear:
The effect of the latter amendment is to clarify that ethno-religious groups, such as
Jews, Muslims and Sikhs, have access to the racial vilification and discrimination
provisions of the Act. ...
...extensions of the Anti-Discrimination Act to ethno-religious groups will not extend to
discrimination on the ground of religion.21
I would support an amendment in the same terms for the ACT Discrimination Act.
See for example, Advice Regarding ‘Anti-Islamic cartoons’ from Dr Helen Watchirs, ACT Human Rights and
Discrimination Commissioner to Dr Helen Szoke, Commonwealth Race Discrimination Commissioner, 29 February 2012,
1.
18
Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 2-3.
19
Note that in Miller v Wertheim [2002] FCAFC 156 the Full Court favourably cited King-Ansell v Police [1979] 2 NZLR
but did not find it proven on the facts.
20
Anti-Discrimination Act 1977 (NSW) s 4; Anti-Discrimination Act 1998 (Tas) s 3.
21
New South Wales, Parliamentary Debates, Legislative Assembly, 12 May 1994, 2464 (Chris Hartcher).
17
7
Positive duties
8. Should the Discrimination Act impose a positive duty to promote equality? If so, on whom?
I support amending the Discrimination Act to impose a positive duty to promote equality on both the
public and private sectors. However, as a first step, I believe that this broader duty should apply only
to Public Authorities. This is consistent with the right to equality obligations placed on ACT Public
Authorities under Part 5A of the Human Rights Act.
In 2008, the Commission released the research paper ‘Mainstreaming Equality in the ACT’ which
advocated adding a statutory positive duty to prevent discrimination and promote equality as a more
effective mechanism to achieve systemic change. The paper reviewed the various jurisdictions that
have adopted such positive duties and favoured a particular model adopted in the United Kingdom. As
the Paper noted:
All existing Australian discrimination law prohibits discrimination on listed grounds.
Those laws are ‘negative’ because they create a duty not to discriminate. ‘Positive’
duties require duty-bearers to act, an equality duty might for example, require dutybearers to promote equality.22
The Discrimination Act’s primary focus is on prohibiting discrimination rather than requiring positive
duties.23 Aside from the Commission’s own-motion inquiry power, the Act is a ‘complaints led’ model
that applies once a complaint has been received. Legislation that depends on complaints is only as
powerful as the people who rely on it. Victims of discrimination often come from the most vulnerable
groups in society, while those responsible for discrimination can be well-financed, experienced
litigants. Positive duties shift the responsibility to implement discrimination law to duty-bearers,
reducing the burden on victims.
Placing a positive duty on public bodies to prevent discrimination and promote equality would be
consistent with emerging international trends, as noted, for example over a decade ago by the
International Labour Office in 2003.24
The Discrimination Law Experts’ Roundtable Report noted that current anti-discrimination legislation
relies on individual complainants to identify and challenge discriminatory conduct.25 This model of
legislation is over 40 years old and appears to have had only limited success in reducing discriminatory
conduct.26 The difficulty in proving allegations in situations where there are frequently no witnesses
can discourage victims of discrimination from pursuing a remedy, and can encourage perpetrators to
maintain their behaviour with impunity until and unless ‘caught’. As the Roundtable noted:
Australia is lagging behind comparable jurisdictions in complementing the individual
complaints-based model with an active approach to bring about systemic change. This
is a move from a fault-based model to a capacity-based model which requires those
22
Gabrielle Szabo, Mainstreaming Equality in the ACT: An Equality Duty for the ACT Discrimination Act, ACT Human
Rights and Discrimination Commission Report (October 2008) 10 (emphasis in original).
23
Notwithstanding the decision in Couper v ACT Housing [2004] ACTDT 4 (22 June 2004) discussed above at n 7.
24
International Labour Office, Time for Equality at Work: Global Report under the Follow-up to the ILO Declaration on
Fundamental Principles and Rights at Work (International Labour Conference, Geneva, 91st sess, 2003, Report I (B)) xii.
25
Discrimination Law Experts’ Roundtable, above n 4, 24.
26
The Commissioner has traditionally received approximately 100 discrimination complaints per year: See Act Human
Rights Commission, Annual Report 2012-2013 (2013), 58.
8
with the capacity to address inequality to do so. ...This commonly takes the form of a
positive duty to promote equality.27
The Roundtable position, which I support, was that it would be preferable that a positive duty cover
both public and private sectors, as in the Victorian Equal Opportunity Act 2010, but as a first step the
broader duty should apply only to Public Authorities.28 A positive duty on ACT Public Authorities would
include mandatory reporting on progress towards defined equality goals. Such an obligation would be
consistent with the right to equality obligations placed on Public Authorities under the HR Act.
A narrower duty could be made explicit for private sector bodies in the same way as is done by s.15 of
the Equal Opportunity Act 2010 (Vic). To ensure the success of such a measure, resources of the kind
used by Fair Work Australia would be required, to educate the public about anti-discrimination
obligations. A positive duty must be enforceable, as is the case under the Victorian Equal Opportunity
Act 2010, which enables the Victorian Commission to investigate and act on possible serious breaches
which are likely to affect a class or group of people. I will discuss this point further in relation to Q50.
Areas of discrimination
9. Should the coverage of the Discrimination Act be changed in any way? If so, how should it be
changed? For example, should the Act prohibit discrimination in all areas of life with an exception
for private conduct?
In principle I support an amendment to the Discrimination Act to prohibit discrimination in all areas of
life with an exception for private conduct. This is the approach taken in the Commonwealth Racial
Discrimination Act,29 Victoria for racial and religious vilification,30 and in Queensland for sexual
harassment.31 It is also the approach taken for discrimination generally in the now lapsed Exposure
Draft of the Commonwealth Human Rights and Anti-Discrimination Bill.32
I agree that providing that the Discrimination Act applies generally rather than in certain defined
circumstances will increase clarity in the law. It will also harmonise the Discrimination Act with other
laws that regulate people’s conduct, such as criminal law and torts.
A recent decision of VCAT highlights the problem in existing anti-discrimination legislation, and
emphasises the need for reform along these lines. In Bakopoulos v Greek Orthodox Parish of Mildura
(Human Rights),33 VCAT dismissed a claim of discrimination for the refusal of a parish to grant financial
membership to a female congregant because there was no area in the Equal Opportunity Act that
applied to the nature of her claim. The Committee of the Parish unanimously rejected Ms Bakopoulos’
application for financial membership of the Parish. No reason was provided for the rejection, but Ms
Bakopoulos claimed that she was informed verbally in discussion with one of the Trustees that
‘women are not permitted on the committee’. Ms Bakopoulos claimed that she fulfilled the
membership criteria and noted that there had never been a woman allowed membership of the
Parish.
Discrimination Law Experts’ Roundtable, above n 4, 24.
Ibid 25.
29
Racial Discrimination Act (Cth) s 18C(1).
30
Racial and Religious Tolerance Act 2001 (Vic) s 12.
31
Anti-Discrimination Act 1991 (Qld), Chap 3, ss 117-120.
32
Exposure Draft, Human Rights and Anti-Discrimination Bill 2012 (Cth) s 22(1).
33
[2014] VCAT 323 (26 March 2014).
27
28
9
Ms Bakopoulos was required to prove on the balance of probabilities that she had been discriminated
against on the basis of one or more of the attributes set out in the Act, in one or more of the areas set
out in the Act. Ms Bakopoulos’ claim was argued as direct discrimination on the basis of her sex in the
area of goods and services. However, the Tribunal did not accept that Ms Bakopoulos’ claim fell within
the area of ‘goods and services’. Although religious or spiritual services is included in the definition of
‘services’, the Tribunal held that Ms Bakopoulos’ claim was that she was denied ‘the opportunity to
become a participant in the governance arrangements of the Parish’, rather than to receive or
participate in a religious or spiritual service: ‘It was the right to be a member, not the right to receive a
service’.34
The Tribunal held that ‘clubs’ was the area most closely associated with Ms Bakopoulos’ claim.
However, as a liquor licence was a prerequisite to the definition of a club and the Parish did not hold a
liquor licence, her claim did not fall within this area either. Accordingly, the Tribunal dismissed her
claim without examining its merits, because it did not fall within any of the areas in which
discrimination is prohibited under the legislation.
This decision highlights the fundamental issue with the current law, which could be resolved through a
new approach that renders any discriminatory conduct other than in private unlawful. However, there
may need to be further consideration about the extent of this new coverage, and whether exceptions
need to be revisited.
10. If the current specified areas of coverage are retained, are there new areas that should be
covered, such as sport, government functions and the conduct of competitions (such as a talent
quest or film festivals)?
While in principle I support an amendment that would presumptively prohibit discrimination in all
areas of life with an exception for private conduct, if the current specified areas of coverage are
retained, some additional areas could be addressed to increase the coverage of events occurring in
public life.
Sport
Currently, discrimination in sport is covered by the Discrimination Act under ‘goods services or
facilities’, and by an exception for aspects of sporting activity. Alarmingly, the voluntary body’s
exception under s.50 of the Discrimination Act effectively wipes out discrimination law protections
unless the sporting activity is conducted by a club holding a liquor licence, or for profit. In some other
anti-discrimination legislation sport is specifically referred to as an area of public life. Explicitly
including ‘sport’ as an area of public life in its own right would improve understanding of the scope of
the law.
Victoria and the United Kingdom both prohibit discrimination on the basis of sex (and gender identity
in Victoria) in relation to sport. However, both jurisdictions provide an exception, permitting exclusion
from a sporting activity in which the strength, stamina or physique of competitors is relevant.
In a recent survey, 292 ACT residents who identify as LGBTI reported their experiences with
discrimination in sport.35 Over 35% of the respondents identified as not being ‘out’ about their
34
35
Bakopoulos v Greek Orthodox Parish of Mildura (Human Rights) [2014] VCAT 323 (26 March 2014) [20].
Sport and Recreation Services, Inclusive Sport Survey, ACT Government (April 2014).
10
sexuality, or being transgender or intersex.36 More alarmingly, some respondents discontinued their
involvement in sport due to the fear of being bullied,37 and 34% reported that they had experienced
sexism in sport.38 Additionally, 32% reported experiencing verbal homophobia and 4% reported
experiencing physical assault. These figures demonstrate the need for an amendment to the
Discrimination Act that protects the gender identity of all ACT residents in sport.
Part 4, Division 7 of the Equal Opportunity Act 2010 (Vic) makes it unlawful to discriminate against
another person in sport. Section 70 provides a number of relevant definitions:



competitive sporting activity includes any exhibition or demonstration of a sport, but
does not include— (a) the coaching of people engaged in a sporting activity; or (b) the
umpiring or refereeing of a sporting activity; or (c) the administration of a sporting
activity; or (d) the non-competitive practice of a sport;
participating in a sporting activity includes— (a) coaching people involved in a sporting
activity; (b) umpiring or refereeing a sporting activity; (c) participating in the
administration of a sporting activity;
sport and sporting activity include game and pastime.
Under s.71, a person must not discriminate against another person – (a) by refusing or failing to select
the other person in a sporting team; or (b) by excluding the other person from participating in a
sporting activity. However the prohibition against discrimination in sport is not complete with s.72
setting out a number of exceptions. Under s.72(2) a person may restrict participation in a competitive
sporting activity—(a) to people who can effectively compete; or (b) to people of a specified age or age
group; or (c) to people with a general or particular disability. Under s.72(1) people of one sex or
gender identity may be excluded from participating in a competitive sporting activity in which the
strength, stamina or physique of competitors is relevant. The Victorian Human Rights Commission
notes that in determining whether strength, stamina or physique is relevant the following factors may
be considered:




The relative differences between the sexes in strength, stamina and physique;
The nature of the sport;
The nature of the competitive sporting activity (not just the sport, but also the age group of
the competitors);
The standard of the competition.
Section 72(1A) permits discrimination on the basis of sex where participation in a competitive sporting
activity is necessary for progression to an elite level competition and the exclusion is necessary.
Section 72(1B) extends this exception to permits discrimination on the basis of sex where the
exclusion or restriction aims to facilitate people of a particular sex to participate in the activity and the
exclusion or restriction is reasonable. The Victorian Human Rights Commission notes that to ensure
that the restriction or exclusion is reasonable you must consider:


The nature and purpose of the activity. For example, it would be unreasonable for a mixed
doubles tennis tournament to exclude men;
The consequences of the exclusion or restriction for people of the excluded or restricted sex.
For example, it would be unreasonable to exclude men if it has the effect of decreasing their
participation in the sport;
36
Ibid 23.
Ibid 24.
38
Ibid 29.
37
11

Whether there are other opportunities for people of the excluded or restricted sex to
participate in the activity. For example, if there a number of other mixed competitions
available for the excluded sex to participate.
Significantly, however, not all of these exceptions apply to children under 12 years old. Under the Act,
participation of children under 12 years may only be restricted in competitive sporting activities for:



People who can effectively compete;
People of a specified age or age group;
People with a general or particular disability.
Participation cannot be restricted to people of one sex in a competitive sporting activity for children
under the age of 12 years even if:



The strength, stamina or physique of competitors is relevant to the competitive sporting
activity
Participation in the activity and the exclusion of a sex is necessary for progression to an elite
level competition;
It is intended to facilitate participation in the activity by people of a particular sex and the
exclusion is reasonable.
The Equality Act 2010 (UK) creates an exception in relation to discrimination in sport. Similarly to the
Victorian Act, the UK scheme permits discrimination in relation to gender where the ‘physical
strength, stamina or physique’ of a person is particularly relevant. Section 195 relevantly provides:
(1) A person does not contravene this Act, so far as relating to sex, only by doing
anything in relation to the participation of another as a competitor in a genderaffected activity.
(2) A person does not contravene section 29, 33, 34 or 35, so far as relating to gender
reassignment, only by doing anything in relation to the participation of a transsexual
person as a competitor in a gender-affected activity if it is necessary to do so to
secure in relation to the activity—
(a) Fair competition, or
(b) The safety of competitors.
(3) A gender-affected activity is a sport, game or other activity of a competitive nature
in circumstances in which the physical strength, stamina or physique of average
persons of one sex would put them at a disadvantage compared to average persons
of the other sex as competitors in events involving the activity.
(4) In considering whether a sport, game or other activity is gender-affected in relation
to children, it is appropriate to take account of the age and stage of development of
children who are likely to be competitors.
While these provisions may be an improvement on the current ACT Law, they may still unduly restrict
the participation of gender diverse people in competitive sport, and the application of the provisions
to intersex people is unclear. These are matters that could be further improved by reforming the ACT
Discrimination Act. For example:
12


Should strength, stamina and physique be more than just ‘relevant’ for the exception to apply;
and
Should there be a great differentiation between elite and non-elite sport for the purposes of
intersex, gender identity and sex discrimination?
I support further consultation with intersex and transgender communities and sporting organisations.
Other areas
I note that the Consultation Paper suggests that the Discrimination Act could be amended to explicitly
cover the exercise of government functions and the conduction of competitions. I suggest that this
would likely be picked up by an amendment to the Act that makes discrimination occurring in public
an offence. If that amendment is not feasible, I agree that the Act should be amended to cover the
exercise of government functions. Once again, this would harmonise the Discrimination Act with the
Public Authorities obligation under Part 5A of the Human Rights Act. This amendment could include
Corrections ACT. I agree with an amendment to expressly cover the activities of the Australian Federal
Police, but am also aware of the complexities surrounding such an amendment.
Protected attributes: Disability
11. Should the Discrimination Act’s existing attribute of ‘disability’ be amended? If so, how should it
be amended? For example, should it incorporate disorders or malfunctions which result in a person
learning differently from others?
I believe that the definition should be amended to clearly incorporate disorders or malfunctions which
result in a person learning differently from others. As it stands, the definition of disability in the Act is
sufficiently broad to cover physical and sensory disability, as well as mental illness and ‘intellectual
disability or developmental delay’. However, notwithstanding the human rights framework which
would arguably support a broad interpretation, there is a lack of clarity about whether conditions,
such as Dyslexia and Attention Deficit Hyperactivity Disorder are covered, given that there is an
absence of ACT case law on such matters.
The Federal Disability Discrimination Act 1992 uses more modern terminology; ‘a disorder or
malfunction that results in a person learning differently from a person without the disorder or the
malfunction’ instead of ‘intellectual disability or developmental delay’.39 Further, the United Nations
Convention on the Rights of Persons with Disabilities, ratified by Australia in July 2008, notes that”
[D]isability is an evolving concept and ... results from the interaction between persons
with impairments and attitudinal and environmental barriers that hinders their full and
effective participation in society on an equal basis with others.40
Amendment of the Discrimination Act to better reflect the Convention, and the Commonwealth Act
definition is both appropriate and desirable.
39
Disability Discrimination Act 1992 (Cth) s 4(f).
Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2515 UNTS 3 (entered into
force 3 May 2008) Preamble (e).
40
13
12. Should protection from discrimination for people with a disability aid or assistance animal be
included in the definition of disability?
I am not aware that this separation has caused any significant issues and I have no firm view on this
point. One advantage of retaining separate provisions is that it may emphasise the need for formal
training of assistance animals. This may ultimately be a matter best determined based on
consultation with people with a disability.
13. Should there continue to be an exception for work-related discrimination and discrimination by
qualifying bodies on the basis of an attribute that a ‘person had in the past but no longer has’?
My understanding is that currently it is not lawful to discriminate on the basis of any attribute that a
person had in the past, but no longer has in relation to work or qualifying bodies under s.49 and s.50
of the Discrimination Act respectively. These provisions relate to disability discrimination specifically. If
I am incorrect, I believe that the Discrimination Act should be amended to provide as such.
Section 7(2) of the Discrimination Act provides that a reference to a protected attribute includes a
reference to an attribute that a ‘person had in the past but no longer has’. This does not, however,
apply to work-related discrimination (s.49) and discrimination by qualifying bodies (s.50). Section
5AA(2) of the Discrimination Act provides that except in s.49 and s.50 ‘disability’ includes a disability—
(a) that the person has, or is thought to have; or (b) that the person had in the past, or is thought to
have had in the past; or (c) that the person will have in the future, or is thought will have in the future.
Sections 49 and 50 are exceptions to the general law relating to disability discrimination. As the term
‘disability’ does not include past disability the exceptions are narrowed. For the purposes of s.49 and
s.50, ‘disability’ only means a disability that a person has. This is confirmed, albeit somewhat
ambiguously by s.49(3) and s.50(2) which define ‘disability’ for each respective provision as including
‘a disability that the person has’. I suggest that this open definition may be better expressed
exhaustively as for the purposes of each section ‘disability, of a person, means a disability that the
person has’.
I believe that this minor amendment would clear up any misunderstanding as to the scope of the
exception to disability discrimination in relation to work or qualifying bodies under s.49 and s.50.
There is no reason why an employer should be able to discriminate against a person because of, for
example, a back complaint that the person once had, but no longer has. If a person is able to carry out
any relevant duties then a past disability ought not to be a barrier to their work.
Gender identity
14. Should the Discrimination Act’s existing attribute of ‘gender identity’ be amended? If so, how?
For example, should the attribute be amended to make it clear that gender identity is conceptually
different to biological sex?
The renaming of the attribute of transexuality to gender identity, contained in the Human Rights
Commission Legislation Amendment Act 2010 (ACT) was welcome, but arguably did not go far enough
14
in ensuring equality for transgender people, particularly in light of LRAC’s 2013 Beyond the Binary
report.41
I suggest further reform should include expanding the definition of gender identity to include intersex
people who identify as intersex. This could be part of a broader review of the issue of transgender and
intersex people. I also believe that the definition in the Discrimination Act should be harmonised with
that contained in the Commonwealth Sex Discrimination Act, which was recently amended.42 This
would focus on the subjective characteristics of the person – on their own identity – rather than on
any departure from a binary male/female norm.
Religious or political conviction
15. Should the Discrimination Act’s existing attribute of ‘religious or political conviction’ be
amended? If so, how? For example, should the attribute be separated into two attributes; religious
conviction and political conviction; should the attribute be extended to the existence and absence of
any of political or religious ‘belief’, ‘activity’, ‘opinion’ and ‘affiliation’, and ‘Aboriginal spiritual
belief or activity’?
I believe that the Discrimination Act’s existing attribute of ‘religious or political conviction’ should be
separated into two attributes; religious conviction and political conviction. In addition, the attribute
should be extended to the expressly provide that ‘religious conviction’ means either the existence or
absence of any religious belief, activity, opinion, affiliation and Aboriginal spiritual belief or activity. I
do not believe that absence of a political belief could, let alone should, be a protected attribute.
Spent criminal conviction
16. Should the Discrimination Act’s existing attribute of ‘spent criminal conviction’ be amended? If
so, how? For example, should the protection be for convictions that are not directly relevant to the
situation in which the discrimination arises?
I believe that the protected attribute ‘spent conviction’ as defined in the Spent Conviction Act 2000
should be replaced with ‘irrelevant criminal conviction’. Tasmania and the Northern Territory have
both adopted this approach.43 Additionally, the Federal Human Rights Commission Act defines
discrimination as not including any distinction, exclusion or preference in respect of a particular job
based on the ‘inherent requirements’ of the job.44
The Gardner Review in Victoria recognised that a person’s irrelevant criminal history can operate as a
barrier to accessing opportunities and social inclusion, as well as noting the link between employment
and reduced rates of re-offending.45 On this basis, the Review recommended the inclusion of
‘irrelevant criminal record’ as a protected attribute, whilst allowing discrimination on the basis of
criminal record in employment where a person is unable to satisfy the ‘inherent requirements’ of the
41
ACT Law Reform Advisory Committee, Beyond the Binary: Legal Recognition of Sex and Gender Diversity in the ACT
(March 2013).
42
Sex Discrimination Act 1984 (Cth) s 4.
43
Anti-Discrimination Act 1988 (Tas) s 16(q); Anti-Discrimination Act (NT) s 19(q).
44
Australian Human Rights Commission Act 1986 (Cth) s 3(c).
45
Julian Gardner, An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (2008), 99-101 [5.108][5.118].
15
position.46 The Review also recommended that guidelines be developed for employers and service
providers to assist in determining whether a criminal record is relevant.47 The Equal Opportunity Act
2010 has not followed this recommendation.
I agree that broadening the scope of this attribute beyond convictions that are technically ‘spent’, to
include convictions that are not relevant in the circumstances, would provide fairer and more
consistent protection to people who are attempting to rehabilitate after offending. This is an
important issue in the ACT. The Commission has had enquiries from people with relatively minor or
irrelevant unspent criminal convictions who have been discriminated against, particularly regarding
employment opportunities. In contrast, it is possible a person may have a more relevant ‘spent’
conviction not used against them in such circumstances.
17. Should there be an exception for criminal conviction discrimination, for example, in relation to
the education, training or care of vulnerable people?
Yes. I believe that there should be an exception for criminal conviction discrimination in relation to the
education, training or care of vulnerable people. The Working with Vulnerable People (Background
Checking) Act 2011 already adopts this position. Under this Act, an applicant’s criminal history is
assessed when applying for registration.48 An exception in the Discrimination Act making
discrimination based on a person not holding a necessary Working with Vulnerable People card lawful,
drafted with the right to reputation under s.12 of the Human Rights Act in mind, would seem
reasonable.
Status as a parent or carer
18. Should the Discrimination Act’s existing attribute of ‘status as a parent or carer’ be amended? If
so, how? For example, should the phrase ‘status as a parent or carer’ be replaced with ‘family or
carer responsibilities’?
One of the current attributes covered by the Act is ‘status as a parent or carer’ under s.7(1)(e). Legal
protection for people with family and carer responsibilities needs to be considered in the context of
current community expectations. Protection from discrimination needs to be relevant to the needs of
modern concepts of family and caring where changing demographics and gender roles have reframed
the context of this issue. It is also important that evolving community attitudes about the need for a
healthy work-life balance are reflected in our legal framework, and that the fundamental human rights
principles of equality and non-discrimination are recognised in all families and workplaces.49 The
Federal Fair Work Act 2009 includes the ground ‘family or carer’s responsibilities’ as a ground of
discrimination in s.351. In addition, s.65 also includes a right to ‘request flexible working
arrangements’ to care for a child who is below school age, or under 18 years of age, and has a
disability.
In keeping with the human rights framework of the ACT, I have interpreted this attribute broadly in
considering whether or not complaints based on this ground have raised issues under the Act.
However, neither the ACAT, nor the former Discrimination Tribunal have considered the scope of this
46
Ibid 104, Recommendations 48 and 50.
Ibid Recommendation 49.
48
See for example Working with Vulnerable People (Background Checking) Act 2011 (ACT) s 18(2)(a)(i).
49
Human Rights and Equal Opportunity Commission, It’s About Time: Women, Men, Work and Family (2007) ix.
47
16
attribute, thereby leaving a lack of certainty about the extent of protection under this attribute. I
would therefore support amending ‘status as a parent or carer’ to ‘family or carer responsibilities’.
The ‘characteristics’ extension
19. Should the ‘characteristics’ extension be amended? If so, how? For example, should it include
actual characteristics of an attribute that a person has?
Yes, I believe that the characteristics exception should be amended to include actual characteristics of
an attribute that a person has. I agree with the LRAC Consultation Paper’s position:
Amending the characteristics extension to include a characteristic that a person actually
possesses, rather than only that which a person might be presumed to possess, or that is
‘generally associated’ with people with the person’s attribute, would provide a greater scope
of protection than currently enjoyed by people under this provision.50
Other attributes requiring amendment
20. Are there any other attributes in the Discrimination Act that should be amended?
The protected attributes or grounds of discrimination covered in our Act are already fairly
comprehensive. Adding further grounds has potential resource implications for the Human Rights
Commission. However, I believe that there is some merit in amending the Discrimination Act to
protect people who experience discrimination because they are disadvantaged..
The provision, particularly the definition of the protected attribute, would need to be carefully drafted
if it is to be effective. I think that ‘socio-economic status’ may be a useful generic term, together with
specific definitions including homelessness, recipient of social security/services or compensation. I
have previously suggested to ACTCOSS that they compile case studies to illustrate its potential
application. I consider that an amendment along these lines may be consistent with and helpful in
achieving the objectives of the Canberra Social Plan.
In addition to new attributes, I would suggest that the definition of age be considered in light of the
Human Rights Act and practical experience of the Commission. Separate to the jurisdiction of
discrimination, the ACT Human Rights Commission also handles complaints involving services for
children and young people, and services for older people. This reflects the additional protection both
need in our community.
Further, the ACT Human Rights Act includes very specific protection for children and young people
under s. 11. On this basis, I would advise that the current definition of age be retained, and that added
to it is explicit reference to age including discrimination because a person is a child or young person,
and because they are an older person. The Federal Age Discrimination Act 2004 (Cth) includes a
reference along these lines in the objects section.51
50
ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT) Community Consultation Paper
(2014), 30.
51
Age Discrimination Act 2004 (Cth) s 3.
17
Domestic violence and family violence
21. Should the Discrimination Act protect people against discrimination on the basis that they are, or
have been, ‘threatened with or subjected to domestic violence or family violence’?
I support an amendment to the Discrimination Act to expressly protect people against discrimination
on the basis that they are or have been threatened with or subjected to domestic violence or family
violence. An amendment along these lines is consistent with Australia’s international obligations
under the Convention on the Elimination of all forms of Discrimination against Women (CEDAW).52 The
following four examples illustrate the extent of these obligations.
Consideration might also be given to whether these protections may cover an adult child caring for a
parent threatened with or subjected to domestic or family violence.
Domestic violence and the workplace
Article 11 of CEDAW provides that States must take all appropriate measures to eliminate
discrimination against women (which includes violence against women) in the field of employment
and to ensure that women have access to safe and healthy working conditions. The UN Special
Rapporteur on Violence against Women has stated that in order to act with ‘due diligence’,
governments must establish measures to provide ‘immediate material assistance’ to survivors of
domestic violence, including by providing adequate opportunities for employment.53 The UN has also
recommended that States enact legislation to protect the employment rights of victims of violence, so
that employers are prohibited from discriminating against them or penalising them for the
consequences of abuse.54
Domestic violence and the justice system
CEDAW requires governments to establish legal protection of the rights of women on an equal basis
with men and also ensure that victims of violence have ‘recourse to affordable, accessible and timely
remedies, with legal aid and assistance as necessary to be settled in a fair hearing by a competent and
independent court or tribunal, where appropriate’.55 Governments must also adopt measures that
ensure women are able to make complaints about violations of their rights under the Convention and
have access to effective remedies.56
Domestic violence and the police
The Committee has held that States may be responsible for private acts if they fail to act with due
diligence to prevent violations of rights or to investigate and punish acts of violence.57 Police have an
52
Convention on the Elimination of all forms of Discrimination against Women, opened for signature 1 March 1980, 1249
UNTS 13 (entered into force 3 September 1981). See also the Australian Law Reform Commission, Equality Before the
Law: Justice for Women, Report No 69 (1994).
53
Yakin Ertürk, The Due Diligence Standard as a Tool for the Elimination of Violence Against Women: Report of the
Special Rapporteur on Violence Against Women, its causes and consequences (20 January 2006) [19].
54
United Nations, Department of Economic and Social Affairs, Handbook for Legislation on Violence against Women
(2010) 32.
55
Committee on the Elimination of Discrimination against Women, General Recommendation 28, The Core Obligations of
State Parties under Article 2 of the Convention on the Elimination of all forms of Discrimination against Women (19
October 2010) [34]
56
See for example Opuz v Turkey (European Court of Human Rights, Chamber, Application No 33401/02, 9 June 2009).
57
Committee on the Elimination of Discrimination against Women, Sahide Goekce (deceased) v Austria, communication No
5/2005, views adopted 6 August 2007.
18
obligation to respond to allegations of domestic violence.58 Human rights law requires that
governments ensure that all allegations of domestic violence are investigated promptly, thoroughly,
impartially and seriously.59
In Sahide Goekce (deceased) v Austria, the Committee considered Austria’s responsibility for the death
of Sahide Goekce. Ms Goekce had called an emergency service a few hours before she was killed by
her husband, but no patrol car was sent to the scene of the crime, despite the fact that Ms Goekce’s
husband was known to be a dangerous and violent criminal. By not responding to the call
immediately, the police were held to be accountable for failing to exercise due diligence to protect Ms
Goekce.
As noted above, currently the Discrimination Act does not have jurisdiction to handle complaints
against the police.
Domestic violence and housing
In General Recommendation 19, the Committee stated that in order to act with ‘due diligence’,
governments must provide ‘appropriate protective and support services’, including ‘services to ensure
the safety and security of victims of family violence, including refugees’.60
In A.T. v Hungary,61 the Committee considered a complaint from a woman who had been abused by
her former partner. Despite reported death threats, she was not able, through either criminal or civil
law proceedings, to exclude her former partner from the apartment where she lived with her children.
She was also unable to access a shelter because none were equipped to accommodate her and her
two children, one of whom had a disability. The Committee found a violation by Hungary of human
rights obligations, and recommended that a safe and accessible home be provided for A.T. and her
children.
Intersex status
22. Should the Discrimination Act protect people against discrimination on the basis of their intersex
status?
Yes. See earlier for my comments on this point. In brief, I believe that the Discrimination Act should
protect people on the basis of their own identity, be it intersex, transgender or anything else.
Immigration status
23. Should the Discrimination Act protect people against discrimination on the basis of their
immigration status? If so, should there be any exceptions?
I believe that the Discrimination Act should expressly protect people against discrimination on the
basis of their immigration status.
58
Committee on the Elimination of Discrimination against Women, Isatou Jallow v Bulgaria, CEDAW/C/52/D/32/2011 (23
July 2012).
59
Gonzalez et al (“Cotton Field”) v Mexico (Inter-American Court of Human Rights) Series C No 205 (16 November
2009).
60
Committee on the Elimination of Discrimination against Women, General Recommendation 19, Violence against Women
(1992) [24(r)(iii)].
61
Communication No. 2/2003 (Views adopted on 26 January 2005).
19
This is a pertinent issue facing people in the ACT. I am currently conducting an own-motion inquiry
into the ACT Department of Education and Training (DET)’s International Fee Paying Students Policies.
The Policies place a requirement on certain non-Australian citizens or non-permanent residents to pay
tuition fees.
The Commission has previously expressed concern that the requirements to pay, and/or seek a waiver
from paying, is only placed on parents with certain immigration status, including refugees and/or
asylum seekers. Based on the current definition of race in the Discrimination Act (eg including
nationality) these policies may already represent unlawful indirect discrimination. There is also a
question about whether such a requirement is a disproportionate limitation on the Rights to Equality,
Children and Education under the Human Rights Act.
I have concerns about the access to education for children of parents who either don’t seek a waiver,
or aren’t granted one, but have no capacity to pay. A further strengthening of the discrimination
protection in this area would protect this marginalised group, by rendering this a direct, rather than
indirect, discrimination issue. Please see my comments in response to Q2 for more on direct/indirect
discrimination.
Physical features
24. Should the Discrimination Act protect people against discrimination on the basis of their physical
features? If so, how should ‘physical features’ be defined?
Section 6(j) of the Victorian Equal Opportunity Act 2010 includes protection from discrimination on
the ground of physical features. Physical features are defined as meaning a person's height, weight,
size, shape or other bodily characteristics. It would therefore include facial features, hair and
birthmarks.62
It is difficult to gauge the extent of any discrimination on this ground in the ACT or Australia generally.
In 2010, Australian airlines, Qantas and Virgin Blue confirmed they would not adopt the policy of Air
France – KLM, that for safety reasons, large passengers would have to pay an additional 75% of the
original ticket price for an adjacent seat.63 However, anecdotal evidence known to the Commission
and based on enquiries and feedback from training course participants has included queries about a
complaint on the ground of being overweight, suggesting some level of community concern about this
issue. In relation to possible discrimination based on height, prejudice against short statured people
has been documented.64 It is also conceivable that if a person is unusually tall they may be singled out
for unfavourable treatment. As the Act currently stands, being overweight would only be protected if
it was a characteristic of disability, eg obesity.
The Victorian Equal Opportunity Act 2010 provides a number of exceptions which apply to the ground
of physical features, for example for the protection of health and safety, or in relation to offers of
employment to people with particular physical features (including ‘looks’) in dramatic, artistic,
entertainment, photographic or modelling performances or work, where it would be in the nature of
an inherent requirement of the job. I support an exception along these lines.
62
See for example Hill v Canterbury Lodge Pty Ltd [2004] VCAT 1365 (20 July 2004) (woman awarded damages in
relation to insensitive comments about her weight).
63
‘Airlines reject Fat Levy’, Sydney Morning Herald, 21 January 2010 <http://www.smh.com.au/travel/travelessentials/travel-news/airlines-reject-fat-levy-20100120-mlsh.html>.
64
Michael Kortt and Andrew Leigh, ‘Does Size Matter in Australia’ (2010) 86 The Economic Record 71; See also Adele
Horin, ‘Why short people suffer the height of prejudice’, Sydney Morning Herald, 16 December 2006
<http://www.smh.com.au/news/opinion/why-short-people-suffer-the-height-of-prejudice/2006/12/15/1166162317468.html>.
20
Employment status and homelessness
25. Should the Discrimination Act protect people against discrimination on the basis of their
homelessness status? If so, how should ‘homelessness status’ be defined?
I believe that the Discrimination Act should protect people against discrimination based on the basis
of their homelessness status. However, I also believe that this might be better protected by an
amendment to include ‘socio-economic status’ as a protected attribute [see Q 20].
26. Should the Discrimination Act protect people against discrimination on the basis of their
employment status? If so, how should ‘employment status’ be defined?
I believe that this might be better protected by an amendment to include ‘socio-economic status’ as a
protected attribute [see Q 20].
Other additional attributes
27. Are there any other new attributes that should be included in the Discrimination Act?
See comments above.
Sexual harassment
28. Should the coverage of the prohibition on harassment be extended to include all areas of public
life?
29. If work is specified as an area where harassment is unlawful, should amendments clarify the
coverage, for example, by detailing the meaning of ‘workplace’, and ‘workplace participant’, and/or
covering work-related situations not occurring in the workplace?
As discussed above, I believe that sexual harassment should be extended to all areas of public life, and
consideration given to clarifying that harassment can occur in relation to any attribute.
The Consultation Paper notes the currently ‘patchy’ coverage of sexual harassment protection in the
existing Act, including the uncertainty of the terms ‘workplace participant’ and ‘workplace’. The case
of El-Sheik v Quader & Anor highlights the limitations of these terms.65 In that case the complaint was
found to be misconceived on the basis that the place where the alleged conduct took place was not
the complainant’s workplace, notwithstanding that she was seeking employment at the place where
the alleged conduct occurred. As the Consultation Paper notes, there are other questions about the
scope of the term ‘workplace participant’, for example, are board members of a voluntary body
included in the meaning’.
Another important issue which has not been considered by either the Discrimination Tribunal or the
ACAT is to what extent the Act covers situations connected with work, but not occurring in the
workplace. The Federal Sex Discrimination Act 1984 has been broadly interpreted to apply to
situations including unwanted sexual conduct occurring during business trips and conferences,
whether or not it occurs during standard work hours.66 Although the Act contains similar provisions
65
[2001] ACTDT 5 (25 September 2001).
See for example South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402 in which the Full Court of the
Federal Court upheld a decision that an employer was liable for acts of sexual harassment which were committed by an
66
21
there is no body of ACT case law to rely upon. In addition, the vicarious liability provision contained in
s.121A of the ACT Discrimination Act allows liability to flow to the person (on whose behalf the act has
been undertaken by their representative) only if it ‘was within the scope of the person’s actual or
apparent authority’. This stands in contrast to the wording used in s.106 of the Federal Sex
Discrimination Act 1984, which uses the words ‘in connection with the employment of the employee
or with the duties of the agent as an agent’.
Nonetheless, the final report of the Senate inquiry into the Effectiveness of the Sex Discrimination Act
recommended that the Act include a general prohibition on sex discrimination and sexual harassment
in any area of public life.67 Even at the Federal Level, the Senate Committee found there was a
‘patchwork approach’ to coverage under the SDA, which was ‘unnecessarily complex and
undesirable’.68 The Consultation Paper notes that harassment that takes place because of a person’s
attribute is already covered as unlawful discrimination under s.7, as such conduct would be
unfavourable.
Although I have always taken a broad interpretation given the beneficial nature of the legislation, I
believe that at a minimum it is prudent to clarify the scope of the provisions to ensure that any
conduct connected with employment is caught, including changes recommended in the Federal
jurisdiction.
Extending sexual harassment to all areas of public life would also ensure a more consistent
discrimination law. It may also be sensible to clarify in the Act that harassment can occur in relation to
any attribute.
Vilification (see the background discussion from page 36)
30. Should the vilification provisions in the Discrimination Act be amended? For example, should the
coverage be for conduct that is done ‘otherwise than in private’, rather than in public? Should
vilification be prohibited for other attributes? Should the test for what constitutes vilification be
changed?
I believe amendments are necessary to the current vilification protections. This includes:
1. A new test and threshold for what constitutes unlawful vilification on the current grounds of
race, sexuality, gender identity or HIV/AIDS status.
2. At a minimum, the attribute of disability should be added to the vilification protection.
3. Consideration should also be given to adding all protected attributes to this protection,
however consideration should be given as to whether the same tests and thresholds should
apply to all attributes. I do note that different tests and thresholds may complicate the law,
potentially weakening the public’s understanding. For that reason, another option is to retain
the same standard, but with specifically targeted exceptions that strike an appropriate balance
between freedom of speech and protection from vilification, whilst also ensuring against
unintended consequences.
employee against other employees outside of working hours in staff accommodation provided by the employer in a hotel
complex on Norfolk Island
67
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Effectives of the Sex
Discrimination Act 1984 in Eliminating Discrimination and Promoting Gender Equality (2008), 149 [11.22]
Recommendation 7.
68
Ibid.
22
4. I support a move to change the reference of ‘public act’ to act ‘done otherwise than in private’.
Under the current law there is too much potential for a restrictive interpretation, which can
exclude conduct that should be covered.
5. I also support amendments to clarify that the test should be one of likelihood, rather than
proof of actual incitement.
6. As discussed above, consideration be given to including the concept of ethno-religious
background as part of an expanded definition of race.
As Human Rights and Discrimination Commissioner, I am in a unique position to make an informed
comment on the balance to be struck between the rights to freedom of expression and the right to
equality, both enshrined in the ACT Human Rights Act. I believe vilification laws generally represent a
reasonable limitation on freedom of expression, and in fact the ACT vilification protection should be
enhanced to further protect members of our community from racism. In fact I recommended that
religious vilification be considered in response to dissemination of anti-Islamic Chick Cartoons and
leaflets criticising the proposed construction of a Mosque in Gungahlin.69
In 2006 as a result of a requirement under the ACT Government’s Facing up to Racism Strategy, the
former Human Rights Office published an ‘Issues Paper on Racial and Religious Vilification in the ACT’.
This paper criticized the existing vilification law, including the difficulties of proving incitement. It
recommended adopting the ‘racially offensive behaviour’ provisions in the Federal Racial Hatred Act
1995.70 This would include removing the requirement to ‘incite’, and instead only require that the
alleged act was likely to offend, insult, humiliate or intimidate another person or group of people. The
Commission received 76 submissions to the Paper in 2007. The majority of those submissions which
commented on potential reform to racial vilification, including a submission from ACT Council of Social
Services (ACTCOSS), supported such reform. The issues paper was distributed and discussed at the
ACT Multicultural Forum, the 2007 ACTCOSS Conference, and at the Canberra Islamic Centre. The
Commissioner also had a Letter to the Editor published in the Canberra Times on the issue. However,
there was a strong organised campaign rejecting religious vilification from Christian groups who are
opposed to the Victorian model covering such vilification.
My concerns in this area also draw upon the findings of the Challenging Racism: The Anti-Racism
Research Project by Kevin Dunne and Abbie White. The Commission allocated $5000 to this national
project to conduct surveys of local experiences of, and attitudes towards, racism. Many of the
Report’s findings were very positive, with 87% of ACT respondents believing that all ‘races’ of people
are equal. However, ACT respondents were no less likely to have experienced racism, and in fact ACT
respondents were the most likely to have experienced disrespect on the basis of their ethnic origin.
Many respondents (28%) also said they believed that ‘there are groups that do not belong in
Australia’. The majority (87.6%) of ACT respondents also recognised that racial prejudice exists in
Australia, and nearly half (44.7%) agreed that ‘Australians of a British background enjoy a privileged
position’. ACT findings of the ‘Challenging Racism’ project are on the Commission’s website.71
These findings were highlighted in 2009 by national research from the Australian National University
which found the same resume submitted by someone with an Indigenous, Chinese or Arabic name
Advice Regarding ‘Anti-Islamic cartoons’ from Dr Helen Watchirs, above n 17, 10; Advice by ACT Human Rights and
Discrimination Commissioner on Leaflets Circulated in Gungahlin in July 2012 regarding the proposed construction of a
Mosque, 2 August 2012, 7-8.
70
ACT Human Rights Office, Racial and Religious Vilification in the ACT: Investigating the Effectiveness of Part 6 of the
ACT Discrimination Act 1991 (2006) 6-7.
71
Kevin Dunne and Abbie White, ‘Challenging Racism: The Anti-racism Research Project 2008: Summary of Findings for
the
Australian
Capital
Territory
Human
Rights
Commission
(ACT)’
(2008)
<http://www.hrc.act.gov.au/res/Challenging%20Racism%20summary%20report.pdf>.
69
23
was less likely to be considered for interview than one submitted by someone with an Anglo-Saxon
name.72 This is a timely reminder of the importance of strong, modern discrimination law.
On 31 July 2009, the ACT Discrimination Tribunal handed down its findings in the case of Emlyn-Jones
and Federal Capital Press [Intervener: Human Rights Commissioner].73 One of the issues in that case
was whether the conduct complained about, which occurred on the Canberra Times ‘blog’ website,
constituted vilification on the basis of sexuality. The decision, in relation to the alleged vilification,
ultimately turned on the defence of public interest. However, the case is an important reminder of
amendments previously suggested by the Commission in relation to the current construction of the
vilification provision of the Discrimination Act. Further, such amendments might also clarify that the
test for vilification should not rely on the person bringing the action being personally vilified, but only
require that they were a member of the group vilified. This seemed to be a central, but legally
incorrect interpretation of case law by former President Cahill concerning s.66 of the Discrimination
Act in the Emlyn-Jones decision.
For all these reasons, I again advocate that the ACT vilification provision be amended to better protect
ACT residents from vilification, particularly in relation to racial vilification. Consistent with the Human
Rights Act, such protection should be mindful of the rights of minority groups and their cultural
background, as well as freedom of speech. Consideration might also be given to making it unlawful to
vilify someone on the basis of any attribute protected by unlawful discrimination under the Act, as is
the case under Tasmanian legislation. Currently s. 7 of that Act lists 15 protected attributes.
Alternatively, a smaller amendment would be to add disability as an additional ground of vilification, a
protection which is supported by several community groups [see my comments above to Q7].
Currently only HIV/AIDS status is protected as a specific disability.
Federal Law
In a recent submission to the Federal Consultation on amendments to race vilification protection in
that jurisdiction, I noted my long-standing opinion that protection at the Federal level is preferable to
the current ACT law.74
Currently, both schemes require that the act need only be done because of a person’s race amongst
other reasons, to be unlawful. They also have similar exceptions covering fair reporting, artistic works
and acts done ‘in the public interest’. It is generally understood that absolute privilege applies to the
Federal Act through other Commonwealth law, while it is explicitly included in the ACT legislation.
Vicarious liability is essentially the same under both schemes.
The ACT legislation must be interpreted in light of the Human Rights Act, but there is no such specific
legislation at the Commonwealth level. Section 30 of the HR Act provides that as far as possible, all
ACT legislation should be read consistently with human rights. In this case, the right to equality (s.8)
and rights of cultural minorities (s.27) are particularly relevant. In some situations, such an
interpretation may lead to the provisions being read more broadly.
Alison Booth, Andrew Leigh, and Elena Varganova, ‘Does Racal and Ethnic Discrimination Vary Across Minority
Groups? Evidence from Three Experiments’ (2012) 74 Oxford Bulletin of Economics and Statistics 547
<http://www.melbourneinstitute.com/downloads/hilda/Bibliography/Other_Publications/pre2010/Booth_etal_Racial_Discri
mination.pdf>.
73
[2009] ACTDT 2 (31 July 2009).
74
Dr Helen Watchirs, ACT Human Rights and Discrimination Commissioner, Submission to Attorney-General’s
Department, Amendments to the Racial Discrimination Act, 7 May 2014.
72
24
The nature of the protection against racial vilification under each scheme differs. The ACT law is about
inciting others to a particular threshold of views. Courts have interpreted the word ‘incite’ by its
ordinary meaning, which is ‘to encourage or stir up ....urge or persuade (someone)’,75 ‘to urge on;
stimulate or prompt to action’.76 Incitement can be achieved through comments made about a person
or a group, but there is no requirement that those comments include a specific call to action against
that person or group.77 Neither is there a requirement for proof of intent to incite,78 nor that anyone
was actually incited by the public act.79 The test to determine whether the act incited hatred, ridicule
or contempt is an objective one.80 The target of incitement is taken to be of the ordinary reasonable
audience, reader or listener, who is neither impervious to incitement, nor a malevolent racially
prejudiced person.81
The ACT test to determine whether the act in question incited hatred, ridicule or contempt is an
objective one, which is more difficult to establish. The target of inducement is taken to be that of the
ordinary reasonable audience, reader or listener, who is neither impervious to incitement, nor a
malevolent racially prejudiced person. The test is would the ordinary, reasonable listener of the
broadcast in question be capable of being incited to hatred towards, serious contempt for, or severe
ridicule of a person or a group of people?
In contrast, the current Commonwealth law is concerned with the impact upon a particular person or
group; and in particular, whether the act in question is reasonably likely to offend, insult, humiliate or
intimidate such persons or groups. In Creek v Cairns Post Pty Ltd Kiefel J held that the terms ‘to offend,
insult, humiliate or intimidate’ are not to be likened to mere slights, and that the Court would have to
be conscious of the need to consider the reaction from the perspective of the person of the racial
group described in s18C(1)(b) of the Racial Discrimination Act.82 Bromberg J stated in Eatock v Bolt in
relation to the subjective test in Federal law that ‘to import general community standards into the test
of the reasonable likelihood of offence runs a risk of reinforcing the prevailing level of prejudice’.83
I believe that in some situations complainants with legitimate concerns about being vilified in the ACT
may only be able to rely on the Federal law. For all these reasons, the vilification provisions could be
amended to better protect ACT residents from vilification, particularly in relation to racial vilification.
Consistent with the Human Rights Act, such protection should be mindful of the rights of minority
groups and their cultural background, as well as freedom of speech. The Court in the Bolt case
particularly turned its mind to freedom of expression issues and found that the defence in s.18D stuck
an appropriate balance between the need to prevent racial prejudice and at the same time respect
freedom of expression. I believe such amendments would be appropriate for the current protected
attributes, including a revised ‘gender identity’ attribute discussed above.
75
Oxford Online English Dictionary http://www.oxforddictionaries.com/view/entry/m_en_gb0404930#m_en_gb0404930.
Macquarie Dictionary (3rd ed, 2001).
77
Kazak v John Fairfax Publications Limited [2000] NSWADT 77 (22 June 2000).
78
Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701.
79
Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 [93]; this decision was overturned in
Jones v Western Aboriginal Legal Service Limited [2000] NSWADTAP 28 though not on the relevant point.
80
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 [15]; Hagan v Trustees of the Toowoomba
Sports Ground Trust (2001) 105 FCR 56, 59 [13].
81
Harou-Souron v TCN Channel Nine Pty Ltd (1994) EOC 92-604.
82
(2001) 112 FCR 352, 356-357 [16].
83
(2011) 197 FCR 261, 321 [253].
76
25
31. Should amendments be made to the offence of ‘serious vilification’?
While the serious vilification protection has not been the subject of a prosecution to date, I support
the views of the NSW Parliamentary Committee report referred to in the Consultation Paper that it
should be retained a matter of public policy.
However, based on discussions with ACT Policing, I am concerned that this offence can become ‘lost’
in the ACT Discrimination Act. I believe consideration should be given to moving it to a piece of law
more readily utilised by law enforcement, such as the Crimes Act 1900 (ACT) or Criminal Code 2002
(ACT) as is the case in Western Australia.
Exceptions Generally
I agree with the suggestion in the Consultation Paper that there is no clear and unifying principled
approach to allowing otherwise discriminatory conduct to occur lawfully under the existing Act. There
may be some merit in considering the approach in the United Kingdom and Canada, where exceptions
are dealt with under a ‘human rights’ approach, and the question of the necessity of discrimination
conduct is determined according to whether it is proportionate and reasonable.
Where exceptions are provided they should be carefully constructed to give effect to the objects and
ameliorative purposes of the legislation. I believe that the exceptions contained in s.30 (statutory
duty), s.31 (voluntary bodies), s.32 (religious bodies) and s.33 (educational institutions conducted for
religious purposes) are counter-productive to achieving the goals of the Discrimination Act and of the
Human Rights Act, and should be repealed. If the religious exceptions in s.32 and s.33 of the
Discrimination Act are retained, they should include a test of reasonableness in their construction.
Arguably this is already the case for exceptions covering issues such as unjustifiable hardship in
relation to disability.
Not all exceptions in anti-discrimination legislation are of concern, indeed they can be beneficial. For
example, the exception for ‘measures intended to achieve equality’84 and the employment exceptions
in relation to ‘genuine occupational qualifications’.85 Regarding disability discrimination, the
exceptions for ‘unjustifiable hardship’ seek to balance the rights of persons with a disability against
the resources of the employer or service provider.86 These exceptions can contribute to the
effectiveness of anti-discrimination laws. Indeed, a critique of the High Court decision of Purvis87
suggested that the absence of ‘adequate defences in the Disability Discrimination Act relating to the
treatment of students with disability by an educational institution, led to the Court adopting a narrow
and distorted approach to the substantive definition of direct discrimination.’ 88 Exceptions are
important to balancing people’s rights:
In properly structured and well-drafted anti-discrimination legislation, balancing the
rights of the complainant with the rights and interests of others would be achieved
through appropriate exceptions and defences.89
84
Discrimination Act 1991 (ACT) s 27.
Discrimination Act 1991 (ACT) ss 34. 42 and 48.
86
Discrimination Act 1991 (ACT) ss 47, 49, 51(2), 53-55.
87
Purvis v New South Wales (Department of Education & Training) (2003) 217 CLR 92.
88
Kate Rattigan, ‘Case Note: Purvis v New South Wales (Department of Education & Training): A Case for Amending the
Disability Discrimination Act 1992 (Cth)’ (2004) 28 Melbourne University Law Review 532, 532.
89
Ibid, 562.
85
26
Nevertheless the exceptions and exemptions in the ACT Discrimination Act have remained largely
unchanged in over 20 years, and are arguably long overdue for a detailed review. Just as the objects of
the Discrimination Act may require regular review, so too do the exceptions and exemptions. Victorian
anti-discrimination legislation was comprehensively reviewed in 2008, with a view to how best to
eliminate discrimination and promote equal opportunity. Flowing from that review, in 2009 the
Victorian Parliament’s Scrutiny of Acts and Regulations Committee recommended that the Act should
require that the exceptions and exemptions in the Act be reviewed at least every 10 years to
determine whether they should be retained, amended or repealed.90 I believe there the
Discrimination Act should be amended to mandate regular review mechanism for at least exceptions,
and perhaps the whole Act.91
Section 70 of the Discrimination Act currently places the onus of proof for establishing an exception
on the person seeking to rely on it, and recent reviews such as the Victorian Parliament’s Scrutiny of
Acts and Regulations Committee Inquiry have recommended such provisions remain.92
32. Should the ‘statutory authority’ exception be repealed, in whole or in part?
I agree with the suggestion in the Consultation Paper that this exception could be removed consistent
with the requirements and goals of the Human Rights Act, to ensure that all ACT laws are nondiscriminatory. However, I believe that the Legislative Assembly would need to consider whether any
specific statutory regime should replace this exception. One example may be the Working with
Vulnerable People statutory regime.
The Explanatory Memorandum of the Human Rights and Equal Opportunity Bill 1991 (which became
the Discrimination Act) provided for a sunset period in accordance with section 30(4):
The exception for actions done under ACT laws is a temporary exception which will only
apply for a limited period to allow time for the laws to be brought into line with the
policy of the Bill.93
A sunset clause was never declared.
In my experience, this statutory defence is most frequently argued in relation to occupational health
and safety legislation. For example in Butcher v The Key King Pty Ltd,94 an employer (‘the respondent’)
unsuccessfully sought to invoke s.30 of the Discrimination Act as a defence to the allegation that he
had unlawfully discriminated against Mr Butcher in dismissing him. The ACT Discrimination Tribunal
examined whether the respondent was required to comply with a ‘specific requirement’ of section
27(1) of the then Occupational Health and Safety Act 1989 (ACT). The Tribunal followed the High Court
decision in Waters v Public Transport Corporation,95 regarding the consideration of a similar provision
of the Victorian legislation, and held that it referred ‘only to what is necessary to be done in order to
comply with a specific requirement directly imposed by the relevant provision’.96 The Tribunal
considered it arguable that: ‘section 27 of the Occupational Health and Safety Act does not operate to
create an exception to section 30(1)(a) of the Discrimination Act where the step taken by the
90
Scrutiny of Acts and Regulations Committee, above n 1, 7 Recommendation 2.
Note that s 41(1) of the Human Rights Act requires the Human Rights Commission to review the effect of territory laws on
human rights and report the results to the Attorney-General.
92
Scrutiny of Acts and Regulations Committee, above n 1, 8 Recommendation 3.
93
Explanatory Memorandum, Human Rights and Equal Opportunity Bill 1991 (ACT), 10.
94
[2000] ACTDT 2 (17 February 2000).
95
(1991) 173 CLR 349.
96
Butcher v The Key King Pty Ltd [2000] ACTDT 2 (17 February 2000) [32] (emphasis added).
91
27
employer…involves dismissing the employee’. It determined that the words ‘at work’ in section 27 of
the OH&S Act imposed a ‘positive duty to do something at the place of work rather than bringing the
employment relationship to an end’.97 Ultimately the Tribunal rejected the ‘statutory authority’
defence because the respondent had not properly satisfied the requirements of section 27(1) of the
OH&S Act.98
In Waters the High Court considered the meaning of the ‘statutory authority’ exception then
contained in s.39(e) of the Equal Opportunity Act 1984 (VIC). The Court held that ‘an act done by a
person’ that ‘was necessary for the person to do…in order to comply with the provision of’ any other
Act required that a person’s conduct ‘occurred pursuant to an actual requirement of an Act and that it
was necessary for him to pursue such a course of conduct’.99 The exception was given a ‘narrow
construction’:
If the relevant words fell to be construed in isolation, we would favour the wide
construction of them. When para (e)(ii) is construed in its context in the Act, however,
it appears to us that the narrow construction is the preferable one.100
Part 5 of the Human Rights Act provides for the ‘scrutiny of proposed Territory laws’. This is known as
the ‘front-end review mechanism’, as it requires ACT laws to be drafted in accordance with human
rights standards. Section 30 of the Discrimination Act is at odds with this system because it means that
all ACT statutes, including those enacted before the HRA came into force and which were not drafted
in accordance with human rights standards, have the potential to override discrimination provisions.
This has also placed the Discrimination Act at the bottom end of the legislative hierarchy.
A 2005 Victorian Parliamentary Committee Inquiry into the then Equal Opportunity Act 1995
recommended repeal of a similar exception, or failing that, that it be narrowed in scope.101 In its
submission to that Inquiry, the then Equal Opportunity Commission of Victoria argued that inserting a
‘necessity’ test into the exception was inadequate because ‘it does not ask the vital question of
whether there are non discriminatory alternatives’.102 The Commission argued that as a minimum
measure, the exception should contain a test of reasonableness and apply only to ‘legislation that
specifically intends to be excluded from the operation of the [Equal Opportunity Act]’.103 However, the
Scrutiny Committee preferred a second option aimed at limiting the scope of the exception. Under
this option the exception would ‘apply only to prescribed Acts to be temporarily or permanently
excluded from the operation’ of the Act as is the case under s.40 of the Sex Discrimination Act, s.47(2)
of the Disability Discrimination Act and s.39(1) of the Age Discrimination Act, or by way of a ‘front-end
review mechanism’, such as the one contained in the HRA.104 The Victorian Committee found that
these measures would provide certainty and ‘alleviate the burden on the complaints-based system’.105
In its subsequent 2009 Review, the Victorian Scrutiny Committee reiterated this view. Absent such an
amendment, the Committee noted that discrimination legislation would operate in a subservient
position to any other Act.106 The Committee recommended that the exception be repealed entirely,
97
Ibid [36] (emphasis added).
Ibid [36]-[41].
99
Waters v Public Transport Corporation (1991) 173 CLR 349, 413 (McHugh J) (emphasis added).
100
Ibid 368 (Mason CJ and Gaudron J).
101
Scrutiny of Acts and Regulations Committee, Victoria, Discrimination in the Law: Inquiry under section 207 of the
Equal Opportunity Act 1995 (2005) 50 Recommendation 27.
102
Ibid 49.
103
Ibid.
104
Ibid 49-50.
105
Ibid 50.
106
Scrutiny of Acts and Regulations Committee, above n 1, 55.
98
28
and that in the interim prior to repeal, the section should be amended to provide that inconsistent
enactments would only operate as an exception if it is prescribed in the relevant Act and that such
enactments should be subject to a sunset clause or other form of periodic review.107
Similarly, in its review of the ‘statutory authority’ exception, the NSW Law Reform Commission
suggested that an appropriate mechanism should be put in place to ensure that ‘exceptions and
exemptions from the operation of anti-discrimination legislation do not continue for longer than is
necessary to achieve their legitimate purpose’.108 Furthermore, ‘steps should be taken to ensure that
subsequent legislation does not unintentionally weaken the protections give by the [AntiDiscrimination Act 1977 (NSW)] to basic human rights’.109 The Commission concluded that ‘there
appears to be no justification for a universal overriding exception’, and that the ‘statutory authority’
provision should be repealed.110 It considered that ‘the possibility that unintended consequences may
flow from’ repeal of the section was ‘unlikely’, as ‘the legislation has now been in force for almost two
decades and there are only a handful of cases in which [the ‘statutory authority’ exception] has been
relied upon successfully’.111
33. Should there be an exception for a court or tribunal order that is mandatory and specific in
requiring discriminatory conduct?
Yes, I believe that if s.30 were repealed it would be prudent to replace it with a court or tribunal
ordered exception. The 2009 Victorian Parliamentary Review of Exceptions and Exemptions
recommended that a similar provision in the Victorian law remain,112 consistent with submissions
made by the Victorian Equal Opportunity and Human Rights Commission amongst others.
Exceptions for ‘religious bodies’ and educational institutions
34. Should the exceptions for ‘religious bodies’ and religious educational institutions be retained?
For example, is access to exemptions a preferable alternative?
35. If the exceptions are to be retained, should any changes be made to the scope or expression of
these exceptions? For example, should the threshold for the exception be modified?
‘Religious bodies’ exceptions are described as ‘an inevitable compromise of equal opportunity
jurisdiction’.113 The 2009 Victorian Parliamentary Review of Exceptions and Exemptions approached a
consideration of similar exceptions by drawing a distinction between activities that affect only
members of a particular religion, and activities that may affect others. The Committee noted that
many of the exceptions in the Victorian legislation protected the right to religion without considering
whether any other rights may be infringed, and in essence ‘allow freedom of religion to automatically
prevail over any other rights involved.’ The Victorian Committee observed that an approach would be
inconsistent with the reasonable limitation tests under the Victorian Charter.114 I agree that the same
may be true of the religious bodies’ exceptions currently in the Discrimination Act, when considered in
light of the reasonable limitations test in s.28 of the Human Rights Act. Further, the preamble of the
HR Act states:
107
Scrutiny of Acts and Regulations Committee, above n 1, 54-55 Recommendation 42.
NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Report 92 (1999) [6.32].
109
Ibid [6.35].
110
Ibid [6.34].
111
Ibid [6.34]-[6.37]; See also Recommendation 43.
112
Scrutiny of Acts and Regulations Committee, above n 1, 56 Recommendation 43.
113
Anna Chapman, ‘The Impact of the Equal Opportunity Act 1995 (Vic) on Paid Work Relationships’ (1996) 9 Australian
Journal of Labour Law 1, 20.
114
Scrutiny of Acts and Regulations Committee, above n 1, 60-61.
108
29
Few rights are absolute. Human rights may be subject only to the reasonable limits in
law that can be demonstrably justified in a free and democratic society. One
individual’s rights may also need to be weighed against another individual’s rights.
A fundamental question for this Review is to determine what religious exceptions are a reasonable
limitation on the right to equality and the purposes of the Discrimination Act, balanced with the need
to protect freedom of religion under s.14 of the Human Rights Act.
As the Victorian Parliamentary Review identified, tensions may emerge between competing civil rights
from the operation of sections 32(a) and (d), 33(1)(a) and (b), and 33(2) of the Discrimination Act.
These sections are problematic because they relate to the provision of services and employment and
often encompass competing and diverse interests. Religious bodies operate in the public sphere. Their
activities and operations often extend to persons who are not adherents of the religion. This situation
is exacerbated by the increasing use of non-government bodies, often religious, to provide services
previously provided by Government. This trend is likely to increase with the advent of the National
Disability Insurance Scheme, which will see the ACT Government play less of a role as a direct provider
of services from 1 July 2014 onwards.115 Sections 32 and 33 of the Discrimination Act therefore permit
religious bodies to discriminate in certain important areas that could have negative social and
economic ramifications for many people.
Eminent human rights expert Elizabeth Evatt has stated that the ‘religious bodies’ and ‘religious
educational institutions’ exceptions indicate a ‘less than wholehearted support for the principle of
equality’ and it is ‘doubtful if there remains any justification’ for such provisions.116
The ‘religious bodies’ exception
A study of complaints received by the Anti-Discrimination Board of NSW between 1993 and 1997
found a ‘prevalence of religious organisations and people motivated by apparent religious beliefs in
homosexuality discrimination and vilification cases.’117 This indicated that:
[H]omosexuality is still feared and despised by many people who identify themselves as
religious. We note such sentiments in the vehement anti-gay stance of submissions
made by some religious groups to recent public inquiries in Australia such as the Senate
Committee investigation into sexuality discrimination. Our findings confirm that some
religious teachings and groups pose a barrier of significant proportions to the project of
gay and lesbian equality and dignity.118
The ‘religious bodies’ exception can be problematic where religious bodies are service-providers. One
example is foster care services. Religious bodies are heavily involved in arranging foster care
115
See for example recent announcements by the ACT Government that it will no longer provide some services directly to
people with a disability, including through Therapy ACT: Tom McIlroy, ‘Parents concerned NDIS roll-out will end
services’, The Canberra Times, 16 May 2014 <http://www.canberratimes.com.au/act-news/parents-concerned-ndis-rolloutwill-end-services-20140518-zrf07.html>.
116
Elizabeth Evatt, ‘Falling Short on Women’s Rights: Mis-Matches Between SDA and the International Regime’ (Speech
delivered at the Twentieth Anniversary of the Sex Discrimination Act, Castan Centre, Melbourne, 3 December 2004) 10
[37].
117
Anna Chapman and Gail Mason, ‘Women, Sexual Preference and Discrimination Law: A Case Study of the NSW
Jurisdiction’ (1999) 21 Sydney Law Review 525, 545.
118
Ibid (citations omitted).
30
placements.119 Discrimination by such bodies against homosexual persons who wish to provide foster
care through them might be made lawful by s 32(d) of the Discrimination Act.
Much of the difficulty surrounding the ‘religious bodies’ exception stems from issues of transparency.
It is important that, if retained, the exemption is drafted in such a way so as to make clear whether
religious bodies can discriminate, or whether certain people can access goods and services. A recent
decision by the Victorian Court of Appeal makes this point clear.
In Christian Youth Camps Limited v Cobaw Community Health Service Limited120 the Victorian Court of
Appeal upheld a VCAT decision that Christian Youth Camps (CYC) unlawfully discriminated against a
group of same sex attracted young people by refusing to allow the group use of CYC’s camps for a
weekend retreat. A majority of the Court of Appeal held that there was no error in VCAT’s finding that
there was: 1) discrimination on the basis of sexual orientation; and 2) exemptions in the Equal
Opportunity Act 1995 that allow religious groups to discriminate in certain circumstances did not
apply. A related issue debated in the case was whether the exception in s.77 of the former Victorian
Equal Opportunity Act regarding a person’s genuine religious beliefs could be relied upon by an
organisation or only a natural person. The request for accommodation was made in June 2007 and the
Court of Appeal decision handed down in April 2014. Adding further complexity, CYC have filed an
application for special leave to the High Court to challenge the decision.121
While the very broad exception under s 31 of the Discrimination Act 1991 (ACT) allowing a voluntary
body lawfully to discriminate against a person in relation to – (b) ‘the provision of facilities or services
to people’, may have been applied in a case like Christian Youth Camps, transparency remains a goal.
This is all the more the case when the broad exception under s.31 of the Act is itself under review.
Indeed, the Commonwealth government has recently amended the ‘religious bodies’ exemption
under the Sex Discrimination Act in an important manner, providing greater clarity in aged-care
services. The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status)
Act 2013, which commenced on 29 June 2013, has limited the permitted exceptions for religious
bodies at the Commonwealth level. The Sex Discrimination Act ‘religious bodies’ exemption now no
longer applies to the provision of Commonwealth-funded aged care services by religious organisations
(see s.23(3A) and s.37(2)). This means that people who are same sex attracted or gender diverse can
no longer be discriminated against in this area.
The ‘educational institutions conducted for religious purposes’ exception
According to Elizabeth Evatt this exception is ‘a reminder for women that there remain influential
institutions in our society implacably opposed to the idea of full equality for women.’122 In the Equality
Before the Law report the ALRC considered whether the ‘educational institutions conducted for
religious purposes’ exemption should be removed from the Sex Discrimination Act.123 Section 38 of
that Act permits educational institutions conducted for religious purposes to discriminate on the
grounds of ‘sex, pregnancy and marital status’ in employment of staff and contractors. The SeventhDay Adventist Church, National Catholic Education Commission and the Australian Association of
Jenni Millbank, ‘If Australian law opened its eyes to lesbian and gay families, what would it see?’ (1998) 12 Australian
Journal of Family Law 1, 16.
120
[2014] VSCA 75 (16 April 2014).
121
Katherine Towers, ‘Appeal to Clarify Religious Standing’ The Australian, 23 May 2014
<http://www.theaustralian.com.au/business/legal-affairs/appeal-to-clarify-religious-standing/story-e6frg97x1226927433470#>.
122
Evatt, above n 116, 10 [36].
123
Australian Law Reform Commission, above n 52 [3.77]-[3.81].
119
31
Christian Schools argued that repeal of the exemption would infringe the freedom of religion and that
religious educational institutions needed to be able to rely on teachers that ‘advance the morals,
beliefs and philosophy of the particular religion.’ However, this view was reportedly ‘not prevalent’
among church groups.124
Arguments for repealing the exemption turned on its discriminatory impact on women. The main
submission was received from the Independent Teacher’s Federation who noted that ‘women who are
in de facto relationships or who become pregnant outside of marriage are dismissed from religious
schools, whereas men in de facto relationships are not.’125 While the right of religious educational
institutions to provide an environment in accordance with the beliefs of the religion was conceded, it
was argued that this was not balanced with the right of teachers to privacy and that the exemption
recognises the rights of the employer but not the employee. Religious educational institutions employ
a significant number of people who should be subject to the Sex Discrimination Act.126
The ALRC recommended that s.38 of the Sex Discrimination Act be completely removed, or at least
that it not apply to discrimination on the ground of sex. It further recommended that a test of
reasonableness be applied to the exception on the ground of marital status.127 This recommendation
has not been adopted.
As noted above, the Sex Discrimination Act 1984 (Cth) now limits the ‘religious bodies’ exception in
relation to Commonwealth funded aged-care services. There has been no limiting of the ‘educational
institutions established for religious purposes’ exception.
The Victorian Scrutiny Committee recommended that the exceptions be amended ‘to limit the
attributes on which discrimination is permitted, and to refine the scope of the exceptions to ensure
that any discrimination is clearly justified by religious doctrine.’128 The Committee also separately
recommended the inherent requirements exception be available in relation to the attribute of
religious activity, rather than an exception for religious bodies to discriminate regarding appointments
to senior management positions. While preferable to the status quo, I do not believe such changes, if
adopted in the ACT, would strike the appropriate balance of rights.
Sections 32 and 33 of the Discrimination Act permit religious bodies to conduct their activities without
any limitation, except that they are based on the tenets they profess. This situation would be less
concerning if the activities of religious bodies were confined to the private sphere; the reality is that
they are not. My primary submission is that the Act be amended to restrict the scope of s.32(d) and
s.33 of the Discrimination Act so that they do not apply to discrimination in employment and provision
of educational services.
If this is not implemented, then I submit that amendments should restrict the scope of sections 32(d)
and 33(2) of the Discrimination Act so that they do not permit discrimination on the ground of sex,
sexuality and gender identity in whole or in part.
A feature of many exceptions under the Discrimination Act currently, but not all, is a concept of
reasonableness. I note that the Victorian Scrutiny Committee did caution against going completely
towards a ‘proportionality’ test,
124
Cited in Ibid [3.78].
Cited in Ibid [3.79].
126
Ibid.
127
Ibid [3.81] Recommendation 3.11.
128
Scrutiny of Acts and Regulations Committee, above n 1, 61.
125
32
The Committee observes that s.75(2) is expressed as a blanket exception and does not
allow consideration of any other rights that may be affected, and that as such is
unlikely to comply with the reasonable limitations test...
However, the Committee has concluded that to require balancing of competing rights
in every individual case would be unduly onerous if not unworkable for religious
bodies.129
I disagree with this approach. I believe a concept of reasonableness in all exceptions would bring a
greater consistency in their application, and would render them more compatible with the right to
equality under the Human Rights Act.
The Consultation Paper notes that a feature of this exception is that, by virtue of the conduct being
anticipated, it may instead be the subject of an exemption. This would allow the proposed conduct to
be considered, against the tenets of the religion. I can see some value in such an approach, as it would
allow the reasonableness of any exemption to be considered prior to the behaviour occurring.
However, I would prefer the other options I have put to be considered as higher priorities, prior to
such an approach to exemptions being taken.
Voluntary bodies exception
36. Should the ‘voluntary bodies’ exception be retained in its current form? If not, how should it be
amended? For example, should the exception only apply to the provision of benefits, facilities or
services to members of the body? Should restricting membership be treated as a special measure for
which an exemption is obtained?
I believe that the voluntary bodies exception in s.31 should be repealed.
The ‘voluntary bodies’ exception – Section 31
In addition to the ACT, only NSW and Western Australia have a ‘voluntary bodies’ exception in their
anti-discrimination legislation.130 At the Commonwealth level only the Age Discrimination Act131 and
Sex Discrimination Act132 contain this exception. In each jurisdiction the exception applies with regard
to (a) admission of persons as members of the body; and (b) provision of benefits, facilities or services
to members of the body.
The Anti-Discrimination Board of NSW notes that in general, if a voluntary body provides goods,
services or accommodation to the community, it must do so in a non-discriminatory manner:
This means that it cannot refuse to provide services to a person or group of people
because of their age, race, sex, pregnancy, breastfeeding, marital or domestic status,
homosexuality, transgender status or disability. In addition, these things must not
influence the type of service it provides or the manner in which the service is provided.
129
Ibid 62.
See Anti-Discrimination Act 1977 (NSW) s 57; Equal Opportunity Act 1984 (WA) s 71.
131
Age Discrimination Act 2004 (Cth) s 36.
132
Sex Discrimination Act 1984 (Cth) s 39.
130
33
However, if the voluntary body (or a part of it) was established specifically to provide a
service for a particular age group, race or religion, anti-discrimination law says that it
can refuse services to people who aren't in that group.133
In its 1999 Review, the NSW Law Reform Commission examined the ‘voluntary bodies’ exception and
determined that it was ‘unnecessary’ and ‘inappropriate’ to retain it. It recommended the exception
be repealed.134 The ALRC has also recommended that the ‘voluntary bodies’ exception contained in
the Sex Discrimination Act be repealed in order to meet Australia’s obligations under international
conventions,135 this has not yet occurred.
Scope of the exception
Section 31(b) of the Discrimination Act was amended in 1996 to apply to non-members, making it the
widest in scope across jurisdictions. The reason given for this change was that some voluntary bodies:
cater for groups of persons with particular attributes or interests and it would,
therefore, be reasonable for some bodies to wish to provide benefits, facilities or
services to non-members with those particular attributes or interests. Discrimination in
that context is not contrary to the purpose of the Act.136
The ACT is the only jurisdiction that gives the exception such broad scope.
Definition and interpretation of ‘voluntary body’
Adding to the problems with the exception is that ACT case law has interpreted ‘voluntary body’
widely. In Jones and the Scout Association of Australia, Australian Capital Territory Branch
Incorporated,137 Mr Jones alleged that the Scout Association of Australia (‘Scout Association’) had
discriminated against him by excluding him from a Crew and treating him so unfavourably that he
resigned his membership. The Scout Association applied for the claim to be struck out on the basis
that, as a voluntary body, they were exempt under s.31 from the operation of the Discrimination Act.
The Tribunal found in favour of the Scout Association and dismissed Mr Jones’ claim. The case hinged
on whether the Scout Association, a large and flourishing organisation, came within the definition of a
‘voluntary body’.
The Dictionary to the Discrimination Act provides:
‘voluntary body’ means an association or other body (whether incorporated or
unincorporated) the activities of which are not engaged for the purpose of making a
profit, but does not include –
(a) a club; or
(b) a body established by a law of the Territory, the Commonwealth, a State or
another Territory; or
(c) an association that provides grants, loans, credit or finance to its members.
133
Anti-Discrimination Board of NSW, Volunteers and Voluntary Organisations (18 June 2013)
<http://www.antidiscrimination.lawlink.nsw.gov.au/adb/adb1_antidiscriminationlaw/volunteers.html?s=1001>.
134
NSW Law Reform Commission, above n 108 [6.88] Recommendation 47.
135
Specifically, the Convention on the Elimination of All Forms of Discrimination Against Women, the International
Convention on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights;
Australian Law Reform Commission, above n 52, Recommendation 3.13.
136
Explanatory Statement, Discrimination (Amendment) Bill 1996 (ACT), 2.
137
[2007] ACTDT 1 (11 January 2007) (‘Jones’).
34
The Tribunal rejected the argument that the Scout Association was not a voluntary body by virtue of
part (b) of the definition, holding that the Scout Association of Australia (New South Wales Branch)
Incorporation Act 1928 conferred ‘legal personality’ upon the Scout Association, but did not establish
it. Rather, it is ‘a body established by Royal Charter and incorporated under a law of the Australian
Capital Territory’.138
Mr Jones also submitted that, following the NSW case of Strong v The Hospitals Contribution Fund of
Australia Limited139 the exception ‘does not apply where one of the activities of the body is engaged in
to make a profit’.140 In Strong, the NSW Tribunal had held:
[T]he question is ‘what is its character?’ Does it have the character of a relatively small
voluntary body, the activities of which could be carried on by an unincorporated
association of people for purposes of pursuing a common interest? The exception
provided for in s.57 is, in our view, directed towards such bodies, and it is bodies with
that character that are identified by the term ‘carried on otherwise than for profit’.141
Mr Jones argued that the Scout Association had ‘significant power’ to undertake such activities.142 It
was held on the facts that the Scout Association engaged in a range of ‘money-making ventures’,
including conducting a retail business known as ‘Snowgum Adventure’ which was ‘conducted…’with
the sole purpose of injecting profits into Scouts ACT’.143 The Tribunal rejected the test in Strong and
held on the basis of an earlier English case that ‘the character of the body in question is to be taken
from its purpose as a whole and not from individual purposes…Its money-making ventures are to
support and foster those purposes and are not purposes for which Scouts was established’.144 On this
basis the Tribunal dismissed Mr Jones’ submissions.
Finally, the Tribunal rejected the argument that the Scout Association was an association ‘that
provides grants, loans, credit or finance to its members’ (see part (c) of the definition). Although it
was found that the Scout Association had made grants to its members, the Tribunal determined that
the words of part (c) ‘import a genus of commercialism – the word ‘grant’ must be considered in the
same genus as the other three words, ‘loan’, ‘credit’ or ‘finance’ which carry with them the import of
commercial dealings’.145 It held:
The fact that a small grant is made to a person to enable him or her to participate in or
in fact produce an activity of a voluntary body within the meaning of that term in the
Dictionary does not render it not a voluntary body.146
In my view this interpretation goes beyond the scope of the definition provided. The Tribunal adopted
a highly technical approach that went against the beneficial purpose of the legislation. The case
demonstrates how this exception can allow bodies to discriminate with impunity. For example, if the
Scout Association refused to allow women with disabilities the use of bathrooms in its facilities it
138
Ibid [25].
[2004] NSWADT 176 (‘Strong’).
140
Jones [2007] ACTDT 1 (11 January 2006) [33].
141
Strong [2004] NSWADT 176 [108] cited in Jones [2007] ACTDT 1 (11 January 2007) [36].
142
Jones [2007] ACTDT 1 (11 January 2007) [28].
143
Ibid [32].
144
Ibid [39]; at [35] referring to Customs and Excise Commissioners v Bell Concord Educational Trust Limited [1989] 2
WLR 679.
145
Jones [40]-[41].
146
Ibid [41].
139
35
could argue that the exception entitles it to do so, whereas such practice would amount to ‘unlawful
discrimination’ for a sporting club. This undermines attempts to eliminate discrimination in the ACT
and does not assist efforts to create and maintain a culture of human rights.
Social and policy considerations
The NSW Law Reform Commission found that the reasons for including the ‘voluntary bodies’
exception in the Anti-Discrimination Act 1977 (NSW) were outdated and outweighed by other policy
considerations. The Commission noted that one reason for its original inclusion was that voluntary
bodies were historically ‘considered to fall within the private arena, and thus not within an area in
which it was appropriate for the law to apply’.147 However, today voluntary bodies ‘often receive
substantial government funds or financial benefits’.148 Therefore, insofar as these bodies are serviceproviders ‘there is an expectation that the service will be done in a manner which is consistent with
community standards of practice’.149
Another reason for the exception was to spare ‘non-profit associations, such as Lions and Rotary,
which are perceived as worthy, concerned and altruistic organisations’ from prosecution.150 However,
this may expose a significant section of the community to discrimination without remedy. A NSW
study found that ‘non-profit organisations’ were ‘repeat respondents’ in complaints of
discrimination.151
There is a question as to whether the ACT can continue to cultivate a culture of human rights when
organisations that work at a community level are not required to operate according to that culture or
uphold the principle of anti-discrimination. Such an approach also operates inversely in many ways to
the provisions of the Human Rights Act, which holds non-government bodies who receive government
funding to legislated human rights obligations, if they are performing functions of a public nature.
I recommended that s.31 be repealed. If there are genuine hardship issues for non-government
organisations in complying with discrimination law, I would suggest that the existing unjustifiable
hardship defence, which applies to disability, be considered as an exception for voluntary bodies
across all attributes. This would allow the resource constraints (and other relevant considerations) to
be taken into account in assessing the lawfulness of discriminatory conduct.
In the event that s.31 is retained, it should at least be amended in the following ways:
(i) Subsection (1)(b) should be amended so that it applies only to members of the voluntary
body to minimise reach of potential discriminatory practices by such bodies;
(ii) The definition of ‘voluntary body’ should be restricted to apply to small organisations (of
50-100 members); and
(iii) The areas of discrimination to which the exception applies should be specified.
147
NSW Law Reform Commission, above n 108 [6.77].
Ibid [6.83] citing NSW Ministry for the Advancement and Status of Women, Submission to NSW Law Reform
Commission, Review of the Anti-Discrimination Act 1977 (NSW), 24.
149
Ibid.
150
NSW Law Reform Commission, above n 108 [6.77]; citing Sex Discrimination Commissioner, Sex Discrimination Act
1984: A Review of Exemptions (1992), 89.
151
Chapman and Mason, above n 117, 544.
148
36
Clubs exception
37. Should the exception for ‘clubs’ be extended to allow clubs to provide benefits exclusively to
people of particular attributes other than those of race, sex, age and disability?
I note the Consultation Paper refers to Victoria allowing clubs to discriminate on the basis of political
belief or activity, where they are created for that purpose. While the Victorian Scrutiny Committee
generally recommended retaining many of the club-based exceptions in that jurisdiction, it suggested
that the exception relating to sex being refined to include a relevant list of factors that should be
considered, including whether the club has taken steps to improve gender equality in access to
benefits.152 Currently s.40 of the ACT Discrimination Act includes some of these factors, but does not
explicitly require the Club to show that they have attempted to improve gender equality, or that it
would be unreasonable to provide equality of gender opportunity because of the hardship involved in
providing equal access. At a minimum, I submit such amendments should be considered. I am not
aware of any ‘male only’ member non-sporting clubs in the ACT.
Sports exception
38. Should the exception that allows discrimination in sporting activity continue to apply to all
competitive sport, and continue to be limited to sex discrimination?
This is related to the question above regarding whether sport should be defined as its own area of
public life under the Act. As discussed in my answer above, the attitudinal and legal changes regarding
concepts of binary genders mean exceptions relating to sport must be reconsidered.
I believe any exception relating to sporting clubs should be on the grounds of player safety, perhaps
continuing to be expressed in terms of the importance of separation on grounds of strength, not on
particular attributes. It may be that as a transitional matter, some consideration is given to
professional sport having further leeway in this area, although for many sports, particularly contact
sports, the player safety exception is likely to apply regardless of the amateur or professional nature
of the competition.
Exception for ‘genuine occupational qualifications’
39. Should the exceptions for ‘genuine occupational qualifications’ be retained? For example, is
access to exemptions (discussed pp.50-51) a preferable alternative?
I can see benefits in the Consultation Paper’s suggestion that this exception be replaced by an
exemption, on the basis that the behaviour is likely to be anticipated in advance, and it will give all
parties greater certainty. However, I do have some concerns about whether this creates additional
onerous requirements for employers.
40. If the exception for ‘genuine occupational qualifications’ is to be retained, should any changes be
made to the scope or expression of the exception? For example, should it be available for all
attributes?
The 2009 Victorian Scrutiny Committee’s Report on Exception and Exemptions to the Equal
Opportunity Act 2010 suggested that a similar provision in their law be amended to encompass a test
152
Scrutiny of Acts and Regulations Committee, above n 1, 50, Recommendation 39.
37
of ‘inherent requirements of the particular position.’ However, that Report also recommended that
the exception only apply to the attributes and the areas in respect of which it is essential, and in
varying ways depending on the attribute.153 On pages 14-15 of their Report the Committee identified
the attributes to which the exception could apply. I support this position.
Exception for inability to carry out work
41. Should the Discrimination Act contain an exception for ‘inability to carry out work’ which is
applicable to all attributes?
42. When the inability is because of disability, should an employer or prospective employer be
obliged to make reasonable adjustments, subject to unjustifiable hardship, in order to accommodate
the person who would otherwise be unable to do the work?
43. If an exception for ‘inability to carry out work’ is to be available for all attributes, should an
employer or prospective employer be obliged to make reasonable adjustments for all attributes?
I agree with the Consultation Paper’s discussion that these concepts are intrinsically linked to the
requirement (currently implied) for employers to make reasonable adjustment for people with a
disability. It is important that the new Discrimination Act clarify how the concepts of inability to carry
out work, unjustifiable hardship and reasonable adjustment interact. I tend to favour the approach
that an employer should be required to make reasonable adjustment for a person (regardless of their
attribute) to determine if they can carry out the essential nature of the work. The adjustment would
be explicitly unreasonable if it imposed an unjustifiable hardship on the employer. This was the
approach taken in the Exposure Draft of the Commonwealth Human Rights and Anti-Discrimination
Act, but only in relation to disability.154 I can see merit in it applying to all attributes.
44. Should any amendment be made to the ACT provision for ‘measures intended to achieve
equality’? For example, should the requirements for such measures be set out, including an
obligation to consult with the disadvantaged group? Should a special measure be approved as an
exemption?
As the Consultation Paper notes, Victorian legislation in this area was recently redrafted to be
consistent with the Victorian Charter by setting out the requirements for something to be a special
measure.155 While the ACT Human Rights Act does not have an exact provision to the Victorian
Charter’s special measure provision, I see value in adopting such criteria, in order to improve
consistency with the Human Rights Act’s right to equality protection.
Further, as the Consultation Paper notes this is another exception area where the behaviour could
likely be anticipated, and so could perhaps better be dealt with as an exemption. Again, a question
may arise as to whether this would unreasonably increase burdens on organisations.
Consideration may also be given as to whether there should be some limitation on relying on an
exception, if a party could have anticipated the conduct and sought an exemption, but failed to do so.
This would increase the workload of the Commission, which has an extremely small discrimination law
team.
153
Scrutiny of Acts and Regulations Committee, above n 1, 14; See further 13-15, Recommendation 5.
Exposure Draft, Human Rights and Anti-Discrimination Bill 2012 (Cth) s 25(2).
155
Equal Opportunity Act 2010 (Vic) s 12.
154
38
Insurance and superannuation
45. Should any amendment be made to the exceptions for discriminating in insurance and
superannuation? For example by limiting the attributes for which the exceptions are available?
The Consultation Paper notes that it is unlikely that actuarial data could be produced for all attributes.
Nevertheless, I can see merit in limiting the exceptions subject to the overarching concept of
reasonableness. The Tasmanian Anti-Discrimination Commissioner agreed with this approach in a May
2013 Report.156 However, more information may be needed before any amendment is made.
Domestic duties
46. Should any amendment be made to the exceptions for discriminating when employing a person
to carry out domestic duties? For example, by limiting the attributes for which the exception is
available, or limiting the exception to discrimination that is reasonable in the circumstances, having
regard to the duties to be performed?
While, as the Consultation Paper notes, this exception generally exists across all jurisdictions in
Australia, I believe some amendment would be preferable. In particular, importing a consideration of
reasonableness or consideration of the circumstances in the exception would improve its
compatibility with the right to equality. I note that this may become a bigger problem with the
introduction of the National Disability Insurance Scheme, and the expected increase in people
receiving services in their own homes.
Exemptions
47. Should the approach to exemptions in the Discrimination Act be changed in any way? For
example, should an exemption application be considered having regard to rights to equality and
non-discrimination? Should there be any attributes for which an exemption to discriminate is not
permitted? Should an exemption application be subject to a consultation and submission process?
The Consultation Paper suggests that the exemption process could be made a public process to
promote transparency and provide parties who have an interest in the application to make their views
known. This is the case in Victoria,157 and the Exposure Draft of the Commonwealth Human Rights and
Anti-Discrimination Bill,158 which treated exemptions as legislative instruments on which public
consultation was required. I support this amendment.
The Commission has received very few exemption requests since the passage of the Act. Informally,
the Commission from time to time receives enquiries from organisations whose proposed conduct
falls into the ambit of an existing exception, in particular, special measures. The Commission generally
advises the organisation to seek legal advice, but provides background information on the exception
and how they might seek a formal exemption. Generally such organisations do not apply for an
exemption, which is positive, as they are comfortable to rely on existing exceptions.
The Commission has previously gone through a consultation process informally, including consulting
relevant bodies (for example, unions and employer groups) on requests. I believe that formalising this
process to ensure that exemption applications are assessed having regard to the rights to equality and
156
Anti-Discrimination Commissioner Tasmania, Volunteers, Age and Insurance, Investigation Report (2013) iii-iv.
Equal Opportunity Act 2010 (Vic) ss 89-91.
158
Exposure Draft, Human Rights and Anti-Discrimination Bill 2012 (Cth) s 84(5).
157
39
non-discrimination is a positive step, although I would hope that any prescriptive requirement would
not prevent the Commission from adopting a particular procedure in my discretion.
Despite organisations generally not seeking exemptions, there are currently two exemptions in place,
for Raytheon Systems and BAE. I initially refused to give a race discrimination exemption in both
applications. Following progress through the ACAT (in the case of mediation for BAE)159 exemptions
have been agreed and are on-going.160 I have previously made clear my concern surrounding these
exemptions, which relate to the US International Traffic in Arms Regulations.
In other jurisdictions (apart from the Northern Territory) requests for exemptions are determined by
the Tribunal. If the exemption process in the ACT is amended to provide an avenue to go straight to
the Tribunal, we believe that legislative amendment requiring notice to be given to the Commission,
and providing to the Commissioner the right to (seek leave to) intervene would, at a minimum, be
necessary.
Victimisation
48. Should the victimisation provision be amended in any way? For example, should it cover only
specified conduct, or any conduct covered by the Discrimination Act? Should it include the threat of
detriment? Should it cover actions of, and detriment to, an associate of the person? Should it include
suspicion of conduct?
As noted in the Consultation Paper, the reason for victimisation protection is to ensure that a person
is not deterred from pursuing a discrimination complaint for fear of reprisals or being disadvantaged.
The Commission has found this to be an important protection for those wishing to make complaints
and support others making complaints. There is also a level of protection in the Human Rights
Commission Act 2005 for victimisation resulting from any complaint made to the Commissioner, but
this has the higher criminal burden of proof. The Commission has previously advocated that the civil
victimisation protection contained in the Discrimination Act be adopted for all complaints (including
service provision) to the Commission.
However, this protection could be improved. Jurisprudence from other jurisdictions has demonstrated
that victimisation can be very difficult to prove. As noted in the Consultation Paper, other antidiscrimination laws in Australia protect a person who engages in specified conduct, but also have a
‘catch-all’ provision that protects a person who does anything in accordance with the antidiscrimination legislation. The Discrimination Act does not have a ‘catch-all’ provision and so, for
example, does not cover a situation where a person’s conduct is not specified, but should, in principle,
be protected, such as telling another person about their anti-discrimination rights.
159
Raytheon Australia Pty Ltd & Ors and ACT Human Rights Commission [2008] ACTAAT 19 (24 July 2008); Raytheon
Australia Pty Ltd and ACT Human Rights and Discrimination Commissioner (Administrative Review) [2012] ACAT 37 (8
June 2012); BAE Systems Australia Limited v ACT Human Rights Commission [2011] ACAT 53.
160
Discrimination (BAE Systems Australia Ltd) Exemption 2011 (No 1), Notifiable instrument NI2011-425 made under the
Discrimination Act 1991 (ACT) s 109 and ACT Civil and Administrative Tribunal Act 2008 (ACT) s 69(2); Discrimination
(Raytheon Australia Pty Limited) Exemption 2011 (No 2), Notifiable instrument NI2011-736 made under the
Discrimination Act 1991 (ACT) s 109 and ACT Civil and Administrative Tribunal Act 2008 (ACT) s 69(2); Discrimination
(Raytheon Australia Pty Limited) Exemption 2012 (No 1), Notifiable instrument NI2012-313 made under the
Discrimination Act 1991 (ACT) s 109 and ACT Civil and Administrative Tribunal Act 2008 (ACT) s 69(2).
40
Attributed liability
49. Should the attributed liability provision be amended in any way? For example, should the
relationships within which liability can be attributed be broadened? Should considerations for
assessing reasonableness be listed? Should a defence require that an employer or principal show
that they ‘exercised due diligence’?
I support an amendment to the attributed liability provision listing considerations for assessing
reasonableness, and requiring that an employer or principal exercise due diligence.
As the Consultation Paper notes, the Discrimination Act says that a person is responsible for the
discriminatory conduct of their ‘representative’, acting within their authority.161 Unlike the law of
vicarious liability, attributed liability under the Discrimination Act excuses the employer or principal if
they took ‘all reasonable steps’ to prevent the conduct. 162 However, merely having a policy will not be
sufficient, and an employer must ensure that its policies are communicated effectively. The size and
resources of an employer are relevant, so that larger employers will be expected by Courts and
Tribunals to do more than smaller ones to rely successfully on the defence.
Section 105(3) of the Northern Territory Anti-Discrimination Act sets out considerations to assess
whether ‘all reasonable steps’ were taken by the person (or organisation) to whom liability would be
attributed, including:
(a) The provision of anti-discrimination training by the person;
(b) The development and implementation of an equal employment opportunity
management plan by the person;
(c) The publication of an anti-discrimination policy by the person;
(d) The financial circumstances of the person;
(e) The number of workers and agents of the person.
I believe that setting out the considerations to be taken into account when assessing whether ‘all
reasonable steps’ have been taken aids certainty and clarity in discrimination law, and provides
employers with a clear statement of what they should do. I believe however, that any list should be
non-exhaustive.
I also support a further amendment. The Exposure Draft of the Commonwealth Human Rights and
Anti-Discrimination Bill, excuses the employer or principal if they ‘took reasonable precautions, and
exercised due diligence’ to avoid the discriminatory conduct.163 I believe that ‘exercising due diligence’
extends the obligations of employers or principals. Rather than simply taking the steps listed above,
this further legislative amendment would require employers or principals to monitor and assess
compliance, and effectiveness with policies and training. Though of course, any required measures
need to be proportionate to the resources (size) of business.
I believe that this additional requirement furthers the legislative purpose of the Discrimination Act. It
encourages employers and principals to take positive steps to prevent discrimination and harassment,
but excludes liability where those employers and principals have taken reasonable steps to prevent
such conduct, meaning that liability does not arise unfairly.
161
Discrimination Act 1991 (ACT) s 121A(2).
Discrimination Act 1991 (ACT) s 121A(3).
163
Exposure Draft, Human Rights and Anti-Discrimination Bill 2012 (Cth) s 57(3).
162
41
Enforcement and compliance: Principles
50. As a matter of principle, should the government take a greater role in promoting the aims of the
Discrimination Act and in enforcing its provisions? If so, what roles could it have?
As discussed above, I support a positive duty on Public Authorities to prevent discrimination. Such an
obligation would likely (or should) include the need to take a greater role in promoting the aims of the
Discrimination Act and enforcing its provisions.
In recent times, the ACT Government has improved its commitments in this area. The Public Service
Respect, Equity and Diversity framework commits the Government as an employer to actions
consistent with the principles and obligations of the Discrimination Act. However, recent figures
suggest that this framework is not improving employment of people with a disability and Aboriginal
and Torres Strait Islander people, and reinforces the need for the Government to improve
performance in this area.164 A positive obligation under the Discrimination Act would likely assist with
such measures.
I have been advocating for many years that the ACT Government adopt a new Anti-Racism Strategy,
and this has also been a frequent suggested outcome from participants at my annual Race
Roundtable. I believe it is critical that the Government play a leading role in modelling a commitment
to the principles of anti-racism and cultural inclusion. I therefore welcomed the ACT Government’s
announcement that it would formally sign up to the Federal Anti-Racism Strategy. I look forward to
working with the Government on tangible actions that will support this decision, to ensure that such a
strategy makes a meaningful difference to the community.
The Commission also has a representative on the Government’s Inclusive Sport Project Steering
Committee. This initiative has been doing critical work on developing more inclusive practices for
sport in the ACT including the recent release of the Inclusive Sport Survey.165 Similarly, a staff member
regularly attends the Office for Multicultural Affairs’ Refugee, Asylum Seeker & Humanitarian
Committee, which brings together government and non-government agencies to discuss issues of
concern and other developments.
I believe the Government should be investing in similar campaigns and actions across a range of
attributes to fulfil the objects of the Discrimination Act, and assist in positive ways to change attitudes
before they manifest in discriminatory conduct. Such initiatives should be evidence based, and
consider issues such as whether campaigns based on positive messages and engagement are likely to
lead to longer lasting attitudinal change, rather than those based on more negative messages.
Finally, as Commissioner for over 10 years, I have considered many complaints against ACT
Government Directorates. Their performance as respondents, and in particular their understanding
and commitment to anti-discrimination obligations, is mixed. Whether through a positive duty, or
otherwise, a clearer commitment to Directorates being model respondents would be welcome. This
would include ensuring staff who attend conciliation do so in good faith, and with the requisite
See for example statistics from the 2013 State of the Service Report cited in Ben Westcott, ‘ACT Public Service Falling
Behind on Employment Targets for People with Disabilities and Aborigines’, The Canberra Times, 23 May 2014
<http://www.canberratimes.com.au/act-news/act-public-service-falling-behind-on-employment-targets-for-people-withdisabilities-and-aborigines-20140530-zrmrw.html>.
165
Sport and Recreation Services, above n 35.
164
42
authority to resolve the matter at that time; as well as a commitment to meeting the Commission’s
deadlines for responses to complaints.
51. As a matter of principle, should primary responsibility be on individuals to complain about
conduct they have experienced that is unlawful under the Discrimination Act? For example, should
others be able to complain on behalf of a person? Should it be possible for a complaint initiated by
the ACT Human Rights Commission to be taken to the ACT Civil and Administrative Appeals Tribunal
(ACAT)? Should ACAT have a power to make an order that goes beyond a remedy to an individual
complainant?
As noted above, all existing Australian discrimination law prohibits discrimination on listed grounds.
These laws are ‘negative’ because they create a duty not to discriminate.166 Like most discrimination
law models, the system we have in the Territory is a complaints-based model which relies on
individuals bringing their complaints to the Commission, tribunal or to the courts, or on the
Commission to initiate action which we are currently under-resourced to take. Legislation that
depends on complaints is only as powerful as the people who rely on it. Those who experience
discrimination often come from the most vulnerable groups in society, while those responsible for
discrimination can be well-financed, experienced litigants. Whilst the complaints process, with its
emphasis on conciliation and resolution where possible, can work well and achieve positive outcomes,
it can be a burden on the individual involved, particularly where resolution cannot be achieved
through conciliation.
Individual Responsibility – Representative complaints
Representative complaints are particularly important in vilification cases where individuals may fear
further persecution. We understand from the Victorian Commission, that the harassment seen during
the Catch the Fire Ministries Inc v Islamic Council of Victoria Inc167 case would prevent the Islamic
Council of Victoria from bringing their own action in the future. Recent vandalism at the Canberra
Islamic Centre may have a similar effect.168 Section 71 of the Human Rights Commission Act
adequately deals with this issue, by permitting ‘representative complaints’ in situations where a class
of people have, or are reasonably likely to have complaints against a single person or group.
However, s.53E(2)(c) of the Human Rights Commission Act prevents the ACAT from awarding damages
in these circumstances. It is not clear what the policy goal of this exclusion is. Certainly class actions in
torts cases, for example, are not precluded from receiving damages. Section 53E(2)(c), as it stands,
seems to create a perverse incentive for organisations or people to discriminate widely against an
entire class of people, rather than against an individual, in order to ensure a damages order would not
be made. I believe that the Discrimination Act should be amended to enable the filing of
representative complaints. The ACAT should be able to award damages in these cases.
166
Szabo, above n 22, 10.
[2006] VSCA 284
168
Megan Gorrey, ‘Canberra Islamic Centre hit by vandals’, The Canberra Times, 13
<http://www.canberratimes.com.au/act-news/canberra-islamic-centre-hit-by-vandals-20140413-36ltr.html>.
167
April
2014
43
HRC complaint to the ACAT
I do not support an amendment allowing a complaint initiated by the Commission to be taken to the
ACAT. A vitally important feature of the Commission is its impartiality and its ‘name and shame’
powers, albeit not used since it came into force in later 2006. I believe permitting the Commission to
act as plaintiff (or a respondent) in the ACAT would undermine both of these important functions.
Enforcement of Conciliated Agreements
An added complication is the application of s.62(4) of the Human Rights Commission Act, which states
that a conciliated agreement of a discrimination complaint ‘is enforceable as if it were an order of the
ACAT’. Section 71 of the ACT Civil and Administrative Tribunal Act 2008 provides that a money order
or non-money order made by the ACAT is taken to have been filed in the Magistrates Court for
enforcement under Part 2.18 of the Court Procedures Rules 2006. This appears to suggest that parties
to agreements conciliated through the HRC are forced to bypass the ACAT, and go straight to the
Magistrates Court for enforcement, where enforcement of non-monetary matters (e.g. specific
performance) can be complex and costly. This suggests that perhaps a breach of a conciliated
agreement must be enforced in the Magistrates Court.
However, if this interpretation is correct this is not a practical outcome for the parties, particularly as
the Magistrates Court registry will have no record of the matter having been before the ACAT. It also
means they have not had the opportunity to utilise the lower cost, more accessible jurisdiction of the
ACAT, the members of which are also more likely to be more familiar with discrimination law. The
principle of judicial economy would also suggest that ACAT is the best organ to arbitrate on such
matters. I submit that this should be clarified in the new Discrimination Act, and in particular, that
breaches of conciliated agreements be clearly within the jurisdiction of ACAT.
Systemic orders
If the Discrimination Act retains its complaints-based approach, I believe that it is crucial that the
resolution of individual complaints contributes to the public policy goal of eliminating unlawful
discrimination. I agree with the Discrimination Law Experts Roundtable Recommendation to amend
the Act to provide courts with explicit power to give consideration to issues related to, but beyond the
immediate resolution of the matter between the parties, such as ‘changes to the practices or policies
of an organisation, sector, industry or government (as is the case in coronial proceedings)’.169
However, I believe that an ACAT order that effects individuals or organisations not party to the
original complaint or proceedings may conflict with fair trial rights enshrined under s.21 of the HRA. I
believe that instead of an order with systemic effect, consideration could be given to permitting ACAT
to refer the systemic matter to the Human Rights Commission for investigation on an own-motion
basis.
Own-motion Powers
The Commission currently has powers to conduct own-motion discrimination complaints. This is a
significant power, and accordingly my policy is only to use it in certain circumstances. Sub-section
48(3) of the HRC Act states that, without limiting when the Commission may consider a matter by a
commission-initiated consideration, it may commence such a consideration if:
169
Discrimination Law Experts’ Roundtable, above n 4, 20 Recommendation 19.
44
(a) the complainant has withdrawn the complaint for any reason; but
(b) the commission is satisfied that it is in the public interest to consider the complaint.
The HRC Act provides the following examples, which provides further guidance.
1. The complaint appears to reveal a systemic problem about an activity or a service.
2. The complaint, if substantiated, raises a significant issue for the ACT, or an issue of public
safety.
3. It may be possible for action in relation to the complaint to be taken under another Act if the
complaint is substantiated by, for example, reporting a health professional to a health
profession board or making an application for an occupation discipline order in relation to the
health professional to the ACAT
Consistent with the above, in assessing such matters, I consider the following in electing to utilise this
power:
1) If the complaint, taken at its highest, would raise serious issues of discrimination under the
Discrimination Act, which are not merely peripheral to the conduct complained about;
2) If the complaint raises systemic discrimination issues, or may significantly affect an individual;
3) If the complaint raises serious public safety or other public interest issues eg violence;
4) The detriment potentially suffered by a complaint or respondent if the Commission elected to take
such action;
5) The group affected is particularly vulnerable eg a child, detainee or person with severe disability.
6) The manner and nature of information sought from the respondent; and
7) Any remedy that initially appears reasonable and easily implemented by a respondent.
I have exercised this power from time to time in conjunction with the ‘Audit’ power of the Human
Rights Commissioner under s.41 of the Human Rights Act 2004, and for discrimination matters where
there is a systemic issue worthy of further consideration. Currently the Commission is conducting an
own motion investigation against a Directorate.
52. As a matter of principle, should the making and consideration of complaints under the
Discrimination Act be conducted confidentially? If so, how should confidentiality be managed? For
example, should confidentiality be an option for a complainant and/or respondent? Should
confidential information be available for purposes, such as research, subject to certain conditions?
The Human Rights Commission Act provides that complainants have the right to decide whether the
complaints process and/or the outcome should be confidential, although they may agree to
confidentiality as part of settling their claim. Further, s.99 of the Act mandates confidentiality in
relation to ‘protected information’, which is essentially personal information.
As the Discrimination Experts Roundtable noted:
Confidentiality is central to the current complaint handling procedure, particularly with respect
to conciliation. Confidentiality within the process itself should be preserved but more
information about the content and outcomes of complaints should be publicly accessible,
although they may be in an anonymous form. This will enable all parties to have clearer
guidance on how previous cases have been settled and thereby facilitate settlements. A
balance must be sought, between the public interest in access to information about the
45
process and resolution of discrimination complaints, and the important part that
confidentiality can play in resolving individual complaints.170
I support the Roundtable’s recommendation that the content, conduct and results of a conciliation
process should be presumptively confidential, but that the parties can agree to disclose
information.171 The Commission currently publishes de-identified case summaries of conciliated
complaints to facilitate systemic policy in the ACT and to educate the community about the work
undertaken by the Commission, including the kind of settlement proposals that can resolve
complaints.
With the aim of facilitating systemic development of discrimination law and policy in the ACT, I believe
that different considerations are relevant with regard research access. As the Discrimination Experts
Roundtable noted:
Independent analysis of discrimination law, policy and practice is highly desirable to ensure
that continuing research will contribute to sound public policy. Such research into the
discrimination system is impeded or prevented by privacy provisions in anti-discrimination
statutes and privacy legislation, and by the absence of protocols for retaining information. 172
I therefore support an amendment that would allow access to otherwise confidential information for
research purposes, subject to the research being approved by an institutional ethics committee. To
assist in this endeavour, complaints-related information could be preserved as archival information.
Of course, any personal health information within a discrimination file must be dealt with in
accordance with the requirements set out in the Health Records (Privacy and Access) Act 1997.
53. As a matter of principle, should people have to lodge a complaint of discrimination with the ACT
Human Rights Commission before proceeding with litigation at ACAT?
Having a Commission-based complaints process as the main avenue for resolution of discrimination
complaints is an accessible, low cost and largely successful option. Nevertheless, in some
circumstances – for example where there is a significant imbalance between the parties in power
and/or resources – it has been argued that it is preferable for both parties to a complaint to have the
matter determined by a Tribunal early in the process. In Victoria, complainants have the option to
bypass the complaint process and have direct access to a Tribunal for determination of their
complaint.173
I remain unconvinced by these arguments, and submit that the free, complaint resolution service
provided by the Commission outweighs these considerations. That is not to say the anti-discrimination
complaints scheme could not benefit from greater clarity about the primary role of each actor. As
discussed below, the Commission’s powers of investigation are significant, but arguably hindered in
their current format in an individual complaint, as any information sought is inadmissible in the ACAT.
Such a regime suggests that the primary role of the Commission is to resolve individual complaints
through conciliation, with those powers reserved for systemic and own-motion considerations. The
primary purpose of consideration at the Commission stage for individual complainants is to inform the
conciliation process, and give the parties some sense of the relevant law. That would suggest that the
primary role of the ACAT is to adjudicate on individual complaints where conciliation has failed at the
170
Ibid 17.
Ibid Recommendation 16.
172
Ibid 18.
173
Equal Opportunity Act 2010 (Vic) s 122.
171
46
Commission. Greater clarity from the legislature, through the legislative regime, would be beneficial
for government agencies and the broader community alike.
Recent comments from a previous complainant do demonstrate that an aggrieved person can feel
isolated after conciliation has failed at the Commission:
Your org sits there, more or less passively, while the matters I'm attempting to prevent
take place.
Then I get abandoned to complete the process of the complaint more or less on my
own without the resources or skills.
It ends up being more effective just walking away from the original issue.
This reflects somewhat on the expectation of the current system that a person who remains aggrieved
after conciliation or consideration fails at the Commission must ‘fend for themselves’ at the Tribunal.
It may be that these issues can be addressed with the system remaining as it is, but with the addition
of further legal supports through Community Legal Centres and/or the addition of positive duties not
to discriminate.
If the Victorian model were adopted, I propose that the Commission’s role would need to move more
to one of systemic oversight, as I understand has occurred in Victoria. This might include more
resources for own-motion investigations and industry-based education and compliance activities (akin
to WorkCover). This is likely to require new resources for the Commission to undertake such
activities.
However, it is vitally important that the Commission continue to be resourced to conciliate
discrimination complaints. In contrast to the filing costs and potential adverse costs orders at the
ACAT, the Commission provides a free conciliation service. The Commission therefore ensures that all
people within the Territory can access justice, for civil discrimination matters.
54. What powers of investigation and enforcement should the ACT Human Rights Commission have?
For example, should information and documents acquired by the Commission be able to be used in
later tribunal proceedings? Should the Commission have the power to pursue civil penalties for
failure to comply with recommendations?
Sections 73 and 74 of the Human Rights Commission Act authorise the Commission to compel a
person to produce a document or to answer a question in certain circumstances. Section 75(3)
provides that a person cannot rely on the common law privileges against self-incrimination in order to
refuse to do so. However, s.75(4) states that ‘any information’ obtained directly or indirectly is not
admissible in evidence against the person in a civil or criminal proceeding other than a proceeding for
an offence against Part 4 or any perjury offence. This is consistent with rights enshrined under the
Human Rights Act, particularly, in relation to criminal proceedings.174
However, this does mean that the powers of compulsion under s.73 and s.74 are limited, perhaps
unduly. If a respondent refuses to conciliate a discrimination complaint and the Commission is forced
to utilise its powers under s.73 and s.74, that evidence cannot be admitted before the ACAT, which
174
See for example Human Rights Act 2004 (ACT) s 22(2)(i).
47
gives rise to the question as to the efficacy of providing the compelling powers in the first place. The
situation in relation to the inquiry powers of the Australian Health Practitioner Regulation Agency
(AHPRA) is instructive.
The most recent example I can identify of similar powers in the ACT are contained in the Health
Practitioner Regulation National Law (ACT). Part 1 of Schedule 5 provides it is a criminal offence not to
comply with an AHPRA investigator’s notice to give stated information or attend an interview. The
person may not rely on self-incrimination as a reason not to provide such information, but the
evidence is inadmissible against the person in any subsequent criminal proceedings except for an
offence against that schedule, or in relation to the falsity of the information. The evidence obtained in
AHPRA investigations is admissible, and is used, in subsequent civil proceedings, specifically in matters
relevant to the regulation of health practitioners, which generally occur before ACAT. The policy
rationale for this inconsistency is unclear, given the Human Rights Commission powers are vested in
the Health Services Commissioner, who also conducts investigations into registered health
practitioners, and who regulates health practitioners jointly with the relevant health practitioner
Boards. The consequence of this inconsistency is that potentially, a matter investigated by the
Commission which led to serious findings could at worst be unable to proceed in the ACAT, or at best
may require inefficient duplication of investigative processes by another authority. In the
discrimination area there is no other relevant authority.
Public accountability
55. What requirement, if any, should there be on the ACAT to publish reasons in matters under the
Discrimination Act?
Given the few discrimination cases that progress to full hearing and decision before the ACAT, and the
little jurisprudence we have on the application of the Act, I believe that written decisions should be
mandatory for all ACAT discrimination determinations. I believe that this is vitally important.
56. What provision should be made regarding the burden of proof in matters under the
Discrimination Act? For example, should the respondent be required to show that a protected
attribute was not a reason for conduct that has been shown to be unfavourable?
I agree with the findings of the recent Discrimination Experts Roundtable Report.175 Once a
complainant has established an arguable case of direct discrimination, the evidentiary burden should
shift to the respondent to establish that the reason for the impugned conduct or conditions was not
discriminatory. Similarly, in an indirect discrimination case, once the complainant has established that
a condition or requirement disproportionately impacts on them due to an attribute, the evidentiary
burden should then be on the respondent to show that the condition or requirement is reasonable in
all the circumstances. This is the approach in Canada, the US, the UK, and all of the European Union.176
These comparable jurisdictions have adopted this approach on the basis that it is very difficult for one
Discrimination Law Experts’ Roundtable, above n 4, 9 Recommendation 4.
For the position in the US see Texas Department of Community Affairs v. Burdine 450 US 248 (1981); for the position in
Canada see Basi v. Canadian National Railway (1984), 9 CHRR 4. D/5029, 5037 (CHRT); since 1997 the European Council
requires Member States to ensure that once a complaint has established prima facie discrimination the burden of proof shifts
to the respondent to prove that there was no discrimination: See European Council Burden of Proof Directive 1997/80/EC,
art 4(1); for a restatement of the Directive see EC Recast Directive 2006/54/EC; UK legislation now adopts this approach:
see Equality Act 2010 (UK) s 136. For more information see, inter alia¸ Human Rights and Equal Opportunity Commission,
An International Comparison of the Racial Discrimination Act 1975, Background Paper No 1 (2008) Chp 8, 79-96; see also
Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review 579.
175
176
48
party to prove the other party’s motivation for acting, and because in most cases all of the relevant
evidence is held by respondents.177 Shifting onus provisions are not novel. As the Discrimination
Experts Roundtable Report noted, ‘a shifting onus has a long and unremarkable history in Australian
industrial law, and continues in ss.361 and 783 of the FWA’.178
I propose that the Act should be amended to introduce a presumption that action was taken for the
reason alleged, unless the respondent proves otherwise. To ‘prove otherwise’, the respondent would
prove that the alleged discriminatory conduct was a proportionate means of achieving a legitimate
end or purpose.
57. What powers, if any, should ACAT have to respond to a successful representative complaint? For
example, should it be able to recommend that action be taken, such as monitoring by the ACT
Human Rights Commission?
See earlier discussion at Q51.
58. What provision, if any, should be made to prescribe how damages should be assessed? For
example, should legislation specify the factors to be taken into account when assessing damages? If
so, what factors should be taken into account?
I agree with the view of the Discrimination Experts Roundtable Report: ‘In any comparison with legal
claims that give rise to compensation for wrongful conduct, anti-discrimination complainants have
been very poorly compensated’.179 I have already noted how the complaints-based approach of the
Discrimination Act limits any systemic development of discrimination law in the ACT, but in leading to
uncertainty in the law, it may also hinder constructive attempts to resolve matters and provide little
guidance concerning assessment of damages.
In Victoria, ss.159 and 160 of the Equal Opportunity Act 2010 (Vic) provide authority for the Victorian
Human Rights and Equal Opportunity Commission to intervene or act as amicus curiae in proceedings.
159 Commission may intervene in proceedings
The Commission may, with the leave of the court or a tribunal, intervene in and be
joined as a party to proceedings in the court or tribunal that involve issues of equality
of opportunity, discrimination, sexual harassment or victimisation.
160 Commission may assist in proceedings as amicus curiae
The Commission may, with the leave of the court or tribunal, assist a court or tribunal,
as amicus curiae, in the following proceedings—
(b) Proceedings in which the Commission considers that the orders sought, or likely
to be sought, may significantly affect the right to protection against
discrimination of persons who are not parties to the proceedings;
(c) Proceedings that, in the opinion of the Commission, have significant implications
for the administration of this Act;
Discrimination Law Experts’ Roundtable, above n 4, 9. See also Jonathan Hunyor, ‘Skin-deep: Proof and inferences of
racial discrimination in employment’ (2003) 25 Sydney Law Review 535.
178
Discrimination Law Experts’ Roundtable, above n 4, 9.
179
Ibid 20.
177
49
(d) Proceedings where the Commission is satisfied that it would be in the public
interest for the Commission to assist the court or tribunal as amicus curiae.
Although there is no statutory right to intervene as an intervener or as amicus curiae at the end of
matters to make submissions only on damages, the Victorian Commission has routinely done so. It
may be beneficial to amend the Discrimination Act to provide for such a right in relation to the ACT
Human Rights and Discrimination Commissioner, accompanied by sufficient resources to intervene.
50