Equality and Discrimination Law in Australia: An Introduction 1107432251, 9781107432253

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

EQUALITY AND DISCRIMINATION LAW IN AUSTRALIA: AN INTRODUCTION Equality and Discrimination Law in Australia: An Introduction explores four decades of anti-discrimination laws in Australia. Beth Gaze and Belinda Smith argue that effective laws protecting against and deterring discrimination are vital for a fair future, and emphasise the theoretical and social contexts that underpin this area of the law. Their ground-breaking approach begins by analysing equality as a goal of the law, and acknowledges that to prevent discrimination, modern laws must challenge the beliefs, practices, systems and structures that enable it. The text is divided into three sections: the first addresses the social and conceptual context, history and framework of anti-discrimination laws; the second analyses the main elements of the law and the processes of enforcement; and the third explores broader avenues for pursuing equality beyond simply prohibiting discrimination. This book provides readers with a clear understanding of the development of Australia’s anti-discrimination laws, and builds a foundation for critical assessment of their strengths and limitations in addressing discrimination and promoting equality. Written in a clear and concise style, Equality and Discrimination Law in Australia: An Introduction is a vital resource for students, practitioners, and anyone who wants to understand this important field of law. Beth Gaze is Professor of Law at the University of Melbourne. Belinda Smith is an Associate Professor at the University of Sydney Law School.

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

EQUALITY AND DISCRIMINATION LAW IN AUSTRALIA: AN INTRODUCTION Beth Gaze and Belinda Smith

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

University Printing House, Cambridge CB2 8BS, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 4843/24, 2nd Floor, Ansari Road, Daryaganj, Delhi - 110002, India 79 Anson Road, #06-04/06, Singapore 079906 Cambridge University Press is part of the University of Cambridge. It furthers the University’s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence www.cambridge.org Information on this title: www.cambridge.org/9781107432253 © Cambridge University Press 2017 This publication is copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2017 Cover designed by Tanya de Silva-McKay Typeset by Aptara Corp Printed in Australia by Ligare Pty Ltd, November 2016 A catalogue record for this publication is available from the British Library A Cataloguing-in-Publication entry is available from the catalogue of the National Library of Australia at www.nla.gov.au ISBN 978-1-107-43225-3 Paperback Additional resources for this publication at www.cambridge.edu.au/academic/equality. Reproduction and communication for educational purposes The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of the pages of this work, whichever is the greater, to be reproduced and/or communicated by any educational institution for its educational purposes provided that the educational institution (or the body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. For details of the CAL licence for educational institutions contact: Copyright Agency Limited Level 15, 233 Castlereagh Street Sydney NSW 2000 Telephone: (02) 9394 7600 Facsimile: (02) 9394 7601 E-mail: [email protected] Reproduction and communication for other purposes Except as permitted under the Act (for example a fair dealing for the purposes of study, research, criticism or review) no part of this publication may be reproduced, stored in a retrieval system, communicated or transmitted in any form or by any means without prior written permission. All inquiries should be made to the publisher at the address above. Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Please be aware that this publication may contain several variations of Aboriginal and Torres Strait Islander terms and spellings; no disrespect is intended. Please note that the terms ‘Indigenous Australians’ and ‘Aboriginal and Torres Strait Islander peoples’ may be used interchangeably in this publication.

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

CONTENTS Acknowledgements

x

Abbreviations

xi

Table of cases

xiii

Table of statutes

xix

Introduction

PART 1 1

1.4

Introduction: Equality as a fundamental value Structure of this chapter Concepts of equality and discrimination, and the law 1.3.1 Equality 1.3.2 Discrimination Discrimination and law

7 9 10 13 14 16 22 26

Historical background to anti-discrimination law

29

2.1 2.2 2.3 2.4 2.5 2.6

30 30 33 34 36 38 39 40 43 45 46

2.7 2.8

3

INTRODUCTION

Equality, discrimination and law 1.1 1.2 1.3

2

1

Introduction The United Nations and non-discrimination The second strand – the American civil rights movement Australian social context Development of legislation in Australia Australian constitutional context 2.6.1 Commonwealth power to adopt anti-discrimination laws 2.6.2 Section 109: Conflicts between Commonwealth and state laws 2.6.3 Other constitutional aspects: The limits of federal powers Development and reform of the law over time Conclusion

Basic framework of legislation

47

3.1 3.2 3.3

48 48 51 51 56 59 61 61 63

3.4 3.5 3.6 3.7

Introduction Choices in designing legislation against discrimination Anti-discrimination laws 3.3.1 Prohibiting discrimination 3.3.2 Enforcement and remedies Fair Work Act 2009 (Cth) Positive duties Human rights legislation Conclusion

v

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PART 2 4

4.4

4.5

67

Introduction Structure and variation across legislation Formulating and conceptualising attributes 4.3.1 Why these attributes?: Pragmatism and principle 4.3.2 Symmetrical or asymmetrical: Liberal or substantive equality 4.3.3 Terminology: Grounds, attributes, characteristics 4.3.4 Width of protection: The attribute as status, activity, manifestation 4.3.5 Multiple and intersectional discrimination The attributes 4.4.1 Race and related attributes 4.4.2 Sex and related attributes 4.4.3 Disability 4.4.4 Other attributes Conclusion: The way forward

68 68 70 71 76 78 79 84 85 86 90 98 100 102

Prohibited conduct

104

5.1 5.2

105 105 108 118 125 129 131 134 137 137 138 139 140 141

5.3 5.4 5.5 5.6 5.7

5.8

6

65

The attributes 4.1 4.2 4.3

5

ANTI-DISCRIMINATION LEGISLATION

Introduction Discrimination 5.2.1 Direct discrimination 5.2.2 Indirect discrimination Reasonable adjustments Disability standards and action plans Harassment Vilification Associated prohibitions 5.7.1 Accessory liability 5.7.2 Advertising 5.7.3 Seeking information 5.7.4 Victimisation Conclusion

Areas 6.1 6.2 6.3

142 Introduction General scope of prohibition on discrimination Specific areas in which discrimination is prohibited 6.3.1 Work 6.3.2 Education 6.3.3 Goods and services 6.3.4 Other areas

143 143 145 145 151 152 154

vi Contents

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

6.4 6.5

6.6

6.7 6.8

7

154 155 156 156 157 157 160 161 163 164 165 165 166 167 169 172

Making rights effective: Institutions, procedures and remedies

173

7.1 7.2

174 175 178 179 180 183 186 187 188 188 190 190 191 191 193 194 196 199 200

7.3

7.4

7.5 7.6

PART 3 8

Harassment prohibitions and exceptions Common exceptions and defences 6.5.1 Reasonableness 6.5.2 Special measures 6.5.3 Statutory authority 6.5.4 Religious beliefs 6.5.5 Unjustifiable hardship 6.5.6 Work exceptions 6.5.7 Other categories of exceptions 6.5.8 Temporary exemptions Types of liability 6.6.1 Personal liability 6.6.2 Vicarious or attributed liability 6.6.3 All reasonable steps defence Distinctive features of the Racial Discrimination Act Conclusion

Introduction Processes and institutions of enforcement 7.2.1 Making a complaint 7.2.2 Time limits 7.2.3 Choosing which avenue to pursue Investigation and conciliation of complaints 7.3.1 Confidentiality of conciliation 7.3.2 After conciliation Adjudication 7.4.1 Applying to a court or tribunal 7.4.2 Interim orders and interlocutory proceedings 7.4.3 Mediation 7.4.4 Procedure and evidence at adjudication 7.4.5 Proof 7.4.6 Access to legal representation and the role of agencies 7.4.7 Remedies 7.4.8 Costs and the risks of litigation Evaluating enforcement Conclusion

ALTERNATIVE APPROACHES AND OPTIONS

201

Positive action

203

8.1 8.2

204 207

Introduction: What is positive action? When is positive action allowed?

Contents vii

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

8.2.1 Tests for special measures 8.2.2 Illustration using SDA 8.2.3 Distinctive approach of the RDA When is positive action required? 8.3.1 Workplace Gender Equality Act (WGE Act) 8.3.2 Public service duties Conclusion

209 212 214 218 219 223 224

Employment discrimination and the Fair Work Act

226

9.1 9.2 9.3

227 227 230 231 231 232 241 243 244 244 245 246 246 247

8.3

8.4

9

9.4

9.5 9.6

10

Introduction Background: Fair Work Act and general protections Section 351: ‘Discrimination’ 9.3.1 Which employees are covered? 9.3.2 Attributes 9.3.3 What is prohibited by s 351? 9.3.4 Exceptions to s 351(1) 9.3.5 Exercising a workplace right Enforcement 9.4.1 Who can take enforcement action? 9.4.2 Dispute resolution processes 9.4.3 Sanctions Interaction with awards/agreements Conclusion

Government action to advance equality: Human rights and positive measures 10.1 10.2 10.3

10.4

10.5 10.6 10.7

249

Introduction Protecting equality through bills of rights Constitutional context 10.3.1 Constitutional bills of rights 10.3.2 Constitutional or statutory bills of rights 10.3.3 Constitutional rights protection in Australia 10.3.4 Australia’s lack of constitutional protection against discrimination Statutory bills of rights and equality protection 10.4.1 The rights protected and their limits 10.4.2 Parliament – making legislation 10.4.3 The courts – interpreting legislation 10.4.4 The Executive – obligations on public authorities 10.4.5 Bringing an action to protect Charter rights 10.4.6 The limits of statutory protection of human rights Positive duties Procurement – the executive power Conclusion

250 250 251 252 254 255 256 257 258 261 261 263 264 266 266 268 270

viii Contents

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

11

Equality rights into the future

271

11.1 11.2 11.3

272 273 278 281 284 285 287 289 289 294

11.4

Introduction What role can and should law play in promoting equality? Alternative directions 11.3.1 Unified definition of discrimination 11.3.2 Duty to make reasonable adjustments 11.3.3 Shifting burden of proof 11.3.4 Enabling compliance: Codes of practice or guidelines 11.3.5 Costs 11.3.6 Expanding sanctions and public enforcement powers Conclusion

Appendix

295

Index

328

Contents ix

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

ACKNOWLEDGEMENTS Our underlying aim with this book is to widen understanding in Australia of this complex area of law in its context and conceptual framework. The challenges of writing a succinct discussion covering fifteen major pieces of legislation around the country need no explanation. In this book we have generally focused on the laws that have been the subject of the major cases, largely the federal laws and those from NSW and Victoria, where the majority of case law is decided. To complete references to all legislation, we have included an appendix that provides links to comparable provisions in all the laws. Writing the book extended over several years, and was greatly assisted by the efforts of a number of people. We are very grateful to David Jackson for initiating the project. We have been greatly assisted by the various staff who have overseen the project, including publisher Lucy Russell and copy editor Jane O’Regan, whose eye for detail and consistency has contributed significantly to the quality of the final text. We owe special thanks to the anonymous reviewers of the draft chapters, whose generous and insightful comments contributed substantially to the further development and improvement of the text. We thank Stephanie Batsakis and Ashleigh Pinto for their research assistance in compiling the comparative tables. Finally, we were both inspired by our parents and supported by our families, who allowed us the time to read, think, discuss and write. We are grateful to Denny, Miranda, Jojo and Julia, and Mark, Callum and Tara.

x

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

ABBREVIATIONS AA Act ACAT ADA ADANSW ADANT ADAQ ADAT ADB ADC AHRC AHRCA CEDAW CERD Charter CROC CRPD DAACT DDA ECHR ECJ EOASA EOAV EOAWA EOC EOWW Act EU FCA FCCA FMCA FWA FWC FWO HCA HRA HREOC ICCPR

Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) ACT Civil and Administrative Tribunal Age Discrimination Act 2004 (Cth) Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1992 (NT) Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1998 (Tas) Anti-Discrimination Board of NSW Anti-Discrimination Commission (Queensland, NT) Australian Human Rights Commission, formerly known as the Human Rights and Equal Opportunity Commission (HREOC) Australian Human Rights Commission Act 1986 (Cth) Convention on the Elimination of all forms of Discrimination Against Women Convention on the Elimination of all forms of Racial Discrimination Charter of Human Rights and Responsibilities Act 2006 (Vic) Convention on the Rights of the Child Convention on the Rights of Persons with Disabilities Discrimination Act 1991 (ACT) Disability Discrimination Act 1992 (Cth) European Court of Human Rights European Court of Justice Equal Opportunity Act 1984 (SA) Equal Opportunity Act 2010 (Vic) Equal Opportunity Act 1984 (WA) Equal Opportunity Commission (SA, WA) Equal Opportunity for Women in the Workplace Act 1999 (Cth) European Union Federal Court of Australia Federal Circuit Court of Australia, formerly the Federal Magistrates Court of Australia (FMCA) Federal Magistrates Court of Australia, now known as the Federal Circuit Court of Australia (FCCA) Fair Work Act 2009 (Cth) Fair Work Commission Fair Work Ombudsman High Court of Australia Human Rights Act 2004 (ACT) Human Rights and Equal Opportunity Commission, now known as the Australian Human Rights Commission International Covenant on Civil and Political Rights

xi

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ICESCR ILO ILO 111

NCAT NTCAT QCAT RDA RRTAV SAEOT SDA TASADT UDHR UN VCAT VEOHRC WASAT WGE Act WGEA

International Covenant on Economic, Social and Cultural Rights International Labour Organisation International Labour Organisation Convention concerning Discrimination in Respect of Occupation and Employment (1958) (No 111) NSW Civil and Administrative Tribunal NT Civil and Administrative Tribunal Queensland Civil and Administrative Tribunal Racial Discrimination Act 1975 (Cth) Racial and Religious Tolerance Act 2001 (Vic) SA Equal Opportunity Tribunal Sex Discrimination Act 1984 (Cth) Tasmanian Anti-Discrimination Tribunal Universal Declaration of Human Rights United Nations Victorian Civil and Administrative Tribunal Victorian Equal Opportunity and Human Rights Commission WA State Administrative Tribunal Workplace Gender Equality Act 2012 (Cth) Workplace Gender Equality Agency

xii Abbreviations

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TABLE OF CASES AB v New South Wales (2005) 194 FLR 156, 151 AB v NSW Minister for Education [2003] FMCA 16, 89 AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140, 154 AB v WA (2011) 244 CLR 390, 98 Abdulrahman v Toll Pty Ltd [2006] NSWADT 221, 167 Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915, 122 Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615, 129, 189 Aitken v Virgin Blue Airlines and Vandeven v Virgin Blue Airlines [2013] FCCA 981, 231 Aldridge v Booth (1988) 80 ALR 1 (1988) EOC 92–222, 40, 133 ALHMWU v Liquorland (Aust) Pty Ltd (2002) 114 IR 165; [2002] FCA 528, 235 AMC v Wilson (1996) 68 FCR 46, 115, 121 AMP v Goulden (1986) 160 CLR 330, 42 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237; [1980] HCA 8; (1984) EOC 92–003, 42, 81, 109, 129, 148 Applicant N v Respondent C [2006] FMCA 1936, 151 Arizona Governing Committee v Norris 463 US 1073 (1983), 164 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165; [1989] HCA 56, 78, 115, 119, 120, 121, 150, 179 Australian Medical Council v Wilson (1996) 68 FCR 46, 89, 90, 107, 115, 121 AWU v BHP Iron Ore Pty Ltd (2000) 106 FCR 482; [2001] FCA 3, 235 BAE Systems Australia Limited [2012] VCAT 349, 63, 260 Baird v State of Queensland [2006] FCAFC 162, 109 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251, 238 Bevilacqua v Telco Business Solutions (Watergardens) Pty Ltd [2015] VCAT 269, 93, 100, 193 Black Coal Mining Industry Award 2010 [2015] FWCFB 2192, 247 Bliss v Attorney-General of Canada [1979] 1 SCR 183, 80 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32, 59, 230, 234, 236, 237 Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13, 95 Brandy v HREOC (1995) 183 CLR 245, 44, 88 Brannigan v Department of Foreign Affairs and Trade [2000] HREOCA 10, 44 Briginshaw v Briginshaw (1938) 60 CLR 336, 117, 192 British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, 129, 234, 281, 283, 285 Bropho v HREOC (2004) 135 FCR 105, 242 Brown v Board of Education of Topeka 347 US 483 (1954), 26, 33, 253, 277 Bruch v Commonwealth [2002] FMCA 29, 216 Bunning v Centacare (2015) 293 FLR 37, 96, 97 Burgess v Director of Housing [2014] VSC 648, 265 Bush & Campbell Pty Ltd (Enforcable Undertaking, FWO, 5 November 2012), 183, 291 C v Commonwealth [2015] FCAFC 113, 145 Cain v The Australian Red Cross Society [2009] TASADT 3, 154

xiii

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Frontmatter More Information

Carr v Boree Aboriginal Corp [2003] FMCA 408, 88 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436, 22 Castles v Secretary, Dept of Justice [2010] VSC 310, 261 Catch the Fire Ministries v Islamic Council of Victoria (2006) 15 VR 207, 137 Catholic Care (Diocese of Leeds) v Charity Commission of England and Wales [2012], UKUT (TCC) 395 Catholic Education Office v Clarke [2003] FCA 1085, 210 Centennial Northern Mining Services Pty Ltd v CFMEU (No 2) [2015] FCA 136, 247 CFMEU v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265, 244 CFMEU v BHP Coal Pty Ltd [2014] HCA 41, 237, 239, 241 CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76, 241, 244, 248 Christian Youth Camps v Cobaw Community Health Services Ltd [2014] VSCA 75, 154, 158, 159, 166 Citizens United v Federal Election Commission, 558 US 310 (2010), 254 City of Casey – Casey Aquatic & Recreation Centre [2012] VCAT 893, 212 City of Los Angeles, Department of Water and Power v Manhart 435 US 702 (1978), 164 Clarke v Catholic Education Office (2003) 202 ALR 340, 152 Clarke v Nationwide News [2012] FCA 307, 135 Cobaw Community Health Services v Christian Youth Camps Ltd & Anor [2010] VCAT 1613, 158 Coco v R (1994) 179 CLR 427, 62, 252 Coleman v Attridge Law (European Court of Justice Case C-303/06) [2008] IRLR 722, 83 Colyer v State of Victoria (1998) 3 VR 759, 210 Commissioner of Police v Mohamed [2009] NSWCA 432, 153 Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85; [2008] FCAFC 104, 44, 182 Commonwealth v Evans [2004] FCA 654, 113, 150 Commonwealth v HREOC (1993) 46 FCR 191, 113 Commonwealth Bank of Australia v HREOC (1997) 80 FCR 78, 122, 124, 150 Constantine v Imperial Hotels Ltd [1944] KB 693, 26 Cooper v HREOC (1999) 93 FCR 481, 138 Croome v Tasmania (1997) 191 CLR 119, 43 Daniels v Hunter Water Board (1994) EOC 92–626, 83, 96, 131 Dao v Australian Postal Corporation (1987) 162 CLR 317, 42, 84 Davies v Victoria [2000] VCAT 819, 100 Dekker v VJV-Centrum Plus (European Court of Justice, C-177–88, 8 Nov 1990), 80 Department of Health v Arumugam [1988] VR 319, 192 Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74, 150 Director of Housing v Sudi [2011] VSCA 266, 265 Dopking v Dept of Defence (1992) EOC 92–421, 110 DPP v Kaba [2014] VSC 52, 262 Duncan v Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78, 116 Ealing London Borough Council v Race Relations Board [1972] AC 342, 89 Eatock v Bolt (2011) 197 FCR 261 [2011] FCA 1103, 135, 136, 179, 196 Elliott v Nanda & the Commonwealth (2001) 111 FCR 240, 133, 138 Employment Services Australia v Poniatowska [2010] FCAFC 92, 110, 149 Escobar v Rainbow Printing Pty Ltd [2002] FMCA 22, 121 Evans v NCA [2003] FMCA 375, 147 Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, 189 Fares v Box Hill College of TAFE (1992) EOC 92–391, 84 Fernwood Fitness Centres (1996) EOC 92–782, 78 Finance Sector Union v Commonwealth Bank (1999) 89 FCR 417, 189 Finney v Hills Grammar School [1999] HREOCA 14, 152 Fisher v University of Texas 570 US_(2013), 254 Fisher v University of Texas 579 US_(2016), 254 Font v Paspaley Pearls Pty Ltd [2002] FMCA 142, 133 Fratas v Drake International Ltd [2000] EOC 93–038, 100, 131

xiv Table of cases

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FWO v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170, 231 FWO v Wongtas [2012] FCA 30, 246 Gama v Qantas (2008) 167 FCR 537, 100 Gelduldig v Aiello 417 US 484 (1974), 80 General Electric Co v Gilbert 429 US 551 (1976), 80 General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605, 234 Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, 43, 88, 170, 205, 209, 210, 215, 216 Gluyas v Google Inc [2010] VCAT 540, 44 Goode v Common Equity Housing [2014] VSC 585, 265 Griggs v Duke Power Co, 401 US 424 (1971), 26, 34, 54, 118, 233 Haines v Leves (1987) 8 NSWLR 442, 109, 151 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 58, 133, 195 Hanover Welfare Services Ltd [2007] VCAT 640, 98 Haraksin v Murrays Australia Ltd [2010] FCA 1133, 198 Haraksin v Murrays Australia Ltd (No 2) [2013] FCA 217, 129, 153 Heidt v Chrysler Australia Ltd (1976) 13 ALR 365, 239 Hein v Jacques Ltd (1987) EOC 92–188, 101 Heraud v Roy Morgan Research Ltd [2016] FCCA 185, 239 Hickie v Hunt & Hunt (1998) EOC 92–910, 92, 121, 147 Hills Grammar School v HREOC (2000) 100 FCR 306, 160 Hodkinson v Commonwealth (2011) 248 FLR 409, 231, 232, 236, 248 Horne v Press Clough Joint Venture (1994) EOC 92–591, 149, 151, 167 Howard v Geradin Pty Ltd t/a Harvard Securities (2004) EOC 93–358, 168 Howe v Qantas Airways Ltd (2004) 188 FLR 1, 157 Hozack v Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441, 242 HREOC v Mount Isa Mines (1993) 46 FCR 301, 115 Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827, 163 Hurst v Queensland (2006) 151 FCR 562, 122, 152 Hurst & Devlin v Queensland [2005] FCA 405, 152 Ibrahim v Australian Dental Council [2012] FMCA 612, 89 Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960, 113 Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936, 164, 193 Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36, 126, 129, 130, 153, 177, 178, 181 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 80, 110, 153, 284 Jacomb v Australian Municipal Administrative Clerical & Services Union (ASU) (2004) 140 FCR 149, 205, 209, 210, 212 Jamieson v Benalla Golf Club Inc [2000] VCAT 1849, 100 Jones v Queensland Tertiary Admissions Centre Limited (No 2) (2010) 186 FCR 22, 235 Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218, 246 Jones v Scully (2002) 120 FCR 243, 87, 179 Jones v Toben [2002] FCA 1150, 179, 189 Juwa v Blue Cross Animals Society of Victoria (2015) FWC 5476, 183 Kapoor v Monash University (2001) 4 VR 483, 90 Kartinyeri v Commonwealth (1998) 195 CLR 337, 39, 257 Khan v Commissioner of the NSW Department of Corrective Services [2001] NSWADTAP 1, 88 King v Jetstar [2012] FCA 413, 198 King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8, 153, 161 King-Ansell v Police [1979] NZLR 531, 533–4, 87 Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402, 233, 236 Konrad v Victoria Police [1999] FCA 988, 145 Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 39, 48, 109 Koppen v Commissioner for Community Relations (1986) 11 FCR 360, 183

Table of cases xv

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Kruger v Commonwealth (the Stolen Generations case) (1997) 190 CLR 1, 45 Kubat v Northern Health [2015] FCCA 3050, 241 Kuyken v Chief Commissioner of Police [2015] VSC 204, 100, 259, 262 Lai v Symantex (Australia) Pty Ltd [2013] FCCA 625, 231 Leeth v Commonwealth (1992) 174 CLR 455, 45 Lewis v Qantas Airways Ltd (1981) 54 FLR 101, 239 Lifestyle Communities Ltd (No 3) [2009] VCAT 1869, 63, 209, 260, 264 Lightning Bolt Co v Skinner [2002] QCA 518, 101 Loscialpo v NSW Police Service [2000] EOC 93–042, 100 Mabo v Queensland (No 1) (1988) 166 CLR 186, 39, 43, 62, 170, 171 Mabo v Queensland (No 2) (1992) 175 CLR 1, 43 Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202, 89 Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8, 115, 192 Maloney v R [2013] HCA 28; (2013) 298 ALR 308, 43, 215, 216 Mandla v Dowell Lee [1983] 2 AC 548, 88, 121 Marsden v HREOC [2000] FCA 1619, 100 Mayer v ANSTO [2003] FMCA 209, 121, 147 McBain v Victoria [2000] FCA 1009, 43, 62, 154, 171 McBride v Victoria (No 1) [2003] FMCA 285, 149 McCormack v Commonwealth [2007] FMCA 1245, 134 McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 1563, 100 McGlade v Lightfoot (2002) 124 FCR 106, 196 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 511, [2006] FCA 828, 235 McIntyre v Special Broadcasting Services Corporation [2015] FWC 6768, 242 McLeod v Power (2003) 173 FLR 31, 88 Members of the Board of the Wesley Mission Council v OV (No 2) [2009] NSWADTAP 57, 242 Miller v Wertheim [2002] FCAFC 156, 87 Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 235 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1, 262 MUA v Patrick Stevedores (No 1) Pty Ltd (1998) 79 IR 281, 235 Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256, 89 Nagle v Feilden [1966] 2 QB 633, 26 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, 239 New South Wales v Amery (2006) 230 CLR 174, 120, 149 Nojin v Commonwealth [2012] FCAFC 192; (2012) 208 FCR 1, 149, 179, 181 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490, 91 NSW v Commonwealth (2006) 229 CLR 1, 40 O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC 92–023, 132, 133, 150 OV & OW v Wesley Mission Council [2010] NSWCA 155, 158 OV and anor v QZ and anor (No 2) [2008] NSWADT 115, 154 Penhall-Jones v State of NSW [2008] FMCA 832, 134 Philip v NSW [2011] FMCA 308, 86, 90 Plessey v Ferguson 163 US 537 (1896), 33 Poppy v Service to Youth Council Inc (2014) 317 ALR 195, 82, 113, 150, 181 Proudfoot v ACT Board of Health (1992) EOC 92–417, 78, 154, 156 Pulis & Banfield v Moe City Council (1986) EOC 92–170, 78 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, 40, 99, 109–115, 125, 126, 152, 232, 240, 268, 282 Qantas Airways Ltd v Christie (1998) 193 CLR 280, 101, 150, 162, 241 Qantas Airways Ltd v Gama [2008] FCAFC 69; (2008) 167 FCR 537, 85, 117, 131, 149, 192 Queensland v Mahommed [2007] QSC 18; (2007) EOC 93–452, 154 R v Drybones [1970] SCR 282, 253

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R v Equal Opportunity Board; Ex parte Burns [1985] VR 317, 132 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 44 R v Momcilovic [2010] VSCA 50, 262 Rainsford v Victoria (No 2) (2004) EOC 93–353, 154 Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341, 236 Re City of Brunswick (1992) EOC 92–450, 78 Re Morodara [1998] VADT 90, 165 Re Prezzi v Discrimination Commissioner and Quest Group (1996) 39 ALD 729, 114 Regents of the University of California v Bakke 438 US 265 (1978), 24 Richardson v ACT Health and Community Care Service (2000) 100 FCR 1, 210 Richardson v Oracle Corp Australia Pty Ltd (No 2) [2014] FCAFC 139, 195, 198, 290 Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102, 197 Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, 134, 196 Richold v State of Victoria, Department of Justice [2010] VCAT 433, 95, 129 Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160, 147 Ross v University of Melbourne (1990) EOC 92–170, 78 Sapevski v Katies Fashions (Australia) Pty Ltd [1997] IRCA 219, 233 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; [2016] FCAFC 4, 101, 231, 232, 235, 242, 246 Scott v Telstra (1995) EOC 92–117, 160 Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251, 122, 123, 124 Sharma v Legal Aid (Qld) [2002] FCAFC 196, 117, 192 Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern (European Court of Justice, C-207/98, 3 Feb 2000), 80 Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44, 150 Sklavos v Australasian College of Dermatologists [2016] FCA 179, 126 Slattery v Manningham City Council [2013] VCAT 1869, 114, 265 Slattery v Manningham City Council [2014] VCAT 1442, 195 South Pacific Resort Hotels v Trainor [2005] FCAFC 130, 166, 167 Stanley v Service to Youth Council Inc (2014) 225 FCR 317, 82, 150, 181 State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184, 59, 112, 231, 240 Stephens v Australian Postal Corporation (2011) 207 IR 405, 232 Stevens v Fernwood Fitness Centres [1995] VADT 7, 164 Stokes v Royal Flying Doctor Service (2003) 176 FLR 66, 189 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468, 40 Styles v Murray Meats Pty Ltd (2005) EOC 93–387, 168 Sullivan v Dept of Defence (1992) EOC 92–421, 110 SUPRA v Minister for Transport [2006] NSWADT 83, 89 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217, 90, 109 Thomson v Orica Australia Pty Ltd [2002] FCA 939; (2002) 116 IR 186, 82, 92, 93, 113, 147, 149 Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294, 90, 150 Toll Pty Ltd t/as Toll Express v Abdulrahman [2007] NSWADTAP 70; [2008] EOC 93–482, 89, 131 Toonen v Australia (HRC, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/ C/50/D/88/1992 (4 April 1994), 43, 95 Trapman v Sydney Water Corporation & Ors [2011] FMCA 398, 131 Travers v New South Wales (2001) 163 FLR 99, 122 Turley v Allders Department Stores [1980] ICR 66, 80 Ucchino v Acorp Pty Limited (2012) 218 IR 194, 231 United States v Carolene Products Co, 304 US 144 (1938), 38, 72 University of Ballarat v Bridges [1995] 2 VR 418, 116 University of Wollongong v Metwally (1983) 158 CLR 447, 41 Vata-Meyer v Commonwealth [2015] FCAFC 139, 109 Vergara v Ewin [2014] FCAFC 100, 133, 134, 155, 165, 167 Vickers v Ambulance Service of NSW [2006] FMCA 1232, 148

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Victoria v Macedonian Teachers Association of Victoria (1999) 91 FCR 47; [1999] FCA 1287, 115, 118, 192 Victoria v McKenna [1999] VSC 310, 117 Victoria v Schou [2001] VSC 321; (2004) 8 VR 120; [2004] VSCA 71, 95, 123, 147 Victoria v Sinnapan (No 2) [1995] 2 VR 242, 151 Virgin Blue Airlines v Hopper [2007] QSC 75, 101 Viskauskas v Niland (1983) 153 CLR 280, 40 Walker v Cormack [2011] FCA 861, 141 Walker v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284, 107 Wardley v Ansett Transport Industries (1984) EOC 92–002, 81, 82, 83, 92 Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664, 151 Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 26 Waterhouse v Bell (1991) 25 NSWLR 99, 83, 95 Waters v Public Transport Corporation (1991) 173 CLR 349, 80, 107, 115, 119, 122, 123, 124, 153, 284 Watts v Australian Postal Corporation [2014] FCA 370, 126 Western Australia v Commonwealth (1995) 183 CLR 373, 43 Western Australia v Ward (2002) 213 CLR 1, 43 Whitehead v Criterion Hotel, Geelong [1985] EOC 92–129, 92 Wik Peoples v Queensland (1996) 187 CLR 1, 257 Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056, 231 Williams v Tandanya Cultural Centre (2001) 163 FLR 203, 88 Willmott v Woolworths Ltd [2014] QCAT 601, 148 Wintle v RUC Cementation Mining Contractors Pty Ltd (No3) [2013] FCCA 694, 231 Wolfe v Australia and New Zealand Banking Group Limited [2013] FMCA 65, 231 Wollongong City Council v Bonella [2002] NSWADTAP 26, 150 Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236, 243 X v Commonwealth (1999) 200 CLR 177, 148, 162, 241 X v McHugh (1994) 56 IR 248, 112 Zareski v Hannanprint Pty Ltd [2011] NSWADT 283, 195

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TABLE OF STATUTES Commonwealth Acts Interpretation Act 1901 ss 2D–2F, 95 s 15AA, 80, 231, 233, 263, 281, 284 s 15AB, 231, 233 Affirmative Action (Equal Opportunity for Women) Act 1986, 219, 220, 267 s 3, 220 s 6, 220 s 8, 221 s 12, 220 s 13, 220 s 19, 220 Age Discrimination Act 2004, 37, 51, 52, 54, 113 s 5, 100 s 10, 40 s 12, 41 s 12(3), 41 s 14, 182 s 15(2), 122 s 18(2), 146 s 18(4), 56 s 25, 139 s 32, 139 s 33, 209, 211 s 35, 158 s 39, 56 s 39(8), 157 s 44, 164, 211 Australian Human Rights Commission Act 1986, 15, 37, 51, 61, 70, 101, 129, 133, 164, 176, 181, 247 s 3, 137, 190 s 3(1), 61, 70, 102, 178, 179 s 4, 152 s 11(1)(f), 61 s 11(1)(g)–(o), 61 s 11(1)(o), 194 ss 19A–29, 61 s 21, 185 s 31, 102 s 31(b), 70, 102 s 31(b)(ii), 70

s 46P, 152 s 46P(1), 178 s 46P(2), 178 s 46P(4), 178 s 46PB, 179 s 46PC, 179 s 46PH, 179, 188 s 46PH(1)(b), 179 s 46PH(1)(h), 179 s 46PH(1)(i), 187 s 46PI, 185 s 46PJ, 185 s 46PK, 185 s 46PK(2), 185, 186 s 46PK(5)–(7), 185 s 46PM, 185 s 46PO, 188, 189 s 46PO(1), 178 s 46PO(2), 179 s 46PO(3), 188 s 46PO(4), 58, 194, 195 s 46PO(6), 190 s 46PP, 190 s 46PQ, 190 s 46PR, 191 s 46PS, 186 s 46PT, 188 s 46PU, 181 s 46PV, 184, 194 s 46PW, 247 s 49, 186 s 49(1)–(2), 186 sch 1, 108 Australian Human Rights Commission Regulations 1989 reg 4, 70, 102 Commonwealth Electoral Act 1918, 35 Conciliation and Arbitration Act 1904, 42 s 9, 230 Constitution, 38 s 25, 266 s 27, 35 s 51, 38

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s 51(xx), 40 s 51(xxvi), 35, 257, 266 s 51(xxix), 39 s 51(xxxvi), 39 s 52, 38 s 80, 38, 62 s 92, 44 s 109, 40, 42, 43, 170–1, 180, 214, 215 s 116, 38 s 117, 38, 44, 251 s 128, 38, 251 Crimes Act 1914 s 4AA, 139 Disability (Access to Premises-Buildings) Standards 2010, 99, 129 Disability Discrimination Act 1992, 37, 40, 51, 52, 54, 68, 79, 82-8, 98, 99, 111, 113, 122, 126, 130, 134, 152, 160, 182, 207, 277 s 4, 126 s 4(1), 99, 100 s 5(1), 111, 126 s 5(2), 126 s 5(3), 126 s 6(2), 126 s 6(3), 122 s 6(4), 122 s 7, 99 ss 7–9, 82 s 8, 99 s 9, 99 s 11, 126, 160 s 12, 40 s 13, 41 s 14, 144, 182 ss 16–21, 145 s 18, 163 s 21A, 56, 162 s 21A(1)(b), 163 s 21A(3), 162 s 21B, 113, 160 s 22(3), 152 s 29A, 113, 160 s 30, 139 s 30(3), 139 s 31, 129 s 32, 129, 152 s 34, 130, 153 ss 35–39, 134, 155 s 42, 56 s 44, 56 s 45, 209, 210, 211 s 45(1)(a), 210 s 45(1)(b), 210 s 45(1)(c), 210

s 47(1), 157 s 55, 164, 211 s 60, 130 s 61, 130 s 64, 130 s 122(2), 167 s 122(4), 167 Disability Discrimination and Other Human Rights Legislation Amendment Act 2009, 176 Disability Standards for Accessible Public Transport 2002, 129, 130, 152, 153, 177 sch 1, 130 s 1.4, 130 s 2.4, 130 s 3.3, 130 s 4.1, 130 Disability Standards for Education 2005, 129, 152 Equal Employment Opportunity (Commonwealth Authorities) Act 1987, 223 s 3, 224 Equal Opportunity for Women in the Workplace Act 1999, 219, 220, 269 s 3(4), 220 s 13C, 220 Evidence Act 1995, 192 s 140, 117 s 140(1), 117 Fair Work Act 2009, 51, 53, 59-61, 62, 69, 70, 94, 106, 145, 180, 182, 227, 247 pt 2–2, 229 pt 2–7, 247 pt 3–1, 101, 227, 229, 231 s 3, 229, 233 s 3(a), 233 s 12, 235, 243, 247 s 65, 229 s 70, 229 s 96, 229 s 136(2), 246 s 136(2)(a), 157 s 137, 246 s 139, 236 s 150, 247 s 153, 236, 246 s 153(1), 157 s 186, 246 s 186(4), 157 s 194, 246 s 194(a), 157 s 194(b), 247 s 195, 157, 236, 246 s 253, 246 s 294, 236

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s s s s s s s s s s

302, 229 336, 183, 229 336(1)(c), 233 336(1)(d), 233 338(1)(a)–(c), 231 338(1)(d), 231 338(1)(e), 231 338(1)(f), 231 338(2), 231 340, 102, 227, 229, 235, 237, 238, 243, 246, 248 ss 340–342, 59 s 342, 59, 60, 233, 234, 235, 236, 247 s 342(1), 59, 234, 235, 236 s 342(2), 234 s 346, 227, 229, 235, 237, 237-40, 246 s 347, 240 s 351, 59, 60, 101, 102, 162, 227, 229, 230, 232, 232–4, 237, 239, 240, 242, 243, 246, 281 s 351(1), 59, 70, 241, 242 s 351(2), 241, 243, 248 s 351(2)(a), 227, 236, 242, 243 s 351(2)(b), 241 s 351(2)(c), 241 s 351(3), 242 s 352, 227 s 356, 247 s 360, 236 s 361, 237, 240 s 361(1), 237 s 365, 244, 245 s 366, 245 s 368, 245 s 369, 60, 245 s 369(2), 245 s 370, 245 s 371(1), 60 s 372, 244, 245, 246 s 374, 60, 245 s 386, 235 s 386(1)(a), 235 s 386(1)(b), 235 s 539, 60, 246 s 539(2), 244 s 540, 244 s 544, 183, 246 s 545, 60, 246 s 545(2)(a), 246 s 546, 60, 246 s 546(2)(b), 246 s 546(3), 246 s 570, 60, 246, 248 s 578(c), 229 s 682, 245

s 723, 230, 242, 243 s 772, 230, 231, 242 s 772(1)(f), 231 s 773, 230, 231 s 774, 183 s 783, 237 Fair Work Regulations 2009, 236 Federal Circuit Court Rules 2001 r 21.03, 198 Federal Court of Australia Act 1976 pt IVA, 179 Federal Court Rules 1979 r 40.08, 197 Federal Court Rules 2011 r 25.14, 197 r 40.51, 198 Hindmarsh Island Bridge Act 1997, 172, 256 Human Rights Commission Act 1981, 36 Human Rights and Equal Opportunity Commission Act 1986, 36 Human Rights (Parliamentary Scrutiny) Act 2011, 62, 261 Human Rights (Sexual Conduct) Act 1994, 43 Immigration Restriction Act 1901, 38 Industrial Relations Reform Act 1993, 228 s 170DF(1)(f), 228 Life Insurance Act 1945, 42 Marriage Act 1961, 157 Native Title Act 1993, 61, 172 s 7, 257 s 7(2), 257 Native Title Amendment Act 1998, 257 sch 1 s 3, 257 s 7(2), 172 Northern Territory National Emergency Response Act 2007 s 6A, 217, 257 s 30A, 217 s 91A, 217 s 132, 217 s 132(1), 172 s 132(2), 171 Postal Services Act 1975, 42 Public Service Act 1999, 223 s 10A(1)(f), 224 s 10A(1)(g), 224 s 18, 223 Racial Discrimination Act 1975, 13, 27, 36, 39, 44, 45, 48, 51, 52, 55, 68, 89, 108, 121, 169–72, 277 s 3(1), 170 s 5, 39, 87 s 6, 40, 182 s 6A, 41

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s s s s s

6A(1), 41 6A(2), 41 8, 210, 214, 215, 216, 236 8(1), 171, 215 9, 36, 39, 43, 108, 109, 169, 170, 214, 215, 216 s 9(1), 36, 69, 87, 106, 108, 109, 115, 121 s 9(1A), 121 s 9(1A)(c), 121 s 9(2), 151 s 10, 43, 62, 106, 144, 157, 170-2, 214, 215, 216, 217, 256 ss 11–15, 43, 108, 169, 214, 216 ss 11–17, 36 s 12(3), 163 s 15(5), 163 s 17, 137 s 18C, 45, 82-8, 135, 136 s 18C(2), 135 s 18D, 135 s 132, 257 Racial Discrimination Amendment Act 1980, 36 Racial Discrimination Amendment Act 1981, 36 Sex Discrimination Act 1984, 35, 37, 39, 43, 44, 45, 51, 52, 54, 55, 68, 69, 72, 77, 79, 81, 90–1, 92, 94, 97, 98, 113, 121, 123, 132, 133, 138, 154, 171, 182, 207, 236, 243, 277 s 4, 97, 189 s 4(1), 40, 91, 95, 96, 98, 145 s 4A, 94 s 4B, 93 s 5(1), 81–8, 108 s 5(2)–(3), 119 s 5A(1), 81-8 s 7A, 94 s 7B, 122 s 7B(2), 123 s 7C, 122 s 7D, 56, 156, 208, 211, 212, 213 s 7D(1), 212 s 7D(2), 212 s 7D(3), 210, 212, 213 s 7D(4), 212, 214 s 9, 40 s 9(10), 39 s 10, 41 s 10(3), 180 s 10(4), 180 s 11, 41 s 12, 144, 182 s 14, 55 s 14(1)–(2), 146 s 14(2), 146

s 14(3), 163 ss 15–20, 145 s 17, 163 s 19, 212 s 21(2)(c), 151 s 21(3), 152 s 21(4), 151 s 22, 189 s 23(3A), 159 s 23(3)(a), 163 s 23(3)(b), 157 s 27, 139 s 28A, 132 s 28A(1A), 134 s 28A(2), 133 s 28B, 132, 134, 155 ss 28B–28L, 155 s 28B(6), 155, 165 s 28B(7), 155, 165 s 30, 163 s 30(2), 56 s 31, 94 s 37, 56, 97 ss 37–38, 158 s 37(1)(a)–(c), 158 s 37(1)(d), 158 s 37(2), 159 s 38, 56, 97 s 40, 56, 157, 247 s 40(1)(g), 157 s 41A, 164 s 41B, 164 s 43, 164 s 44, 56, 164, 211 s 45, 164 s 86, 138 s 94, 140, 243 s 94(3), 140 s 105, 138 s 106(1), 166 s 106(2), 167 Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010, 217 Stronger Futures in the Northern Territory Act 2012, 171, 217 s 7, 172 s 33, 172 s 37, 172 Vietnam Era Veterans’ Readjustment Assistance Act 1974, 269 Work Health and Safety Act 2011 s 32, 218

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Workplace Gender Equality Act 2012, 51, 61, 207, 218, 219–23, 267, 269, 270 s 3, 222 s 3(1), 221 s 3(2A), 221 s 13, 221 s 13A, 221 s 13C, 222 s 14, 222 s 16(1), 222 s 16(2), 222 s 16A, 222 s 16B, 222 s 18, 222, 269 s 19, 222 s 19(2), 221 s 19(3), 221 s 19C, 222 Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No 1) sch 1, 222 Workplace Gender Equality (Minimum Standards) Instrument 2014, 222 Workplace Relations Act 1996, 101 s 568(2)(e), 246 s 659(2)(f), 228

ACT Discrimination Act 1991, 102, Appendix 296–327 s 7, 78 s 27, 211 Human Rights Act 2004, 15, 54, 62–3, 257 s 8, 63, 258 s 23, 258 s 27, 258 s 27A, 258 s 28, 63, 260 s 31, 261 s 40, 263 s 40A, 263 s 40B, 263 s 40C, 264, 265 Public Sector Management Act 1994 ss 39–41, 224 s 84, 97

New South Wales Aboriginal Land Rights Act 1983 s 4(1), 81–8 Anti-Discrimination Act 1977, 40, 41, 55, 69, 89, 94, 115, 207, 211, Appendix 296–327

pt 9A, 224 s 4(1), 145, 153 s 20C, 136 s 21, 211 s 25(1A), 94 s 25(2A), 94 s 25(2)(C), 150 s 25(3), 56 s 35, 211 s 40(3), 56 s 49D, 56 s 49ZYN(2)(b), 211 s 49ZYR, 211 s 50, 140 s 50(2), 140 s 51(1), 139 s 52, 138 s 53(3), 167 s 54, 56, 149 s 54(1)(d), 157 s 87A, 179 s 87B, 179 s 87C, 178 s 92, 287 ss 93A–94A, 188 s 96, 190, 287 s 104, 210 s 108(2), 182 s 108(2)(e), 195 s 120A, 288 s 126, 164, 211 s 126A, 164, 211 Births, Deaths and Marriages Registration Act 1995, 91 Civil and Administrative Tribunal Act 2013 s 38(2), 191 s 60, 57, 182 s 60(3), 57 Government Sector Employment Act 2013, 224 s 63(2), 224

Northern Territory Anti-Discrimination Act 1992, Appendix 296–327 s 20, 106, 108 Anti-Discrimination Regulations reg 2, 182 Public Sector Employment and Management Act s 5A, 224 s 5E, 224 s 16, 224

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Queensland Anti-Discrimination Act 1991, 78, 101, Appendix 296–327 s 7, 78 s 103, 211 s 105, 211 s 155, 189 s 164A, 188 s 166, 188 ss 194–200, 179 s 209(1)(f), 195 Liquor Act 1992, 171 Public Service Act 2008 s 31, 224 QCAT Rules 2009 r 86, 197 Queensland Coast Islands Declaratory Act 1985, 43, 171

South Australia Equal Opportunity Act 1984, Appendix 296–327 s 95C, 193 Pitjantjatjara Land Rights Act 1981, 42, 215–16 Prohibition of Discrimination Act 1966, 36, 56 Public Sector Act 2009 s 65, 224

Tasmania Anti-Discrimination Act 1998, 44, 78, Appendix 296–327 s 14(2), 81-8 s 15(2), 81-8 s 51, 159 ss 51–52, 182 s 52, 159 s 60, 178 s 60(2), 189 s 89(1)(h), 195 State Service Act 2000, 224

Victoria Charter of Human Rights and Responsibilities Act 2006, 15, 54, 62–3, 114, 257 s 4(1), 263 s 4(2), 263 s 4(4), 263 s 7, 63 s 7(2), 260, 264 s 8, 63, 258, 259, 265 s 8(1), 259 s 8(2), 259 s 8(3), 259

s 8(4), 63, 259, 260, 264 s 15, 265 s 18, 265 s 19(2), 258 s 20, 258 s 25(1), 262 s 28, 261 s 29, 261 s 30, 261 s 31, 261 s 32, 261, 262, 265 s 33, 262 s 36, 262 s 37, 262 s 38, 263 s 39, 63, 264 s 39(3), 264 s 41, 265 Corrections Act 1986, 259 Equal Opportunity Act 1977, 42, 45 s 116(d), 41 Equal Opportunity Act 1984, 69, 78, 90, 115 s 340, 102 Equal Opportunity Act 2010, 128, 159, 210, 259, 265, 278, Appendix 296–327 pt 9, 57, 184, 268, 293 s 3, 15, 54 s 3(1), 63, 259 s 4, 182 s 4(1), 5, 94, 101, 102 s 5, 144 s 6, 259 s 7(1), 260 s 7(1)(b), 128, 266 s 7(2), 260 s 8(1), 114 s 9(3), 124 s 9(3)(e), 268, 285 s 10, 115 s 12, 156, 211, 212 s 12(6), 210 s 15, 169 s 15(2), 219, 267 s 15(3)–(4), 219 s 17, 94, 128, 160 s 19, 94, 128, 129 s 19(1), 129 s 20, 128 s 22, 94, 128, 208 s 23, 128 s 32, 94, 128 s 33, 128 s 34, 128 s 40, 128

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s 41, 128 s 45, 128 s 46, 128 ss 82–84, 158 s 84, 97, 159 s 89, 212 ss 89–91, 164 s 90, 212, 260 s 103, 140 s 104, 210 s 104(1)(g), 140 s 105, 138 s 107, 139 s 108(1), 139 s 110, 167 s 114, 178 s 114(1), 179 s 117, 186 s 122, 178, 188 s 123(2)(b), 189 s 124, 189 s 127, 189 s 148, 131, 288 ss 148–150, 175 s 149, 131 s 152, 131 s 152(3), 131 ss 155–160, 184 s 159, 194 s 160, 194 Equal Opportunity (Amendment) Act 1993, 184 Infertility Treatment Act 1995, 43 Public Administration Act 2004, 224 s 8, 224 Racial and Religious Tolerance Act 2001, 55 Residential Tenancies Act, 265 Victorian Civil and Administrative Tribunal Act 1998, 196 s 109, 182

Western Australia Equal Opportunity Act 1984, 196, Appendix 296–327 pt IIAA, 98 pt IXA, 223 s 85, 184 s 93, 184 s 93(2)(a), 193 s 93A, 184 s 127, 182 s 140, 223 s 145, 223 s 146, 223

Gender Reassignment Act 2000, 98

Canada Canadian Bill of Rights SC 1960 c 44, 33, 253, 255 Canadian Charter of Rights and Freedoms, 33, 69, 254 art 1, 63 pt II, 254 s 15(1), 254 s 15(2), 254 s 28, 254 Canadian Human Rights Act 1977, 85 Canadian Human Rights Act 1985, RSC 1985, c H-6 s 3, 69, 78 Constitution Act 1982, 33 pt 1, 254 s 1, 255 Indian Acts s 94(b), 253 Ontario Human Rights Code, RSO 1990, c H-19 s 34, 176 Racial Discrimination Act SO 1944 c 51, 33 Saskatchewan; Bill of Rights 1947, 33

New Zealand Human Rights Act 1993 s 21, 69 New Zealand Bill of Rights Act 1990 (NZ), 62, 255

South Africa Constitution of the Republic of South Africa Act 1996 s 9(2), 255 s 9(3), 69, 255 Promotion of Equality and Prevention of Unfair Discrimination Act 2000 s 6, 69

UK Canada Act 1982 c 11, sch B pt I, s 15(1), 69 Civil Procedure Rules 1998 SI 1998/3132, pt 44, rr 44.13–44.17, 198 Equality Act 2010, 78 s 1(1), 12 s 4, 69, 78 s 14, 85, 275 s 19(2), 123

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s 29, 159 s 136, 286 s 149, 15-20 s 149(1), 267 Fair Employment (Northern Ireland) Act 1989, 267 Human Rights Act 1998, 62, 255, 258 Northern Ireland Act 1998 s 75, 267 Race Relations Act 1976, 34, 37 Sex Discrimination Act 1975, 34, 37

US Age Discrimination in Employment Act 1967, 34 Americans with Disabilities Act 1990, 34 Civil Rights Act 1964, 27, 34, 72 s 703, 123 Title VII, 34 Constitution 14th Amendment, 69, 253 Pregnancy Discrimination Act 1978, 34 Rehabilitation Act 1973s s 503, 269

EU European Convention on Human Rights 1950, 253 European Social Charter 1961, 253 European Union Charter of Fundamental Rights 2000, 253

International Treaties and Conventions Constitution of the International Labour Organisation Preamble, art 1, 31 Convention on the Elimination of all forms of Discrimination Against Women (1979) (CEDAW), 13, 32, 70, 76, 77, 213 art 1, 281 art 2, 174 art 4, 209 art 15, 174 Convention on the Elimination of all forms of Racial Discrimination (1965) (CERD), 13, 32, 36, 55, 87, 92, 108, 156, 169, 214, 216, 257 art 1, 281

art 1(1), 87, 216 art 1(2), 87 art 1(3), 87 art 1(4), 209, 210, 214 art 2, 174 art 4, 135 art 5, 109, 169, 171, 174 art 5(e)(v), 151 art 6, 174 Convention on the Rights of the Child (1989) (CROC), 32 Convention on the Rights of Persons with Disabilities (2006) (CRPD), 13, 32, 98-9 art 2, 281 art 4(1), 174 art 5, 174 art 12, 174 art 13, 174 Declaration concerning the Aims and Purpose of the ILO (1944), 31 Declaration of Philadelphia (1944), 31 Declaration on Social Justice for a Fair Globalization (2008), 31 Equal Remuneration Convention 1951 (ILO No 100), 228 ILO Convention No 111 Concerning Discrimination in Occupation and Employment (1958), 13, 31, 32, 108, 228 International Bill of Rights, 32 International Covenant on Civil and Political Rights (1966) (ICCPR), 13, 32, 43, 251, 258, 259 art 2, 13, 61 art 2.2, 251 art 2.3, 251 art 18, 157 art 20(2), 135 art 26, 13, 32, 61, 96, 102, 174, 259 International Covenant on Economic, Social and Cultural Rights (1966) (ICESCR), 13, 32 Treaty of Peace between the Allied and Associated Powers and Germany (Treaty of Versailles) (1919), 30, 31 UN Charter (1945), 61 art 1, para 3, 31 art 1.3, 12 Universal Declaration of Human Rights (1948), 31, 32, 61, 259 art 2, 12, 31 art 18, 157

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This book provides an introduction to Australian anti-discrimination law in its conceptual and social context. Our aim is to give a clear and accessible introduction to the law’s important features, contradictions and challenges based on the ideas underlying and implicit in it, to provide a foundation for critical assessment of the law’s strengths and limitations. While anti-discrimination laws are the core of the book, our concern is broader than just laws that prohibit and remedy discrimination. We refer to the field as ‘equality and discrimination law’ because it now includes laws and practices that seek to prevent discrimination occurring, and that challenge discrimination at a structural or systemic level as well as at an individual level, seeking to change norms and practices to be more inclusive of people who have faced barriers to participation because of their attributes. Anti-discrimination law is not the only area of law which seeks to reduce disadvantage and inequality. Labour law, social welfare law and taxation law, for example, play important roles in reducing inequality. Anti-discrimination law, however, is the main legal avenue for individuals to challenge inequalities based on protected attributes such as race, sex, sexuality, disability, age, religion and political belief. There is wide agreement that equality of some kind is a centrally important value and goal in a democratic society. But to prohibit discrimination by law requires very specific definition of exactly what is not permitted, and this is where disagreements frequently arise. People might have very different opinions about what equality is in any particular situation and what it requires in terms of changing social practices. People whose actions are likely to be restricted by anti-discrimination law can find it burdensome, and may object to the way it can limit freedom they previously had. Australia has had anti-discrimination laws for over four decades. They apply to a very wide range of activities, including employment, education, service provision, sport, the supply of goods and accommodation, as well as many government activities and the activities of some clubs and voluntary associations. It is prohibited to discriminate based on or because of a wide range of attributes including sex, race, disability, age, sexuality, gender identity, parental and carer responsibilities, and political or religious beliefs. This wide scope, and the fact that there are laws in every state and territory and four laws at the Commonwealth level, as well as the Fair Work Act 2009 (Cth) (FWA) in the field of employment, make this a very complex area of law. Australia’s federal system has the merit of allowing innovations to be developed in single jurisdictions, and if successful, to be adopted more broadly. However, it makes compliance challenging for companies or organisations, especially those that operate across the country, dealing with legal differences in many jurisdictions. Because of the number of laws, there are many variations of detail which cannot be considered in this book. They are discussed in the text where important, and summarised in the tables in the Appendices. Our anti-discrimination laws are based substantially on ideas developed in international human rights law and in the domestic legal systems of the USA and the UK, as outlined in Chapter 2. We refer where relevant to comparisons with international and comparative laws, but our focus is on providing an accessible path to understanding the Australian law. The book is structured in three main parts that focus respectively on: (1) the social and conceptual context, history and framework of anti-discrimination laws; (2) the main elements of the law and process of enforcement that are needed to bring a discrimination

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claim; and (3) broader avenues for pursuing equality beyond simply prohibiting discrimination, including consideration of possible future directions for the law. Part 1 provides the context for the law through chapters examining concepts of equality and discrimination and the role of law in giving effect to them (Chapter 1), the historical and legal context for the laws and their development (Chapter 2), and an outline of the framework of laws designed to promote equality and non-discrimination (Chapter 3). Chapter 1 introduces several ideas of equality, including formal and substantive equality, equality of opportunity and equality of outcome, and introduces Fredman’s very useful multidimensional idea of equality. It then turns to concepts of discrimination, which include actions that treat people differently because of their protected attributes as well as actions that, although they appear to treat everyone the same, actually have an effect of disadvantaging people who have a protected attribute because they fail to take account of that relevant difference. These ideas correspond roughly to the prohibited forms of direct and indirect discrimination. Systemic or structural discrimination refers to broader and more persistent forms of discrimination. It recognises that practices that disadvantage some groups and privilege others are embedded in social arrangements, for example that people with disadvantaged attributes tend to be in lower socio-economic groups and more exposed to educational disadvantage that affects lifelong opportunities. Systemic discrimination can also include many small practices of disadvantage that add together to amount to a substantial limit on people’s opportunities. Chapter 2 provides a historical and legal context for the law from its origins in international efforts to prevent oppression of minority groups after the two World Wars that led to the development of the international human rights law system, and in the American civil rights movement. The initial development of Australian laws began in South Australia, and the first federal law, the Racial Discrimination Act (RDA), was adopted in 1975, followed by federal laws on sex, disability and age discrimination, and omnibus laws covering a wide range of attributes in every state and territory. We outline the constitutional context and then review the development of the law over time through successful and failed reform efforts. In Chapter 3 we introduce the remainder of the book, explaining the common framework used in the Australian anti-discrimination laws, which is then discussed in some detail in Part 2, and the additional avenues for promoting equality that are considered in Part 3. These include rights under workplace law (the FWA), the requirement for data reporting in the Workplace Gender Equality Act 2012 (Cth) (WGE Act), and the requirements of the human rights laws that exist in the Australian Capital Territory (ACT) and Victoria. Part 2 contains the core of the book’s analysis of anti-discrimination legislation. It examines the major frameworks of the law in some detail: which personal attributes attract legal protection (Ch 4), what conduct the law prohibits and who owes duties not to breach the law (Ch 5), the areas of activity in which those protections apply (Ch 6), and the legal procedures and remedies available to provide redress for breaches of the law (Ch 7). All four aspects need to be considered to understand the nature and scope of the obligations and protections of any anti-discrimination law. Anti-discrimination laws are essentially designed to promote equality and reduce discrimination in respect of protected attributes. Australian laws cover a very wide range of attributes, most of which are also broadly defined. Chapter 4 deals with these attributes.

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It considers what criteria are available to identify attributes that should be protected, and then looks at the major attributes protected by the laws and how they are defined. This is central to determining the scope and nature of the prohibition of discrimination. Where the law prohibits discrimination ‘based on’ or ‘because of’ sex, for example, does that include discrimination based on pregnancy (a biological feature of female sex), or on having taken parental leave (a social arrangement to accommodate women’s reproductive role) or even a decision based on either actual or assumed inability to work unscheduled overtime? This depends on both how broadly ‘sex’ is interpreted and how broadly the prohibition on sex discrimination is to be interpreted: should it cover only actions in which the immediate motivation is sex, or should it extend to situations where the immediate reason is a manifestation or factor that is determined by sex? Answering these questions requires great care to ensure that the beneficial scope of the law is not narrowed by interpretation. Chapter 5 turns to the heart of anti-discrimination legislation – how the prohibited conduct is defined. We focus on discrimination, examining how it is defined, generally as direct and indirect forms, and consider some of the complexity and inconsistency on this definitional question in Australian law. Making sense of how discrimination is defined arguably poses the greatest challenge in this book. Unlike its unreflective usage in everyday language where it often refers to general unfairness or to the idea of acting on the basis of prejudice, legally ‘discrimination’ is used to cover inequality arising from treating people differently and treating them the same. Direct discrimination (sometimes called ‘disparate treatment’) prohibits treating people differently and requires same treatment, corresponding to formal equality. Indirect discrimination (also called ‘disparate impact’) recognises that inequality can also arise from treating people the same despite them being differently situated. Because it looks to effects, or outcomes, indirect discrimination better reflects the idea of substantive equality, which is only partly and incompletely present in Australian laws. The ideas of direct and indirect discrimination can overlap, but although Australian legislation does not define them as mutually exclusive, the courts have explicitly held that they are. In addition to examining the nature of prohibited discrimination, Chapter 5 also summarises other related conduct that the legislation prohibits, including harassment and vilification. To improve the effectiveness of the legislation, other ancillary prohibitions include anti-victimisation provisions, prohibition of aiding, instructing or otherwise encouraging someone to commit unlawful discrimination or harassment, and duties not to advertise in a discriminatory way or seek information in order to discriminate. Chapter 6 considers the scope of the law – the particular fields or areas in which conduct is prohibited. These vary, but generally cover the fields of work, education, and the provision of goods, services, accommodation and facilities. We describe the key areas of coverage of the legislation and explain how discrimination typically manifests in each of these fields. Given that work is such a central part of the lives of many people and is key to economic security, it is not surprising that most claims of discrimination concern work, so we devote considerable attention to this particular field. Notably, in contrast to the general focus of the FWA on the employment relationship, anti-discrimination laws also cover other forms of work, including independent contractors, contract workers and commission agents, partnerships, and the related fields of qualifying bodies, employment agencies, and registered organisations (such as unions); and in relation to some prohibitions such

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as sexual harassment, the laws extend to unpaid workers or volunteers.1 The laws contain exceptions that moderate and fine-tune their operation by permitting specific conduct. Because they operate to allow otherwise unlawful conduct, the rationale for each exception should be identified clearly, but this is not always the case. Exceptions that relate to the scope of operation in particular fields are discussed in this chapter. To complete our survey of the operation of the law, Chapter 7 discusses the enforcement processes in anti-discrimination laws. This includes who is given rights and can take action to enforce those rights, who is subject to obligations under the laws, and against whom the laws can be enforced. It includes what processes exist for enforcing the laws, and the legal actions and institutions involved in enforcing them. Further, it looks to fundamental motivating aspects such as the remedies available and the impact of rules regarding litigation costs that affect the capacity of individuals to enforce their rights. Enforcement is a very important element of the law – there is little point in having the best substantive laws if there is no realistic possibility of them being enforced. In Part 3 we widen the focus to examine legal avenues for pursuing equality and nondiscrimination that operate alongside the prohibitions in anti-discrimination laws. These include positive action to prevent discrimination occurring, both voluntary (through the exception for special measures) and as required by legislation such as the WGE Act (covered in Chapter 8), and protection in workplace law through the adverse action provisions of the FWA (covered in Chapter 9). Current anti-discrimination laws have a largely backwardslooking focus, providing remedies in respect of conduct that has already occurred. This may not be the most effective way to deter discrimination, especially as litigation to enforce the law is difficult and compensation awarded has tended to be relatively low. A potentially more effective approach to systemic change is to adopt positive measures that aim to prevent discrimination from arising in the first place. Positive action avoids the unfairness of discrimination and the consequent burden of enforcement on people affected, who are often the least privileged in society, and helps to encourage institutions and organisations to create and use fairer and more open structures and processes. Positive actions range from the ‘reasonable adjustments’ model of discrimination, through permitting and encouraging special measures by providing incentives or rewards for organisations to undertake such changes voluntarily, to requiring organisations to take various kinds of measures. Required actions can range from weak steps (such as greater transparency through producing information) to stronger requirements, such as employing a certain proportion of minority staff. Beyond these forms, positive duties on public or private organisations can require them to consider equality issues in their own activities and to develop and implement equality assessments and plans,2 although monitoring and enforcing such duties can be challenging. In Chapters 10 and 11 we look at ideas that have promise for the future of equality rights. In Chapter 10 we consider the role of human rights protection as it operates in the ACT and Victoria in contributing to protection for equality and non-discrimination. We also examine some possible initiatives used overseas, such as the imposition of equality duties on public

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1 Equal Opportunity Act 2010 (Vic) (EOAV) s 4(1), definitions of ‘employee’ and ‘employer’. 2 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008).

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authorities, and how government uses its power as a major purchaser of goods and services to require change from its suppliers – an avenue that has been under-used in Australia so far. Finally, in Chapter 11, we examine the future for anti-discrimination and equality laws, including possible future legal developments, regulatory approaches that could improve their effectiveness in achieving their goals, and the track record of attempts at law reform in the Commonwealth, states and territories. Ultimately we argue that having an effective suite of laws that protect against and deter discrimination is vital to a fair future for Australia, though not necessarily sufficient. As they stand, Australia’s current laws fall well short of laws in comparable jurisdictions, and reforms are needed to ensure that they are much more effective at achieving their stated goals. While anti-discrimination laws are not a complete answer to social inequality and deprivation, effective laws are nevertheless essential for individuals or groups who suffer discrimination to seek redress. Australia needs reform of the existing law as well as progress towards adopting laws that prevent and redress discrimination at a systemic level, minimising the need for individuals who have suffered discrimination to seek a remedy through litigation.

A note on the Discrimination Amendment Act 2016 (ACT) [19]

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Some very important innovations to Australian anti-discrimination law were introduced by the Discrimination Amendment Act 2016 (ACT) to the DAACT, which was passed too late to include in the text of this book. The changes commence in two stages, on notification, or 3 April 2017. New objects have been included in s 4 of the DAACT referring to promoting and protecting the right to equality in the Human Rights Act 2004 (ACT), and the progressive realisation of equality, with recognition of substantive equality and the need for positive action to achieve it. New s 4AA of the DAACT requires courts to use a beneficial approach to interpretation. The definition of discrimination is moved to s 8 and amended to allow for intersectional discrimination on one or more attributes (an approach facilitated by the fact that the Act does not require a comparator). Section 53CA creates a rebuttable presumption of discrimination where a prima facie case is established, which requires the respondent to prove the action was not connected with the protected attribute. In relation to protected attributes, the Act widens the definition of disability and provisions relating to assistance animals and disability aids. New protected attributes (defined in the Act’s Dictionary) include accommodation status (including being homeless), employment status, genetic information, immigration status, intersex status, irrelevant criminal record (compared with the previous ‘spent conviction’), family or kinship responsibilities (added to parent or carer responsibilities), physical features, political conviction, record of a person’s sex having been altered under birth registration laws, religious conviction, and subjection to domestic or family violence. Some specific exceptions relating to some of these attributes have been added at ss 33A and 57O-57R. A new vilification provision at s 67A covers disability, gender identity, HIV/AIDS status, race and sexuality; and an offence of serious vilification on the same attributes is inserted into the ACT Criminal Code. Finally, the victimisation provision s 68 has been revised to cover penalising someone because the person acting believes they have taken or proposed to take actions under the DA ACT, even if they have not actually done so.

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EQUALITY, DISCRIMINATION AND LAW

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PART 1 INTRODUCTION

1.1 Introduction: Equality as a fundamental value [1]

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This chapter introduces the foundational concepts of ‘equality’ and ‘discrimination’ that underpin anti-discrimination laws. Neither concept has a clear, uncontested meaning, and both cover a range of ideas. Equality is generally regarded as a fundamental social value, but this apparent consensus may conceal disagreement about the specific idea of equality involved. Equality is a fundamental value in liberal political theory, and in democracy. An assumption that every individual should have equal liberties, including equal influence in government through ‘one person one vote’1, is one of the foundations of modern Western societies including Australia. The development of anti-discrimination law was based on extending the liberal idea of equality beyond the political sphere to assert that every person was entitled to be treated fairly and have equal chances in life, without disadvantages arising from attributes such as race or ethnicity, sex, or disability.2 Anti-discrimination law is at present a relatively blunt weapon with which to challenge discrimination, and there is uncertainty and disagreement over the scope of activities that it does or should cover. In this chapter, we introduce some ideas about equality and discrimination as a starting point for understanding the basis of the law’s approach. Equality is a primary value in modern Australian society. Australians think of themselves as egalitarian – a view formed perhaps by the attitudes of the early settlers, both convicts and free settlers, who came to Australia either by force or by choice seeking greater opportunities, which they found in rejecting the social hierarchies of their countries of origin.3 Modern Australia is largely a society of immigrants (except for the Indigenous peoples) who have come in different waves over the past two centuries in search of a better life.4 For most Australians, egalitarianism remains an important value and an essential part of the all-important ‘fair go’. Australian egalitarianism falls short for many people in disadvantaged groups, including, in particular, Indigenous people, as well as people with disability, women, and racial or ethnic and sexual minorities. Over time many inequalities have been eliminated because they came to be perceived as unjust, as a result of the efforts of campaigners. For example, early court decisions that women were not ‘persons’ who could vote, or enter universities or the professions, were eventually changed by Parliaments,5 as were laws limiting women’s rights in family, property and criminal law. The 1967 constitutional amendment that ended the 1 John Keane, ‘Why Read Tocqueville’s Democracy in America?’, 8 May 2015 . 2 This is the foundational principle of liberalism and underpins the individualism that is such a strong feature of Western societies. J S Mill, On Liberty, (1859); Margaret Thornton, The Liberal Promise: AntiDiscrimination Legislation in Australia (Oxford University Press, 1990). 3 Elaine Thompson, Fair enough: Egalitarianism in Australia (UNSW Press, 1994). 4 Australian Human Rights Commission (AHRC), Face the Facts (AHRC, 2012), at 2.14 notes that 22 per cent of Australia’s 22 million people were born overseas; 44 per cent were born, or have a parent who was born, overseas. 5 Jocelynne A Scutt, Women and the law: Commentary and materials (Law Book Co, 1990) reviews the ‘persons cases’.

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exclusion of Aborigines and Torres Strait Islanders from citizenship, compulsory voting and the census6 was the result of extensive campaigning for justice by and for Indigenous people. The industrial system based on paying women less than men to undertake the same job, or that permitted jobs to be reserved for men only or women only, and removed women’s permanency upon marriage was eventually challenged through a series of industrial commission decisions and anti-discrimination laws.7 These changes all shifted traditional cultural norms in a more ‘egalitarian’ direction. Many exclusionary practices did change once anti-discrimination laws were adopted, but the laws have not proved to be a full response to inequality and discrimination. The levels of inequality in Australian society today continue to deny opportunities to significant sections of the community. Indigenous people face dire inequalities in access to government services, including criminal enforcement and corrections, community services, education, private sector opportunities, and employment, as well as health services and social participation.8 There is a persistent gap between Indigenous and mainstream communities on a wide range of indicators such as health, life expectancy, education and employment levels. People with disability suffer a range of forms of social exclusion, many of which are the result of an environment that treats their needs as exceptions rather than inclusively. They face problems not only in obtaining and retaining work, but also in using public infrastructure such as schools and public transport.9 Women continue to face inequality in the workforce, including having lower earnings and greater responsibility for unpaid care, the refusal of employers to adequately deal with the conflict between work and family responsibilities that are assumed to be primarily women’s responsibility,10 and the consequent lower retirement incomes that expose them to a much higher risk of poverty in old age. Older workers continue to face discrimination at work.11 Individuals from sexual minorities as well as many ethnic groups and religious minorities face prejudice, discrimination and exclusion.12

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6 The referendum removed the exclusion of the ‘Aboriginal Race’ from the race power, in s 51(xxvi) of the Constitution, that allows the Commonwealth to legislate for ‘the people of any race’. See further discussion at 10.3.4. 7 Judy Mackinolty and Heather Radi (eds), In Pursuit of Justice: Australian Women and the Law 1788– 1979 (Hale and Iremonger, 1979); Rosemary Hunter, ‘Women Workers and Federal Industrial Law: From Harvester to Comparable Worth’ (1988) 1 Australian Journal of Labour Law 147. 8 Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA), Closing the gap on Indigenous disadvantage: The challenge for Australia (2009) ; Productivity Commission, Overcoming Indigenous disadvantage: Key indicators 2014 (Productivity Commission, 2009); Department of Prime Minister and Cabinet, Closing the Gap: Prime Minister’s Report 2016. 9 See generally Disability Discrimination Commissioner, Disability Issues, at . 10 AHRC, ‘Accumulating Poverty? Women’s Experiences of Inequality over the Lifecycle: An Issues Paper Examining the Gender Gap in Retirement Savings’ (September 2009); Australian Bureau of Statistics, ‘Gender Indicators, Australia, Jan 2012’, Economic Security, ABS 4125.0. 11 AHRC, ‘Age Discrimination: Exposing the Hidden Barrier for Mature Age Workers’ (2010) . 12 See, e.g., Paula Gerber and Melissa Castan (eds), Contemporary Perspectives on Human Rights in Australia (Thomson Reuters, 2013) ch 6, Paula Gerber and Adiva Sifris, ‘Marriage Equality in Australia’; ch 19, Carolyn Evans, ‘Balancing Religious Freedom and other Human Rights’; and ch 20, Samina Yasmeen, ‘Muslim Identity and Human Rights in Australia’.

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Not all inequalities are based on the attributes protected by anti-discrimination laws. However, economically deprived or low socio-economic status groups tend to include disproportionate numbers of people with these attributes of disadvantage, so the groups overlap.13 Inequalities associated with low socio-economic status can be addressed through policy measures such as minimum pay rates, social security payments and the taxation system, as well as through other policies which enable a degree of progressive redistribution, providing a safety net to ensure reasonable subsistence and opportunity for all. The rise of neo-liberalism and economic globalisation with their emphasis on markets, the outsourcing of labour and reduction of labour conditions has overtaken and undermined the social-democratic goal of distributive justice.14 It has left low-income workers and many others exposed to insecurity, for example through the casualisation of work.15 Challenging these pervasive dynamics is very difficult, and involves many areas of law such as local and international labour law, trade law and human rights law. Although anti-discrimination laws in Australia do not extend to tackle discrimination based on social class or socio-economic status,16 they can address some issues in the context of the protected attributes, albeit only within national boundaries. Anti-discrimination laws tackle inequalities based on specific protected attributes, or identity grounds. Their objective is not to correct the social injustices of widening socioeconomic inequality, social rigidity or lack of opportunity to improve one’s life situation. Instead, they seek to ensure that socio-economic disadvantages are not concentrated mainly or entirely on people with protected attributes such as women, Indigenous or immigrant communities, people with disability and minority sexualities. They are not a full answer to the problems of distributive justice in modern society, but can contribute by spreading advantages and disadvantages more evenly across the population. The fundamental place of equality in international human rights law is evidenced by its primary position in the founding documents of the United Nations, and in international human rights law. The UN Charter (1945)17 declared that rights were to exist ‘without distinction as to race, sex, language, or religion’, and the Universal Declaration of Human Rights (1948)18 confers an equal entitlement to human rights ‘without distinction of any kind, such as race,

13 Belinda Smith, ‘What Kind of Equality Can We Expect from the Fair Work Act?’ (2011) 35(3) Melbourne University Law Review 545. 14 Richard Wilkinson and Kate Pickett, The Spirit Level: Why More Equal Societies Almost Always Do Better (Allen Lane, 2009); Margaret Thornton, ‘The Political Contingency of Sex Discrimination Legislation: The Case of Australia’ (2015) 4(3) Laws 314 ; Margaret Thornton (ed), Through A Glass Darkly: The Social Sciences Look at the Neoliberal University (ANU Press, 2014). 15 See, e.g., Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford University Press, 2nd ed, 2011) ch 2. 16 The ICCPR provides for non-discrimination on the basis of ‘national or social origin, property, birth or other status’ (art 2.1) but is not clear that being of low socio-economic status or, for example, working class status is covered. The Equality Act 2010 (UK) s 1(1) contains a duty on public sector bodies to ‘have due regard to the desirability of exercising [their powers] in a way that is designed to reduce the inequalities of outcome which result from socio-economic disadvantage’, but it has not been brought into effect. 17 Art 1.3. 18 Art 2.

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colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. This approach was further developed in later international conventions such as the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), as discussed further in Chapter 2. The ICCPR, in particular, contains a stand-alone right to equality and non-discrimination in art 26, as well as the general provision in art 2 that the rights protected by the Covenant are to be enjoyed on a non-discriminatory basis. Later conventions emerged to provide international standards of non-discrimination in particular relationships such as employment (International Labour Organisation Convention concerning Discrimination in Respect of Occupation and Employment (1958) (No 111) (ILO 111)), and in respect of particular attributes, such as race (Convention on the Elimination of all forms of Racial Discrimination (CERD)), sex (Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)) and disability (Convention on the Rights of Persons with Disabilities (CRPD)). Anti-discrimination law was one of the first areas (along with privacy) in which Australia passed specific legislation to protect human rights. The first federal law, the Racial Discrimination Act 1975 (Cth) (RDA), was an important trailblazing law, and also pioneered the exploration by the Commonwealth of its ability to legislate for human rights by relying on its external affairs power.19 The development of laws against discrimination drew on the rhetorical power and appeal of equality as a basis for campaigns for social justice. The development of ideas of equality and human rights has gained traction over the years, and has driven significant changes in the last few decades through such legal mechanisms as constitutional litigation ending the American ‘separate but equal’ doctrine that allowed segregation of black Americans, international sanctions that contributed to ending apartheid in South Africa, and political struggle and legal change to stop Aboriginal people, married women or people with disability from being excluded from the workforce or from being confined to low level, lower paid jobs. Over the decades in which these advances have occurred, new issues have come into view as previous issues have been resolved, and knowledge and understanding of equality and discrimination in theory and practice has advanced. Testing ideas and formulations of equality and discrimination in the courts has led to the development of a complex set of ideas and rules built on earlier concepts, and knowledge has become much more sophisticated in relation to both the law and the political and social context of discrimination and disadvantage.

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1.2 Structure of this chapter In this chapter, we introduce the basic concepts underpinning anti-discrimination law. Equality is the primary motivating concept, and the basic dichotomy is between the ideas of formal and substantive equality. These are concepts with no agreed meaning, and law and debate have instead tended to focus on ideas that can be made more concrete, including equality of opportunity, which is reflected in the titles of many Australian laws. In addition, we touch on the concepts of ‘equality before the law’ and ‘equality in law’, or equal protection, to complete our review.

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19 See Chapter 2 at 2.6.1.

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PART 1 INTRODUCTION

We then move on to consider the idea of discrimination which in many ways reflects the concept of equality. Essentially the law focuses on two kinds of situations that can be thought of as: treating people differently when they should be treated the same; and treating people the same when they should be treated differently. Direct discrimination occurs when someone acts on the basis of a prohibited characteristic such as race or sex. Indirect discrimination is a more complex idea that focuses on the fact that some practices or requirements which may look neutral on their face can be highly unequal in their operation, and that if they affect or exclude people with protected characteristics disproportionately, then they should not be continued unless there is a good reason for permitting them. Inevitably, some discrimination is difficult to capture in these formulations which focus on the treatment given to specific people or groups of people. The concepts of direct and indirect discrimination do not extend to cover social practices that have the effect of disadvantaging protected groups where no specific treatment can be discerned. Systemic discrimination, for example, can be understood as the product of the social arrangements we all live by, and recognises that social practices and structures tend to (cumulatively) produce disadvantage for some types of people and, correspondingly, advantage or privilege for others. These effects may not easily be traced to the actions or choices of a single individual or organisation who could be held responsible, or they may be too subtle and diffuse to challenge through law. While such practices may be beyond the scope of individual anti-discrimination law remedies, they may be highly relevant to broader legal approaches such as the pursuit of positive action or positive duties. Finally, we consider the relevance of law to the project of eliminating or reducing discrimination and thereby advancing equality. Both the substantive provisions and the enforcement or practice of the law are relevant to assessing the extent to which it contributes to reducing discrimination and inequality. Exactly what law can achieve is an important question for assessing current laws, and for imagining innovations that could be used in the future to improve unjust and socially corrosive inequalities.

1.3 Concepts of equality and discrimination, and the law [12]

[13]

Equality is a widely shared value. The almost universal approval can, however, rapidly dissipate when it becomes necessary to state a more specific concept of equality or to determine the implications of equality in specific situations, such as in defining a legal prohibition. Equality is an open-textured concept with a wide range of possible meanings, from equality of treatment, equality of opportunity and equality of outcome to formal, substantive and transformative equality, which are explored in more detail below. Applying the idea of equality in law requires identifying and defining what inequality is being addressed, and if a remedy is proposed, how that remedy will redress the inequality. These aspects are often hotly contested, especially where existing advantages or privileges are threatened, so implementing equality laws tends to be very controversial. Jurisdictions that have provisions to protect equality rights or non-discrimination rights at a constitutional or legislative level, such as the USA, Canada and the UK, have had to grapple with

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defining them. Australia, however, has no constitutional protection for equality rights, and there is only limited protection for equality as an element of human rights legislation through the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), Human Rights Act 2004 (ACT) (HRA) and Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). Because equality is so controversial and open-textured, law has not generally sought to define it but has instead taken a different approach, by targeting inequality which can be easier to recognise, in the form of discrimination. As a result, the laws focus on discrimination rather than equality. It is only very recently that references to ‘substantive equality’ have begun to be adopted in anti-discrimination laws,20 but still without any attempt at definition. Anti-discrimination laws take the approach of seeking to eliminate or reduce instances of discrimination. They rest on an implicit assumption that reducing discrimination will tend to increase equality. The tensions in this approach are less obvious than those that would emerge from an attempt to define equality, but they still exist. To prohibit discrimination by law, it is necessary to identify as clearly as possible what must be proved to establish prohibited conduct. But any legislative definition of discrimination rests on an implicit concept of equality. For example, prohibiting different treatment as discriminatory rests on an implied idea that equality consists of treating everyone the same. The debates around equality are thus centrally relevant in relation to concepts of discrimination. Equality and anti-discrimination laws in Australia are located within a social context of liberalism, in which individual liberty is a central value. The freedom of individuals to make their own choices in many areas of their life is a foundational characteristic of modern Western societies such as Australia that underpins both social and economic freedom. John Stuart Mill’s foundational claim that ‘the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others’ does not specify what amounts to ‘harm to others’ and has been debated extensively.21 Although the non-discrimination principle can be supported on a basis of either equality or liberty theories,22 liberty can be in tension with equality claims. The rise of neo-liberalism, which gives primacy to markets for allocation of goods and thereby prioritises market relations over other types of relationships, takes Mill’s idea of liberty much further than many social democrats who value equality rights would be happy with. Neo-liberalism emphasises ‘user pays’ and includes associated pressure to reduce social provision of goods such as education, health and social care in the interests of greater economic freedom and reduced taxation.23 However it tends to overlook the inequalities of opportunity to access these goods, and has led to resistance to attempts to equalise opportunities through law.

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[15]

[16]

20 See e.g. Equal Opportunity Act 2010 (Vic) (EOAV) s 3(d)(iii). 21 J S Mill, above n 2; John Rawls, A Theory of Justice (Oxford University Press, 1972); Susan Moller Okin, Justice, Gender, and the Family (Basic Books, 1989). 22 Deborah Hellman and Sophia Moreau (eds), Philosophical Foundations of Discrimination Law (Oxford University Press, 2013); Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2016). 23 See e.g. Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (Zone Books, 2015).

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What is the role of law in seeking to improve social equality and reduce disadvantage? How successful can measures seeking to reduce discrimination through law be? This depends on how the unlawful acts are defined, and how difficult they are to prove, as well as questions such as how legal rights can be enforced and whether the forum for enforcement is accessible to those who need to use it. Further, questions are raised about who should bear the burden of enforcing the law, which at present rests solely on the victims of discrimination. This is problematic where victims of discrimination are more likely to face social and employment exclusion, and therefore to have access to fewer financial and other resources to undertake this task. Finally, an underpinning question about the effect of anti-discrimination law is whether legal change can lead or only follow social change or advances in social attitudes and values. If legal change can lead social change, how and to what extent can law bring about social change?

1.3.1 Equality [18]

[19]

[20]

[21]

We have noted that equality is a hotly contested concept that has a wide range of possible meanings, from equality of treatment, through equality of opportunity to equal protection and equality of outcome, to formal, substantive and transformative equality. The basic idea of equality is Aristotle’s formulation of proportionality, that equality consists of treating likes alike and unlikes differently.24 This formula does not tell us what features should be compared to assess likeness or unlikeness, or what different treatment of people who are unlike in the relevant way is acceptable. Any real life situation is likely to have numerous features that could be chosen, but the point of anti-discrimination laws is to delineate what can be done when the relevant features are the protected attributes or features that are closely associated with them. The ideas implicit in this formulation have been expanded on in the concepts of formal and substantive equality and equality of opportunity. The most obvious idea of equality is consistency: that everyone should be treated the same. This is especially important in a society where formal barriers to the freedoms of some groups exist, such as societies in which women but not men are deemed to have resigned from their jobs upon marriage, or where different rules or segregation exists on the basis of race, sex or disability. Dealing with legal and social exclusion of disadvantaged groups was the initial and most pressing issue in the 20th century civil rights and liberation movements. This idea of equality as consistency, requiring same treatment, is referred to as formal equality. It requires that people should be treated the same, and not targeted for disadvantages because of their morally irrelevant attributes. This of course raises the question of which attributes are irrelevant, which has been the vehicle for much contest, but the law has tended to recognise the groups campaigning for relief on the basis of historical disadvantages. Formal equality looks to processes and treatment of people, not to outcomes or other social facts. It generally focuses on inequalities that result from drawing distinctions between people through the application of identifiable rules or practices, and looks at the process 24 Nicomachean Ethics, V.3. 1131a10-b15, cited in Stanford Encyclopedia of Philosophy, ‘Equality’ .

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used by a decision-maker. Such distinctions can arise through identifiable rules, whether of law or social practice, and may be made with awareness or based on unconscious attitudes and assumptions. Formal equality has limitations. Processes of allocating social goods and opportunities also operate on unspoken social practices or biases that may be more difficult to identify, and formal equality may be unable to reach this dimension if the focus is on explicit or identifiable rules and practices. In addition, in some circumstances it may be unfair to treat people the same when they have had different opportunities in relation to important areas of life such as education or employment, as this may continue the effect of any disadvantage they have already experienced. For example, in an education system where privately funded schools generally achieve better outcomes than publicly funded schools, it may be unfair to apply the same tests for university entry to all students regardless of their previous educational opportunities. Their different performances may reflect simply different educational opportunities they have had so far, rather than different aptitudes that they could develop if they had the same opportunities. In our liberal society, equality of opportunity is seen as an important individual right that needs protection by law in order to preserve the idea of ‘merit’ in allocation of social goods. Individuals should not be denied an opportunity to compete fairly on their merits because of factors outside their control or that should not affect access to the opportunity in question, such as not having access to good quality schooling like their competitors for entry to post-school education. The metaphor of having equal opportunities to run a race, which tends to assume it is enough to get to the starting point of a race, is often used to explain the idea of equality of opportunity. As Thornton has pointed out, equality of opportunity is an important promise of fair treatment made by liberalism to individuals.25 Equality of opportunity rests on an assumption that the race can be run fairly provided that the starting points can be equalised, thus acknowledging the need to provide adjustments that accommodate or compensate for the previous disadvantages experienced by some individuals. But even in the example of previous unequal opportunities in education, the metaphor of the race breaks down for at least three reasons. First, a person’s ability is to some extent produced by the aspirations and opportunities offered by the environments they have experienced. Hence it is not easy to equalise opportunities when they have substantially affected chances to develop aspirations and talents. In addition, many forms of disadvantage cannot be easily ‘equalised’ to ensure that overall equality of opportunity is given. For example, poor quality schooling or an educationally limited family background may be very difficult to redress by the time school has been completed. Second, equality of opportunity assumes that allocating social goods by merit is a neutral and fair process, but does not subject the idea of merit to detailed scrutiny. The concerns expressed that women may not be appointed on merit when attention is given to equalising numbers in a position by gender are rarely expressed when successful candidates are male. Feminists have pointed out that there is an assumption that men have merit, but that women have to establish their merit. Third, Allen has criticised the idea that a meritocracy, in which social goods such as good jobs and other opportunities end up being given to the most meritorious, is a morally

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25 Thornton, above n 2.

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defensible end goal for those concerned about equality.26 Talents and opportunities derived from birth such as gender and class, which greatly influence opportunities and networks open to individuals, are not the result of effort by or moral worth of the individual who possesses them, and do not necessarily serve as adequate justifications for receiving social rewards such as money, power or influence. The concept of equality of opportunity can be understood in a more formal or a more substantive sense, according to the extent to which it attempts to take broader social factors into account in equalising opportunities. At the more substantive end, it would take account of the situations of different individuals and the need for accommodation or compensation for previous disadvantages. But neither approach necessarily involves greater equality of outcome, nor deals with the objections raised above. Thus equality of opportunity is an essential promise of liberalism to the individual, but it is also insufficient as a guarantee of equality. Instead, a more substantive concept of equality is needed. Both formal equality and equality of opportunity are essential but not sufficient parts of an adequate concept of equality. Equality must go beyond simply equal or same treatment. Many systems of social allocation in our society were developed in days when a small and powerful but unrepresentative group of upper-middle-class, white, able-bodied men controlled social systems that served their interests. Simply including ‘outsiders’ in this system by removing barriers to entry in the name of formal equality does not accord them full equality of opportunity. Equality of opportunity also fails to address the depth of influence that social inequality has on producing different life chances. The limited scope and conceptualisation of harms based on formal equality or equality of opportunity is not adequate to respond to all the effects of discrimination and inequality. For example, neither has a response to the ways in which stigma and reliance on stereotypes affect the self-concept, as well as the experience, of people with an attribute of disadvantage. Nor do they have a positive approach to preventing discriminatory harms from arising in the first place, or to ensuring that social systems change to accommodate a more diverse range of people, on a basis of full acceptance. A broader, multi-faceted concept of equality is needed as a basis for according genuinely equal rights. The most promising avenue today lies in the move from formal to substantive equality. Substantive equality is understood to reach beyond the surface rules to bring into focus the impact of social structures in which individuals are located and constrained.27 It looks to their effects and involves paying attention to social reality as well as processes, acknowledging that unequal outcomes are often a sign of the effects of social structures of unequal power and opportunity. Improving equality is not simply a matter of improving processes of choice and allocation to eliminate discrimination. It also requires taking account of social structures and practices that create or reinforce inequality, and then changing them. Substantive equality must in practice mean something other than actual equality of outcome. The measures needed to bring about actual equality of results would be completely unacceptable in a liberal society which values freedom and individual choice. But the idea 26 Rodney Allen, ‘Equal Opportunity’ (1996) 5 Res Publica (No 2), 16. 27 David Oppenheimer, Sheila Foster and Sora Han, Comparative Equality and Anti-Discrimination Law: Cases, Codes, Constitutions and Commentary (University Casebook Series, Foundation Press, 2012).

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of substantive equality can allow us to recognise the effects of social structures and processes on individuals. The fact that individuals have varying capacities, priorities and values should not prevent us from ensuring that resources and opportunities are provided to each person in a way that treats them with equal respect,28 and values them equally. However, the concept of substantive equality is far from clear. It means more than formal equality and could extend all the way to equality of outcomes. Developing a clearer idea of this type of equality is an important step in theorising equality, discrimination and disadvantage in our society. Fredman has developed a theory of substantive equality that has potential to tackle many of the most challenging issues surrounding debates. She has identified four dimensions of substantive equality which includes a concept of transformative equality.29 Fredman’s analysis develops a positive human rights based approach to equality claims. Her model has important practical implications, because it provides a basis for claims that human rights involve positive obligations on governments, not only requiring governments themselves to consider the needs of people experiencing disadvantage, but also requiring them to ensure that private sector actors also consider those needs. The four dimensions of Fredman’s theory are redistribution, recognition, participation and transformation. The redistributive dimension encapsulates the need to break the cycle of disadvantage for people with a protected attribute. It is concerned with removing not only the economic effects of prejudice and unequal opportunities, but also with combating domination and ensuring that everyone’s dignity and capabilities are equally respected. This aspect draws on the capabilities theory developed by Nussbaum30 and Sen31 that identifies actual capabilities that are essential for human flourishing and that, in a world of equality, would be equally available for all individuals to live a fulfilling life of their own choosing.32 Formulated this way, the redistributive dimension could facilitate greater social equality generally, and move the social pyramid of advantage and disadvantage towards a flatter, more even distribution, not merely change the distribution of types of people at different levels within it. The recognition dimension involves according respect and dignity to every person. It deals with the effects on individuals of ‘stigma, stereotyping, humiliation and violence on grounds of gender, race, disability, sexual orientation or other status which can be experienced regardless of other disadvantage’.33 The idea of recognition, developed by Nancy Fraser,34 involves reciprocal or mutual acknowledgement or esteem between individuals and others in the community. It has practical implications for resolving disputes about such things as harassment and racist speech, which involve injuries to recognition rights rather

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28 Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977). 29 Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011). 30 Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2–3) Feminist Economics 33; Martha Nussbaum, ‘Human Rights and Human Capabilities’ (2007) 20 Harvard Human Rights Journal 21. 31 Amartya Sen, Development as Freedom (Oxford University Press, 2001). 32 Fredman, above n 29, 26–9. 33 Ibid 28. 34 Nancy Fraser and Axel Honneth, Redistribution or Recognition?: A Political–Philosophical Exchange (Verso, 2003); Nancy Fraser, ‘Rethinking Recognition’ (2000) 3 (May–June) New Left Review.

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than financial disadvantages, and for conflicts between protected rights, such as religion and gender or sexual orientation. Conflicts could not be resolved by treating any particular group in a way that denies their equal dignity, for example by allowing their exclusion from normal social facilities. The participative dimension involves genuine social inclusion and political voice. Disadvantaged minorities and, for women, majorities, have often been denied an effective political voice, and this dimension supports claims for participation in decision-making and discourse. It could support, for example, claims for Indigenous Australians to have a say in Indigenous policy, quotas for gender representation within political parties, and for ‘equal participation in both family and public life for men and women’.35 This dimension supports claims for social inclusion of disadvantaged groups. Finally the transformative dimension picks up the idea that the accommodation needed to enable people in disadvantaged groups to participate is part of a broader need for structural change. Unless social practices are transformed, they will continue to produce discrimination and disadvantage. This view sees that current social arrangements have been developed by and for dominant groups (such as men, the able-bodied, and workers who have no caring responsibilities), and impose the full cost of being different on disadvantaged groups. These arrangements and power structures need to be transformed so that costs of social arrangements are not concentrated on the disadvantaged but are more evenly distributed. The concept of transformative equality extends beyond the traditional notion of substantive equality, and makes explicit the idea that is implicit in many formulations of substantive equality – that unless the social system and its structures are transformed to be more inclusive, then inequality will continue to be pervasive and persistent. The route to a more inclusive and fairer society is to be found not only through providing redress to individuals who suffer discrimination, but also by transforming social institutions and practices to remove the disadvantaging effects that are inherent in many of them, which will prevent them continuing to generate discrimination and disadvantage. Fredman’s theory is substantive in the additional sense that it is grounded in the substance of actual social relations and structures, rather than abstract theory. Each of her four dimensions engages with existing social structures. Her work provides a basis for rethinking policy and legal interventions in relation to equality. It moves away from a focus solely on discrimination and retrospective remedies, and has already had important practical consequences. The transformative strand supports the idea that governments have obligations not only to prohibit discrimination, but to bring about positive changes in social systems to reduce disadvantage, change social norms, and spread the costs of social practices more evenly. This approach provided theoretical support in the UK for the adoption of a ‘public sector equality duty’ requiring public organisations to consider the needs of disadvantaged individuals in providing services and developing policy.36 Although there remains a great deal of work to be done in fleshing out the ideas of equality included in Fredman’s four-dimensional theory, her work provides a unifying framework 35 Fredman, above n 29, 33. 36 Equality Act 2010 (UK) s 149; Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press, 2008).

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for identifying and including most of the significant aspects of the harms that inequality imposes on individuals. It provides a vocabulary for talking about equality that can facilitate public discussion, and a foundation for ideas for policy implementation. In particular, the idea of transformative equality provides an excellent basis on which to build a robust theory and practice of equality. The extent to which law takes account of these ideas through its prohibitions of discrimination is a central concern of this book. Implicit in the idea of equality are unscrutinised ideas of sameness and difference. Martha Minow has articulated a ‘dilemma of difference’: whether to ignore or acknowledge difference.37 Minow identifies that efforts to ignore difference (and treat people the same) and efforts to recognise difference (and provide special treatment) both carry with them a risk of discriminating. In helping to navigate this dilemma she unpacks a number of closely related, unstated assumptions.38 Firstly, we often assume that ‘differences’ are intrinsic rather than relational or comparative, and of all the multitude of differences between people, only some assume importance. Second, in respect of these, we typically adopt an ‘unstated point of reference’ when assessing who is ‘different’ and who is ‘normal’. A hearing person differs as much from a deaf person as vice versa, but more (and more powerful) people can hear and thus select and define a norm (hearing) that is not inevitable but ‘seemingly so when left unstated’.39 A third, related assumption is that the judge (or other person making the assessment) is without a perspective, while in fact no-one is free from perspective. Fourth, the perspectives of those being judged are assumed to be either irrelevant or already taken into account by the judge. The final assumption is a particularly powerful insight: that ‘existing social and economic arrangements are natural and neutral’, rather than the product of historical choices and designs that reflect the needs and interests of particular groups. In light of this last assumption, people seeking to challenge the status quo appear to be seeking special treatment and ‘proposed changes seem to violate the commitment to neutrality, predictability, and freedom’.40 Illuminating these five unstated assumptions helps to identify and navigate challenges of difference. A final pair of concepts about equality and the law are the ideas of equality before the law and equality in law. Equality before the law refers to the idea of the ‘rule of law’ – the principle that everyone in the society should be treated equally by the law in being equally subject to the law, and that what everyone is subject to is the law, that is, a rule that is certain and knowable in advance (in contrast to an arbitrary discretion that is unpredictable and could be controlled by the whims or preferences of any particular individual). Equality before the law does not imply any particular limitations on the content of law – all can be subject to the rule of law even where it operates very unfairly or only actually affects a subset of people. So the rule of law remains so even where it prohibits the rich as well as the poor from stealing food and sleeping under bridges, to use Anatole France’s much quoted aphorism. The rule of law is fundamental to a fair legal system, but it does not affect the content of the law.

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37 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1990). 38 Ibid 49–78. 39 Ibid 51. 40 Ibid 70.

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In contrast, the idea of equality in law or equal protection of the law looks to the content of the law and asks whether it discriminates unfairly as between different types of people. In a constitutional context, for example under the 14th amendment to the US Constitution,41 the question in relation to the content of legislation passed by Congress is whether the law operates unequally by relying on a racial or other classification that denies the people affected by it the equal protection of the law. It may do so if it operates unequally in a way that cannot be justified. This idea of equality in the content of law is further developed in constitutional equality protection in many countries, but has not yet been adopted in Australia except in very limited forms in the ACT and Victoria, as discussed in Chapter 10. Some very limited protection for equality in law is given by s 10 of the RDA.

1.3.2 Discrimination [39]

[40]

[41]

Using a theory of equality, it is possible to identify actions which are detrimental to equality because they unjustifiably impose disadvantages on people who have an attribute or characteristic of disadvantage. For law to provide a remedy for the imposition of disadvantage, it is necessary to define what conduct is prohibited. Translating a general idea or set of principles such as substantive equality, or even equality of opportunity, into the specific form needed to define the basis and scope of legal prohibition and remedies is challenging, not least because there is likely to be disagreement about when responsibility should be attached to a duty bearer. All legal prohibitions of discrimination rest on an implicit corresponding idea of equality. Hence developing a specific definition of discrimination usually implicitly rests on a corresponding understanding of equality. The concept of discrimination in anti-discrimination law has evolved over many decades through the process of defining and interpreting international human rights conventions, constitutional equality rights and anti-discrimination laws, but remains unclear and hard to pin down. The two main aspects can be referred back to the Aristotelian conception of treating likes alike and unlikes differently, as well as the ideas of formal and substantive equality. As Gaudron and McHugh JJ described it in Castlemaine Tooheys Ltd v SA,42 ‘the essence of the legal notion of discrimination lies in the unequal treatment of equals, and, conversely, in the equal treatment of unequals’.43 On this view, discrimination occurs when equals are treated unequally (when people are treated differently but they should be treated the same), or when unequals are treated equally (when people are treated the same but they should be treated differently). These occur when attributes are inappropriately used when they should not be, or when differences related to attributes are inappropriately ignored when they should be taken into account and accommodated or adjusted for. The focus is on treatment, rather than effect. Direct discrimination is the more obvious form, where an attribute is used inappropriately when it should be treated as irrelevant. It occurs when a protected characteristic is used to disadvantage a person, whether consciously, intentionally, because of unconscious bias, or as a result of common practice, making assumptions or using stereotypes to fill gaps 41 Discussed at 2.3. 42 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436. 43 Ibid 480, [1990] HCA 1 [8] (Gaudron and McHugh JJ).

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in information about a person. Indirect discrimination captures the more complex idea that applying rules consistently to people who are not alike because of an attribute or its associated features is discriminatory because it does not acknowledge the disparate impact of the rule and make adjustments or accommodation to allow for that relevant difference. Indirect discrimination opens up the law to considering discriminatory effects. Both aspects contain a requirement to think about what features make a situation alike or not, and about when the use of an attribute is appropriate or not. Sopinka J of the Canadian Supreme Court stated this challenge well in the context of disability, but the point is more general: The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes. … The other equally important objective seeks to take into account the true characteristics of this group. … Exclusion from the mainstream of society results from the construction of a society based solely on ‘mainstream’ attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. … It may be seen rather as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s 15(1) in relation to disability.44

These ideas apply outside the context of disability. For example, equality in the workplace is achieved not only by allowing a wider range of people into jobs. It is also necessary to consider when differences are relevant, so that ignoring rather than acknowledging and accommodating them would constitute discrimination in the second sense of treating unequals the same. Hence for people with disability or caring responsibilities, the norms of full-time work and 24/7 availability to meet employer requirements may need to be adjusted, not only for those individuals as exceptions to the norm, but through shifting the norm of what a worker is expected to do. This involves transforming social practices (including the workplace) so that the norms are broader and more inclusive of many different types of people and lives. Direct and indirect discrimination are the primary conceptualisations of discrimination in anti-discrimination laws. The laws do not explicitly reflect the analysis above, but instead are drafted as rights of action, comprised of elements that must be proven to make out a case. They loosely correspond to the concepts of formal equality and substantive equality, although the laws themselves expressly refer to equality of opportunity. Direct and indirect discrimination are defined in and prohibited by all Australian anti-discrimination laws. Systemic discrimination, a concept that encompasses the ways in which social structures and practices produce disadvantage for some individuals, remains outside the scope of legal

[42]

[43]

44 Eaton v. Brant County Board of Education [1977] 1 SCR 241, [67].

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prohibition, as it is often pervasive, and it can be difficult to tie liability down to any particular duty bearer. Tackling systemic practices, for example through positive action or positive duties to avoid them, is, however an essential part of moving towards transformative equality, which would involve creating social systems that do not allocate disproportionate disadvantages to groups of people with an attribute of disadvantage. Various mechanisms for tackling systemic discrimination have been developed in different jurisdictions and laws, and these developments are discussed in Part 3 of the book.

1.3.2.1 Direct discrimination [44]

[45]

[46]

Direct discrimination involves treating someone less favourably or unfavourably on the ground of, or because of, their protected attribute. This includes but is wider than the basic common-sense understanding of invidious discrimination, that is, acting on prejudice to disadvantage a person. Such adverse treatment of a person with a protected attribute on the basis of that attribute is called ‘disparate treatment’ in the US. Although the legal definitions vary, most require some form of treatment that is unfavourable to the person or group with the protected attribute compared with people without that attribute,45 and proof that the attribute was in some way the reason or basis for that treatment. Direct discrimination corresponds with the idea of formal equality. Where law prohibits treating someone with an attribute differently where that treatment is adverse to them, it is giving effect to an idea of equality as same treatment. Treating someone differently is an infringement of formal equality, which requires same treatment, and it is legally condemned if it disadvantages the person on a prohibited basis. Just as formal equality has limitations, so does direct discrimination. It rests on an assumption that treating people the same avoids discrimination. This insistence on same treatment means that it could stand as a barrier to attempts to ensure systemic change by taking positive action to achieve substantive equality for people with an attribute of disadvantage. So, for example, if a university decided to give bonus points on an entry score to students from disadvantaged schools, other students could argue that this would result in direct discrimination against them because they were treated less favourably than the disadvantaged students.46 (This claim would not necessarily succeed if it could be shown that the reason for the less favourable treatment was not their attribute, but the aim of redressing disadvantage for the other students.) It is therefore necessary to clarify the protection offered by direct discrimination by allowing an exception that permits positive action to be taken where its purpose is to achieve equality for people who are disadvantaged on the basis of a protected attribute. The scope of direct discrimination is adjusted by allowing for various types of exceptions that limit and fine-tune the prohibition. Prohibiting discrimination by law is not straightforward, because legal prohibitions disturb established ways of doing things, some of which may be justified by particular reasons. In addition to exceptions for ‘special measures to achieve equality’, most laws also contain some exceptions to the prohibitions of

45 ACT and Victoria do not require a comparison to be proved: see Chapter 5 at [33]–[35]. 46 E.g. Regents of the University of California v Bakke 438 US 265 (1978).

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discrimination that either allow for social practices, such as genuine occupational qualifications, or to protect valued social practices, such as the right to form associations and groups based on language, religion or ethnicity. Other exceptions are the result of the lobbying power of groups resistant to change, such as single-sex private clubs. One major disadvantage of direct discrimination is that it is not generally transformative. The initial introduction of laws prohibiting exclusion of attribute groups was highly transformative, ending the ability to pay women less than men, or exclude Indigenous people from jobs or pubs, for example. But now its operation is frequently to allow disadvantaged individuals into a system that is set up for the empowered groups, rather than to change the system to accommodate both groups. Where law prohibits direct discrimination and provides a remedy for it, it is often understood as a single instance perpetrated by a morally culpable individual, rather than as a manifestation of a broader cultural norm of exclusion. Because of this individualised focus, the remedies for direct discrimination tend to be individualised, in the form of damages by way of compensation, rather than directed towards changing the system within which the discrimination arises. Thus, enforcing direct discrimination law provides no guarantee against similar discrimination continuing to occur in future. Only claims or remedies directed towards bringing about systemic change can do this.

1 [47]

1.3.2.2 Indirect discrimination Different treatment that causes disadvantage is not the only concern of anti-discrimination law, for at least two reasons. First, direct discrimination law could be avoided. A person who wanted to discriminate could identify a characteristic of people with an attribute (such as the need to take leave to care for children) and use that characteristic rather than the attribute as a criterion for unfavourable treatment, for example on the basis that such employees demonstrated lower commitment to the job. Whether this is regarded as direct discrimination on the basis of the attribute would depend on how broadly the courts were prepared to recognise that the characteristic was being used as a proxy for the protected attribute. Second, unless we want to allow narrow traditional social norms to continue to exclude people, we should consider whether there is a failure to treat unequals appropriately. We should consider whether there is a need to make adjustments for them rather than to simply apply the same rules. If a practice causes disadvantage to a protected group disproportionately, it should at least be scrutinised as to whether it is an appropriate rule. While there are reasons why norms may need to prevail, these should be clearly articulated and balanced against the disadvantage caused. It should at least be asked whether the goal is an important one and whether there are less discriminatory ways of achieving it. This limb supports a prohibition on at least some types of unintentional discrimination that has an adverse effect on people with a protected attribute, known as indirect discrimination. Indirect discrimination looks to the effect of a requirement, condition or practice on people with and without an attribute of disadvantage. The legal definition of indirect discrimination has changed over the 40 years of the law’s existence, but generally requires proof of a condition, requirement or practice that has a differential effect on the two groups, and then the application of a limiting test. The limiting test allows practices that have adverse effects

[48]

[49]

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PART 1 INTRODUCTION

on protected groups to continue if there is sufficient justification for continuing to use them in light of their discriminatory effect. In the US the test for what is called ‘disparate impact’ was initially described in the employment context as a test of ‘business necessity’,47 and in the UK it is ‘justification’, but in Australia the question is whether it is ‘reasonable’. Indirect discrimination has been controversial, perhaps because its rationale and appropriate scope are unclear, and it has been limited by judicial interpretations in Australia as well as in the US. The absence of a clear boundary to its challenge to existing social, business and employment practices means it is difficult to be sure how broadly it was intended to go. However, as we noted above, there is a need for a challenge to existing arrangements, as otherwise discrimination is likely to continue.

1.4 Discrimination and law [51]

[52]

Law’s role in the elimination of discrimination is contested in relation to both its aims and its capacity. The common law had no principle against discrimination, and allowed people to act on the basis of factors that we would now regard as discriminatory, such as race, ethnicity or national origin. There was no legal barrier to paying women less than men to undertake the same work, or preventing the acquisition of an irrigation lease by an Australian of Italian origin merely because of his ethnicity.48 Basic protection existed only in some limited areas such as the implied duty of a hotel keeper to accept a guest unless specific reasons for refusal existed (which did not include race).49 Although there were occasional indications that some innovation was possible, for example where refusal to grant a racehorse trainer’s licence to a woman was held to be an unlawful denial of the ‘right to work’,50 no general principle was developed. The principle of non-discrimination introduced by anti-discrimination laws was entirely novel in common law based legal systems, and its scope has been determined by judicial decisions interpreting the provisions that parliaments adopted. The aims of anti-discrimination and equality laws are often rather vague, and the extent to which they are intended to tackle social practices of discrimination may have been left uncertain either deliberately or because of the difficulty of definition. It is not clear whether law aims to lead, accompany or follow social change. It is equally unclear whether law, if law tries to lead, is capable of bringing about social change, or whether resistance to such change will simply undermine the legitimacy of law. For example, after its landmark decision in Brown v Board of Education,51 that separate facilities for African-Americans were inherently unequal, the US Supreme Court ordered a remedy of equalising the schools by racially integrating them. This involved the bussing of students between schools on a massive scale around the US in an attempt to de-segregate them, and ultimately contributed to the desertion of the inner cities by the white middle classes. Not only was bussing the students difficult for the courts to enforce and resisted by many cities subject to the order,

47 48 49 50 51

Griggs v Duke Power Co, 401 US 424 (1971). Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492. Constantine v Imperial Hotels Ltd [1944] KB 693. Nagle v Feilden [1966] 2 QB 633 (CA). 347 US 483 (1954).

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clearly illustrating the limits of court authority, but it also led eventually to the geographical segregation of black and white communities and the concentration of black communities in areas of social deprivation. There is debate over the extent to which this process was produced by or independently of law, and the extent to which law either limited it or stimulated it.52 What is clear is that law reformers must be aware that law does not operate in a simplistic fashion as a command that is obeyed by those whom it affects. There are many interesting questions about the limits of law’s capacity to bring about change, and their basis: for example, are the laws too weak in their substantive rules, or is enforcement too limited or too difficult and therefore underserved, or is law simply limited in its capacity to bring about change in advance of changes in public attitudes? Legal decisions that are far outside social norms may face substantial resistance, and law may not have the capacity to ensure compliance on a broad basis. This means that influencing ideas, attitudes and social norms through education and law’s symbolic role remains a vital aspect of campaigning for equality and non-discrimination today. Accepting those broad limitations on law’s capacity to remake society, anti-discrimination and equality laws nevertheless have an important role in clarifying that certain ways of operating are no longer acceptable, in creating regulatory incentives for people and organisations to avoid such actions, and in providing remedies and redress to the extent possible to people whose life chances are affected by discrimination. Law is not the only social mechanism that needs to be used to address inequality and disadvantage, but it is certainly an influential mechanism that cannot be overlooked as part of a strategy. The role of law in relation to equality and discrimination has broadened over the decades since the initial adoption of anti-discrimination laws, in the 1960s in the USA and in the 1970s in Australia.53 Anti-discrimination provisions have been extended to many more people with the adoption of a much wider range of protected attributes. However, there has been only limited reform of the basic definitions of discrimination, and enforcement processes, despite concerns about the difficulty of enforcing the laws.54 There remain concerns that the laws are relatively ineffective in preventing discrimination arising. As a result, emphasis has shifted to new forms of laws that can assist in combatting systemic discrimination and changing practices in employment and elsewhere to reduce discrimination. In the UK there has been a move towards adoption of ‘positive duties’ on public sector bodies to proactively consider people with protected attributes in policy and service provision.55 Although this trend has had more limited effect in Australia to date, it remains the most promising avenue for legal intervention to reduce discrimination, and is explored further in Part 3 of this book. In the next chapter, we look at the historical background and social and legal context for anti-discrimination laws in the UN Charter and Universal Declaration of Human Rights, and the US Civil Rights Act 1964. Sophisticated legal concepts of equality have been developed

1

[53]

[54]

52 E.g. Gerald Rosenberg, The Hollow Hope (University of Chicago Press, 2nd ed, 2011); Carol Smart, Feminism and the Power of Law (Routledge, 1989). 53 Civil Rights Act 1964 (US), RDA. 54 Beth Gaze and Rosemary Hunter, Enforcing Human Rights in Australia: An evaluation of the new regime (Themis Press, 2010). 55 Fredman, above n 36.

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PART 1 INTRODUCTION

in the constitutional context in countries such as the USA, Canada and South Africa in ways that have outstripped Australia’s much narrower constitutional and legal framework. Despite efforts to reform the Australian law, it remains in an underdeveloped state compared to the law in our common comparator jurisdictions. In Chapter 3, we introduce the basic structures of the laws examined in this book to provide a framework for understanding the description and analysis of Australian equality and discrimination law that is examined in Part 2.

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HISTORICAL BACKGROUND TO ANTI-DISCRIMINATION LAW

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2.1 Introduction [1]

[2]

[3]

The first anti-discrimination laws in Australia were passed in 1966 in South Australia, and since then they have been adopted in every Australian jurisdiction. The need for legislation to prohibit discrimination existed because, as outlined in Chapter 1, the common law had failed to develop a general principle against unfair discrimination. As society changed and claims for equal rights attracted more support after the Second World War, social movements arose that campaigned for rights to be provided and respected by law. Those changes in the social order led to the landscape of anti-discrimination legislation that currently exists in Australia, and is continuing to evolve and develop. This chapter reviews the social and legal background to the adoption of anti-discrimination laws in Australia, and examines their constitutional context and the source of power to adopt such laws. It then outlines the general development of the laws over the past few decades, during which parliaments have been more willing to broaden the scope of the law than to reform its basic components or modes of enforcement. The impetus for anti-discrimination laws worldwide sprang from two main sources. First was the developing international consensus in support of universal human rights that was given effect through the United Nations (UN). The second important driver was the increasing pressure applied by social movements, including the civil rights movement in the USA. Both factors originated earlier in the twentieth century, but were strengthened in the aftermath of the Second World War.1

2.2 The United Nations and non-discrimination [4]

The UN system was set up in response to the horrors of the Second World War and with the aim of preventing the repetition of those events. It succeeded the League of Nations, which had been created by the 1919 Treaty of Versailles that ended the First World War but had failed to ensure peace in Europe. As part of the settlement of the First World War, a number of European countries were compelled to enter treaties that required them to protect national minorities.2 This was not enough to constrain states who wanted to act against their minority citizens in the 1930s, which became a major problem in the Second World War. This failure contributed to the subsequent instigation of the system of universal human rights. Another innovation created by the Treaty of Versailles in 1919 was the International Labour Organisation (ILO), a tripartite body with state, employer and employee representation, with recognition that ‘universal and lasting peace could only be established and maintained if it were based on social justice and improved working conditions’.3 One 1 Accounts of these contexts are provided by Alice Ehr-Soon Tay, Human Rights for Australia (AGPS, 1986) ch 8, and The Racial Discrimination Act 1995: A Review (AGPS, 1995) pt 1. 2 See e.g. Jennifer Jackson Preece, ‘Minority Rights in Europe: From Westphalia to Helsinki’ (1997) 23(1) Review of International Studies 1. 3 Rosemary Owens, Joellen Riley and Jill Murray The Law of Work (Oxford University Press, 2nd ed, 2011) 30.

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of its original priority issues in the field of labour relations was the ‘principle that men and women should receive equal remuneration for work of equal value’.4 The ILO remains as an organ of the UN. Its purpose was reaffirmed in 1944 in the Declaration of Philadelphia, which stated that ‘all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity’.5 In the aftermath of the Second World War, multilateral international protection of individual human rights was seen as essential to prevent repetition of the war’s horrors, and the systematic targeting of Jews, Roma (gypsies), people with disability, and homosexuals. 6 The subsequent development of UN human rights treaties documents the rise of universal human rights, and the process of developing more detailed accounts in specific treaties that required rights to be respected and protected. The principle of non-discrimination is recognised as fundamental to ensuring the equal valuation and protection of every individual, and to ensuring that human rights are equally enjoyed. The purposes of the UN as expressed in the UN Charter (1945) included achieving ‘international co-operation in … promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. 7 This principle was expanded in the Universal Declaration of Human Rights (1948). Its importance is indicated by its position at art 2, immediately after the proclamation in art 1 that ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood’. Article 2 provides that:

[5]

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The ILO also developed treaties specifically on labour rights, separately from universal human rights. The first international convention on discrimination was ILO Convention Concerning Discrimination in Respect of Occupation and Employment (1958) (No 111) (ILO 111). This includes the first international law definition of discrimination as:

[6]

4 Treaty of Peace between the Allied and Associated Powers and Germany, signed 28 June 1919, 225 ConTs 188 (entered into force 10 January 1920) pt XIII, art 427 (‘Treaty of Versailles’); Constitution of the International Labour Organisation, Preamble, art 1. The preamble also included the following goals: protection of ‘children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own’. 5 Declaration concerning the Aims and Purpose of the ILO (1944). The most recent restatement of the Organisation’s goals is the Declaration on Social Justice for a Fair Globalization (2008), which emphasises non-discrimination as a cross-cutting priority on all goals. 6 Sandra Fredman, ‘Disability Equality: A Challenge to the Existing Anti-Discrimination Paradigm’ in Anna Lawson and Caroline Gooding (eds), Disability Rights in Europe: From Theory to Practice (Hart Publishing, 2005) 199. 7 UN Charter art 1, para 3.

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any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation … [7]

[8]

This was followed by the first of the UN specialised treaties, the International Convention on the Elimination of all forms of Racial Discrimination (1965) (CERD). This adopted a definition of discrimination similar to ILO 111, but broader in prohibiting not just actions that have the effect, but also those that have the purpose, of nullifying or impairing the enjoyment of rights on the basis of race. It applies beyond the area of employment to the enjoyment of all the human rights and fundamental freedoms specified in the Convention. In 1966 the UN General Assembly approved the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) which, together with the Universal Declaration of Human Rights, are known as the International Bill of Rights. These Covenants expanded, clarified and defined the rights in the Universal Declaration. The right to enjoyment of all the rights in the Covenants without distinction on the basis of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ is a central feature of both instruments.8 The ICCPR further emphasised the importance of the principle of non-discrimination by introducing a stand-alone equality right in art 26, which does not depend on showing a breach of another right in the Covenant. Article 26 provides: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[9]

[10]

Article 26 specifies four dimensions of an equality right, including equality before the law, equal protection of the law, legal prohibition of discrimination and a right to equal and effective protection against discrimination; but, like art 2, it does not contain a definition of discrimination. Under art 26, states that ratify the ICCPR undertake to prohibit discrimination in their law and to provide an effective means of enforcing that right. Subsequent campaigns for protection against other forms of discrimination and oppression led to the development of several Conventions dealing with specific areas. These include the Convention on the Elimination of all forms of Discrimination Against Women (1979) (CEDAW), the Convention on the Rights of the Child (1989) (CROC), and the Convention on the Rights of Persons with Disabilities (2006) (CRPD). Both CEDAW and CRPD contain definitions of discrimination that build on the definitions in ILO 111 and CERD. These later conventions differ from the CERD in protecting only the disadvantaged group (women, children, people with disability), rather than prohibiting discrimination based on the attribute. This asymmetrical approach, similarly to the League of Nations’ minority rights approach, acknowledges that the disadvantaged group suffers from discrimination, an approach closer to substantive equality. By contrast, the CERD’s symmetrical approach prohibits use of race 8 ICCPR art 2.1 and IESCR art 2.2.

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as a basis for discrimination, and can be relied on by majority- as well as minority-race individuals. These two approaches differ in whether they acknowledge which groups have suffered overwhelmingly from past practices of discrimination, or seek to ensure that no one can be disadvantaged on a morally irrelevant basis. The second approach is ahistorical and consistent with liberal theory, which looks only at individuals, and formal equality, while the former is oriented to substantive equality and takes account of historical oppression on the basis of race, sex, disability and other minority status. Like the ICCPR, these Conventions impose obligations on ratifying states to provide effective legal protection of rights, as well as to report regularly to the treaty committees on performance of their Convention obligations. Australia is a ‘dualist’ jurisdiction in international law, which means that ratified treaties do not take effect in domestic law, but have to be given effect by legislation.9 Hence the only legal protection against discrimination in Australia is that provided by domestic legislation, such as anti-discrimination laws. However all the human rights Conventions mentioned here allow for a complaint that the state has failed to protect rights to be made to an international supervising committee if domestic remedies have been exhausted. While the outcomes of such complaints are not enforceable, they carry moral weight, and are capable of having some weight in diplomatic relations between nations.

2

[11]

2.3 The second strand – the American civil rights movement In parallel with the international developments, many countries were also developing the law in this area through legislative or constitutional changes. The Canadian province of Ontario introduced a Racial Discrimination Act in 1944, followed by Saskatchewan’s Bill of Rights in 1947, and the Canadian Bill of Rights in 1960 – a law that was later replaced by the Canadian Charter of Rights and Freedoms when Canada’s Constitution was renewed in its Constitution Act 1982. In the USA, between the two world wars, the National Association for the Advancement of Coloured People had undertaken a litigation strategy to overturn the effect of the ‘separate but equal’ doctrine.10 The move towards laws against discrimination gained impetus after the Second World War. African-American soldiers, who had fought alongside their white fellow citizens, returned to a country that still operated on the basis of segregation and black disadvantage, as a result of the Supreme Court’s validation in 1896 of the doctrine of ‘separate but [fictionally] equal’ in Plessey v Ferguson.11 Eventually, in Brown v Board of Education,12 the Supreme Court held that racially segregated schools were inherently unequal, and

[12]

[13]

9 Peter Bailey, The Human Rights Enterprise in Australia and Internationally (LexisNexis Butterworths, 2009) 260–63. 10 Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality (Vintage, 2004). 11 Plessey v Ferguson 163 US 537 (1896). 12 347 US 483 (1954).

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[14]

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PART 1 INTRODUCTION

were in breach of the Fourteenth Amendment’s equal protection guarantee. This important constitutional decision restricted Congress, but did not operate to limit the actions of nongovernment individuals and organisations. Partly in response to this need, the Civil Rights movement developed in the late 1950s and early 1960s, demanding wider protection against discrimination and equal civil rights for African-Americans. The women’s movement also developed around the same time, campaigning for women’s freedom from the constraints and oppression of discriminatory rules and practices. These movements eventually led to the passage of the Civil Rights Act of 1964,13 which deals with discrimination by government or private individuals based on race or sex in voting, public schools, facilities and accommodations such as theatres and hotels, and employment. It allowed the person affected to bring a civil action against the person who discriminated, and indirectly became the model for the anti-discrimination laws in Australia. Subsequent legislation in the US prohibited discrimination based on disability, pregnancy, religion and age.14 The American model has influenced the development of Australian anti-discrimination law in two ways: firstly, as a model for civil rights movements and campaigns for laws against discrimination; and secondly through the particular concepts of discrimination that emerged in interpreting the US laws. The Civil Rights Act 1964 does not contain a definition of ‘discrimination’, but the courts interpreted the term to cover two types of actions. The first, ‘disparate treatment’, covered treating someone less favourably than another person on the basis of the protected attribute of race or sex. The second, ‘disparate impact’, looked at the effect of particular treatment on a person. The Supreme Court in 1971, in Griggs v Duke Power Company,15 held that it was discriminatory to apply a requirement or condition that, although apparently neutral on its face, had the effect of disadvantaging people in a protected group substantially more than people in other groups, unless the requirement was justified by business necessity. These two concepts of discrimination were given legislative form as direct and indirect discrimination in the UK’s Sex Discrimination Act 1975 and Race Relations Act 1976, and it was this legislative model that was followed in later Australian laws (discussed in more depth in Chapter 5).

2.4 Australian social context [15]

Australia has a history of inequalities across racial, sex, disability, sexuality, age and other boundaries. At the turn of the 20th century, Australia was building a record of progressive social reform, for example through campaigns for women’s right to vote which succeeded in securing universal suffrage at a Commonwealth level in 1902, although paternalist and racist attitudes towards Indigenous people were still widespread. Support for progressive movements broadened, especially after the Second World War, leading to the rise of social movements for Aboriginal rights and women’s liberation in the 1950s and 1960s, and social

13 US Pub L 88–352, 78 Stat 241. 14 Americans with Disabilities Act 1990, Pregnancy Discrimination Act 1978, and Age Discrimination in Employment Act 1967. Religion is covered by Title VII of the Civil Rights Act 1964. The states also have their own anti-discrimination laws. 15 401 US 424 (1971).

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changes began to occur. These movements were influenced by the US civil rights movements, as well as the increasing emphasis on the universality of human rights and every person’s right to be treated with equal concern and respect.16 Social attitudes changed so that laws against discrimination came to be seen as essential to protect fundamental rights, particularly for the disadvantaged; however, it was not until 1967 that explicitly discriminatory references to Aboriginal people were removed from the Australian Constitution;17 it took until the mid 1960s for women not to be deemed to have resigned from public service employment on marriage; and equal pay decisions were not handed down until 1969 and 1972.18 The process of social change continued over following decades, as seen for example in the gradual change of social opinion about protecting sexual minorities from discrimination. Legislative protection against sexual orientation discrimination was adopted by the states and territories, beginning with NSW in 1982, and finally by the Commonwealth in 2013. Support for equality of sexual minorities had spread over this time, and one by one each jurisdiction had amended other laws that disadvantaged gay and lesbian people until eventually both major political parties supported anti-discrimination rights at the federal level.19 However, it cannot be assumed that social change is always in a progressive direction, as demonstrated by the gender wage gap, which (at 16.2 per cent in May 2016) has increased from its lowest point of 14.9 per cent (in November 2004).20 Further consideration of the major attributes protected by anti-discrimination laws is undertaken in Chapter 4. The common feature of the protected attributes is that they have historically all been the basis for oppression and denial of rights. Even though anti-discrimination laws generalise and abstract ‘attributes’, it is important to recognise that each disadvantaged or oppressed group of people has a different history and experience of disadvantage. Many Indigenous peoples were dispossessed of their lands and, over time, of their traditional cultures and self-determination. Women’s struggle against legal and social constraints grew from origins in which married women had no separate legal personality or right to own property, women were not considered a ‘person’ for the purposes of entering university or many professions, and they were constrained to lower-paid, second-class and insecure work (originally as a matter of law, currently as a matter of social practice and

2

[16]

[17]

16 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977). 17 The referendum deleted s 127 of the Constitution, which prevented Indigenous Australians being counted in any census, and removed the words ‘other than the aboriginal people in any state’ from the federal power in s 51 (xxvi) to legislate for the ‘people of any race for whom it is necessary to make special laws’. The referendum itself did not give Aboriginal people the right to vote; that had been granted in 1962 through amendment of the Commonwealth Electoral Act 1918: B Gaze and M Jones, Law, Liberty and Australian Democracy (Law Book Co, 1990), 90–94. 18 See generally Verity Burgmann, Power and Protest: Movements for Change in Australian Society (Allen & Unwin, 1993); Rosemary Hunter, ‘The Beauty Therapist, the Mechanic, the Geoscientist and the Librarian: Addressing Undervaluation of Women’s Work’ (Clare Burton Lecture, 1993). 19 Smaller parties such as the Australian Democrats and the Greens had supported these changes for many years, introducing bills to provide such protection. The 2013 amendments to the SDA added the protected attributes of sexual orientation, intersex status and gender identity. 20 Workforce Gender Equality Agency, Gender pay gap statistics fact sheet (August 2016) . This data is regularly updated.

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a labour market that refuses to accommodate women’s lives). People with disability have faced enormous struggles to be heard and to be considered entitled to the same rights as those without disability, for example in terms of their right to education and to access transport, work and other activities.

2.5 Development of legislation in Australia [18]

[19]

[20]

The first Australian anti-discrimination law, the Prohibition of Discrimination Act 1966 (SA), outlawed discrimination based on race. Like the earlier Canadian provincial laws, it made racial discrimination a criminal offence. It was necessary to prove intention in order to successfully prosecute a case. Establishing beyond reasonable doubt that a person had a racial motive for their action proved to be extremely difficult, and of the four cases brought under the Act in its 10-year life, only one was successful.21 As a result, subsequent anti-discrimination laws adopted a civil liability model, where the unlawful discrimination had to be proved only to the civil standard of proof, on the balance of probabilities. The first of the federal laws was the Racial Discrimination Act 1975 (Cth) (RDA). Reflecting the Whitlam Labor government’s push to expand the scope of the Commonwealth’s powers to legislate, it relied substantially on the Commonwealth’s power to legislate for ‘external affairs’ (discussed below at 2.6.1). For this reason, and because it was adopted before the direct/indirect model had been developed in the UK, the RDA’s definition of discrimination is taken almost directly from the underpinning CERD. The RDA creates a civil action for breaching the prohibition on discrimination.22 The attributes protected in the RDA are ‘race, colour, descent or national or ethnic origin’.23 Originally the RDA was enforced by a two-stage process involving a complaint to the Commissioner for Community Relations created by the Act, who could attempt to effect a settlement of the matter, but if that failed, a claim could be taken to a court of competent jurisdiction (the local District or County Court). After the creation of the Human Rights Commission in 1981, the Commissioner for Community Relations became a member of it.24 The Human Rights and Equal Opportunity Commission Act 1986 renamed the Commission (HREOC) and gave it ongoing powers and functions. The new name reflected its new function of enforcing the anti-discrimination laws by acting as a tribunal to hear claims under the RDA and subsequent federal Acts. Originally based in Canberra, the main office of the HREOC was moved to Sydney from 1986. For some years it also had regional offices in those states which did not have their own state legislation or anti-discrimination agency, but budget restrictions led to their closure, so now the Australian Human Rights Commission (as it was renamed in 2009) (AHRC) only has

21 Tay, above n 1, 34, citing D Prideaux ‘The South Australian Prohibition of Discrimination Act and Racism’ (1975) 10 Australian Journal of Social Issues 315. 22 RDA ss 9, 11–17. 23 RDA s 9(1). 24 Human Rights Commission Act 1981, RDA Amendment Acts 1980, 1981. The Whitlam government had tried to introduce a human rights commission and a bill of rights, but these initiatives did not attract sufficient support: National Human Rights Consultation Report (2009) ch 10: Bill of rights debates – a historical overview; Australian Parliament, ‘The Federal Parliament and the Protection of Human Rights’, Research Paper 20 (1998–9).

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an office in Sydney. In the past, complaints under federal legislation in jurisdictions where the AHRC had no presence were dealt with by arrangement by state agencies acting on its behalf. Now these arrangements have ended and disputes arising outside Sydney are dealt with by telephone or internet, with occasional visits to conduct conciliation meetings. The states and territories began to adopt anti-discrimination laws from 1975. They did not follow the RDA’s model, but were instead influenced by developments in the UK. As noted above, the Sex Discrimination Act 1975 (UK) introduced definitions of direct and indirect discrimination based on the US concepts of disparate treatment and disparate impact discrimination, and was followed by the Race Relations Act 1976 (UK) which revised earlier race relations laws and adopted a similar two-part definition of racial discrimination. The first legislation in each Australian state or territory providing a civil remedy for discrimination was adopted in 1975 (SA), 1977 (NSW and Vic), 1984 (WA), 1991 (Qld and ACT), 1992 (NT) and 1998 (Tas). For most states, the laws when first adopted covered racial discrimination or racial and sex discrimination (including marital status and pregnancy discrimination). All were subsequently broadened to cover disability,25 sexual harassment, and then various other attributes such as sexuality, religious belief and industrial activity. Eventually, but not uniformly, they extended to a wide range of attributes including parental or carer status, family or carer’s responsibilities, potential pregnancy, breastfeeding, age, political beliefs or activities, industrial or employment activities, physical features, relationship status, gender identity and intersex status, irrelevant criminal record, spent conviction, and irrelevant medical record. (See further Chapter 4 and Appendix A.) Subsequent Commonwealth laws were enacted roughly a decade apart: the Sex Discrimination Act (SDA) in 1984, the Disability Discrimination Act (DDA) in 1992, and the Age Discrimination Act (ADA) in 2004. Virtually all the laws, at federal level and at state and territory level, were first introduced by a Labor government, with the exception of the ADA which was adopted by a Liberal-National Coalition government. Subsequent expansion and revision has also largely been the province of Labor governments. In summary, Australia now has eight different anti-discrimination laws at state and territory level, together with four Commonwealth anti-discrimination laws and the Australian Human Rights Commission Act 1986 (AHRCA) which contains the enforcement procedures for the federal laws. Although the laws have many similarities, they differ significantly in detail. This proliferation of laws creates complexity that is a challenge for any organisation or business that has to comply with the laws in more than one jurisdiction. The number of different laws has led to calls for law reforms to ensure consistency around the country,26 and the goal of national harmonisation was considered but abandoned as too difficult by the Council of Attorneys-General in 2009–10.27 Instead, the federal government initiated an unsuccessful law reform process to consolidate the federal laws, as discussed in Chapter 11.

2 [21]

[22]

[23]

[24]

25 1981 was the International Year of Disabled Persons, during which the UN called for greater protection by law for people with disability. 26 Mark Nolan, ‘The legal and psychological benefits of nationally uniform and general anti-discrimination law in Australia’ (2000) 6 Australian Journal of Human Rights 79. 27 Standing Committee of Attorneys-General, Communique, 25 July 2008 . See also National Human Rights Consultation Report, above n 24, 157–8.

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2.6 Australian constitutional context [25]

[26]

[27]

Australia’s Constitution determines the topics on which the Commonwealth has power to pass legislation, as well as the relationships between the Commonwealth and the states, and in particular the relationship of Commonwealth legislation with state legislation when the two overlap. Before federation, the colonies had Parliaments that had the same full powers as the British Parliament in Westminster to pass legislation on any topic for peace, order and good government. The powers of the Commonwealth are limited by the terms of the Constitution because at federation, the states agreed to confer only some areas of legislative power on the Commonwealth, some exclusively (s 51) and some concurrently (s 52). This means the states can legislate to outlaw discrimination or implement human rights if they choose to do so, but the legislative power of the Commonwealth is limited to the topics that are identified in the Constitution. These lists of heads of power do not include any express power to legislate for human rights, equality, or discrimination. The absence of power to legislate for individual rights is not surprising, because these issues were not of major concern to populations around the time of federation. The Constitutional Conventions that preceded Federation considered, but rejected, the idea of adopting a constitutional bill of rights, like the Amendments to the US Constitution. Among the stated reasons were that rights were adequately protected by the common law, but an underlying reason was that protection of rights might have prevented race-based control of immigration.28 There was also concern that the power of parliament to legislate should not be limited by the decisions of an unelected judiciary whose decisions could be reversed only by amending the Constitution through the onerous referendum process required by s 128. However, the common law did not provide protection against discrimination, and protection within Australia for many human rights is still inadequate. Leaving rights protection to the common law and the parliament can be a particular problem for minority groups (such as Indigenous people in the Australian context) who may not have the numbers or support to protect themselves through the political process, especially if a majority of voters elected a government that was willing to deny basic rights to the minority. This argument was raised in America during the 1930s29 and has developed into a major rationale for the constitutional protection of some human rights.30 The Australian Constitution contains few express rights for individuals (s 80, s 116) or rights against discrimination only in respect of discrimination between residents of different states (s 117).31 It contains no express power to legislate for human rights, equality or discrimination. It contains a power to legislate ‘for the people of any race for whom it is necessary to make special laws’, which has been held not to be restricted only to beneficial

28 Keith Mason, ‘The saga of Egon Kisch and the White Australia Policy’ [2014] (Summer) Bar News: Journal of the NSW Bar Association 64; Kathryn Cronin, ‘Controlling immigration: Australian legislation and practice’ (1999) 75 Australian Law Reform Commission Reform Journal 6. The Immigration Restriction Act 1901 was passed in the first year of the new Commonwealth parliament. 29 United States v Carolene Products Co, 304 US 144 (1938), fn 4. 30 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1981). 31 George Williams and David Hume, Human Rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013).

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legislation.32 This leaves open the possibility that it could be used to impose disadvantages on a particular group of people by reference to their race, that is, that it could validate racially discriminatory legislation. As a result, its presence in the Constitution has become controversial. In 2012 a campaign for recognition in the Constitution of Australia’s Indigenous peoples sought the repeal of the ‘race power’ in s 51(xxxvi), and to replace it with a provision that denies power to pass racially discriminatory legislation.33 The government has not supported the latter recommendation.

2.6.1 Commonwealth power to adopt anti-discrimination laws Because there is no express power to pass human rights laws, the Commonwealth had to test whether other powers could support such laws when it sought to adopt such legislation. During the Whitlam Labor government of 1972–75, two major human rights initiatives were pursued. The first, a proposed Bill of Rights, attracted substantial opposition and was unable to proceed.34 The second, the RDA, relied primarily on the ‘external affairs’ power in s 51(xxix) on the basis that a matter that was the subject of a multilateral treaty like the CERD was by definition a matter of external affairs so that, once it was ratified, the Commonwealth would have power to implement it by legislation to give effect to the obligations it imposed. This argument was tested and upheld in Koowarta v Bjelke-Petersen,35 in which a refusal by the Queensland Government to approve the transfer of a pastoral lease to the Aboriginal Land Fund Commission was held to be discrimination on the basis of race in breach of s 9 of the RDA, which was held to be constitutionally valid. Further, the High Court made clear that the external affairs power did not require the terms of the convention to be followed exactly, and was not limited to legislation required to implement conventions, but could authorise legislation on other matters of international concern. Subsequently, the constitutional validity of s 10 was also confirmed in Mabo v Queensland (No 1)36 (discussed at 2.6.2.3 [38]). Other heads of power have also been relied upon. The RDA also relied on the immigration power.37 Later, for the SDA, in addition to the external affairs power38 a long list of other Commonwealth powers were used, including the ‘corporations,’ trade and commerce,

[28]

[29]

32 Kartinyeri v Commonwealth (1998) 195 CLR 337 (the ‘Hindmarsh Island Bridge case’). 33 Commonwealth of Australia, Report of the Expert Panel: Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (2012) . In 2015, three constitutional reform options were proposed for consideration by the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples in its Final Report (June 2015). 34 Australian Bill of Rights Bill 1974 (Cth). See generally Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of Rights in Australia: History, Politics and Law (UNSW Press, 2009). 35 (1982) 153 CLR 168; [1982] HCA 27. 36 Mabo v Queensland (No 1) (1988) 166 CLR 186. 37 RDA s 5. 38 Originally the SDA relied only on the CEDAW, but later it extended to other international instruments: s 9(10) and definition of ‘relevant international instrument’ in SDA s 4(1).

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banking and insurance powers.39 As there was no disability convention when the DDA was adopted, it relied on every possible constitutional basis of power,40 and the ADA took the same approach.41 The validity of the ADA has not been tested, but provisions of the SDA have been held to be valid in Aldridge v Booth,42 and the DDA was conceded to be valid in Purvis v NSW.43 For future laws, the recent expansive interpretation by the High Court of the ‘corporations’ power44 bolsters the Commonwealth’s power to pass legislation in relation to the activities of commercial companies and other corporations.

2.6.2 Section 109: Conflicts between Commonwealth and state laws [30]

With states also passing laws about discrimination, the potential exists for conflicts to arise between state and Commonwealth laws. Such conflicts are regulated by s 109 of the Constitution, which provides: ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid’. The High Court has developed alternative tests for inconsistency: there must be an inability to comply with both laws, such as where an action prohibited by one law is required by another, or the Commonwealth law manifests an intention to cover the field of its operation and thereby an intention to leave no space for the operation of state law in that field.45 Conflicts can arise in several forms, between: 1. State and Commonwealth anti-discrimination laws; 2. State anti-discrimination laws and other Commonwealth laws; or 3. Commonwealth anti-discrimination laws and other state laws.

2.6.2.1 State and Commonwealth anti-discrimination laws [31]

Conflicts between Commonwealth and state anti-discrimination laws arose early. In Viskauskas v Niland,46 the High Court held that a finding of racial discrimination under the NSW Anti-Discrimination Act 1977 (ADANSW) was invalid because the RDA evinced an intention to cover the field. Although it was possible to comply with both laws in that case, the High Court held the RDA manifested an intention to cover the field because it was expressed to bind the Crown in right of the states as well as the Commonwealth (s 6); and because it gave effect to the Convention, it was necessary for it to operate equally in all states, which could not admit the possibility that state laws might allow exceptions or detract from the scope of

SDA s 9. DDA s 12. ADA s 10. (1988) 80 ALR 1. (2003) 217 CLR 92. Constitution s 51(xx); Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468; NSW v Commonwealth (2006) 229 CLR 1 (the WorkChoices case). 45 See Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (Lawbook, 4th ed, 2014) ch 7. 46 (1983) 153 CLR 280.

39 40 41 42 43 44

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its coverage. Subsequently, the Commonwealth amended the RDA to overturn the effect of this decision, introducing s 6A, which provides that: This Act is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory that furthers the objects of the Convention and is capable of operating concurrently with this Act. In University of Wollongong v Metwally,47 Metwally had succeeded in his claim of racial discrimination under the ADANSW against the University where he had been a PhD student. However, the decision was given before s 6A came into effect. The University challenged the decision and the High Court held 4:3 that the attempt to give s 6A retrospective effect was not successful, and as a result, the decision of the NSW Equal Opportunity Tribunal was given without power and was therefore invalid. For cases arising after s 6A came into effect, however, it is generally accepted as having ensured the concurrent operation of state and Commonwealth anti-discrimination laws. Provisions equivalent to s 6A have been included in each Commonwealth anti-discrimination law.48 Some unresolved questions may remain about when a law ‘is capable of operating concurrently with this Act’, for example where there are significant differences between state and Commonwealth laws, such as the possibility of temporary exemptions to racial discrimination being granted under state laws when there is no possibility of any such exemption under the RDA. If such a discrepancy between the laws is not a problem in relation to the constitutional validity of either law, a temporary exemption granted under a state law will not protect against a racial discrimination claim brought under the federal law in respect of the action covered by the exemption,49 because both laws continue to operate. Because provisions like s 6A ensure that Commonwealth and state laws operate concurrently, generally complainants have a choice of using either Commonwealth or state/territory laws. To avoid duplication of proceedings and protect respondents from being subject effectively to the same claim under two laws, the Commonwealth required complainants to choose one or the other avenue. It did this by adopting RDA s 6A(2), which essentially provides that if a person has ‘made a complaint, instituted a proceeding or taken any other action under’ a state or territory law to which s 6A(1) applies, the person cannot then make a complaint under the Commonwealth law.50 In effect, if a person takes any legal action under state or territory anti-discrimination law, they lose their right to make a complaint under Commonwealth law. Although there is no explicit provision that prevents the reverse (bringing a complaint in state jurisdiction after a process in the federal jurisdiction) from occurring, all state and territory laws contain provisions allowing a complaint to be declined at the discretion of the agency if the complainant ‘has initiated proceedings in another forum’.51 This is said to be to prevent ‘double dipping’ by bringing multiple overlapping claims. As a

[32]

[33]

[34]

47 (1983) 158 CLR 447. 48 SDA s 11; DDA s 13; ADA s 12(3). 49 See e.g. the ‘ITAR’ exemptions: Simon Rice, ‘Staring down the ITAR: Reconciling discrimination exemptions and human rights law’ (2011) 10 Canberra Law Review 97. 50 Similar provisions exist in the SDA s 10, DDA s 13 and ADA s 12. 51 E.g. Equal Opportunity Act 1977 (Vic) (EOAV) s 116(d).

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result, it is very important that potential complainants get expert advice before they lodge a complaint under either law, about which jurisdiction is the best for their claim. Factors relevant to making a choice between available jurisdictions are discussed in Chapter 7.

2.6.2.2 State anti-discrimination laws and other Commonwealth laws [35]

[36]

Conflicts under s 109 of the Constitution between state anti-discrimination laws and Commonwealth laws other than anti-discrimination laws have been explored in several cases. In Ansett Transport Industries v Wardley,52 it was held that the Equal Opportunity Act 1977 (Vic) (EOAV) was not overridden by an airline pilots enterprise agreement that had been certified under the Conciliation and Arbitration Act 1904 (Cth) and had the same effect as an award of the Conciliation and Arbitration Commission. The High Court held that the agreement operated in the context of the general law, including both contract law and state anti-discrimination law. The agreement manifested no intention to cover the field of the employment conditions of airline pilots, merely to regulate some of their industrial conditions, hence it did not displace the general context including state anti-discrimination law. The fact that the Commonwealth law involved in Wardley was subordinate legislation rather than parliamentary legislation was not regarded as significant. Two cases illustrate situations in which the Commonwealth law was construed by the High Court as demonstrating an intention to cover the relevant field of employment conditions and thereby rendered the state law inconsistent and invalid to the extent of the conflict. The complainants in Dao v Australian Postal Corp53 and AMP v Goulden54 had both been successful in their discrimination cases under state anti-discrimination laws. However, the High Court held that the Postal Services Act 1975 (Cth) and the Life Insurance Act 1945 (Cth) each manifested an intention to cover the relevant field, respectively employment by Australia Post and regulation of life insurance, thereby invalidating the state anti-discrimination laws and rendering the decisions in favour of the complainants invalid. The construction of the Commonwealth law to determine whether a conflict arises is an issue that must be dealt with in the context of each specific piece of legislation. The converse of this situation is where Commonwealth anti-discrimination law conflicts with a state law on a different subject.

2.6.2.3 Commonwealth anti-discrimination laws and other state laws [37]

In this situation, it is again a question of construing the Commonwealth law involved to determine whether there is either direct inconsistency or an intention to cover the field that renders the state legislation invalid. The case law in this category indicates the vital importance of Commonwealth anti-discrimination laws in invalidating discriminatory state legislation on other topics. Among the state laws that have been held to be inconsistent with the prohibitions of discrimination in the Commonwealth laws are the Pitjantjatjara Land Rights Act (SA) (which was, however, held to be valid as it was saved by the special measures exception),55 52 53 54 55

Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237. (1987) 162 CLR 317. (1986) 160 CLR 330. Gerhardy v Brown (1985) 159 CLR 70.

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and the Infertility Treatment Act 1995 (Vic), whose provision denying a single woman eligibility for reproductive technology treatment was held to be inconsistent with the prohibition on marital status discrimination in the SDA.56 The Commonwealth itself has also used s 109 as a means to invalidate a state law that breached the ICCPR human right to privacy.57 This avenue has proved to be extremely important in the development of racial discrimination law in Australia, and especially in relation to the rights of Indigenous people, particularly land rights. Apart from its prohibitions on racial discrimination (ss 9 and 11–15) the RDA contains a highly important provision in s 10, that where members of a particular racial group ‘do not enjoy a right that is enjoyed by’ members of another racial group or enjoy it to a more limited extent, then by force of s 10, the first-mentioned group shall enjoy it ‘to the same extent’. This provision operates of its own force, and there is no need to bring a claim of discrimination to enliven it. Instead, a party can apply to a court for a declaration. The first case on s 10 was Mabo No 1.58 After Mabo commenced his groundbreaking native title claim in relation to Murray Island in the Torres Strait, the Queensland government passed the Queensland Coast Islands Declaratory Act 1985 asserting Crown title in the Torres Strait Islands, which would have defeated the native title claim. Mabo’s claim that the Queensland Act was inconsistent with s 10 of the RDA was upheld by the High Court and invalidated the Queensland Act. This preserved the subject matter so that the High Court could later decide Mabo’s native title claim.59 Section 10 has played a similar role in subsequent cases to invalidate a range of state laws that restricted the rights of Indigenous people in relation to land claims60 and in relation to alcohol controls.61 These provisions and cases are discussed in more detail in Chapter 8 (at 8.2.3: Distinctive approach of the RDA).

2 [38]

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2.6.3 Other constitutional aspects: The limits of federal powers 2.6.3.1 Separation of powers and the enforcement process There are constitutional limitations on the enforcement process for the federal laws. From 1986 onwards, enforcement was by adjudication in the HREOC, acting as a tribunal. Under the constitutional separation of powers principle, a tribunal cannot exercise judicial power; so a tribunal cannot give a binding resolution of a dispute between two parties, as that is an

[40]

56 McBain v Victoria [2000] FCA 1009. 57 The UN Human Rights Committee held in Toonen v Australia (HRC, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/D/88/1992 (4 April 1994)) that the Tasmanian law against consenting private homosexual activity between adults was in breach of the privacy provisions of the ICCPR. The Commonwealth passed the Human Rights (Sexual Conduct) Act 1994 (Cth) to invalidate the Tasmanian law, and the validity of that Act was upheld in Croome v Tasmania (1997) 191 CLR 119. 58 Mabo v Queensland (No 1) (1988) 166 CLR 186. 59 Mabo v Queensland (No 2) (1992) 175 CLR 1. 60 Western Australia v Ward (2002) 213 CLR 1; Western Australia v Commonwealth (1995) 183 CLR 373. 61 Maloney v R [2013] HCA 28.

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exercise of judicial power.62 The RDA and SDA provided that decisions of the Commission could be enforced by seeking an order from the Federal Court, which was a burdensome and inefficient method because the Federal Court had to hear the whole case again and might reach a different decision. An attempt to improve enforceability in 1992 changed the system so that a Commission decision could be registered with the Federal Court and would take effect as an (enforceable) court order unless the respondent took legal action to prevent this. This system of enforcement was challenged in Brandy v HREOC,63 where the High Court held it to be in breach of the separation of powers principle by attempting to confer enforceability on the decision of the Commission. As a result, the enforcement process had to be revised, and in 2000 the current system was adopted whereby matters are heard in the Federal Court or the Federal Circuit Court (then the Federal Magistrates Court). This change made enforcement of Commonwealth anti-discrimination law more risky for complainants because, unlike the Commission, the courts apply the default costs rules that the loser pays the winner’s costs (discussed further in Chapter 7).

2.6.3.2 Extra-territorial operation [41]

Neither Commonwealth nor state laws have extraterritorial operation, as they cannot operate beyond the limits of the Commonwealth’s or state’s territorial powers.64

2.6.3.3 Jurisdiction to hear claims against the Commonwealth [42]

The Commonwealth may not be subject to claims in state and territory tribunals. A finding under the Anti-Discrimination Act 1998 (Tas) (ADAT) that staff of the Commonwealth agency Centrelink had discriminated was quashed on appeal by the Full Federal Court.65 The majority applied the common law presumption that the Crown (that is, the government of the Commonwealth or a state) is not bound by legislation unless this is expressly stated, and held that the Tasmanian Anti-Discrimination Tribunal did not have jurisdiction to hear the complaint against the Commonwealth. This is a constitutionally complex area, and it may be that claims against the Commonwealth or its agencies need to be brought under federal legislation.66

2.6.3.4 Constitutional concept of discrimination [43]

Finally, although there are no constitutional protections for human rights, there are some provisions that refer to discrimination in other contexts, such as s 117, which protects nonresidents of a state from being subjected to ‘any disability or discrimination’ in a state which would not apply to residents of the state, and s 92 which provides that ‘trade, commerce,

62 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 (the Boilermakers case); Joseph and Castan ch 6, above n 45. 63 Brandy v HREOC (1995) 183 CLR 245. 64 Brannigan v Department of Foreign Affairs and Trade [2000] HREOCA 10. Regarding state laws, see e.g. Gluyas v Google Inc [2010] VCAT 540. 65 Commonwealth v Anti-Discrimination Tribunal (Tasmania) [2008] FCAFC 104. 66 Benedict Bartl and Brendan Gogarty, ‘Binding the monolith: Can state tribunals still hold the Commonwealth to account following Nichols’ case?’ (2009) 34(4) Alternative Law Journal 260.

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and intercourse among the States … shall be absolutely free’, thereby requiring courts to search for illegitimate discrimination or barriers. The significant case law on these provisions is useful in framing the High Court’s approach to discrimination generally, although it is not directly relevant to construing anti-discrimination legislation.67 The High Court has refused to find an implied equality right in the Constitution.68

2.7 Development and reform of the law over time Anti-discrimination laws have now been in operation in Australia for nearly 40 years. Most have been amended incrementally over time, with the two extremes represented by the RDA, which has had very little amendment, and the EOAV, which has been revised and reenacted on several occasions – 1984, 1995 and 2010. The main change for most laws has been the addition of new attributes. Overall, Australian parliaments have been much more prepared to grant extra groups access to the protection of anti-discrimination laws by including extra attributes than they have been to reform the basic mechanisms in the laws to make enforcement more straightforward and effective, despite the limited effectiveness of the current enforcement model (discussed further in Chapter 7). The process of legal change in each jurisdiction demonstrates the interplay of the social and political contexts (including pressure for change and the parliaments’ willingness to engage with discrimination law), the developing understanding of discrimination as a phenomenon and the accumulation of knowledge of the operation of these laws and their interpretation by the courts. There is no doubt that, as has been argued, a nationally consistent anti-discrimination law would bring many benefits for people in the protected groups, and for businesses and organisations that have to comply with the law.69 As this is a politically charged area of law, proposals for amendment raise strong views, and proposals for broad changes can attract very strong resistance. The attempt in 2011–13 to consolidate and harmonise the four federal laws (discussed in Chapter 11) was unsuccessful; it was politicised and undermined by media attention focused solely on one provision.70 The inability of Australia’s media to provide informed coverage of the proposed changes suggested a general lack of knowledge or understanding of the concepts and operation of these laws in the media and the community. Instead of broad reform, the process resulted only in the adoption of the three new attributes (sexual orientation, intersex status and gender identity) into the SDA. After a change of government, a movement to ‘reform’ the provisions of the RDA that prohibit

[44]

[45]

[46]

67 Amelia Simpson, ‘The High Court’s conception of discrimination: Origins, applications and implications’ (2007) 29 Sydney Law Review 263. 68 Leeth v Commonwealth (1992) 174 CLR 455; Kruger v Commonwealth (the Stolen Generations case) (1997) 190 CLR 1. 69 Nolan, above n 26. 70 Belinda Smith, ‘Free speech and other human rights: The clause that almost sank the proposed Human Rights Bill’, The Conversation, 1 February 2013 .

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offensive behaviour based on racial hatred (s 18C) was instigated, with a view to abolishing or watering down these provisions in the name of protecting freedom of speech. That project foundered due to the level of community opposition to such a change.71 Amendments to the basic definitions of discrimination have been adopted in some of the laws over the years. At state and territory level, the ‘model’ of discrimination used for the laws has changed over time, so that more recently adopted laws, and those whose definitions have been updated, have quite different formulations to the earlier laws (discussed further in Chapter 5). This is most notable in the formulations of direct and indirect discrimination, and the provisions relating to whether special measures to achieve equality are seen as an exception to discrimination or simply as not being discrimination (reflecting a formal or substantive primary conception of discrimination in the laws).

2.8 Conclusion [48]

Anti-discrimination laws in Australia provide levels of protection that are very important symbolically and in everyday understandings, in particular through bringing an end to processes of exclusion of people in protected groups and requiring accommodation for some of those who need it. However, there are still many challenges to be addressed that will be discussed in the chapters that follow. In the next chapter, we introduce the basic framework and structure of the laws.

71 Dr Tim Soutphommasane, Race Discrimination Commissioner, ‘Legislative Innovation and the Racial Discrimination Act’ (Plenary address to the National Institute of Administrative Law Conference, 24 July 2014).

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PART 1 INTRODUCTION

3.1 Introduction [1]

[2]

[3]

[4]

As was outlined in Chapter 2, over the past century inequality has emerged as a public policy issue. Initially demands were made for equality in law. Many of these demands were for the removal of blatant exclusions in laws themselves, such as the legal exclusion of women from voting or standing for parliament. Changing these laws to remove exclusions and disadvantage was a fundamental step in promoting equality. In addition to demands for equality in the law, demands were then made for broader legal rights to be treated equally in other spheres including employment, education, housing and public transport. Anti-discrimination laws were designed for this purpose – to challenge exclusion based on prejudice, assumptions and tradition. Protections against discrimination were developed first in respect of racial inequality, then gender inequality. Later, the legal model was replicated to address discrimination based on other identity attributes as other groups that shared an attribute of disadvantage, such as people with disability or minority sexual orientation (called ‘protected groups’ in this book) emerged and saw this approach as a strategy for addressing similar types of problems. Antidiscrimination laws came to be understood as providing protection against exclusion based on specified attributes. The development of anti-discrimination laws in Australia was traced in Chapter 2. In this chapter we elaborate on the framework of these laws and compare it with other legal approaches used in Australia to address inequality – positive action or positive duty laws, separate and additional protections against discrimination provided in workplace laws for employees, and human rights charters. After briefly outlining the different frameworks for each of these laws in this chapter, their operation is explained in more detail in later chapters – anti-discrimination laws in Part 2, and the three other approaches in Part 3.

3.2 Choices in designing legislation against discrimination [5]

The common law did not develop general protections against discrimination, so the laws we have are legislative initiatives. Like all legislation these laws represent public policy choices and political compromises. Ideas for legislation emerge not out of a vacuum, but out of particular historical and political exigencies. In designing legislative responses to problems, all options can be explored; but often, examples of approaches taken in other jurisdictions are sought out as models for adaptation. As noted in Chapter 2, this is part of the story of how Australian anti-discrimination laws evolved – by looking to the UK, which in turn had borrowed from legal developments in the US. Uncertainty about constitutional limits was also a factor in the design of federal laws.1 1 Because of uncertainty about whether the ‘external affairs’ power could support federal antidiscrimination laws, the first Act, the Racial Discrimination Act 1975 (Cth) (RDA), was drafted to match very closely the wording of the underlying international convention (see 2.6.1: Commonwealth power to adopt anti-discrimination laws). After its validity was upheld in Koowarta v Bjelke-Petersen (1982) 153 CLR 168, the federal government had more freedom in drafting subsequent anti-discrimination laws.

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Law, as a regulatory tool,2 can be wielded in a range of ways. This means choices need to be made in designing the legal framework. For regulation to be effective, the designer needs to have a good understanding of the nature of the problem, including how it manifests, why it happens and whether the problem is amenable to change through rules, education, incentives or deterrents. Inequality manifests in many different ways, and our understanding of it evolves over time, so it is a complex problem to grasp and then to regulate, and regulation that might be effective at one time is likely to need review and modification as society changes and adapts. Criticism of anti-discrimination laws covers each of the following aspects: how the law is ineffective because it fails to appreciate or adapt to the complexity of the problem;3 how the regulatory mechanisms are not appropriate for the particular problem;4 and how the laws have failed to evolve as inequality manifests differently over time.5 Much discussion of the law is focused on the rules that require or restrict particular conduct, but to understand fully how a problem is regulated by law we need to appreciate other elements of the regulatory framework: who or what body has power to bring a legal action about possible wrongdoing, what is the process for resolving this dispute and what consequences, sanctions or remedies flow from any findings of wrongdoing.6 These other elements of the regulatory framework can fundamentally shape how effective the law is at addressing the problem. They can also reflect and reinforce an understanding of the nature of the problem and the importance of addressing it.7 In what follows, we briefly outline some of these broader legal design options. In developing a legal framework, one might start by asking: should a law be directive, imposing obligations on actors to do something positive to promote equality, or prohibitive, focusing instead on eliminating bad conduct such as discrimination? This distinction between positive duties and negative restraints is discussed further in Chapter 8 (8.3: When is positive action required?, [45]–[49]). Where laws make particular conduct unlawful, it is necessary to choose whether the conduct should be made a criminal offence or a civil wrong. Criminal offences, which are prosecuted by a government agency, can lead to criminal sanctions, such as fines paid to

[6]

[7]

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[9]

2 Arie Freiberg, The Tools of Regulation (Federation Press, 2010); Christine Parker and John Braithwaite, ‘Regulation’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (Oxford University Press, 2003) 119. 3 For example, Andrew Thackrah, ‘From Neutral to Drive: Australian Anti-Discrimination Law and Identity’ (2008) 33(1) Alternative Law Journal 31; Belinda Smith and Dominique Allen, ‘Whose Fault Is It?: Asking the right question to address discrimination’ (2012) 37(1) Alternative Law Journal 31. 4 For example, Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990); Belinda Smith, ‘Not the Baby and the Bathwater: Regulatory Reform for Equality Laws to Address Work–Family Conflict’ (2006) 28(4) Sydney Law Review 689. 5 For example, Jonathon Hunyor, ‘Skin-deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25 Sydney Law Review 537; Rosemary Hunter, ‘The mirage of justice: Women and the shrinking state’ (2002) 16 Australian Feminist Law Journal 53. 6 Belinda Smith, ‘A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press, 2006) 7 Thornton, above n 4.

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the state or incarceration. Criminal law represents the heaviest use of state force against an individual, and inherently involves a vast disparity of resources between the two sides; therefore, it carries special protections for the accused. The state agency bears the burden of proving that the conduct was unlawful, and must do so to the highest standard of proof – ‘beyond reasonable doubt’. In contrast, creating a civil wrong means providing a right to individuals who are affected by the conduct to bring legal action against wrongdoers. Torts, such as negligence and trespass, are the quintessential civil wrongs that involve rules that have developed and evolved over time, through the common law, to govern rights and obligations between people. Legislation can establish similar rights to seek a remedy against another person, such as compensation for harm or loss, reinstatement or an injunction. For civil wrongs, the conflict does not involve the state as a player (other than through its provision of courts for resolving disputes and enforcing court orders) but rather is structured as a contest between individuals. A civil law action cannot result in imprisonment, and can provide only a remedy against the other party, such as compensation by paying money or doing some act. As a result, the high standard of proof applicable in criminal proceedings is not appropriate, as parties are seen to be formally on the same or a similar footing. Even where the government is involved as a party to a civil action, there is no legal recognition of the vast differences of resources that governments or large organisations may have available to them to pursue litigation. There are specific mechanisms available in civil litigation for eliciting evidence, such as discovery and shifting the burden of proof, and the lower standard of proof – the ‘balance of probabilities’ – is applied. An important design issue in relation to civil wrongs is the question of who is to enforce the law (and with what resources). A regulatory agency is often created to take a share of the enforcement burden in areas where what is at stake is seen as very important, such as work health and safety laws, or where it is at times not worth the effort of the individual affected to enforce the law and hence it is otherwise likely to go unenforced, such as consumer protection laws, or where enforcement is likely to require resources beyond the capacity of the people affected to pay for it. The distinction between criminal and civil regimes is not always entirely clear. While some sanctions, like incarceration, are only available in criminal proceedings, other sanctions that are clearly punitive, like fines, might be available also in civil regimes. In this way, the civil regime can operate not merely to redress victims but also to deter bad behaviour through punishment. Similarly, a regulatory framework that establishes and empowers an agency to investigate and ‘prosecute’ parties for breach looks less analogous to a torts framework governing rights and obligations between individual citizens. Once the state has been given a role to bring enforcement proceedings, this changes the pressure the law brings to bear on regulated actors and suggests that compliance is not merely a private matter. These issues of sanctions and enforcement need to be factored into designing regulatory frameworks, and are also relevant in critically analysing how existing frameworks operate. Having outlined some of the regulatory design options, we now turn to the choices that have been made in Australia, by outlining four different regulatory initiatives used to address discrimination and promote equality. These are anti-discrimination laws, the general

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protections provisions of the Fair Work Act 2009 (Cth) (FWA), positive duty laws such as the Workplace Gender Equality Act 2012 (Cth) (WGE Act), and human rights charters.

3.3 Anti-discrimination laws In this section we identify the major anti-discrimination laws and outline their key features. Australia has 13 relevant pieces of legislation: each state or territory has an equal opportunity or anti-discrimination Act and there are five federal Acts (see Appendix). The state and territory Acts each cover a range of attributes. Four federal Acts deal either with single attributes, like age in the Age Discrimination Act 2004 (Cth) (ADA) and disability in the Disability Discrimination Act 1992 (DDA), or a group of related attributes, like sex and pregnancy in the Sex Discrimination Act 1964 (SDA) and colour and ethnicity in the Racial Discrimination Act 1975 (RDA). The fifth federal Act, the AHRC Act is a federal Act that defines the functions of the AHRC and the processes for enforcement of the four substantive laws. While many of the provisions of these laws are similar or identical, there are also variations of detail between them that make generalisations difficult and dangerous. Complexity is created by the differences in definitions of discrimination, attributes covered, scope of protection and exceptions between the laws.8 This chapter focuses on introducing the main features of the laws so that the reader has a structure with which to understand the issues discussed in Part 2 of the book. Points of detail are discussed in more depth in the relevant chapters of Parts 2 and 3. The essence of anti-discrimination laws is a prohibition on discrimination, as well as on some associated conduct. Discrimination is prohibited in respect of particular attributes, like race and sex, in specified areas, such as employment and education, subject to defined exceptions. The prohibitions are primarily established as civil wrongs rather than criminal offences, which means that it is up to individual victims to bring a legal action to obtain a remedy authorised by the law, most commonly financial compensation. Below we first outline the nature of the prohibition against discrimination, identifying key elements of a breach that individuals must prove to obtain a remedy, and then briefly note the enforcement process and remedies available. These points are explained in more detail in Part 2.

[14]

[15]

3.3.1 Prohibiting discrimination Discrimination is not prohibited at large or in general. Under anti-discrimination laws, only some kinds of discrimination are prohibited and only in some situations. Generally the legislation operates to define what is unlawful using four elements: (1) protected attributes; (2) types of prohibited conduct including discrimination; (3) prohibitions in particular areas of public life; and (4) exceptions. So, for example, under the SDA, sex discrimination of two kinds (direct and indirect) is prohibited in areas that include employment and education, subject to exceptions including genuine occupational qualifications.

[16]

8 This complexity was the basis for a drive to harmonise and consolidate the laws from 2011 to 2013, which was unsuccessful. See 11.3: Alternative directions.

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3.3.1.1 Protected attributes [17]

[18]

[19]

The first feature is the attribute: the laws prohibit discrimination because of a person’s particular attribute, such as race, sex, sexuality, parental status or disability. The attribute is relevant in two ways in a discrimination case. First, the existence of a protected attribute must be established, and second, the connection between the attribute and the discrimination has to be proved. This focus on the connection with a protected attribute is the key thing that distinguishes discrimination from other behaviour that might be wrong because it is simply unfair or unjust, such as bullying. There needs to be some disadvantage or exclusion, but it will only be unlawful if it relates to a protected attribute of the victim, such as their race. So, for example, being dismissed because the employer thinks you stole something might be unfair because there is no basis for it, but would not necessarily be discriminatory. On the other hand, if the reason your employer thinks you stole something is because of a belief he holds that people of your ethnic group/country of origin are prone to stealing, then the adverse treatment relates to a protected attribute and could constitute discrimination. It is not always easy to see whether conduct is because of an attribute. For example, if a female carpentry apprentice is found to be underperforming on a building site, this might be because of weaker technical skills or a poor work ethic. There is, however, also a risk that she is being judged more harshly than her male colleagues because she is very visible as the only woman on site and thus her errors are more noticeable. Alternatively, she might be assessed inappropriately by valuing some strength-based tasks with which she struggles, such as lifting, over many other tasks at which she excels, such as measuring, cutting, nailing, planning, communicating, and assessing safety. The existence of a protected attribute must be established. All Australian legislation that proscribes discrimination specifies the attributes that are covered (see Chapter 4 and Appendix), often in a list at the start of the Act. Some of these attributes are defined (e.g. disability, family responsibilities and gender identity), while others are not (e.g. sex, and ethnic origin) or are not defined in the legislation but are otherwise defined by law (e.g. Aboriginality). In each state and territory all attributes are covered in a single piece of anti-discrimination legislation. At the federal level, for the most part, each new attribute was covered in a new and separate Act, about a decade apart, starting with the RDA in 1975, then followed by the SDA in 1984, the DDA in 1992 and the ADA in 2004. Establishing a connection between the protected attribute and the discriminatory act can be challenging, in large part because it requires the person who is making the complaint to prove that the person alleged to have discriminated was influenced by the protected attribute. Although the nature of the connection that has to be shown is not entirely clear, all the circumstances of the case are relevant to assessing whether the protected attribute was a ‘true basis’ for the action; the subjective intention of the alleged discriminator will be relevant, but is not an essential requirement.9 Proving someone else’s reason for acting is not easy, as the evidence is usually controlled by the person alleged to have discriminated. This difficulty in proving that the protected attribute was the basis for conduct has been a major

9 See e.g. Purvis v NSW (2003) 217 CLR 92, [147]–[166] (McHugh and Kirby JJ), [234]–[236] (Gummow, Hayne and Heydon JJ). See further discussion at 5.2.1.2: By reason of an attribute.

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problem in discrimination law,10 and the proof requirement is a significant point of difference between anti-discrimination laws and similar rights that exist under the FWA (discussed further in Chapters 5, 7 and 9).

3.3.1.2 Types of discrimination Generally anti-discrimination laws recognise two forms of discrimination which are defined as unlawful: adverse treatment, known in Australian law as direct discrimination, and adverse effect, which is known as indirect discrimination. This two-part definition reflects different understandings of equality, including formal and substantive equality (introduced in Chapter 1). Details of the definitions vary significantly between laws of the different states and territories, and even between the four federal laws, as a result of different approaches to discrimination over time and the different progress of reform in different states and territories. This has resulted in complexity and inconsistency in the coverage of the laws. Direct discrimination covers treating someone detrimentally because of an attribute. It is the most common or popular understanding of discrimination whereby someone is not hired, for example, because they are black, Indian, gay or Muslim. This covers blanket or categorical exclusions, such as ‘women need not apply’, because this amounts to treating someone detrimentally because of their attribute of being female. It also extends to treatment based on stereotypes or assumptions about an attribute group. The courts have acknowledged that a person may not be fully aware of the factors that influence their actions, so that although the action itself must be deliberate, there is no need to show a conscious or subjective intention to rely on the protected attribute. Direct discrimination is traditionally framed as treating someone with a particular attribute unfavourably or less favourably than a similarly situated comparator. As noted above, it has to be shown that this different treatment is because of the attribute. Usually this is shown by undertaking a comparison between the alleged victim who has a protected attribute and someone who is in the same circumstances but does not possess the same attribute. So, a man who claims that he has been directly discriminated against because of his sex must show that he has been treated less favourably than someone of a different sex, such as a woman, who is in the same circumstances. He must then also prove that his sex was a reason for the less favourable treatment. Indirect discrimination is not about different treatment but the different impact of a condition, requirement or practice. Conditions, such as height requirements, literacy tests, or even hours of work, do not explicitly single out any protected categories so look neutral on their face. But such conditions can operate to exclude attribute groups disproportionately even when applied consistently. For example, since men are on average taller than women, a job requirement to be at least a particular height can disproportionately exclude women. Scheduling work meetings at early (or late) hours of the day can disadvantage workers with

[20]

[21]

[22]

[23]

10 Hunyor, above n 5; Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26(2) Melbourne University Law Review 325; Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31(4) Sydney Law Review 579.

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caring responsibilities as a group, and applying an English literacy test could disproportionately exclude people for whom English is not their first language. The elements that need to be proved for indirect discrimination include establishing there was a condition, requirement or practice that the complainant was required to comply with or observe, that the practice disadvantaged or would disadvantage the complainant and other people with the complainant’s attribute, and that the requirement or practice was not reasonable. As with direct discrimination, the statutory formulae vary and are discussed in more detail in Chapter 5. Conditions that produce a disadvantaging effect on people with a particular attribute could be used as a covert means of avoiding the impact of the prohibition of direct discrimination, as was the case in the leading US case of Griggs v Duke Power Company.11 Under Australian anti-discrimination laws indirect discrimination covers this intentional (yet covert) action, but extends also to unintentional action. The prohibition of indirect discrimination could potentially reach all social practices that have a disparate effect on people with different attributes, and therefore has potential to move closer to a substantive form of equality. It also has potential to require changes in social practices that favour or disfavour particular groups, which is generally an important systemic goal in moving towards a more equal society. However, it is seen as too broadbrush and too socially disruptive to prohibit all practices that have a disparate effect. One limitation is provided by the availability of a justification defence, whereby if a condition or requirement that has a disparate effect is regarded as reasonable, it will not be against the law. This allows courts a general discretion to limit the scope of the prohibition of indirect discrimination and has been the subject of much legal argument. Most laws require the person complaining to prove that the requirement is not reasonable in the circumstances, but the federal SDA, DDA and ADA, and the ACT and Victorian Acts, have all shifted the onus of proof onto the person imposing the condition or requirement to show it is reasonable. They, after all, know why it was adopted or imposed. The existence of the general limitation or defence of reasonableness is one crucial way in which indirect discrimination is different to direct discrimination: if a condition or requirement is reasonable in the circumstances, it is not unlawful. Although other exceptions are applicable to direct discrimination, as noted below and explained in Chapter 6, the legislation does not provide for a general justificatory defence for direct discrimination. An example can illustrate this distinction: a business could set a requirement (such as starting work at 7 am) even if it disproportionately excludes members of a protected attribute group (such as workers with carer’s responsibilities), so long as the requirement is reasonable in all the circumstances (because the employee was needed to manage a factory of early shift workers). In contrast, excluding all workers with carer’s responsibilities categorically (possibly on the assumption that they would not be able to start at that time) would be unlawful because it amounts to direct discrimination against this protected group and a justification defence is not available. Anti-discrimination laws contain provisions that make some other forms of conduct unlawful as well. Generally they prohibit: harassment; inciting, assisting or encouraging 11 Griggs v Duke Power Co, 401 US 424 (1971). See further discussion at 2.3: The second strand – the American civil rights movement.

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discrimination; and victimisation, which involves taking adverse action against a person because they have made a complaint of a breach of the Act or assisted in a complaint (by being a witness, for example). In addition, there are prohibitions on associated activities such as discriminatory advertising, and seeking information about attributes to use for discriminating. Details vary greatly between different laws. Many laws also prohibit hate speech on various grounds including race, religion and sexuality.12 These laws are justified on the basis that any restriction of freedom of expression that results is necessary to protect the equality rights of people in these groups, who would otherwise be subjected to public and often vicious or pervasive denigration that can create an environment that denies their equal enjoyment of human rights and can lead to physical violence or intimidation.

3.3.1.3 When is discrimination prohibited? Having defined discrimination as adverse treatment or adverse impact in respect of specific attributes, the legislation then prohibits discrimination only in specific areas of life. Discrimination is prohibited, for instance, in the fields of work, education, and providing goods, services, accommodation and access to premises. Even within these fields, the duty is further limited by being placed only on particular duty bearers. For instance, in the field of work, the prohibition is generally on ‘employers’ not to discriminate, and in education it is on the ‘education providers’. These duty bearers can be personally liable, or can be held vicariously liable for the actions of their employees and agents. Definitions of the areas covered are highly variable across different laws so that, for example, the law may cover clubs and associations in one jurisdiction while these would be exempted in another.13 In most anti-discrimination laws, the legal prohibition of discrimination is to be found in the provision defining the actions covered by the law.14 Uniquely, the RDA contains different and much broader prohibitions,15 as it is based on the wide provisions of the CERD that prohibit racial discrimination in relation to the equal enjoyment of any human right. Human rights as defined in the CERD cover a broad area, so the prohibition is much wider, although it has not been used as often in Australian litigation.

[28]

[29]

3.3.1.4 Exceptions to the prohibitions Finally, as noted above, various exceptions are provided to the prohibitions of discrimination. These exist for a range of reasons and allow for fine-tuning of the laws to take account of social mores, to allow for positive action to promote substantive equality, and to allow exceptions for practices that require time to change or that are protected from change for a range of reasons. There is a multitude of overlapping and inconsistent exceptions that can make anti-discrimination laws look like Swiss cheese because so many permissible situations are carved out. Some of these exceptions can be highly controversial, for example

[30]

12 E.g. Anti-Discrimination Act 1977 (NSW) (ADANSW); RDA; Racial and Religious Tolerance Act 2001 (Vic) (RRTAV). 13 E.g. SDA; cf EOAV. 14 E.g. SDA s 14 prohibits discrimination by employers in the area of work. 15 See 6.7: Distinctive features of the Racial Discrimination Act.

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the continuance of men’s private clubs that are seen as vital to professional advancement because of the networks they offer, but from which women are excluded. There are various categories of exceptions. Firstly, as noted, indirect discrimination has its own exception of reasonableness, so conditions or requirements are not unlawful if they are reasonable in all the circumstances. A second category, which includes work-related exceptions such as genuine occupational qualification16 and inability to perform the inherent requirements of the job,17 involves pragmatic exceptions that allow employers to reject applicants who cannot perform or fulfil essential parts of the job. A bus driver, for example needs to be able to see, a server of alcohol needs to be over 18 years of age for licensing reasons, and an emergency paramedic needs to be able to make decisions quickly under pressure. Other categories include exceptions that operate in a blanket way, excepting a whole category of bodies or workers. Examples include ‘voluntary bodies’, employment and accommodation in private households and ‘private educational authorities’.18 Some exceptions, such as those for religious bodies, apply to only some activities of the organisations covered.19 Compliance with another law also provides an exception under anti-discrimination legislation,20 which has the effect of locating anti-discrimination law at the bottom of the legislative hierarchy in Australia. Most Acts also provide a mechanism for granting ‘temporary exemptions’21 that can operate generally for up to five years and can be renewed. The category of exceptions for positive action allows actions favouring members of particular attribute groups if the measure is designed to promote substantive equality.22 All Acts permit such action, generally called ‘special measures’. Without such exceptions, initiatives designed to help people from disadvantaged groups would be at risk of being found to fall within the prohibitions of discrimination. For example, policies that allow for consideration to be given to Indigenous status for university entry, to ameliorate underrepresentation in tertiary education, might otherwise be regarded as direct discrimination against others.

3.3.2 Enforcement and remedies [33]

Apart from one early initiative,23 Australian discrimination laws at federal, state and territory levels have established discrimination as a civil wrong rather than a criminal offence.24 This means discrimination is like a statutory tort: the legislation prohibits discrimination and provides for individual rights of action for persons who suffer harm as a result. Only those E.g. SDA s 30(2). E.g. DDA s 21A; ADA s 18(4). See e.g. ADA NSW ss 25(3) (sex), 40(3) (marital or domestic status) and 49D (disability). See e.g. SDA ss 37, 38. See e.g. ADA s 39 (direct compliance with laws, orders, etc); SDA s 40; ADA NSW s 54. E.g. SDA s 44. E.g. SDA s 7D. Prohibition of Discrimination Act 1966 (SA), discussed at 2.5: Development of legislation in Australia, [18]. 24 Each Act creates some offences, such as advertising and, in some cases, victimisation. E.g. DDA ss 44 and 42.

16 17 18 19 20 21 22 23

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who suffer directly as a result of the conduct can bring an action to enforce the legislation; in Australia, unlike other countries,25 enforcement is left entirely as the responsibility of the person complaining, as there is no agency, ombudsman or prosecutor who can bring actions on behalf of specific victims or society as a whole to protect the public interest in non-discrimination.26 The process for resolving claims of discrimination, similar across all Australian jurisdictions, involves conciliation as a compulsory step before the matter can be heard in a court or tribunal for determination, except in Victoria where conciliation is optional and complainants can go directly to the tribunal to make their complaint. To commence the process a complainant is required to lodge a written complaint with the regulatory agency, like the AHRC, which carries out a conciliation; when the Victorian tribunal receives complaints directly, it will order mediation if suitable. Conciliation has been treated as very important in the anti-discrimination jurisdiction, both because it is seen as an economical way of resolving disputes and because it is seen to produce reconciliation and recognition of rights, rather than adversarial contests. Only if conciliation is unsuccessful in resolving the matter (or the claim is terminated for another reason) may the complainant proceed to a court or tribunal for a hearing and determination. Commencing the complaint process requires no particular forms or fees for conciliation, making it reasonably accessible. If the matter does not settle at conciliation, however, a complainant wishing to pursue it further may face significant barriers. The first barrier is the cost of legal representation. A complainant is permitted to present their own case, and may be able to do so in a state or territory tribunal hearing because these are slightly less formal than federal courts and some assistance can be provided from the tribunal members hearing the matter. However, evidence shows clearly that legal representation does help victims present their case,27 especially in the federal jurisdiction. In addition to the cost of obtaining legal advice and representation, at the federal level another potential barrier for complainants is the default costs rule: costs follow the event. This means that the complainant risks having to pay the legal costs of the respondent as well as their own if they are not successful in proving their claim (but conversely will have some of their costs paid if they succeed). State and territory tribunals generally operate on a no-cost basis, which means that each party is required to bear its own costs,28 other than in special circumstances.29

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25 Jean R Sternlight, ‘In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis’ (2004) 78(5) Tulane Law Review 1401, 1413. 26 New powers to undertake investigations and public inquiries, and to issue compliance notices and accept enforceable undertakings were conferred on the Victorian Equal Opportunity and Human Rights Commission in 2010 under EOAV pt 9: see Dominique Allen, ‘Victoria Paves the Way to Eliminating Discrimination’ (2010) 23(4) Australian Journal of Labour Law 318. However, in 2011 before they commenced, these powers were repealed and replaced by power only to conduct investigations. 27 There is evidence that represented complainants are more successful: Beth Gaze and Rosemary Hunter, ‘Access to Justice for Discrimination Complainants: Courts and Legal Representation’ (2010) 32 University of New South Wales Law Journal 699, 714–15. 28 See e.g. Civil and Administrative Tribunal Act 2013 (NSW) s 60. 29 For a list of factors to be considered, see e.g. Civil and Administrative Tribunal Act 2013 (NSW) s 60(3).

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The remedies that can be ordered are generally compensatory, further reflecting the characterisation of discrimination as a civil wrong that harms individual victims.30 The remedies can be financial, in the form of damages, or injunctive, including reinstatement, but are provided as a way to compensate for harm rather than punish the wrongdoer or prevent further harm to others. Aggravated damages can be awarded, but punitive damages and penalties are not generally available.31 Because of the costs of pursuing claims through adjudication, most cases settle or are withdrawn or abandoned at the conciliation stage. Conciliated settlements are private and generally settled with a deed of release containing a confidentiality clause, which means that the outcomes of resolution of the vast majority of discrimination complaints are not available to the public, or for the education of other potential complainants and duty bearers. This can impede the development of the law and public understanding of the law, as the strongest cases are very likely to settle and will not be able to set precedents for interpretations of the laws. We can see from this summary that anti-discrimination law is employed to change behaviour through the two related roles it plays in relation to discrimination: redress and deterrence. First, it operates to ensure that people who suffer discrimination are given relief by prohibiting the practice and enabling them to seek compensation for its effects on them. Second, it creates incentives to deter discriminatory practices in future. As outlined above, in the first role, law has created a statutory mechanism of liability whereby a victim of discrimination can get relief against a perpetrator when they have proved that discrimination has occurred. Traditionally this has been the main focus of anti-discrimination law. Although it is an essential part of the law, it must be acknowledged that this mechanism only puts the victim of discrimination into the same position that they would have been in had there not been any discrimination, so the stress and effort demanded of them to enforce the law is not directly compensated. The limitations of this form of redress make it more important to improve the law’s important second regulatory role of deterring discrimination in advance. In summary, anti-discrimination laws are a patchwork of federal and state tort-like systems allowing for individual claims against discriminators for personal compensation. While the prohibition has some normative power in establishing discrimination as a wrong, the regulatory framework applies only soft pressure for change and lacks mechanisms to promote structural and systemic change. A limited prohibition is imposed, but only victims are given power to bring actions to challenge a breach, and they face often-insurmountable hurdles in litigating claims. The system of anti-discrimination laws is complex, in part because of the detailed and convoluted definitions and in part because of the multitude of inconsistent rules and terms. These laws, however, do have some merit. Firstly, unlike workplace laws, anti-discrimination laws cover many areas of life. They operate beyond employment to include all workers, and beyond work to include other important fields of life, including education and the provision of goods and services. Further, although it can look like a complicated patchwork of 30 AHRC Act s 46PO(4); Hall v Shieban (1989) 20 FCR 217. 31 See e.g. Beth Gaze, ‘Damages for Discrimination: Compensating for denial of a human right’ (2013) 116 Precedent 20.

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laws, the absence of federal domination in this field has allowed for some state and territory experimentation and leadership. The state systems are generally easier for users to navigate because of: the single legislation, which allows for more consistency in definitions and rules; the availability of hearings by tribunals that are less formal and rigid than federal courts; and a no-costs jurisdiction allowing parties to bear their own costs. The agencies established by these laws have also played an important role in educating employers, education providers and the wider public about the nature and detrimental impact of discrimination and other breaches of human rights and have thereby prompted some normative change over the decades.

3.4 Fair Work Act 2009 (Cth) A separate but overlapping regime of discrimination regulation applies to employment under the FWA, discussed in more detail in Chapter 9. Introduced in 2009, Part 3–1 of the Fair Work Act, General Protections prohibits adverse action in employment based on a number of attributes, including several similar to those covered by anti-discrimination laws.32 The protections extend more broadly to adverse action based on the exercise of a ‘workplace right’, such as a right to parental leave.33 The types of ‘adverse action’ that must not be taken for a prohibited reason include (a) dismissing an employee; (b) injuring an employee in their employment; (c) altering the position of an employee to their prejudice; and (d) discriminating between an employee and other employees.34 Like anti-discrimination laws, the FWA imposes a prohibition on adverse action and provides those who are harmed with a right of action, but the two regulatory regimes differ in key ways. Firstly, in contrast to anti-discrimination laws the coverage of the FWA is narrow, applying only to the field of work and, more specifically, only to employees and potential employees. A second key difference is in the rule prohibiting adverse action and its proof. The term ‘discrimination’ is used in the heading of FWA s 351, but is not used elsewhere in the body of the section and, more importantly, is not defined in the Act.35 Most of the attributes are also undefined. This has left considerable scope for interpretation by users of the legislation, the Fair Work Commission and the courts.36 While cases are gradually providing guidance,37 numerous questions are still to be resolved about whether the prohibition covers all kinds

[43]

[44]

[45]

32 The attributes are: ‘race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ (s 351(1)). 33 FWA ss 340–342. 34 FWA s 342(1), item 1. 35 Rather cryptically, the term is used in s 342, as discussed in Chapter 9. 36 Anna Chapman, ‘Judicial Method and the Interpretation of Industrial Discrimination’ (2015) 28 Australian Journal of Labour Law 1–32; Carol Andrades, ‘Intersections between “General Protections” under the Fair Work Act 2009 (Cth) and Anti-Discrimination Law: Questions, Quirks and Quandaries’ (Working Paper No 47, Centre for Employment & Labour Relations Law, University of Melbourne, December 2009); Belinda Smith, ‘Fair and Equal in the World of Work: Two significant Federal developments in discrimination law’ (2010) 23(3) Australian Journal of Labour Law 199. 37 E.g. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184.

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of discrimination, including direct and indirect, as well as what type of mental element is required for a breach and what evidence could be used to prove or disprove this. These questions and others are explored in Chapter 9. Importantly, the FWA contains a presumption that shifts the burden of proof with respect to the basis for adverse action onto the employer once the employee has proven certain things. This mechanism has existed in the federal labour law for over a century, and was extended to unlawful (discriminatory) termination provisions and then extended to the discrimination sections when they were inserted in 2009. For s 351 it means the complainant must prove that they have a protected attribute or right, and that adverse action has been taken (or threatened) against them in one of the ways listed in s 342, but after that the onus shifts to the employer to establish that it was not for one of the prohibited reasons, such as sex, race, religion or sexual preference. This sort of shifting burden of proof is not unusual in anti-discrimination legislation in jurisdictions outside Australia, and Australian antidiscrimination laws have been criticised for the absence of such a provision.38 The process for enforcing claims under the FWA is not so different to that under antidiscrimination law. Claims are made first to an agency, the Fair Work Commission, which generally conducts a conference to conciliate the dispute.39 Only if conciliation is unsuccessful may a complainant pursue the matter to a hearing and determination, by a federal court.40 However, even where litigation is brought in the federal courts, there is a presumption that each party will bear their own costs.41 One of the most significant ways in which the FWA regime differs from anti-discrimination legislation is in respect of the enforcement machinery and powers. Enforcing the prohibition against discrimination in s 351 is not left only to those individual employees or job applicants who can establish harm; the Fair Work Ombudsman (FWO) has inspection and enforcement powers.42 This means that the FWO is able to inquire into possible breaches of the Act, including conduct that might constitute adverse action under s 351, and can even pursue action in a federal court to have the matter determined. Further, the remedies available in the federal court extend beyond merely reinstatement or financial compensation43 to include penalty orders,44 which are punitive in nature. The existence and role of an inspectorate with such powers is not unusual in labour law generally, but applying this machinery to discrimination claims represents a fundamental shift in characterisation of discrimination as a wrong that warrants public prosecution, not merely civil claims by victims.45 In conclusion, there are several reasons why the adverse action provisions are an attractive alternative to using anti-discrimination laws in cases of discrimination at work,

38 Hunyor, above n 5; Allen, above n 10. 39 Whether this is required depends in part on the type of claim: for matters that do not involve a dismissal, the FWC will only hold a conference if both parties agree: FWA s 374. 40 FWA s 371(1). Since 2014, the parties to a general protections dismissal claim have also had the option of seeking consent arbitration by the Fair Work Commission: FWA s 369. 41 FWA s 570. 42 FWA s 539 (table item 11). 43 FWA s 545. 44 FWA ss 546, 539. 45 Smith, above n 36.

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including the shifting onus of proof, and access to the courts without automatic award of costs against the loser. At this stage, the scope of the provisions relating to discrimination remains unclear, with conflicting suggestions that the provisions extend to indirect discrimination, or that they are limited to direct discrimination only.46 Like the anti-discrimination laws, the FWA is concerned primarily with establishing liability for unfair discrimination, rather than with requiring positive action to be taken to move towards equality.

3.5 Positive duties As noted above, in addition to laws that prohibit discrimination, Australia has also used law to impose positive duties to promote equality, although these have been very limited in a number of ways. The most prominent example of such laws is the WGE Act, which is limited to the field of work and only deals with gender inequality. These positive duty laws are different from anti-discrimination laws that rely on individual complaints for enforcement of negative duties not to discriminate. The WGE Act, for instance, imposes a positive duty on relevant employers that requires them to be proactive in auditing their workplace, consulting and publicly reporting on gender equality outcomes in that workplace, such as any gender pay gap and the representation of genders across management. An agency, such as the Workplace Gender Equality Agency, is then empowered to promote and ensure compliance, as discussed in Chapter 8. There are no individual rights or remedies, and the focus is on removing barriers rather than redressing harm.

[50]

[51]

3.6 Human rights legislation In Chapter 1 we explained that equality is recognised as a primary human right in the fundamental UN documents such as the UN Charter and Universal Declaration of Human Rights, the major human rights covenants and the more specific anti-discrimination conventions. The International Covenant on Civil and Political Rights (ICCPR) recognises both a right to equal enjoyment of all other human rights without discrimination (art 2) and a stand-alone right to equality (art 26). In Australia there is little legislation that protects human rights specifically by name. The AHRC Act does provide some limited protection for human rights, but only in cases where complaints are made about actions of the Commonwealth government or actions within a territory, or actions taken under a Commonwealth or territory law.47 Where a complaint is made of breach of a human right, it can be investigated and conciliated by the AHRC, but if a settlement is not reached at conciliation, no further steps can be taken – the matter cannot be litigated in any court or tribunal. This system of human rights protection under the AHRC Act is very limited. Legislative protection of human rights has also been adopted by two Australian jurisdictions, the ACT and Victoria, as discussed below. Many human rights are nevertheless protected by other laws that do not explicitly use the language or approach of human rights. For example, some protection is given to Indigenous land rights by various state and territory land rights laws, and by the Native Title Act

[52]

[53]

46 Chapman, above n 36. 47 AHRC Act ss 11(1)(f), (g)–(o), 19A–29, and definitions of ‘act’, ‘practice’ and ‘human rights’ in s 3(1).

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1993 (Cth), but this protection is not explicitly based on or related to international human rights law and may not meet its standards. Other examples of rights that are protected by law but without reference to human rights include employment rights such as the right to freedom of association and protection against child labour under the FWA, and the right to trial by jury under s 80 of the Constitution. Further protection is given by the common law principles that apply to statutory interpretation, such as the principle of legality according to which courts will only interpret legislation to override fundamental common law rights such as freedom of movement, assembly and association where unambiguously clear words are used.48 Australian anti-discrimination laws in general do not constrain the powers of parliament to pass legislation that discriminates or allows discrimination. The only provision that affects the validity of discriminatory laws is s 10 of the RDA, which can have an effect similar to that of a constitutional equal protection provision in rendering discriminatory state laws invalid.49 However, s 10 is not necessarily effective against discriminatory federal laws, either because the court might find that the later law was inconsistent and therefore overrides it, or because the federal parliament might have intended to override s 10, as discussed in Chapters 8 and 10.50 In 2009, a committee was set up by the federal government to conduct a nationwide consultation on the question of how to protect human rights in Australia. The Committee travelled around the country and accepted submissions from a very wide range of people. Its report51 canvassed the arguments for and against a federal Human Rights Act, and recommended that one be adopted. This recommendation was not, however, accepted by the government, which instead adopted other elements of human rights protection. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) was subsequently enacted, and provides for scrutiny of all Commonwealth bills for compliance with human rights. Two Australian jurisdictions have addressed the absence of human rights protection by adopting legislative bills of rights similar to the model of New Zealand and the UK,52 but with significant differences in the detail. The Human Rights Act 2004 (ACT) (HRA) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) both provide protection for a list of rights including equality, require legislation to be interpreted to protect those rights to the extent possible, and provide for parliamentary scrutiny of bills for compliance with human rights. They also contain provisions for balancing equality rights against other human rights where they conflict. However, their enforcement and relevance to the operation of anti-discrimination laws is limited.

48 Coco v The Queen (1994) 179 CLR 427. 49 See e.g. Mabo v Queensland (No 1) (1988) 166 CLR 186; [1988] HCA 69; McBain v Victoria [2000] FCA 1009; and discussion at 2.6.2.3: Commonwealth anti-discrimination laws and other state laws. 50 Examples of the role of s 10 in the context of federal legislation are discussed at 8.2.3: Distinctive approach of the RDA (in the context of special measures) and 10.3.4: Australia’s lack of constitutional protection against discrimination. 51 Attorney-General’s Department, National Human Rights Consultation Report (Barton, 2009) . 52 New Zealand Bill of Rights Act 1990 (NZ) and Human Rights Act 1998 (UK).

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The provisions of the HRA and the Charter protecting equality are in almost identical format.53 They protect the right to ‘recognition as a person before the law’; the right to ‘enjoy … human rights without discrimination’; and the rights to equality before the law, the ‘equal protection of the law without discrimination’ and ‘equal and effective protection against discrimination’. The Charter adds a provision that special measures to assist or advance people who suffer discrimination are not discriminatory.54 The HRA does not define the terms ‘equality’ and ‘discrimination’, but the Charter defines discrimination in terms of discrimination within the Equal Opportunity Act 2010 (Vic) (EOAV) (s 3(1)). Both laws contain a similar important provision about when the rights protected can be limited. It provides that the rights protected can be subjected only to such ‘reasonable limits as can be demonstrably justified in a free and democratic society …’,55 and a set of five listed factors must be considered in relation to any such limit. The courts have held that this affects the way in which discretionary exemption powers can be exercised, such as the power to grant a temporary exemption that limits the right to non-discrimination under the EOAV.56 Access to remedies is limited under the Charter and the HRA: neither confers a right to damages for breaches of human rights. The HRA allows a claim to be brought for breach by a public authority, but the Charter creates no stand-alone right to a legal action for breach of a human right, merely allowing a Charter breach to be argued in proceedings where another claim exists.57 These two bills of rights are discussed further in Chapter 10. The extent to which the human rights laws can improve protection for equality rights has not yet been fully tested, as there has been little litigation involving the equality rights. For now, the major focus of legal protection for equality and against discrimination remains on anti-discrimination laws.

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3.7 Conclusion In this chapter we have mapped out the regulatory framework of the four different types of laws established to address discrimination in Australia. These laws – anti-discrimination legislation, protections in general labour laws, positive duty Acts, and human rights charters – reflect different regulatory choices about ways to address the problem. In Australia we have primarily used individual rights-based models, seeking to change behaviour by prohibiting discriminatory conduct and enabling individual victims to take action against it. Such rights are valuable at both a practical and normative level for bringing about change, but are under-enforced because of the difficulty for individuals of enforcement, and suffer severe limitations in addressing systemic barriers and deep-seated norms. Other more proactive and systemic approaches outlined – such as positive duties and human rights charters – are being used, but in a weak form and only in limited parts of

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53 HRA s 8, Charter s 8. 54 Charter s 8(4). 55 HRA s 28; Charter s 7. These provisions are based on the limitations clause in art 1 of the Canadian Charter of Rights and Freedoms (1982). 56 Lifestyle Communities Ltd (No 3) [2009] VCAT 1869; BAE Systems Australia Limited [2012] VCAT 349. 57 Charter s 39.

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Australia. While other countries have clearly and comprehensively imposed limitations that address discrimination in legislative or executive action, Australia continues to show a great ambivalence toward any such limitations in terms of bills or charters of rights. State and territory experimentation may lead to change on this front. Complex social problems naturally will require a range of regulatory responses; however, these need to be complementary and tailored to the specific problem at hand. Australian laws have multiplied and expanded, but have not necessarily developed as needed to address the problem.

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THE ATTRIBUTES

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4.1 Introduction [1]

[2]

[3]

The protected attributes are the central element in anti-discrimination law. They identify the people who are protected by the laws.1 To establish a claim of discrimination, a person has to prove that they have, or are presumed to have, a protected attribute that is the basis of discriminatory treatment. Anti-discrimination law is one of the very few areas in which law must take account of attributes such as race, sex, disability and sexuality, in contrast to most areas of law which involve abstracting a dispute away from the personal characteristics of the parties. In anti-discrimination law, those characteristics are the core of the legal action, and this requires the courts to take a very different approach. In this chapter we consider the attributes that the laws cover, how they are conceptualised and defined, and what types of situations are the major issues for people with each attribute. We begin with a brief history of the initial coverage and subsequent expansion of attributes protected by anti-discrimination laws. Before considering the detail of each specific attribute, we look at a number of general issues that help to refine the idea and role of the attributes: the basis for the selection of the attributes that are protected, the nature and scope of those attributes, the significance of the terminology used to refer to them, and the limitations of anti-discrimination law’s focus on single attributes to the exclusion of multiple or intersectional discrimination involving two or more attributes. In this Part we focus primarily on anti-discrimination legislation. Other forms of protection against discrimination that are discussed in Chapters 8 (positive action), 9 (Fair Work Act 2009 (Cth) (FWA)) and 10 (human rights protection) are also based on the protection of particular attributes.

4.2 Structure and variation across legislation [4]

As a preliminary matter, the attributes are fundamental in the structure of anti-discrimination legislation. Australian anti-discrimination laws are structured and organised in two main ways. Some laws are organised by attribute, with a separate Act, or Part or Division of an Act, dealing with each attribute or group of related attributes, such as race, sex or disability. This approach, used in the four Commonwealth laws and in states such as NSW, SA, and WA, allows for differing provisions for each attribute, such as different definitions of prohibited conduct and areas covered; for example Racial Discrimination Act 1975 (Cth) (RDA), Sex Discrimination Act 1984 (Cth) (SDA) and Disability Discrimination Act 1992 (Cth) (DDA) each have quite different definitions of discrimination.2 In the other states and territories one common set of definitions is used for discrimination and other prohibited 1 In the EU this is known as the ‘personal scope’ of anti-discrimination laws. For the ‘personal scope’ of sex equality laws in the EU, see European Commission Directorate-General for Justice, The Personal Scope of the EU Sex Equality Directives (September 2012) . 2 These differences proved to be a challenge in the consolidation law reform exercise undertaken in 2011–13: see Chapter 11.

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activities, and for areas covered, and any necessary adjustments for specific attributes are provided through defences and exceptions. This approach is used in Victoria, Queensland, the ACT, Tasmania and the NT, and tends to produce legislation that is shorter, more consistent across attributes and less complex. Each law contains a list of protected attributes. This focus on specific attributes distinguishes anti-discrimination laws from laws, such as unfair dismissal and minimum wage protections, that address other forms of vulnerability and inequality. Anti-discrimination laws are directed to preventing discrimination on the specified attributes only. Like comparable laws in the UK, New Zealand and Canada, all Australian laws confine the prohibition of discrimination to a closed list of specified attributes.3 In contrast, the South African Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (PEPUDA)4 is one of the few laws to contain a general prohibition on unfair discrimination, allowing space for judicial expansion of the protected attributes. In Australia, expanding the list of protected attributes requires legislative amendment. For example, the federal jurisdiction began with a law against racial discrimination and then later adopted laws dealing with sex, disability and age discrimination in the following decades, with further subsequent expansions. At state and territory level, anti-discrimination laws began with a focus on race, or race and sex,5 with physical disability added soon after and later expanded to all forms of disability. States and territories have been more willing than the Commonwealth to add new attributes over time, such as age, family responsibilities and (in some jurisdictions) religious or political belief or activity. As a result their laws cover many more protected attributes, but there are significant variations between jurisdictions in Australia, as can be seen in the Appendix, which lists the attributes covered. Because there are important variations of detail between laws, the relevant legislation must always be checked. Laws dealing with race or sex discrimination tend to apply to a group of related attributes. For example, the attributes covered by the RDA are ‘race, colour, descent or national or ethnic origin’,6 the SDA applies to sex, pregnancy, potential pregnancy, breastfeeding, family responsibilities, marital or relationship status, intersex status, gender identity and sexual orientation. When we refer to ‘race-related’ or ‘sex-related’ attributes, we refer to all the attributes in these expanded groups. State and territory anti-discrimination laws have a similar format. In the context of employment, there are some limited additional protections under other federal laws. Firstly, the FWA contains protection against adverse action in employment taken because of race, colour, sex, sexual orientation, age, physical or mental disability,

[5]

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[8]

3 See e.g. Equality Act 2010 (UK) s 4, Human Rights Act 1993 (NZ) s 21, Canadian Human Rights Act 1985, RSC 1985, c H-6, s 3. In contrast, many constitutions adopt inclusive or open-ended lists of attributes – for example the Constitution of the Republic of South Africa Act 1996 (South Africa) s 9(3) and US Constitution, 14th Amendment, although some contain a closed list: Canada Act 1982 (UK) c 11, sch B pt I, s 15(1) (Canadian Charter of Rights and Freedoms). Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011) ch 3. 4 s 6. 5 Anti-Discrimination Act 1977 (NSW) (race, sex and marital status) (ADANSW); Equal Opportunity Act 1984 (Vic) (EOAV). 6 See e.g. RDA s 9(1).

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marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.7 This protection is subject to significant limitations, as discussed in Chapter 9. Second, the Australian Human Rights Commission Act 1986 (Cth) (AHRCA) distinguishes between ‘discrimination’ and ‘unlawful discrimination’. Section 31(b) empowers the Australian Human Rights Commission (AHRC) to ‘inquire into any act or practice, including any systemic practice, that may constitute discrimination’ in respect of the attributes protected by the FWA as well as medical record, criminal record, relationship status, and nationality.8 In the AHRCA, ‘discrimination’ relates to conduct that ‘has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation’, but complaints of ‘discrimination’ can only be taken to the AHRC for conciliation. They cannot be enforced through a court process. In contrast, ‘unlawful discrimination’ is defined in the AHRCA to mean conduct that breaches any of the four federal anti-discrimination laws (RDA, SDA, DDA and Age Discrimination Act 2004 (Cth) (ADA)). Such breaches are enforceable through litigation in federal courts as outlined in Chapter 7.9 Some, but not all, attributes have specific definitions in the legislation, but where there is no legislative definition of a term, a meaning has to be determined by judges interpreting the legislation.

4.3 Formulating and conceptualising attributes [10]

The meaning of the attributes is fundamentally affected not only by the words used to define them, but also by a set of more general questions about how they are conceptualised and expressed. In this part we explore the following issues: (i)

Is there a basis in principle for the choice of attributes that are protected by law, and how could additions be justified?

(ii)

What are the implications of symmetry or asymmetry in defining the attributes: do they protect a disadvantaged group, or prohibit discrimination on the basis of an attribute so that they protect everyone? For example, prohibiting discrimination against women, as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) does, is very different from prohibiting discrimination on the basis of sex, which protects everyone.10

(iii) In what ways (if any) does the legislative terminology (grounds, characteristics or attributes) affect how we understand discrimination? (iv) How broadly does an attribute extend, and what is the scope of protection? Does it refer only to the status, that is the mere fact of having that attribute, or does it also protect the manifestations of that attribute, such as the normal attribute-related activities of a person with that attribute? 7 8 9 10

FWA s 351(1). The FWA’s protection against discrimination is discussed in Chapter 9. AHRCA s 31(b), s 3(1) ‘discrimination’, s 3(b)(ii) and AHRC Regulations 1989 reg 4. AHRCA s 3(1) ‘discrimination’, ‘unlawful discrimination’. See [28] below.

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Finally, what limitations are imposed by anti-discrimination law’s focus on single attributes? This overlooks the difficulties experienced by people with multiple or intersectional attributes, for example an Indigenous person with a disability or a woman from an ethnic minority.

4.3.1 Why these attributes?: Pragmatism and principle As outlined in Chapter 2, anti-discrimination law’s development was initially motivated by the need to find an effective method for protecting racial minority groups in the aftermath of the two World Wars. Responding to the needs of disadvantaged people and groups for legal protection from discrimination has been the basis for the addition of further attributes. Thus the attributes in the law today respond to historical disadvantages suffered by particular groups. So how does the disadvantage of a particular group come to be seen as illegitimate and needing redress? Is there any principle that identifies these attributes, or is protection solely pragmatic, for those groups who can achieve it?11 To clarify our terminology, although we speak of disadvantaged ‘groups’ only some of the groups are likely to have any element of actual organisation as a group. Many are simply composed of individuals who have in common only the attribute which exposes them to disadvantage, and have no contact with each other or other common interests beyond the discrimination and disadvantage they experience.12 In many ways it would be more accurate to say that for these people, anti-discrimination law protects individuals with attributes of disadvantage rather than disadvantaged groups. Groups that have some organisation, such as ethnic communities, and gay and lesbian groups, have had much greater success in seeking legal protection from discrimination. This is because they are more able to use organised advocacy and lobbying than people who have in common only attributes of disadvantage, such as domestic violence victims, or people with spent criminal convictions or medical records that lead to discrimination. Such individuals tend to make advances only with the assistance of advocacy groups acting on their behalf. Our references to groups should not be taken to imply any form of internal cohesion or organisation.

[11]

[12]

4.3.1.1 Pragmatism: Achieving protected status through legislative amendment There has been debate over whether the law can or should lead social opinion or follow it. Some have argued that the law simply does not have the power to change widespread social practices in advance of changes in social opinion, while others see it as an important tool to influence such change.13 Both views have some truth in different contexts and to different degrees, depending on the issue and the extent of change needed in social attitudes.

[13]

11 Fredman, above n 3. 12 Cf Owen M Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5 Philosophy & Public Affairs 107. Fiss’ account of the basis for anti-discrimination law relied on the idea of actual natural groups with a degree of internal organisation. 13 See e.g. Gerald N Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 2nd ed, 2008).

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Anti-discrimination law clearly has a role in changing attitudes to the behaviours it prohibits. This is, however, constrained by the need for some level of support for change as a basis for parliament to take action to amend the legislation. Adoption of new attributes can be controversial at the time: the adoption of the SDA in the Commonwealth parliament was controversial and divisive,14 and it has been thought that ‘sex’ was added as a ground to the US Civil Rights Act 1964 with the intention of having Congress reject the Act.15 However, over time, social opinion has often moved towards acceptance of new attributes, such as non-discrimination on the basis of marital status. Marital status was previously the basis for substantial social disadvantages, but has since become relatively unimportant as a source of disadvantage, even while the right to ‘marriage’ has become a site of contest. Change in social opinion can be led by providing legal protection, but even where opinions are generally supportive, disadvantage on the basis of attributes such as race, sex, disability, age and sexual orientation can be persistent. Social opinion is also affected by generational change as well as education and awareness-raising. Campaigns for non-discrimination rights by LGBTI groups (lesbian, gay, bisexual, transgender and intersex) had early success in NSW and SA, but were stalled in all other jurisdictions for many years. Continued lobbying efforts led to changes to many other laws to remove specific disadvantages suffered by gays and lesbians, eventually followed by anti-discrimination protection in most states and territories, and finally the adoption in 2013 of federal protection in the SDA as a matter of bipartisan agreement. In this way, over time, legal changes resulted from, but also promoted further, change in social opinions. Resistance to change can also be persistent, however, as evidenced by the ongoing contest over marriage equality and the scope of the religious exceptions to anti-discrimination law in the context of sexual orientation (discussed in Chapter 6), in which tensions remain over resolution of competing claims to non-discrimination and freedom of religion. The political path to protection has proved more difficult for minorities that are small or lack influence. This is unsurprising in one sense, in that expanding protection requires legislative change which in turn requires support of the majority of members of parliament. In the context of constitutional protection for equality rights, the US Supreme Court said that ‘discrete and insular minorities’ need protection of law because they may be exposed to the abuse of power by a government elected by a majority in circumstances where they cannot protect themselves through the political process.16 This problem is illustrated by the situation of Indigenous people. Not only are they in a very different position than other racial or ethnic groups, as the first people of Australia having experienced the deprivation of their traditional lands and lives through colonisation, but as a very small proportion of Australia’s population they have limited political influence. They can be described at least to 14 For accounts of this, see Margaret Thornton (ed), Sex Discrimination in Uncertain Times (ANU Press, 2010). 15 Cf Michael Gold, ‘A tale of two amendments: The reasons Congress added sex to Title VII and their implication for the issue of comparable worth’ (1981) 19 Duquesne Law Review 453; Jo Freeman ‘How “Sex” Got Into Title VII: Persistent Opportunism as a Maker of Public Policy’ (1991) 9 Law and Inequality 163. 16 United States v Carolene Products Co, 304 US 144, 152–3 n 4 (1938).

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some extent as a discrete and insular minority whose problems often (but not exclusively) exist in widely distributed locations, where the mainstream community may have little familiarity with or knowledge of the situation and its causes. The limited political influence of Indigenous people is illustrated by the way in which debate about proposed changes to the Constitution to recognise them has been apparently unwilling to take account of Indigenous views and preferences, such as the demand for a constitutional prohibition on racially discriminatory laws.17 It is clear that a history of oppression is an important factor in justifying anti-discrimination protection, but can principles be identified that could help to resolve claims for protection from discrimination? In Chapter 1 we considered claims that anti-discrimination law can have a redistributive agenda (where its focus is on substantive equality) or can focus on compensating for past injustices. These approaches both look to disadvantage, in the present or the past. If we look beyond history or political pressure in the search for principle, is there an identifiable basis for protecting people with a particular attribute or in a particular group?

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4.3.1.2 A principled basis for protection? Philosophers have debated the basis for protection from discrimination of an attribute group but have not agreed on a set of principles.18 Ideas that have been suggested include the visibility, immutability or irrelevance of an attribute, but these features alone cannot provide a complete answer. Some protected attributes (such as race or sex or some types of disability) are generally both immutable, in the sense that individuals are born into the category (or enter it permanently as a result of accident or disease) and have no or very limited ability to change it, and often visible, in that they are obvious in the person’s body. But neither criterion is sufficient alone or in combination. Many features that are visible and immutable, such as blue eye colour, do not justify legal protection against discrimination, and other characteristics that appear to deserve protection would not meet these criteria (for example sexual orientation may not be visible, and religion is not immutable). Some protected attributes can be seen as matters of (cultural or social) ‘choice’, such as religion or politics, forming a marriage or relationship, becoming a parent or carer and for some even sexuality. Some attributes protect legal rights or positions, such as industrial activity or pursuing employment rights. These characteristics may not be visible or obvious from the person’s physical presence, and may in theory be changeable, but all have been the basis for actual disadvantage. In the past, many have been regarded as choices that are changeable, so the individual should change to avoid the disadvantage attached to them, and thus no protection is needed or justified. However, modern understandings accept that

[18]

[19]

17 Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015); Melissa Castan ‘Explainer: What Indigenous constitutional recognition means’, The Conversation, 18 Sept 2014 . 18 See e.g. Deborah Hellman and Sophie Moreau (eds), Philosophical Foundations of Discrimination Law (Oxford University Press, 2013); Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015); Aileen McColgan, Discrimination, Equality and the Law (Hart, 2014).

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some choices made by individuals relate to fundamental aspects of identity for which there may be no realistic alternative open to the individual in their life context, or basic choices that should be available to everyone in a society that respects individual freedoms. For example a member of a cultural minority group may have no choice as to religion if they wish to participate in their group’s cultural practices. Even if some degree of choice is involved, this should not necessarily disqualify a person from protection; legitimate life choices should be open to everyone without penalty or discrimination.19 In liberal theory, which focuses on the rights of individuals, the asserted irrelevance of some attributes to decisions allocating social benefits such as jobs or education is said to be a basis for protection. The case rests not on actual irrelevance, but an argument that the protected attributes should be excluded from consideration on principle, in decision-making that allocates advantages and disadvantages, such as educational opportunities or job selection.20 However, this rather circular argument does not help us to identify which attributes should be treated as irrelevant. For some attributes, their factual relevance is obvious, so treating them as actually irrelevant may lead to unrealistic laws that invite disobedience, or to disadvantaging people in those groups. For example a physical disability, pregnancy, or caring responsibilities might not be irrelevant to the work done by a person, and therefore cannot in reality be ignored. Instead, the presence of these attributes could call for the making of reasonable adjustments to accommodate the needs of the person, such as facilities to assist the person with a disability, or flexible work hours to assist the carer. The assertion of anti-discrimination law is that the person with a disability or the carer should not be disadvantaged on that basis. This claim is not that the attribute should be excluded from any consideration, but that it should at least be accommodated. More radically, the claim of substantive equality is that attributes, like disability, should be treated as part of the norm,21 rather than a special or unusual condition for which special arrangements are needed. This promotes the idea of universal design or inclusive practices at work, in education and in other areas of activity. Unlike immutable attributes such as race and sex that are relatively fixed at birth, some attributes identify situations that may potentially be part of a normal life course for everyone, such as aging, or that embody risks that anyone may encounter, such as the risk of disability through accident or disease. Protecting people in these categories prevents unfair disadvantage from a risk or likelihood that could potentially happen to anyone. Protection is therefore based on broad understanding of the problems faced by people in these categories, reinforcing the pragmatic basis of this area of law, in responding to risks of disadvantage that are seen as unfair. However, the existence of social disadvantage alone has not yet ensured widespread anti-discrimination protection for people categorised by

19 Sharon Cowan, Rosemary Hunter (eds), Choice and Consent: Feminist Engagements with Law and Subjectivity (Routledge-Cavendish, 2007). 20 Beth Gaze, ‘The Ambiguity of Affirmative Action in Australia’ (1997) 15(2) Law in Context 136. 21 Jerome E Bickenbach, ‘Minority Rights or Universal Participation: The Politics of Disablement’ in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-Ability and Legal Change (Martinus Nijhoff Publishers, 1999) 101; Bruce Arnold, Patricia Easteal, Simon Easteal and Simon Rice, ‘It just doesn’t add up: ADHD/ADD, the workplace and discrimination’ (2010) 34 Melbourne University Law Review 359.

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spent conviction, irrelevant medical record, homelessness, or being a victim of domestic violence.22 Two other approaches to thinking about the need to protect certain people from discrimination are highlighted by Fredman’s multi-dimensional concept of equality discussed in Chapter 1 and Martha Fineman’s theory of vulnerability. Both draw on Nussbaum’s fleshing out of Sen’s idea of capabilities.23 Fredman’s approach allows for consideration of a wide range of harms that individuals may experience, because different claims to equality protection may involve different elements of harms. For example, an attribute group may experience stigmatisation and exclusion that makes it difficult for them to enjoy or exercise their capabilities. Social devaluation of groups through stigma and norms may overlap with or be reinforced by other forms of exclusion that also cause inequality, such as the economic consequences of exclusion of mothers from the full-time workforce by failure to amend the conditions of work or child care. Fineman has argued that a better theory of the role of the state would flow from acknowledging that periods of vulnerability and dependence, as well as autonomy, are inherent incidents of the human condition, and part of everyone’s life, for example in childhood, illness and old age. She argues that we need a law that acknowledges vulnerability and interdependency just as much as it acknowledges autonomy and the need for freedom.24 This approach provides a framework to bring into view many areas of life currently overlooked by the legal system. Finally, the idea of privilege can bring into focus the advantages that are enjoyed by the groups that do not experience discrimination and disadvantage, and that benefit indirectly from the disadvantage of others. Peggy McIntosh’s early analysis of white privilege has generated a large body of literature which has identified issues such as male privilege and heterosexual privilege, and has led to fields such as ‘whiteness studies’.25 The underpinning idea of privilege is that it is invisible to the person who enjoys it. To them it is simply the normal experience of life – for example, not having to consider themselves as being of a particular race or of a particular sex or sexuality – and it reflects the unstated norms in our society, of whiteness, maleness and heterosexuality. Only people who fall outside these groups are regarded as having a race, sex or sexuality, and may experience discrimination or disadvantage on that basis, which can be recognised as a lack of the privilege of normativity. One of the aims of anti-discrimination law – transformation – can in this context be understood as seeking to broaden the social norm beyond those narrow categories of privilege and, in the process, dissolve the taken-for-granted nature of privilege, or the unnoticed experience of advantage.

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22 See e.g. ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT) Final Report (2015), 77–84. 23 Martha C Nussbaum, ‘Capabilities as Fundamental Entitlements: Sen and Social Justice’ (2003) 9(2–3) Feminist Economics 33. 24 Martha Fineman, ‘The Vulnerable Subject: Anchoring Equality in the Human Condition’ (2008) 20 Yale Journal of Law and Feminism 1. 25 Peggy McIntosh, ‘White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women’s Studies’ (Working Paper No 189, Wellesley College Center for Research on Women, 1988). See e.g. Australian Critical Race and Whiteness Studies Association, Critical Race and Whiteness Studies E-Journal .

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4.3.2 Symmetrical or asymmetrical: Liberal or substantive equality? [25]

[26]

[27]

The attributes are not consistently defined across all laws, or even within one law. Some attributes are defined in a symmetrical or exhaustive way, to protect everyone. Others are defined in an asymmetrical or targeted way, defining the attribute to cover only those who have been traditionally disadvantaged. For example, prohibiting discrimination symmetrically on the basis of race or sex protects every person against discrimination based on (any) race or (any) sex. Men or members of the ‘white’ majority can bring a sex or race discrimination claim, even though they are not the group that has traditionally been disadvantaged on the basis of sex or race. In contrast, international law such as the CEDAW focuses asymmetrically on discrimination against ‘women’ only. Similarly, legislative protection for people with disability or of a minority sexuality is asymmetrical, whereby the claim can only be brought by the member of the traditionally disadvantaged minority – the person with disability or the LGBTI person. Some attributes associated with sex, such as pregnancy, are inherently asymmetrical, because there is no comparable experience for men and no parallel experience of disadvantage. What are the messages sent by symmetrical and asymmetrical definitions? An asymmetrical definition of discrimination acknowledges and focuses on ending the disadvantages that have flowed to people with that attribute, often from long-established social structures and practices that may be difficult to change. It may require adjustments to be made, as for disability, or it may simply require prejudices to be eliminated, or at least not acted on. It clearly identifies anti-discrimination law as designed to achieve substantive equality by specifically protecting the traditionally marginalised and excluded sub-group. In contrast, a symmetrical definition focuses on the individuals affected, and the injustice to an individual of being treated by reference to general characteristics or stereotypes without regard to their individual capacities, choices and needs. It also acknowledges that social expectations like gender norms and racism can disadvantage and limit everyone; the act and process of categorising people by attribute can reinforce ideas of difference.26 However, the symmetrical approach risks suggesting that both types of discrimination are equally significant: that discrimination against people in the ‘white’ mainstream or men is just as important and even as prevalent as discrimination against people of minority races and ethnicities or discrimination against women. It may not acknowledge the reality of the disparate impact of existing social structures and systems of advantage and disadvantage, treating the rare disadvantage of an individual man on the basis of his sex as equal to the systematic disadvantage suffered by women in the world’s pervasively patriarchal societies. It has no mechanism to recognise that the harm of discrimination is based on attribute group, rather than purely on individual status, and that discrimination is not simply a matter of individual justice. By failing to recognise that some groups have experienced greater disadvantage (that is both more pervasive and more serious), it can negate recognition of

26 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1990).

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history and current social experiences and obscure the privilege that is held by those on the advantaged side of the attribute. The choice of symmetrical or asymmetrical approaches to defining discrimination can be influenced by politics or theories of discrimination (whether implicit or acknowledged). The symmetrical approach is perhaps more likely to gain wide support and thus more likely to be adopted in legislation. For example, while the CEDAW is expressed asymmetrically in acknowledgement of the seriously disadvantaged position of women in many, if not most, countries around the world, this approach was not accepted in Australia when the SDA was adopted. The Act was sufficiently controversial, and brought about such a big legal change, that an asymmetrical prohibition may not have been able to attract enough support in a male-dominated parliament.27 Instead, the SDA prohibited discrimination against men and women (and now also intersex people) based on sex. Similarly, in 1994 the Australian Law Reform Commission’s report on women’s equality recommended that Australia should adopt a federal Equality Act. A minority of members argued that, like the CEDAW, it should focus on protecting women, but not men, against sex discrimination, but this position could not attract a majority.28 Most sex discrimination complaints are brought by women, and the most common area of complaint for women in all jurisdictions is work. Some areas have been persistent problems, such as termination of employment as a result of pregnancy or maternity leave, discrimination at work as a result of family responsibilities, and sexual harassment at work. Recent studies provide evidence of the widespread and continuing nature of these practices,29 which all make it difficult for women to move into non-traditional areas of the workforce or to higher level positions at work, maintaining the substantial horizontal and vertical segregation of the workforce. Even where the legislative form is symmetrical, however, there are other mechanisms that recognise that the experience and prevalence of discrimination is not symmetrical. The exclusion of special measures to achieve equality from the concept of discrimination is a very important recognition that the laws aim for substantive equality and do take account of the realities and history of discrimination and disadvantage. The problems of the liberal, symmetrical perspective were illustrated early on in complaints by men that specialist women’s health services, domestic violence support services, or women-only gyms or sessions in swimming pools, were discriminatory. Under a symmetrical definition of a protected attribute, covering everyone, a measure that is intended to benefit a disadvantaged group can be challenged as discriminatory against people on the other side of the attribute. This is where the formal and substantive approaches to equality appear to come into conflict. Special measures or positive actions are generally intended to reduce disadvantage and thereby promote substantive equality (as discussed in Chapter 8). Treating them as discriminatory because they disadvantage the opposite group would

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27 Thornton, above n 14. 28 Australian Law Reform Commission, Equality Before the Law: Women’s Equality, Part 2, Report No 69 (1994) ch 4. 29 AHRC, Working without Fear: Results of the 2012 Sexual Harassment National Telephone Survey (2012); AHRC, Supporting Working Parents: Pregnancy and Return to Work National Review (2014).

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frustrate attempts to move towards substantive equality. When this issue first arose, there was uncertainty as to whether or not discrimination was involved.30 Over time, however, such measures were clearly recognised not to be discriminatory, because they serve to promote substantive equality, and are therefore within the special measures exceptions.31 The fact that special measures to achieve equality are authorised by anti-discrimination laws is a clear indication that the laws’ overall aim is substantive equality. This cannot be achieved without taking account of asymmetry in the experience of disadvantage, even if the law nevertheless extends a remedy to all individuals who experience discrimination. These approaches to equality and discrimination have been expressed in different terminology in America. The ‘anti-classification approach’ was an early approach that insisted that race or sex should be irrelevant to decision-making and people should not be classified on this basis. This symmetrical approach would support refusal to allow any use of racial classifications in legislation, even to permit positive action to address disadvantage. However, the ‘anti-subordination approach’ links the role of the law to preventing subordination and discrimination in society, thus taking a substantive equality approach to protect the groups that are disadvantaged and permit compensatory distinctions.32

4.3.3 Terminology: Grounds, attributes, characteristics [33]

The words used to describe the attributes and define the scope of the laws reflect the underlying concepts that were in the drafters’ minds. Australian Acts tend to refer to the protected traits as ‘grounds’33 or, in newer laws, ‘attributes’,34 in contrast to the UK Equality Act 2010 which refers to ‘protected characteristics’.35 While ‘attributes’ or ‘characteristics’ put the focus on the person whose treatment is in issue, ‘grounds’ tends to emphasise the reasons or motives of the person whose actions are challenged. The words used highlight either the effect on the complainant, or the motives and culpability of the respondent – two perspectives that are in tension throughout anti-discrimination law. As well as influencing our idea of the attributes, they also affect our understanding of what constitutes discrimination itself. For example, complainants may claim that where they have been treated unfairly because of their attribute, the law should provide a remedy because anti-discrimination law

30 See also Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 (McHugh J); Proudfoot v ACT Board of Health (1992) EOC ¶92–417; Ross v University of Melbourne (1990) EOC ¶92–170; Pulis & Banfield v Moe City Council (1986) EOC ¶92–170; Re City of Brunswick (1992) EOC ¶92–450. 31 See Chapter 8; Renée Leon, ‘W(h)ither Special Measures? How Affirmative Action for Women can Survive Sex Discrimination Legislation’ (1993) 1(1) Australian Feminist Law Journal 89; Fernwood Fitness Centres (1996) EOC ¶92–782; and cases cited above n 30. 32 For example, David B Oppenheimer, Sheila R Foster and Sora Y Han, Comparative Equality and AntiDiscrimination Law: Cases, Codes, Constitutions, and Commentary (Foundation Press Thompson/West, 2012) ch 1. 33 For example, Discrimination Act 1991 (ACT) (DAACT) s 7; grounds is also used in the Canadian Human Rights Act 1985, RSC 1985, c H-6, s 3. 34 For example, Equal Opportunity Act 1984 (Vic) (EOAV) from 1995, Anti-Discrimination Act 1998 (Tas) (ADAT) from 1998. Note that the Anti-Discrimination Act 1991 (Qld) (ADAQ) uses Grounds in the Division heading but attributes in s 7. 35 Equality Act 2010 (UK) s 4.

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4

is or should be aimed at eliminating unfair effects. Respondents may reply that they should only be penalised if their actions were blameworthy, relying on a more formal view that the law prohibits tainted decision-making processes,36 and they should not be penalised for unintended results of their actions. This raises the question of when actions can be regarded as unintended, and what responsibility respondents should have for preventing unfair outcomes which they can reasonably foresee are possible.37 Such responsibility could rest on a respondent’s power to affect significantly the complainant through its decisions and actions, and its capacity to avoid discrimination through better compliance with the law.38 These issues have not yet been explored in Australian law, but the legislative trend to move from the terminology of ‘grounds’ to ‘attributes’ puts the focus more clearly onto the person affected by the actions in question.

4.3.4 Width of protection: The attribute as status, activity, manifestation One fundamental issue underlying the definitions of the attributes is how widely they are to be understood. This question has two dimensions. First, what is the scope of protection according to the text of the legislation? The laws contain closed lists and definitions of protected attributes, although many significant terms are not defined. Further, the SDA and most state and territory laws provide that acting on characteristics generally associated with or imputed to an attribute is prohibited. This is intended to prevent a factor such as the taking of maternity leave, or stereotypical ideas such as that mothers of infants should only work part-time, being used to discriminate against women. State and territory laws and the DDA also generally cover discrimination by reason of association with a person with a protected attribute. The second dimension of the question involves clarifying the width of the attributes: do they cover only the status mentioned, or also activities that are normally part of or intrinsically part of the attribute? For example, does the attribute of ‘sex’ cover only actions referable solely to sex, or does it also cover actions that women undertake because of being female, based on biological origin (such as pregnancy or breastfeeding) or social practices, such as taking parental leave or working part-time for a period? These questions are affected by the courts’ approach to interpreting anti-discrimination legislation: will they read the statutory provisions broadly as beneficial legislation directed to remedying a social harm, or interpret the Acts more narrowly and technically by following detailed grammatical and syntactical analysis, in response to arguments about statutory nuances that are frequently put by lawyers? The latter approach has generally been adopted in the higher courts in anti-discrimination matters. The High Court has on several occasions

[34]

[35]

36 Christopher McCrudden, ‘Introduction’ in Christopher McCrudden (ed), Anti-Discrimination Law (Ashgate/Dartmouth, 2nd ed, 2004). 37 David Benjamin Oppenheimer, ‘Negligent Discrimination’ (1993) 141(3) University of Pennsylvania Law Review 899; Belinda Smith and Dominique Allen, ‘Whose Fault Is It?: Asking the right question to address discrimination’ (2012) 37(1) Alternative Law Journal 31. 38 Smith and Allen, above n 37.

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acknowledged that anti-discrimination law should be interpreted beneficially.39 However, it and lower courts have adopted a narrow interpretive approach to specific legislative terms, arguably contrary to its more general statements and the overriding direction to interpret legislation purposively.40 Exactly what is protected by an attribute is a central question in the law, which is closely linked to the question of what the prohibitions of direct and indirect discrimination mean (discussed in Chapter 5) and how the provisions defining the activities to which the laws apply are interpreted (Chapter 6). The issue is whether an attribute protects that status alone, or also normal manifestations of that status through activities associated with it. The importance of this issue is illustrated by the early case law on pregnancy discrimination. In the USA and Canada, when a pregnancy discrimination claim first went to the highest court, it was held that pregnancy discrimination was not covered by laws against sex discrimination, because it involved not differences of treatment between women and men, but between pregnant persons and people who were not pregnant. This was not seen by the (male) judges as a distinction based on sex.41 Implicitly, they interpreted the ground of sex as requiring proof that sex alone was the basis of the discrimination, and excluded from consideration factors intrinsically associated with sex such as pregnancy. This narrow and limited idea of sex discrimination entirely failed to give adequate protection to women who, by virtue of their sex, are the only people who can become pregnant. In those countries, legislative reform was required to make it clear that sex discrimination included pregnancy discrimination. Similarly, in the UK the Employment Tribunals that heard early sex discrimination claims found that distinctions based on pregnancy were not sex discrimination, and the issue was not resolved favourably by appellate courts until after the issue was clarified by the European Court of Justice.42 The judicial approach of separating the named attribute from the activities or manifestations that are inherently associated with it draws an extremely narrow and artificial line around the protected scope. Generally individuals cannot draw this line for themselves, separating who they are from how they look or act, so for a court to treat them as if they could denies them protection. It is unlikely parliament intended the scope of protection for an inherent feature of female sex such as pregnancy to be rendered nugatory in this way, but it is striking that this approach was adopted in each of the USA, Canada and the UK, although not in the EU where the court gave full effect to the intention of the Equal Treatment Directive to protect pregnant women at work.

39 See e.g. Waters v Public Transport Corporation (1991) 173 CLR 349, 362–5 (Mason CJ and Gaudron J), 378–9 (Brennan J), 383–4 (Deane J), 408–10 (McHugh J), concerning the EOAV. In IW v City of Perth (1997) 191 CLR 1, five High Court judges supported purposive interpretation in an impairment discrimination case under the EOA WA, with Brennan CJ and McHugh J confirming that ‘beneficial and remedial legislation, like the Act, is to be given a liberal construction’ but not one which is ‘unreasonable or unnatural’: 12; see also 27 (Toohey J), 35–6 (Gummow J), 52 (Kirby J). 40 Acts Interpretation Act 1901 (Cth) s 15AA and state law equivalents. 41 Gelduldig v Aiello 417 US 484 (1974); General Electric Co v Gilbert 429 US 551 (1976); Bliss v AttorneyGeneral of Canada [1979] 1 SCR 183. 42 Turley v Allders Department Stores [1980] ICR 66 (EAT); Dekker v VJV-Centrum Plus (European Court of Justice, C-177–88, 8 Nov 1990); Silke-Karin Mahlburg v Land Mecklenburg-Vorpommern (European Court of Justice, C-207/98, 3 Feb 2000).

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In drafting anti-discrimination laws, Australia avoided this specific problem in relation to pregnancy by expressly including pregnancy as a stand-alone attribute in the SDA. However, this did not exclude the general problem that judges might give attributes a narrow scope, such as whether ‘sex’ would be interpreted to cover other manifestations of being female, whether biological origin such as pregnancy or through social practices such as being primarily responsible for child care. In an attempt to provide a general guideline for the future, the SDA introduced the ‘characteristics’ extensions, discussed below, which were later also adopted in state and territory laws. However, the Australian tribunals had already indicated that they would not take a narrow view on the scope of the attributes of sex. For example in 1979, in Wardley’s case, a woman was excluded from recruitment as a pilot because of a company policy against women pilots, justified on the basis of concerns that passengers might doubt the safety of woman pilot and the likelihood of absences as a result of pregnancy and motherhood. The tribunal had no difficulty in finding that excluding a woman because of potential absences due to future pregnancy was sex discrimination.43 This decision, which preceded the characteristics extensions, clearly finds that the attribute of sex was understood to include potential pregnancy and possible future maternity leave. When the respondent argued that the probability of similar periods of absence for a man would have excluded him as well, the Board responded that it was not analogous:

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The difference is that the absences of a male would not necessarily arise because of his sex whereas pregnancy absences on the part of a woman arise only because of her sex. … [W]e do not accept … that a distinction should be drawn between … ‘sex simpliciter’ and the circumstances peculiar to the members of a particular sex such as pregnancy and motherhood.44

However, as discussed below at 4.3.4.1, subsequent courts have not followed this principle, that the differences in the nature of the absences from work of men and women are relevant to assessing discrimination, and have often overlooked the extensions. They have tended to interpret the statutory language narrowly and literally rather than look to the purpose of the extensions.

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4.3.4.1 Characteristics and manifestations Have the characteristics extensions been sufficient to address the problem of very narrow interpretations of the attributes? The SDA, ADA and most state and territory Acts45 include, as an extension of the attribute, a characteristic that a person with an attribute generally has or that is generally imputed to a person with that attribute. As currently expressed in the SDA s 5(1), sex discrimination occurs when action is taken ‘by reason of’:

[41]

(a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person … 43 Wardley v Ansett Transport Industries (1984) EOC ¶92–002. The decision was affirmed by the High Court in Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237. 44 Wardley v Ansett Transport Industries (1984) EOC ¶92–002, 75, 262. 45 See e.g. SDA ss 5(1) (sex); 5A(1) (sexual orientation); ADAT ss 14(2), 15(2).

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The DDA does not have a general characteristics extension, but explicitly defines that ‘disability’ to include ‘behaviour that is a symptom or manifestation of the disability’. It also specifically applies to having a carer, assistant, assistance animal or disability aid in the same way as it applies to a disability, and applies similarly to a person who is an associate of a person with disability.46 The characteristics provisions were intended to ensure that stereotypical assumptions and generalisations based on an attribute could not be used as a basis for making decisions about individuals. They extend the attributes in two ways. First, the extension to characteristics that ‘appertain generally to’ an attribute includes manifestations that are generally related to it, such as pregnancy, breastfeeding or maternity leave with (female) sex, and that are not separable from living a life with that attribute. Secondly, characteristics that are ‘generally imputed to’ a person with an attribute targets decisions based on stereotyped assumptions about people with that attribute, such as that women with young children will not be prepared to, or should not, work overtime, or that all people of a non-English speaking background will have lower language skills than native speakers. A characteristic that ‘appertains generally’ can be understood as an integral part of an attribute in the same way as the Equal Opportunity Board in Wardley’s case47 recognised that sex included potential future pregnancy and leave associated with motherhood. The attribute names the status, and the characteristics that ‘appertain generally’ refer to the ways in which an attribute is expressed in the life and normal activities of the person involved. The purpose of the extensions appears to be to make it clear that the attribute is to be read broadly. A person with an attribute has little choice about the life features that accompany it, such as pregnancy and maternity leave. Men can have children (a normal part of life) without these features, but women cannot, so unless protection against discrimination based on such characteristics is provided, the law will be too narrow to prevent sex-based disadvantage. Discrimination based on (female) sex cannot be separated from discrimination based on potential to become pregnant or the normal or actual consequences of pregnancy and maternity. Despite this, in several cases (discussed at [74] below) courts have accepted arguments of the kind rejected in Wardley, that men would be treated the same if they took similar kinds of leave to find there was no discrimination, even though the leave relates to the protected attribute of sex and was within the characteristics extension. Employers have been allowed to avoid liability on the basis that a man taking a long (though not sex-related) period of leave would have been treated the same, thus disregarding the fact that the reason the woman took leave was sex-related and therefore not comparable.48 These courts have failed to correctly analyse situations where men and women are not similarly situated because of the characteristics of their sex. They have allowed sex-related characteristics that appertain generally to women to be attributed to the male comparator as circumstances. This ignores the extended scope of the attributes through characteristics that appertain generally, and returns to the

46 DDA ss 7–9. 47 Above n 43. 48 Thomson v Orica Pty Ltd [2002] FCA 939; (2002) 116 IR 186; Stanley v Service to Youth Council Inc (2014) 225 FCR 317; Poppy v Service to Youth Council Inc (2014) 317 ALR 195.

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narrowness of the early pregnancy discrimination cases. It again draws a distinction between ‘“sex simpliciter” and the circumstances peculiar to the members of a particular sex such as pregnancy and motherhood’.49 The second type of characteristic is one that is generally imputed to an attribute. This is intended to prohibit reliance on stereotypes in decision making. It is consistent with liberal theory that individuals should be treated on their own merits, not on general preconceptions. For example in Waterhouse v Bell,50 where a woman was refused a racehorse trainer’s licence after her husband’s licence had been cancelled for a racing offence, the NSW Court of Appeal found marital status discrimination. The decision maker had assumed that as a married woman she would be liable to influence or corruption by her husband. Because this stereotypical assumption was a characteristic generally imputed to married women, relying on it was discriminatory. However, preventing decision making based on stereotypical assumptions does not necessarily mean that those features can never play a role in decision making. Relying on factors that are potentially stereotypical may be acceptable if it is actually a case of individualised, non-stereotypical treatment rather than imputed assumptions.

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4.3.4.2 Width of protection: Presumed and past attributes and association There are two further ways in which the attributes are extended, both emerging from concerns about disability discrimination, although they are expressed generally in most state and territory laws. The DDA and most state and territory laws include as an attribute ‘personal association’ with a person identified by any of the covered attributes. This ensures that discrimination against a parent, carer or friend of a person with a disability, sexual orientation or other protected attribute because of the attribute is included.51 Many also expressly include coverage of an attribute that may have existed in the past even if it no longer exists, and an attribute that a person is presumed to have, even if they no longer have or never had it. This avoids the problem of essentialising the protected attributes, requiring their actual existence to be proved for a successful claim. Instead it locates the problem in the actor’s prejudice or discriminatory reason for acting, provided they believed the attribute existed.52 For example, a man who was harassed by his workmates for being ‘gay’ succeeded in a claim of discrimination on the basis of presumed homosexuality.53 Ultimately, whatever the statutory formulation, unless a feature is expressly mentioned in the Act, there will always be a question about how broadly or narrowly a court will interpret the attribute. None of these extensions, such as the characteristics, personal association provisions, and past or presumed existence of attributes necessarily guarantee a broad approach will be taken. However, all these legislative provisions taken together constitute a clear indication by parliament that the intention is to ensure effective protection for people

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49 Wardley, above n 44. 50 Waterhouse v Bell (1991) 25 NSWLR 99. 51 See e.g. Coleman v Attridge Law (European Court of Justice Case C-303/06) [2008] IRLR 722: refusal of flexible work to a woman based on her son’s disability was held to be disability discrimination. 52 McColgan, above n 18, 52. 53 Daniels v Hunter Water Board (1994) EOC ¶92–626.

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who experience disadvantage as a result of an attribute protected by the law; and that it is intended to protect the normal activities and manifestations of their lives, and in particular activities that are intrinsically related to the primary protected attribute. These provisions clearly evidence that protection is intended to go beyond simply the status of having the attribute alone and extend to the activities and lives of people who are protected. This intention should be given effect in interpreting them. There are several further statutory indications that the law should not be applied too narrowly. For example, all laws provide that motive is not relevant to discrimination, and many provide that awareness of wrongdoing or of discrimination is not relevant. They further provide that where there are multiple reasons or bases for a decision or action, the law will be breached if one of the reasons is a prohibited one. In the federal and NSW Acts, the protected attribute need only be ‘a reason’ or ‘one of the reasons’; in the other states and territories it must be a substantial reason but need not be the dominant reason. The fact that a reason need not be a dominant reason indicates that the court is not to require or look for a motive sufficient in itself to determine the action alone. The test for reason is not a ‘but for’ test, nor, according to these provisions, should it be expressed as a search for a single ‘true basis’ for the challenged action.

4.3.5 Multiple and intersectional discrimination [49]

Australian anti-discrimination law is expressed in terms of single protected attributes, and has not yet begun to come to terms with multiple and intersectional discrimination. Multiple disadvantage occurs where more than one category of disadvantage affects a person in an additive way, whereas intersectional disadvantage occurs where the two or more attributes of disadvantage compound one another, for example the fact that Indigenous women are more disadvantaged than either white women or Indigenous men. This idea is graphically captured in the book title, All the Women Are White, All the Blacks Are Men, But Some of Us are Brave: Black Women’s Studies.54 Not all Indigenous people, people with disability or people of diverse sexualities are male. Many people may possess more than one attribute of disadvantage; many are identified by multiple attributes; for example, minority racial or ethnic groups include women, people with disability and/or minority sexualities. The singleattribute model used in Australian laws has served its purpose in raising awareness and pioneering protection against discrimination, but as the sole model of discrimination it is clearly conceptually lacking and overlooks the experience of those who are most disadvantaged. For example, a woman from an ethnic minority would be required in the current system to prove any discrimination was based on either race or sex,55 even though she cannot know what the role of each is in the respondent’s reasons. By requiring a single comparator and proof of the reason for acting, the law fails to take account of the experiences of those at the intersections. It is no surprise that there are few reported cases that recognise intersectional discrimination: only Fares v Box Hill College of TAFE explicitly acknowledges the experience

54 Akasha (Gloria T) Hull, Patricia Bell-Scott and Barbara Smith (eds) (Feminist Press, 2nd ed, 2015). 55 E.g. Dao v Australian Postal Corporation (1987) 162 CLR 317.

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of ethnic minority women in a workplace.56 Adapting the law is likely to require a move away from the strict comparator test to a more general assessment of disadvantage, as has begun in the ACT and Victoria (discussed in Chapter 5). Taking account of multiple or intersectional attributes has the potential to greatly improve Australian law. Since most individuals can be characterised by multiple or intersectional attributes of disadvantage, the work of anti-discrimination agencies in relation to the multiple attributes would be unified by a focus on a broad range of attributes and their combined effects. The UK moved in this direction when it adopted s 14 of the Equality Act 2010, which defines ‘combined discrimination: dual characteristics’ as where A treats B less favourably, because of a combination of two relevant protected characteristics, than A treats or would treat a person who does not share either of those characteristics. This provision is limited to a combination of two intersectional characteristics and remains defined by the comparator test, inviting detailed judicial analysis of the language used. It has not been brought into effect. In 1998 the Canadian Human Rights Act 1977 took a different approach, showing different expectations of judges, and a better acknowledgement of the reality for people with multiple attributes in the absence of a strict comparator test, when it provided: ‘3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds’. An Australian reform proposed in the Human Rights and Anti-Discrimination Bill 2012 (Cth) cl 19 would have similarly addressed this issue outside a comparator test, providing that ‘discrimination by unfavourable treatment’ would include unfavourable treatment ‘because the other person has a particular protected attribute, or a particular combination of 2 or more protected attributes’.

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4.4 The attributes As stated above, a person must establish that they possess an attribute covered by the legislation (or show it was imputed) in order to bring a claim. The existence of an attribute is a question of fact to be proved on evidence, and a finding that one exists within the legislative definition is essential to success. In Qantas Airways Ltd v Gama, the Full Federal Court overturned a lower court’s finding of disability discrimination because the judge had not made a factual finding that a specific disability existed, despite there being substantial evidence of disability.57 Proving the attribute is central to a direct discrimination case, as it must be shown that the attribute was the basis for the discriminatory action. It is also important in indirect discrimination matters, which focus on the impact of an apparently neutral requirement or practice, because it is necessary to show that people with the attribute were affected differently to those without it. In this section we provide a brief introduction to the major categories of attributes, subject to the limitations of the available space.

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56 (1992) EOC ¶92–391. 57 (2008) 167 FCR 537. Gama’s racial discrimination complaint was upheld.

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4.4.1 Race and related attributes [53]

The idea of ‘race’ has a difficult history. As noted earlier, it is often used loosely to refer to a set of related attributes and characteristics that describe ethnic, appearance or cultural differences. The events of the twentieth century made the concept highly controversial, with the emphasis on biological ideas of race and the development of eugenic ideas. The associated ideas of racial superiority and inferiority that were developed or reinforced are completely at odds with modern ideas of universal humanity and human rights. The idea of clear genetic racial differences is discredited, as much more of our biological and genetic makeup is shared than differentiates us, and ‘race’ is not identifiable at a genetic or biological level. Instead, when we talk of ‘race’ today we are usually referring to appearance, skin colour, ethnicity and cultural and religious difference: Race is now considered essentially an imprecise and arbitrary social label which is the product of cultural and social construction: see Montague, A, Man’s most dangerous myth: The Fantasy of Race, 6th Edition, AltaMira Press, 1997, pp 46–48. Even the traditional biological concept of … race based on essential genetic differences has been doubted in recent times and has been abandoned as having any scientific value: see discussion in Long, J C and Kettle, R A (2003) ‘Human Genetic Diversity and the Non-existence of Biological Race’, Human Biology 75, 449–71; Marks, J (2007) ‘Grand Anthropological themes’ in American Ethnologist 34 (2): 234.58

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[55]

Australia is a very mixed society as a result of decades of very substantial immigration, and as intermarriages occur over the generations, diversity has become normalised.59 However, this is not the case for all communities, and problems of racial discrimination and exclusion persist and particularly affect Indigenous people and newer immigrant groups and cultures. Although ‘race’ is an unclear concept, it remains powerful, and racism is undoubtedly an ongoing phenomenon. The idea of race has been illuminated by critical race theory, which developed first in the USA and has influenced thought in other countries as well.60 Anti-discrimination law has been among areas subjected to extensive criticism. A central critique concerns the role of ‘race consciousness’ (awareness of race as a social fact and its implications for individuals) in preserving white privilege. Crenshaw has argued that race consciousness plays a role in promoting white solidarity by allowing white people on the lower end of the economic scale to feel superior to non-whites and in particular African-Americans, thereby maintaining racial divisions and discrimination. This ensures that they will identify with rather than oppose white ruling groups.61 Lawrence has argued that the social unacceptability of racial discrimination has not eliminated racial thinking, but merely led to its repression, and the denial of racial motives for actions. This has driven the continuing influence of race 58 Philip v New South Wales [2011] FMCA 308, [71] (Lloyd-Jones FM). 59 See e.g. AHRC, Face the Facts: Some Questions and Answers about Indigenous Peoples, Migrants and Refugees and Asylum Seekers (2014). 60 Richard Delgado and Jean Stefancic, Critical Race Theory: An Introduction (NYU Press, 2nd ed, 2012); Richard Delgado and Jean Stefancic (eds) Critical Race Theory: The Cutting Edge (Temple University Press, 3rd ed, 2013). 61 Kimberlé Crenshaw, ‘Race, Reform and Retrenchment: Transformation and Legitimation in AntiDiscrimination Law’ (1988) 101 Harvard Law Review 1331.

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underground in individual psyches, where it continues to play a role, albeit now much more difficult to identify than when racism was overt and avowed.62 While American critical race theory is strongly based in American social conditions, similar approaches have been used by Australian critical legal scholars to analyse Australia’s responses to racial injustice.63 Race, in the context of anti-discrimination law, is not specifically defined. Like the CERD on which it is based, the RDA defines the list of protected attributes inclusively: ‘race, colour, descent or national or ethnic origin’.64 The RDA does not cover nationality or citizenship, based on the Convention’s exclusion of distinctions made by the State between citizens and non-citizens, or laws ‘concerning nationality, citizenship or naturalization … that … do not discriminate against any particular nationality’.65 However, the RDA protects ‘being or having been an immigrant’ in certain contexts.66 By contrast, ‘nationality’ is covered by all state and territory laws, and ‘ancestry’ and ‘immigration status’ by some. The question of exactly what the protected attributes mean and which groups are protected has been teased out through court decisions. For example, are groups like Indigenous people, Jews, Sikhs and Muslims, or immigrants from specific countries, protected by racial discrimination laws? When is treatment seen to be because of ‘race’ or ‘ethnicity’? The intention of racial discrimination law, developed in the wake of the Second World War, is clearly to protect groups such as Jews. In the 1979 New Zealand case of King-Ansell v Police, it was held that the race-related attributes are used in their ‘wide popular sense but at the same time as associated with one another in such a way that each word gives colour to the meaning of the others’. They should be given a broad and non-technical interpretation.67 The Court added that the terms are ‘concerned not with genetic processes but with shared characteristics of a socio-political nature such as customs … history, traditions, nationality, language or residence’. Richardson J stated:

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Race is clearly used in its popular meaning. So are the other words. The real test is whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their colour or their racial, national or ethnic origins. That must be based on a belief shared by members of the group.68

The Court held that Jews fell within the protected scope even though they do not have a common racial origin. This test and reasoning has been applied in Australia to hold that Jews are an ‘ethnic group’.69 Indigenous people are clearly protected as a ‘race’, although their situation as the original occupiers of the land is qualitatively different from that of other racial or ethnic groups.

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62 Charles R Lawrence III, ‘The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism’ (1987) 39 Stanford Law Review 317; David Kairys, ‘Unconscious Racism’ (2011) 83 Temple Law Review 857. 63 E.g. Nicole Watson, ‘In the Matter of Djaparri (Re Tuckiar) [2035] FNCA 1’ in Heather Douglas et al (eds), Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, 2014) 442. 64 CERD art 1(1); RDA s 9(1). 65 CERD arts 1(2), (3). 66 RDA s 5 protects the attribute under ss 11–15, but not s 9. See Jin v The University of Queensland [2015] FCCA 2982, [32]–[47], on indirect discrimination based on immigrant status. 67 King-Ansell v Police [1979] NZLR 531, 533–4 (Richmond P). 68 Ibid 542 (Richardson J). 69 Jones v Scully (2002) 120 FCR 243, 273. See also Miller v Wertheim [2002] FCAFC 156.

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Australian law has recognised that Indigenous people belong to many different nations. The Federal Court has held that ‘the RDA provides relief, not simply against discrimination against “Aboriginals” but also discrimination against particular Aboriginal peoples’,70 so an Aboriginal person can complain of discrimination by a person from a different Aboriginal nation.71 Legal recognition of a person as Aboriginal may depend on the purposes for which recognition is sought. Areas such as land rights laws use a three part test that looks to descent, identification as Indigenous, and acceptance as such by the Indigenous community in which a person lives.72 Elements of this test may be used separately where not to do so would disadvantage an Indigenous person. Anti-discrimination law’s test is simpler, and elements such as ‘descent’ in the RDA and ‘ancestry’ at state and territory level are sufficient, so the attribute does not require community recognition. Whiteness or non-Aboriginality has also been recognised as a ‘race’ on the basis of which discrimination can occur,73 although in a case under the racial hatred provision, s 18C of the RDA, doubt was expressed that being ‘white’ was descriptive of any particular ethnic, national or racial group.74 Race substantially involves questions of ethnicity, cultural identity and religion. Groups such as Jews, Sikhs or Muslims may share religion or cultural heritage, but do not necessarily have a single national or ethnic origin or close biological connection. While they may be protected against religious discrimination, not all laws include religion as a protected attribute,75 and much discrimination may not be religious in nature. ‘Ethnic origin’ as a protected attribute has been held to apply to groups that are not biologically racially based, such as Sikhs. In Mandla v Dowell-Lee,76 a school’s uniform policy that prevented a Sikh boy wearing a turban to school was challenged as racially discriminatory. The House of Lords applied Richardson J’s test in King-Ansell to identify an ethnic group – that it must ‘regard itself and be regarded by others’ as a distinct community by virtue of its ‘shared characteristics of a socio-political nature such as customs … history, traditions, nationality, language or residence’,77 identifying seven factors that could be considered to determine this. Although Sikhs were not distinct from other people who live in or had come from the Punjab on the basis of colour, race, nationality or national origins, the Court concluded that on the criteria of self-regard and recognition as a separate group, they constituted an ethnic group. The Court found that the school’s action was indirect racial discrimination.

70 Williams v Tandanya Cultural Centre (2001) 163 FLR 203, 209. 71 Gerhardy v Brown (1985) 159 CLR 70. 72 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia, Report No 96 (2003) 36.14; e.g. Aboriginal Land Rights Act 1983 (NSW) s 4(1) definition of ‘Aboriginal person’. 73 McLeod v Power (2003) 173 FLR 31, [56]–[62]; Brandy v HREOC (1995) 183 CLR 245. 74 Carr v Boree Aboriginal Corp [2003] FMCA 408. 75 Religion is not a protected attribute in Commonwealth, NSW or SA anti-discrimination law. NSW defines race to include ‘ethno-religious’ groups, which was intended to protect Jews, Muslims and Sikhs, but it has been held that Muslims are not covered because they are not a single ethnic group: Khan v Commissioner of the NSW Department of Corrective Services [2001] NSWADTAP 1. See further 4.4.4.2 below. 76 [1983] 2 AC 548. 77 Ibid 562.

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The situation of Muslim groups is not yet clear in the case law. Muslims have not been recognised as an ethnic group in international jurisprudence because they cover a wide range of ‘nations, colours and languages’,78 unified only by religion. While there are some suggestions that the federal parliament regarded Muslims as an ethnic group,79 this has not yet been recognised in any case law under the RDA.80 Muslims are protected against discrimination based on religion in most states and territories, but that may not cover racial discrimination.81 There are many cases in other jurisdictions and in human rights courts, especially the European Court of Human Rights, that have considered the rights of groups such as Sikhs, Muslims and Christians to retain their ethnic or religious attire in a range of situations, including the rights of Muslim women to wear the niqab or burqa, a veil that fully conceals the face, whether in public, in universities, in schools or in courts, and the rights of Sikh men to wear religious symbols such as the turban and the kirpan, a ceremonial dagger.82 These cases illustrate the blurring of the concepts of race, ethnicity or ethnic origin, and religion and (traditional) culture. Many claims of racial discrimination are in fact concerned with the ability of recognisable ethnic groups to preserve such traditional practices, which may be religious or customary in nature, without discrimination. The RDA protects against discrimination based on national origin but not on nationality. Discrimination based on nationality is covered by most state and territory laws. Nationality is regarded as the same as citizenship, which can change over time, but national origin is fixed: ‘a connection subsisting at the time of birth between an individual and one or more groups of people who can be described as a “nation” – whether or not they also constitute a sovereign state’.83 The NSW government’s refusal to provide subsidies for public transport travel to international students was successfully challenged as nationality discrimination under the ADANSW, but the denial of subsidy was later authorised by legislation.84

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78 Australian Human Rights Commission, Federal Discrimination Law Online, ch 3: The Racial Discrimination Act, 17 . 79 E.g. Explanatory Memorandum, Racial Hatred Bill 1994 (Cth), 3: ‘“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 such as Muslims’. 80 See Mariam Veiszadeh, Religion and the Racial Discrimination Act: Don’t Muslims Also Deserve Protection?, ABC Religion and Ethics . The only reported RDA decision relying on ‘Muslim’ ethnicity was dismissed for a failing to state a case without discussing this point: Ibrahim v Australian Dental Council [2012] FMCA 612. 81 In NSW an Australian born Muslim man succeeded in a racial discrimination claim based on ethno-religion: Toll Pty Ltd v Abdulrahman [2007] NSWADTAP 70; [2008] EOC ¶93–482. 82 See e.g. Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256. 83 Ealing London Borough Council v Race Relations Board [1972] AC 342, 365; approved and applied in Australian Medical Council v Wilson (1996) 68 FCR 46, 75 (Sackville J), and Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202, 209–11 (Carr, Sundberg and North JJ). See also AHRC, Federal Discrimination Law Online, above n 78, 19–20. 84 SUPRA v Minister for Transport [2006] NSWADT 83. See also AB v NSW Minister for Education [2003] FMCA 16, where a NSW requirement of permanent residence or citizenship to enter a selective public high school was held in an interlocutory application not to be national origin discrimination under the RDA.

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The nature of the characteristics extensions in state and territory laws has been explored in the context of race in several cases. Characteristics such as lower English language ability85 and possessing overseas qualifications86 have been recognised as characteristics of race. The courts have not always been prepared to make the connections, and sometimes the connections proposed have been rather tenuous. In Kapoor v Monash University (2001) 4 VR 483, non-renewal of the contract of an Indian tertiary teacher was claimed to be racial discrimination because it was based on her reserved disposition, which she argued was a characteristic of her race and caste as a high caste Hindu Brahmin. The court held that a decision based on a characteristic generally appertaining to race will not be discriminatory unless the decision maker knows the characteristic is related to race; that had not been proved, so the case failed. This requirement to prove knowledge has been put forward as a general proposition in later cases,87 even though the decision rested primarily on the particular legislative structure of the EOAV 1984. In a subsequent case, a Nigerian applicant to the NSW Police was expected to prove by evidence that his accent was a characteristic of his race.88 These approaches seem contrary to the principle that race is used in its wide popular sense. The lack of recognition of diversity within the protected categories is a problem that has not yet been addressed in Australian law. People of minority races include men and women, and some have disabilities and age issues. As the laws are currently structured, it is not obvious how an intersectional or multiple discrimination claim resting on say race and sex, for an Aboriginal woman, could be put. In particular, it is not clear how the comparator would be identified in a direct discrimination claim, or how disadvantaging effect would be tested for in indirect discrimination. This inability means that people who have multiple attributes of disadvantage have to argue their claims as based on one or other factor of disadvantage, and the law fails to acknowledge their actual experience, in which the attributes that affect them are a whole and may not be separable, and the disadvantage that each attracts may actually be compounded by their combination. As noted above at 4.3.5, the move that has begun in the ACT and Victoria to dispense with a comparator in direct discrimination is a step in the right direction, but better recognition and response is needed.

4.4.2 Sex and related attributes [65]

The SDA and the state and territory laws contain a long list of attributes that relate to sex in various ways, addressing very diverse issues. There are three main groups. One group of attributes focuses on issues that affect women, through sex discrimination and forms of discrimination related to biological and social aspects of sex including pregnancy, birth and parenthood, some of which also apply to fathers. Second, the attributes of intersex and gender identity protect people whose sex or gender identity falls outside conventional norms. 85 Tanevski v Fluor [2008] NSWADT 217, [47]. See also Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294, where a direction to an employee not to speak Arabic at work was held to be racial discrimination. 86 Australian Medical Council v Wilson (1996) 68 FCR 46. 87 Philip v NSW [2011] FMCA 308. Such a social fact would usually be taken as self-evident. 88 Ibid.

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Finally, there are attributes that protect sexual diversity in the form of sexual orientation and lawful sexual activity. This very diverse range of issues may seem to have little in common beyond the fact that they all relate in some way to sex or gender and are grouped together in the SDA. Two important distinctions underpin these attributes. First is the distinction between sex and gender, where sex refers to mainly biological characteristics and functions, and gender to the social construction of sex roles, which extends well beyond the biological to lay down expectations and constraints of masculinity and femininity to which men and women are expected to conform. The second is the idea that has now been recognised by the High Court and the Commonwealth parliament, that sex is not a dichotomous category of male or female, but a spectrum that includes people who are intersex and may identify as both male and female, neither, or of no sex.89 This broader recognition of the diversity of sexes provides more space for recognition of diversity of gender identity and sexual orientation, which address both sex and gender issues. Australian law also now recognises that sexuality is diverse and individuals have a right not to be constrained by the dominant norm of heterosexuality, through protecting the attribute of sexual orientation. Sex, gender, sexuality and gender identity therefore represent very different ideas, concerns, and life experiences that are all rolled in together in anti-discrimination law. In the following discussion we first consider intersex, because of its importance in framing sex and sexuality not as a dichotomy but as including multiple diverse categories and experiences.

4 [66]

4.4.2.1 Intersex status The attribute of intersex status was adopted in the SDA following the decision in Norrie’s case,90 which recognised that sex is not a dichotomous category of male or female, but instead covers a spectrum of different characteristics. Intersex status is defined in biological terms in the SDA s 4(1) as:

[67]

the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male. This definition was refined during its passage through parliament with the assistance of intersex advocates and is comprehensive in its inclusion of various categories of bodily sexual difference. It recognises that whether a person is intersex is a biological characteristic and not necessarily an identity.91 (At the same time, references in the SDA to the ‘opposite sex’ were replaced by the more inclusive term, ‘of a different sex’.) The definition of

[68]

89 NSW Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490 concerned the meaning of ‘sex’ in the NSW Births, Deaths and Marriages Registration Act 1995, but its broader significance is in legally acknowledging the existence of sex diverse individuals, who have previously been constrained to fit into the dichotomous categories of male or female. 90 Ibid. 91 Attorney-General Mark Dreyfus, 2nd reading speech on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, Hansard (HR) 21 March 2013, 2893.

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intersex has not yet been interpreted by a court. Tasmania was the first state to also adopt this attribute. A practical consequence of this change is that facilities and practices should not assume only two sexes; for example, forms and facilities should now allow for at least three sex categories. This change is not a comprehensive resolution of the legal issues faced by intersex people, but it is an important starting point.

4.4.2.2 Attributes of sex, marital status, potential pregnancy, pregnancy, breastfeeding and family responsibilities [69]

[70]

[71]

The attributes relating to sex and gender can be controversial because they relate to fundamental social structures and assumptions that underpin not only roles in the workforce, but also in the family. It is only decades since our society has emerged from the system of oppression that limited women’s chances with legal barriers such as unequal pay and forced resignation from jobs on marriage. The CEDAW, created to ensure women’s entitlements as full citizens on a basis of non-discrimination, prohibits discrimination only against women, but the SDA prohibits discrimination based on sex and related attributes such as marital status, family/carer’s responsibilities and the sexual diversity grounds. The advent of sex discrimination law introduced major changes to traditional social roles and arrangements. Previously unquestioned entitlements of men both at home and at work came under challenge. The challenge was greater for many cultural minority and religious communities, where differentiated roles for men and women are a fundamental way of carrying forward traditional practices, for example through rules about women’s and men’s dress, behaviour and responsibilities. Conflicts can arise between claims for gender equality and cultural accommodation. While anti-discrimination law does not seek to eradicate such differences where they are chosen, it does seek to ensure that they are not used to disadvantage women, and to support individual choice and autonomy. When the SDA was adopted in 1984 it prohibited discrimination based on sex, pregnancy and marital status.92 The attribute of ‘sex’ is not defined in the legislation. We have referred above to the history of courts internationally failing to treat pregnancy as an aspect of sex discrimination, and there is a danger that literal interpretations of the attributes may restrict the intended protection. Early cases gave broad interpretations, so that ‘sex’ was held to include the possibility of becoming pregnant and taking leave,93 breastfeeding,94 and taking maternity leave.95 In an indirect discrimination case96 the tribunal took judicial notice that women carry primary responsibility for child care in Australia and are less able to comply with a requirement to work full time, which was held to be indirectly discriminatory on the basis of sex. In this way the attribute of sex was regarded as covering women’s responsibility for family care, which, although it begins as a biological requirement (in terms of pregnancy, childbirth and breastfeeding), is otherwise a social convention (women’s ongoing primary responsibility for child care).

92 93 94 95 96

For a review of the passage of the SDA and its achievements, see Thornton, above n 14. Wardley v Ansett Transport Industries, above n 44. Whitehead v Criterion Hotel, Geelong [1985] EOC ¶92–129. Thomson v Orica [2002] FCA 939. Hickie v Hunt & Hunt [1998] HREOCA 8.

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Many of these related attributes have since been adopted expressly to make the law’s scope clear, including potential pregnancy, pregnancy, marital or relationship status, breastfeeding, and family or carer’s responsibilities or status. Most state and territory laws also include many of these attributes, with varying definitions. All the laws also include characteristics extensions so that each named attribute extends to include characteristics appertaining generally or generally imputed to people of a particular sex. The challenge is to ensure that the scope of the attributes is not confined too narrowly. While some decisions are made simply on the basis of being male or female, many more are made on the basis of assumptions or stereotypes about appropriate roles for men or women, or characteristics that are normally associated with sex, such as responsibility for family care. Because of the pervasiveness of sex and gender roles, sex discrimination potentially has a very wide scope. Pregnancy is a central area that is a basis for substantial disadvantage for women at work. Pregnancy is an inherently asymmetrical attribute, because there is no comparable experience for men. The attribute of potential pregnancy (SDA s 4B) was added in 1995.97 It ensures that pregnancy will not be read narrowly as applying only to an existing pregnancy rather than the possibility of being pregnant in future, which was the operative factor in Wardley.98 The attribute of pregnancy would include normal conditions of pregnancy such as morning sickness, although morning sickness has also been held to be a disability, thereby attracting an obligation to provide reasonable accommodation.99 Pregnancy discrimination is often tied up with discrimination based on taking maternity or parental leave and especially with difficulties returning to work after a period of leave, as they are characteristics of having been pregnant. Recent studies and case law have provided evidence of the difficulties that women face in returning to their job after maternity leave. A 2013 national survey found that 49 per cent of new mothers in a representative sample and 27 per cent of new fathers in a smaller survey reported discrimination at work as a result of parenthood.100 There is a major problem with how the courts identify the comparator (where one is required to establish direct discrimination), because men are not similarly situated to women with regard to pregnancy and maternity leave, and this makes identifying a comparator in similar circumstances but without the attribute difficult. Courts have frequently resorted to comparing women on maternity leave or on return from maternity leave with a man who has taken a similar period of leave and has a right to return to work.101 But the situations should not be compared, because the man would not be taking leave for a reason related to

4 [72]

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97 Based on House of Representatives Standing Committee on Legal and Constitutional Affairs, Parliament of Australia, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (1992). 98 See above n 43. 99 Bevilacqua v Telco Business Solutions (Watergardens) Pty Ltd [2015] VCAT 269, [192]–[199]. 100 AHRC, Supporting Working Parents Report (2014) ch 2: Results of the National Prevalence Survey. 101 In Thomson v Orica [2002] FCA 939, a woman returned after maternity leave to her previous job and pay but with less important work and less opportunity to progress. Comparing her with a man who took a long leave negated sex or pregnancy discrimination, but her manager’s angry response about pregnant women when she announced her pregnancy was sufficient to establish that pregnancy was the basis of the action.

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his protected attribute of sex or pregnancy, and it is precisely because maternity leave is a characteristic of sex and pregnancy that women need protection (see 4.3.4 above). This example illustrates the problems inherent in a comparative approach to discrimination where men and women are not in comparable situations. Instead, the unique nature of pregnancy needs to be acknowledged and adequate protection provided even if no comparison is possible. All laws provide that special treatment of women in relation to pregnancy is not discrimination,102 but anti-discrimination law does not require accommodation of the needs of pregnant women, such as, for example, a need to sit rather than stand for long periods late in pregnancy.103 Shockingly, in NSW an employer is not prevented from dismissing a woman because of pregnancy if she was pregnant at the time of hiring.104 The attribute of family responsibilities was added to the SDA in 1992, and is defined in s 4A. A family responsibilities attribute is important in achieving gender equality in access to care, because it is equally available to men who want to participate in family care. The SDA protection against discrimination on the basis of this attribute is limited – it protects only against direct and not indirect discrimination.105 The attribute is also defined narrowly, to cover care for a dependent child or an immediate family member, which is defined as the nuclear family – parents, siblings and children – but excludes, for example, aunts and uncles.106 Such a narrow definition can help mothers and fathers at work, but is unsuitable for communities such as the Aboriginal community, where ideas of kinship and care range much more broadly,107 and arguably is unsuitable for a future in which many childless frail older people may in fact need care from nephews and nieces or even from friends who are not related. By comparison, the state and territory provisions are wider; for example, parental or carer status in Victoria applies to direct and indirect discrimination and defines ‘carer’ generally to include ‘a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis’.108 The attributes relating to family or carer roles take two main formats. One focuses on responsibilities or activities, as in the SDA and the Anti-Discrimination Act 1977 (NSW) (ADANSW). The other protects family or carer status, which appears on its face to be a narrower formulation. However, the argument made earlier in this chapter that attributes must be interpreted to cover associated activities of the person they identify would apply to the ‘status’ attribute. In Victoria, there is also an explicit obligation to reasonably accommodate the needs of parents and carers in several work contexts. Failure to do so is discrimination.109 This is the first extension in Australia of a requirement to reasonably accommodate 102 103 104 105 106 107 108 109

See e.g. SDA s 31. The FWA has some provisions to protect pregnant workers: see Chapter 9. ADANSW s 25(1A), (2A). SDA s 7A. Legislation to extend it to indirect discrimination was rejected in the Senate by the conservative parties in 2011: Sex and Age Discrimination Legislation Amendment Bill 2010 (Cth). SDA s 4A. Anna Chapman, ‘Australian Anti-Discrimination Law, Work, Care and Family’ (Working Paper No 51, Centre for Employment and Labour Relations Law, January 2012). EOAV s 4(1). EOAV ss 17, 19, 22, 32 (job search, employment, contract work and partnerships).

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outside the context of disability, and provides substantial benefits by focusing attention on the question of whether it is possible and reasonable for the employer to make an adjustment. Arguably there is a need to extend this accommodation requirement to other attributes, especially to pregnancy (discussed further in Chapter 11).110 Marital status or relationship status is defined in SDA s 4(1) to include being single, married, divorced, having a de facto partner currently or in the past (and that need not include cohabitation), or being the surviving spouse or partner of a person who has died. ‘De facto partner’ is defined to include a registered relationship under state or territory law, and applies to same and opposite sex couples.111 Protection does not necessarily extend to discrimination based on the identity of a person’s spouse or partner. For example, in a case in which a woman who was the best qualified applicant for a position with a pharmaceutical company was refused it because her husband worked for a rival firm, she initially succeeded because the decision was based on the assumption that married women would disclose confidential work information to their husbands. The decision was overturned on appeal, when the NSW Court of Appeal held that the attribute of marital status did not extend to the particular identity of the spouse.112 However, in Waterhouse v Bell, as noted above, refusal of a racehorse trainer’s licence to a woman whose husband’s licence had been cancelled was held to be marital status discrimination, because it rested on the decision maker’s assumption that as a married woman she would be liable to influence or corruption by her husband. As this was a characteristic generally imputed to married women, her case succeeded.113

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4.4.2.3 Sexual orientation Sexual orientation is not an overt attribute like sex or race, but it has nevertheless been the basis for extensive persecution and oppression, including during the Second World War. The sexuality-related attributes recognise that people of diverse sexualities are entitled to equality and respect for individual dignity. The long campaign for equality rights for gay and lesbian people encountered resistance at international and national levels. Sexuality is not an attribute that is expressly covered in the international anti-discrimination or human rights conventions, but the UN Human Rights Committee recognised in Young v Australia114

[80]

110 The first case heard under this provision failed because the casual worker was held unable to contest her employer’s requirement for flexibility in a rostering change: Richold v State of Victoria, Department of Justice) [2010] VCAT 433. The idea that the contract of employment overrides anti-discrimination legislation was rejected by the High Court in Wardley’s case (above n 43), but it has nevertheless been remarkably persistent: Victoria v Schou (2004) 8 VR 120. 111 SDA s 4(1) definition of ‘de facto partner’; Acts Interpretation Act 1901 (Cth) ss 2D–2F. 112 Compare Boehringer Ingelheim Pty Ltd v Reddrop (1984) 2 NSWLR 13. 113 Waterhouse v Bell (1991) 25 NSWLR 99. 114 UN, Human Rights Committee (HRC), Views: Communication No 941/2000, 78th sess, UN Doc CCPR/C/78/D/941/2000 (18 September 2003) (‘Young v Australia’). In Young, survivor’s superannuation benefits which were available to an opposite sex partner were denied to a long-term same-sex partner. The Committee had earlier in Toonen v Australia (HRC, Views: Communication No 488/1992, 50th sess, UN Doc CCPR/C/50/D/88/1992 (4 April 1994)) held that criminal laws against consenting private homosexual activity between adults were in breach of the privacy provisions of the ICCPR.

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that discrimination based on sexual orientation was in breach of the guarantee of equality in art 26 of the ICCPR. Campaigning for recognition in international human rights laws has been given direction in the Yogyakarta Principles, but has encountered resistance from more conservative states at the UN.115 Some states, beginning with SA and NSW, have protected attributes of homosexuality, sexuality or sexual orientation/preference for many years. The legislative definitions of the sexuality grounds vary. NSW’s protection for ‘homosexuality’ provides only asymmetrical protection, while references in other Acts to ‘sexuality’, ‘sexual orientation’ and ‘sexual preference’ are defined to include heterosexual, homosexual and bisexual orientations.116 In many jurisdictions it was difficult to gain majority support to adopt an attribute of sexual orientation, despite numerous minor party and private members’ bills. Instead, many parliaments amended other specific laws to remove legal disadvantages attaching to same-sex oriented people, such as social security and other laws. In 2013, sexual orientation and gender identity were finally added to the SDA.117 Sexual orientation is defined in s 4(1) of the SDA as ‘a person’s sexual orientation towards: (a) persons of the same sex; or (b) persons of a different sex; or (c) persons of the same sex and persons of a different sex’. The difference between an ‘orientation’ and a ‘preference’ has not been the subject of judicial comment, although the former is ‘generally accepted as a broad and inclusive term’ while the latter suggests a greater element of choice and sexual activity.118 There is substantial case law on the sexual orientation attribute, including on homosexual vilification, which is prohibited in NSW. Its primary role has been to protect gay men and lesbians from discrimination. A typical example is Daniels v Hunter Water Board, where an electrician who was harassed by his fellow employees because they thought he was gay succeeded in a discrimination claim.119 However, the wording of the attribute does not necessarily confine it only to gay, lesbian and bisexual rights. The first judicial consideration of the SDA attribute in Bunning v Centacare rejected a claim that ‘polyamory’ was a protected sexual orientation. Polyamory is the practice of having multiple sexual relationships at the same time. A welfare employee had posted her work contact details on the website of a polyamory group of which she was a member. Centacare, an agency run by the Catholic Church, dismissed her for gross misconduct because the group’s activities were contrary to the ethics and moral teachings of the Church. Her discrimination claim was summarily dismissed on the basis that polyamory was not a sexual orientation. The Court distinguished between the status of sexual orientation and the manifestation of that status in sexual behaviour:

115 International Commission of Jurists, ‘The Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity’ (March 2007). 116 But not polyamory: see Bunning v Centacare (2015) 293 FLR 37. 117 For background, see AHRC, Addressing sexual orientation and sex and/or gender identity discrimination: Consultation report (2011). 118 Supplementary Explanatory Memorandum, Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 (Cth). 119 (1994) EOC ¶92–626, [46].

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[T]he legislature has defined sexual orientation as a state of being.… [S]exual orientation is how one is, rather than how one manifests that state of being. The manifestation of that state of being can take many forms. Those forms are what we know as ‘sexual behaviour’.120

The Court further stated that polyamory was a sexual behaviour and that a sexual behaviour alone cannot amount to an orientation: ‘sexual orientation is something far more than how one behaves sexually.… [B]ehaviour does not define … orientation’,121 concluding that ‘“sexual orientation”, as the term is used in s 4 of the [SDA], covers only that which it expressly covers, i.e., the state of being. It does not cover behaviours’.122 This view, that protection for an attribute excludes protection for the behaviours that are direct manifestations of it would substantially undermine the protection offered by the SDA to lesbian, gay and bisexual people, and represents too narrow an approach for effective protection of rights, as discussed above (at 4.3.4). Arguably it was not necessary for the decision, which was sufficiently supported by the conclusion that polyamory was a behaviour rather than an orientation. Sexual behaviours are protected in several states that have an attribute of ‘lawful sexual activity’. This is defined in Victoria to mean ‘engaging in, not engaging in or refusing to engage in a lawful sexual activity’, in Queensland to mean ‘a person’s status as a lawfully employed sex worker, whether or not self-employed’, and is left undefined in Tasmania.123 The Victorian definition would extend to polyamorous behaviour as well as lawful paid sex work. In Bunning, the judge relied on the failure of the Commonwealth to adopt a similar attribute to support his conclusion that it was intended that sexual orientation did not extend to behaviour. However, the Commonwealth may equally have acted on the basis that behaviours implicit in a status attribute are included in it. Arguably in the three jurisdictions with this attribute, sexual orientation and behaviours should be regarded simply as overlapping attributes. Much of the case law on sexual orientation discrimination involves the application of the religious exceptions to gay and lesbian people. There are generally three types of religious exceptions in Australian laws, as discussed in 6.5.4. First is an exception that protects internal arrangements and worship within the religion, including training and selection of officials.124 Secondly there is an exception for religious bodies or religious schools that allows them to discriminate in relation to selection of staff and in some other circumstances.125 Finally, some jurisdictions have a provision that allows individual religious convictions to prevail over equality rights.126 Arguably the third type is too broad because it does not contain safeguards in relation to the importance of the belief, or for balancing other conflicting rights such as the right to non-discrimination.

120 121 122 123 124 125 126

[84]

[85]

[86]

Bunning v Centacare (2015) 293 FLR 37, [28]–[29] (Vasta J). Ibid [35]. Ibid [39]. EoAV ss 4(1), 6(g), 62, 82–4; ADAQ ss 7(l), 28, Schedule–Dictionary; ADAT ss 16(c), 19(d). See e.g. SDA s 37. See e.g. SDA s 38. EOAV s 84.

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When the SDA’s new attributes were adopted in 2013, the religious exceptions were applied to them as they apply to other attributes. However, one significant exception was carved out: the religious exceptions do not apply to anything done by a Commonwealth funded aged care provider, other than its employment decisions, as discussed in 6.5.4.

4.4.2.4 Gender identity [88]

[89]

Gender identity was only adopted in the SDA in 2013, but versions of this attribute have been in most state and territory laws for some years. Very early versions in NSW and SA named the attribute as ‘transgender’ and ‘transsexuality’, and emphasised medical intervention as a basis for recognition of sex change. More recent definitions are much broader, using the terminology of gender identity to emphasise self-identification, and to protect gender identification and expression for everyone, not limited to the transgender context. In the SDA, gender identity is defined as ‘the gender related identity, appearance or mannerisms or other gender related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth’.127 This definition gives effect to the Yogyakarta Principles128 that outline human rights principles for the protection of transgender people and emphasise self-identification. Good faith is implicit in the definition. There is no requirement that any form of medical or surgical intervention has been undertaken.129 The attribute protects every person in respect of gender identity, and its expression in appearance, mannerism and other gender related characteristics. It would, for example, protect a masculine lesbian woman, for example, who was disadvantaged on the basis of being ‘butch’ rather than on the basis of her sexual orientation. Many issues remain to be worked out to clarify how sex discrimination laws apply to intersex or gender diverse people. For example, where an exemption was granted to a service provider trying to address a conflict between protecting women traumatised by family violence and providing services to transgender women with similar needs, the organisation, after reflection and discussion decided not to rely on the exemption, but instead to resolve any problems (if they arose) in a way that protected the human rights of both groups.130

4.4.3 Disability [90]

Disability discrimination is prohibited in all jurisdictions throughout Australia, although it is referred to as impairment in Queensland, WA and the NT. The DDA was enacted well before the UN Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006 and 127 SDA s 4(1) definition of ‘gender identity’. 128 Above n 115. 129 Only WA still requires medical intervention: protection under the EOA WA pt IIAA against discrimination based on ‘gender history’ is only available to a ‘gender reassigned person’, defined in s 4(1) as ‘a person who has been issued with a recognition certificate under the Gender Reassignment Act 2000’, which requires a medical or surgical procedure: AB v WA (2011) 244 CLR 390, [34]. 130 Hanover Welfare Services Ltd [2007] VCAT 640; exemption for a women’s refuge to exclude transgender women and accept only female-born women. Because of concern that this would further victimise a very disadvantaged group, the service abandoned the exemption: Gurney, Karen and Eithne Mills, ‘VCAT, Hanover and the transgender conundrum’ (2007) 32 Alternative Law Journal 203.

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defines disability broadly in terms of bodily impairments or functions, contrasting with the CRPD’s focus on long-term impairments which may hinder full and effective participation in society.131 The CRPD is a strong rights-based statement that represents a significant paradigm shift away from treating people with disability as merely objects of charity, welfare and social protection. Article 5, ‘Equality and non-discrimination’ requires state parties to provide all persons with equal protection and equal benefit of the law, to prohibit all discrimination on the basis of disability and guarantee equal and effective legal protection against it, to take all reasonable steps to ensure that reasonable accommodation is provided, and to ensure that special measures necessary to accelerate or achieve de facto equality are not considered discrimination. The CRPD’s reliance on provision of reasonable accommodation and ‘specific measures’ to achieve equality emphasises its substantive equality approach. Like the CRPD, the DDA and Australian anti-discrimination laws generally draw on the social rather than medical model of disability.132 According to the social model, disability is the result of a person’s impairment operating in an environment that fails to support their capacities. For example, the difficulty of using public transport for people with a mobility or sight disability results from the way public transport services are designed, with only the sighted and mobile passengers in mind. Since the adoption of the DDA and of Disability Standards, substantial progress has been made in Australia in moving towards universal access or inclusive design, so that people with various disabilities are better catered for in buildings and in designing public and other spaces and processes.133 In areas such as education and employment, however, there is still a long way to go. Disability discrimination is technically an asymmetrical protection. It protects only people with disability, not those without. The definition of disability in the DDA (s 4(1)) is a very broad one that is inclusive rather than seeking to narrow the field of protection. It covers loss of bodily or mental functions, or of part of the body, organisms that are or could in future cause disease, malfunctions, malformations or disfigurements of parts of the body, learning disabilities, and mental illness or conditions that result in disturbed behaviour. A disability includes behaviour that is a symptom or manifestation of the disability.134 In some ways it extends beyond those who have a disability because the definition includes any disability that exists or existed in the past, or may exist in future, including genetic predisposition, or one that is imputed. On its face this definition is wide enough to cover poor eyesight and the common cold because the definition is not limited to substantial or permanent impairments. Protection is also extended to associates of a person with disability (s 7) and to ‘having a carer, assistant, assistance animal or disability aid’ (ss 8, 9). ‘Associate’ is defined in s 4(1) to include spouse, genuine domestic partner, relative, carer or a person with a business, sporting or recreational relationship with the person’.

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131 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 2518 UNTS 283 (entered into force 3 May 2008) art 1 (CRPD). 132 Lee Ann Basser and Melinda Jones, ‘The DDA and the Tripartite Approach to Operationalising Human Rights’ (2002) 26(2) Melbourne University Law Review 254. 133 Cf Department of Infrastructure and Regional Development, Commonwealth, Review of the Disability Standards for Accessible Public Transport 2002: Final Report (2015); Disability (Access to Premises – Buildings) Standards 2010 (Cth). 134 Purvis v New South Wales (2003) 217 CLR 92; DDA s 4(1) definition of ‘disability’.

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Disabilities come in a huge range of types and degrees. To succeed in a disability discrimination case, the existence of the disability must be found as a fact, on the basis of relevant evidence.135 There has been some litigation about what counts as a disability. Heroin addiction has been held to be a disability within the DDA; although some states, such as NSW, have specifically tried to exclude addiction to ‘prohibited drugs’ by legislative amendment in response.136 A claim that gambling addiction was a disability was rejected in Victoria.137 Morning sickness in pregnancy has also been recognised as a disability.138 Colour-blindness has been recognised as a disability.139 A brain injury that resulted in disturbed behaviour is recognised as a disability and, as noted above, the disability expressly includes the behaviour or manifestations of the disability. A related attribute in the Victorian Act is ‘physical features’, which ‘means a person’s height, weight, size or other bodily characteristics’ (s 4(1)). It has been held not to protect against discrimination based on piercings or hairstyles, but does cover hair colour, length, baldness, etc.140 It also covers features such as tattoos141 and facial hair. In Kuyken v Lay, a rule that prohibited police from wearing beards was challenged as physical features discrimination. The Tribunal held that facial hair was a physical feature, but the claim failed because a legislative amendment had authorised the Chief Commissioner to make such a rule for the appearance and grooming of police officers.142 The Supreme Court affirmed the decision. Complaints of discrimination based on disability cover many areas of activity, including access to education, work, services and accommodation. A recent report by the AHRC reviewed the problems that people with disability and older workers face in employment.143 The major problem identified was getting work, where anti-discrimination law provides little assistance because of the difficulty of proving discrimination. The report made a number of suggestions for responses to this problem.

4.4.4 Other attributes 4.4.4.1 Age [96]

The ADA was adopted in 2004 to protect people of all ages. It prohibits direct and indirect discrimination based on age or age group, but excludes youth wages. State and territory laws provide similar coverage. Claims of disability discrimination are excluded from the ADA (s 6), so challenges exist for older people with disability to work out which might be the basis for any discrimination that they experience in order to choose an avenue to claim. The major problem for many older workers is in obtaining employment in the first place,

135 136 137 138 139 140 141 142 143

Gama v Qantas (2008) 167 FCR 537. Marsden v HREOC [2000] FCA 1619, [54]–[56]; ADANSW s 49PA. McDougall v Kimberly-Clark Australia Pty Ltd [2006] VCAT 1563. Bevilacqua, above n 99. Davies v Victoria [2000] VCAT 819; Loscialpo v NSW Police Service [2000] EOC ¶93–042. Fratas v Drake International Ltd [2000] EOC ¶93–038, 74,107. Jamieson v Benalla Golf Club Inc [2000] VCAT 1849. Kuyken v Chief Commissioner of Police [2015] VSC 204. AHRC, Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability (2016).

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and the ADA provides very limited assistance in this area, because of the difficulty of proving discrimination.144 Provisions similar to those in the ADA were applied in Qantas v Christie,145 where a provision in international air traffic regulations that prevented pilots from flying on some routes after they turned 60 was held by the High Court to render it an inherent requirement of the job of an international pilot for Qantas to be under 60. The case was brought under the Workplace Relations Act, and effectively validated Christie’s involuntary retirement as a pilot at the age of 60. In two decisions under the Anti-Discrimination Act 1991 (Qld) (ADAQ), age discrimination was established when a recruitment process failed to recruit any older applicants as flight stewards,146 and when an employer dismissed two older men and replaced them soon after with younger men.147

4 [97]

4.4.4.2 Political and religious beliefs and activities Political and religious beliefs and activities or religious conviction are protected attributes in all states and territories except NSW and SA. The definitions of these terms make it clear that they cover holding or not holding a belief and engaging in or not engaging in or refusing to engage in an activity.148 Similar attributes are in s 351 of the FWA,149 and in the unenforceable human rights jurisdiction under the AHRCA noted above at [8], although neither law defines them. The NSW attribute of ‘ethno-religion’ operates more to protect religiously based ethnic groups such as Jews than to protect religious groups per se. It appears to have been adopted to avoid the need to adopt a full attribute to protect against religious discrimination. Similarly, attempts to adopt the attribute of religion in SA were also unsuccessful, but ‘religious appearance or dress’ is a protected attribute.

[98]

4.4.4.3 Industrial or employment association or activity Industrial or employment association or activities are protected attributes in several states and territories. The provisions protect the right to freedom of association as well as freedom not to associate, through refusal to join an industrial association or union, as well as membership and activity.150 Similar to the framing of political and religious belief or activity, some laws define the attribute in terms of status151 (membership or non-membership), while others emphasise activity.152 Similar protection is provided federally by the general protections provisions in Part 3–1 of the FWA which prohibit adverse action based on industrial activity or the exercise of a workplace right (discussed in Chapter 9).

[99]

On this issue, see ibid. (1998) 193 CLR 280. Virgin Blue Airlines v Hopper [2007] QSC 75. Lightning Bolt Co v Skinner [2002] QCA 518. See e.g. definitions in EOAV s 4(1). The FWA attribute was applied in Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27. 150 Hein v Jacques Ltd (1987) EOC ¶92–188. 151 Victoria (industrial association membership), ACT (membership or non-membership of an organisation of employers or employees). 152 Victoria (industrial activity, employment activity), Queensland (trade union activity), Tasmania (industrial activity), NT (trade union or employer association activity).

144 145 146 147 148 149

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Other provisions protect individuals’ ability to assert rights against their employers: Victoria protects the attribute of ‘employment activity’, similar to the FWA’s protection for the exercise of a ‘workplace right’ (s 340), which has become one of the most common categories of complaint in Victoria.153 It covers an employee, as an individual, making a reasonable inquiry about their employment entitlements to their employer, or communicating concern that they may not have been or will not be given all their entitlements.

4.4.4.4 Irrelevant criminal or medical record, and social origin [101]

[102]

Protection against discrimination based on criminal or medical record is more limited, despite the serious impact that both can have on a person’s employment prospects.154 Medical record discrimination may in many instances be able to be formulated as disability discrimination, given the wide definition of disability. Criminal record discrimination is both pervasive and very poorly protected by law. WA and the ACT protect the attribute of spent conviction,155 while Tasmania and the NT protect irrelevant medical record and irrelevant criminal record. Victoria has recently added the attribute of ‘expunged homosexual conviction’. Federally, the AHRCA s 31(b) allows complaints of discrimination in employment based on medical record and criminal record to be brought and conciliated but not adjudicated.156 The AHRC has published non-binding guidelines for employers on avoiding discrimination based on criminal convictions in employment.157 Finally, the attribute of ‘social origin’ appears in art 26 of the ICCPR, and is protected in employment by the FWA (s 351), and (unenforceably) by the AHRCA (s 31(b)), but not by any of the enforceable anti-discrimination laws. Neither law defines the term, but it could potentially include aspects such as social class, occupational category, social security dependence, or homelessness.158

4.5 Conclusion: The way forward [103]

This chapter has considered the range of attributes protected by anti-discrimination laws and the scope of individual attributes. Federal laws cover a relatively narrow range of attributes, in contrast to the omnibus approach in state and territory laws. Federally the FWA and the AHRCA protect a wider range, though only in employment, and, in the case of the AHRCA, not enforceably. 153 EOAV s 4(1). It was adopted during the Work Choices system of federal workplace law from 2005–08 to provide protection to employees. VEOHRC Annual Report 2014/15, 20. 154 Bronwyn Naylor, Moira Paterson and Marilyn Pittard, ‘In the Shadow of a Criminal Record: Proposing a Just Model of Criminal Record Employment Checks’ (2008) 32 Melbourne University Law Review 171. 155 Spent Convictions Act 1988 (WA), DA (ACT). 156 AHRC Regulations, reg 4, AHRC Act, ss 31(b) and 3(1) definition of ‘discrimination’. 157 Australian Human Rights Commission, On the Record: Guidelines for the Prevention of Discrimination in Employment on the Basis of Criminal Record (2012). 158 See e.g. Angelo Capuano, ‘Giving Meaning to “Social Origin” in International Labour Organization (‘ILO’) Conventions, the Fair Work Act 2009 (Cth) and the Australian Human Rights Commission Act 1986 (Cth): “Class” Discrimination and its Relevance to the Australian Context’ (2016) 39(1) University of New South Wales Law Journal 84; Phillip Lynch, ‘Begging for Change: Homelessness and the Law’ (2002) 26 Melbourne University Law Review 609.

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In examining the definition and scope of the attributes, we have noted that the statutory definitions, though wide, are often interpreted narrowly by courts, and the scope of many attributes is still uncertain. Courts have paid little attention to the provisions that indicate an intention that the definitions should be interpreted broadly, such as the characteristics extensions, protection for presumed and past attributes and association, and provisions for multiple reasons. Narrow and literal interpretations tend to divert attention from the underlying substantive question that should be the core of the legal inquiry: whether an individual is being treated unfairly because of their attribute. Further attributes can be added through statutory amendment. There are still many categories of people affected by social disadvantage who seek the protection of anti-discrimination law, such as homeless people, domestic violence victims, and people with an old or irrelevant criminal record that can blight opportunities even after the punishment is spent. However, it can be difficult to attract the necessary support for legislative change. While adding further attributes protects people in more disadvantaged groups, there are concerns about the effectiveness of anti-discrimination laws. Although they have brought about social change, they have not fully achieved the aim of ensuring equality of opportunity for protected groups. Although some women have succeeded at work, for example, the workplace generally continues to be a gender-biased environment that has resisted adapting to women’s life patterns. It is true that pursuing equality of opportunity is a long-term goal, and anti-discrimination law is just one step towards it. However, parliaments seem more willing to add further attributes than to ensure better provisions and more effective enforcement of the laws to assist in changing discriminatory social arrangements. We now turn, in Chapters 5 to 7, to examine the substantive definitions of prohibited conduct, any exceptions to it, and the provisions and resources for enforcing the law.

4 [104]

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[106]

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5.1 Introduction This chapter considers what type of conduct anti-discrimination laws prohibit. The focus is on discrimination, but these laws also prohibit harassment and vilification in respect of particular attributes. They also make unlawful associated conduct such as assisting or directing another person to discriminate, advertising an intention to discriminate, or seeking information for the purpose of discriminating. In general the onus of proving their case in any of these actions rests on the person complaining. To address the risks associated with enforcing rights under anti-discrimination laws, each Act prohibits victimisation of potential and actual complainants, witnesses and others who participate in litigation in good faith. The central issue is how discrimination is defined under anti-discrimination legislation. While the underlying models are similar for most laws, there is great variation of detail across the federal and state Acts. We start with a brief discussion of different kinds of discrimination and then outline traditional and alternative ways it has been defined in Australian legislation (5.2). We then look at particular mechanisms that have been used to supplement the standard discrimination provisions to promote equality, namely reasonable adjustment obligations (5.3), disability standards and action plans (5.4). After examining discrimination, we turn to explore other prohibitions: harassment (5.5), vilification (5.6), and associated conduct including advertising and victimisation (5.7).

[1]

[2]

5.2 Discrimination As discussed in Chapter 1, Australian anti-discrimination laws are designed to promote equality but do not reflect a single or coherent conception of equality. The legislation generally prohibits two types of discrimination, direct and indirect, which are explained further below. Essentially the split between direct and indirect discrimination corresponds to the two familiar conceptions of equality – formal and substantive. Formal equality is essentially about consistency or treating likes alike. It means ignoring differences, judging without regard to protected attributes and focusing instead on the relevant criteria for the job, or educational entry standards, for instance. It is intuitively appealing but deceptively simple. Direct discrimination prohibits different treatment because of a protected attribute; at the least this means eliminating categorical bans that expressly exclude women, homosexuals or Jews, for instance, from being offered the school place, job or lease, but the breadth of the principle is contested. The question that has been more difficult to answer is: apart from explicit exclusions like these, when is treatment ‘because of’ an attribute? This relates back to the question of when two people are ‘alike’, thus warranting like treatment, and when they are different, and who gets to decide. In contrast to formal equality, substantive equality focuses on the end goal of equal opportunity or outcome, not merely same treatment. This means even apparently neutral selection criteria and rules need to be assessed for their impact to see if they create or reinforce existing disadvantage. To achieve substantive equality, differences need to be acknowledged and accommodated rather than ignored. The indirect discrimination provisions better reflect this understanding of equality because they prohibit requirements or conditions, even when

[3]

[4]

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consistently applied, if they disproportionately impact on people who have a protected attribute. The test for this type of discrimination is not merely consistency, but reasonableness: requirements or conditions are not unlawful so long as they are reasonable. Nearly all Australian legislation contains this dual conception of discrimination, modelled on UK legislation as discussed in Chapter 2, covering direct and indirect forms.1 (The distinctive provisions of the Racial Discrimination Act 1975 (Cth) (RDA) s 10 that affect government powers to legislate are considered in Chapter 6 at 6.7.) This ensures that ‘discrimination’ is not understood merely as different treatment, but extends also to different impact. Prohibiting ‘discrimination’ without further elaboration is at risk of being interpreted in a narrow way, as we note below and in respect of the Fair Work Act 2009 (Cth) (FWA) in Chapter 9. The two-part definition, however, is problematic because it suggests there is a clear line between these types of discrimination, as if they are conceptually distinct, when they are not. It has also led to some unnecessary and unfruitful line-drawing. Australian courts have made clear that the legislation is not limited to intentional harm or malice; even unconscious bias or benevolent intent on the part of an employer, for example, can be covered (see 5.2.1.2 below). The test is not solely an objective one, because a person’s subjective motivations and reasoning are relevant but they are not determinative. External observations of behaviour and even comments that reveal prejudice, stereotyping or other beliefs can be used as evidence to determine the reason or basis for a person’s decision. A fundamental challenge in defining discrimination is that it can cover a wide range of conduct.2 Discriminatory conduct can be thought of as a continuum. At one end is categorical exclusion, or explicit exclusion based on a prohibited attribute, which is clearly direct discrimination. At the other end are facially neutral rules that are discriminatory because they have a disparate impact and are unjustified. Categorical exclusion includes different treatment because of an attribute itself, such as ‘women need not apply’ or ‘all women must resign upon marriage’. It also includes excluding someone because of a stereotypical assumption made about people with that attribute, such as refusing to promote Mary, a new mother, because of an assumption or stereotype that she will not be able to work the long hours or travel as the job requires, rather than basing the decision on actual performance and Mary’s expressed commitment and preferences. Blanket bans and stereotyping are both wrong because they ignore or deny individual merits and traits and instead treat people as a category. Basing decisions not on assumptions or stereotypes but actual qualifications, behaviour, or responses to interview questions is fairer because it treats people as individuals and not as categories. It acknowledges autonomy and diversity of people even within groups. For example, asking Mary whether she would be able and prepared to work long hours or travel as the position requires allows Mary some scope for deciding how to combine her new 1 The Anti-Discrimination Act 1992 (NT) (ADANT) s 20 uses a formulation more like Racial Discrimination Act 1975 (Cth) (RDA) s 9(1), drawing no explicit distinction between direct and indirect discrimination. 2 For a detailed analysis of justifications for prohibiting discrimination and how they identify what conduct should be unlawful, see Anne Hewitt, ‘Can a Theoretical Consideration of Australia’s Anti-Discrimination Laws Inform Law Reform?’ (2013) 41(1) Federal Law Review 35.

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parenting responsibilities with job demands. If she is able to work long hours and satisfy the travel requirements, then her status as a new mother is not relevant to the promotion decision and she can be assessed on the same basis as the other candidates. However, some limitations are the consequence of norms or social structures into which people must fit, rather than being matters of personal choice. While Mary, for instance, might have some capacity to share her caring responsibilities in a way that enables her to work the long hours, thereby allowing her status as a new mother to be ignored in this selection process, the reality is that many new mothers (and fathers) do not have this flexibility. As discussed in Chapter 4, they cannot necessarily separate their parental status from the usual manifestation of this status, that is, having caring responsibilities that can compete and even clash with paid work demands. Activities dictated by that status may not be a choice, and this is the case with many manifestations of other attributes such as disability, pregnancy, race and religion where the attribute has manifestations that are not merely about individual choices and free will. Once pregnant, for example, Mary could not simply choose whether or not to have morning sickness or to give birth. It should also be noted that the decision to become pregnant is one of the most fundamental for the survival of the human species and thus should not be seen simply as an individual lifestyle choice. How attributes are defined and how related behaviours or manifestations are understood is at the heart of the distinction between direct and indirect discrimination. It is helpful to think of these categories as overlapping concepts rather than as two distinct types of conduct. Often the difference between the categories can be merely a question of where the inquiry is focused, and a fact situation could be characterised in either way. Consider a scenario of Mary during pregnancy being disciplined by her employer for being late to work due to morning sickness. Disciplining Mary because of behaviour that is a manifestation of her pregnancy, that is, morning sickness, could be understood as different treatment by reason of an aspect or characteristic appertaining generally to pregnancy. In this way it could be characterised as direct discrimination. Alternatively, it could be framed as potentially indirect discrimination (subject to assessing reasonableness) by the imposition of a punctuality rule, which is a facially neutral requirement that would disparately impact upon those who are pregnant (and who may experience morning sickness). The conduct of the employer thus could be characterised as either direct or indirect discrimination. There is no clear distinction between them. Despite this clear overlap between direct and indirect discrimination, Australian courts have largely taken the position that the two types of discrimination are mutually exclusive.3 Complainants are not barred from arguing them in the alternative, but the courts have on a number of occasions held that conduct can only be characterised as one or the other. With the general nature of direct and indirect discrimination now laid out and the intersection of the two explained, we turn to outline key elements of each kind of action.

[9]

[10]

[11]

[12]

3 Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters), 392–3, 400–02; Australian Medical Council v Wilson (1996) 68 FCR 46 (Wilson), 47, 55, 74; Walker v Victoria (Department of Education and Early Childhood Development) (2011) 279 ALR 284, [28].

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5.2.1 Direct discrimination [13]

Direct discrimination has traditionally been defined in Australian legislation as treating someone ‘less favourably’ than a comparator in the same or not materially different circumstances because of a protected attribute, such as sex or race. The Sex Discrimination Act 1984 (Cth) (SDA) provides an illustration of typical drafting. 5(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of: (a) the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person; the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different sex.

[14]

[15]

[16]

In essence the complainant must prove two elements: (a) that they have been treated less favourably than a comparator; and (b) that this is by reason of an attribute they possess. The latter element has come to be called ‘causation’, although this leads to some confusion as noted below. There are two notable exceptions to this formulation. Firstly, some jurisdictions (the ACT and Victoria) have moved away from the comparator element because of difficulties it causes, and instead define direct discrimination simply as ‘unfavourable’ treatment because of an attribute (see [34], below). Second, as noted in Chapter 2, drafting of the RDA is distinctively different because it (and the NT Act, which is based on it)4 more closely reflects the underpinning Convention on the Elimination of all forms of Racial Discrimination (CERD) on which its constitutional validity rests. Section 9 RDA provides: 9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

[17]

This provision was adopted before the distinction between direct and indirect discrimination was introduced into Australian law. It refers to ‘purpose or effect’, which on its face could include both forms of discrimination. In relation to direct discrimination, it has no explicit comparator requirement, but refers to ‘purpose’. Sections 11–15 of the RDA, however, contain prohibitions on unequal treatment based on race in specific areas that are closer to a traditional direct discrimination prohibition.

4 See above n 1. The ADANT s 20, like International Labour Organisation Convention No 111 concerning Discrimination in Occupation and Employment (ILO 111) (schedule 1 to the Australian Human Rights Commission Act 1986 (Cth) (AHRCA)), but unlike RDA s 9, refers only to the effect, not the purpose, of the prohibited conduct.

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Unlike other Acts, s 9 combines the definition and prohibition of discrimination. The prohibition is not limited to a particular actor (such as an employer) or field (like work or education). It is imposed on any ‘person’ who has power to nullify or impair another person’s ‘human right or fundamental freedom’ which include the rights listed in art 5 of the underlying convention, the CERD. In these ways, the RDA is much wider in scope than the other Acts. But the prohibition applies only to rights of the kind specified in the Convention, so it does not cover actions that do not affect listed rights. Section 9(1) has been relied on in a number of cases, including Koowarta v BjelkePetersen,5 to invalidate the refusal of a Queensland government minister to transfer a pastoral lease to an Aboriginal organisation, and Baird v State of Queensland,6 in which the Queensland government’s funding of a mission to employ its Indigenous staff at a level that precluded paying non-discriminatory rates of pay was held to be a breach. Most recently, in Vata-Meyer v Commonwealth, it was considered in a case concerning racist comments in the workplace.7

5 [18]

[19]

5.2.1.1 Treated less favourably than comparator This first element of the ‘standard’ definition requires proof that the complainant has been treated less favourably than a comparator who does not have the complainant’s relevant attribute, such as their particular sex, but is otherwise in the same or ‘not materially different’ circumstances. This element clearly requires that the complainant needs to have experienced something adverse, not merely different. The detriment could include being rejected for a job, entry into a school or access to a service, for instance, or even having to work in a hostile working environment because of harassment. In this way, the definition of discrimination links to the prohibitions against discriminating in particular areas such as recruitment, access to education, and provision of goods and services which are outlined in Chapter 6. The comparator must not have the attribute that the complainant argues was the basis of the discrimination. So, for example, a person with a particular disability must identify a comparator who does not have that particular disability or someone that has no disability;8 for a female applicant the comparator could be someone who is male;9 and for someone of Macedonian ‘race’ the comparator would be someone of another ‘race’.10 The choice of comparator can be important. For example, if a person of a minority ethnicity complained of racial discrimination and was compared with the treatment of a person from another minority race, they may not be able to show less favourable treatment, as both groups may face similar problems. Alternatively, if the comparison was with someone from the

[20]

[21]

5 [1982] HCA 27; (1982) 153 CLR 168. 6 [2006] FCAFC 162. Jonathon Hunyor, ‘Human Rights: Landmark decision in Aboriginal wages case’ (2007) 3 Balance: Journal of the Law Society NT 27. 7 [2015] FCAFC 139. 8 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis). 9 For example, for female job applicants the comparator might be male job applicants (see Ansett v Wardley (1984) EOC ¶92–003, 75,260) and for female students, male students (see Haines v Leves (1987) 8 NSWLR 442). 10 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217.

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mainstream group, then less favourable treatment could be established. Implicitly the law intends comparison between the minority and the majority group, but this is not explicitly stated. Importantly, the comparator can be actual or hypothetical.11 Often it is difficult to find an actual comparator in the same circumstances who does not possess the complainant’s attribute. If a small business, for instance, only has three employees and they are all female, it would not be possible to find an actual male comparator. The legislation, however, extends to how a comparator ‘would’ be treated, so the courts have allowed a hypothetical comparator to be used. For example, in Employment Services Australia v Poniatowska12 a woman complained to her employer of sexual harassment in her male-dominated workplace. The employer conducted a cursory investigation into her complaint and dismissed it, with no disciplinary action against the harassers. Instead, she was targeted with several negative performance assessments despite having had excellent reviews until then, and her employment was eventually terminated. The Full Federal Court accepted Poniatowska’s argument that, in having her complaint dismissed and being targeted, she was treated less favourably than a hypothetical male would have been in her situation. The Court could infer that the same approach would not have been taken toward a male complainant. The comparator must be in the ‘same or not materially different circumstances’ and this has posed the most contention, specifically whether the circumstances can include behaviours that relate to the protected attribute itself. Some circumstances have not proven controversial. The comparator for a job applicant would be another applicant, and for an educational issue, another student, for example. Similarly, it would not be controversial for the comparator for a promotion to have the same qualifications or experience, for example. Contention arises when the circumstances are manifestations of the attribute or behaviours that are caused by or relate to the attribute. Especially where a hypothetical comparator is used, comparisons can become quite unrealistic. Early cases suggested that any features related to the attribute involved must be excluded from consideration as part of the circumstances that are similar. For example, in Sullivan v Dept of Defence, Sir Ronald Wilson as President of the Human Rights and Equal Opportunity Commission (HREOC) stated that: It would fatally frustrate the purposes of the Act if the matters which it expressly identifies as constituting unacceptable bases for differential treatment … could be seized upon as rendering the overall circumstances materially different, with the result that the treatment could never be discriminatory within the meaning of the Act.13

This statement was approved and applied in a number of subsequent cases,14 but effectively rejected by the High Court in the case of Purvis v New South Wales.15

11 Purvis (2003) 217 CLR 92. 12 [2010] FCAFC 92. 13 Sullivan v Dept of Defence (1992) EOC ¶92–421, 79,005. (This case is also cited as Dopking v Dept of Defence.) 14 See e.g. IW v Perth (1997) 191 CLR 1, 33 (Toohey J, Gummow J concurring), 67 (Kirby J); Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice (Federation Press, 4th ed, 2012) 37. 15 (2003) 217 CLR 92, [224].

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The Purvis case helps to illustrate this issue and the current judicial approach. A student with multiple disabilities was expelled from a school because of ongoing anti-social and aggressive behaviour. This behaviour was a manifestation of his disability, an acquired brain injury. The student, Daniel, brought a claim of direct discrimination under the federal Disability Discrimination Act 1992 (DDA) which, at the time, had a fairly standard definition of direct discrimination: less favourable treatment than a comparator in the same circumstances because of disability. He argued that in being expelled because of his behaviour he had been treated less favourably than non-disabled students because of his disability. The Court accepted that the claimant’s behaviour was a manifestation of his disability16 and therefore part of the attribute of ‘disability’ under the Act. Despite this broad interpretation of the attribute, the question of different treatment turned on what ‘circumstances’ were attributed to the comparator: with whom should the student be compared – a non-disabled student who was well behaved or one who shared the same behavioural problems? These alternatives signal two different approaches to direct discrimination. If the student is compared with a non-disabled student who is well-behaved, the emphasis will be on protecting the disabled student. If, however, the comparison is with a non-disabled student who has the same behaviours as are caused by the disability, then in effect virtually no protection is provided to the student under these provisions. In the latter case the student will be given only formal equality, being treated according to a standard of behaviour that reflects the majority or dominant norm of non-disabled students. Such a comparator would have no connection with reality; it is completely artificial to imagine that any student without a disability would behave persistently in the same ways as the student with the protected characteristic of this disability. In Purvis, the High Court chose the second formulation of the comparator and found that the school had not directly discriminated because it treated the disabled student the same as it would treat non-disabled students who behaved the same way. The majority explained its reasoning in this way:

5 [25]

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[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the ‘discriminator’. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability … All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.17

This decision has significant implications for the scope of protection afforded by direct discrimination provisions.18 While the Court did not prescribe which circumstances must

[27]

16 Purvis (2003) 217 CLR 92. 17 Purvis (2003) 217 CLR 92 (Gummow, Hayne and Heydon JJ). 18 See Belinda Smith, ‘From Wardley to Purvis: How far has Australian anti-discrimination law come in 30 years?’ (2008) 21(1) Australian Journal of Labour Law 3.

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be attributed to the comparator, it makes clear that all the circumstances must be considered and can be attributed to the comparator, even behaviour that arose from the attribute. Fundamentally this means that on their narrowest interpretation the direct discrimination provisions demand only consistency of treatment and nothing more: duty bearers, such as employers and education providers, must avoid categorical exclusions, stereotyping or assumptions, but only need to treat like behaviours alike even where someone’s behaviour is a manifestation (or characteristic) of a protected attribute, even when they are aware of this. Under this narrow interpretation, the manifestations of Daniel’s disability were separated from the status of having a disability. A second implication of this narrow approach is that duty bearers, such as employers, are not required by the direct discrimination provisions to make any special accommodations to enable equal participation or enjoyment of rights. In this way the decision is contrary to earlier decisions that suggested an employer had a responsibility to inquire of its employees whether there was a reason for a sudden change of behaviour that creates difficulties at work and leads eventually to termination of employment.19 A related question is whether employers are obliged to inquire about the reason or cause of a person’s behaviour. If the employer does not know an employee is pregnant or has family responsibilities, for instance, it is not clear whether they have any obligation to find out. Reviewing the example above of Mary arriving late for work because of morning sickness, under this approach to direct discrimination, the employer would not be required by the direct discrimination provisions to provide accommodation in respect of her pregnancyrelated condition, or even to inquire about the cause of her lateness. If applied with full force, this approach would narrowly limit direct discrimination to wrongs of blanket exclusion, assumptions and stereotypes. While these kinds of discrimination are not uncommon, particularly as effects of unconscious bias noted below, it is still clear that the Purvis precedent has substantially limited the scope of direct discrimination protections. This approach means that the traditional definition of direct discrimination no longer covers decisions based on actual behaviours, even when these are unavoidable manifestations of an attribute. Many scenarios which previously might have been understood as direct discrimination, because they were decisions based on behaviours that were manifestations of a protected attribute, may no longer breach the formal equality mandate of treating likes alike. Daniel in Purvis was to be treated the same as any other student who behaved outside the accepted norm; Mary, the pregnant employee in our example above would not be directly discriminated against if the employer treated her in the same way as others who were late and thus non-conforming in that workplace. This prevents any challenge to the inherent or underlying bias of a particular standard that reflects a norm or ‘benchmark man’20 through the direct discrimination provisions. The High Court’s interpretation has focused these provisions on a more limited array of wrongs – blanket exclusions, assumptions and stereotyping. 19 X v McHugh (1994) 56 IR 248 (which was relied on by the Full Federal Court in Purvis). A similar tension arises under the FWA adverse action provision, where an initial decision that an employer should have connected erratic workplace behaviour with the onset of depression was overturned on appeal: State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184. 20 Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990).

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The only mechanism available to challenge the standard itself – the behaviour code, punctuality criterion, or otherwise – rather than merely its consistent application, would be the indirect discrimination provisions. In Purvis, the DDA did not have a defence that would allow a school to exclude a student because accommodating their disability would amount to an ‘unjustifiable hardship’, so there was no capacity for the court to assess the school’s efforts to accommodate Daniel’s needs.21 Several legislative changes were made to the DDA in the wake of Purvis, including inserting broader defences of unjustifiable hardship (ss 21B, 29A), and an explicit obligation to make reasonable adjustments, discussed below at 5.3. As a result, the Purvis approach to constructing a comparator for direct discrimination is no longer applicable to claims under the DDA, but it remains authoritative for other legislation that constructs the test for direct discrimination similarly, whether a hypothetical or real comparator is used. The narrow approach to direct discrimination developed in Purvis, which permits the comparator to include manifestations of the victim’s circumstances, has been applied even when the legislation suggests a wider approach. The SDA direct discrimination provisions are all expressed to cover not only the status of a particular sex but also characteristics ‘appertaining generally’ or ‘generally imputed’, a formulation that does not appear in the DDA. This formulation also appears in the Age Discrimination Act (ADA) and many state and territory laws. As discussed in Chapter 4, this wording suggests that characteristics generally appertaining to an attribute form part of the protected attribute and are thus not to be separated out from it and attributed to the comparator. However, the courts have often taken a similar approach to the High Court in Purvis. In Thomson v Orica,22 for instance, while the judge recognised that taking maternity leave amounted to a characteristic that appertains generally to pregnancy, this characteristic of taking leave was also treated as a circumstance that was attributed to the comparator. So, Thomson, who had been demoted upon return from maternity leave and claimed direct pregnancy discrimination, was compared with a non-pregnant fellow employee who had also taken extended leave and had a right to return.23 Despite acknowledging that Thomson’s leave was because of pregnancy, the Federal Court framed the test as one merely of consistent treatment of her and others who had taken extended leave, disregarding the reason (pregnancy, the protected attribute) for her leave. However, the court nevertheless found that maternity leave was one reason for her demotion, based on evidence of her manager’s comments, so her claim succeeded. This element of ‘less favourable treatment than a comparator’ was originally developed in the US merely as one possible mechanism for establishing causation, by controlling the other variables. However, through a quirk of drafting it has been embedded in most Australian

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21 Kate Rattigan, ‘Purvis v New South Wales: A case for amending the Disability Discrimination Act 1992’ (2004) 28 Melbourne University Law Review 532. 22 Thomson v Orica Australia Pty Ltd [2002] FCA 939. 23 Ibid [121]–[122], [157], and at Chapter 4, n 100. See application, e.g. Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960; Poppy v Service to Youth Council (2014) 317 ALR 195. For the application and implications of Purvis, see also Smith, above n 18. See also Commonwealth v HREOC (1993) 46 FCR 191 2004–5 (Lockhart J), 211 (Wilcox J); Commonwealth v Evans [2004] FCA 654, [71] (Branson J).

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Acts as a separate essential element.24 The most recent legislative amendments in Victoria and the ACT dispense with it as an essential element of a direct discrimination claim, allowing the possibility of other methods of showing that the treatment was because of the protected attribute or its characteristics. The alternative formulation of direct discrimination used in the ACT and Victoria provides that ‘direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute’.25 This has the potential to lead to a wider interpretation by avoiding the Purvis approach. Using a comparator becomes just one way to prove less favourable treatment and the reason for it, but alternative methods can be used. Unfavourable treatment based on an attribute merely requires proof of negative or detrimental action and does not require evidence of how a comparator has been or would be treated. The challenge in this definition is to establish that the attribute (including manifestations) was the reason for the treatment. The characteristics extensions continue to apply to all attributes. Where, for example, behaviour that is an intrinsic part of an attribute leads to consequences, then unfavourable treatment because of that manifestation of the attribute will be established. Unless an exception of some sort applies, discrimination will be established. For example, in Slattery v Manningham City Council26 a resident with a mental illness was refused entry to council premises as a result of the volume and nature of his complaints. His complaint of disability discrimination was upheld; it was clear that the ban was because of the behaviour resulting from his disability, which is itself part of the disability. Following the leading ACT case of Re Prezzi v Discrimination Commissioner and Quest Group,27 the tribunal held that it was not necessary to use a comparator. Finally there is the question of whether different treatment is always discriminatory, or whether it is only wrong if it reinforces disadvantage. Should measures that are designed to promote equality be treated as discrimination at all? A substantive equality approach to defining discrimination always looks beyond form and requires the purpose or goal of a measure to be examined. The Australian laws vary: older versions provide an exception (or defence) for special measures to achieve equality, while more recent formulations provide that special measures are not discrimination at all (discussed in Chapter 8).

5.2.1.2 By reason of an attribute [37]

Turning to the second element of direct discrimination, often confusingly called ‘causation’, generally the claimant must prove that the attribute was at least one of the reasons for the duty bearer’s conduct.28 Again, different terminology is used across Australian legislation

24 See Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law (Federation Press, 2nd ed, 2014). 25 Equal Opportunity Act 2010 (Vic) (EOAV) s 8(1). 26 [2013] VCAT 1869. The Council had also failed to provide reasonable adjustments, and breached Slattery’s rights under the Victorian Charter. 27 (1996) 39 ALD 729. 28 For a decision to be unlawful in Queensland, SA and Victoria, the discriminatory reason must be a substantial reason for the treatment. In all other jurisdictions it need only be one of the reasons, not the sole or even dominant reason.

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with some Acts requiring treatment to be ‘because of’ an attribute while other Acts use the expression ‘on the basis of’, ‘on the ground of’ or ‘by reason of’. All these terms are regarded as having the same meaning, with the exception of the RDA, where the phrase ‘based on’ in s 9(1) has been held to encompass ‘“by reference to” rather than the more limited meaning of “by reason of”’.29 Firstly, although it is often referred to as ‘causation’, this element is not about causation as it is understood in torts, where the question relates to consequences of the tortious act, such as whether the damage was caused by the breach of duty. In tort, causation relates to damage, not to the breach of duty. By contrast in direct discrimination, it concerns the reason for a decision or action and is an essential element of the claim. So, for example, an employer’s action in refusing to hire someone may cause that person to experience some disappointment because they were not hired, but the focus of the inquiry for this element of direct discrimination is the reason of the decision maker in not selecting her, not the consequences of that decision. To avoid confusion, this issue is best considered in terms of what types of reasons are unlawful, and how the reason for an action can be proved. Together, these determine the scope of the prohibition on direct discrimination. It is often said that intention or motive need not be proven, simply that the attribute was the ‘true basis’ for the decision.30 The High Court in Purvis stated:

5 [38]

[39]

[T]he central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.31

All relevant circumstances surrounding the conduct are to be considered. This may include motivation, intention or purpose, but it is not limited to the conscious state of mind of the alleged discriminator.32 Many anti-discrimination laws provide expressly that motive is irrelevant to discrimination,33 making clear that a finding as to subjective motive cannot be used as a substitute for an assessment of what was the reason for the decision or action in question. For a number of reasons it is not always easy to identify or prove whether treatment is ‘because of’ an attribute. Firstly, the reason can be obscured by the good or benign motivation of a decision maker. While the common understanding of discrimination might require a malicious motive, the law does not, as noted above.

[40]

29 Macedonian Teachers Association of Victoria Inc v HREOC [1998] FCA 1650 (Weinberg J); affirmed by the Full Federal Court in Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287. 30 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 (Banovic), 176–7 (Deane and Gaudron JJ), 184 (Dawson J), 208 (McHugh J); Waters (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J), 400 (McHugh J). 31 Purvis (2003) 217 CLR 92, [236] (Gummow, Hayne and Heydon JJ). 32 HREOC v Mount Isa Mines (1993) 46 FCR 301, 321–2 (Lockhart J); Banovic (1989) 168 CLR 165, considering the Anti-Discrimination Act 1977 (NSW); Waters (1991) 173 CLR 349, considering the Equal Opportunity Act 1984 (Vic); Wilson (1996) 68 FCR 46, 74. 33 E.g. EOAV s 10.

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Secondly, tribunals and courts have shown a notable willingness to dissociate immediate from more remote causes, without having stated any test for doing so. For example, where an employment decision was explained as based on a poor interview by the candidate, no discrimination was held to have occurred, even if the poor interview was prompted by discriminatory questions that had been asked at the outset that confused and unsettled the applicant. In University of Ballarat v Bridges, although the tribunal had found there was discrimination based on job interview questions, the Court set this aside, holding that the reason for her non-appointment was not her parental status but her poor interview performance, which was not a ground prohibited by the Act.34 In another case, even where a challenged decision was based on an error (that could potentially be discriminatory), it was held not to meet the statutory requirements, as the tribunal looked only at the immediate reason.35 The High Court has taken a similar approach to identifying reasons under the FWA (see Chapter 9, at 9.3.3.2). This narrow and mechanical approach relies on grammatical or syntactical interpretation of the statutory wording, and fails to address the issue of how broadly protection should go in light of the Act’s purpose. Third, there can be more than one reason for any action. The laws make clear that the protected attribute generally needs only to be one of the reasons for a decision. When there are additional bases for a decision, however, the discriminatory one can be obscured. The test of causation in Australia is not as high as a ‘but for’ test; proof of other factors does not absolve the decision maker for using an attribute illegitimately. So, refusing to lease a property to an applicant because of racial prejudice would not be saved by an additional concern, legitimately based on rental history, that the applicant might be unable to pay the rent. However, the courts’ tendency to discuss reasons in term of the ‘true basis’ of an action tends to negate the statutory recognition that multiple factors are likely to influence actions. A fourth difficulty reflects a conundrum in seeking to address discrimination through law. With the enactment of anti-discrimination laws as a public policy statement that discrimination is wrong, and increased awareness of the perniciousness of discrimination, people are less likely to express prejudice blatantly. The decision maker may simply provide selfserving evidence of reason. This might be because of increased awareness that it is wrong and most people want to do the right thing, or because managers are being trained not to express openly the basis of decision making. While the result is a more civil society because harmful speech is curbed, prejudicial views to some extent have been driven underground rather than changed. Without open discussion of the basis of different treatment, it will be difficult for any individual victim of discrimination to prove their case. More importantly, our society has less capacity to address discrimination if we cannot discuss it openly.36 Finally, changing norms about discrimination and equality also mean that people are less likely to use an attribute consciously, but even making unconscious assumptions or drawing

34 University of Ballarat v Bridges [1995] 2 VR 418. 35 Duncan v Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78: despite an error in determining an Aboriginal man was not entitled to redeployment, the refusal of the position was based on the error, not a protected attribute, so the discrimination claim failed. 36 David Kairys, ‘Unconscious Racism’ (2011) 83(4) Temple Law Review 857, 860–61; Chapter 4, [55].

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on stereotypes can satisfy the reason test. The decision maker may be unaware of their motivating factors, particularly if they are relying on a stereotype or a discriminatory approach that is socially disapproved of and may be repressed rather than admitted. Awareness of the prevalence and problem of unconscious bias is attracting corporate attention. Efforts to address unconscious bias are likely to be driven not by the risk of litigation, which is low in Australia (cf Chapter 7), but by an understanding that such bias can undermine productivity, exclude clients and limit recruitment options. This risk of finding someone liable for unconscious bias is quite low because proving the reason for conduct is entirely up to the claimant in Australia and evidence would be difficult to muster. Courts have been very reluctant to assess the decision makers’ actions on the basis of the context and other circumstances of the case.37 For example, a lawyer of Indian origin was unsuccessful in gaining several positions with a legal aid organisation that had few staff of minority ethnic background, but the court held that it was not possible for it to infer racial discrimination in the absence of some actual evidence of race being taken into account.38 Courts in Australia have insisted that they cannot infer discrimination from the circumstances of the case and require an overt piece of evidence to do this. By contrast, all comparable countries provide a mechanism that shifts the onus of proof to the respondent to provide some evidence of non-discriminatory reasons once a prima facie case has been raised (see Chapter 7). Being civil litigation, the standard of proof in discrimination litigation is the usual ‘balance of probabilities’.39 Some confusion has been expressed over the years about whether discrimination cases applied a higher standard or required stronger evidence according to the test in Briginshaw v Briginshaw,40 in which the High Court held that the level of proof required in civil litigation is proportionate to the seriousness of the issue to be proved. In a number of discrimination cases, it was held that discrimination was a serious allegation and a higher standard of proof would be required, making the claim more difficult to prove.41 This issue has been clarified, with the Full Federal Court making it clear that Briginshaw does not refer to a higher standard of proof in civil matters than the balance of probabilities but refers instead to the nature of the evidence that can be relied on to establish the matter. The Court held that the usual rules of evidence apply and that instead of the common law position, s 140 of the Evidence Act 1995 (Cth) now sets out the correct approach.42 This section requires courts, when deciding whether something has been proven, to consider the gravity of the matters alleged, the nature of the cause of action or defence, and the subject matter of the proceeding. Where an allegation has serious consequences, better evidence might be needed but the standard of proof does not vary. The court may also consider the inherent unlikelihood of something having occurred.43 In addition, allegations of discrimination are not always very serious allegations requiring evidence of corresponding weight.

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[45]

Cf Victoria v McKenna [1999] VSC 310, [42] (Smith J). Sharma v Legal Aid (Qld) [2002] FCAFC 196 (Sharma). Evidence Act 1995 (Cth) s 140(1). (1938) 60 CLR 336. See e.g. Sharma [2002] FCAFC 196 [40]. Qantas Airways Ltd v Gama [2008] FCAFC 69 (Gama), [139] (Branson J) (French and Jacobson JJ agreed). 43 Gama [2008] FCAFC 69, [138].

37 38 39 40 41 42

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In many contexts, they could be regarded as more like allegations of breach of a duty of reasonable care in tort law, which are not seen as morally culpable but as the result of lack of information, training or resources.44 As already noted, special measures provisions will ‘exempt’ different treatment if it satisfies the test of promoting substantive equality and being temporary (see Chapter 8).

5.2.2 Indirect discrimination [47]

[48]

[49]

As explained above, the focus of indirect discrimination is not on whether there has been different treatment by reason of an attribute, but whether there has been a different impact on members of an attribute group. The first part of the inquiry is whether an apparently neutral criterion or requirement in practice actually impacts particular groups disproportionately. If this disparate impact can be identified, attention then turns to the question of whether use of the criterion or requirement is justifiable. Requirements or criteria are common in every realm of life. We use criteria to choose between job candidates; allocate health resources; grade student assignments; determine eligibility for visas, loans, insurance, and concessional bus travel; and approve mining licences, building developments and tax deductions. Such criteria are designed to distinguish between potential beneficiaries or projects for various reasons, including safety, fairness, profitability and other public policy reasons. As discussed in Chapter 1, formal equality prescribes that likes should be treated alike, but does not answer the question: ‘like’ in what way? Although anti-discrimination laws preclude the use of the protected attributes to classify, many other criteria correlate, strongly or weakly, with protected attributes so that even criteria that appear neutral on their face can have a disproportionate impact on particular attribute groups. A simple example is a height requirement, which tends to correlate with sex, and even race and some disabilities. Requiring a high level of educational achievement in recruitment, for example, will correlate with some racial groups who experience disadvantage in education, such as African-Americans and Indigenous Australians. A criterion that appears neutral can facilitate very similar decisions to those based on prohibited attributes, with or without this being the intention. Recognition that the impact of this type of facially neutral rule could also amount to discrimination was a significant development in discrimination law in the case of Griggs v Duke Power,45 discussed in Chapter 2. Indirect discrimination operates to ensure that direct discrimination cannot occur covertly through use of proxy requirements. It also has a wider role in requiring assessment of the discriminatory impact of requirements or practices against a standard of justification. It is important to note the inclusion of a ‘justification’ defence in the definition of indirect discrimination – a defence that is not available for direct discrimination. If requirements with a disproportionate impact on an attribute group were simply prohibited, then there would be no limiting principle. This would be politically unacceptable and practically impossible, because it would make unlawful many of the classifications we need to use. The justification defence allows for the undesirable impact of a rule to be assessed against the goal sought 44 Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 (Full Court). 45 Griggs v Duke Power Co, 401 US 424 (1971).

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and alternative ways of achieving it. It allows for values other than equality to be considered, enabling a contextual assessment of the ends being achieved by the requirement, and exploration of alternative means. The disparate impact test can be expressed widely to prompt scrutiny of a great range of rules and requirements, only because it is then restricted by the justification defence. The open-textured nature of the test of justification allows for normative change, but how much change it prompts will in part depend on the nature of the justification test and what competing values are allowed to justify conditions that inhibit equality. If the threshold is too low, there will be little pressure for changing rules and conditions that marginalise the disadvantaged and impede equality. So, for instance, if a condition could be justified because a less discriminatory alternative would impose a small cost on a business, the message would be that business bears no responsibility for identifying and rectifying equality barriers. A test of ‘business necessity’ or ‘reasonableness’ demands some sharing of the burden, as explored below. In summary, the role of ‘indirect discrimination’ is to challenge apparently neutral requirements or conditions that disproportionately exclude or disadvantage those who possess a protected attribute. Once such a requirement is identified, the next question is whether the requirement is justifiable. The justification test in Australia asks whether the requirement or condition is ‘reasonable’ in all the circumstances. There are significant variations in the way indirect discrimination is defined in Australian legislation, so the specific legislation needs to be examined to determine the specific obligations and protections. However, virtually all definitions require (a) that a condition, requirement or practice be imposed, (b) that it has a disadvantaging effect or a disproportionate impact on people with a protected attribute, and (c) that the requirement or condition is not ‘reasonable’. (The RDA’s different provision is discussed below.) The SDA provides an example of how the definition is drafted for indirect sex discrimination:

5 [50]

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5(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person. (3) This section has effect subject to sections 7B [which provides reasonableness as a defence] and 7D [which excludes special measures].

5.2.2.1 Condition or requirement The first element of indirect discrimination is that a requirement, condition or practice be imposed or proposed. It can be explicit or implicit,46 which means that it need not be articulated expressly or in writing. It must be apparently neutral, which means that it does not make reference to any specific attribute on its face. Examples include requirements to:

[53]

46 Waters (1991) 173 CLR 349, 360 (Mason CJ and Gaudron J), citing Banovic (1989) 168 CLR 165.

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• Work full-time, long hours, night shifts or on Sundays; • Have specific qualifications, training or experience; • Be able to walk up stairs, drive a car, or stand all day; • Comply with a behavioural code of conduct; • Participate in client entertainment functions or travel outside regular work hours. [54]

Traditionally this element has been interpreted widely, although courts have insisted that it be framed with some precision.47 In the latest indirect discrimination case to be decided by the High Court, New South Wales v Amery48 in 2004, this element was interpreted very narrowly, contrary to precedent. While this reflects a conservative approach by the Court that may limit future claims, the precedent itself can generally be distinguished on its facts. The claim of indirect discrimination in pay was brought by a number of New South Wales teachers who worked as ‘supply casuals’, which meant that they taught in schools for a term or more, doing the same work as their colleagues who were employed in ‘permanent’ or ongoing positions. Women were a much higher proportion of the supply casuals than permanent teachers, as they had had to resign their permanent positions when they had children because they could not meet the criterion for permanency of being able to be deployed anywhere in the state. The Department used two pay scales for teachers, one for permanents and a lower one for all casuals. The teachers argued that by paying the casuals less, the Department was imposing a requirement to be permanent in order to access the higher salary scale, which disproportionately affected women teachers. The Court rejected the claim, concluding that the two categories were distinct job categories rather than one job to which a requirement for permanency had been applied. The Court relied on a distinction between the categories that had been established in legislation, but did not require different pay scales, and ignored the NSW government’s discretion in setting conditions for each of these categories.

5.2.2.2 Disproportionate impact/effect of disadvantaging [55]

This element of disproportionate impact is worded quite differently across statutes. The old formulation, which has now been abandoned in federal and some state legislation,49 required the claimant to prove that a ‘substantially higher proportion’ of people without the complainant’s attribute could comply with the requirement or condition. This wording has caused considerable confusion and difficulty for complainants. This formulation, still used in NSW, WA, SA and Qld, requires a comparison of compliance rates. There are a number of steps in the process. Firstly a base pool needs to be identified on which the requirement or condition has been imposed. This might be the whole class, all job applicants, or employees in the particular unit subjected to the requirement, for example. Then fractions or proportions, not merely absolute numbers, need to be compared to demonstrate compliance rates of those with the attribute and those without the attribute.50 A substantially different compliance

47 48 49 50

Banovic (1989) 168 CLR 165, 185. (2006) 230 CLR 174. Victoria, Tasmania and the ACT. See Appendices. Banovic (1989) 168 CLR 165 at 186–9 (Dawson J).

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rate needs to be shown, but there is little guidance on what constitutes ‘substantial’. This drafting puts the emphasis on obtaining statistics and doing calculations, which in an early case occupied the High Court.51 However, courts and tribunals have recognised the difficulties of this approach and allowed general social science data to be presented from which an inference could be drawn.52 Of course in some cases, such as the impact of stairs on wheelchair users, this element might not be contested. The difficulties posed by this formulation prompted reforms in a number of jurisdictions. All the federal Acts except the RDA, and the laws in Victoria, the ACT and Tasmania now use wording akin to the SDA excerpted above, which requires proof that the requirement or condition has the ‘effect of disadvantaging’ the complainant’s attribute group. While statistical calculations could still be used, the more qualitative term of ‘disadvantaging’ has allowed for a wider array of evidence about impact, and the courts have even taken judicial notice of disadvantage. Examples of this include a string of indirect sex discrimination cases in which judicial notice was taken that the requirement to work full-time hours has the effect of disadvantaging women, at least those with young children (because women disproportionately bear child caring responsibilities).53 The ‘effect’ requirement in the RDA is quite different, as it is drawn from the CERD. Originally it was thought that s 9(1) was sufficient to cover both direct and indirect discrimination, because it refers to distinctions that have a discriminatory ‘purpose or effect’. Its effects limb is not qualified by a test of reasonableness. However, as it was virtually unused for indirect discrimination, s 9(1A) was adopted in 1991 to clarify indirect discrimination under the Act. Paragraph 9(1A)(c) provides that a requirement having the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, … of any human right or fundamental freedom’ is to be treated as if it was an act in breach of s 9(1). This element is broader but less formulaic than other laws, but has also been little used.54

5 [56]

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5.2.2.3 Inability to comply Some Acts, but not all, also require proof that the complainant does not or cannot comply with the requirement or condition. This is generally implicit: if they could comply, there might be little reason to complain; they would have difficulty proving any harm or loss, so in most cases this element is redundant and thus not controversial. In addition, it has not generally posed a problem for complainants because it has been interpreted practically rather than theoretically,55 following the UK case of Mandla v Dowell Lee,56 in which a Sikh boy argued that he could not comply with a ‘no hat’ school rule because of his turban. The court held that while the boy could theoretically remove his turban to attend school,

[58]

51 Banovic (1989) 168 CLR 165. 52 See Rosemary Hunter, Indirect Discrimination in the Workplace (Federation Press, 1992) ch 13. 53 Hickie v Hunt & Hunt (1998) EOC ¶92–910; Escobar v Rainbow Printing Pty Ltd [2002] FMCA 22; Mayer v ANSTO [2003] FMCA 209. 54 See e.g. Australian Medical Council v Wilson (1996) 68 FCR 46; AHRC, Federal Discrimination Law Online (2011) ch 3. 55 AMC v Wilson (1996) 68 FCR 46, 80 (Sackville J) (see also Heerey J, 62, with whom Black CJ agreed, 47). 56 [1983] 2 AC 548.

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the interpretation should instead be a practical one. This approach reflects a substantive rather than merely formal conception of equality. A similar approach is evident in respect of carer’s responsibilities. While someone with such responsibilities might theoretically be able to comply with a requirement to work full-time by arranging alternative care, they are not expected to; the attribute of having carer’s responsibilities manifests in personally performing them. Under the DDA, the Full Federal Court has approached the element by asking whether the complainant would suffer ‘serious disadvantage’ even if they could comply.57 So a deaf student who could ‘cope’ with instruction in English was still able to prove that she could not comply with a requirement to be taught without Auslan assistance because she suffered serious disadvantage in educational terms of not being able to achieve her full potential. Matters of practicality and dignity are also to be considered.58

5.2.2.4 Reasonableness [60]

[61]

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As noted above, requirements or conditions that disproportionately impact on protected attribute groups will only be unlawful if they are not ‘reasonable’. This test leaves a large measure of discretion to courts and tribunals. In older Acts, including the RDA and the NSW Act, the onus is on the complainant to prove that the requirement or condition is not reasonable. In recognition of how misplaced and onerous this burden was, the other three federal Acts and a number of state and territory Acts instead require the respondent to establish reasonableness as a defence.59 Whether the reasonableness defence is made out is a question of fact for the court to decide.60 There has been great variation in what courts have accepted as a justification under the ‘reasonableness’ standard. In an early case, it was held reasonable because administratively fair to exclude the only woman from a group of applicants for promotion, by restricting it to people appointed one substantive level below, because she was only acting at that level.61 When a bank restructured its business and did not allow staff on maternity or parental leave to apply for redundancy or for the spilled positions, this was initially held to be unreasonable, but the appeal court disagreed, holding it was reasonable in all the circumstances.62 The court noted that reasonableness is to be determined having regard to all the circumstances of the case, including the nature and existence of the discriminatory effect and the possibility of alternatives. Some courts interpreted the old formulations to require a focus on the reasonableness of the requirement or condition per se, rather than an assessment of its reasonableness in the broader context of what it was designed to achieve, weighed against the impact on the

57 Hurst v Queensland (2006) 151 FCR 562 [134]. 58 Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2004] FMCA 915 (Access for All), [9]; Travers v New South Wales (2001) 163 FLR 99. 59 SDA ss 7B, 7C; ADA s 15(2); DDA ss 6(3), (4). 60 Waters v Public Transport Corporation (1991) 173 CLR 349. 61 Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251 (Styles). 62 Commonwealth Bank of Australia v HREOC (1997) 80 FCR 78 (Full Court) (the Finance Sector Union case). Sackville J summarised the law on the reasonableness test at 110–13.

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complainant and others excluded by it.63 For many Acts this has now been clarified by the addition of a list of factors that courts must consider in assessing reasonableness. The SDA, although oddly not the other federal Acts, contains such a list:64 7B(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include: (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and (b) the feasibility of overcoming or mitigating the disadvantage; and (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice. The list reflects some of the jurisprudence on the question of reasonableness. It allows for assessment of both the aims of the requirement and the means chosen to achieve those aims, looking at what the duty bearer is trying to achieve, and whether the requirement or condition is an appropriate means of achieving it. In some jurisdictions overseas, including the UK,65 this assessment of the ends and means has been made explicit, as a test for requirements to be ‘legitimate and proportionate’. The vocabulary of ‘legitimate and proportionate’ was developed first in the context of assessing the constitutional validity of legislation that restricts human rights,66 where the aims are government policies and the assessment is relatively restrictive. Translating that test to the context of anti-discrimination law requires caution about what is a legitimate aim: for example, what level of need for a business to reorganise part or whole of its staff or procedures, or to otherwise reduce costs, can be regarded as legitimate when its effect may be to treat people in protected groups disadvantageously. While the legitimate and proportionate test is not explicit in the Australian legislative framework, the courts have interpreted the ‘reasonableness’ test in a similar way although not always clearly. This is facilitated by laws that include a list of factors similar to the SDA. So, the courts will consider the reason why the requirement has been imposed or what is the ‘result sought’, asking whether it is for the purpose of achieving a legitimate business goal, for example.67 Apart from clearly illegitimate aims, such as excluding women or people with disability, there is little explicit and close scrutiny of aims. But courts will consider more closely whether the means of achieving the goal through the requirement or condition is efficient, effective, appropriate and adapted to the activity, and whether there is a less discriminatory alternative way of achieving the goal that would not impose excessive hardship on the the duty bearer.68 The disadvantage must not be disproportionate, and alternatives must be considered, which means that some accommodation is implied.

[63]

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Victoria v Schou [2004] VSCA 71; [2001] VSC 321. Lists are also provided in the Queensland, ACT and Victorian legislation. Equality Act 2010 (UK) s 19(2). See discussion in Chapter 10. This is not as strict as the United States’ requirement of ‘business necessity’: see s 703, Civil Rights Act of 1964 (US) 42 USC § 2000e-2(k)(1)(A)(i). 68 Waters (1991) 173 CLR 349, 378 (Brennan J). See also Styles (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J).

63 64 65 66 67

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The circumstances of the particular case need to be considered. Factors that might be relevant in determining reasonableness in a workplace include: competing demands such as work health and safety concerns; efficiency in management; maintenance of good industrial relations through clear and consistent decision making; the financial situation of the respondent; and cost of alternative measures or accommodations.69 Factors in an educational setting might include pedagogical concerns, the needs of other students, fairness in assessment procedures, and resources available. The test is objective, so subjective preferences are not determinative.70 It has been said that ‘the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience’.71 In essence the indirect discrimination obligation is to ensure that any requirements that duty bearers impose are rationally connected to legitimate goals and that, if they do disproportionately impact on particular groups, the duty bearers consider whether there are feasible alternative ways of achieving the same goal by changing the requirement or allowing some accommodation. The relevance of accommodation is made explicit in s 9(3) the EOAV, which contains a list of factors to be considered in assessing reasonableness similar to the list in the SDA, with the added factors of the cost of any alternative requirement, condition or practice, the financial resources of the person imposing it, and also ‘whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused’, including the availability of a less restrictive way of achieving the goal with less disadvantage. In effect, in Victoria, reasonable adjustments are part of assessing reasonableness in every indirect discrimination claim based on any attribute, not just disability. Reasonableness in indirect discrimination is thus linked explicitly to reasonable adjustments or accommodation. Duty bearers must consider whether they can ameliorate the disadvantage their requirement creates as part of assessing its reasonableness. An example of how ends and means can be examined could be a requirement that a job applicant have a driver’s licence. It would disproportionately impact on people who are visually impaired. The requirement would not be reasonable if it was imposed as a facially neutral rule but with the aim of screening out people with a disability, because this is not a legitimate aim. Nor would it be reasonable if the purpose of the requirement was merely for identification; while identification might be a legitimate aim, other less discriminatory means of identification are readily available. A less discriminatory and reasonable requirement would be ‘to provide identification’ and allow alternative forms to be used, including a licence, passport or other authorised identification card. On the other hand, requiring a licence for a bus driver’s job would be reasonable, as the aim is a legitimate one of ensuring that an employee is qualified and legally permitted to do the job of driving, and providing a valid licence is the only means of establishing this. Whether a prohibition on indirect discrimination will promote substantive equality depends in part on how each of the elements is drafted. A more substantive approach will

69 Waters (1991) 173 CLR 349, 395–6 (Dawson and Toohey JJ). 70 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78, 110–11 (Sackville J). 71 Styles (1989) 23 FCR 251, 263 (Bowen CJ and Gummow J).

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enable a wide range of rules and conditions to be challenged, will allow for disparate impact to be recognised by judicial notice or proven by a variety of means, not merely precise statistical evidence, and will include a test of justification that does not merely accept the status quo but imposes some burden on employers and other organisations to reduce the exclusionary impact of their practices.

5.3 Reasonable adjustments Many scholars have argued that substantive equality requires more than merely nondiscrimination; it requires adjustments and accommodation of differences. Beverley McLachlin, (now) Chief Justice of the Supreme Court of Canada, for example, states the case for accommodation:

[70]

Diverse societies face two choices. They can choose the route of no accommodation where those with power set the agenda and the majority rules prevail. The result is the exclusion of some people from useful endeavours on irrelevant, stereotypical grounds and the denial of individual dignity and worth … The other route is the route of reasonable accommodation. It starts from the premise of each individual’s worth and dignity and entitlement to equal treatment and benefit. It operates by requiring that the powerful and the majority adapt their own rules and practices, within the limits of reason and short of undue hardship, to permit realization of these ends.72

Such accommodation can be prompted by a legal obligation to provide ‘reasonable adjustments’ or accommodation. Such an obligation moderates the artificial distinction between direct and indirect discrimination. The strictly formal approach taken in Purvis restricted direct discrimination to ‘same treatment’ and allowed behaviours to be taken into account in determining who is alike. Under this approach an employee, for instance, who is suffering chronic fatigue syndrome73 which makes it difficult to attend work punctually every day, need only be treated the same as the employee who is late for reasons not associated with a disability, such as laziness, disorganisation or a tendency to stay out late each night. These two employees are alike in terms of their outward behaviour and thus could be treated alike under a strict formal equality approach. If the employee with this syndrome was disciplined for lateness, she could only challenge this by using an indirect discrimination approach, arguing that a strict punctuality requirement disadvantages people with her disability. However, when there is a duty to provide reasonable adjustments, treating behaviours alike is no longer enough; those with a protected attribute are to be provided with adjustments to enable equal opportunity. The connection between an attribute and its manifestations cannot be ignored.

[71]

72 Madam Justice Beverley McLachlin, ‘Reasonable Accommodation in a Multicultural Society’ (Address to the Canadian Bar Association Continuing Legal Education Committee and National Constitutional and Human Rights Section, Calgary, Alberta, 7 April 1995). 73 This is the common name for myalgic encephalomyelitis.

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There are different ways in which such an obligation can be imposed. It can be included as a stand-alone obligation or embedded in the definitions of direct or indirect discrimination. The DDA was the first federal Act to include such an obligation explicitly, when the definitions of disability discrimination were amended in 2009 to include reasonable adjustments. This fundamentally changes the scope of the direct discrimination provisions. Section 5(2) extends direct discrimination to the case where: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

[73]

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As the term suggests, ‘reasonable’ adjustments are those that balance the costs and benefits of providing adjustments for employers, employees and other affected people. An adjustment is defined as reasonable if it does not impose an ‘unjustifiable hardship’ on the provider,74 with relevant factors listed in s 11 of the Act. While the High Court in Purvis interpreted the old direct discrimination provision (retained in s 5(1)) as being concerned with formal equality only, s 5(2) reflects a substantive notion of equality because of its focus on effect or outcome. This provision does not require causation or a reason to be proven; the test is purely whether the failure to provide reasonable adjustments has ‘the effect’ of treating the person with a disability less favourably than a comparator.75 Under this interpretation, not providing reasonable adjustments is deemed to constitute less favourable treatment because of the disability.76 Section 5(3) now provides that the fact a person needs adjustments cannot constitute a material difference. This means the comparison is to be betweeen the complainant and someone without the disability who does not require adjustments. A similar obligation of reasonable adjustments was inserted into the definition of indirect discrimination (s 6(2)), but is less significant because the indirect discrimination prohibition already implicitly imposed an obligation to make adjustments by permitting only ‘reasonable’ requirements or conditions. There is a tendency to think that the need for reasonable adjustments is only relevant to the attribute of disability77 – that other attributes are different, and equality will be achieved by simply ignoring the attributes. This is open to challenge.

74 DDA s 4. 75 Watts v Australian Postal Corporation [2014] FCA 370 (Watts), [241], [257]. 76 Watts [2014] FCA (Mortimer J); cf Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (Innes), [119] (FM Raphael suggested that the complainant needed to prove that the failure to provide reasonable adjustments was ‘because of’ the complainant’s disability, referring to cases under the old version of the Act.) See also Sklavos v Australasian College of Dermatologists [2016] FCA 179, [131]–[136] (Jagot J). 77 E.g. Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92, [198]–[199] (Gummow, Hayne and Heydon JJ). This is reflected in Australian legislation (with the ‘reasonable adjustments’ provisions found only in the DDA at federal level), and UK adjustments only required in respect of disability, although it extends to religion in the US (see Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011), 214–15) and to carers in Victoria: see [80], below.

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Firstly, adjustments are needed when the norm is too narrow. They are needed when rules, environments or expected behaviours are constructed around a narrow norm, casting people who fall outside that norm as ‘different’ and in need of ‘special’ treatment. However, if the norm was constructed more widely, to include greater diversity, then fewer people would be characterised as ‘abnormal’ and in need of adjustments. For example, a building that has only stairway access reflects a narrow norm of mobility that excludes wheelchair users, but if the building has a ramp or elevator for all to use, a wheelchair user might face no access barriers and thus need no ‘special’ adjustments. Similarly, a norm may relate to other attributes. A workplace with flexible working arrangements, for example, might allow a father to drop his children at school and arrive at 9 am, while a colleague arrives at 7 am in order to leave early for her afternoon English classes, without either of them having to identify as outside the traditional worker norm and seek adjustments. Second, as Minow has argued, differences are often assumed to be inherent rather than relative because the underlying norm, reflecting the majority or powerful, is unstated and seen as natural.78 Our unstated assumption that ability to see is the norm leads to categorising only those who can’t see as blind. This might be useful shorthand, but it categorises those who are blind as different, when in fact there is a spectrum of sightedness. Related to this, Minow has pointed out that although we are different in so many ways, only some differences matter; some are made to matter. In the wheelchair scenario above, for instance, providing only stairs renders the wheelchair user different and in need of adjustments, but a more universal design of buildings that reflects a wider mobility norm could render the wheelchair user’s impairment insignificant. As is suggested by the move toward thinking of disability using a social model rather than medical model,79 while impairments may manifest in specific ways, whether these are disabling can depend greatly upon how the society has constructed buildings, processes, vehicles and practices. However, there is concern that even the social model of disability can operate as a ‘deficit model’ whereby people with a disability are treated as lacking compared to the norm, rather than an acceptance that there is a wide spectrum of abilities under a model based on the idea of diverse abilities.80 Finally, the issue of agency or choice often infuses arguments about whether norms should be changed or adjustments provided. Disabilities are generally characterised as immutable or at least not ‘chosen’, and even described in negative terms such as ‘she suffers from’ cerebral palsy or is ‘wheelchair bound’. Framing disability in this way might garner sympathy, but does not necessarily translate into good public policy that enables equality. Other attributes, such as pregnancy and carer’s responsibilities, can manifest in behaviours outside the ideal worker norm, and similarly need the norm to be moderated or adjustments

5 [77]

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78 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1990); cf Chapter 1. 79 Lee Ann Basser and Melinda Jones, ‘The Disability Discrimination Act 1992 (Cth): A Three Dimensional Approach to Operationalising Human Rights’ (2002) 26(2) Melbourne University Law Review 254. 80 Jerome E Bickenbach, ‘Minority Rights or Universal Participation: The Politics of Disablement’, in Melinda Jones and Lee Ann Basser Marks (eds), Disability, Divers-Ability and Legal Change (Martinus Nijhoff, 1999) 101; Bruce Arnold, Patricia Easteal, Simon Easteal, Simon Rice, ‘It Just Doesn’t Add Up: ADHD/ADD, the Workplace and Discrimination’ (2010) 34(2) Melbourne University Law Review 359.

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made to enable full and equal participation. However, demands for adjustments can be dismissed or ignored because of the choice argument – you ‘chose’ to get pregnant or be a parent and thus should bear all the costs of it. Even non-pregnant female workers are outside the implicit male ideal worker norm. Similar arguments can be found to underpin debates about whether adjustments should be made to English language requirements for those who immigrate. In contrast, adjustments are often made willingly for other groups, such as elite sportspeople, who may be offered preferential admission to institutions and special arrangements at work. As can be seen from this discussion, providing adjustments can enable the inclusion and participation of those who are seen to fall outside the norm. There is, however, a risk that by providing adjustments to these identified individuals or groups, the norm itself may remain unchallenged. If workplace conditions reflect a narrow norm of male bodies and behaviour, for example, rather than including female bodies that can menstruate, get pregnant, and give birth and breastfeed, then women are characterised as different and in need of special treatment or adjustments. Providing individual adjustments reinforces rather than challenges the norm that women are not ‘normal’ or ideal workers. A wider norm would reflect more fully the diversity in society. An obligation to provide (reasonable) adjustments could open doors to the transformative dimension of equality through enabling greater participation, leading to norm change and thus serving to promote substantive equality, but only if the individual is understood to be entitled to inclusion and equality, not as merely different and deficient. The Equal Opportunity Act 2010 (Vic) (EOAV) brought in some very significant advances in relation to reasonable adjustments that make it clear that parliament’s aim is to ensure as far as possible that the individual needs of workers, students and other people with any of the protected attributes are considered and accommodated where possible. This signals an intention that norms that favour only mainstream individuals are required to adjust to a wider range of circumstances, and marks a step towards a more transformative antidiscrimination law in Australia. The first change is, as noted above at [67], the inclusion of reasonable adjustments as a factor to be considered when assessing ‘reasonableness’ in indirect discrimination. The second is to adopt an explicit stand-alone right to reasonable adjustments for people with disabilities in the context of work, education, and provision of services.81 Third, an equivalent stand-alone right to reasonable adjustments is extended beyond disability by requiring employers to provide reasonable accommodation of the needs of workers who are parents or carers.82 Finally, unreasonable failure to provide those adjustments or accommodations is classified as discrimination, independently of the need to prove direct or indirect discrimination.83 All these provisions include paragraphs that define a wide range of factors that must be considered in assessing reasonableness. By way of example, the duties on an employer to accommodate the needs of workers who are parents are defined as follows:

81 EOAV ss 20, 33, 40, 45. Limitation provisions are at ss 23, 34, 41, 46 respectively. 82 EOAV ss 17, 19, 22, 32. 83 EOAV s 7(1)(b).

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19 (1) An employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer. While the promise of these provisions is significant, in practice their application may fall short. In the first case to be dealt with under s 19 of the Act, the tribunal denied a woman’s claim of discrimination in failing to make reasonable accommodation for her needs as a parent in a rostering change. Importantly this was not because the required accommodation was unreasonable (which would have been open), but because as a casual employee she had no basis to object to any flexibility in shift arrangements in her work.84 The use of the contract of employment to defeat the purposes of anti-discrimination law in this way appears to be contrary to the intention of parliament, and to earlier authority such as Wardley’s case85 in which the court held that anti-discrimination law operates in the context of the general common law. It reflects a judicial reluctance to give effect to the disruptive aims of anti-discrimination law.86 Such an obligation to provide reasonable adjustments is not unusual overseas. Under Canadian anti-discrimination law, for example, the obligation is imposed in respect of all attributes and all areas.87

[82]

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5.4 Disability standards and action plans In addition to the reasonable adjustments obligation, the DDA contains a number of other innovative mechanisms for addressing discrimination:88 ‘disability standards’ and ‘action plans’. These mechanisms both operate to encourage duty bearers to do more than merely avoid directly or indirectly discriminating on the basis of disability. Disability standards are made by the Minister,89 and have been made in particular fields: public transport (2002),90 education (2005),91 and access to premises (2012).92 The standards are not merely guidelines; DDA s 32 explicitly states that they must not be contravened. A breach of the standards will constitute ‘unlawful discrimination’ under the Australian Human Rights Commission Act 1986 (Cth) (AHRCA), so is enforceable by a person aggrieved, just as discrimination under the DDA is enforceable.93 Where a breach of a standard is established, orders can be made for compensation94 and compliance with the standard.95

[84]

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84 Richold v State of Victoria, Department of Justice [2010] VCAT 433. 85 Ansett Transport Industries (Operations) Pty Ltd v Wardley [1980] HCA 8; (1980) 142 CLR 237. 86 K Lee Adams, ‘Indirect Discrimination and the Worker-Carer: It’s just not working’ (2005) 23(1) Law in Context 18. See e.g. State of Victoria v Schou (2004) [2004] VSCA 71. 87 Fredman, above n 77, 215. For an illustration of how discrimination is defined under Canadian law, with the reasonable adjustments obligation built into it, see British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, [54]. 88 Basser and Jones, above n 79. 89 DDA s 31. 90 Disability Standards for Accessible Public Transport 2002 (Cth). 91 Disability Standards for Education 2005 (Cth). Discussed at 6.3.2. 92 Disability (Access to Premises-Buildings) Standards 2010 (Cth). 93 Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615. 94 Innes [2013] FMCA 36 [155]–[157]. 95 Haraksin v Murrays Australia Limited (No 2) [2013] FCA 217.

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Although each of the three standards made to date operates in a slightly different way, they all provide rules governing discrimination that are more detailed than the general prohibitions of direct and indirect discrimination. For example, the DDA contains a general prohibition on disability discrimination in the provision of a service, including public transport, but the public transport standards96 specify particular standards with which providers must comply. A bus company that provides public transport must ensure, for example, that any requirements or conditions that it imposes are reasonable in the circumstances to comply with the indirect discrimination provisions, which entails making judgements about what is reasonable and whether there is unjustifiable hardship. The public transport standards, however, establish a schedule for progress on accessibility that is very specific. They require that by 2007, 25 per cent of the services should have been equipped with boarding devices to make them wheelchair accessible, increasing to 55 per cent by 2013, 80 per cent by 2018 and fully compliant by 2023,97 and all new equipment has to be compliant. In effect, these standards reflect a concrete, industry-wide consensus on what is ‘reasonable’ for public transport accessibility over time. There is a risk that the detailed schedule for improving accessibility might operate as a minimum requirement and stifle more progressive initiatives, but on the other hand the hope is that it will be more effective at guaranteeing at least this much progress. Being more specific, obligations under the standards could differ from obligations under the Act. However, if ‘a person acts in accordance with a disability standard’, they cannot be found liable under the discrimination provisions in respect of the same conduct.98 (However, a party can be found to have breached both.)99 So, for example, if the bus company meets the standard of at least 55 per cent of its services being wheelchair accessible in 2016, it cannot be found to have indirectly discriminated against a wheelchair user who does not benefit from those services or believes that 55 per cent is inadequate. Action plans under the DDA are very different to standards. They are not law and are made by the duty bearers themselves, voluntarily. They are a plan for progress and a declaration of intention to address disability discrimination. The DDA provides that a person bound by the Act ‘may prepare and implement an action plan’ (s 60). Provided the plan meets the requirements of s 61 including having ‘policies and programs to achieve the objects’ of the Act, appointing a person to implement these, communicating them to persons within the organisation, and establishing a means of assessing success of the plan in achieving the objects, it can be given to the AHRC, which must make it public (s 64). Although plans have no specific legal status, many organisations have made and lodged them with the Commission. The plans provide a way for organisations to demonstrate a commitment to disability inclusion and equality, and can also be relevant to claims under the Act. If an organisation claims that providing a particular adjustment or avoiding discrimination in a particular case would impose an ‘unjustifiable hardship’, an organisation’s action plan is a factor that can be considered.

96 97 98 99

Disability Standards for Accessible Public Transport 2002 (Cth) (PT Standards). PT Standards, schedule 1, ss 1.4, 2.4, 3.3, 4.1. DDA s 34. See e.g. Innes [2013] FMCA 36.

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The effectiveness of action plans as a regulatory tool is unclear. They are voluntary and no reporting or evaluation of progress is involved. Developing the plans might raise awareness within the organisation, but there is no way to know which plans are merely marketing tools and which reflect deeper and substantive action. The EOAV extended these special provisions to all attributes through action plans prepared by duty bearers (s 152); and practice guidelines prepared by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) after consultation (s 148). Both can be considered by a tribunal or court if they are relevant (ss 149, 152(3)). The VEOHRC can set minimum standards for actions plans.

5 [91]

[92]

5.5 Harassment Harassment is another type of behaviour that can operate to marginalise and exclude people from participating in a workplace, school or other environment. The common understanding of this term is repeated or ongoing comments or other behaviour directed at a person that undermines, offends or humiliates them. Some forms of harassment may amount to a criminal offence, such as assault, and could be prosecuted. Some forms satisfy the definition of discrimination, as discussed below. However, the complexities and limitations of using these provisions to address harassment and the pervasiveness and significance of harassment, especially sexual harassment, on women’s experiences of equality at work led quickly to the development of a specific and separate prohibition of sexual harassment.100 Harassment can constitute direct discrimination when it amounts to less favourable treatment because of a protected attribute. For example, workers of Indigenous or minority ethnicity who have been repeatedly verbally harassed and insulted at work have successfully brought direct discrimination cases in respect of the harassment.101 To this extent, there is protection against harassment in respect of all protected attributes.102 However, the protection against harassment afforded by discrimination provisions is limited. Firstly, for direct discrimination the complainant bears the burden of proving that the treatment was because of the attribute. Thus, if a manager makes lewd and undermining sexual remarks to all colleagues, not only female colleagues because they are women, then it would not be possible to show there had been less favourable treatment than a comparator because of sex. Second, the discrimination provisions primarily protect against abuses of power in that they protect against employers discriminating against employees, education providers against students, and businesses against clients, rather than discrimination at large. So, in a workplace for example, the employer must not discriminate against employees, but the duty to not discriminate does not apply to fellow employees.103 Finally, treating harassment as discrimination rests on recognition of the harm flowing from harassment as a discriminatory detriment, even in the absence of objective

[93]

[94]

[95]

[96]

100 AHRC, Working without fear: Results of the Sexual Harassment National Telephone Survey (2012). 101 Trapman v Sydney Water Corporation & Ors [2011] FMCA 398; Gama [2008] FCAFC 69, Toll Pty Ltd t/as Toll Express v Abdulrahman [2007] NSWADTAP 70. 102 See e.g. Daniels v Hunter Water Board (1994) EOC ¶92–626 (homosexuality harassment constituted direct discrimination). 103 The accessorial liability provisions that prohibit others aiding and abetting discrimination do not operate generally to prohibit discrimination (or harassment) by all workplace participants. See 5.7.1 below.

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consequences such as dismissal or reduction in pay. In the first case to recognise sexual harassment as discrimination, O’Callaghan v Loder,104 Justice Mathews defined sexual harassment as a person being ‘subjected to unsolicited and unwelcome sexual conduct by a person who stands in a position of power in relation to him or her’.105 While the case was a landmark decision in establishing that harassment could be a sufficient detriment to establish discrimination, the complainant actually lost the case because she had failed to prove that the respondent ‘knew or ought to have known that the conduct was unwelcome’.106 This finding effectively put the responsibility on women to make it very clear that they are not sexually available at work, rather than establishing a standard of workplace conduct that protects women at work.107 These limitations of the judicial test for sexual harassment under the discrimination provisions and a growing awareness of the prevalence and systemic harm of the conduct led to the adoption of a separate prohibition of ‘sexual harassment’ in anti-discrimination laws, first in the SDA in 1984 and then extending to all jurisdictions in Australia.108 The SDA, along with all state and territory anti-discrimination Acts, makes it unlawful to sexually harass a person in the workplace, education and other fields of activity.109 The definition of sexual harassment is relatively uniform across jurisdictions as unwelcome conduct of a sexual nature that a reasonable person in the perpetrator’s position could have anticipated would offend, humiliate or intimidate the victim. The SDA frames it widely through the introduction of the words ‘the possibility’ as follows: 28A Meaning of sexual harassment (1) … a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. [emphasis added] … (2) In this section: conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

[99]

This definition has four main elements: the conduct covered, the notion of ‘unwelcome’, the reasonable perpetrator test, and the relevant contextual factors. Firstly, the conduct is not limited to physical contact, comments or propositions. It is defined non-exhaustively, O’Callaghan v Loder [1983] 3 NSWLR 89. Ibid 92. Ibid 104. R v Equal Opportunity Board; Ex parte Burns [1985] VR 317. Gail Mason, and Anna Chapman, ‘Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques’ (2003) 31(1) Federal Law Review 195. 108 See Appendix. 109 SDA ss 28B–28L.

104 105 106 107

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in sub-s 28A(2), and has been interpreted very widely. The AHRC has provided guidance to employers in its publication ‘Ending workplace sexual harassment: a resource for small, medium and large employers’.110 Sexual conduct has been interpreted to include: • Sexual comments, including questioning about sexual life, propositions and comments about a person’s body, appearance or clothing; • Exposure to sexually explicit magazines, posters, recordings, emails or SMS messages; • Sexually suggestive jokes or obscene language; • Intrusive invitations to go out socially or requests for sex; • Sexual touching, including hugging, kissing, squeezing and massaging; and • Conduct that could also be a criminal offence, including assault, indecent exposure and stalking.111 The conduct is not limited to interaction between men and women, and sexual orientation is also not relevant. Although the majority of cases are brought by women against men, sexual conduct covers conduct of a sexual nature perpetrated by women towards men and between members of the same sex. The definition makes clear that there is no need to show the conduct was ‘because of’ an attribute. Repetition is not essential, and a single incident can amount to sexual harassment. Conduct that constitutes sexual harassment may amount to assault or other criminal conduct,112 but complainants may prefer to bring civil proceedings seeking compensation rather than police prosecution for a criminal offence. There is a subjective element to the test because the conduct must be ‘unwelcome’. The courts, have held that this element must be interpreted in context and, in contrast to earlier cases, including O’Callaghan v Loder,113 it is now clear that the circumstances are to be taken into account in determining whether the complainant needed to verbalise this expressly and directly to the perpetrator.114 Generally if conduct is uninvited or unwanted it will satisfy the test of being unwelcome.115 So, in cases of a great power difference between the parties or a first occurrence, a claim will not fail simply because the victim did not have a chance to tell the perpetrator that they did not welcome the groping, suggestiveness or advances. The SDA test requires that the sexual conduct be in circumstances in which a ‘reasonable person’ would have anticipated the possibility that the victim would have been offended, humiliated or intimidated. This test has both objective and subjective elements. The question is not whether the particular perpetrator did anticipate this type of response but whether he (or she) should have, given the circumstances. However, the reasonable person must

[100]

[101]

[102]

110 (2014) . 111 AHRC, Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008), 5. 112 Vergara v Ewin [2014] FCAFC 100. 113 O’Callaghan v Loder [1983] 3 NSWLR 89, 103–4. 114 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217, 250–51 (Wilcox J); Font v Paspaley Pearls Pty Ltd [2002] FMCA 142; Elliott v Nanda (2001) 111 FCR 240. 115 Aldridge v Booth (1988) EOC ¶92–222, 77,091.

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consider the effect of the conduct on the actual person harassed, not a reasonable person in the victim’s position. Ultimately whether any conduct amounts to sexual harassment will depend on the context of the particular case, as acknowledged by the repeated references to ‘circumstances’ in the legislation. In many cases it will be clear that the behaviour was not acceptable,116 but in others it may be necessary to examine the context to determine the effect of the conduct in context. A 2011 amendment introduced a list of factors that can be taken into account as relevant circumstances, including the sex, age, and any other relevant attributes of the person harassed; the relationship between the person harassed and the alleged harasser; any disability of the person harassed; and any other relevant circumstance (s 28A(1A)). This ensures that any characteristics or vulnerabilities of the person harassed, and any power differential between them and the harasser can be considered by the tribunal or court. In addition to the direct liability of the sexual harasser, employers can also be held liable for the actions of their employees (and principals for their agents) unless they can establish that they took ‘all reasonable steps to prevent’ the conduct, as discussed in Chapter 6. This provides an incentive to those who have the power to educate and manage their workforce to avoid such harassment. The scope of the prohibition on sexual harassment extends beyond the relationships of power covered by discrimination in work, education, providing goods and services and so on, as discussed further in Chapter 6. In work, for instance, the duty not to sexually harass is placed on all ‘workplace participants’.117 The sexual harassment provisions are also wider than the discrimination protections in that there are no exceptions or defences like those available in a discrimination claim. Personal respondents can contest each element, and employers can seek to avoid vicarious liability by arguing that they took ‘all reasonable steps’ to prevent the conduct (see 6.6.3), but there are no exceptions such as those for small business, voluntary organisations, or private educational authorities. Federally, the DDA also specifically prohibits disability harassment in work and other fields,118 although the term is not defined in the legislation. Relying on dictionary definitions, an element of repetition has been read into the term in the few cases that have arisen.119 In addition, some states now prohibit harassment on a wider range of attributes.120

5.6 Vilification [107]

Claims of discrimination are generally limited to the areas of activity that are covered by anti-discrimination laws, such as employment, education etc (discussed in Chapter 6). But there are concerns that broader social conduct can also undermine equality of opportunity

116 For example there is no question that a sexual assault, or repeated sexual propositioning that is unwelcomed, amounts to harassment: Vergara v Ewin [2014] FCAFC 100; Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82. 117 See e.g. SDA s 28B. 118 DDA ss 35–39. 119 McCormack v Commonwealth [2007] FMCA 1245, [75]; Penhall-Jones v State of NSW [2008] FMCA 832, [39]. 120 See Appendix.

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in ways that are serious enough to be addressed by law, for example where hate speech is promulgated that may create or exacerbate hostility towards minorities such as Indigenous people, Jews or Muslims. While in general freedom of expression is regarded as a fundamental legal right in a free society, there are situations in which parliament has accepted that it should be limited in the interests of equality. This reflects the recognition in international law121 that speech inciting racial hatred can be limited in the interests of the rights of those whom it targets. Debate over reconciling any apparent conflict between freedom of expression and equality rights continues, but history has shown that the security and right of minority groups to live with freedom can be undermined by expressions that incite intolerance, exclusion, and other forms of action against them. While no-one can insist on a right never to be offended (as the liberalisation of censorship rules and advertising shows), such actions are targeted because of their impact on the equal rights of individuals and groups to live with respect and safety. It was after a long period of discussion and debate that the Commonwealth Parliament in 1995 adopted provisions prohibiting ‘offensive behaviour based on racial hatred’. Subject to substantial defences (discussed below), 18C makes it unlawful for a person to do an act, otherwise than in private, if:

5

[108]

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. [109]

The provision has some parallels with the prohibition of sexual harassment, but many distinctive features. Like sexual harassment, a single act can be sufficient to breach the provision, and the focus is on an objective assessment (reasonably likely, in all the circumstances) of the effect of the act on the person or group targeted. The formulation of the effect (offend, insult, humiliate or intimidate) echoes similar wording used in the definition of sexual harassment: that the person harassed would be offended, insulted, humiliated or intimidated. Although this appears to be a relatively low threshold, the courts have held that it refers to serious levels of each of these effects, not minor effects.122 However, unlike sexual harassment, it is not restricted to activities such as employment or education but applies to any act done other than in private,123 and it requires proof that the act was done ‘because of’ the racial attribute, although this will often be clear from the act itself. For example it applies to material published on the internet and even to comments on an online news story where the company was held liable as it had not moderated the site and removed them.124 Section 18D provides four defences to racial hatred for ‘anything said or done reasonably and in good faith’ in the performance, exhibition or distribution of an artistic work; or in the

[110]

121 International Covenant on Civil and Political Rights (ICCPR) art 20(2); CERD art 4. 122 Eatock v Bolt [2011] FCA 1103, [263]–[268]. 123 Defined in s 18C(2) as an act that (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. 124 Clarke v Nationwide News [2012] FCA 307.

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course of any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or in a fair and accurate report of any event or matter of public interest; or a fair comment on a matter of public interest expressing the author’s genuine belief. The main users of these provisions have been Indigenous people and ethnic minorities, especially Jewish groups dealing with anti-Semitic speech.125 In Eatock v Bolt, two newspaper columns criticised several named Indigenous people, questioning their identification as Aboriginal and alleging they were instead seeking unjustified personal advantage.126 A group action brought by several of the people named was upheld by the Federal Court. Bromberg J commented that despite its title, s 18C does not refer to racial hatred but is instead concerned with promoting racial tolerance.127 There was no need to prove that the persons targeted were actually offended or insulted, instead the test required an objective assessment of the likelihood of this occurring.128 The court found that at least some members of the group named were reasonably likely to have been offended, insulted, humiliated or intimidated by the articles. The defences in s 18D did not apply because the ‘fair comment’ provision which required the comment to be ‘an expression of a genuine belief held by the person making the comment’ was not satisfied. Since the writer had failed to contact any of the people to check his factual assertions about their lack of connection with the Indigenous community, his views could not be regarded as bona fide. All states and territories except the NT have laws addressing racial vilification. Most have laws that prohibit racial vilification both as a civil matter and in more serious cases as a criminal offence, but WA only has criminal law provisions, unlike the RDA which only has civil prohibitions.129 Proving a criminal offence is more difficult than a civil claim: it requires proof of the offence beyond reasonable doubt and often includes an intent requirement, which may be appropriate where an individual’s conduct deserves punishment, but does not as effectively serve the goal of promoting racial tolerance. The format of the state and territory civil prohibitions is similar, but differs from the RDA’s approach. An example is the Anti-Discrimination Act 1977 (NSW) (ADANSW) s 20C, which provides (subject to defences): (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

[114]

Instead of a focus on the effect of the speech on the person targeted, the prohibited action is a public act that has a particular effect on its audience. The definition does not concern itself with whether the person(s) named are humiliated or intimidated, but with the nature of the public act, judged from the perspective of an ordinary member of the audience

125 126 127 128 129

For a detailed discussion of racial vilification law, see Rees et al, above n 24, ch 10. Eatock v Bolt [2011] FCA 1103. Ibid [13]–[14], [22], [206]–[207]. Ibid [15]. Provisions for criminal offences of serious racial hatred in the Racial Hatred Bill 1995 were not passed by the Senate.

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to whom the statement was directed.130 The standard of conduct specified is expressed to be higher than that in the RDA, focusing on hatred, serious contempt or severe ridicule. Defences similar to those in the RDA are provided for, but the formulations differ in important details. Vilification laws have also been adopted at state and territory level to protect other groups, such as religious groups, and sexual minorities. Religious vilification is prohibited in Victoria, Queensland and Tasmania, while vilification based on aspects of sexuality and gender identity is prohibited in NSW, Queensland, the ACT and Tasmania. All tend to be drafted on a similar model to the racial vilification provision in the jurisdiction; for example, the ADANSW prohibits vilification based on a person being transgender or homosexual, or on their HIV/AIDS status. All these provisions are accompanied by criminal offences for serious vilification on the covered grounds, defined in various forms.

5 [115]

5.7 Associated prohibitions Each anti-discrimination Act contains associated prohibitions designed to extend and reinforce the prohibitions on discrimination and harassment. Four typical associated prohibitions are: accessorial liability for aiding and abetting unlawful action; advertising; requesting information; and victimising. Generally these criminal prohibitions can be protected through civil claims brought by victims.131 In some Acts these prohibitions are also defined as criminal offences that can be prosecuted for a penalty. While designating such conduct as an offence allows for enforcement by the state rather than only by an individual complainant, prosecution is extremely rare. The designation may, however, have had some important symbolic effect, especially in respect of advertising as discussed below.

[116]

5.7.1 Accessory liability The accessory liability provisions make it unlawful to aid, abet, instruct or otherwise encourage someone to commit unlawful discrimination or harassment. As is noted above and more fully in Chapter 6, the discrimination provisions generally prohibit particular actors from discriminating, and these duty bearers are traditionally in a position of power, such as employers who can offer or terminate employment, or education providers who can determine access to educational services. While the vicarious liability provisions operate to impose liability on the employers, education providers and other designated duty bearers for the actions of their employees or agents, the accessory liability provisions go further. They extend liability to other individuals who might not have directly committed the discrimination or harassment, but who somehow promoted or facilitated it. The Acts vary in the scope of these provisions, some limiting liability to the more traditional criminal terms of aiding and abetting, such as the RDA’s terms of inciting, assisting or

[117]

[118]

130 Catch the Fire Ministries v Islamic Council of Victoria (2006) 15 VR 207. 131 Conduct constituting an offence under the Federal Acts is included in the definition of ‘unlawful discrimination’ in AHRCA s 3, and can thus be the subject of a complaint by an individual victim. See Chapter 7 for enforcement.

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promoting (s 17). Other Acts extend to requesting, instructing, authorising or inducing.132 Wider drafting still is seen in the SDA and DDA, and some state Acts, even extending to ‘permitting’133 another person to do an act that is unlawful. These provisions might apply to individuals, such as property owners, who instruct or authorise real estate agents to screen potential tenants by attribute. Alternatively they could apply more widely to organisations that provide public services, like local councils in approving discriminatory development applications134 or employment agencies screening applicants or even failing to screen employers. The prohibition on ‘permitting’ discrimination was used in respect of an employment agency in the case of Elliott v Nanda & Commonwealth.135 In this case the Commonwealth Employment Service (CES) was found liable under the SDA’s ancillary liability provisions for its role in permitting sex discrimination (in the form of sexual harassment) of a woman by her employer, a doctor. The employment agency had been aware of several previous complaints of sexual harassment made to the agency against a doctor at the medical practice and was thus held to have knowingly permitted the harassment when it referred Elliott there for employment. The Federal Court applied an earlier interpretation of a similar provision under the DDA in holding that the SDA provision that includes ‘permit’ constitutes accessory liability that is ‘considerably broader in its reach than that traditionally employed by the criminal law’.136 The term was not to be approached narrowly,137 and turned on whether the person could have prevented the conduct. A person would be found to have permitted unlawful conduct when they knew or had reason to anticipate that unlawful conduct would occur, had some power to prevent it, and failed to exercise this power.138 The possibility of unlawful conduct needed to be ‘real, and something more than remote’ or the usual likelihood of such conduct occurring in a workplace.139 The judge recognised that the provisions were drafted widely in order to prompt those who had some capacity to address discrimination to take active measures rather than turn a blind eye.

5.7.2 Advertising [120]

A second associated prohibition is the ban on advertising that indicates an intention to discriminate or perform another unlawful act.140 This ban is usually framed as one on publishing (or causing to be published) an advertisement that indicates, or could reasonably be understood to indicate, an intention to do an unlawful act. It extends to the publishing company and the person or organisation that drafts the advertisement and asks for it to be published. Some Acts specifically make clear that the provision is not 132 133 134 135 136 137 138 139 140

E.g. EOAV s 105. ADANSW s 52; SDA s 105. Cooper v HREOC (1999) 93 FCR 481. Elliott v Nanda & Commonwealth (2001) 111 FCR 240 (Elliott). Cooper v HREOC (1999) 93 FCR 481, 492 (Madgwick J, interpreting s 122 DDA); Elliott (2001) 111 FCR 240, [156]. Elliott (2001) 111 FCR 240, [160]. Ibid [163]. Ibid. See e.g. SDA s 86.

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limited to print media, but extends to publishing by any means.141 There must be some indication of an intention to discriminate unlawfully, but often an objective test is used so it is not limited to those who actually intended to discriminate but also those who were careless in failing to see that the advertisement could be interpreted this way by a reasonable reader. However, this prohibition is subject to the exceptions available under each Act because it refers to unlawful conduct, not discrimination generally. Since age discrimination laws allow for youth wages or junior rates – that is, lower rates to be paid to workers under 21142 – it is not unlawful to advertise for job applicants in this age bracket. However, a preference for a male mine manager or female receptionist could not be advertised. As a criminal offence, any allegation must be proved by a public prosecutor to the standard of beyond reasonable doubt before the penalty can be imposed. The sanction is usually a fine measured in penalty units, so that the actual amount increases each time the penalty unit amount is increased in that jurisdiction.143 However, there are no reports of any prosecutions for these offences, which are unlikely to be a priority for public prosecutors. Victims can bring a civil claim, possibly in addition to a claim of discrimination.

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[121]

5.7.3 Seeking information A third associated prohibition relates to requests for information. Most Acts, although not the RDA or the ADANSW, prohibit a person from requesting information from another person in order to discriminate unlawfully.144 The elements are the act of requesting information – on forms, orally or otherwise – and the mental element of requesting the information for the purpose of discriminating under the Act. Without this purpose, the request is not unlawful and the Acts generally make clear that information can be requested if ‘reasonably required for a purpose that does not involve prohibited discrimination’.145 There are, of course, times when a person’s attribute might not be obvious but is relevant to a decision. The qualification of purpose allows for these situations. Health services provided only for women, for example, could legitimately seek to ascertain whether a potential patient is a woman. Single-sex schools that are permitted must be able to ask the sex of a potential student. Similarly, an employer is entitled to ask applicants if they have visual impairments if good vision is an inherent requirement of the position and thus allows for those with uncorrected visual impairments to be excluded. Sometimes a potential employer or education provider might want to know more about an applicant – to consider reasonable adjustments or ability to perform inherent requirements, for example. Provided the request for information was not made for the purpose of discriminating, then it would be permissible. The employer would need to be able to identify a legitimate reason for seeking the information.

[122]

[123]

[124]

141 See e.g. ADANSW s 51(1). 142 See e.g. Age Discrimination Act 2005 (Cth) (ADA), s 25 Exemption for Youth Wages. 143 For federal legislation, the Crimes Act s 4AA defines a ‘penalty unit’ (currently $170) and directs the Attorney-General to review the amount every three years. 144 E.g. EOAV s 107; SDA s 27; DDA s 30; ADA s 32. 145 EOAV s 108(1). See also DDA s 30(3).

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Employers can avoid some difficulties by carefully considering what a position essentially entails, the inherent requirements, and options for how the tasks could be performed. Employers are permitted to exclude candidates who cannot perform the ‘inherent requirements’ of the position and, at least under the DDA (and EOAV), reasonable adjustments must be factored into this assessment (see 6.5.6). Employers are less likely to discriminate or breach the information prohibition if they focus on the inherent requirements of the position and assess a candidate against these by asking questions about the person’s capabilities rather than making assumptions about these. An employer who is unfamiliar with the range of adaptive equipment available might not imagine how a person with one arm or a visual impairment might perform particular tasks. Discussion of such options is allowed for so that assumptions need not be made.

5.7.4 Victimisation [126]

[127]

[128]

[129]

Each of the Acts includes anti-victimisation provisions to ensure that people can freely exercise their rights under the legislation.146 Victimisation means subjecting someone to a detriment because they have used the legislation. So, for example, a person who complains of discrimination by her teacher under the ADA also has protection against being treated detrimentally by the teacher or the university for having lodged the claim. The two important elements of a victimisation claim are: exactly what actions are protected, and what must be established to show the threat. These vary between the different laws and must always be checked in detail. The victimisation provisions are generally cast widely, but the protection is limited to actions involved in a complaint once it has got to the stage of being lodged under the legislation. Some victimisation provisions might not protect someone who has raised an internal complaint but not yet asserted that their rights under legislation have been breached. Once a claim has moved towards being formulated under the legislation, not only is the person making it protected, but so are people who assist by providing evidence in connection with proceedings as a witness or by attending a conciliation conference. Reducing an employee’s responsibilities, work shifts or benefits because she supported a colleague’s complaint of sexual harassment would constitute victimisation. The victimisation provisions do not apply where ‘the allegation is false and was not made in good faith’.147 So, for example, if a university investigated the age discrimination complaint noted above and found that the allegation was false and not made in good faith but instead made to discredit the teacher who gave a low grade, the university could discipline the student without breaching the victimisation provisions. In all Acts, victimisation can found a civil action by the person who experiences the detriment, and in some Acts it can also constitute an offence that can be prosecuted by a public prosecutor. The SDA, for example, provides that a ‘person shall not commit an act of victimization against another person’ (s 94). Although this is expressed as a criminal offence,

146 E.g. ADANSW s 50; EOAV s 103; SDA s 94. 147 E.g. EOAV s 104(1)(g); ADANSW s 50(2); SDA s 94(3).

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the AHRCA allows a civil claim for compensation to be brought in respect of it.148 It was suggested in one case that civil proceedings for victimisation should not proceed if there was a chance of a criminal prosecution occurring, but in practice there is no enforcement of the criminal provisions.149 Victimisation is a stand-alone matter, so that it is possible for a person to succeed with a victimisation claim even if the discrimination claim it is associated with fails.

5 [130]

5.8 Conclusion This review of the prohibited conduct illustrates that there is a range of possibilities for interpreting these laws. Australian courts have often chosen a literal or narrow interpretation that fails to engage with the underlying aims of reducing discrimination and disadvantage based on an attribute. This is the product of a legislative drafting style and a judicial interpretation style that focus on detail rather than the broad aims and purposes of the laws. In the next two chapters, we focus more closely on the areas in which the laws apply (Chapter 6) and the process of enforcement (Chapter 7).

[131]

148 See above n 131. 149 Walker v Cormack [2011] FCA 861.

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6.1 Introduction When and where is it unlawful to discriminate? When is it permitted? Together, the scope of the prohibitions on discrimination and the exceptions that are carved out map our commitment to equality, because they reflect the extent of the obligations and how these obligations are to be reconciled with other values and drivers in society. As outlined in the introduction, to understand how anti-discrimination law operates to protect against discrimination it is generally necessary to consider three aspects of the legislation: the attribute, the nature of discrimination, and the prohibition in particular areas. After exploring the attributes in Chapter 4, we went on in Chapter 5 to explain the conduct that is prohibited by anti-discrimination laws. In this chapter we examine when this conduct is prohibited, or the scope of the prohibition. This has several aspects. We begin by outlining the general scope of prohibitions on discrimination in terms of the areas of activity in which they apply before looking more closely at specific fields – namely work, education, and provision of goods and services – to illustrate how the prohibitions operate. However, the scope of operation is also affected by the many exceptions, and we go on to consider key exceptions, some of which apply in respect of all attributes and fields, while others are limited to specific attributes or fields. We then consider different types of liability that attach to organisations and relationships. Finally, we note the distinctive features of the Racial Discrimination Act 1975 (Cth) (RDA). The scope and exceptions to vilification and victimisation are explained in Chapter 5 and are not revisited here.

[1]

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6.2 General scope of prohibition on discrimination The first thing to note is that discrimination is not prohibited in general in the way criminal offences or torts like assault and battery are. It is not unlawful to discriminate in every area. Instead, the prohibitions are confined primarily to the areas of public activity,1 and specifically to particular fields or areas of life, such as paid work and education. The areas covered differ by jurisdiction (see Appendix, Table 3), but generally include:

[3]

• Work relationships, which importantly are not confined to employment but extend to independent contractors and other work relationships such as contractors under labour hire arrangements, commission agents, partnerships, industrial organisations, qualifying bodies, and employment agencies; • education; • providing goods and services; • providing accommodation;

1 Feminists have critiqued the gendered nature of this public/private split in regulation. See e.g. Margaret Thornton, ‘The Public/Private Dichotomy: Gendered and Discriminatory’ (1991) 18(4) Journal of Law and Society 448; Regina Graycar and Jenny Morgan, The Hidden Gender of the Law (Federation Press, 2nd ed, 2002).

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• clubs; and • sport. [4]

[5]

[6]

[7]

Except for the RDA, the prohibitions on discrimination are not directed to every person, but are directed only to specific duty bearers or actors in those fields, such as ‘employers’ or the business providing the service rather than every participant in that workplace. And the obligations on these duty bearers are defined by relationships, usually with a power differential, such as the employer in respect of employees, or the education provider in respect of students. Some of the prohibitions go even further to specify particular activities within the field, such as an employer deciding who to hire as an employee or whether to dismiss someone, although these are generally not exhaustive. The Crown (government, departments, bodies and authorities) is bound by antidiscrimination legislation,2 but only to the extent that it is operating in one of the named roles, such as employer, education provider, provider of goods or services etc. The Crown is generally not bound when it is exercising quintessential government roles of executive, legislative or judicial power.3 In this important way the anti-discrimination laws differ from charters or bills of rights in not operating on government actions such as prosecutorial, social security or immigration decisions, the making of legislation or judging by courts. This privileging of government action and laws is further reinforced by an exception found in all anti-discrimination Acts except the RDA, for acts done in compliance with statutory authority (see 6.5.3 below). This exception authorises discriminatory conduct if it is required in order to comply with an Act, regulation, order or other statutory direction, effectively allowing all other laws to prevail over anti-discrimination laws, locating them at the bottom of the legislative hierarchy. The duty bearers who are subject to the prohibitions of anti-discrimination law – employers, education providers, clubs and so on – are often corporations or other collective bodies, which in turn act through individuals who are employees or agents. Each anti-discrimination Act contains a ‘vicarious liability’ provision that explicitly makes the employer or principal liable for actions of their employees or agents in certain circumstances (unless ‘all reasonable steps’ were taken by the employer to prevent the conduct). Accessorial liability provisions extend the prohibitions further (see 5.7.1 above). These provisions apply not only to discrimination, but to all the prohibitions including harassment and victimisation. How these vicarious liability provisions operate and the reasonable steps defence are discussed further below (at 6.6.2 and 6.6.3). There are myriad exceptions to the prohibitions, reflecting a range of rationales and scopes. The most important of these are outlined after the discussion of prohibitions (at 6.5). In effect the prohibitions operate to make conduct (by particular actors, in specific fields) unlawful and the exceptions adjust or limit the scope by carving out or permitting such conduct in particular circumstances.

2 E.g. Equal Opportunity Act 2010 (Vic) (EOAV) s 5; Disability Discrimination Act 1992 (Cth) (DDA) s 14; Sex Discrimination Act 1984 (Cth) (SDA) s 12 (partially excludes application to State governments). 3 Cf RDA s 10, discussed in 6.7 below; expressly binds the federal government as the Crown. The states and territories are bound when pre-empted by federal laws, as discussed in Chapter 2.

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6.3 Specific areas in which discrimination is prohibited In this section we outline the nature and scope of key prohibitions on discrimination across the fields of work, education, and the provision of goods and services. (To see the full scope of prohibitions in all anti-discrimination Acts, see Appendix, Table 3.)

[8]

6.3.1 Work All Acts prohibit discrimination in work, which is the source of most discrimination complaints.4 This is unsurprising because work is so fundamental to economic security of individuals and yet involves personal contracting, which in turn requires judgements, assessments and personal preferences. These interactions are ripe for discrimination, conscious or otherwise. Anti-discrimination laws represent a public policy statement about the social importance of equality and treatment based on merit and inclusion, even at the expense of some restriction on freedom. However, employment has long been governed by the common law of contract, underpinned by notions of formal equality in bargaining and the importance of managerial prerogative, and there are ongoing tensions and denials about how anti-discrimination laws could or should override the common law.5 Unlike under general labour laws, the field of work under anti-discrimination law is not limited to the relationship of employment, but extends to other paid work relationships such as independent contractors, and contractors under labour hire arrangements. While the antidiscrimination laws refer to ‘employment’ and ‘employees’, these terms are usually defined widely to also include independent contractors.6 The ‘employer’ is simply the person (which could be a corporate body) who engages another person in a personal capacity to undertake paid work, whether this is under a ‘contract of service’ (employment) or a ‘contract for services’ (independent contractor). In this way, the body of case law distinguishing between employees and independent contractors that is so important in determining the scope of labour laws, like the Fair Work Act 2009 (Cth) (FWA), is irrelevant for anti-discrimination laws, and many workers who are not classified as employees under the FWA can nevertheless bring actions under anti-discrimination laws.7 In addition, the Acts generally expressly extend to other workers, such as labour hire contractors, commission agents and partners, and to associated areas such as employment agencies, and employer and employee associations.8

[9]

[10]

4 Australian Human Rights Commission (AHRC), Australian Human Rights Commission Annual Report 2014–2015 (2015), Appendix 1: Complaint Statistics, 136. (In 2014–15, complaints about employment represented 77 per cent of all complaints under the SDA, but a lower percentage under other Acts.) 5 K L Adams, ‘Indirect Discrimination and the Worker-Carer: It’s Just Not Working’ in J Murray (ed) Work, Family and the Law (Federation Press, Leichhardt, 2005) 18–44. 6 See e.g. ADANSW (s 4(1)) and SDA (s 4(1)) provide that employment includes ‘work under a contract for services’. Some state laws extend also to commission agents (see EOAV). 7 See e.g. Konrad v Victoria Police [1999] FCA 988 (police officer is not an employee) and C v Commonwealth [2015] FCAFC 113 (military officer not an employee for the purposes of the FWA). 8 E.g. DDA ss 16–21, SDA ss 15–20.

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The Acts make it unlawful to discriminate in work at all stages: employment selection (e.g. advertising, selection criteria and recruitment processes); contracts offered; treatment during employment; access to training and advancement; and terminations. While the various stages of employment are enumerated, they are not exhaustive because there is usually a catchall ‘subjecting the employee to any other detriment’,9 which could for instance include a hostile work environment or unfair disciplinary action as discussed below at 6.3.1.4. The Sex Discrimination Act 1984 (Cth) (SDA) provides an example of the scope of protection against employment discrimination. Section 14(1) and (2) prohibits discrimination in the field of employment by imposing obligations on employers in respect of potential employees and employees, respectively. In respect of employees it provides: 14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee’s sex, sexual orientation … or family responsibilities: (a) in the terms or conditions of employment that the employer affords the employee; (b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; (c) by dismissing the employee; or (d) by subjecting the employee to any other detriment.

[13]

[14]

As was noted in Chapter 5, discrimination can manifest in many different ways within the definitions of direct and indirect discrimination. Direct discrimination includes blanket exclusions of an attribute group, such as everyone who is married, above or below a particular age, or of a particular sex, although these types of exclusion are less common these days. A more subtle exclusion could be based on unconscious bias; a recruiter, for example, might assume something about a candidate because of an attribute, based on a stereotype or averages, such as assuming an older person is not as computer literate or as capable of learning as a younger candidate. There is a growing understanding of the nature of implicit or unconscious bias and how it manifests as stereotyping and inconsistent treatment. Such bias, which is not unnatural or unusual in cognitive decision making,10 can manifest at all stages of recruitment, performance management, day-to-day management, promotion and disciplinary decisions. When candidates need to be distinguished or performance needs to be assessed, in exercising judgement categorical biases are often drawn upon to supplement what is actually known or knowable. Preconceptions can operate as biased lenses through which performance and achievements are evaluated, whereby behaviour is seen to confirm or reinforce pre-existing views.11 An example might be a preconception about unreliability of an employee who is a new mother, and her occasional lateness to meetings registered as confirming this, while a male employee’s lateness goes unnoticed. Similarly, bias has been demonstrated through situation 9 E.g. ADA s 18(2)(d). 10 Linda Hamilton-Kreiger, ‘The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity’ (1995) 47(6) Stanford Law Review 1161. 11 Jerry Kang, Mark Bennett, Devon Carbado, Pam Casey, Nilanjana Dasgupta, David Faigman, Rachel Godsil, Anthony G Greenwald, Justin Levinson and Jennifer Mnookin, ‘Implicit Bias in the Courtroom’ (2012) 59 UCLA Law Review 1124.

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testing research on assessment of otherwise identical CVs but for different names or activities that suggest a particular race or gender.12 The unconscious nature of this type of bias poses problems for addressing it: victims face difficulties identifying and proving the bias, and perpetrators can fail to understand they are even doing it, and thus take no steps to change. Even when an employer operates consistently and free of biases, thus not committing direct discrimination, there is obviously still scope for discrimination by impact as a result of practices that suit some groups of workers better than others. For indirect discrimination, the focus is not on the reason for decision making, but the disparate impact of rules or requirements on groups of candidates or workers. A job requirement to be ‘over 25 years of age’ would categorically exclude younger candidates and thus amount to direct age discrimination; while an apparently neutral rule such as the requirement to ‘have 5 years’ experience’ would not absolutely exclude younger workers, it would still disproportionately impact on them. This is particularly so if the rule was imposed rigidly. Whether such a requirement is unlawful would turn on whether it is ‘reasonable’ in all the circumstances, including the reason for imposing the requirement and the availability and feasibility of alternative means of achieving the same goal. If there was no legitimate and rational reason for the requirement or it was imposed rigidly or merely as a blunt proxy for ‘mature’ workers, then arguably it would not be reasonable. It is apparent from the cases that discrimination claims often arise when workers do not fit the mould of the ‘ideal worker’, being ‘unencumbered’ by caring responsibilities or bearing human frailties, the cost of which many employers would like to externalise. Recent empirical evidence commissioned by the Australian Human Rights Commission (AHRC) makes clear that the stages of pregnancy, parental leave and returning from leave are strong prompts for discrimination, with approximately 50 per cent of respondents who had taken such leave reporting that they experienced discrimination at one of these stages.13 These pressure points have prompted numerous claims.14 The need for flexible work arrangements or leave to fulfil caring responsibilities have also prompted numerous claims, with traditional or rigid workplace practices being challenged, often unsuccessfully.15 Courts have sometimes been reluctant to hold that workplace practices need to change, as required by anti-discrimination laws, and have interpreted the laws narrowly to minimise the challenges they present to established practices.16 Since the introduction of anti-discrimination laws we have seen significant developments in addressing workplace exclusion. Job criteria have been revised to remove blanket

6 [15]

[16]

[17]

12 Alison Booth and Andrew Leigh, ‘Do Employers Discriminate by Gender?: A Field Experiment in Female-Dominated Occupations’ (2010) 107(2) Economics Letters 236; Doha Shinnaoui and Renu Narchal, ‘Brain Gain to Brain Waste: Individual Biases, Prejudice, and Discounting of Migrant Skills’ (2010) 11(4) Journal of International Migration & Integration 423. 13 AHRC, ‘Supporting Working Parents: Pregnancy and return to work national review – Report’ (2014). 14 See e.g. Hickie v Hunt & Hunt (1998) EOC ¶92–910; Thomson v Orica [2002] FCA 939; Mayer v ANSTO [2003] FMCA 209; Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160. For discussion, see Belinda Smith and Joellen Riley, ‘Family-friendly Work Practices and the Law’ (2004) 26(3) Sydney Law Review 395; Adams, above n 5. 15 See e.g. Victoria v Schou [2004] VSCA 71; Victoria v Schou [2001] VSC 321 (work from home with modem); Evans v NCA [2003] FMCA 375 (taking entitlement to carer’s leave). 16 See Adams, above n 5.

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exclusions such as age, sex and marital status. Some changes to human resource processes have been designed to address both blatant and unconscious bias, including standardising job descriptions and interview questions, using panels rather than a single interviewer and seeking to ensure some diversity on those panels. Other initiatives taken to challenge bias in decision making include training to identify unconscious or implicit bias, designing ‘blind’ auditions for orchestras, and deleting names from resumes in recruitment.17 Changes to apparently neutral requirements – such as height, weight, and a requirement to work fulltime – have also been reviewed, as have processes which favoured in-groups, such as wordof-mouth recruitment and informal mentoring systems. Many different forms of conduct and circumstances are covered by the work prohibitions because they prohibit both direct and indirect discrimination and this encompasses formal and informal decision making, personal interactions, rules, conditions, practices and procedures. The following list merely provides some examples of how discrimination might arise in the work context, reflecting the various stages of the prohibition.

6.3.1.1 Recruiting and hiring [19]

[20]

The recruitment and selection process is vulnerable to discriminatory conduct because it inevitably requires judgements to be made in evaluating, culling and ultimately distinguishing between possible candidates for a job. The selection criteria might be overtly discriminatory against particular categories of candidates, such as Ansett Airlines’ rejection of women as pilots,18 or the Australian Defence Force excluding those who are HIV positive.19 Slightly less overt exclusions can occur through intrusive medical forms,20 inappropriately requiring those with medical conditions to prove that they pose absolutely no risk to the workplace,21 or pre-employment medical testing through which information may be obtained and used impermissibly.22 Other examples could include asking only female candidates about their family responsibilities, contraception use or plans to have children. As discussed in Chapter 5 (at 5.7), all Acts also explicitly prohibit publishing or displaying advertisements that indicate an intention (or that could be understood to indicate an intention) to discriminate, as well as requests for information that could be used to discriminate, unless there is a legitimate reason for seeking it.

6.3.1.2 Terms, conditions and benefits of employment [21]

The prohibition on discriminating in the terms and conditions of employment offered or afforded extends to formal or contractual terms, implicit conditions and informal 17 E.g. Claudia Goldin and Cecilia Rouse, ‘Orchestrating Impartiality: The Impact Of “Blind” Auditions On Female Musicians’ (2000) 90 American Economic Review 715; UK Prime Minister’s Office, ‘Time to end discrimination and finish the fight for real equality’ (Press Release, 26 October 2015) (on name-blind recruiting). 18 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1984) EOC ¶92–003, 75,260. 19 X v Commonwealth (1999) 200 CLR 177. 20 Michaela Whitbourn and Leanne Nicholson, ‘Chevron stillbirth questions legal, but it’s what happens next that counts’, Sydney Morning Herald, 11 October 2013; Willmott v Woolworths Ltd [2014] QCAT 601. 21 Vickers v Ambulance Service of NSW [2006] FMCA 1232. 22 See discussion below for permissible uses of such information, including inherent requirements of a job, identifying appropriate adjustments, and satisfying statutory work health and safety requirements.

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practices. So it covers such things as rates of pay (including access to bonuses, allowances, and increments) job titles, fringe benefits, leave entitlements, hours of work and shifts. For many workers these terms and conditions are prescribed by industrial awards or agreements. While this does not put them beyond the reach of anti-discrimination laws – as labour laws generally do not exempt them23 and the FWA provides that discriminatory terms of awards and agreements are of no effect24 – there is arguably a strong normative weight given to the imprimatur of industrial commissions in creating or certifying such instruments. Pay inequality can only be challenged under anti-discrimination laws if direct or indirect discrimination can be shown. The unsuccessful challenge to pay inequality by NSW casual teachers in the case of Amery25 arguably reflects reluctance by the High Court to review decisions of the NSW Industrial Relations Commission in setting rates of pay in the teachers’ award and agreements. An indirect discrimination claim succeeded in Nojin, where a process for determining wage rates in supported employment that disadvantaged people with intellectual disabilities was held to be not reasonable.26 In addition to the formal terms and conditions of employment, this prohibition would extend to the many acts of discretion exercised by managers every day in making decisions about performance, training opportunities, and choosing between workers in allocating overtime, premium shifts or leave. Other ways in which discrimination may manifest include not addressing problems or taking employee complaints seriously,27 or allowing workers to harass other workers or create a ‘hostile work environment’ whereby a worker is denied the ‘quiet enjoyment’ of their job.28 Such incidents might also be pleaded in the alternative as ‘any other detriment’.

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[22]

[23]

6.3.1.3 Dismissal The final stage of employment – termination – covers both intentional dismissal by the employer and ‘constructive dismissal’, whereby the employee ostensibly resigns but is taken to have been dismissed because they were effectively forced out by the employer’s act of repudiating the contract.29 Many claims of discrimination or harassment in employment are claims of dismissal, although it is not unusual for other incidents to be complained of as leading up to this final event.30

[24]

E.g. ADANSW s 54 – statutory authority exception does not apply to industrial instruments. See Chapter 9 for more detail. New South Wales v Amery (2006) 230 CLR 174 (Amery). Nojin v Commonwealth [2012] FCAFC 192 (Nojin). E.g. Employment Services Australia v Poniatowska [2010] FCAFC 92. E.g. Horne v Press Clough Joint Venture (1994) EOC ¶92–591; McBride v Victoria (No 1) [2003] FMCA 285 [55], [61]. 29 Thomson v Orica [2002] FCA 939, [139]–[143]; C Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016). 30 E.g. Thomson v Orica [2002] FCA 939; Qantas Airways Ltd v Gama [2008] FCAFC 69; Poniatowska [2010] FCAFC 92.

23 24 25 26 27 28

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Compulsory retirement because of (old) age is now generally prohibited by age discrimination protections, although in the case of Qantas v Christie31 the airline was able to establish that being younger than 60 was an ‘inherent requirement’ for their pilots (see 6.5.6 below). Decisions to terminate particular employees on the basis of redundancy – that is, the employer no longer needing that position or work to be performed – have come under challenge in numerous cases. The first High Court case involving sex discrimination, Australian Iron and Steel v Banovic32, was a challenge to an employer’s redundancy criterion among other things. The company sought to use a traditional test of ‘last on, first off’ to select from a pool of employees those who were to be made redundant. However, having routinely directly discriminated against women over many years until just before this downturn in business, women were disproportionately represented in those last to be hired and thus first to be dismissed. The High Court therefore held that the redundancy criterion amounted to indirect sex discrimination in this workplace (due to the history of direct sex discrimination). The process of selection for redundancy has been the subject of numerous challenges of sex discrimination, particularly as a result of workplace restructuring, for women on maternity leave. An indirect discrimination challenge by a union to a full reorganisation of a bank that did not offer women on maternity leave an opportunity to apply for new positions was unsuccessful, with the Court finding that the bank’s restructuring requirement was reasonable.33 Women who have argued that restructuring has constituted direct discrimination have also often struggled to prove they were treated less favourably than a Thomson v Orica style of comparator (critiqued at 5.2.1.1, [32]), a man on long leave.34 Related issues are raised when a worker’s contract is not renewed, perhaps because they have used their entitlement to leave, which the employer takes to be an indication of lower commitment to the workplace.35

6.3.1.4 Any other detriment [28]

The ‘any other detriment’ prohibition36 catches a miscellany of harms in the workplace. Being undefined, the term ‘detriment’ has been given its literal meaning of ‘loss, damage or injury’.37 The harm is to be objectively determined; it must be real and not trivial,38 but rather ‘a matter of substance’.39 Requiring someone not to speak their native language on personal calls in the presence of workmates has been found to be such a detriment.40 As have other directions that are not sought or desired by the applicant, such as placing 31 32 33 34 35 36 37 38 39 40

Qantas Airways Ltd v Christie (1998) 193 CLR 280. [1989] HCA 56; (1989) 168 CLR 165. Commonwealth Bank v HREOC (1997) 80 FCR 78. Poppy v Service to Youth Council Inc (2014) 317 ALR 195; Stanley v Service to Youth Council Inc (2014) 225 FCR 317. Commonwealth v Evans [2004] FCA 654. See e.g. ADANSW s 25(2)(c). See Wollongong City Council v Bonella [2002] NSWADTAP 26. Sivananthan v Commissioner of Police, NSW Police Service [2001] NSWADT 44. O’Callaghan v Loder [1983] 3 NSWLR 89; (1984) EOC ¶92–023. Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294; Dharmalingham v Western NSW Local Health District [2015] NSWCATAD 74.

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restrictions on duties, setting new performance criteria that are unrealistic or unfair in some way, and removing assistance.41 Being subjected to a hostile work environment or exposed to pornography can also constitute a detriment.42 There are a number of exceptions that apply to the field of work, and a few that apply only to this field such as inherent requirements and genuine occupational qualification. These are discussed below (at 6.5).

6 [29]

6.3.2 Education All Acts prohibit discrimination in the provision of education. Like the field of work, education is a field in which discrimination is likely to occur because there are many interactions that involve complex judgements and distinctions, and often some degree of competition for rewards, recognition or resources. Educational providers are prohibited from discriminating in the selection and admission of students, and then in the provision of access to the education or any other benefit provided by the institution, up to the final stage of expulsion. As for employment, there is usually also a catchall provision of not discriminating in ‘subjecting the student to any other detriment’.43 The duty bearers are usually defined widely to include bodies administering or providing education or training in schools, colleges, universities or other institutions to children or adults, and would generally also cover early childhood and education services such as preschools and childcare centres.44 The federal Acts apply to educational services provided by the states and territories, that is, by public schools.45 While education is not covered explicitly as a separate prohibition in the RDA, the protection is encompassed by the general prohibition in s 9 that covers discrimination in respect of fundamental rights and freedoms.46 These rights and freedoms encompass those listed in art 5 of the Convention on the Elimination of all forms of Racial Discrimination (CERD),47 which is attached as a schedule to the Act. There have been a number of claims of discrimination in education in respect of sex48 and race,49 and certainly more than a few claims of sexual harassment in this field, but the attribute that has posed the most equality challenges for education providers is disability. Numerous cases of disability discrimination have been brought against schools and universities arguing that the educational services have been exclusionary and have limited equal participation by students with disability. Many of these were brought before the Disability

41 42 43 44

45 46 47 48 49

[30]

[31]

[32]

[33]

Ware v OAMPS Insurance Brokers Ltd [2005] FMCA 664 [103]–[104]. Horne v Press Clough Joint Venture (1994) EOC ¶92–591. See e.g. SDA s 21(2)(c). Applicant N v Respondent C [2006] FMCA 1936 (holding that this childcare centre was an ‘educational authority’), although note the exclusion of ‘childcare providers’ from the education standards discussed at 5.4. While the SDA does not apply to State public sector employment, the Act explicitly provides that the education provisions do bind ‘the Crown in right of a State’: SDA s 21(4). AB v New South Wales (2005) 194 FLR 156. CERD arts 5(e)(v); see RDA s 9(2). E.g. Haines v Leves (1987) 8 NSWLR 442 (providing less industrially oriented subjects to girls). E.g. Victoria v Sinnapan (No 2) [1995] 2 VR 242 (closure of school serving Indigenous students).

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Discrimination Act’s Disability Standards for Education 2005 (noted below at [34]) were enacted and before the Disability Discrimination Act 1992 (Cth) (DDA) was amended in 2009 to include an explicit obligation to provide ‘reasonable adjustments’ to students with disability (discussed in Chapter 5). The case of Purvis v NSW50 was such a claim, whereby the student argued that his expulsion from a NSW public school because of his behaviour amounted to direct disability discrimination. This case, ultimately unsuccessful in the High Court, is discussed in some detail at 5.2.1. A series of claims were successful in challenging the lack of provision of Auslan support for deaf students.51 Other claims have been successful in challenging the exclusion of students with disability from private schools,52 requiring some costs of adjustments to be borne even before the reasonable adjustments obligation was included in the DDA. Arguably one of the most significant developments in seeking to address inequality for students with disability has been the enactment of the Disability Standards for Education 2005. Unlike the Disability Standards for Accessible Public Transport 2002 (Cth) (outlined at 5.4) the education standards are not focused merely on equipment and facilities but apply more widely to conduct and behaviour. This includes the development of curriculum, assessment, delivery and accreditation, and student support services. Significantly, these standards imposed an obligation to provide reasonable adjustments to students with disability, even before this provision was included in the definitions of discrimination under the DDA. The standards apply to preschools and kindergartens (but not ‘childcare providers’), schools (public and private), training colleges and tertiary institutions. Education providers must consult, ensure students with disability are provided with education on the same basis as other students (and this may require the provision of ‘reasonable adjustments’), and eliminate harassment and victimisation. As noted in 5.4, disability standards are enforceable legal instruments, not merely guidelines.53 While two reviews have noted positive advances, high hopes for the standards have not been met, with patchy knowledge and implementation, and difficulties using the individual complaints mechanism to enforce them.54 There are some exceptions that apply only to this field, specifically in the provision of education by religious schools (discussed further below, at [62]), same-sex schools,55 and in respect of educational facilities established to provide education for people with particular disabilities.56

6.3.3 Goods and services [36]

All Acts prohibit discrimination in the provision of goods and services. While few issues have arisen in respect of the provision of goods, the provision of services has prompted

50 Purvis v New South Wales (2003) 217 CLR 92. 51 E.g. Hurst v Queensland (2006) 151 FCR 562; Hurst & Devlin v Queensland [2005] FCA 405; Clarke v Catholic Education Office (2003) 202 ALR 340. 52 E.g. Finney v Hills Grammar School [1999] HREOCA 14. 53 DDA s 32; AHRC Act ss 4, 46P. 54 See Urbis, Final Report – 2015 Review of the Disability Standards for Education 2005 (2015) . 55 E.g. SDA s 21(3). 56 E.g. DDA s 22(3).

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litigation and raised questions about what constitutes a service and when exceptions might permit discrimination. Some Acts leave the term ‘services’ undefined, while others provide some guidance about what is to be included.57 One of the first High Court cases to deal with anti-discrimination laws, Waters v Public Transport Corporation,58 was about the provision of public transport in Melbourne and was framed as discrimination in the provision of a service under the Victorian legislation. In that case the respondent tried to draw a distinction between the nature and limits of the service itself, and discrimination in the provision of the service, by characterising the service as provision of a tram service using scratch tickets, which would have defined away the alleged ‘requirement’ to use the tram system with scratch tickets and without conductors. The Court did not accept that the respondent could draw lines around the nature of the service in such a way that removed the challenged conduct or conditions from being found to be discriminatory. The provision of transport to the public, by government or private business, has generally been accepted as the provision of a service.59 In respect of disability, many of these services are now also covered specifically by the Disability Standards for Accessible Public Transport 2002.60 Generally cases alleging a breach of these standards also allege discrimination in the provision of services. If a transport provider operates ‘in accordance’ with the standards, the discrimination provisions of the DDA do not apply for the same conduct,61 but the converse is not the case, so courts have found operators to have directly or indirectly discriminated and to have breached the standards.62 Some challenges have been made to the way in which government activities are carried out and these have been framed as discrimination in the provision of services, with mixed success. Generally the courts have interpreted the term in its ordinary sense rather than narrowly. In IW v Perth, the High Court held that the term would include the process by which a council considered applications for planning approval and granted or withheld approval,63 although dissenting judges on this point held it was not capable of including a refusal to exercise a power under planning legislation.64 In some jurisdictions even some aspects of policing have been held to be a service to the public within the bounds of anti-discrimination duties, with the NSW Court of Appeal holding that ‘the detection and prevention of crime can constitute “services”’ under the Act, and the protection ‘need not be read as limited to the person or persons reporting an event relating to an alleged criminal offence’.65 The Court pointed out that ‘the fact that an authority is required to provide a public service implies that the service is to be provided

57 58 59 60 61 62 63 64 65

6 [37]

[38]

[39]

See e.g. definition of ‘services’: ADANSW s 4(1). (1991) 173 CLR 349. King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8. Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 (Innes); Haraksin v Murrays Australia Ltd (No 2) [2013] FCA 217. See 5.4 for discussion. DDA s 34. E.g. Innes [2013] FMCA 36. IW v City of Perth (1997) 191 CLR 1 (IW v Perth) (Majority: Dawson, Gaudron, Gummow, Toohey and Kirby JJ). Ibid 11 (Brennan CJ and McHugh J (narrowest approach)). Commissioner of Police v Mohamed [2009] NSWCA 432 [49].

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without discrimination across all sectors of the community’.66 However, the Court also noted that while initial investigation of complaints and protection of victims can constitute a service, the term does not necessarily extend to ‘later stages of an investigation and decisions whether or not to prosecute or arrest the alleged perpetrators’.67 While judicial activities of judging and criminal sentencing are not covered by the term ‘service’ under ordinary anti-discrimination legislation, a number of activities in the operation of jails have been held to constitute services. In the context of corrections, the provision of a halal diet has been treated as a service subject to anti-discrimination law,68 but not prison management and control (including accommodation and transport of prisoners), being a core government function of implementing detention after the exercise of judicial power.69 The provision of health and community services has also been the site of a number of complaints of discrimination. These have covered claims of discrimination on the grounds of marital status in the provision of IVF treatment,70 and a question as to whether health services provided specifically to women constituted discrimination against men.71 In another claim of marital status discrimination, the act of a registrar altering a person’s sex on a state’s birth register was characterised as a ‘service’ under the SDA,72 as was the determination by an adoption agency of applicants’ eligibility to become foster carers.73 Further, the Australian Red Cross Society was held to be providing a service in the ‘collection, processing, screening and distribution of blood products’ and could not discriminate against those donating blood.74

6.3.4 Other areas [42]

In addition to the above key areas that have prompted most claims, the Acts also prohibit discrimination in other areas including: access to premises; accommodation;75 administration of Commonwealth programs; and clubs.

6.4 Harassment prohibitions and exceptions [43]

As noted in Chapter 5, harassment can sometimes be framed as discrimination, so the discrimination prohibitions can be used to challenge this conduct. However, all jurisdictions also provide a separate right of action against sexual harassment and some also separately Ibid [36] (Basten J, with whom Spigelman CJ agreed at [1]). Ibid [36], [87] (Handley J). Queensland v Mahommed [2007] QSC 18; (2007) EOC ¶93–452. Rainsford v Victoria (No 2) (2004) EOC ¶93–353. McBain v Victoria [2000] FCA 1009 Proudfoot v ACT Board of Health (1992) EOC ¶92–417 (Proudfoot). AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140. OV and anor v QZ and anor (No 2) [2008] NSWADT 115. Cain v The Australian Red Cross Society [2009] TASADT 3 (unsuccessfully challenging ban on men who have sex with men donating blood). 75 E.g. Christian Youth Camps v Cobaw Community Health Services Ltd [2014] VSCA 75 (CYC v Cobaw).

66 67 68 69 70 71 72 73 74

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prohibit harassment in respect of other attributes, such as disability harassment under the DDA. The scope of the separate obligations not to commit sexual76 or disability77 harassment is notably broader. They apply to some of the same fields as the discrimination prohibitions, including work, education and the provision of goods and services. However, they apply to a wider array of participants, not merely top-down obligations on the employer or the provider of education, goods or services. So, for example, in the workplace these obligations not to sexually harass are imposed personally on all workplace participants, including employers in respect of job applicants and employees, and all ‘workplace participants’ in respect of each other, such as other employees, contract workers, commission agents and partners.78 In addition, the harassment provisions are wider, in that there are virtually no exceptions. The one exception that is often raised as a defence to harassment is really a defence to being held vicariously liable for the conduct of an employee or agent, the defence of ‘all reasonable steps’ or ‘reasonable precautions’ and ‘due diligence’, which is discussed further below (at 6.6.3).

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[44]

6.5 Common exceptions and defences Having outlined the scope and operation of key prohibitions on discrimination and harassment, we turn now to consider key exceptions. The language across Australian anti-discrimination legislation is not consistent or clear in respect of exceptions, exemptions or defences, but we have grouped together here those provisions for which the respondent would bear the burden of proof to defend or avoid a finding of liability. The exceptions we outline here are those most commonly encountered. These are: the defences of reasonableness (to indirect discrimination) and special measures, the exceptions for statutory authority, religious beliefs and unjustifiable hardship (to disability discrimination), exceptions relating only to work such as inherent requirements and genuine occupational qualifications, exceptions for insurance, and temporary exemptions. The exceptions operate in different ways and serve a range of purposes. Some operate as defences to a claim of discrimination, others adjust the scope of the prohibition to serve countervailing interests or rights, and others arguably reflect government’s unwillingness to fully challenge existing ways of doing things. Many are highly controversial,79 as discussed further below. There are many other exceptions which we refer to briefly below but are not

[45]

[46]

[47]

76 See SDA ss 28B–28L. 77 See DDA ss 35–39. 78 See e.g. SDA s 28B. Note that in respect of harassment between different categories of workers, such as an employee and a contract worker, s 28B(6) referring to all ‘workplace participants’ will be applicable, and is limited to conduct that occurs ‘at a place that is a workplace of either or both of those persons’. ‘Workplace’ is defined widely in s 28B(7) to mean ‘a place at which a workplace participant works or otherwise carries out functions in connection with being a workplace participant’ and this second limb was interpreted widely by the majority in Vergara v Ewin [2014] FCAFC 100 [123]–[128] (North and Pagone JJ), and extended to the bar across the road from the workplace because the complainant only went there ‘to deal with [an earlier] incident of harassment’. 79 Vic Parliamentary Scrutiny of Acts and Regulations Inquiry into Exceptions in the EOA 2009.

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able to detail. These too cover a range of rationales and competing considerations, such as health and safety, minimising regulatory overload for small businesses and partnerships, and promoting democracy by exempting working for political parties. In all these provisions, the legislature seeks to lay down a detailed prescription for the scope of anti-discrimination law.

6.5.1 Reasonableness [48]

The first defence to note is ‘reasonableness’. This is available in all Acts, across all attributes, and is central to the definition of indirect discrimination. As discussed in Chapter 5 (at 5.2.2.3), all Acts define indirect discrimination to be a requirement or condition that disadvantages or disparately impacts on those with a particular protected attribute, but only if that requirement or condition is not ‘reasonable’. The Acts differ in respect of the onus of proof, with older versions requiring complainants to prove as an element of the action that the requirement or condition is ‘not reasonable’, while later and amended versions have changed this into a defence of reasonableness. This defence is not available in respect of direct discrimination.

6.5.2 Special measures [49]

[50]

[51] [52]

A second type of defence or exception common to all anti-discrimination laws is for special measures, discussed in detail in Chapter 8 (at 8.2). Special measures are equality-promoting initiatives, such as an employment preference to address under-representation of women or Indigenous people in the workplace. They can be conceptualised in two different ways: either as an exception that permits actions that would otherwise be discriminatory, or else as part of the definition of discrimination, so that actions designed to reduce inequality or disadvantage are not regarded as discriminatory at all. The first conceptualisation, as an exception, is the traditional and limited understanding of how they operate, and the problematic nature of this understanding emerged in early litigation.80 However, modern Acts reflect the second, more sophisticated conceptualisation of discrimination as being only conduct or conditions that promote or reinforce disadvantage, thereby excluding equality-promoting initiatives.81 Under this latter drafting, the definition of discrimination excludes special measures because they are designed to promote equality. This alternative wording might make little difference in litigating, but has a significant symbolic effect of reflecting and reinforcing a substantive conceptualisation of equality. It makes clear that different treatment is not in and of itself a problem; the purpose and impact of that treatment needs to be considered in all the circumstances. Most laws contain definitions of special measures that identify the criteria, usually related to the goals or purpose of the action that must be satisfied to make out the defence.82 The special measures exception in the RDA has special significance, where it is one of only two exceptions, and is defined in terms of the CERD (see discussion at 8.2.3).

80 See e.g. Proudfoot (1992) EOC ¶92–417. 81 See e.g. SDA s 7D; EOAV s 12. 82 Ibid.

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6.5.3 Statutory authority A third type of exception commonly found in anti-discrimination Acts is for compliance with other laws or statutory authority. Whether another piece of legislation overrides an anti-discrimination Act is a matter of statutory construction,83 with the court seeking to understand what parliament intended when two Acts apply to the same conduct and are inconsistent. But most Acts provide some explicit guidance that anti-discrimination laws are not to compel breaches of other laws or orders. For example, SDA s 40 provides that the prohibitions in the Act do not make unlawful ‘anything done by a person in direct compliance with’ an order, determination or decision of a court or tribunal, or in direct compliance with specified Acts, including the Marriage Act 1961 (Cth). These sections are not as broad as they first appear. First, generally the conduct must not merely be permitted by the other law, but directed or ‘necessary’. In the case of SDA s 40, the courts noted that the exception is limited to conduct that is in ‘direct compliance’ and interpreted this narrowly so it covers action taken that is ‘made necessary’ by the other law, but ‘should not be construed to protect acts which are consequential to compliance’ or reflect an exercise of discretion.84 Therefore, it is not sufficient to simply identify another law that regulates the situation; it must require the discriminatory conduct. Second, traditionally this exception extended to compliance with industrial awards and agreements, thereby prioritising such instruments over anti-discrimination law. This situation has gradually changed. Some laws made explicit that the exception was not to apply to industrial instruments.85 This exception in most of the federal Acts ostensibly extends to compliance with an ‘industrial instrument’ under the FWA.86 This does not, however apply to provisions in awards and agreements that have ‘no effect’, and the FWA provides that provisions in awards and agreements that are discriminatory have no legal effect.87

[53]

[54]

[55]

6.5.4 Religious beliefs All Acts contain exceptions that show some deference to religious beliefs, respecting the right to freedom of religion.88 The human rights conventions protect freedom of religion alongside freedom of thought, opinion and expression,89 and religion has distinctive claims based on its non-rational, faith based foundation and fundamental cultural significance. Historically, it has also been a powerful form of social organisation. Both non-discrimination and freedom of religion are fundamental rights,90 and where they conflict with each other,

[56]

83 See Chapter 2 (at 2.6) for discussion of constitutional aspects of the relationship between antidiscrimination laws and other laws. 84 Howe v Qantas Airways Ltd (2004) 188 FLR 1, [82]–[83]. 85 E.g. ADANSW s 54(1)(d). 86 SDA s 40(1)(g). See also ADA s 39(8) and DDA s 47(1). Cf RDA s 10. 87 FWA s 153(1) read in conjunction with s 136(2)(a) (modern awards); ss 194(a) and 195 read in conjunction with 186(4) (enterprise agreements). Discussed further in Chapter 9. 88 E.g. SDA s 23(3)(b) (accommodation provided by a religious body). 89 UDHR art 18, ICCPR art 18. 90 Carolyn Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012).

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some form of reconciliation is needed. In many state laws these exceptions apply to all attributes, while others only permit exceptions for sex-related attributes such as sex, pregnancy, sexual orientation etc.91 At the federal level, only the SDA and ADA contain religious exceptions.92 In anti-discrimination law, the reconciliation of non-discrimination and freedom of religion takes the form of exceptions for: certain religion-related activities; bodies (and specifically schools): or, more broadly, acting in accordance with beliefs. Generally the exception for activities relates to core internal aspects of the religion, such as the selection, training and ordination of officials (priests, ministers or members of religious orders) and people performing duties or functions in connection with religious observance.93 More controversial are exceptions for activities further away from the core. These fall into two main categories: provision of religious schools, hospitals and other welfare services; and more commercially oriented services, such as the running of businesses which may be intended to raise funds for the religion. The first category includes services initiated and run by the religion as well as outsourced government services, where organisations tender for the work, and services are provided under contract with public funding. Both types of services may rely partly or wholly on public funding. In relation to these broader activities, the exceptions in the Acts focus on ‘religious bodies’ (defined as bodies established for religious purposes) or religious educational institutions (discussed below at [62]). The typical religious body exception protects ‘any other act or practice of a body established for religious purposes’ that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’.94 The focus is on discovering what are the doctrines of the religion, and what are the ‘religious susceptibilities’ of its adherents. Doctrine has been determined by making findings of fact based on expert evidence.95 Religiously-based bodies that provide goods, services or accommodation to the public or a section of the public must generally do so without discrimination unless an exception applies. With the outsourcing of government community services in recent decades, many ‘public’ services such as schools, hospitals and adoption agencies are now offered by religious organisations, often with public funding. It has been argued that discrimination should not be permitted where a service is provided with public funding, but the legislation has not treated that as a relevant factor. In OV v Wesley Mission, an adoption agency operating with public funding was permitted to rely on the religious exception in its refusal to accept a same-sex couple as potential foster parents because it was justified by the specific doctrine of the mission’s branch of Christianity.96 However, a religious body could not rely on the

E.g. EOAV ss 82–84. ADA s 35; SDA ss 37–38 (religious schools). SDA s 37(1)(a)–(c). SDA s 37(1)(d). OV & OW v Wesley Mission Council [2010] NSWCA 155. See also Cobaw Community Health Services v Christian Youth Camps Ltd & Anor [2010] VCAT 1613, affirmed on appeal in CYC v Cobaw [2014] VSCA 75. 96 OV & OW v Wesley Mission Council [2010] NSWCA 155.

91 92 93 94 95

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exception when it refused a same-sex youth support group hire of its camp site for a weekend: because this was a business activity run on a commercial basis (unlike the adoption service), the religious exception was held not to apply.97 In a contrasting UK case, a religious adoption agency was not permitted to amend its memorandum of association to exclude same-sex couples, because that would breach the Equality Act’s prohibition on discrimination in public provision of services (s 29) and did not fall within the justification exception.98 Public funding was considered a legitimate basis for limiting this exception for the first time in a significant amendment to the SDA in 2013: the exception no longer applies to discrimination in Commonwealth aged care, other than employment discrimination.99 This means that discrimination in entry to religiously run aged care places on grounds such as sexual orientation or transgender or intersex status is no longer exempted from the prohibitions on discrimination. This amendment was driven by concern that LGBTI people in need of aged care assistance may face discrimination.100 Many laws have specific exceptions for religious schools, either generally or in relation to employment of teachers and selection of students. Such exceptions mean that teachers in religious schools have less protection against discrimination (on grounds such as sex or pregnancy discrimination) than those in public schools, even though the religious school systems are largely funded by public money. There is controversy over how broadly the exceptions should extend: to all staff, including cleaners and gardeners, or only to staff whose roles involve substantial religious content.101 The ADAT has the narrowest exceptions, limited to employment matters where religion is a genuine occupational qualification, admissions to religious schools, and core religious observance matters (ss 51, 52). Finally, some state and territory laws contain further exceptions that protect individuals who act in accordance with their religious beliefs; these are very broad, and more difficult to justify in their current form. The Equal Opportunity Act 2010 (Vic) (EOAV) expresses this exception as protecting a person ‘if the discrimination is reasonably necessary for [them] to comply with the doctrines, beliefs or principles of their religion’.102 This is arguably too broad because it contains no tests of subjective good faith, strength of the belief, importance of the doctrine or belief, or impact of any such discrimination. No similar protection is provided to people who hold other conscientious beliefs that are not religious. It is difficult to see why, in a pluralist society, absolute priority should be given in this way to the beliefs of religious individuals over the rights of others.

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97 CYC v Cobaw [2014] VSCA 75. The case interpreted the previous EOAV 1995, which had already been superseded. The High Court refused leave to appeal from this decision. 98 Rosalind English, ‘Upper Tribunal confirms illegality of Catholic Charity’s ban on same-sex couple adoption: Catholic Care (Diocese of Leeds) v Charity Commission of England and Wales [2012] UKUT (TCC) 395. 99 SDA ss 23(3A), 37(2). 100 Supplementary Explanatory Memorandum on the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013, [6]–[7]. 101 Carolyn Evans and Beth Gaze, ‘Discrimination by Religious Schools: Views from the Coal Face’ (2010) 34 Melbourne University Law Review 392. 102 EOAV s 84.

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6.5.5 Unjustifiable hardship [64]

[65]

[66]

[67]

Another justificatory exception, usually only applicable to disability claims such as those under the DDA, is an ‘unjustifiable hardship’ defence.103 This means that duty bearers like employers and education providers are expected to bear some cost or ‘undergo some hardship’ to ensure that they do not discriminate, and the question is ‘whether any hardship is of such a nature or degree in the circumstances’ to be unjustifiable.104 This concept of unjustifiable hardship is listed both as an exception to discrimination,105 and as a parameter or limit for assessing whether an adjustment is a ‘reasonable adjustment’ under the DDA (as discussed at 5.3). Similarly, the EOAV now imposes a similar obligation to provide reasonable accommodation in respect of parental and carer responsibilities; and in determining whether an employer has unreasonably failed to accommodate a parent or carer, factors are to be weighed akin to those listed below for unjustifiable hardship.106 Generally the value judgement of what is unjustifiable involves a weighing up of several factors. Under DDA s 11, these include firstly the nature of the ‘benefit or detriment likely to accrue’, against the feasibility (availability and cost) of alternative structures, facilities, process or practices needed to mitigate or avoid the exclusionary impact. This could allow considerations of whether the exclusion from the bus, building or promotion, for example, is an absolute one because there are no alternatives, or involves some other sort of impact such as delay, additional cost or indignity.107 For instance, a cinema that offered no access to its theatres other than by a flight of stairs would totally exclude wheelchair users. If the cinema had wheelchair access but only to five of its seven cinemas, this would limit options for those people. In yet another scenario the impact might not amount to total exclusion or even limiting services, but to causing indignity, such as providing wheelchair users with access to the building but only through the rear laneway via the services lift rather than the main public entrance. The feasibility of methods to mitigate the discriminatory impact then has to be assessed. Installing a public lift might be possible for this cinema, but very expensive. However, in determining whether the installation would impose an ‘unjustifiable hardship’, additional factors are to be weighed: financial circumstances, the availability of financial or other assistance, and ‘any relevant action plan’.108 There are a few important aspects of this assessment worth drawing out. Firstly, the test calls for an assessment of the costs of compliance, and the court is to assess the net costs rather than merely the gross estimated expenditure, as any benefits of compliance accruing to the respondent or others are to be taken into account in weighing up whether it imposes an unjustifiable hardship.109 For instance, installing a ramp to allow one employee wheelchair access would cost money but might provide workplace health and safety benefits for other employees with mobility difficulties, suppliers using trolleys and clients with strollers.

103 104 105 106 107 108 109

E.g. DDA ss 21B, 29A. Hills Grammar School v HREOC (2000) 100 FCR 306, [48] (Tamberlin J). See DDA ss 21B, 29A. See e.g. EOAV s17. Scott v Telstra (1995) EOC ¶92–117, 61 (Wilson P). Action plans are discussed in 5.4. Scott v Telstra (1995) EOC ¶92–117, 64.

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Training public transport staff to assist customers who have mental health conditions could have significant benefits not only for those customers but also other travellers and the company’s public reputation. Such benefits might be difficult to quantify but are an important part of assessing the nature and degree of hardship borne by the respondent. Government or other subsidies for adjustments also need to be considered in offsetting expenditure. A second issue raised by the case of King v Jetstar 110 is whether there are limits on the duty bearer’s ability to define their business in a narrow way, for example by seeking to serve only persons without disability. In that case, Ms King claimed that Jetstar Airways had discriminated against her on the ground of disability by imposing a limit of two wheelchairs per flight, which limited her flight options. The airline argued that it was a ‘low cost carrier’ and its entire business case of charging low costs for flights was based on providing minimal service and ensuring fast turnaround at each terminal, which it could not do if it was unable to limit wheelchair assistance. The extensive evidence provided by Jetstar clearly demonstrated that without a limit on wheelchair numbers the airline would need to allow more time at each terminal and, over the course of a day, this would significantly impact on the number of flights it could provide and therefore its revenue. Jetstar limited the number of wheelchairs per flight, but did not explicitly determine this limit to reflect the proportion of mobility impaired people in Australian society. The case raises the issue of establishing a baseline or starting point for assessing costs of compliance. If a business is designed in an exclusionary way, are its operating principles and costs of establishment to be accepted as given, as the baseline from which we then measure how much it would cost the business to change in order to bring about compliance? To what extent is anti-discrimination law able to regulate the design and establishment of businesses, work practices or procurement choices in the way that building codes provide rules about the construction of new buildings? For example, could Uber defend a refusal or limited capacity to transport people with disability because its business is designed only to transport people without disability? The unjustifiable hardship defence legitimately allows for consideration of whether compliance with discrimination laws would impose too much cost on an individual respondent. However, as Martha Minow argues, we should not assume that the status quo is natural and neutral rather than chosen and reflecting existing, often exclusionary, norms.111 If the status quo is not challenged, the norms will not change.

6 [68]

6.5.6 Work exceptions A few exceptions apply specifically and only in the context of work. Of these, the most important are inherent requirements and genuine occupational qualifications. The inherent requirements exception allows employers to exclude applicants for a position, for example, who cannot perform key or central aspects of the job that is on offer. So, for instance, an employer could exclude blind applicants for a bus-driving job on the basis

[69] [70]

110 King v Jetstar Airways Pty Ltd (No 2) [2012] FCA 8 (unsuccessfully appealed). 111 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1990).

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that they could not perform a central part of the job. The exception is not limited to employment, but extends to the full range of paid work arrangements.112 Under anti-discrimination law this exception is generally only available in respect of disability discrimination113 and, to a more limited extent, age discrimination.114 However, under s 351 of the FWA the exception is available in respect of all attributes, and in fact the leading High Court case of Qantas v Christie115 was decided under the similarly worded earlier provision of unlawful termination. Qantas had terminated Christie from his job as an international pilot from the age of 60, and argued that being less than 60 years of age was an ‘inherent requirement’ of the job because some other countries imposed this pilot age limit for their air space, thereby severely restricting Qantas’ capacity to assign routes to Christie. The Court accepted the argument, holding that inherent requirements are not limited to the physical or intellectual tasks of the position but can extend, as they did in this case, ‘to the function the employee performs as part of the employer’s undertaking’,116 including the legal capacity to perform the task. However, they cannot be something merely peripheral; the requirement must be ‘essential to the position’.117 The High Court further developed this notion in the case of X v Commonwealth,118 in which the Australian Defence Force successfully argued that it could lawfully exclude a soldier who was HIV positive because he could not perform the inherent requirement of being deployed safely. The Court confirmed that inherent requirements are not limited to ‘the performance of the tasks or use of the skills for which the employee is specifically prepared’119 but could take into account the social, legal and economic context as well as the way in which the employer has arranged their business, so long as this was not merely contrived to exclude such employees. Being an exception, the onus is on the employer to establish that the applicant or employee would be unable to perform the inherent requirement, and this cannot be used as a mere blanket exclusion but might require some proof of assessment. In the case of Vickers v Ambulance Service of NSW,120 for example, the Court found that the respondent failed to establish this exception because it had not seriously considered whether Mr Vickers could perform the inherent requirements of the ambulance job despite being diabetic. It had not taken account of the very strong evidence he had provided that supported his application, and thus the rejection looked more like an impermissible blanket exclusion. Any safety risk must be considered in light of the person’s individual circumstances and characteristics rather than assumptions based on stereotypes, and must be balanced against the real likelihood of that risk eventuating.121 112 See DDA s 21A(3). 113 See e.g. DDA s 21A. 114 The exception is also applicable to other attributes under some state legislation – see Appendix. E.g. carer’s responsibility under the ADANSW, s 49V(4). 115 Qantas Airways Ltd v Christie (1998) 193 CLR 280. 116 Ibid 284 (Brennan CJ). 117 Ibid 295 (Gaudron J), 305 (McHugh J), 318–19 (Gummow J), 340–41 (Kirby J). 118 X v Commonwealth (1999) 200 CLR 177. 119 Ibid [100] (Gummow and Hayne JJ). 120 [2006] FMCA 1232. 121 Ibid [46]–[49].

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It is important to appreciate that under the DDA, in assessing whether someone can perform the inherent requirements of the particular work the provision of reasonable adjustments must be presumed.122 That is, the respondent needs to establish that the person would be unable to perform the inherent requirements even if reasonable adjustments were provided. (The FWA does not explicitly incorporate any need to provide adjustments.) A related but different exception is that of ‘genuine occupational qualification’.123 In a sense this is the converse of the inherent requirements exception in that it permits an employer to use an otherwise prohibited attribute like sex to choose a candidate. So, for example, the exception allows an employer to exclude male candidates when selecting a person to perform bra-fitting for women, or to choose one particular sex for jobs involving body searches or working with people in states of undress. This exception reflects values of personal privacy and autonomy, although in this way it might arguably reflect questionable norms of gender and sexuality. There are numerous provisions that delineate the public from private domain, allowing people to discriminate when, for instance, choosing a person to work or live in their own home.124 Such exceptions allow other values of privacy and freedom to be balanced against the public policy goal of equality and inclusion.

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6.5.7 Other categories of exceptions The Acts contain a range of other exceptions, particularly in relation to sex and disability. They cover a very diverse range of areas, from membership of private clubs or voluntary associations through to service in the armed forces (SDA and DDA) and protection of health, safety and property at work. Rationales for the exceptions can serve to protect conflicting rights and interests, such as the exceptions in many laws for domestic workers that protect the right to privacy in the home. Some exceptions protect powerful interest groups.125 There is a great deal of variation in the exceptions between laws, even on the same attributes, so that even if an exception applies under one law, it may be possible to bring a claim under the law at the alternative level. There is also inconsistency: some exceptions appear only in some laws, or may set different limits in different laws. An exception for selection of partners in small partnerships appears to rest on a reluctance to interfere in personal relationships of trust, but the threshold varies: below six partners in the SDA (s 17) and below three partners in the DDA (s 18). An exception for clubs for members of particular ethnic groups is generally regarded as acceptable in order to preserve freedom of association and cultural identity; the preservation of rights to single-sex clubs, however, can be seen as a way of preserving traditional privileges from access by women. The exclusion of women from ‘combat

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122 See DDA s 21A(1)(b); Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827. 123 See e.g. SDA s 30 (re sex discrimination). 124 E.g. SDA s 14(3): ‘to perform domestic duties on the premises on which the first-mentioned person resides’; SDA s 23(3)(a) (accommodation); RDA s 15(5) (employment ‘in a dwelling-house or flat occupied by the person’); RDA s 12(3) (accommodation). 125 See discussion in Parliamentary Scrutiny of Acts and Regulations Committee (Vic), Review of Exceptions and Exemptions in the Equal Opportunity Act 1995 (2009).

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duties’ in the armed forces (SDA s 43) has been reduced in scope over the years as equality of opportunity and access has been granted to women. People with disabilities, however, can still be discriminated against in the interests of public health or the health, safety or property of themselves or others. Further details are in Table 4 in the Appendix. Some exceptions are the product of specific power relations in the particular jurisdictions involved; for example in the USA, sex discrimination is unlawful in superannuation in the same way as racial discrimination.126 In Australia, however, discrimination on the grounds of sex, marital or relationship status, family responsibilities and disability is permitted in superannuation fund conditions if it is based on reasonable actuarial evidence.127 A similar exception for insurance in the DDA, SDA and many state and territory laws was recently considered but refused in a case where an insurer refused to pay a travel insurance policy claim for inability to travel because of mental illness because a condition of the policy excluded any claims based on mental illness.128 Both the inclusion of the condition and the refusal to pay the complainant’s claim were held to breach the law. The tribunal was not satisfied that the actuarial data the insurer claimed to have relied on had actually been the basis of its decision to adopt the conditions in the insurance policy. Since the condition was therefore invalid, it could not justify the refusal of the claim, and the insurer’s defence of unjustifiable hardship was rejected.

6.5.8 Temporary exemptions [80]

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All laws except the RDA contain provision for ‘temporary exemptions’ to be granted that only operate for a specified period.129 When the laws were adopted, this was seen as a safety valve for issues that could not be foreseen or could not be fully dealt with in advance by the other exemptions. The Acts provide a process by which the regulatory agency or tribunal can accept applications and grant exemptions for specific initiatives, for a limited period, but generally renewable.130 They operate to permit conduct that might otherwise be found to be discriminatory under the Act. Decisions to grant or refuse such exemption applications are made public and are generally reviewable by administrative decision tribunals, such as the Administrative Appeals Tribunal for decisions made by the AHRC under federal Acts.131 It is of some concern that most laws do not specify the criteria for the exercise of this discretionary power, which is generally exercised on the application of one party only, without any specific requirements for potential opponents to be notified and given an opportunity to oppose the application. Some agencies have developed general guiding principles based on the early decision in the Fernwood Fitness Centres case.132 Some applications can be seen as

126 City of Los Angeles, Department of Water and Power v Manhart 435 US 702 (1978) outlawed women paying higher contributions for pooled superannuation coverage; Arizona Governing Committee v Norris 463 US 1073 (1983) precluded paying women smaller retirement benefits from pooled superannuation funds. 127 SDA ss 41A, 41B. 128 Ingram v QBE Insurance (Australia) Ltd [2015] VCAT 1936. 129 E.g. five years in Victoria; up to 10 years in NSW (s 126A). 130 See e.g. SDA s 44; DDA s 55; ADA s 44; ADANSW ss 126, 126A; EOAV ss 89–91. 131 See e.g. SDA s 45. See also, e.g., ADANSW s 126. 132 Stevens v Fernwood Fitness Centres [1995] VADT 7. The AHRC has developed guidelines for SDA, DDA and ADA exemptions: .

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special measures, such as decisions to allow women-only gyms and gay-only clubs or to employ members of a specific disadvantaged group in some welfare positions for that group.133 Others are more controversial, such as decisions to allow co-educational private schools to limit intakes of students of one or other sex to balance their student body by gender. Others raise serious concerns, such as the series of exemptions under state and territory Acts given to companies engaged in defence contracting work that use licensed American technology under the ITAR regulations, permitting discrimination based on citizenship.134

6.6 Types of liability Anti-discrimination laws generally act not on individuals per se, but on people in particular roles, such as employer, education provider or provider of goods and services. While this role might be performed by a person in an individual capacity, making them personally obligated to comply, often the obligation formally falls on a corporate body. This raises a distinction between personal liability and vicarious or attributed liability.

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6.6.1 Personal liability Individuals can be personally liable under anti-discrimination legislation if they personally breach a liability provision. A person who employs or contracts someone directly to do work would be personally liable for their own discriminatory conduct or harassment as an employer. Similarly, a person running a business in their own name, or even as a sole trader, would be liable for their own discriminatory conduct or harassment in the provision of goods and services, providing education or accommodation. In addition, as noted in Chapter 5, each Act prohibits conduct that amounts to aiding, abetting, instructing or inducing someone else to breach a provision of the Act. Finally, harassment prohibitions, separate from discrimination rights, are generally imposed on all individuals personally, not only the employer. So, for instance, an employed manager who commits sexual harassment could be held personally liable for their conduct in addition to their employer being held vicariously liable. The sexual harassment provisions also extend to workplace participants who are present not as employees but as labour hire consultants.135 On the other hand, many businesses providing goods and services nowadays are structured as corporate bodies, and the Acts acknowledge this and provide mechanisms for attributing liability of their employees or agents to the corporate entities. This includes private corporations, associations, government departments and instrumentalities. For nongovernmental bodies, the Acts provide that the conduct of employees or agents is generally attributable to their employer or principal, on the basis of vicarious liability as discussed below. It has also been suggested that companies should be treated as directly rather than vicariously liable under the Acts because they can only act through their employees and

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133 E.g. Re Morodara [1998] VADT 90. 134 Simon Rice, ‘Staring down the ITAR: Reconciling discrimination exemptions and human rights law’ (2011) 10 Canberra Law Review 97. 135 SDA s 28B(6), (7); Vergara v Ewin [2014] FCAFC 100.

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agents, whose actions should be taken to be those of the company itself, with no need to rely on a vicarious liability provision.136

6.6.2 Vicarious or attributed liability [85]

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Each Act provides a mechanism for holding employers and principals liable for the actions of their employees or agents. These provisions are usually called ‘vicarious liability’ in the legislation, picking up on the concept developed in the common law. As Rees et al note, the terminology ‘vicarious’ is misleading in this context, because its operation in antidiscrimination law is quite different to the common law of tort or employment. They prefer the term ‘attributed liability’, for reasons noted below.137 As the purpose of these provisions is to ensure that the person with capacity to avoid discrimination is required to take responsibility if no action is taken, ‘capacity-based liability’ may be more accurate, though wordy. The anti-discrimination law vicarious liability provisions are wider than the common law rules of vicarious liability in at least three ways. Firstly, since employment is defined to extend to independent contractors, as noted above, the Acts’ vicarious liability provisions correspondingly extend beyond the boundary of employment contracts.138 Second, while the common law doctrines hold employers liable for the torts committed by their employees, under anti-discrimination laws the individual actor need not have breached any personal obligations. The employer or principal will be liable if the employee or agent does ‘an act that would, if it were done by [the employer or principal], be unlawful’. In this way the actions of the employee or agent are attributed to the employer or principal. Finally, while the employer is not liable for all the conduct of its employees, the scope of liability is much wider than the common law test. Under the common law an employer will be liable only for employees and only when they have acted ‘in the course of’ employment,139 which means acting within the employee’s implied or actual authority in carrying out the job they were employed to do, although this extends to using an unauthorised mode or method for performing the task.140 However, under the SDA, for example, the conduct must be merely ‘in connection with employment of the employee’.141 This has been interpreted very widely, particularly for sexual harassment.142 For example, at common law sexual harassment generally would be outside the scope of employment, and the employer would not be liable because it would be outside the scope of the employee’s duties; whereas under the anti-discrimination laws, liability will exist unless the employer can show that it took reasonable precautions to prevent it occurring. The test in anti-discrimination law is not limited by reference to authority, workplace or 136 CYC v Cobaw [2014] VSCA 75, [76]–[78] (Maxwell P). 137 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law (Federation Press, 2nd ed, 2014); ibid. 138 Cf Jonathan Burnett, ‘Avoiding Difficult Questions: Vicarious Liability and Independent Contractors in Sweeney v Boylan Nominees Pty Ltd’ (2007) 29(1) Sydney Law Review 163. 139 South Pacific Resort Hotels v Trainor [2005] FCAFC 130, [65], [70] (per Kiefel J). 140 C Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016) [6.60]. 141 See e.g. SDA s 106(1). 142 See Brook Hely, ‘Open All Hours: The Reach of Vicarious Liability in “Off-Duty” Sexual Harassment Complaints’ (2008) 36(2) Federal Law Review 173.

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functions,143 although these will be considered and the degree of control of an employer can be determinative. The connection is clearly present for conduct at the workplace and during work hours. It can extend, however, to other locations and outside hours if there are factors linking the situation back to the work relationship. If attendance is required of an employee, such as for a training session, conference or site visit, then conduct at that location would be considered to be ‘in connection with’ employment. Even if the event is not compulsory, other factors could link it sufficiently to work, such as the employer funding, subsidising or encouraging workers to attend, including the work Christmas party, sports day or after-work drinks. Even conduct outside working hours in employee accommodation has been found to be sufficiently linked to employment because the accommodation was provided by and to a large extent controlled by the employer, as only staff were permitted there.144 Principals are also held vicariously liable for their agents, although this has been tested less and might be interpreted more narrowly outside the workplace context. In respect of unions, shop stewards and workplace delegates have been held to be agents of the principal union.145

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6.6.3 All reasonable steps defence While the scope of the vicarious liability provisions is very wide, it is balanced in part by a defence noted above: the employer or principal is not liable if it took ‘all reasonable steps to prevent’146 the wrongful conduct. The wording differs across statutes, with the defence alternatively phrased as ‘reasonable precautions to prevent’147 or ‘reasonable precautions and exercised due diligence to avoid the conduct’.148 As noted above, the vicarious liability provisions hold those who have control over a system (such as a workplace) responsible for that system. They tell employers that they will be liable unless they are proactive. This means that to avoid liability employers must do more than merely refrain from directing discrimination and harassment; they must take steps to prevent it. The open-textured wording – ‘reasonable’ steps – means that the test can be applied to a range of organisations, large and small, public and private, across industries and sectors. What is ‘reasonable’ for a small business might not be sufficient for a large firm, for instance. An oral policy and clear statements about respectful relations might be enough for a small business, but larger businesses are expected to do more. The AHRC has provided guidance on what constitutes sexual harassment and, relevantly here, what organisations need to do

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143 See discussion of workplace in Vergara v Ewin [2014] FCAFC 100. 144 South Pacific v Trainor [2005] FCAFC 130. 145 Horne v Press Clough Joint Venture (1994) EOC ¶92–591; cf Abdulrahman v Toll Pty Ltd [2006] NSWADT 221, where allegations were made against the union but it appears action was brought only against the company. 146 See e.g. SDA s 106(2); ADANSW s 53(3). 147 EOAV s 110. 148 DDA s 122(2), (4).

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to prevent it and satisfy the ‘all reasonable steps’ test.149 Factors that are relevant in determining what would be reasonable include: • Size of an organisation and resources available – a large organisation will be taken to have more resources to manage their obligations. • History of sexual harassment (or gender hostility) (that should put the duty bearer on notice of possible future harassment); and • Other factors including geographic isolation, close working conditions, and ‘residential’ arrangements.150 [92]

What steps would be reasonable? AHRC guidance materials151 provide a practical list of five essential elements in respect of sexual harassment: (a) High level management support. (b) Having and implementing a sexual harassment policy. Implementing means disseminating, discussing, translating, monitoring and revising as needed to ensure it is effective. (c) Providing (regular) training on the policy to ensure that all workers understand what harassment is and what the policy says about it. This training would also include making it clear to workers that they have personal obligations under the legislation and the policy, and consequences they can expect if they breach either.152 (d) Encouraging appropriate conduct by managers, which covers role modelling professional conduct themselves and dealing appropriately with complaints raised. (e) Creating a positive work environment. This means at least ensuring that it does not have offensive, sexually explicit posters, screensavers or email communications, and monitoring this.

[93]

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The defence is rarely made out in litigation, although this might be in part because those employers who have taken reasonable steps avoid litigation or settle early when harassment does occur.153 By drafting the vicarious liability provisions in this way – with a wide scope twinned with an exception – the net is cast very widely, but a defence is allowed for those organisations that have been proactive in seeking to address discrimination and harassment. The reasonable steps mechanism serves to encourage proactive initiatives by organisations to prevent misconduct by offering a defence to liability in the event of such misconduct by a rogue employee. The effectiveness of the provision in driving preventative action is limited, however, by two regulatory elements: placing obligations not to discriminate generally on 149 AHRC, Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (October 2008) . 150 Ibid 21. 151 Ibid 33–5. 152 One issue employers have faced is legal action by dismissed harassers. See Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford University Press, 2nd ed, 2011). 153 The defence has been upheld under the EOAV which has a less stringent test than the federal formulation: Howard v Geradin Pty Ltd t/a Harvard Securities (2004) EOC ¶93–358. For discussion of an inadequate policy in a small business which did not provide a defence, see Styles v Murray Meats Pty Ltd (2005) EOC ¶93–387 (both VCAT).

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specified roles rather than individuals; and providing this as defence to liability rather than a mitigation in regard to the sanction.154 Firstly, when there is little or no scope or incentive to sue the individual perpetrator, then generally it will be the institutional actor (e.g. the employer) alone who is the respondent because of the cost implications of suing both. In such a case, a finding that the employer is not responsible for the discriminatory conduct of its employees or agents may leave the applicant without any recourse for harm suffered as a result of the conduct. Secondly, the effectiveness of the capacity-based liability provision is impeded by the limitations of anti-discrimination law remedies to compensation alone. In a regulatory system where a range of remedies is available to encourage the desired behaviour, selection of the appropriate penalty would occur after a finding of liability by evaluating culpability and other relevant factors, as in the criminal justice system or administrative penalty regimes. Because anti-discrimination law is a civil compensation regime and allows no penalties, the capacity-based liability attaches to determination of liability rather than being adjusted to culpability as part of determining penalty. Hence there is no capacity in the law as it stands to fine-tune liability to the efforts of an employer or principal. For these reasons, the ‘all reasonable steps’ defence to vicarious liability may help to encourage proactive initiatives by duty bearers, but in practice its regulatory role is limited by the limitation of the law to compensation in the individual case. Arguably a more effective way of doing this would be to adopt an explicit duty on employers that clearly outlines their responsibilities and identifies the consequences for failing to act. An example of such a positive formulation is EOAV s 15, which provides that duty holders under the Act ‘must take reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimisation as far as possible’, but the Act does not specify any consequence for non-compliance, other than exposure to a discrimination claim.

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6.7 Distinctive features of the Racial Discrimination Act The Racial Discrimination Act’s distinctive character has already been noted. Not only was it the first federal anti-discrimination law, but since it dates from 1975, it closely follows the CERD as its constitutional base. The general prohibition of discrimination in s 9 focuses on acts that have the ‘purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom [as listed in art 5 CERD] in the political, economic, social, cultural or any other field of public life’. Section 9 is supplemented by ss 11–15 which prohibit unequal treatment (defined in terms similar to s 9) by ‘any person’ in specified areas of activity including access to places and facilities; land, housing and other accommodation; provision of goods and services; the right

[98]

154 Belinda Smith, ‘A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press, 2006).

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to join trade unions; employment155 and advertisements. Education is covered, as noted above at [32]. The most distinctive feature of the RDA, however, is s 10, which extends beyond dealing with discriminatory actions to deal with discriminatory laws. Anti-discrimination laws in Australia generally do not apply to the quintessential roles of government, namely making laws and enforcing them (see [5], above). And it is clear that this general rule applies to RDA s 9; ‘a person’ can include a body corporate, but not the parliament in the making of laws.156 Section 10, however, is different, as noted in Chapter 2 (2.6.2.3). Entitled ‘rights to equality before the law’, it is one of the most significant sections of the RDA. Section 10(1) provides: If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race … do not enjoy a right that is enjoyed by persons of another race … notwithstanding anything in that law, persons of the first-mentioned race … shall, by force of this section, enjoy that right to the same extent as persons of that other race … [emphasis added] It is significant because it applies to government legislative action in adopting or giving effect to laws. It operates to ensure that racially discriminatory laws are interpreted in a non-discriminatory way. Unlike the prohibitions on discrimination we have outlined in this chapter, s 10 does not refer to discrimination, and it cannot be enforced through a complaint of discrimination to the AHRC. This provision operates of its own force, and there is no need to bring a claim of discrimination to enliven it. Instead, the provision defines its own remedy, and that can be obtained by applying to a court for an order that s 10 applies and declaring its effect. For constitutional reasons (see 2.6) the section has a different operation in respect of state and territory laws on the one hand, and Commonwealth laws on the other. Because of the operation of s 109 of the Constitution to invalidate inconsistent legislation, s 10 operates in conjunction with s 109 in relation to state and territory laws. Where such a law is within s 10, and it is a law that applies a prohibition or penalty against one racial group only, then it will be inconsistent with s 10 and will be invalidated under s 109 of the Constitution. However, if it is within s 10 and it is a law that confers a right on one racial group but not another, then there will not necessarily be inconsistency under s 109, and s 10 will operate to provide the remedy by extending that right to the group that does not have it. Where a federal law is challenged under s 10, the issue to be resolved will be which of the two laws prevails, according to the usual rules of statutory interpretation. If the RDA is held to prevail, the remedy provided for in s 10 will operate, namely the right will by virtue of s 10 be enjoyed to the same extent by both groups.

155 In the RDA, ‘employment’ refers to work under a contract of service and a contract for services (s 3(1)), but does not explicitly cover the other categories of workers, such as contractors and partners. However, the general prohibition in s 9 extends to all persons who discriminate in respect of fundamental rights and freedoms. 156 Mabo v Queensland (No 1) (1988) 166 CLR 186, [4] (Mason CJ); [14] (Brennan, Toohey, Gaudron JJ); see also [28] (Dawson J). ‘Section 9 proscribes the doing of an act of the character therein mentioned. It does not prohibit the enactment of a law creating, extinguishing or otherwise affecting legal rights in or over land’: Gerhardy v Brown (1985) 159 CLR 70, 81, 120–21’.

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In respect of state and territory laws, s 10 operates in conjunction with s 109 of the Commonwealth Constitution which renders inoperative state laws that are inconsistent with federal laws. In Chapter 2 we noted the general pre-emptive effect of federal anti-discrimination laws on state laws relating to other areas of activity, for example in McBain’s case in which a Victorian law that limited access to reproductive technology only to partnered women was held to be inconsistent with the SDA’s prohibition on marital status discrimination.157 Section 10 supports and extends this operation by making it clear that the federal Parliament intends to cover the field or otherwise render inconsistent any state (or territory) law that is racially discriminatory, thereby making it invalid to the extent of the inconsistency. In this way the RDA represents a statement by the federal government that state and territory laws must not be racially discriminatory; the courts are directed to nullify the discriminatory effect of the offending law.158 Thus all state and territory laws can be challenged against a standard of racial discrimination and ruled invalid. The most significant case on s 10 is Mabo (No 1) v Queensland,159 an important step in the quest for recognition of native title. After Mabo commenced his claim for native title, the Queensland government enacted the Queensland Coast Islands Declaratory Act 1985 which would have asserted Crown title and extinguished without compensation any native title rights that might still exist for the Murray Islanders. Mabo challenged the Act under s 10, and the High Court held, by majority, that it contravened s 10. The Act sought to interfere with traditional land rights, which as property rights were within the human rights, in Art 5 of the Convention, to own and inherit property. Since only traditional owners could enjoy traditional land rights, a state Act that sought to extinguish only the property rights of potential native title holders was caught by s 10, which operated to restore the right by nullifying the Queensland Act to the extent of this inconsistency.160 Most recently, in Maloney v R,161 it was held that the Liquor Act 1992 (Qld), under which a declaration of an area of Palm Island made possession of alcohol over a certain limit an offence, fell within s 10 even though the unequal rights of the Indigenous and mainstream communities were not present on the face of the law, but resulted from its use. The Act was, however, saved from invalidity because it was a special measure within s 8(1). With respect to federal laws, the situation is different. For state laws, the effect of s 109 of the Constitution is pivotal, but for federal laws the contest is between two laws of the same parliament. The long-standing constitutional principle that parliament cannot bind future parliaments limits the operation of s 10. While it can be used as an interpretive tool for laws enacted prior to the RDA’s enactment in 1975, the courts must determine whether parliament intended a later Act to override the earlier Act. A later law that is racially discriminatory and thus inconsistent with s 10 might be interpreted in this way, as intending to override the RDA and thus to prevail. This can occur in several ways. First, the later law might expressly provide that the RDA does not apply to it,162 or it could declare that its provisions are special 157 158 159 160 161 162

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[103]

McBain v Victoria [2000] FCA 1009. See Mabo (No 1) (1988) 166 CLR 186, [17] (Brennan, Toohey, Gaudron JJ) re operation of s 10. Mabo (No 1) (1988) 166 CLR 186. Mabo (No 1) (1988) 166 CLR 186, [20], [21] (Brennan, Toohey, Gaudron JJ); [25] (Deane J). [2013] HCA 28. E.g. Northern Territory National Emergency Response Act 2007 (Cth) s 132(2) (NTNER Act). This Act was replaced by the Stronger Futures in the Northern Territory Act 2012.

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measures within the RDA, leaving a court no scope to independently assess the measures or to disagree with this legislative judgement.163 The Native Title Act 1993 (Cth) expressly limits the application of the RDA only to the ‘performance of functions and the exercise of powers’ under the Act, thereby excluding the operation of s 10.164 Even without an express provision, a later Act could prevail according to the rules of statutory interpretation, provided the intention to override the RDA was unambiguously clear from it.165

6.8 Conclusion [104]

In this chapter we have outlined the nature and scope of the prohibition on discrimination and related conduct under anti-discrimination laws. The prohibitions turn upon attributes, as explained in Chapter 4, and particular conduct, as discussed in Chapter 5, and are limited in scope to specific areas of life. We have outlined the key areas of work, education and the provision of goods and services, before noting how the scope of operation is limited by many exceptions. The various types of liability have been outlined in addition to distinctive features of the RDA. Now we turn in Chapter 7 to explore how these prohibitions are enforced.

163 E.g. NTNER Act s 132(1). The Stronger Futures Act (above n 162), ss 7, 33, 37, provides that the Act’s objects are to enable special measures to be taken. This may not present the same barrier to testing the law, but still suggests that parliament regards the measures in the Act as special measures within the RDA. 164 Native Title Act 1993 (Cth), as amended by the Native Title Amendment Act 1998 s 7(2), provides that the RDA applies only to ‘performance of functions and the exercise of powers conferred by or authorised by’ the Act. 165 E.g. Hindmarsh Island Bridge Act 1997 (Cth) s 4, which rolled back Aboriginal cultural heritage protection laws to allow a bridge to be built, was an unambiguous authorisation from parliament of the discriminatory conduct.

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7.1 Introduction [1]

[2]

[3]

Enforcement of the law is fundamental to protecting human rights. Even the strongest legal provisions cannot protect human rights unless they are enforced effectively. In ratifying the international discrimination conventions, Australia has undertaken to prohibit discrimination by law and to ensure effective protection against discrimination;1 however, enforcement is a major challenge in anti-discrimination law. The right to non-discrimination is a human right, which is not only a right of the individual involved, but a matter of public interest because of its implications for the groups that suffer discrimination. However, unlike many other human rights which are enforced only or primarily against the state (such as criminal process rights or freedom of assembly, movement, thought, expression and religion), non-discrimination rights are also enforced against private sector employers, individuals and organisations. The law has not fully acknowledged the public nature of these claims and at present treats discrimination as if it was merely a private individual matter, like a tort claim for personal injury, and overlooks its public interest role in protecting human rights and, indirectly, improving the position of disadvantaged groups. The usual enforcement process under anti-discrimination law in Australia is that a complaint of discrimination is made to an administrative agency. The agency then investigates by obtaining a response from the alleged discriminator, and conducts a conciliation process to resolve the matter if possible. If conciliation is unsuccessful, the person complaining (complainant) can take the matter for adjudication in a tribunal (at state and territory level) or court (under federal laws). There are two main concerns with this process. The first is its focus on the private rather than the public interest, which affects processes and remedies. Second, as a consequence, enforcement is seen as a private responsibility, rather than a public obligation to ensure that human rights are protected. Anti-discrimination processes are often under-resourced and slow, and can be expensive to use. Enforcement can be difficult and demanding for individuals and there can be large power disparities between complainants and respondents. Anti-discrimination laws are expressed to grant rights of legal action and remedies to identifiable individuals or groups of individuals who can prove their own rights have been breached. The remedies available also reflect this individual focus, and often fail to apply pressure for systemic change: although many courts and tribunals have power to make ‘any order’ by way of remedy, they are very reluctant to make orders with systemic effect, so that the remedy usually ordered in a successful discrimination case is money compensation. The focus on settling individual cases through conciliation and the absence of public resources for enforcement gives little weight to the public interest in developing the law through judicial decisions that elaborate anti-discrimination norms and principles. It also denies the broader motives of complainants, who are often reported as saying that they wanted to ensure no-one else in their situation can be treated as they were.2 1 See International Covenant on Civil and Political Rights (ICCPR) art 26; Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) arts 2, 15; Convention on the Elimination of all forms of Racial Discrimination (CERD) arts 2, 5, 6; Convention on the Rights of Persons with Disabilities (CRPD) arts 4(1), 5, 12, 13. 2 E.g. ‘Legal system fails employees wronged at work: Christina Rich’ HR Daily, 7 September 2009 ; Melissa Singer, ‘Student wins landmark ruling against QBE for not reimbursing cancelled flight due to mental illness’, The Age, 19 December 2015.

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Enforcement of the law rests entirely on people bringing complaints of discrimination: unless complaints are brought, there is no enforcement. Assistance from the public agency in most jurisdictions is limited to the conciliation process, and access to legal aid for litigation is very limited.3 By contrast, most comparable countries empower an agency to enforce the law directly or to fund enforcement action, which allows for ‘strategic enforcement’ in selected cases to ensure the law is effectively developed and rights protected.4 Even within Australia, in other areas of law that affect individuals with limited capacity to enforce their rights, such as consumer law or employment rights, it is recognised that enforcement by a public agency is essential for the law’s effectiveness, because the great personal and financial risks for individuals can be a barrier to enforcement. Law recognises the public interest in enforcement in these areas, but has yet to do so in the context of anti-discrimination law. This chapter outlines the current processes involved in enforcement and considers their effectiveness in providing individual remedies and in leading to systemic change. Because of the number of different laws involved, we will focus on the procedures applicable under the four Commonwealth laws, noting important differences where relevant. We argue that reform is needed to improve enforcement and effectiveness of the existing law, as well as to expand the range of mechanisms available for enforcing the law and bringing about the changes to practices that are necessary to reduce discrimination. Litigation focused on enforcement of individual rights should not be the sole avenue for responding to discrimination and disadvantage. Other mechanisms that apply pressure for change at the systemic level are essential components of a proper commitment to enforcing anti-discrimination law and giving effect to its aims. Approaches such as standard setting, for example through the disability standards, practice guidelines5 and other informal standards, should be used to provide clear guidance to duty bearer about what they are expected to do, just like standards in workplace health and safety or environmental protection. These need to be backed up by regulatory powers such as power to investigate potential breaches, issue compliance notices and accept enforceable undertakings, and by remedies and effective litigation possibilities that apply pressure more directly for necessary changes at the systemic level. Only with these more serious forms of enforcement can we expect to move towards a society which enables, includes and allows for flourishing of all groups and individuals.

[4]

[5]

[6]

7.2 Processes and institutions of enforcement Generally, Australian anti-discrimination laws are enforced through action by an individual to protect their own rights. The laws generally set up a two-step process which involves first a complaint to, and attempted conciliation by, an administrative agency and then, if that

[7]

3 Discussed at [49]–[50], below. 4 Equality and Human Rights Commission (UK) (EHRC) Strategic Litigation Policy (March 2015) ; Dominique Allen, ‘Strategic Enforcement of Anti-Discrimination Law: A New Role for Australia’s Equality Commissions’ (2010) 36(3) Monash University Law Review 103. 5 See e.g. Equal Opportunity Act 2010 (Vic) (EOAV) ss 148–150.

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[8]

[9]

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fails, the complainant taking the dispute for adjudication. Every jurisdiction has an agency that can deal with enquiries and receive complaints of discrimination and then undertake the process of investigation and conciliation required by the law. When a matter is taken further, for hearing and a decision, under the four federal laws, dispute resolution occurs in the Federal Circuit Court or Federal Court.6 In the states and territories, it will be heard in a specialist tribunal, or in a human rights or discrimination section (list) of a general civil and administrative tribunal.7 Only Victoria has moved away from this structure, making the conciliation stage optional so that a complainant can choose to avoid it and take their complaint directly to adjudication.8 This change allows a complainant to move their case along faster by omitting the conciliation stage, for example where the respondent is not likely to settle. The original rationale for the two-stage structure was that requiring conciliation and an opportunity for the parties to resolve the dispute in an informal way, guided by a conciliator, would reduce adversarialism and promote reconciliation, cooperation, education, and respect for human rights. A conciliatory approach seems clearly appropriate where a breach of human rights occurs inadvertently – where it could be expected that when the breach is brought to the attention of the person responsible, they will be willing to be educated and to change their behaviour. But in reality this is not always the case: even where a breach is inadvertent, the respondent may not be prepared to admit an error, and in many cases the action may be deliberate because the respondent is pursuing another goal such as reducing costs in business or giving effect to prejudice. In those cases, the requirement to pursue conciliation first is less appropriate and can serve to delay the process and deter the complainant. The two-stage process can be slow, and delays can act as a barrier to justice in addition to the cost and risks of litigation. Especially where agencies lack sufficient resources to process complaints and conciliations quickly, delay can sap the energy, commitment and resolve of a complainant to pursue a complaint, while the lengthy process also offers numerous opportunities for a respondent to further delay, impede, or increase the costs of getting to the final step of deciding the substance of the claim.9 The normal stages of processing a complaint under the two-stage model require a complainant to formulate and lodge their complaint, undergo the agency’s investigation process, and then participate in a conciliation

6 Until 2000, disputes under the federal laws were heard by the Australian Human Rights Commission (AHRC) (under its previous name Human Rights and Equal Opportunity Commission or HREOC) acting as a tribunal. HREOC was formally renamed the Australian Human Rights Commission on 5 August 2009, and the HREOC Act was renamed the Australian Human Rights Commission Act 1986 (Cth) (AHRCA): Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (Cth). 7 Six jurisdictions use a general tribunal, known as the Civil and Administrative Tribunal in NSW, Vic, Queensland, the ACT and the NT, and as a State Administrative Tribunal in WA; specialist stand-alone tribunals are used in Tasmania (Anti-Discrimination Tribunal) and SA (Equal Opportunity Tribunal). 8 The Victorian model is similar to that used in the Canadian province of Ontario: Human Rights Code, RSO 1990, c H-19, s 34; Department of Justice, Victoria, An Equality Act for a Fairer Victoria: Equal Opportunity Review Final Report (2008) (Gardner Report); Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 783–9 (Rob Hulls, Attorney-General). 9 Beth Gaze and Rosemary Hunter, Enforcing Human Rights in Australia: An Evaluation of the New Regime (Themis Press, 2010).

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process. If that is unsuccessful, they must then draft and lodge a claim to a court or tribunal for adjudication, and then undergo a further mediation process within the court or tribunal before being able to proceed to the substantive hearing of the issues in dispute. Applications to strike out the proceeding or for summary dismissal provide further opportunities for the respondent to apply pressure on the complainant and make enforcement more difficult, which can be challenging even in a strong case.10 The amount of time and preparation involved, and the need for legal advice in relation to formulating claims, drafting documents and keeping the process going, means that only the most determined of complainants is likely to follow through. As we have noted above, anti-discrimination law is complex and can be technical with the result that litigation outcomes are often unpredictable, increasing the risks involved in pursuing a complaint. This is particularly a problem in the federal jurisdiction, where litigation occurs in the courts and the normal rule that the loser pays the winner’s legal costs usually applies. Strong complaints are likely to be recognised by respondents and settled to avoid both embarrassment from publicly defending their actions in court and the creation of a precedent that favours complainants. Proceedings in tribunals under state and territory laws are less risky because the tribunals do not generally award costs against a party unless their behaviour justifies it;11 but a successful complainant can be left undercompensated, because any award of compensation will not include payment to cover their own legal costs. In addition, the tribunals tend to award low levels of damages, which can devalue the human right by failing to order a sanction that will deter its breach. The impact of the lack of public enforcement in anti-discrimination law is that the law is likely to be under-enforced. The risks and barriers to bringing a claim are substantial for even the most determined individual. In Innes v RailCorp, for example, even though the individual was the Disability Discrimination Commissioner, there was no public support for any legal action and he had to bring the case as a private individual, with the consequent risks of financial loss and even bankruptcy if the claim had failed. Innes had made regular complaints to RailCorp about its inadequate announcement system on the Sydney train network over many months, and the corporation had failed to act on them. Even though the corporation had a clear obligation under the Disability Standards for Accessible Public Transport 2002 (Cth) to provide such a service, like any litigation the case had risks. Unless an individual was prepared to take those risks, the law in relation to the public transport system could not be enforced. The judge in that case commented that:

7

[10]

[11]

It would appear startlingly obvious to the lay observer that passengers travelling upon trains need to know where to get off. It would be equally obvious that this information should be provided in a way that was effective for all passengers. If it was not, the lay observer would conclude that those passengers for whom the information was not provided effectively were ‘discriminated’ against as they understand the way the word is generally used, ‘to make a distinction, as in favour of or against a person or thing’ … Yet this … case has been about [a] lengthy series of arguments over the meaning of words and interpretation of a statute that proudly proclaims its ‘beneficial nature’. This 10 See [42]. 11 See discussion at [22].

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is not to blame those whose duty it was to argue for their clients. Lawyers work with laws and if those laws are written obscurely or ineffectively the shortcomings should be exposed. If my reasoning in this decision is found to be wrong, as well it might, the lay observer may be startled. It is hoped, that being so, she will take the matter up with those who write such laws and seek a less complex way of determining when actionable discrimination occurs, one that is less expensive, less profligate of legal and judicial time, less stressful for the parties.12

[12]

In the circumstances, it is hard to avoid the conclusion that this system is not designed to facilitate enforcement of rights, but rather to deter the litigation which is the only means by which rights can be enforced. While the system encourages resolution by conciliation, this allows for compromise and settlement if the parties can agree, rather than enforcement of rights. There is a clear need for a better way to enforce the law, for example through powers for the public agency to bring enforcement actions or complaints in cases like Innes that are of high public interest or that raise systemic problems.

7.2.1 Making a complaint [13]

[14]

Although the terminology they use varies, all laws require a complaint of discrimination to be made in writing to the relevant agency.13 Agencies generally have a complaint form that can be used and collects the basic information required, but it is not essential to use them. Complaints are often lodged without legal advice having been obtained, and may be quite vague on the exact nature of the complaint. Several laws require the agency to assist the complainant to formulate their claim, but this does not extend to ensuring that they have legal advice on their claim.14 A complaint needs to identify facts sufficient to show a breach of the law: that includes identifying the complainant and respondent, the attribute involved and the conduct said to be discrimination. Complaints under the Commonwealth laws can be brought by a ‘person aggrieved’ or a group of persons aggrieved, on behalf of themselves, or themselves and others who are affected, or by a person or trade union on behalf of a person or persons aggrieved.15 State and territory laws are broadly similar; some allow for complaints to be brought by a representative organisation on behalf of its members.16 However, federally, only the person or persons on whose behalf a complaint was brought can take court action if conciliation is unsuccessful.17 In federal law, a complaint lodged on behalf of at least one other person

12 Innes v Rail Corporation of NSW (No 2) [2013] FMCA 36 [168] (Innes). 13 Australian Human Rights Commission Act 1986 (Cth) (AHRCA) s 46P(1). The agencies are: Commonwealth – AHRC; NSW – Anti-Discrimination Board (ADB); Victoria – Equal Opportunity & Human Rights Commission (VEOHRC); Queensland and NT – Anti-Discrimination Commission (ADC); Tas – Equal Opportunity Tasmania (Office of the Anti-Discrimination Commissioner); SA and WA – Equal Opportunity Commission (EOC); ACT – Human Rights Commission. In Victoria, bringing a ‘dispute’ to the Commission is optional: EOAV s 122. 14 AHRCA s 46P(4). 15 Ibid s 46P(2). See further 7.4.1.1: Who can complain?. 16 See e.g. EOAV s 114, ADANSW s 87C; ADAT s 60. 17 AHRCA s 3(1) ‘person affected’, s 46PO(1).

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who is not named as a complainant is called a ‘representative complaint’. Such a complaint can only be lodged when specific conditions are satisfied; in particular, the complaints by all class members must be against the same person, arise out of similar or related circumstances, must give rise to a ‘substantial common issue of law or fact’, and need not identify all class members in advance.18 In contrast, many state and territory laws that allow complaints to be brought on behalf of others or by a representative body require all members of the group to be named and consent to the complaint.19 Representative claims allow the risks and costs of proceedings to be distributed among a wider group. Although there are some reported cases involving group claims20 and representative claims,21 these avenues have not been extensively used in Australian law. Even where a representative claim succeeds, a losing party may dispute the precedential effect and scope of the decision, as occurred in Nojin v Commonwealth, where the Commonwealth insisted that the decision applied only to the specific parties to the claim, not all underpaid workers in disability enterprises.22

7.2.2 Time limits There is no hard time limit for lodging a complaint, but agencies generally have discretion to refuse to proceed with complaints that are lodged more than 12 months after the event complained about.23 Power to terminate a complaint also exists where the agency concludes that the actions complained of are not unlawful; that the complaint is trivial, vexatious, misconceived or lacking in substance; where some other remedy has been sought that has adequately dealt with the complaint; or where there is some other more appropriate remedy that is reasonably available to the person, or the dispute could be more effectively or conveniently dealt with by another statutory authority.24 Once a complaint has been terminated, the complainant has a limited time to lodge a court action, or in state and territory jurisdictions to apply to the tribunal for adjudication.25 The President of the Australian Human Rights Commission (AHRC) can also terminate a matter because it involves a matter of public importance that should be dealt with by the courts rather than through conciliation.26

18 19 20 21

22 23 24 25

26

[15]

AHRCA s 3(1) ‘representative complaint’, ss 46PB, 46PC. See also ADAQ ss 194–200. E.g. Anti-Discrimination Act 1977 (NSW) (ADANSW) ss 87A, 87B; EOAV s 114(1). Eatock v Bolt (2011) 197 FCR 261; Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165. Nojin v Commonwealth (2012) 208 FCR 1 (Buchanan, Flick and Katzmann JJ) (Nojin); Jones v Toben [2002] FCA 1150; Jones v Scully (2002) 120 FCR 243. Litigating representative claims is governed by Part IVA of the Federal Court of Australia Act 1976 (Cth). Nojin (2012) 208 FCR 1; Beth Gaze, ‘Discrimination, Temporary Exemptions and Compliance with the Law’ (2015) 23 Aust J Admin Law 10–14. AHRCA s 46PH(1)(b). Ibid s 46PH. See e.g. AHRCA s 46PO(2), allowing 60 days. The ACT also allows 60 days. NSW, NT and WA allow 21 days, Queensland and Tasmania 28 days, SA three months, and Victoria ‘within 12 months of the alleged breach’. AHRCA s 46PH(1)(h).

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7.2.3 Choosing which avenue to pursue [16]

[17]

[18]

Where the complaint involves an attribute that is protected under both Commonwealth and state or territory laws so that either could be used, a complainant has to choose between different avenues to raise their claim: should it be lodged under state or territory antidiscrimination law, or under federal law, or should some other avenue be considered, such as a complaint under the Fair Work Act in relation to adverse action or unfair dismissal, or an action for breach of contract? Can the actions be brought alongside each other, or must the person choose only one of them? The scope and range of factors relevant to the choice of jurisdictions that a complainant must make renders expert legal advice particularly important at this very early stage. An initial question is whether to proceed under the antidiscrimination laws or to use another avenue, such as the FWA (discussed in Chapter 9), occupational health and safety laws, or even contract law. Proper advice has to be based on an understanding of the avenues available in each jurisdiction, as well as the facts of the case and what evidence is available to establish them. Factors that need to be considered include time limits for lodging or pursuing a claim, the substance of the law in each jurisdiction, any advantages or difficulties of proof and procedure, the possible remedies available, any risks or advantages in relation to the costs of litigation, and whether there is a regulator who may support an individual in enforcement. We first discuss the choices within anti-discrimination law, and then alternative possible claims. The relationship of federal and state anti-discrimination laws under the Constitution constrains some aspects of the choice. In early anti-discrimination cases, it was held that since both federal and state anti-discrimination laws could apply to a matter, there was inconsistency under s 109 of the Constitution, because the Commonwealth laws indicated an intention to cover the field and thereby overrode the state laws, which were ineffective to the extent of the inconsistency.27 This was resolved by amending the Commonwealth antidiscrimination laws to clarify that they did not intend to exclude the operation of state laws ‘capable of operating concurrently’ with them,28 a phrase that has not yet been judicially interpreted. To avoid double claiming, a provision was added that if a claim had already been lodged under a state or territory anti-discrimination law, no claim could be made under the Commonwealth laws.29 Because only one anti-discrimination avenue can be pursued, it is vital to ensure that all relevant factors are considered at this stage before any complaint is made. A practical concern with these arrangements is that it is quite common for individuals who believe they have a discrimination claim to locate an anti-discrimination agency themselves (most often the local state or territory office) and make an inquiry, then lodge a complaint before any legal advice is obtained.30 Given the complexity of the issues that affect this choice, as outlined below, a blanket refusal to allow a federal claim after a state law claim has been lodged is difficult to justify, especially where expert advice is difficult to

27 28 29 30

See discussion at 2.6.2.1. See e.g. SDA s 10(3). See e.g. SDA s 10(4). Gaze and Hunter, above n 9.

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access. It would be more appropriate to require that only one claim be carried forward to conciliation and investigation, but to allow a person who has made an unwise initial choice to correct it.31

7.2.3.1 Access to legal advice The range and complexity of the issues that affect choices made by complainants at such an early stage makes access to expert specialised legal advice very important. While some complainants will be able to go to private solicitors, many will not have the resources to fund their own legal work and will instead seek advice or representation through community legal centres or legal aid agencies, through pro bono provision by lawyers and law firms, or through trade union arrangements. Some state and territory legal aid organisations provide advice in anti-discrimination matters. For example, Victoria Legal Aid has a specialist Equality Law program, and Legal Aid NSW provides specialist advice on anti-discrimination law. Discrimination claims have historically been a low priority for the allocation of legal aid, where they have been largely treated as cases of solely individual benefit.32 There are some specialist community legal services that deal with matters relating to discrimination for specific groups or areas, such as employment discrimination, for women or people with disabilities, who may provide advice but do not have the resources to provide representation.33 Some parties are able to arrange pro bono representation through firms that have pro bono sections or through liaison with pro bono coordinating bodies, and the federal courts have a scheme for providing access to pro bono services.34 The AHRCA also specifically provides for applications to the Attorney-General for assistance to bring a case under the Act, and several such grants have been made.35 Because of these difficulties, while many parties may gain access to some level of advice, many still proceed to hearing unrepresented in the courts as well as the tribunals.

[19]

7.2.3.2 Factors relevant to choosing In considering choices within anti-discrimination law, both the substantive provisions of the law and the process for enforcing the claim must be considered. Substantive factors that affect the choice involve considering whether the definitions of discrimination or any relevant exceptions are more favourable to the claim under state or federal laws. They may vary by state or territory and involve careful checking and comparison of the detailed

[20]

31 While it is believed that informal arrangements exist between federal and state agencies to allow some claims to transfer at very early stages, the legality of those arrangements is not clear. 32 See now, Attorney-General’s Department, Commonwealth Guidelines for Legal Financial Assistance 2012; Victoria Legal Aid, Handbook for Lawyers – Guideline 4 Equal Opportunity and Discrimination (9 October 2014) . 33 For example, JobWatch, Working Women’s Centres, Disability Discrimination Legal Service, Australian Centre for Disability Law and AED (Association of Employees with Disabilities) Legal Centre. 34 For example, Justice Connect in Victoria and Public Interest Advocacy Centre (PIAC) in NSW. See Nojin (2012) 208 FCR 1 and Innes [2013] FMCA 36. 35 AHRCA s 46PU, used to assist in Stanley v Service to Youth Council Inc (2014) 225 FCR 317 and Poppy v Service to Youth Council Inc (2014) 317 ALR 195. The 2012 Guidelines apply: see above n 32.

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[21]

[22]

[23]

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provisions discussed in the rest of this Part. For example, the definition of carer’s responsibilities under s 4 of the Equal Opportunity Act 2010 (Vic) (EOAV) is wider than ‘family responsibilities’ under the SDA, and unlike the SDA, the EOAV covers indirect discrimination as well; so a case that might fail under federal law could be brought successfully under the Victorian law. The DDA incudes obligations to provide reasonable adjustments for a person with a disability that may not exist under all state and territory laws. Tasmania has a narrower exception for religious organisations and schools than the Commonwealth laws,36 so that a defence available to a religious organisation under the SDA may not be available under Tasmanian law. State public servants are not covered by the SDA,37 although they are subject to the other Commonwealth laws to the extent possible. Commonwealth agencies are not subject to state and territory laws.38 Factors relating to processes and enforcement are equally vital. The speed of processes varies between jurisdictions; for example, fast resolution may be important for a dispute within an ongoing work relationship where the aim is to keep the relationship on foot. Evidence suggests that the longer disputes take to resolve, the more intractable the adversaries become and the more difficult they can be to resolve. Caps on the amount of damages that can be awarded exist in some jurisdictions,39 so if a claim is thought likely to result in a damages award above the cap, it could be lodged in the federal jurisdiction instead.40 One factor that can be of overriding importance is the different approach to legal costs between the federal and state/territory laws (see 7.4.8). In most state and territory jurisdictions, where cases are heard in a tribunal, orders for costs are unusual, and made only where a party’s behaviour in litigation is unreasonable.41 Under the AHRCA and the four federal anti-discrimination laws, enforcement occurs in the federal courts, and the normal rule that the loser pays the winner’s legal costs applies. The Federal Circuit Court has the same jurisdiction as the Federal Court, but deals with the ‘shorter and simpler’ matters and awards costs on a lower scale than the Federal Court. Matters can be transferred between the two courts where appropriate.42 For a strong case, the federal avenues are attractive because a successful party can get an award of costs as well as their remedy, but where the claim is more doubtful or the complainant is risk-averse, the state and territory jurisdictions involve less risk of paying costs if the case fails, even though undercompensating is likely if the case succeeds. These jurisdictions are more suitable if the priority is to minimise risks. It is also necessary to consider whether a claim outside anti-discrimination law would be a better avenue. Claims under the FWA can be litigated in the federal courts but are not subject 36 ADAT ss 51–52. 37 Which applies only to the Crown in right of the Commonwealth: SDA s 12. Other Commonwealth laws apply to the Crown in right of both the state and the Commonwealth: RDA s 6; DDA s 14; ADA s 14. 38 Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85 (Goldberg, Weinberg and Kenny JJ). 39 See ADANSW s 108(2), which has a damages limit of $100,000; EOAWA s 127, which has a limit of $40,000; and Anti-Discrimination Regulations NT reg 2, capping damages at $60,000. 40 Another approach to this problem is to bring each element of a discrimination claim as a separate complaint to which the damages cap applies separately, even if they are processed and heard together. 41 See e.g. Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 109; Civil and Administrative Tribunal Act 2013 (NSW) s 60. 42 Phillipa Alexander, ‘Costs in unlawful discrimination proceedings’ (2015) 128 Precedent 55.

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to the rule that the loser must pay the winner’s costs, thereby reducing the risks involved in such claims. FWA claims, such as unfair dismissal or adverse action claims, are subject to different time limits: where a dismissal is involved, the time limit for bringing a claim is 21 days,43 which is a very short time in which to get legal advice and then draft and lodge a claim. The time limit tends to be enforced strictly unless an exceptional reason can be given for needing an extension.44 An FWA claim that does not include dismissal has a six-year time limit.45 Another advantage for claimants is that claims under the FWA can sometimes draw on assistance from the regulatory body, the Fair Work Ombudsman (FWO) which has power to undertake enforcement action. It can issue compliance notices, take legal action against respondents for civil penalties for breach of the law, and seek compensation for the affected individual. It also has power to enter into an enforceable undertaking or a ‘proactive compliance deed’ with an employer that agrees to take specific remedial steps that are often systemic and aimed at ensuring the employer does not repeat its behaviour with any other employees.46 For example, where an accounting firm had terminated the employment of a longstanding employee who had sought adjustments to working times and duties as a result of a diagnosis of depression, an enforceable undertaking was negotiated. The FWO agreed not to take enforcement proceedings in return for an agreed statement of facts, and undertakings to ensure future compliance with the law, to compensate the employee for lost earnings and provide an apology, to provide training (approved by the FWO) to senior officers in the following two years, to notify all staff of the undertaking and its contents, and to publish a notice of it in the local paper.47 This ensured publicity for the negotiated outcome and began the process of educational and systemic change in ways that are difficult to achieve under anti-discrimination laws. The FWO’s power of proactive enforcement, even though it is used in a limited number of cases, creates a context in which employers know that systemic enforcement is possible, which is completely absent in the anti-discrimination sphere.

7.3 Investigation and conciliation of complaints In Australia, the anti-discrimination agencies are given the role of investigating and attempting conciliation of complaints of discrimination and harassment. This has affected the agencies’ understanding of their own roles. In an early case, conciliation was set aside on the ground of bias when a conciliator, on a complaint of racial discrimination in entry to a night club, commented that someone she knew had also been refused entry.48 In this sense, actual

[24]

FWA ss 336, 774. See e.g. Juwa v Blue Cross Animals Society of Victoria (2015) FWC 5476. FWA s 544. Beth Gaze, ‘Fair Work Ombudsman’s regulatory powers: The use of enforceable undertakings’ (2013) 20 Australian Journal of Administrative Law 180. Dominique Allen, ‘Wielding the big stick: Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman’ (2015) 21(1) Australian Journal of Human Rights 119. 47 Bush & Campbell Pty Ltd (Enforcable Undertaking, FWO, 5 November 2012). 48 Koppen v Commissioner for Community Relations (1986) 11 FCR 360.

43 44 45 46

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conciliators are required to act impartially as between the parties; however, some agencies have taken this to require the agency itself to maintain a position of impartiality in order to avoid an appearance of bias in carrying out all its functions. In addition, some appear to have taken the view that positioning as neutral is essential to their regulatory role. There is a danger that this may put them into a relatively passive position in relation to enforcing the law, limiting their willingness to act as an advocate for enforcement of the law and its underlying policy. Unlike the FWO, which is an active and persistent enforcer of its law,49 anti-discrimination agencies do not generally have power to support parties seeking to enforce the law. Some laws provide for specific forms of assistance; for example, the Commissioner for Equal Opportunity in WA has power to apply for an interim order in relation to a complaint (s 85) and can, on request, assist the complainant in the presentation of their case to the Tribunal, contribute towards the cost of necessary witness and other expenses (s 93), and provide financial and other assistance towards an appeal to the Supreme Court if that becomes necessary (s 93A). Other forms of support for enforcement, such as the ability of the Victorian EOHRC and the ‘special-purpose’ Commissioners of the AHRC to act as intervener or amicus curiae in cases under the Act,50 may serve the interests of the agency in how the law should be interpreted, and the public interest, but do not directly support enforcement of the law by the only people who are authorised to enforce it. Most agencies have power to initiate and conduct investigations into breaches of the law, often subject to referral from or consent of the tribunal or the Minister.51 These powers are rarely used, however: they are often confined to serious or systemic breaches only, agencies may be reluctant to target private sector organisations in this way, and past experience has demonstrated that investigating government bodies and practices can provoke hostility and reaction from governments.52 While the agencies’ powers are valuable, they cannot engage in or support basic enforcement of the law. They do not have the powers of most regulatory agencies that would allow them to develop and give effect to a strategic enforcement policy that could select cases carefully and support them through litigation to set precedents that clarify important aspects of the law.53 Instead, the system as it is currently structured pits ‘one-shotter’ complainants with a lot to lose, and facing substantial risks, against large and often ‘repeat player’ respondents who face reputational and financial risks that will be treated as business risks and costs.54 In view of their limited powers, the agencies have generally chosen a regulatory path that

49 Tess Hardy, John Howe and Sean Cooney, ‘Less Energetic but More Enlightened?: Exploring the Fair Work Ombudsman’s Use of Litigation in Regulatory Enforcement’ (2013) 35 Sydney Law Review 565. 50 EOAV ss 155–160; AHRCA s 46PV (amicus only). For a discussion of the use of the amicus power, see Ronnit Redman, ‘Litigating for Gender Equality: The Amicus Curiae Role of the Sex Discrimination Commissioner’ (2004) 27(3) University of New South Wales Law Journal 849. See further [52]. 51 See e.g. EOAV pt 9. 52 In Victoria, for example, an inquiry launched by the Equal Opportunity Commissioner into conditions in the women’s prison at Barwon was instrumental in a government decision to abolish her office during a reform of the law: Equal Opportunity (Amendment) Act 1993 (Vic). 53 Allen, above n 4. 54 Marc Galanter, ‘Why the “Haves” Come out Ahead: Speculations on the Limits of Legal Change’ (1974) 9(1) Law & Society Review 95.

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involves persuasion, education, and encouragement of compliance with the law. Confining them to the use of the carrot without any access to the stick of enforcement is not the most effective means of achieving compliance. The terminology used in the laws in relation to disputes and their resolution varies to some extent, but the major phases of the conciliation process are similar. After a complaint is received, the agency will review it to see whether it falls within the legislation, and may decline to proceed with it if it does not disclose an unlawful act. If it is accepted, the agency will then conduct an inquiry or investigation, which in general involves sending the written complaint to the respondent and seeking their response. Once a response is received, a conciliation process will be undertaken which can be done by telephone or in person. In some agencies, early resolution efforts are made by telephone in an attempt to resolve the issue quickly, as evidence shows that disputes tend to become more entrenched and difficult to settle the longer they continue.55 In addition, disputes that arise in the context of an ongoing relationship between the parties, such as at work, may need to be resolved quickly if the relationship is to be preserved. Agencies generally have powers to compel attendance at a conciliation conference and the production of information or documents to facilitate this process.56 Legal representation at such a conference may be excluded unless the conciliator consents or the party has a disability that requires a representative to attend.57 ’Conciliation’ is usually used to refer to a form of mediated dispute resolution in which the parties to a dispute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and actively encourage the participants to reach an agreement.58 Within this general idea, the range of possible approaches to conciliation is still wide. Conciliators may conduct the process in such manner as they think fit.59 Anti-discrimination agency conciliators are usually not lawyers, and see their role as promoting agreement and resolution of disputes rather than vindication of legal rights.60 In contrast, the mediation that occurs within the court system before a case proceeds to hearing, or within the Fair Work Commission, tends to be more interventionist, where expert mediators may express opinions on the relative merits of the cases involved and in some cases strongly encourage parties towards resolutions. Although conciliation occurs ‘in the shadow of the law’, the

7 [27]

[28]

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55 AHRC, Conciliation – How it Works (January 13 2016) . 56 See e.g. AHRCA ss 21, 46PJ, 46PI, 46PM. The conference is to be held in private: AHRCA s 46PK. 57 Ibid ss 46PK(5)–(7). 58 Institute of Arbitrators and Mediators Australia, Conciliation (22 October 2015) . See further Hilary Astor and Christine Chinkin, Dispute Resolution in Australia (LexisNexis Butterworths, 2nd ed, 2002). 59 AHRCA s 46PK(2). 60 See e.g. Rosalie Poole, ‘Facilitating systemic outcomes through anti-discrimination conciliation and the role of the conciliator in this quest’ (2016) 27 Aust Dispute Resolution J 49.

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influence of legal considerations on the process and its aims can be quite variable. Aspects of the law that frame the conciliation process are the likely remedies and the costs rules in the jurisdiction, as the potential impact of court costs and the level of possible compensation are factors to be considered by the parties. In addition, the time and the emotional and financial demands and risks of litigating condition the approaches of both parties at conciliation. Conciliators usually prefer not to have legal representatives speak for parties at conciliation, but to deal directly with parties, who are generally permitted to have their legal adviser available for them to talk with.

7.3.1 Confidentiality of conciliation [30]

[31]

While conciliation is confidential in relation to the parties, this may not be because of a statutory requirement but because conciliators require parties to agree to confidentiality as a basis for the conciliation process. The laws impose strict confidentiality obligations on agency staff not to disclose any information about the affairs of a person obtained in the course of their employment,61 so conciliators are strictly bound to keep everything that occurs during conciliation confidential, and many laws also provide that nothing said or done during conciliation can be given in evidence in the case if it proceeds to court.62 Some laws require or permit conciliators or agencies to provide a report on a complaint to the court or tribunal if the dispute is referred for adjudication, but it is unclear what role such a report is intended to play, as it generally cannot refer to anything said or done in the course of the conciliation.63 It cannot avoid the need to prove elements of the claim by evidence in court; and as it is not based on seeing the full evidence, any assessment it made of the relative merits of the case could not be persuasive for the court, and would not be subject to being tested by cross-examination in any event. The laws do not usually oblige parties to keep the matter confidential. Confidentiality is usually agreed to as a basis for conciliation, although publicity has sometimes been used as a bargaining tool.64 A substantial proportion of cases settle at conciliation. Factors that encourage settlement may include the learning process that can occur from hearing the other side’s experience, a wish to avoid further disputation and costs, and the ability to maintain confidentiality, which can be important for respondents concerned about reputational damage. Conciliated settlements almost always include a confidentiality term, usually in the agreement the parties sign, either because it is required by the respondent or because it may be in a proforma agreement that the agency provides for unrepresented parties to use.65 The effect is to privatise the enforcement process, which becomes a closed system in which information

61 AHRCA s 49, in contrast with EOAV s 117. Note that the conciliation conference must be held in private: AHRCA s 46PK(2). The discrimination Acts also contain confidentiality provisions, e.g. RDA s 27F, SDA s 112. 62 See e.g. AHRCA ss 49(1)–(2), 46PS. 63 See e.g. AHRCA s 46PS. 64 E.g. ‘Kristy Fraser-Kirk and Mark McInnes declare truce in $37 million lawsuit’, news.com.au, 18 October 2010 ; Fenella Souter, ‘The Damage Done’, Good Weekend, 28 August 2014. 65 There is no requirement for agencies to do this, but it appears to be common practice.

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about the types of cases raised and the nature of the settlements achieved at conciliation is suppressed. This ensures that disputes resolve only the individual cases, not broader issues about equality, and do not provide guidance that could prompt systemic change. Because of the confidentiality of conciliation generally and of conciliated settlements, it is very difficult to ascertain the nature of the settlements reached, and in whose favour the agreements lean. Lack of information prevents parties being able to identify a ‘ball park’ settlement figure for particular types of cases. In a strong case, a confidential settlement may well exceed the level of compensation awarded in reported cases, and may also include agreement to undertake systemic changes of a kind that are unlikely to be obtained in court. Such agreements remain confidential, however, and are not known to anyone other than the parties and practitioners involved. They cannot set precedents that could be followed by other parties with similar claims. Settling the stronger cases in this way has the effect, as noted above, that the cases litigated may be the weaker cases, and may set precedents that are less favourable to complainants. We simply do not know if this is the case, as the data is not accessible. Weaker cases may be settled at conciliation with no compensation, or may not be settled and may simply be abandoned.66 No published information is available about the content of the settlements in cases that are resolved at conciliation. A little reporting of settled cases has occurred when agencies have published some data on anonymised settlements,67 but it is difficult to obtain an overview or representative impression of what is occurring based on this data. Since only a very small proportion of cases proceed beyond the agency conciliation process to the adjudication stage, the major part of the operation of this system of enforcement occurs in secret and provides no guidance to other potential complainants or respondents about their rights or obligations.

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7.3.2 After conciliation As noted already, when a settlement has been reached at conciliation, a written document (invariably including a confidentiality clause) is usually signed recording the agreement. This agreement can be enforced as a contract or deed, but many laws also provide for the agreement to be registered with the agency or tribunal, after which it can be enforced as if it was an order of the tribunal. This process has to maintain the confidentiality of the agreement. Where no settlement can be reached at conciliation, then the complaint will be terminated on the basis that there is ‘no reasonable prospect of … being settled by conciliation’,68 and the complainant then has a choice whether to proceed to adjudication in a court or tribunal, or to abandon the claim.69 In Victoria, a complainant can bypass the entire conciliation process and choose to take their complaint directly to the tribunal. This may be an advantage in avoiding delays in some cases that are likely to be intractable; but in most cases, conciliation is an advantage for complainants as it gives them an opportunity to settle a claim with

[33]

[34]

66 Consent of all parties is needed to withdraw an application: AHRCA s 46PG. 67 See e.g. AHRC, Conciliation Register (2 October 2015) . Most agencies discuss some examples in their annual reports. 68 AHRCA s 46PH(1)(i). 69 See above n 25 for time limits to make this decision.

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reasonable speed and relatively low cost. However, if the claim is not settled, the price of that process is further delay in dispute resolution.

7.4 Adjudication 7.4.1 Applying to a court or tribunal [35]

A federal complaint can be terminated for a wide range of different reasons, including that it is ‘trivial, vexatious, misconceived or lacking in substance’, that it has been adequately dealt with by another process or some other more appropriate remedy should be pursued, that it could be ‘more effectively or conveniently dealt with by another statutory authority’, or that it involves an issue of public importance that should be dealt with by a court.70 Provided that it has been terminated, an application for a hearing of the matter can be lodged in the federal courts within 60 days of the notice of termination.71 The unlawful discrimination alleged in the application must be actually or in substance the same as the subject of the terminated complaint, or must actually or in substance arise out of the same set of acts, omission or practices as the terminated complaint.72 Drafting the documents is important, because they must disclose the elements of a valid claim under the legislation, and therefore must rest on an understanding of the elements of the specific discrimination claim to be made and the available evidence. Although the AHRC has power to assist complainants to draft these documents,73 it is not obliged to do so, making access to legal aid assistance very important. Short time limits can make it challenging to determine entitlement to legal aid and draft the necessary documents within the time permitted. In the state and territory jurisdictions, there is a variety of approaches and time limits. Some require the agency to refer matters to the tribunal,74 while others allow complainants to lodge the matter themselves.75 The time limits for doing this vary,76 as does the question whether the agencies are required or empowered to assist complainants to draft the necessary documents.

7.4.1.1 Who can complain? [36]

The range of people who can apply to the federal courts for a hearing is narrower than those who can lodge a complaint with the AHRC. An application can only be made by ‘an affected person in relation to the complaint’, which is defined as ‘a person on whose behalf

70 AHRCA s 46PH; also that it is outside jurisdiction, or it falls outside the discretionary time limit of 12 months. 71 Ibid s 46PO. 72 Ibid s 46PO(3). 73 Ibid s 46PT. 74 ADANSW ss 93A–94A. 75 See e.g. EOAV s 122. Conciliation by the VEOHRC is optional rather than essential and complainants can go directly to VCAT. 76 See above n 25 for time limits. For example, in Queensland a request for referral must be made within 28 days of the failure of conciliation, although this can be extended, and the Commissioner must act on the request. If no resolution has occurred six months after lodging the complaint, a request for referral can be made: ADAQ ss 164A, 166.

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the complaint was lodged’.77 Although representative actions can be brought, this provision prevents trade unions and associations from bringing actions on behalf of their members unless they are themselves a ‘person aggrieved’.78 This provision narrows the scope for an association to act on behalf of its members, instead requiring the ‘affected’ individual to take the full risks of litigation by themselves. This denies the inherently group-related nature of discriminatory attributes and discrimination claims and further reinforces the perception in the federal laws that discrimination is solely an individual matter. This is unfortunate, as development of the law through class actions has been an important step in enforcing antidiscrimination laws in the US,79 and could play a role in improving enforcement in Australia if it was more effective. By contrast, provisions in state and territory laws are broader. As well as allowing for representative or group actions to be brought, many also permit actions by representative bodies where the contravention arises out of ‘the same conduct’.80 However, their requirements for such actions can be narrower than the federal criteria as they require complaints to arise from the same facts or conduct.81 Some state and territory laws also allow for an application to be brought by the anti-discrimination agency as a result of an ‘own-motion’ investigation,82 but this power is rarely used. Whether this is because of lack of resources or for other reasons is not clear.

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7.4.1.2 The respondent The respondent may not necessarily be the person who actually made the decision or took the action that is the basis of the complaint. The claim must be made against the person to whom the statutory prohibition is directed in the legislation. For example, in an employment discrimination claim it will usually be the employer, while in a sexual harassment claim it may be the person who was the harasser. But in the latter case, the employer can be added or substituted as a respondent who may also be liable for those actions under the vicarious liability provisions.83 A claim of discrimination in education, for example, must be brought against an ‘educational authority’ defined as ‘the person or body administering an educational institution’,84 so the liability of the organisation will be direct rather than vicarious.

[38]

77 AHRCA ss 3, 46PO. 78 Jones v Toben [2002] FCA 1150; Stokes v Royal Flying Doctor Service (2003) 176 FLR 66; Finance Sector Union v Commonwealth Bank (1999) 89 FCR 417. Cf. Access for All Alliance (Hervey Bay) Inc v Hervey Bay City Council [2007] FCA 615 (association did not have standing). 79 See Michael Selmi, ‘The Price of Discrimination: The Nature of Class Action Employment Discrimination Litigation and its Effects’ (2002) 81 Texas Law Review 1249. 80 EOAV s 123(2)(b). However, the Victorian Act limits both representative and association claims to actions arising out of ‘the same conduct’, which is much narrower than the federal conditions for representative actions. 81 EOAV s 124. See e.g. Executive Council of Australian Jewry v Scully (1998) 79 FCR 537. 82 See e.g. EOAV s 127; ADAQ s 155; ADAT s 60(2). 83 See 6.6.2: Vicarious or attributed liability. 84 See e.g. SDA ss 4, 22.

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7.4.1.3 Controlling access to adjudication [39]

[40]

Once a complaint has been terminated, even for reasons that suggest it has no merits, the choice of whether to proceed to court is generally entirely for the complainant.85 There is a tension between providing open access to justice through the courts, and controlling access to prevent the use of expensive court resources in hopeless cases. Allowing some control mechanism over access to the courts can be justified, but only (in this jurisdiction) if it does not operate to exclude complainants who are poor or disadvantaged for the wrong reasons. Although the majority of cases being terminated for disclosing no cause of action fail if they are taken to adjudication, some succeed. Ensuring adequate expert advice for unrepresented complainants is arguably an economical alternative to avoid such court costs. Once a matter moves on towards adjudication, it will generally incur greater costs, as there will be a need to draft the court application and in some jurisdictions to provide an affidavit or other material to accompany it. If affidavit evidence is not required at the outset, it will normally be required before the matter proceeds to mediation.

7.4.2 Interim orders and interlocutory proceedings [41]

[42]

Lodging a complaint of discrimination does not stop any decision or action said to be unlawful discrimination from taking or continuing to have effect, but all laws allow for a person to apply for an interim order to ‘maintain the rights of the complainant, respondent or any affected person’.86 Such an order can be applied for once a complaint has been lodged with the agency. In deciding whether to grant such an order, a court will generally consider whether there is a genuine or serious question of fact to be decided in the final hearing, and then assess where the balance of convenience lies.87 As with all court or tribunal matters, parties generally have the right to legal representation in such matters.88 Once a matter has been lodged with the court, other interlocutory litigation can also occur. A respondent can apply to have a claim struck out as disclosing no cause of action, or can apply for summary judgment once a full hearing has begun. Such an order can be granted where it appears to the tribunal that the matter is lacking in substance or misconceived, or frivolous, vexatious or an abuse of process.89 In general the test is quite stringent because the decision maker needs to be satisfied that the case has no chance of succeeding. Even if unsuccessful, such applications can nevertheless be used strategically to wear down the other party’s resources of energy, commitment and money.

7.4.3 Mediation [43]

Normal court processes usually require that a matter be sent for mediation to explore whether a settlement is possible. Processes such as mediation, production of further 85 Cf in NSW, some types of claims require leave of the Tribunal to proceed: ADANSW s 96. 86 AHRCA ss 46PO(6), 46PP. 87 Chris Ronalds and Elizabeth Raper, Discrimination Law and Practice (Federation Press, 4th ed, 2012) 194–5. 88 AHRCA s 46PQ. 89 Ronalds and Raper, above n 87, 205–6.

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particulars of the claim and production of documents are governed by the powers and rules of the relevant court or tribunal. Mediation is an informal process in which a neutral third person encourages those in the dispute to talk to each other about the issues and reach an agreed settlement. Although ‘the mediator is not an advice-giver or decision-maker’,90 this process can have more leverage than agency conciliation because the prospect of a court hearing and the associated costs and risks becomes more concrete, and this can focus parties on the risks and benefits of proceeding or settling. The pressure to settle matters before hearing is intensified not only by the requirement for mediation and the costs of court proceedings, but also by the risks that are cast onto parties through the use of offers of compromise. These offers can transfer the risk of having to pay legal costs onto the other party if they do not accept a settlement offer, and later, even if they are successful, if they receive an award that is below the settlement offered (see 7.4.8, below). Mediated settlements, like conciliations, are usually confidential and thus do not contribute to the development of knowledge about the possibilities for resolving different types of complaints.

7.4.4 Procedure and evidence at adjudication When a matter reaches a court hearing, the normal rules of court civil procedure apply, although many laws require courts to proceed without regard to technicalities or legal forms.91 The intention is that discrimination claims should not be governed by technicalities, but as the quote from Innes indicates, this objective has not been given full effect. The rules of evidence apply to court proceedings, in contrast with the state and territory tribunals which are required by their legislation to act with as little formality as possible and are not bound by the rules of evidence, although they are nevertheless required to ensure that they rely on material of probative value.92 In the tribunals, parties in adversarial civil claims such as discrimination matters have to introduce all the relevant evidence to prove their cases.93 The events involved and the harm that the complainant has suffered must be proved as matters of fact by evidence, in order to justify the remedy sought.

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7.4.5 Proof As discussed in Chapter 5, the onus of proving the elements of the claim on the balance of probabilities falls on the complainant. Defences must be proved on the balance of probabilities by the respondent. There has been some confusion about the nature of proof in anti-discrimination law, especially in direct discrimination. Proof can be thought of as involving three elements: the content of proof (what elements have to be proved), the standard of proof (what level of proof must be shown) and the burden of proof (who has responsibility for proving any particular point). Assuming it is clear what must be

90 91 92 93

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Resolution Institute, Mediation (2015) . AHRCA s 46PR. See e.g. Civil and Administrative Tribunal Act 2013 (NSW) s 38(2). Bertus De Villiers, ‘Burden of proof and standard of proof in the WA State Administrative Tribunal: A case of horses for courses’ (2013) 32 University of Queensland Law Journal 187.

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established (which is discussed in Chapter 5), there has been dispute about the standard and burden of proof in discrimination cases. The general civil standard of proof is on the balance of probabilities (i.e., more likely than not), and this must be based on evidence. However, there has been some confusion over the Briginshaw principle and what it means for anti-discrimination cases. In Briginshaw’s case,94 which involved an allegation of adultery (a serious allegation of ‘fault’ for divorce at the time) against a woman in a divorce court, the High Court held that a serious allegation must be proved by evidence of appropriate weight. The court was reluctant to find adultery proved on less than satisfactory evidence. This general principle is that where allegations have serious consequences, then the nature of the evidence must be appropriate to the seriousness of the matter; but the case does not set up a third standard of proof. In some early anti-discrimination cases it was held that an allegation of racial discretion would always attract the Briginshaw principle and it was treated as setting up a higher standard of proof than the balance of probabilities.95 This view was rejected in Victoria v Macedonian Teachers’ Association, in which the Full Federal Court held that a government policy decision did not raise any suggestion of moral culpability or blame and hence did not require the application of the Briginshaw principle.96 More recently it was held that no higher standard of proof is involved even where an allegation of racial discrimination is made that could be regarded as culpable,97 and that the correct approach is that in s 140 of the Evidence Act 1995 (Cth) which requires a court to ‘find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities’ but permits it to take into account the nature of the cause of action or defence, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. The onus of proof of every element of the claim is on the complainant unless the legislation states otherwise. In direct discrimination claims, this means the complainant has to prove that the actions of the respondent were ‘because of’ or ‘based on’ or ‘on the ground of’ the protected attribute. In many indirect discrimination claims, the complainant has to prove that the condition, requirement or practice imposed by the respondent was ‘not reasonable,’ while other laws make it clear that the reasonableness of the requirement or condition is a defence for the respondent to prove. Proof may be difficult because the complainant will usually not have access to all the information necessary, including the reasons of the respondent for acting. Complainants regularly fail to prove their cases as the link between the protected attribute and the unfavourable treatment cannot be positively established, and this is because courts have been unwilling to infer a connection in the absence of some direct evidence.98 This has particularly affected racial discrimination claims, which have a very poor record of success in the federal courts, with only six cases between 2000 and 2014 in which a complainant was successful at the substantive hearing of their claim.99 94 Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). 95 Sharma v Legal Aid (Qld) [2002] FCAFC 196. 96 Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8; Victoria v Macedonian Teachers’ Association of Victoria Inc (1999) 91 FCR 47. 97 Qantas Airways Ltd v Gama (2008) 167 FCR 537 [110] (French and Jacobsen JJ), [139] (Branson J). 98 Sharma v Legal Aid (Qld) [2002] FCAFC 196; Department of Health v Arumugam [1988] VR 319. 99 Beth Gaze, ‘The Racial Discrimination Act After 40 Years: Advancing Equality, or Sliding into Obsolescence?’ in Perspectives on the RDA: Papers from the 40 Years of the RDA (AHRC, Aug 2015) 66–80.

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The Australian position is in contrast to all comparable countries, each of which provides a mechanism by which, after a prima facie case of discrimination has been shown, the burden of proof shifts to the respondent to adduce evidence of why they acted, in order to rebut the prima facie case, or to prove that they did not act for the prohibited reason.100 It is also in contrast to the position in adverse action claims under the FWA, where the shifting onus of proof of the reason for acting is also available (see Chapter 9). This feature of adverse action claims is a major attraction for bringing discrimination matters under the FWA.

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7.4.6 Access to legal representation and the role of agencies Research has shown that there is an association between legal representation and success in anti-discrimination litigation in the federal courts.101 Because of the technicality of the law and the procedure, it is a very challenging area for an unrepresented party. This makes access to legal aid and legal representation very important, as discussed above. In particular, it is likely to be cheaper to provide expert assessment of cases and advice that can discourage parties with weak cases from proceeding, than to allow unrepresented applicants to bring claims that use expensive court and tribunal time because of lack of access to expert advice. While access to advice can be difficult, access to representation is even more limited, and many parties have to present their own cases to a court or tribunal. The technicalities of this area of law make this extremely difficult for a non-lawyer, and it is not surprising that many such claims fail. In this way, lack of access to adequate legal advice and representation undermines the enforcement of the law. Filling the gap would require public provision of resources for presenting cases in court, even if only in selected, strategically chosen cases. The possible sources of legal advice and representation for poor complainants include legal aid, agency assistance, and pro bono assistance by the legal profession. Legal aid bodies may support some discrimination law cases either in-house or through private lawyers (see [19] above), and Victoria Legal Aid’s Equality Law program has assisted in a number of precedent-setting cases.102 In some states, anti-discrimination agencies are empowered (Equal Opportunity Act 1984 (SA) s 95C) or required (Equal Opportunity Act 1984 (WA) s 93(2)(a)) to assist a complainant to present their case to the tribunal, although these functions are limited by available resources. In other jurisdictions the agency can act as an intervener or amicus curiae to present argument (with leave of the court) in support of a claim or to clarify aspects of the law. This allows them to present expert arguments to the court that may not be raised by either of the parties to the matter. The arguments will be made from the perspective of the agency rather than the party, and may concern issues of legal interpretation. This can be of considerable assistance where either one or both parties are unrepresented, and a technical or important

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100 Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ 2009 31(4) Sydney Law Review 579; Jonathon Hunyor, ‘Skin-Deep: Proof and Inferences of Racial Discrimination in Employment’ (2003) 25(4) Sydney Law Review 535. 101 Gaze and Hunter, above n 9. 102 Bevilacqua v Telco Business Solutions (Watergardens) Pty Ltd [2015] VCAT 269; Ingram v QBE Insurance [2015] VCAT 1936.

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issue is at stake. The Sex, Disability, Race and Age Discrimination Commissioners can act as amicus curiae under s 46PV of the AHRCA.103 Amicus curiae can present argument but do not become parties to the case. Some agencies are given power to act as interveners,104 which allows them to become a party to the matter themselves and engage directly, for example by presenting evidence and cross-examining as well as presenting argument to the court. This course allows more thorough-going involvement, but also carries a risk of costs being awarded against the intervener. Some agencies use these powers very regularly, in order to ensure the court or tribunal is provided with full and expert argument, especially where a party may not have the resources to do so. Such interventions have assisted the decision maker in many cases.105 However, neither amicus nor intervener roles are a complete substitute for a party’s own expert legal advice or representation, or for direct public support for enforcement. While both access to expert legal advice and representation for individuals and agency participation in proceedings are important, they are not sufficient for enforcing and adequately protecting the human rights of disadvantaged people. For proper protection it is necessary that there be an agency that can take some of the burden of litigation, and engage in a strategic litigation process to ensure that the necessary precedents are developed. Such a function goes beyond providing assistance with representation in cases brought by victims of discrimination. Access to expert advice and representation for individuals may lead to better outcomes for individuals, but will not ensure that the law is developed through the litigation of selected cases in strategic areas. Power and resources for the agencies to enforce selected matters, as is done by the Fair Work Ombudsman, as well as in Canada and the UK, is essential.

7.4.7 Remedies [54]

The remedies that can be granted by courts and tribunals are defined in the legislation. Under s 46PO(4) AHRCA in respect of the federal laws, for example, if the court finds that the respondent engaged in unlawful discrimination, it can make: such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) … declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) … requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) … requiring a respondent to employ or re employ an applicant; (d) … requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

103 See also EOAV s 160. 104 See e.g. EOAV s 159. The AHRC also has power to intervene in human rights matters: AHRCA s 11(1)(o). 105 See AHRC Annual Reports for its interventions. The VEOHRC provides separate lists of interventions in discrimination and human rights matters on its website: EOA Interventions . Both Commissions publish guidelines relating to their intervention functions and amicus curiae roles.

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(e) … requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) … declaring that it would be inappropriate for any further action to be taken in the matter. These powers are all expressed to focus specifically on the individual case, and despite the apparent width of ‘such orders as [the court] thinks fit’, the powers have generally been exercised only with reference to the individual case, compensating the individual complainant and not extending to ensuring that systems that allow discrimination to occur would be changed, or to education of the parties involved.106 Most state and territory laws are similarly expressed, although some include explicit power to order systemic remedies.107 The usual remedy awarded in successful cases is damages rather than any broader order, and courts and tribunals have generally been reluctant to order an apology or make any other order. In some cases, however, they have made orders for remedies that have potentially broader systemic effect, such as training of staff in organisations and changing organisational practices to ensure that similar discrimination cannot occur in future.108 This contrasts with the FWO’s use of its powers to seek enforceable undertakings and proactive compliance deeds strategically to set precedents that can be used to publicise obligations and enforcement under the law.109 Powers similar to those of the FWO, to conduct ‘own motion’ investigations and to issue compliance notices and accept enforceable undertakings, were given to the Victorian EOHRC in 2010, but they were repealed by a later government before they came into effect. Damages are generally compensatory. The two main categories are: general damages, which cover economically quantifiable losses that have to be proved by evidence, such as lost wages, future loss of income and medical expenses; and special damages, which are more difficult to quantify losses such as pain and suffering resulting from the discrimination. Aggravated damages can also be awarded where a party has aggravated the injury by the way they have conducted the litigation, and although there are conflicting authorities on whether exemplary or punitive damages are available, the best view appears to be that they are not.110 Although damages are compensatory and appear to be analogous to damages in tort law, the courts have held that they are based on the statute and that common law principles should not be followed if they conflict with the statutory requirements.111

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106 Carol Andrades, ‘The Struggle to Restore Dignity: Remedies in Anti-Discrimination Law Part 1’ (2012) 18 Employment Law Bulletin 85, ‘Part 2’, (2012) 18 ELB 98. 107 Section 209(1)(f) ADAQ gives the tribunal power to order the implementation of a program aimed at eliminating discrimination. ADANSW s 108(2)(e) provides for such orders only in vilification cases. Implied power to make broader orders exists in AHRCA s 46PO(4) and ADAT s 89(1)(h). 108 E.g. Slattery v Manningham City Council [2014] VCAT 1442: order for equal opportunity training for the CEO, councillors and senior management; Zareski v Hannanprint Pty Ltd [2011] NSWADT 283: equal opportunity training for managers and supervisors. 109 Beth Gaze, ‘Fair Work Ombudsman’s Regulatory Powers: The Use of Enforceable Undertakings’ (2013) 20(4) Australian Journal of Administrative Law 180. 110 Beth Gaze, ‘Damages for Discrimination: Compensating for Denial of a Human Right’ (2013) 116 Precedent 20; Andrades, above n 106. 111 Hall v Sheiban Pty Ltd (1989) 20 FCR 217, [60] (French J); Richardson v Oracle Corp Australia Pty Ltd (No 2) [2014] FCAFC 139.

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Historically, damages awards have been very low, influenced perhaps by the existence of caps on compensation in some jurisdictions, which tends to reduce the incentive for complainants to enforce the law. WA still has the same cap of $40,000 on damages awards that it had when the Act was passed in 1984,112 while NSW only increased the cap from its original 1977 level of $40,000 to $100,000 in 2008. In Richardson v Oracle,113 the Full Federal Court held that the low levels for damages being awarded were out of step with community valuation of the harms of discrimination, and initiated a change in magnitude of damages available for harassment and discrimination. The Court held that the ‘established range’ of compensation for sexual harassment of $10–30,000, from which Richardson was awarded $18,000, was too low and had over the years failed to keep up with community standards and views of the harms of harassment. Instead, her damages were assessed at $130,000, based on comparison with similar harms suffered and compensated in bullying cases. This better reflects the effort and risk that complainants have to undergo to bring their cases in the Federal Court, a formal, expensive and risky place to litigate. Although the case concerned a sexual harassment claim for vicarious liability against her employer, arguably the comments about community valuation of damages apply equally to discrimination claims which involve similar sorts of harms. Substantiating damages can be even more difficult in cases such as vilification matters, where harms may not be able to be measured in terms of lost employment or any other concrete facts. While many vilification cases are brought to ensure public condemnation of the speaker, and to vindicate the principle of equality, nevertheless the litigation involves substantial costs and risk, and should not be attended by a complete failure to recognise and compensate those efforts. In one case, the court held that an order that the respondent pay the complainant’s legal costs was a sufficient remedy, even though the matter had involved several hearings in the Federal Court and taken an enormous commitment from the complainant.114 In another, a published apology and costs were ordered.115 While it may be difficult to quantify the harms suffered by racist speech, the same problem attending defamation proceedings has not prevented attaching a dollar figure. Unless this is done, then there is little incentive for any private individual to enforce the law and it risks appearing to be a dead letter.

7.4.8 Costs and the risks of litigation [60]

We have already noted the differences in approaches to legal costs at federal and state/ territory levels.116 In most state and territory tribunals, costs will only be awarded against the losing party if they are seen to have acted unreasonably in bringing or conducting the claim.117 In the federal jurisdiction, the normal rule is that costs follow the event (that is, that 112 113 114 115 116 117

EOAWA s 27. Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82, discussed at [62] below. McGlade v Lightfoot (2002) 124 FCR 106 (Carr J). Eatock v Bolt (2011) 197 FCR 261 (Bromberg J). See [10] and [22], above. Most tribunals have power to award costs in exceptional cases: see e.g. Victorian Civil and Administrative Tribunal Act s 109, which lists factors that are relevant to the decision. A summary of cases applying this provision is in Victorian Discrimination Law (2013) [852]–[857], [869]–[870]. Bringing or defending a hopeless case, or failing to meet litigation time targets without good reason, are relevant factors.

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the loser pays the winner’s legal costs). Where a case is strong, the federal jurisdiction may be attractive because if it succeeds, the complainant will be awarded both compensation and reimbursement of their legal costs by the other party. If a case is successful in the state/ territory tribunals where there is normally no order for costs, a successful complainant’s award of compensation may not even cover their own legal costs, and they may be left out of pocket overall even after succeeding in their claim. However, where a case is weak or a complainant is (rationally) risk-averse, then if they lose the case in a tribunal at state/territory level, they will not have to pay the other side’s costs. Even for a complainant with a strong case, however, there are risks in proceeding in the federal courts as a result of general provisions that apply to litigation and seek to encourage settlements in order to conserve resources of both the courts and the parties. Minimising litigation avoids the financial and emotional costs involved, encourages reconciliation of parties, and ensures the efficient use of expensive court time to deal only with intractable disputes. While these are important goals, the pressure to settle also facilitates the exercise of power by parties with more resources, and deprives less affluent parties of access to justice in the form of a court decision on their rights. The rules relating to offers of settlement and amounts of damages awards apply pressure to settle. If a party refuses an offer of settlement offered by the other party, and later succeeds in their claim but receives a lower award of damages than the settlement offer, they may be liable to pay the costs of the other party from the date of the offer, at the punitive level of indemnity costs (i.e. the actual costs incurred, rather than the usual lower level of party/party costs).118 In addition, a Federal Court rule provides that if a winning party obtains an award of less than $100,000, the costs to which they are entitled may be reduced. Prior to 2011, this rule was not discretionary and required that a successful party who was awarded less than $100,000 in damages would be awarded only two-thirds of their entitlement.119 These rules can operate very harshly in the context of anti-discrimination claims because of the difficulty of predicting success, the courts’ tendency to award low levels of damages in these cases, and because respondents are often large organisations that can relatively easily afford to make an offer that increases the risk of proceeding for an individual complainant. In Richardson v Oracle, for example, Richardson was successful in her claim for sexual harassment against her employer, Oracle, which had responded to her complaint of harassment by another worker on a project by removing her, not the harasser, from the project.120 Although her claim succeeded, the damages award of $18,000 was below an offer of $55,000 that Oracle had made before the Federal Court hearing began, and was below $100,000. As a result, she was ordered to pay Oracle’s costs on an indemnity basis from the date of offer, and under the pre-2011 rule, was only awarded two-thirds of her own party/ party costs. The result was a financial disaster for her even though it was a legal victory.

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118 This can occur either formally under the court or tribunal rules, e.g. Federal Court Rules r 25.14, QCAT Rules 2009 r 86, or through the use of a ‘Calderbank’ letter. See e.g. Ronalds and Raper, above n 87, 208. 119 Federal Court Rules 1979 (Cth) R40.08, previously O 62 r 36A. 120 Richardson v Oracle Corp Australia Pty Ltd [2013] FCA 102 (Buchanan J).

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On appeal, the Full Federal Court increased her damages award to $130,000, setting a new benchmark for damages as discussed above, and changing the outcome of the case in terms of costs. Oracle was subsequently ordered to pay the complainant’s costs on an indemnity basis, as it had refused her earlier offer to settle the case for $106,500 – less than the final damages awarded.121 The case illustrates the problems inherent in litigation in this area, flowing from the typical imbalance in resources between the parties, and court rules that can operate harshly where liability can be unpredictable and damages awards low. Ordinary individuals may be forced to risk bankruptcy if they bring a claim, especially against a respondent with a deep pocket. These features strongly deter litigation to enforce rights, discouraging enforcement of the law. The incentives in the system promote settlement rather than court determination of matters, so that it is difficult to develop precedents that could clarify the law for its users. As human rights claims, it is vital that anti-discrimination matters are able to be effectively enforced, and that the law be stated, applied and clarified by the courts; yet the operation of the court system seems to prevent this from occurring. This emphasises the need for a public agency (like the FWO) that can take some of the burden of developing the law. The litigation costs rules are based on an implicit assumption that both parties have equal resources and bargaining power, but in a discrimination case that is frequently not true. Allowing the costs rules to operate unrestrained allows the power and resource disparities between the parties to translate through to the legal dispute. There have been some attempts to moderate this effect, in cases that are granted legal aid assistance, and through the use of ‘protective costs orders’. Legal aid assistance is not necessarily a sufficient protection, because it does not cover the risk of having to pay the other side’s costs. Court rules now provide for the granting of protective costs orders that limit the amount of costs a party can be exposed to paying if they lose the case.122 This is a valuable way of trying to ensure that parties are not discouraged from protecting their rights by matters outside the merits. Parties that spend more than the limit of the protective order will not be reimbursed for costs above that limit even if they win the case. However, the court rules do not provide guidance or criteria for exercising this power, and courts have been very cautious in granting these orders.123 It can also be argued that ‘one-way costs orders’ should be available in appropriate situations. In the UK, a system of ‘one-way costs’ has been adopted in some personal injury cases, whereby costs will be awarded against a respondent if the case is won, but not against the complainant if the case is lost.124 This novel idea has a lot of potential in the context of anti-discrimination law, especially in cases in which an individual with limited resources is

121 Richardson (No 2) [2014] FCAFC 139 (Kenny, Besanko and Perram JJ). 122 Federal Court Rules 2011 (Cth) r 40.51; Federal Circuit Court Rules 2001 (Cth) r 21.03. 123 Protective costs orders have been granted in disability discrimination cases, such as Haraksin v Murrays Australia Ltd [2010] FCA 1133 (Nicholas J) and King v Jetstar [2012] FCA 413 (Perram J). 124 Rupert Waters, ‘Costing the Earth? The Case for Public Interest Costs Protection in Environmental Litigation’ (Report, Environment Defenders Office (Vic), September 2010) discussing O 62A of the Federal Court Rules and the English experience with protective costs orders at common law. See also Civil Procedure Rules 1998 (UK) SI 1998/3132 pt 44 rr 44.13–44.17.

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engaged in litigation against a respondent with a very deep pocket and the ability to write off or tax deduct its legal costs as expenses of doing business, which would include corporations over a certain size and public sector bodies. It preserves the ability of disadvantaged parties to bring their claims. It is used in a limited context in the UK, but has potential to be used more widely in cases involving a disparity of power and resources which would otherwise be unenforceable. While it is important to discourage unnecessary litigation and use of court resources, it is also important to allow access to justice and to judicial determinations of rights. Civil justice reforms should not use the pressure of costs to limit access to the court system to corporations, wealthy individuals, or those with legal aid. Parties that are dissatisfied with the outcome of their cases can appeal the decision, though generally only on a question of law. The appeal body varies between jurisdictions. At federal level it is to the next court in the hierarchy. Some state and territory systems have an appeal from the tribunal to the Supreme Court on a question of law (e.g. Victoria), while others have an internal appeal panel in the tribunal itself (e.g. NSW). The latter is a more accessible model and preserves the advantages of having a relatively expert body hearing the appeals. Supreme Court and Federal Court appeals are very expensive, and judges may hear very few discrimination matters.

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7.5 Evaluating enforcement There are multiple goals in enforcing anti-discrimination laws through individual complaints that can be in tension with each other, and are not adequately visible or responded to by the enforcement system. The current highly individualised enforcement process may not serve either private or public interests effectively. Our brief outline of enforcement in anti-discrimination law demonstrates that providing an effective remedy for discrimination involves much more than merely adopting a legal prohibition. Even providing an effective remedy for the harm experienced by an individual is difficult in light of the features of the system that allow financial pressures to be exerted on the weaker party to litigation, and have provided very low levels of compensation for harm in the past. The effect of power disparities between the parties to discrimination disputes is often only partially limited by the informal and formal dispute resolution processes used.125 Individuals often express a commitment to wider remedies, however; discrimination complainants are often reported to identify as one of their motivations that they want to change the system to prevent anyone else from suffering the same injustice. Enforcement procedures that treat discrimination as solely an individual claim do not permit this. They fail to provide an adequate means of pursuing the public interest objective of eliminating discriminatory practices. The public interest needs precedents to be developed to clarify grey areas of the law, but litigation costs rules force parties to settle claims on the basis of financial risks rather than allowing a determination of the merits. Regardless of its benign intentions, the two-stage

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125 This includes disparities of resources, social status and emotional support, some of which are linked to protected attributes, such as gender or race: e.g. Trina Grillo, ‘The Mediation Alternative: Process Dangers for Women’ (1991) 100 Yale Law Journal 1545; Richard Delgado, ‘Alternative Dispute Resolution – Conflict as Pathology: An Essay for Trina Grillo’ (1997) 81 Minnesota Law Review 1391.

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process creates a situation whereby the majority of cases that resolve are settled confidentially and provide no guidance to other people affected, while the few cases that are litigated are often affected by large disparities of power and resources between the contending parties. Genn has criticised the level of emphasis put on pre-hearing settlement in modern procedure, arguing that it has gone too far and is depriving parties of the right to have their dispute resolved according to law and their legal rights determined.126

7.6 Conclusion [70]

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A genuine commitment to eliminating discrimination would ensure that the enforcement process was both rigorous and accessible for those who need it, especially the most disadvantaged, and designed to reduce or eliminate discriminatory practices. The fact that the system retains so many barriers to providing effective redress for discrimination suggests that commitment to effective enforcement is weak. Resolving disputes by pressuring parties to settle their disputes without determination of rights minimises the costs of enforcement, but it fails to serve the wider goals of anti-discrimination law. Improvements would require a process that is more accessible and proportionate, as well as a public role in enforcement. The dispute resolution process should be proportionate to what is at stake and accessible for disadvantaged parties. Leaving enforcement of federal discrimination matters to the courts with the current costs rules is a substantial barrier to the use of federal discrimination laws by those most in need of protection. There is a clear need for an expert low-cost forum for hearing discrimination disputes involving individuals. Court processes tend to advantage the more powerful party, and tribunal processes fail to compensate victims of discrimination for the risks and costs involved in enforcing rights by not reimbursing costs. Damages awards should not minimise the harms that are suffered as a result of discrimination which can have long-term financial and emotional effects. The costs rules applicable to discrimination matters also need reconsideration so that they do not prevent the most disadvantaged people from enforcing their rights. Using one-way costs orders for some cases involving disparity of power and resources between parties, such as government departments or large companies and individuals, as well as in state and territory tribunals, should be considered. Finally, there is a need for public involvement in enforcing the law, to ensure that cases can be litigated strategically to develop the law in areas where it is needed, and to ensure that some clear and strong precedents are set. This is recognised to be best practice in areas in which enforcement is seen as important, such as consumer law, work health and safety, and employment rights, and should also be the case in anti-discrimination law. Leaving enforcement entirely to the individual is not an effective way to enforce anti-discrimination law.

126 Dame Hazel Genn, ‘Why the Privatisation of Civil Justice is a Rule of Law Issue’ (Speech delivered at the 36th FA Mann Lecture, Lincoln’s Inn, 19 November 2012).

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POSITIVE ACTION

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8.1 Introduction: What is positive action? [1]

[2]

[3]

Sometimes, equality requires more than merely treating everyone the same, as was noted in Chapter 1. To achieve substantive equality in its various dimensions,1 positive action or special treatment might be needed. In this chapter we look at different ideas of positive or affirmative action, what kinds of conduct it encompasses, why it might be needed, and why it can be so controversial. We then look at when positive action is permitted under Australian anti-discrimination law and when positive action is required by duties imposed by law. We begin by clarifying the different terminologies for what we call positive action. Generally, we use the term to describe steps that are taken proactively to eliminate discrimination or promote equality. Such actions include providing special adjustments, targeted benefits or preference to members of a disadvantaged group to enable them to participate equally in employment, education or other fields. These initiatives can be labelled as adjustments, accommodation, or affirmative action, although these names themselves tend to be understood in particular ways, and some disagreement about positive action is exacerbated by confusion over the meanings. Confusion about what positive or affirmative action means can substantially undermine constructive debate about whether it should be used to address inequality and what form it might take. In response to this concern, David Oppenheimer developed a useful framework of five models of ‘affirmative action’:2 i. Quotas: The first model is one of strict or hard quotas whereby a specific number or proportion of positions in employment, education or otherwise is reserved for those with a particular attribute, such as women, or Aboriginal or Torres Strait Islander people. ii. Preference: In the second model a preference is given to members of target groups, rather than inflexibly reserving positions. There are ‘no absolute numerical quotas to be filled’, but attributes like race can be taken into account as a factor in a preferential way.3 iii. Self-examination: The third model involves self-examination plans with goals and timetables for the inclusion of women and under-represented minority groups. The first step in this model would be auditing to determine whether there are discrepancies between the actual occupants of positions within an organisation or particular field and the wider population or pool. Targets might then be set and processes put in place to address any significant disparities. iv. Outreach: The essence of the fourth model is outreach, or widening the recruitment pool. This might be implemented as a result of the self-examination under the third model showing disparities. Existing ways of recruiting and selecting candidates can

1 Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011), 25–33. 2 David Benjamin Oppenheimer, ‘Distinguishing Five Models of Affirmative Action’ (1988–90) 4 Berkeley Women’s Law Journal 42. 3 Ibid 46.

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intentionally or accidentally screen out minorities, for instance, and proactively changing these methods could result in more diversity. v. Support: Finally, the fifth model involves support programs, such as ‘special promotional classes for women or minorities to encourage them to move into jobs traditionally held by white males, or to move into management’.4 Identifying these different approaches allows us to debate them. As Oppenheimer has observed, a debate about the merits or legality of affirmative action can be very difficult to follow if one side understands it to mean quotas, for instance, while the other side believes it is arguing for self-examination and support.5 Those who oppose affirmative action might really only oppose inflexible quotas, rather than the wider notion of proactive measures designed to promote substantive equality. We have chosen to use the term ‘positive action’ for two reasons. Firstly, because ‘affirmative action’ is often understood in public debate as being merely the first model of rigid quotas,6 and it is important to appreciate that this is very narrow and only one possibility. In Australia there are few examples of this type of positive action,7 and none required by law in the area of employment. Most examples are of other forms of positive action, which have been used more extensively both on a voluntary basis and occasionally as required by law. The second reason we use the term positive action is to extend beyond these five options to include adjustments or accommodation, initiatives to prevent discrimination and even producing data and reporting on diversity performance, as explained further below. Positive action could include adjustments to buildings, such as adding ramps and lifts to enable wheelchair users to access a building. It could involve scheduling work meetings later in the morning to enable those with morning childcare responsibilities to attend. Other examples include: providing additional training or probation time to enable a worker with an intellectual disability to settle into a workplace; flexible work arrangements for workers with carer’s responsibilities; developing a range of work or school uniform options to cater for workers who are pregnant, or students who wear headscarves; and providing unisex toilets for customers who identify as neither male nor female. These sorts of adjustments might be implemented as one-off measures or as part of a more systematic affirmative action program within Oppenheimer’s third, fourth and fifth models. Many of these kinds of adjustments are uncontroversial because they operate to enable inclusion generally without limiting benefits to others. Positive action is more controversial in situations of actual or perceived competition for positions or resources. In those situations, positive action can raise questions of fairness between competing groups. If a student with a disability is given adjustments of longer time in an exam, a question might be raised about how much extra time would be fair. What about the students who simply write slowly or tire easily – should they get adjustments? Even if

[4]

[5]

[6]

[7]

4 Ibid 48. 5 Ibid. 6 Ibid 43; Margaret Thornton, ‘EEO in a Neo-Liberal Climate’ (2001) 6(1) Journal of Interdisciplinary Gender Studies 77, 87. 7 See discussion of Jacomb v Australian Municipal Administrative Clerical & Services Union (ASU) (2004) 140 FCR 149, below at [31]; and of Gerhardy v Brown [1985] HCA 11; (1985) 159 CLR 70, below at [39].

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the idea is to provide an adjustment merely to enable the student with a disability to participate equally, it is often not possible to calculate precisely what adjustment would merely ‘level the playing field’. In all situations that involve competition, such as job applicants or employees competing for clients or a bonus, students competing for grades and academic honours, or even patients competing for limited medical resources, positive action taken to enable equal access for all groups is open to criticisms of going too far and benefiting the targeted group at the expense of others in a way that can be seen as unfair. That perception leads to a view that affirmative action is objectionable because it is no different to the discrimination it is supposedly trying to address, with the discrimination simply directed at members of the majority rather than minority groups. The term ‘reverse discrimination’ is sometimes used pejoratively to describe affirmative action that operates in this way, especially in the form of quotas or preferencing. The term ‘was coined in the United States to capture the repugnance associated with different or affirmative treatment’ in a context of mainstream liberalism that adheres to the idea of equality as merely same treatment.8 It often accompanies a belief that the current state of affairs is neutral and non-discriminatory. Probably the most controversial form of positive action is quotas, as described in Oppenheimer’s first model, whereby a position or proportion of available positions is set aside to be filled only by those from a target group. If the quotas are rigid or absolute, rather than merely a preference or target as in the second model, they will exclude candidates who are outside the target group even if those candidates are otherwise meritorious or more suitable. Support for positive action is based on acknowledgement that the current state of affairs is not fair and neutral. There are at least two primary rationales for positive action that correspond with compensatory and distributive justice. The first rationale is one of redress or remedying past discrimination. Recognising that past discrimination has excluded members of particular attribute groups, positive action might be justified as a way to make amends for this. This rationale can be criticised for being a notional kind of redress to the group as a whole, because the individuals who benefit from affirmative action are not likely to be the same individuals who suffered the exclusion originally. If the whole group suffered from past discrimination, however, then compensation for past discrimination can be seen to be targeted appropriately, even if it is less than fully inclusive. The second, wider rationale is based on acknowledgement that many of our public institutions and environments have evolved based on a narrow norm of the ‘ideal’ worker, student, member or user. This norm generally reflects the ideas and preferences of the majority, or of those in positions of power, to make decisions about design, conscious or otherwise. So, for example, buildings have traditionally been built with steps rather than ramps because most people can walk, and lights have been used at pedestrian crossings because most people can see. While there have been gradual changes to make our places of work and study more accessible and inclusive, positive steps might still be required to identify and remove further barriers. Rather than wait for past discrimination and barriers to be identified and changed incrementally, affirmative action seeks to activate changes to values and practices to remove barriers proactively in the interests of distributive justice in the present, irrespective of past discrimination.

8 Thornton, above n 6.

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We explore below how the law deals with positive action. In respect of most attributes anti-discrimination laws provide an exception for ‘special measures’, which are voluntary positive action initiatives designed to promote equality. We outline how these exceptions operate to allow such voluntary initiatives, and then explore the few laws that require positive action, such as the Workplace Gender Equality Act 2012 (Cth), and similar public service laws.

8 [10]

8.2 When is positive action allowed? How might voluntary positive action be unlawful? If we take an equal treatment or formal equality view, then positive action for one group is arguably discrimination against the other group. This means voluntary positive action would be unlawful unless there was an exception to permit it. For a person intending to take positive action to promote equality, it is important to understand what is covered by the prohibitions and what is allowed. This will enable them to prevent or respond to allegations of unlawful discrimination. Unfortunately, the specific test is not always clear from the statutory language, which makes it difficult for duty bearers to have confidence that they are complying. Generally, anti-discrimination laws prohibit both direct and indirect discrimination on the basis of protected attributes, as was explained in Part 2. Most of our legislation frames the protected attributes in a way that is neutral or symmetrical, so that protection extends to everyone with a ‘race’ – not only members of minority racial groups who have traditionally experienced racial exclusion, such as Aboriginal and Torres Strait Islander people, people of colour or ethnic minorities.9 Similarly, although women have traditionally experienced more categorical exclusion and marginalisation than men, our legislation is drawn in a neutral way to protect all sexes. Similarly, age protection extends to all ages and age groups, not merely those who are characterised as old or young. There are only a few attributes that are not framed in this symmetrical or neutral way. The attribute of ‘family responsibilities’ under the Sex Discrimination Act 1984 (Cth) (SDA), for instance, extends only to those who have family responsibilities, and the Anti-Discrimination Act 1977 (NSW) (ADANSW) protects against discrimination on the attribute of ‘homosexuality’ rather than sexuality. The attribute of ‘disability’ in the Disability Discrimination Act 1992 (Cth) (DDA) is drafted very widely and is also asymmetrical; it does extend to cover past, future and imputed disabilities but does not include the absence of a disability. One of the implications of a neutral drafting approach is that it protects men equally with women, a non-Indigenous person as much as someone of Indigenous heritage. This is consistent with a formal understanding of equality, by which everyone has an equal right to inclusion and participation in society regardless of race, sex or other traits. However, if substantive equality requires something other than same treatment, a problem arises because ‘special’ or affirmative treatment for women, for instance, can be characterised as different or disadvantageous treatment for men, who have equal protection. Those who voluntarily take positive steps to promote substantive equality might risk falling foul of the rules against discrimination.

[11]

[12]

[13]

9 For discussion of the way attributes are defined, symmetrically and otherwise, see Chapter 4.

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The question addressed here is: under what circumstances do our anti-discrimination laws allow positive action that benefits a particular attribute group? First, while it might be obvious, it is worth noting that positive action is permitted when no other rights are infringed. Sometimes this is uncontroversial. If the owner of a building decides, for instance, to build a ramp into her building, add braille pads to the elevators, designate a room as a prayer room or provide Auslan interpreters at meetings, she is legally free to do so because these adjustments enable access and participation for those who might otherwise be excluded without infringing any existing rights. They do not disadvantage another protected group. Sometimes it is not so obvious whether other rights are infringed. The scope of protection depends on the attributes that are listed in the legislation and the way they are defined. If an attribute is not protected under anti-discrimination law, then there is no need for an exception to justify positive action. So, for example, if religious discrimination was not prohibited, offering a job only to adherents of one religion would not infringe anyone’s legal rights. Alternatively, where an attribute is defined asymmetrically, not everyone will be protected. Only people with the attribute will have rights under the legislation. The SDA, for example, protects workers with family responsibilities but not workers who do not have such responsibilities. Providing flexible work arrangements only to workers with family responsibilities would provide a benefit only to that targeted group, excluding workers without family responsibilities. Even if these excluded workers were technically treated less favourably than their colleagues with family responsibilities, they would not have any rights to claim it is unlawful discrimination. This would be different if the law protected equally those with and those without family responsibilities, for example if the attribute protected was ‘having or not having family responsibilities’. This demonstrates how the framing of the attribute can be relevant. This brings us to the case that is most often raised of positive action that does appear to infringe the rights of others. When an attribute is defined symmetrically, so that it covers everyone (for example people of all sexes or races and ethnicities), affirmatively granting a benefit only to some members of the group may amount to treating other members of the group less favourably. Establishing a preference or quota for women on a company board, for instance, technically excludes or disadvantages men because they are men, and therefore looks like sex discrimination. Advertising a job as only being available to persons of Aboriginal or Torres Strait Islander heritage similarly operates to exclude applicants who are not of this heritage, based on a protected attribute of race. This kind of positive action, that expressly uses an attribute to preference or distinguish benefit recipients, clearly breaches the rule of formal equality that requires the same treatment between groups and attributes to be ignored. All Australian anti-discrimination laws permit positive action. Some Acts make clear that such action designed to promote equality does not constitute discrimination.10 Older, less nuanced Acts merely provide that such action is not unlawful, thereby suggesting that it could still be conceived of as discrimination but is excepted or permissible because of the

10 E.g. SDA s 7D; Equal Opportunity Act 2010 (Vic) (EOAV) s 12.

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purpose.11 Under either formulation, most laws permit special measures, although not in respect of all attributes and some require advance certification.12 Drawing on the international conventions that underpin our legislation, this kind of positive action is usually referred to as a ‘special measure’.13 A measure that might otherwise infringe a rule against different treatment will be a special measure and thus permissible if it promotes substantive equality.14

8.2.1 Tests for special measures The tests for determining what qualifies as a ‘special measure’, and thus not unlawful discrimination, vary across the Acts, but they are similar in essence. They each require some proof that the rule or initiative has been implemented to address an existing inequality or disadvantage of a protected group and that it is sufficiently tailored to achieve this goal. There is also usually a temporal element so that the measures must be temporary and not become entrenched.15 Two underlying and often unstated principles of assessing whether something is a special measure are proportionality and scrutiny. The more likely the initiative is to limit or disadvantage others, such as quotas or even preferencing, the more strictly it will be scrutinised16 and the more it needs to be justified as necessary and proportional to the goals.17 Initiatives that are more akin to self-examination, aspirational targets, outreach and supports are less likely to disadvantage other groups and are thus less controversial. By their nature they might not even constitute discrimination against protected groups, and thus might not need a special measures exception to permit them. With different wording for special measures tests across the Acts, it can be helpful to identify shared elements. Although not always explicit, the special measures tests in Australian anti-discrimination legislation generally encompass four elements.

[19]

[20]

[21]

a. Inequality: an inequality or disadvantage must exist, warranting a special measure; b. Purpose: the measure needs to be introduced for the purpose of addressing the inequality or disadvantage; c. Effect: the measure must be capable of or likely to address the inequality, and not be disproportionate in scope or effect; and d. Temporary: the measure must be temporary and at least not continue after the goal has been achieved.

11 E.g. DDA s 45. This is certainly how the RDA s 8(1) special measures exception has been interpreted: Gerhardy v Brown (1985) 159 CLR 70. 12 See Appendix, Table 4 for details. 13 E.g. CERD art 1(4); CEDAW art 4. 14 Lifestyle Communities Ltd (No 3) [2009] VCAT 1869 contains an extensive review at [230]–[275] (Bell J); Jacomb v ASU (2004) 140 FCR 149, limitation [37]–[59]. 15 Some Acts allow different treatment without any temporal; [2004] FCA 1250, e.g. Age Discrimination Act 2004 (Cth) s 33 (ADA). 16 Oppenheimer makes this point for the US as well, in Oppenheimer, above n 2. 17 Jacomb (2004) 140 FCR 149; [2004] FCA 1250, [59]. For further discussion see 8.2.2: Illustration using SDA.

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Generally it will be up to the person seeking to rely on the special measures provision as a defence to an allegation of discrimination to prove each of these things.18 The special measures provisions vary across the Acts in two key ways. The first way relates to purpose. All of the Acts require some proof that addressing inequality was a reason for the measure’s introduction. Most Acts only require this to be one of the purposes, not the sole or even dominant purpose of the measure.19 This means an initiative could also have been introduced to increase productivity, employee morale, sales or membership, yet still be characterised as a special measure so long as addressing inequality was also a purpose. The RDA is unique: adopting the words of the underpinning international convention, the RDA specifies that advancement toward equality needs to be the ‘sole purpose’ of the measure.20 While this contrasts with the other Acts and appears to impose a much more onerous test for the exception, it has not been interpreted strictly. Brennan J observed: ‘Any fact which shows what the persons who took or who promoted the taking of a measure intended it to achieve casts light upon the purpose for which it was taken provided the measure is not patently incapable of achieving what was so intended’.21 There also appears to be some variation in what is required under each Act to prove the purpose element. Some Acts, like the SDA22 and the Equal Opportunity Act 2010 (Vic) (EOAV),23 have been interpreted to require evidence of what the decision maker actually intended, so they involve a subjective test. This would be a more onerous test, requiring oral or written evidence that the individual or corporate decision maker explicitly turned its mind to the inequality and intentionally adopted the initiative to address it. If interpreted strictly this would narrow the exception more than a test that employed a more objective question of what the measure might be ‘reasonably intended’ to achieve, as is required under the DDA.24 In practice the seemingly more onerous subjective test has not been interpreted strictly by the courts. Generally the defence will not fail simply because there is no direct evidence of the decision maker having turned their mind to how the measure was intended to achieve substantive equality. The courts have allowed this intention to be inferred from evidence of ‘the nature of the services to be provided [and] the identity of the recipients of the service’25 or whether the measure was capable of achieving equality.26 The second way in which special measures provisions differ is in respect of timing or process: most Acts contain ongoing (permanent) exceptions for special measures, and have provision for granting temporary exemptions that can be used for special measures, but 18 In some Acts this is explicit: e.g. EOAV s 12(6). Other Acts simply specify that the respondent bears the burden for proving exceptions: e.g. ADANSW s 104. For other Acts this approach has been adopted as a matter of statutory interpretation, following the common law approach to the allocation of burdens of proof for exceptions and defences. 19 See e.g. SDA s 7D(3). 20 RDA s 8, referring to CERD art 1(4). 21 Gerhardy v Brown (1985) 159 CLR 70, 135 (Brennan J). 22 Jacomb (2004) 140 FCR 149. 23 Colyer v State of Victoria (1998) 3 VR 759; [1997] VSC 43, interpreting s 82 of the EOAV 1995. 24 Section 45 of the DDA provides that special measures must be ‘reasonably intended’ to achieve the outcomes of sub-ss (1)(a), (b) or (c). Catholic Education Office v Clarke [2003] FCA 1085, [45]. 25 Colyer v State of Victoria (1998) 3 VR 759, 773 (Kenny JA) (Brooking and Callaway JJA agreeing). 26 Richardson v ACT Health and Community Care Service (2000) 100 FCR 1, [26] (Finkelstein J) (Miles and Heerey JJ agreeing).

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require the initiative to be approved in advance.27 As the name suggests, temporary measures only operate for a specified period,28 although they can be renewed.29 The permanent exceptions, sometimes called ‘general’ exceptions, operate as defences in response to an allegation of discrimination. Most special measures provisions in Australian legislation allow for permanent, rather than temporary, exceptions (usually subject to the inherent time limit on special measures at [21.d] above).30 These generally provide that conduct that constitutes a special measure, or in a more limited form, that meets special needs, is not discriminatory under the Act. The exception can be asserted at any time in preventing or responding to allegations of unlawful discrimination, and has no time limit attached. Under these provisions there is no need to have obtained advance authorisation, which means organisations can respond to inequality as and when it is identified, but cannot guarantee in advance that their action will be protected by law. These provisions are worded in varying ways: some explicitly address ‘special measures’ or ‘measures intended to achieve equality’ while others are expressed to refer to ‘special needs’. The difference between them appears to rest on whether it is necessary to identify a need that is being addressed, or whether the special measure can simply address an inequality. Some Acts, like the ADANSW, contain both types of special measures provisions: a limited number of permanent exceptions for special measures,31 and otherwise a temporary exemption process for advance approval by the agency.32 So, for instance, in NSW if a business identifies that many of its factory workers are migrants from Iran and have poor English literacy skills, it could offer support targeted at those workers. This might include special English classes for these workers and could rely upon the permanent exception for ‘special needs programs and activities’ that applies for addressing the special needs of a particular race.33 This is one of the few permanent exceptions available under the NSW Act. However, there is no equivalent exception for special needs programs in respect of sex. So, if the same business identified that its female apprentices generally had insufficient mathematics training to allow them to progress, the business would not be permitted to offer remedial classes only to female employees unless it obtained a temporary exemption to do this.34 (Of course, in this case, the business could, for example, offer mathematics classes for all apprentices who were not progressing satisfactorily, focusing attention on the specific need rather than the attribute.) Some Acts that provide for temporary exemptions to be granted do not allow exemptions to be granted for conduct that would already be covered by the Act’s permanent exception for special measures. This restriction is not always explicit. In the Victorian legislation, for

27 28 29 30 31 32

33 34

8 [25]

[26]

[27]

E.g. SDA s 44, DDA s 55, ADA s 44; ADANSW ss126, 126A. See 6.5.8: Temporary exemptions. E.g. five years in Victoria; up to 10 years in NSW (s 126A). E.g. ADANSW ss 126, 126A. See e.g. SDA s 7D, DDA s 45, ADA s 33; EOAV s 12, Discrimination Act 1991 (ACT) (DAACT) s 27, Anti-Discrimination Act 1991 (Qld) (ADAQ) ss 103, 105. ADANSW ss 21 (special needs programs and activities re race), 35 (pregnancy, childbirth and breastfeeding), 49ZYN(2)(b) (age benefits/concessions), 49ZYR (age – special needs). See e.g. ADANSW: the ADB President can grant, on application, temporary exemption covering special needs in respect of employment (s 126); the Minister can grant temporary exemptions for special needs programs (s 126A). ADANSW s 21. ADANSW s 126 or s 126A.

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example, temporary exemptions can be granted (s 89) but in deciding whether to grant an exemption the tribunal must consider ‘whether the proposed exemption is unnecessary because … the conduct … would not amount to prohibited discrimination’ (s 90). Conduct that amounts to a special measure would not be prohibited under the Act (s 12), so it does not need and will not be granted a temporary exemption.35 To illustrate how a positive action initiative might be challenged as discriminatory but justified as a special measure, we analyse s 7D of the SDA. We then consider some unique features of the RDA special measures provision.

8.2.2 Illustration using SDA [29]

[30]

[31]

Section 7D of the SDA permits a person to ‘take special measures for the purpose of achieving substantive equality’ between men and women, between people of different marital status, and between other groups protected under the Act. Special measures authorised by this section are not discriminatory under the Act.36 Characterising special measures in this way has symbolic importance in identifying the underlying model of equality in the Act as one of substantive rather than formal equality, so that a practice that relies on use of a protected attribute will only be regarded as discriminatory if it increases rather than decreases inequality, not merely because it treats people differently. Section 7D illustrates some of the four elements of a special measures test set out above at [21]. An initiative will constitute a special measure if it is taken ‘for the purpose of achieving substantive equality’ between ‘men and women’ (s 7D(1)), and this need not be the sole, dominant or even substantial purpose (s 7D(3)). The initiative will no longer constitute a special measure once the goal of substantive equality has been achieved (s 7D(4)). The Act leaves unclear the meaning of ‘substantive equality’ and how inequality and purpose are to be proven. The section was interpreted and explained by the Federal Court in the leading case of Jacomb v Australian Services Union (ASU)37 decided in 2004. The ASU had changed its rules to promote gender equality in the union by reserving 50 per cent of the elected positions on the union’s governing body for female members. Their numbers on the executive were well below their percentage of the union membership, which was about 49 per cent. Mr Jacomb, a male union member, claimed that these new rules breached the SDA, which prohibited registered organisations from discriminating against a person on the ground of their sex (s 19). More specifically he claimed that the union treated him less favourably than female members by excluding him from standing for election for a proportion of the executive positions, those reserved for women. In particular he asserted that equality should be understood as proportional representation at each level; women only constituted about 12 per cent of members in his division of the union, so a quota for a percentage higher than this exceeded equality and thus went too far.

35 See e.g. City of Casey – Casey Aquatic & Recreation Centre [2012] VCAT 893. 36 SDA s 7D(2). 37 (2004) 140 FCR 149.

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In deciding that the union’s quota rules were not discriminatory under the Act because they constituted special measures, Crennan J had to determine what ‘substantive equality’ meant, whether there was substantive inequality that needed to be addressed, and whether the rules were introduced for that purpose. In determining the meaning of ‘substantive equality’ the judge considered the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) that underpins the Act and how it has been interpreted around the world. It was interpreted to mean ‘equality in substance or de facto equality, in contradistinction to notional equality or formal equality’,38 and this was not limited strictly to proportional representation at each level. The fact that this initiative was an inflexible quota (fitting squarely into Oppenheimer’s first model of affirmative action noted above) prompted the Court to scrutinise it carefully to ensure that it was justified and proportionate. These underlying principles of scrutiny and proportionality were articulated by the Court. After surveying the approach in other countries, Crennan J noted:

8 [32]

[33]

While it would be unhelpful and imprudent to treat any of the approaches to special affirmative action measures referred to above as providing a rigid template for the correct method of construing and applying s 7D of the SDA, it is worth observing that automatic or inflexible quotas, even in differing legal systems, seem to run a greater risk of falling foul of general prohibitions on discriminatory acts and can prove more difficult to justify as ‘special measures’ than more flexible measures with a similar aim.39

Ultimately, the Court interpreted s 7D to require proof of the following elements:

[34]

a) Inequality: The ‘entity propounding a special measure [must act] reasonably in assessing the need for the special measure’.40 In this case it was found that the Union acted reasonably in forming the view that substantive equality between men and women members had not been achieved, relying on ‘substantial’ evidence, including ‘a good deal of statistical evidence’ compiled by the union of gender discrepancy between membership and executive representation.41 b) Purpose: The measure must have been ‘taken for the purpose of achieving substantive equality’, although this need not be the only or even primary purpose (s 7D(3)).42 Numerous records of executive meetings demonstrated that the Union ‘believed solving this problem required having women represented in the governance and high echelons of the union so as to achieve genuine power sharing between men and women’, and it adopted a 50 per cent representation policy to ‘accelerate substantive equality’.43 c) Capacity: The measure must be capable of achieving the purpose of substantive equality.44 The inflexible reservation of positions for women was found to be capable of achieving substantive equality.45 38 39 40 41 42 43 44 45

Ibid Ibid Ibid Ibid Ibid Ibid Ibid Ibid

[60]. [59]. [62]. [64]. [61]. [64]. [62]. [65].

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d) Temporary: The measures ‘cannot remain valid as special measures beyond the “exigency” (namely the need for substantive equality …) which called them forth: s 7D(4)’.46 As the rules had only been used once for a four-year term, it was too soon to find that substantive equality had been achieved which would render the special measures no longer necessary.47

8.2.3 Distinctive approach of the RDA [35]

[36]

The special measures defence has particular significance in the RDA, where it is one of only two exceptions. Section 8 provides that the Act’s prohibitions of discrimination do ‘not apply to, or in relation to the application of, special measures to which paragraph 4 of Article 1 of the Convention applies …’. The provision operates in two contexts, one of which is unique to the RDA. Its application to the prohibition of discriminatory acts by ss 9 and 11–15 is similar to exceptions in other anti-discrimination laws; however, it also applies to s 10, which provides for racial equality in the face of discriminatory legislation,48 and has no equivalent in any other laws. The RDA (like the other federal Acts) is legislation that relies on and gives effect to an international convention, the International Convention on the Elimination of all forms of Racial Discrimination (CERD). Being the first federal anti-discrimination law and drafted at a time when there was some doubt about the federal government’s legislative capacity to pass laws about discrimination, the RDA draws very heavily on the words of the CERD, and s 8 relies on the definition in CERD art 1(4), which provides:49 Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

[37]

First we consider the way this provision has been applied in cases involving discriminatory legislation under s 10. As discussed at 6.7, s 10 applies in respect of both state and Commonwealth laws, but the legal analysis of the two situations is different. As noted above, the RDA prohibits discrimination not only in conduct by ‘any person’ (e.g. s 9) in work and other fields, like other anti-discrimination legislation, but also legislation which allocates unequal rights to different races under s 10. The operation of s 10 differs depending on whether it is applied to state or federal laws. In respect of state laws, s 10 operates in conjunction with s 109 of the Australian Constitution. Where a state law confers rights on other races but not the group complaining, then the effect of s 10 is to confer those rights directly on the group 46 47 48 49

Ibid [65]. Ibid. Discussed at 6.7. For discussion of the constitutional status of the RDA, see Chapter 2, especially 2.6.1: Commonwealth power to enact anti-discrimination legislation.

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complaining. Where the state law imposes a disadvantage on the group that is complaining, then the state law will be inconsistent with RDA s 10, and s 109 will render it ‘invalid to the extent of the inconsistency’ with the federal law. However, if the state law was itself enacted as a special measure to promote substantive equality, then it will fall within the ‘special measures’ exception in s 8(1) and will be excepted from the operation of s 10, and thus will not be inconsistent with the RDA. The High Court has heard two cases in which an apparently discriminatory state law has been challenged as being invalid and the Court has had to decide whether the state law satisfies the special measures test under the RDA and is thus not discriminatory.50 The special measures exception applies to actions breaching both s 9 and s 10. The leading interpretation of s 8 on this issue by the High Court was in the case of Gerhardy v Brown (Gerhardy).51 This involved the question of whether a state law constituted a special measure, and hence was not discriminatory. As a case involving a state law, it was complicated by the issue of inconsistency of federal and state laws under s 109 of the Constitution, but the way in which the Court interpreted the special measures provision is also applicable to allegations of acts of discrimination by a person under s 9. The Court had to decide whether a state Act that granted land rights to the Pitjantjatjara people (and restricted rights of access of non-Pitjantjatjara people) was racially discriminatory and thus invalid because it was inconsistent with the RDA, or whether it was not discriminatory under the Act because it was a special measure. The Court held that the Pitjantjatjara Land Rights Act 1981 (SA) was discriminatory, but was saved because it was a special measure.52 In interpreting the special measures provision, Brennan J articulated a test that has four indicia:

8 [38]

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… a special measure (1) confers a benefit on some or all members of a class, (2) the membership of which is based on race, colour, descent or national or ethnic origin, (3) for the sole purpose of securing adequate advancement of the beneficiaries in order that they may enjoy and exercise equally with other human rights and fundamental freedoms, (4) in circumstances where the protection given to the beneficiaries by the special measure is necessary in order that they may enjoy and exercise equally with others human rights and fundamental freedoms.53

A further proviso was noted by Brennan J later that the special measure must not (yet) have achieved its objective. It must not ‘lead to the maintenance of separate rights for different racial groups’ nor ‘be continued after the objectives for which it was taken have been achieved’,54 to ensure that only measures necessary for the purpose are allowed. This

50 Gerhardy v Brown (1985) 159 CLR 70; Maloney v R (2013) 298 ALR 308. See Wojciech Sadurski, ‘Gerhardy v Brown v the Concept of Discrimination: Reflections on the Landmark case that Wasn’t’ (1986–88) 11 Sydney Law Review 6; Jonathan Hunyor, ‘Is it time to re-think special measures under the Racial Discrimination Act?: The case of the Northern Territory Intervention’ (2009) 14(2) Australian Journal of Human Rights 39. 51 (1985) 159 CLR 70. 52 Ibid. 53 Ibid 133 (Brennan J). 54 Ibid [139].

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requirement leads to the strange conclusion that the Land Rights Act was valid only because it was a temporary measure. One significant issue that this case did not resolve was whether the group who are the putative beneficiaries of the special measure must be consulted or agree to the measure for it to be accepted as a special measure. More specifically, does the test require proof that the beneficiaries regard the measure as conferring a benefit? While most members of the High Court did not comment on this question in Gerhardy because it was not an issue in the case,55 Brennan J posited that the wishes of the beneficiaries were ‘of great importance (perhaps essential)’,56 but did not hold they were essential.57 More recently, however, in Maloney v the Queen58 ( Maloney ), the High Court unanimously decided that consultation is not essential for a special measure to be valid. 59 In Maloney, the High Court held that a Queensland law restricting alcohol possession and sale in public areas of the Aboriginal land of Palm Island was a special measure and hence excepted from the operation of s 10 by s 8(1), despite evidence that there had been inadequate consultation with the community affected, a significant proportion of which was strongly opposed to it and regarded it as an unjustifiable restriction on freedoms that were available to other racial groups. 60 The Court’s conclusion was contrary to the position in international law interpretations of CERD where, since the RDA was enacted in 1975, a consensus has developed that genuine consultation is essential for a valid special measure. 61 Remarkably, despite the RDA drawing its constitutional validity from being an implementation of CERD, the Court refused to look to this international jurisprudence to interpret the meaning of art 1(4), asserting that its meaning was frozen in time as it was in 1975. 62 In Maloney , the state law was held to be a special measure even though it imposed criminal penalties on the group it claimed to be advancing. As noted above, the special measures exception in the RDA applies to laws under s 10, and also to conduct by persons under s 9 (and the other prohibition sections, ss 11–15). This latter application is more akin to the operation of special measures provisions in other Acts. This means it operates to permit initiatives introduced to promote substantive equality that would otherwise constitute unlawful discrimination. There are very few cases in which this operation of s 8 has been examined. In one case the federal government was alleged to have discriminated under s 9 in providing a benefit to students only if they were Aboriginal.63 The benefit, a rental subsidy, was available to Aboriginal students who received study assistance called ABSTUDY, and not to non-Aboriginal students. The Court applied the four 55 Hunyor, above n 50, 45. 56 Gerhardy (1985) 159 CLR 70, 135 (Brennan J). 57 HREOC 2011 Guidelines to understanding ‘Special measures’ in the Racial Discrimination Act 1975 (Cth): consultation is important to assessing benefit, [15]–[22]. Simon Rice, ‘Casenote: Joan Monica Maloney v The Queen [2013] HCA 28’ (2013) 8(7) Indigenous Law Bulletin 28, 31. 58 (2013) 298 ALR 308. 59 Ibid. 60 Ibid [25] (French J). 61 Rice, above n 57, 29. See General Recommendation 32 of the CERD Committee: CERD/C/GC/32 (2009) 62 Ibid 29–31. 63 Bruch v Commonwealth [2002] FMCA 29.

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indicia and proviso identified by Brennan J in Gerhardy and found that the subsidy was a special measure and thus not unlawful. I am satisfied … that the beneficiaries of ABSTUDY are a clearly defined group class [sic] of natural persons made up of Aboriginal and Torres Strait Islander peoples. That class as defined is based on race and that [sic] ABSTUDY was established in 1969 in response to the inequities in education experienced by that group. The rental assistance as part of the ABSTUDY scheme is necessary to ensure that the group improves its rate of participation in education and in particular tertiary education. I accept that the ABSTUDY scheme has not lead [sic] to the maintenance of separate rights for different racial groups and further accept that the objectives for which it was introduced have not yet been achieved. Accordingly I am further satisfied to the extent that I am required that it could not be suggested that the special measure as found by me is no longer necessary.64

Generally, it is up to the courts to decide whether a law is inconsistent with the RDA or a special measure under the RDA. However, because the RDA is a piece of ordinary legislation with no special status, it can be overridden by later federal legislation. The court will apply the general principles of statutory interpretation to determine whether the RDA has been overridden in this way. One mechanism for doing this has been a legislative assertion that enacted measures are special measures for the purposes of the RDA. In 2007, the federal government adopted a policy of emergency intervention in Indigenous communities in the Northern Territory which was implemented through the Northern Territory National Emergency Response Act 2007 (Cth). Section 132 stated the interventions were special measures and thereby placed them beyond challenge under the RDA, even though they were criticised as discriminatory by the affected communities, the Australian Human Rights Commission65 and the UNCERD Committee.66 In this way, a law that attached lesser rights and disadvantages to the group concerned based on race, which may have breached s 10, was effectively exempted from the RDA. Such a provision indicates government unwillingness to allow the court to decide whether the policy is genuinely a special measure designed to achieve equality for Indigenous people. When the intervention policies were revised in 2010, s 132 was replaced with provisions stating a broader set of aims that nevertheless continued to assert that the provisions are special measures,67 and allowed challenges under the RDA only in a restricted range of areas. With these two provisions, the government removed

[44]

64 Ibid [54]. 65 AHRC, ‘The Suspension and Reinstatement of the RDA and Special Measures in the NTER’ (2011); see also Hunyor, above n 50. See also Mick Gooda, ‘Human Rights and Australia’s Indigenous Peoples’ in Paula Gerber and Melissa Castan, Contemporary Perspectives on Human Rights Law in Australia (Thomson Reuters, 2012); Ben Schokman and Alison Vivian, ‘The Northern Territory Intervention and the Fabrication of “Special Measures”’ (2009) 13(1) Australian Indigenous Law Review 78. 66 See e.g. UN Committee on the Elimination of Racial Discrimination, Concluding Observations on Australia’s Periodic Report, 2010, UN Doc CERD/C/AUS/CO/15–17. 67 The amending Act, the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Act 2010 (Cth), incorporated new objects provisions in ss 6A, 30A and 91A of the Northern Territory Emergency Response Act 2007 (Cth); it was subsequently replaced by the Stronger Futures in the Northern Territory Act 2012 (Cth).

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the issue from the jurisdiction of the courts and simultaneously demonstrated the weakness of the s 10 protection in respect of federal action.

8.3 When is positive action required? [45]

[46]

[47]

[48]

While anti-discrimination laws allow voluntary positive action to promote equality, law has also been used to impose duties that require positive action (called ‘positive duties’), although in very limited circumstances (discussed further in Chapter 10). The best known example of such legislation in Australia, and the only one that requires specific positive action in the private sector, is the federal affirmative action legislation currently called the Workplace Gender Equality Act 2012 (Cth). There are no legislative requirements for positive action by private sector employers to address inequality of opportunity at work on the basis of race, ethnicity, disability or other attributes. Other positive duties are imposed in the state and federal public services, although as discussed below, these vary greatly in form, scope and strength across jurisdictions. In this section we have grouped together laws that impose duties to promote equality, and we contrast them with anti-discrimination laws that impose a negative duty or prohibition. This distinction is a useful one, but it is not absolute as even prohibitions can indirectly require action. For example, a law that says ‘a person must not discriminate’ does not expressly require an organisation to review how it does business to identify and remove discriminatory practices, but that law can indirectly prompt such actions. By making a perpetrator legally liable for harmful discrimination, a business might audit (and change) its practices both to reduce the risk of committing discrimination and to be seen to be addressing behaviour that has now been named as wrong. The business, however, would not be in breach of the Act simply for failing to review its practices or manage its risks; to constitute a breach under the anti-discrimination law, an aggrieved person must prove that the practices were actually discriminatory, not merely potentially so. In contrast, positive duties impose an obligation to take a particular action, and failure to take that action amounts to non-compliance.68 It is not necessary for a victim first to prove that harm has resulted. Generally such duties are imposed as part of a compliance rather than rights-based framework, with a public agency as the regulator.69 It is important to appreciate that these positive duties vary greatly. One key distinction is between process and result: a duty could impose a requirement to achieve an outcome or merely a requirement to follow a process that in theory will promote the desired outcome. Substantive outcomes that could be prescribed include fixed or proportional representation of particular groups. Norway, for instance, introduced a law in 2003 that required at least 40 per cent of public limited company board members to be women,70 and many 68 Work health and safety laws, for instance, operate in this way, in that for some offences to be proven it is not necessary to prove harm – it may be enough for a duty bearer to have exposed ‘an individual to a risk’. See e.g. s 32 Work Health and Safety Act 2011 (Cth). 69 Positive duties are discussed further at 10.5: Positive duties. 70 Anne Sweigart, ‘Women on Board for Change: The Norway Model of Boardroom Quotas as a Tool for Progress in the United States and Canada’ (2012) 32(4) Northwestern Journal of International Law & Business 81A, 82A.

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other countries have followed suit.71 Other substantive outcomes could include quantifiable reductions in ethnic discrepancies in hiring, promotions, educational results, use of services or health statistics. For duties in particular areas it might be possible to set specific quantifiable goals, but more commonly positive duties are framed in general terms, such as the UK’s public sector equality duty, which requires public authorities to ‘have due regard’ to the need to eliminate unlawful discrimination, advance equality of opportunity and foster good relations.72 This duty aims to ensure that all public sector activity takes proper account of equality goals. The obligation does not require any particular activity or outcome, but can be used to ensure that the listed factors have been considered before a decision such as to cut funding is made (see further Chapter 10 at 10.5). There are no similar duties in Australia, although the EOAV has a provision that takes a related approach by imposing on duty bearers under the Act a duty to ‘take reasonable and proportionate measures to eliminate … discrimination, sexual harassment or victimisation as far as possible’.73 However, the impact of this provision is limited by the absence of provisions for its enforcement. At best, a breach of this obligation could be raised as a matter for consideration in a case of discrimination brought under the Act.74 Alternatively, positive duties can be largely procedural, reflecting Oppenheimer’s third model of affirmative action of requiring self-examination (and consultation) to identify discrepancies and possible reasons for these. The obligation could be one of reporting on these examinations, or developing programs to address the barriers to equal advancement. This is the type that has been most used in Australia.

8 [49]

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8.3.1 Workplace Gender Equality Act (WGE Act) The WGE Act is the third in a succession of gender affirmative action Acts applying to private sector employers in Australia, following the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) (AA Act) and the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (EOWW Act) (collectively referred to as ‘positive duty laws’). The WGE Act maintains a similar compliance framework and coverage to its predecessors but differs in significant ways.75 First the framework will be outlined, followed by a summary of the new features introduced by the WGE Act. As noted in Chapter 3, these positive duty laws are different from anti-discrimination laws that rely on individual complaints for enforcement of the negative duty not to discriminate. They have instead imposed a positive duty on relevant employers that firstly requires them to be proactive in auditing the workplace and developing either a workplace program or data about gender in the workplace, and then empowers an agency to ensure compliance.

[52]

[53]

Including Spain, France, Iceland, the Netherlands, Belgium and Italy. Ibid 87A. Equality Act 2010 (UK) s 149. EOAV s 15(2). See ss 15(3)–(4); Dominique Allen, ‘Victoria Paves the Way to Eliminating Discrimination’ (2010) 23(4) Australian Journal of Labour Law 318, 323–4. 75 Belinda Smith and Monica Hayes, ‘Using data to drive gender equality in employment: More power to the people?’ (2015) 28(3) Australian Journal of Labour Law 191.

71 72 73 74

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There are no individual rights or remedies and the focus is on removing barriers, not redressing harm. The AA Act, enacted in 1986, established the basic regulatory framework that has been maintained. It applied to ‘relevant employers’, which included both private sector employers who engaged 100 or more workers and higher education institutions (s 3). They were required to follow a process to develop and implement an eight-step ‘affirmative action program’ to eliminate discrimination and promote ‘equal opportunity for women’ in work (s 6). Each employer was required to report annually to an Agency (s 13). The only sanction for non-compliance was that the Agency could name the employer publicly in its annual report which was tabled in parliament (ss 19, 12). Later the government adopted a policy that compliance with the Act would be a condition of eligibility for entering into contracts (for supply of goods or services) with the Commonwealth,76 but there is no evidence about the implementation or effect of this policy.77 After a review in 1998,78 in which many employers submitted that the reporting obligations were too onerous,79 the obligations were revised and re-enacted as the EOWW Act to ease the reporting requirements.80 An option had already been introduced whereby compliant employers could be granted waivers, and the Act was later amended so organisations that had complied for three consecutive years only had to report biennially thereafter.81 Further, employers were no longer required to report in a standard format, which meant that reports were no longer easily comparable, and the Agency’s power to evaluate and grade reports was reduced. The primary criticism of both the AA Act and its successor, the EOWW Act, was that they focused on a process of developing programs rather than on outcomes of achieving greater equality.82 Related concerns were that they did not ensure any genuine consultation or make publicly available meaningful, comparable data about the employers that would enable progress to be assessed. ‘Public reports’ were only available on application, and the obligations were seen as too procedural, allowing check-box compliance, and providing little scope for the Agency or stakeholders to easily evaluate progress.83 The legislation expressly asserted that the principle of ‘merit’ was not to be sacrificed or undermined by any efforts to address inequality (s 3(4)), which left unchallenged any bias inherent in the criteria that constituted

76 Affirmative Action Agency Annual Report 1992/1993, 4; Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford University Press, 2007) 7. 77 Margaret Thornton, ‘Proactive or reactive?: The Senate Report on the Equal Opportunity for Women in the Workplace Amendment Bill 2012 (Cth)’ (2012) 25(3) Australian Journal of Labour Law 284, 290. 78 Commonwealth of Australia, Unfinished Business: Equity for Women in Australian Workplaces, 1998. 79 E.g. Submission to the Review of The Affirmative Action (Equal Opportunity for Women) Act 1986 . 80 Beth Gaze, ‘The Ambiguity of Affirmative Action in Australia’ (1997) 15(2) Law in Context 136. 81 EOWW Act s 13C. 82 E.g. Margaret Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, 1990) 242; Valerie Braithwaite, ‘The Australian Government’s Affirmative Action Legislation: Achieving Social Change Through Human Resource Management’ (1993) 15(4) Law & Policy 327; Andrea North-Samardzic, ‘Looking Back to Move Forward: The (D)evolution of Australia’s EEO Regulatory Framework’ (2009) 20(1) The Economic and Labour Relations Review 59, 62. 83 Smith and Hayes, above n 75.

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merit in each workplace. Further, while the Acts only ever asked for qualitative ‘objectives’ and quantitative ‘forward estimates’ or targets (AA Act s 8) and never included hard quotas, critics of affirmative action were able to promote substantial opposition to the legislation and a public perception that affirmative action threatened principles of merit and equated to quotas.84 With limited powers to enforce, one thing the Agency did was develop reputational ‘carrots’ to motivate organisations to take more than minimal steps required by the legislation.85 These included citations awarded to organisations that met criteria set by the Agency. These criteria were more demanding than the process requirements under the Act and were increased each year. There is no evidence that the first two Acts brought about any real change in gender equality in Australian workplaces. The original regulatory approach assumed that the process of self-auditing and development of workplace programs would bring about change.86 But there was insufficient pressure or incentive to fundamentally challenge practices and existing definitions of merit. There was, however, increasing awareness of inequality and the limitations of the procedural duty framework, as seen in the submissions and conclusions of yet another review in 2009–10.87 As a consequence, the WGE Act was enacted in 2012 (with staged implementation). This Act represents a new regulatory approach.88 What remains essentially the same is the overall framework under which the ‘relevant employers’89 are required to report to an agency, now called the Workplace Gender Equality Agency, which is empowered to determine compliance and list non-compliers (ss 19(2), (3)). The Act refers to ‘gender’ rather than ‘women’, applying equally to men, and adds family responsibilities as an equality focus. There are four significant new elements of the current Act and they relate to (1) the reporting duties, (2) the meaning of compliance, (3) the nature and availability of information on gender equality within reporting organisations and (4) enforcement powers.

8 [57]

[58]

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1. Duty: Unlike the old legislation, the WGE Act is not concerned with reporting on programs but on outcomes. There is no longer any requirement to develop and report on workplace programs. Instead employers must prepare (s 13) and lodge (s 13A) a report, containing data, in a standardised form, in respect of a set of ‘gender equality indicators’ (GEIs). The GEIs cover:

Thornton, above n 6, 776. Smith and Hayes, above n 75. Braithwaite, above n 82. KPMG, ‘Review of the Equal Opportunity for Women in the Workplace Act 1999, Consultation Report’ (Report for the Office for Women, Department of Families, Housing, Community Services and Indigenous Affairs, Australian Government, 2010); see also Carolyn Sutherland, ‘Legislative Note: Reframing the regulation of equal employment opportunity: The Workplace Gender Equality Act 2012 (Cth)’ (2013) 26 Australian Journal of Labour Law 102, 102–103, 105. 88 Beth Gaze, ‘The Workplace Gender Equality Act 2012: Setting standards through delegated legislation’ (2013) 20 Australian Journal of Administrative Law 113. 89 Defined as ‘registered higher education providers’ and employers with 100 or more workers (including employees and those working under a contract for services), but does not cover the public service (s 3(1)). Obligations continue if the organisation drops below 100 but stays above 80 (s 3(2A)).

84 85 86 87

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(a) (b) (c) (d)

gender composition of the workforce gender composition of governing bodies equal remuneration between women and men availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities (e) consultation with employees on issues concerning gender equality in the workplace (f) sex-based harassment and discrimination in the workplace.90

2. Compliance: To be compliant an organisation is required to report on the GEIs annually; waivers are no longer available. The Minister was required to set ‘minimum standards’ in relation to specified GEIs and specified relevant employers (s 19). Where a minimum standard applies, an employer will be non-compliant if it submits a report but has not met the standard and does not show improvement over a two-year period (s 19C). However, the first standards set91 are extremely weak,92 requiring the largest of employers merely to have in place a policy or strategy in respect of one of the GEIs. 3. Enforcement: The Act’s legal status has not changed, with naming in parliament remaining the only official sanction. Notes in the Act suggest that procurement powers could be used to ‘buy’ equality (s 18), but there are no substantive provisions or regulations to this effect. Whether this avenue will be used to promote compliance remains a political decision. 4. Information: Arguably the most significant new element of the WGE Act is that organisations have to report annually, make nearly all of the data available publicly,93 and do so in a form that is standardised and thus comparable.94 Once an employer has submitted its report, it is required to inform its employees, employee organisations and shareholders or members that the report has been lodged (ss 16(1), 16A). They must also make it accessible (s 16(2)) and advise the employees and employee organisations that comments on the report can be made to the employer or the Agency (s 16B). To make the data in these reports more meaningful, the Agency was empowered to develop industry benchmarks after the first full reporting period, using the data supplied. Developed for educational purposes, these benchmarks allow the Agency and stakeholders, such as employees or potential employees, to assess the gender performance of an organisation in comparison to similar organisations in the relevant industry.95 90 WGE Act s 3 sets out the first five indicators and provides that the Minister can prescribe any other matters. The last was prescribed by the Minister in Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No 1) sch 1. 91 Workplace Gender Equality (Minimum Standards) Instrument 2014. 92 Sara Charlesworth and Fiona Macdonald, ‘Australia’s gender pay equity legislation: How new, how different, what prospects?’ (2014) Cambridge Journal of Economics 1. 93 There are restrictions on ‘personal information’ and ‘information relating to remuneration’: WGEA ss 13C, 14. 94 Smith and Hayes, above n 75. 95 Workplace Gender Equality Agency, ‘WGEA data explorer’ .

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Employer organisations have expressed some dissatisfaction with the new reporting requirements, and have lobbied for the Act’s requirements to be watered down, arguing that it is merely ‘red tape’ and a burden on business. However, the obligations are only imposed on relatively large employers, which are likely to have human resources departments to manage these demands. Further, once an organisation developed a system to capture the required data, subsequent reporting would be less onerous. It is likely that some companies are simply reluctant to expose this data publicly because their performance is less than stellar. The new legislation represents a regulatory shift in positive duty legislation. The framework is essentially the same, but the new regulatory approach focuses more on information: the production, dissemination and use of performance data to drive change.96 The underlying assumption is that the reports will expose to scrutiny the gender performance of employers. Employees and other stakeholders certainly now have much greater access to gender performance data that is meaningful, although access alone is not enough. Unless there is a clear public demand for equality and conversely some shame in poor performance data, imposing a process duty to provide data will not necessarily deliver an equality outcome.

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8.3.2 Public service duties All governments in Australia profess a commitment to the promotion of diversity in public service employment. This is expressed primarily in public service employment legislation, although usually only as one factor or principle underlying the legislation rather than explicit positive duties to promote equality in employment. The legislation differs widely across the various jurisdictions. Only one state, Western Australia, has legislation requiring the development and implementation of equal employment opportunity (EEO) programs in public employment. Part IXA of the Equal Opportunity Act 1984 (WA) provides for the development of EEO management plans97 and annual reporting on progress.98 The legislation targets the removal of discriminatory practices in relation to a large number of attributes.99 Other legislation requires the implementation of diversity and equity programs for public services. Two Acts cover federal employees: the Public Service Act 1999 (Cth) (PSA) for Commonwealth public servants; and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) (EEOCAA) for employees of large Commonwealth authorities. The PSA requires agency heads to promote employment equity (s 18). Specifically, they must establish a workplace diversity program to implement the Australian Public Service

96 97 98 99

[63]

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[65]

Smith and Hayes, above n 75. Equal Opportunity Act 1984 (WA) s 145. Ibid s 146. Ibid s 140.

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Employment Principles, which include ensuring workplaces are free from discrimination, patronage and favouritism, and fostering diversity in the workplace.100 The EEOCAA requires EEO programs directed at women and the other groups designated in the Act.101 New South Wales was the first state to introduce legislation requiring EEO programs in public employment. These provisions in Part 9A of the ADANSW operated from 1980 until 2014. As in WA, the legislation required EEO management plans and annual reporting on progress in respect of target groups (women, Aboriginal and Torres Strait Islander people, people from non-English speaking backgrounds and those with physical or mental disabilities). Now, the Government Sector Employment Act 2013 (NSW) merely provides that ‘the head of a government sector agency is responsible for workforce diversity within the agency and for ensuring that workforce diversity is integrated into workforce planning in the agency’.102 The target groups have expanded to include mature workers, young people and carers. Other states and territories have public sector duties similar to those in NSW. For example, since 2008 Queensland has required each government agency to report on the outcome of its EEO actions during the financial year.103 In SA, employment programs designed to promote equal opportunities in public employment are required.104 Tasmania’s State Service Act 2000 requires adherence to the principle of non-discrimination and diversity in employment. The Public Administration Act 2004 (Vic) requires Victorian public sector body heads to establish employment processes that will ensure that equal employment opportunity is provided and that human rights as set out in the Charter of Human Rights are upheld.105 Similar provisions apply in the ACT106 and the NT.107

8.4 Conclusion [68]

[69]

In this chapter we have described different types of positive action that could be used to advance equality, using and building on Oppenheimer’s five models of affirmative action. We then outlined how Australian laws deal with these initiatives. Anti-discrimination laws, being primarily framed in terms of formal equality, have provided specific exceptions for special measures that are measures initiated for the purpose of promoting substantive equality. All anti-discrimination laws allow for special measures, but using different tests, do not necessarily cover all attributes or all areas, and sometimes requiring advance approval as a temporary exemption. A few laws also impose duties that require positive action to promote equality, but the use of such positive duties has been very limited in Australia. Imposed as part of a

100 PSA ss 10A(1)(f), (g). 101 EEOCA s 3 (Aborigines and Torres Strait Islanders; migrants and children of migrants of non-English speaking background; and persons with a physical or mental disability). 102 Government Sector Employment Act 2013 (NSW) s 63(2). 103 Public Service Act 2008 (Qld) s 31. 104 Public Sector Act 2009 (SA) s 65. 105 Public Administration Act 2004 (Vic) s 8. 106 Public Sector Management Act 1994 (ACT) ss 39–41. 107 Public Sector Employment and Management Act (NT) ss 5A, 5E, 16.

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compliance framework, the duties have been primarily procedural rather than substantive, such as the WGE Act, or limited to public sector employment. Victoria’s recently introduced duty on some bodies to ‘take reasonable and proportionate measures to eliminate … discrimination’, is a step towards a broader duty that might prove to be more effective at achieving equality outcomes.108

108 For further discussion, see Chapter 10.

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9.1 Introduction Work is a centrally important part of life for many people, and it is not surprising that claims relating to discrimination at work are the largest single category of discrimination claims. Discrimination and inequality in employment are addressed not only by anti-discrimination laws, but also by a range of provisions in the primary national labour law, the Fair Work Act 2009 (Cth) (FWA), as outlined in Chapter 3. In this chapter we look at the provisions in the FWA that can be used in discrimination cases, focusing on s 351 which provides an individual right of protection against discrimination in employment. This is found in Part 3-1 of the Act, which covers general protections for employees. Section 351 prohibits ‘adverse action’ in employment or selection for employment because of attributes like those in anti-discrimination laws, including sex, race and disability. The general protections also prohibit ‘adverse action’ on other bases: s 340 (exercising a ‘workplace right’), s 346 (union membership and industrial activity) and s 352 (‘temporary absence from work because of illness or injury’). All of them have been used to bring claims that could have been formulated under the anti-discrimination laws. The FWA is a very attractive avenue for these claims for several reasons.1 First, it includes a wider range of attributes than the federal anti-discrimination laws, thus extending the enforceable attributes at federal level.2 Second, it contains a shifting onus of proof so that where an action depends on showing that an act was taken for a particular reason, the onus will shift to the respondent to show that it was not taken for that reason. This avoids the difficulty of proving the basis for action that affects direct discrimination claims under antidiscrimination laws. Finally, the process for enforcement under the FWA is very attractive. It is fast and, if litigation is necessary, costs do not follow the event, but instead, each party bears their own costs, even in court. We begin our analysis of FWA s 351 by providing some historical and statutory context (9.2), and then outline the scope of the protection (9.3) and the enforcement regime under the FWA (9.4). Finally, in section 9.5, we note other provisions in the FWA that prohibit discriminatory terms in industrial awards and enterprise agreements.

[1]

[2]

[3]

[4]

9.2 Background: Fair Work Act and general protections Australia has a distinctive workplace relations system that developed from the late 19th century, in which collective organisations (unions) played a leading role.3 Upon federation the Commonwealth government was not granted explicit power to legislate directly on workplace relations, but could establish a system of conciliation and arbitration by which

[5]

1 See Chapter 7 at 7.2.3 on choice of jurisdiction. 2 This is not, however, as wide as appears on its face – see exception in s 351(2)(a) discussed below at 9.3.4. 3 For more detail on the development and operation of Australia’s workplace relations laws, see e.g. Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford University Press, 2nd ed, 2011).

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working conditions were set as industry-wide awards by successive industrial relations commissions. These laws continued and evolved, establishing an extensive safety net of terms and conditions of employment for many workers, with similar parallel systems of conciliation and arbitration operating at the state level. This historical collective labour law system continued to operate largely independently as the anti-discrimination laws were introduced separately during the 1970s and 1980s.4 Labour laws applied only to the workplace and, even within that, only to the specific relationship of employment.5 In contrast, coverage of the new anti-discrimination laws is much wider, reflecting origins in international human rights debates and conventions. From the early 1990s the distinct division between labour laws and anti-discrimination laws began to change, at the margins of both fields. Provisions were introduced into labour law that reflected notions of non-discrimination, giving effect to obligations Australia had undertaken under the International Labour Organisation’s (ILO) Conventions. These included individual rights against unlawful (discriminatory) termination of employment, protecting individual workers from dismissal on the basis of particular attributes.6 Mechanisms were also introduced to implement international obligations in respect of equal pay between men and women.7 These changes represented a shift from collective to individual rights. To reflect and support this shift, new non-discrimination objectives referring to Australia’s obligations under the ILO Conventions were introduced into the Act to guide interpretation, and the industrial commission was to take these objectives into account in fulfilling its functions.8 On the side of anti-discrimination laws, the absolute exemption for compliance with industrial instruments was being moderated, as noted in 6.5.3. New provisions enabled discriminatory terms and conditions in awards or agreements to be reviewed, prompting some engagement between the human rights and industrial commissions.9 More recently, this mechanism has been revived and used (see 9.5 below). The next major changes in these areas occurred in 2009 when the FWA was introduced, building on an earlier overhaul in the 2005 WorkChoices legislation that saw a change in constitutional basis for the labour laws and a move towards one, national system of 4 Belinda Smith, ‘What Kind of Equality Can We Expect from the Fair Work Act?’ (2011) 35(3) Melbourne University Law Review 545, 559–63. 5 Employer and employee have traditionally not been defined for workplace laws; instead the common law definition of employment (a contract of service) is relied upon, as distinguished from other relationships, such as independent contractors (under a ‘contract for services’). 6 The Industrial Relations Reform Act 1993 (No 98) introduced s 170DF(1)(f) prohibiting termination of employment on the basis of particular attributes; subsequently s 659(2)(f) of the Workplace Relations Act 1996 (Cth). The grounds were derived from Discrimination (Employment and Occupation) Convention, 1958 (ILO No 111), 362 UNTS 31 (entered into force 15 June 1960). 7 Equal Remuneration Convention, 1951 (ILO No 100), opened for signature 29 June 1951, 165 UNTS 303 (entered into force 23 May 1953). 8 These changes were introduced by the Industrial Relations Reform Act 1993 (Cth). 9 Deidre O’Connor, ‘Equity in the Workplace: The Implications of the Industrial Relations Reform Act 1993’ (1995) 37 Journal of Industrial Relations 63, 70; Ronnit Redman and Karen O’Connell, ‘Achieving Pay Equity Through Human Rights Law in Australia’ (2000) 6(1) Australian Journal of Human Rights 107, 108–9.

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regulation.10 This Act now regulates working conditions for most employees in Australia; it largely applies only to the employment relationship, not other types of work relationships.11 Due to constitutional limits it does not generally cover state public sector employment (apart from Victoria) or even local council or all private sector employment in some states.12 The FWA saw a move away from collective establishment and enforcement of terms and conditions of employment towards individual rights and bargaining at the enterprise level. The primary ways in which it regulates conditions of employment are through: National Employment Standards, setting out a basic statutory list of minimum terms and conditions for all employees; modern awards which provide more specific terms and conditions tailored to particular industries (reviewed every four years); and enterprise agreements which are generally the product of industrial bargaining at individual workplaces. The Act also provides for specific individual rights, called general protections, the focus of this chapter. The main institutions under the FWA are the Fair Work Ombudsman (FWO), which has inspection and enforcement powers, the Fair Work Commission (FWC), which acts to resolve disputes through mediation, conciliation and limited arbitration, and the federal courts (Federal Court of Australia (FCA) and Federal Circuit Court of Australia (FCCA)) which have jurisdiction to decide on contraventions and to make orders. The FWA significantly extended non-discrimination principles into the national labour law. In addition to the general protections against discrimination (s 351), provisions precluding discrimination in awards and agreements were strengthened,13 and objectives of equality and freedom from discrimination were adopted throughout the Act.14 References to specific international conventions were removed from the objectives, however, and the references to those objectives were weakened. Other changes to promote substantive gender equality included: some improvements in equal remuneration mechanisms which could make them more useable and effective;15 the introduction of a right to request flexible working arrangements to manage carer’s and other responsibilities;16 and enhancement of other rights, such as carer’s leave17 and parental leave.18 These latter provisions play a significant role in promoting equality more broadly but are beyond the scope of this book. With the enactment of the FWA, long-standing protections for individual employees in relation to union membership (s 346) and anti-victimisation for the exercise of a workplace right (s 340) were grouped together as general protections in Part 3-1 of the Act, along with the new discrimination provision s 351. These individual employee rights built on a foundation of law that had existed since 1905 to protect union members from retaliation by

9 [10]

[11]

[12]

10 Owens et al, above n 3. 11 Some provisions extend to independent contractors and seek to address sham contracting. 12 See generally Andrew Stewart, Anthony Forsyth, Mark Irving, Richard Johnstone and Shae McCrystal, Creighton & Stewart’s Labour Law (Federation Press, 6th ed, 2016). 13 Discussed further below: see 9.5. 14 See FWA ss 3, 336, 578(c). 15 See FWA s 302. 16 FWA s 65. 17 See FWA ss 70, 96. 18 FWA Part 2-2.

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employers for union membership or activities.19 The two rights to freedom of association and anti-victimisation were historically entwined because traditionally the only rights available under federal labour law were those relating to the conciliation and arbitration system in which the parties were unions, not individual employees. So the individual rights that were protected related to the right to participate in a union and in the union activity of negotiating and bargaining for awards. The drafting and interpretation of s 351 has been significantly influenced by the drafting and interpretation of these two older protections. The original protections were framed as a right not to be treated ‘adversely’ ‘because of’ a prohibited reason, such as union membership. To facilitate the enforcement of these protections, historically a shifting burden of proof has applied to the prohibited reason.20 The use of a shifting burden of proof has continued in the FWA and has been extended to all general protections, as discussed below (9.3.3.2).

9.3 Section 351: ‘Discrimination’ [14]

[15]

Section 351 prohibits discrimination in employment, but in a particular way. It represents a significant expansion of the unlawful termination provisions, to cover all stages of employment, not only termination, and also to prospective employees. The unlawful termination provisions still exist,21 but their operation is now limited: employees who have been dismissed are permitted to use the unlawful termination provisions only if they cannot bring a general protections dismissal claim.22 Section 351, entitled ‘Discrimination’, provides: (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. This means that employers must not take ‘adverse action’ against employees and prospective employees because of any one or more of these 15 attributes. An important feature of this prohibition is the absence of definitions of key terms such as the attributes listed, and ‘discrimination’. The exceptions in sub-s (2), discussed below at 9.3.4, are also open to interpretation. To understand this protection we consider the following: (1) which employees are covered; (2) the scope of the attributes listed in s 351; (3) what is prohibited by s 351 and what each party needs to prove in bringing or defending an allegation of breach; and (4) the types of exceptions that apply. We also note that s 340 protection in respect of workplace rights has been used as an alternative or in conjunction with s 351. 19 See Anna Chapman, Kathleen Love and Beth Gaze, ‘The Reverse Onus of Proof Then and Now: The Barclay Case and the History of the Fair Work Act’s Union Victimisation and Freedom of Association Provisions’ (2014) 37(2) University of New South Wales Law Journal 471. 20 Conciliation and Arbitration Act 1904 (Cth) s 9; see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [73]ff for the legislative history of this provision. 21 FWA s 772. 22 FWA s 723.

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9.3.1 Which employees are covered? Firstly, Part 3-1 of the Act does not apply to all employees in Australia; it is limited by the range of underpinning constitutional powers. Relying primarily on the ‘corporations’ head of power under Constitution s 51 (xx), and with reduced reliance on international conventions, this Part applies first to action taken by or affecting ‘constitutionally-covered’ entities, which includes constitutional corporations, the Commonwealth, and Commonwealth authorities and bodies incorporated in a territory.23 It further applies to action taken in a territory or ‘Commonwealth place’, and action taken by a trade and commerce employer or territory employer with respect to employment.24 It does not apply to state public sector workers (other than in Victoria) or private sector employees in Western Australia who are employed by entities other than corporations or by a corporation that is not primarily a ‘trading’ or ‘financial’ corporation. In the case of dismissals, those employees who are not covered by s 351, and thus not entitled to bring a general protections claim, have access to the protections against unlawful termination.25 This includes those employees who are excluded from s 351 because of the exceptions (see 9.3.4 below).

[16]

[17]

9.3.2 Attributes As noted above, the section prohibits discrimination in respect of 15 attributes: race, colour, sex, sexual preference, age,26 physical or mental disability,27 marital status, family or carer’s responsibilities,28 pregnancy,29 religion, political opinion,30 national extraction31 or social origin. This list of attributes is the same as the list under s 772(1)(f) dealing with unlawful termination, and, apart from adding ‘carer’s’, mirrors the list of grounds introduced in 1993. Unlike the often-detailed definitions in anti-discrimination law, these attributes are not defined in the FWA. The ordinary rules of statutory interpretation provide that undefined terms are to be interpreted as having their ordinary meaning, but statutes are to be interpreted in the way that best gives effect to the purpose of the legislation.32 Further, in interpreting words in statutes, consideration may in certain circumstances be given to extrinsic materials, such as the Explanatory Memorandum and Parliamentary Second Reading speeches, to determine their meaning.33

23 24 25 26 27 28

29 30 31 32 33

[18]

[19]

FWA ss 338(1)(a)–(c) and 338(2). FWA ss 338(1)(d), (e) and (f). FWA ss 723, 772. FWO v Theravanish Investments Pty Ltd & Ors [2014] FCCA 1170. Hodkinson v Commonwealth (2011) 248 FLR 409; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184. Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056; Wolfe v Australia and New Zealand Banking Group Limited [2013] FMCA 65; Aitken v Virgin Blue Airlines and Vandeven v Virgin Blue Airlines [2013] FCCA 981. Ucchino v Acorp Pty Limited (2012) 218 IR 194; Lai v Symantex (Australia) Pty Ltd [2013] FCCA 625. Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27. Wintle v RUC Cementation Mining Contractors Pty Ltd (No 3) [2013] FCCA 694. Acts Interpretation Act 1901 (Cth) s 15AA (AI Act). AI Act s 15AB defines the relatively narrow conditions in which extrinsic materials can be used in interpreting federal statutes.

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Because the attributes are not defined, it is up to the courts to give them meaning. There are questions about the scope and meaning of each attribute, including whether or not manifestations of the attribute are included (as the High Court held they were in Purvis). For example, should ‘physical or mental disability’ in s 351 be given the same wide meaning as the definition of ‘disability’ in the DDA? If not, what definition should be chosen? One court chose to adopt the dictionary meaning of disability to mean ‘a particular physical or mental weakness or incapacity and to include a condition which limits a person’s movements, activities, or senses’34, and held that it excludes the ‘practical consequences’ of the disability, such as more frequent absences from work. However, a different court, relying on the objects of the FWA as well as the dictionary meaning, held that the ‘inherent and perceived functional impairments or consequences in relation to presentation or work in a workplace, which are the manifestations of the underlying condition’ should not be excluded.35 While the latter approach is more consistent with anti-discrimination law in including manifestations of the disability, both approaches fail to draw on the decades of experience in anti-discrimination law about the issues in defining disability. In Sayed v Construction, Forestry, Mining and Energy Union,36 Mortimer J interpreted ‘political opinion’ in s 351 not by drawing on a dictionary definition, but by examining its meaning in other legal contexts, including in extradition and refugee law as well as anti-discrimination law. In view of the decades of anti-discrimination law decisions that discuss attributes, it would be strange for courts to completely ignore them in interpreting the attributes in s 351. Even if not conclusive, they are likely to be helpful in identifying the issues that arise in determining meaning.

9.3.3 What is prohibited by s 351? [21]

[22]

Section 351 is entitled ‘Discrimination’,37 but this word is not actually used in the body of the section and is not defined in the Act. It actually prohibits ‘adverse [detrimental] action’ because of a specified attribute, which is the essence of discrimination. The use of such general terms gave the courts considerable scope for interpreting s 351, but left aside unresolved tensions in the meaning of discrimination. This definition is similar to the noncomparative definitions of discrimination in the ACT and Victorian Acts, whereby using a comparator is only one method of showing less favourable treatment, and not an essential element of discrimination (see Chapter 5 at [33]–[35]). In this section we consider the two related parts of the prohibition: the harm (what constitutes adverse action); and the scope of the prohibition, which encompasses the prohibited reasons and tests for proving a contravention. An important question of scope is first considered. One significant question about the scope of s 351 is whether it protects only against direct adverse action (inappropriately taking account of attributes) or also indirect adverse action (inappropriately ignoring attributes and thereby requiring compliance with apparently neutral

34 35 36 37

Hodkinson v Commonwealth (2011) 248 FLR 409, [146]. Stephens v Australian Postal Corporation (2011) 207 IR 405, [86]–[90]. [2015] FCA 27, [164]–[177] (Sayed). The heading is part of the Act: Acts Interpretation Act 1901 (Cth) s 13(1).

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criteria or conditions). As was noted by Gordon J (when on the Federal Court) in one of the early general protections cases, Klein v Metropolitan Fire and Emergency Services Board,38 when the High Court was first called upon to interpret anti-discrimination legislation, it was inclined to read similarly general terms widely to include both different treatment and different impact, as the US Supreme Court had done in Griggs v Duke Power.39 Ultimately, in those cases the High Court did not need to do so because indirect discrimination was expressly included in the statutory definitions in anti-discrimination legislation,40 but these early antidiscrimination law judgments make clear that even without prescriptive legislative provisions to suggest otherwise, ‘discriminating’ in s 342 (and arguably, the discrimination prohibition in s 351 generally) could and should be interpreted widely. Other arguments also support such an interpretation. Firstly, as noted above, when an Act does not define a term it is to be interpreted as having its ordinary meaning, but an interpretation that best achieves the purpose of the Act is to be preferred and relevant extrinsic materials, like Explanatory Memoranda, may be considered.41 The objectives of the FWA provide support for an interpretation that promotes ‘social inclusion for all Australians’,42 providing ‘protection from workplace discrimination’ and ‘effective relief’ against discrimination,43 taking ‘into account Australia’s international labour obligations’44 which are certainly not limited to addressing only direct discrimination. Second, similar wording in the long-standing unlawful termination provisions was interpreted widely to include indirect discrimination.45 The FWO took the position that s 351 was to be interpreted as covering both direct and indirect discrimination.46. This possibility has been reinforced by Mortimer J who commented in Sayed that ‘[i]t would be a significant omission from the protections otherwise intended to be offered by s 351, read with s 342, if indirect discrimination were not covered’.47 Arguably the best reason for not limiting s 351 to direct discrimination is because the distinction between direct and indirect discrimination is chimerical rather than a bright line. Although our anti-discrimination laws use a two-part definition, direct and indirect discrimination are not conceptually distinct categories (as discussed in Chapters 1 and 5). It is not difficult to mask exclusion in neutral language, as the Supreme Court of Canada articulated:

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[23]

[24]

(2012) 208 FCR 178; [2012] FCA 1402, [88]–[102]. Griggs v Duke Power Co, 401 US 424 (1971). Klein (2012) 208 FCR 178; [2012] FCA 1402, [88]–[102]. Acts Interpretation Act 1901 (Cth) ss 15AA, 15AB. FWA s 3. FWA s 336(1)(c), (d). FWA s 3(a). Sapevski v Katies Fashions (Australia) Pty Ltd [1997] IRCA 219. It was clear in that case that the breadth of the underlying convention that the provision was designed to implement was a factor in interpretation. 46 Fair Work Ombudsman, FWO Discrimination Policy: Guidance Note 6, 17 December 2009 (updated 21 December 2012), [5.4]. This Policy has subsequently been withdrawn, supposedly replaced by the FWO Compliance and Enforcement Policy (2015), but without mention of how specific provisions will be interpreted. The Fair Work Commission, in explaining s 351, simply provides a wide dictionary definition of discrimination that reflects international conventions covering distinctions, exclusions, restrictions or preferences made on the basis of an attribute that have either the purpose or effect of impairing equal rights. Fair Work Commission, General Protections Benchbook (2016), 99. 47 [2015] FCA 27, [155].

38 39 40 41 42 43 44 45

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Not only is the distinction between direct and indirect discrimination malleable, it is also unrealistic: a modern employer with a discriminatory intention would rarely frame the rule in directly discriminatory terms when the same effect or an even broader effect could be easily realized by couching it in neutral language … The bifurcated analysis gives employers with a discriminatory intention and the forethought to draft the rule in neutral language an undeserved cloak of legitimacy.48

[25]

The protection of s 351 could be avoided relatively easily if indirect discrimination was omitted, including the type of discrimination that occurred in Griggs v Duke Power, in which a ban on racial discrimination was circumvented by using an educational requirement. This issue is closely connected with the definition of ‘adverse action’ and the interpretation the High Court has given to the provisions for the rebuttable presumption in s 361 of the reason for the adverse action, discussed below. In particular, by adopting a test for discharging the shifting onus of proof that focuses only on the employer’s intention or subjective characterisation, the courts have significantly limited the breadth of the general protections. This is ironic given that the original rationale for including such a presumption was to assist complainants, who otherwise cannot easily prove the employer’s reason, to ensure better protection of employees. The purpose of the provision was to ‘remedy the ease with which an employer might avoid liability’49 or, as articulated later, ‘[to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge’.50

9.3.3.1 Adverse action [26]

The harm prohibited by s 351 is ‘adverse action’: an employer must not take ‘adverse action’ against employees or prospective employees because of the listed attributes. Adverse action has a complex definition in s 342 that covers a wide range of actions against different types of respondents. In respect of employers it includes: (a) dismissing an employee; (b) injuring an employee in his/her employment; (c) altering the position of an employee to their prejudice; and (d) discriminating between an employee and other employees.51 For prospective employees it includes: refusing to employ the person; and discriminating with respect to terms and conditions on which employment is offered.52 For both categories the prohibition extends to employers threatening or organising to take such action.53 Because

48 British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3, [29] (McLachlin J). 49 Second reading speech on the Commonwealth Conciliation and Arbitration Bill (No 2) 1914 (Cth), the Attorney-General, Billy Hughes, Australia, House of Representatives, Parliamentary Debates (Hansard), 13 November 1914, 659 (as cited by French CJ and Crennan J [49] in Barclay (2012) 248 CLR 500). 50 General Motors-Holden’s Pty Ltd v Bowling (1976) 12 ALR 605, 617 (Mason J). 51 FWA s 342(1), item (1). 52 FWA s 342(1), item (2). 53 FWA s 342(2). For further discussion of ‘adverse action’ and a comparison with anti-discrimination laws, see Carol Andrades, ‘Intersections between “General Protections” under the Fair Work Act 2009 (Cth) and Anti-Discrimination Law: Questions, Quirks and Quandaries’ (Centre for Employment & Labour Relations Law, University of Melbourne, December 2009). See also Anna Chapman, ‘Judicial Method and the Interpretation of Industrial Discrimination’ (2015) 28(1) Australian Journal of Labour Law 1.

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s 351 specifically applies only to ‘employers,’ unlike ss 346 (union membership or industrial activity) and 340 (workplace rights), it does not impose obligations more widely on ‘persons’, employees or independent contractors. Many of the terms in s 342 were used in the predecessor Acts and have been judicially interpreted. In essence, the claimant employee must have suffered somehow or be in a worse position as a result of the employer’s acts. The employer must have intended for the actions to occur,54 and the detriment needs to be the result of the actions, not by operation of law.55 The term ‘dismisses’ is to be interpreted consistently with the unfair dismissal provisions in the Act.56 This primarily means the dismissal needs to be at ‘the employer’s initiative’.57 It does, however, also include ‘constructive dismissal’, whereby a person has resigned but was effectively forced to do so by conduct or a course of conduct by the employer that showed an intention to no longer be bound by the contract and thus amounted to a repudiation of the contract.58 The terms ‘injuring’ in employment and prejudicially ‘altering’ have been interpreted widely59 to include a range of detriments, not limited to deprivation of legal rights, but also any real and substantial diminishment in terms, conditions or benefits enjoyed by the employee. This could be a reduction in pay, hours or status, a denial of training, promotion or an opportunity to maintain or develop skills, or commencing an investigation, issuing a warning, ‘show cause’ letter, or suspension.60 These elements of the definition of ‘adverse action’ involve continuity with earlier legislation, and do not involve comparative assessments. The last type of adverse action by employers – ‘discriminating between employees’ – is odd, especially in relation to s 351. It is the only part of the definition that explicitly refers to ‘discrimination’, using the unusual formulation of ‘discriminates between’ rather than the more usual ‘discriminates against’. Although adverse action is generally not interpreted to require comparison, the courts have held that this type of adverse action, ‘discriminating between’, does involve a comparison. In interpreting s 342(1), item 1(d), the courts drew on dictionary meanings of ‘discrimination’ as ‘make a distinction in the treatment of different categories of things or people’, despite earlier wider interpretations of similar wording before the FWA was adopted. The courts have taken a range of approaches.61 In Sayed it was held that the inquiry is into ‘the way in which the employer targets the particular employee. Is that employee treated differently from other employees?’62 The adverse action must be deliberate or intentional, unlike direct discrimination law, where assessment of the reason

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54 AWU v BHP Iron Ore Pty Ltd (2000) 106 FCR 482; [2001] FCA 3, [54]; see also McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 511; [2006] FCA 828, [344]–[355]. 55 ALHMWU v Liquorland (Aust) Pty Ltd (2002) 114 IR 165; [2002] FCA 528, [30]–[31], [37]. 56 FWA s 12 defines ‘dismisses’ and refers to the unfair dismissal provisions, particularly s 386. 57 FWA s 386(1)(a); Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (Mohazab). 58 FWA s 386(1)(b); Mohazab (1995) 62 IR 200. See Pauline Thai, ‘Constructive dismissal: A re-examination’ (2014) 27(2) Australian Journal of Labour Law 137. 59 MUA v Patrick Stevedores (No 1) Pty Ltd (1998) 79 IR 281, 288 (North J). This approach has been adopted under the FWA: see Jones v Queensland Tertiary Admissions Centre Limited (No 2) (2010) 186 FCR 22, [64]–[65]. 60 C Sappideen et al, Macken’s Law of Employment (Lawbook, 8th ed, 2016) [13.250]; FWC Benchbook, above n 46, 64–9. 61 See Chapman, above n 53, 17–22. 62 Sayed v CFMEU [2015] FCA 27, [160].

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for action is objective and not dependent on the motive or awareness of the person acting.63 This narrow approach, of requiring intention, has been influenced by the interpretation of the shifting onus of proof in s 361, discussed below. Problematically, this could suggest that intention is relevant to establishing the factual adverse action under s 342(1), item (1)(d) as well as to establishing that this adverse action was because of the protected attribute under s 351. It is difficult to believe this was the intention of the parliament. Importantly, Gordon J (while on the Federal Court) in Klein v Metropolitan Fire and Emergency Services Board64 held that without prescriptive legislative provisions to suggest otherwise, ‘discriminating’ in s 342 should be interpreted widely – to cover both direct and indirect discrimination, as it has been in other countries that use the general term ‘discrimination’ without further defining it, such as the USA and Canada. Section 342 contains exclusions from the definition of ‘adverse action’. It does not include standing down an employee who is engaged in protected industrial action and is employed under a contract that provides for this type of stand-down, or action that is authorised under the FWA, another Commonwealth law or a state or territory law prescribed by the Fair Work Regulations. Examples of actions that appear discriminatory on their face but are nevertheless authorised by the latter provision include, first, payments of lower rates of pay for an employee with disability because the FWA allows for this.65 Similarly, the Act allows for lower rates of pay to be set in awards for ‘junior employees’, those who are less than 21 years of age.66 In addition, affirmative action that constitutes a special measure would be excluded if the initiative was ‘authorised’ as a special measure under the Sex Discrimination Act 1984 (SDA) (see Chapter 8), as designed to promote substantive gender equality.67 Importantly, apart from the above examples, an employer generally cannot defend an adverse action claim by arguing that it was complying with an award or enterprise agreement; discriminatory terms have no legal effect, as discussed below at 9.5, and thus cannot be relied on to ‘authorise’ the action

9.3.3.2 The reason for adverse action – what needs to be proven? [30]

There are two parts to proving the reason for conduct under the general protections. Firstly s 360 provides that where there are multiple reasons, the prohibited reason need not be the only reason: it provides that ‘a person takes action for a particular reason if the reasons for the action include that reason’. This has been interpreted to mean that the reason must be a ‘substantial and operative’ factor68 for the conduct, which means that it need not be the sole or

63 Chapman, above n 53, 19, citing Hodkinson v Commonwealth (2011) 248 FLR 409 and Ramos v Good Samaritan Industries (No 2) [2011] FMCA 341. 64 (2012) 208 FCR 178; [2012] FCA 1402, [88]–[102]. 65 FWA s 153 (‘A term of a modern award does not discriminate merely because it provides for a minimum wages for … employees with a disability’.) 66 See FWA ss 139, 153, 294. Similarly, enterprise agreements may contain lower rates for junior employees and this would not be a ‘discriminatory term’: s 195 FWA. 67 Alternatively, affirmative action could be excluded from s 351 protection if it is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’: s 351(2)(a). 68 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [62] (French CJ & Crennan J); [103], [127] (Gummow & Hayne JJ) (Barclay).

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even dominant reason, but must be more than merely incidental. By comparison, the requirement in most anti-discrimination legislation, that the unlawful reason must be a significant but not a substantial or dominant reason, appears to state a lower test (see Chapter 5 at [42]). Operating in conjunction with s 360, s 361 establishes a shifting burden of proof as a rebuttable presumption in general protection applications, including s 351.69 It applies only in respect of the reason or intention for a contravention; where an application is made alleging:

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that a person took, or is taking, action for a particular reason or with a particular intent; and taking that action for that reason or with that intent would constitute a contravention of this Part … [then] it is presumed that the action was … taken for that reason or with that intent, unless the person proves otherwise (s 361(1)).

What does s 361 mean for applicants and respondents? In litigating a claim, a person alleging a breach of ss 340, 346 or 351 needs first to prove that adverse action has been taken against them, or threatened, as discussed above (9.3.3.1). Then the presumption takes effect in respect of the reason or intention for the action. The onus shifts to the respondent to rebut the presumption by proving that the reason or intention for the adverse action was not one that is prohibited, generally by establishing a non-prohibited reason or intention for the action and by excluding the possibility that the prohibited reason played any role in their reasons. The question is one of fact concerning what were the employer’s reasons for acting.70 Being a civil action, the standard of proof is the balance of probabilities. How does this work in practice? Imagine Mary, for example, announced to her employer that she had joined a union and soon after this she was dismissed from her employment. Section 346 says that an employer is not permitted to dismiss someone because they are (or are not) a union member. If Mary took a general protections action alleging a breach of s 346 and proved that the employer had dismissed her, which is a type of adverse action, then the rebuttable presumption would apply: the Court would presume that the reason for the dismissal was the prohibited reason of union membership, and the employer would bear the onus of proving that the dismissal was not for that reason. Commonly an employer will provide direct evidence of an alternative, legitimate reason for dismissal, such as poor performance or misconduct, and evidence excluding the prohibited reason. The High Court provided guidance on what is needed to rebut the presumption of a prohibited reason in the case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay71 (Barclay), with the approach affirmed in CFMEU v BHP Coal Pty Ltd.72 Barclay was employed by Bendigo Regional Institute of Technical and Further Education (‘BRIT’) as a senior teacher. As a member of the Australian Education Union (‘AEU’) and President of the BRIT sub-branch, he was also an ‘officer’ of an ‘industrial association’ under the FWA. In his role as president, other union members who were employed by BRIT had confidentially raised concerns with him about misconduct of managers in an audit of the institute for re-accreditation. In response, Barclay sent an email to members of the AEU employed at BRIT that was entitled ‘AEU A note of caution’. In the body of the email he 69 70 71 72

[32]

[33]

A similar shifting burden mechanism operates for unlawful termination claims: FWA s 783. Barclay (2012) 248 CLR 500. Ibid. (2014) 253 CLR 243; [2014] HCA 41.

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noted that ‘several members have witnessed or been asked to be part of producing false and fraudulent documents for the audit’ and then cautioned: ‘Do not agree to be part of any attempt to create false/fradulent [sic] documentation or participate in these types of activities’. He then invited his fellow members to contact the union for support and advice if they felt any pressure to do so, and signed it as the AEU workplace delegate. The email was seen by senior management and Barclay was asked to provide the names of the employees who had witnessed or been asked to be part of producing false and fraudulent documents, but he refused on the basis that the information was confidential and had been received in his capacity as union president. BRIT Chief Executive Officer, Harvey, formed the view that Barclay had contravened an applicable employee code of conduct by sending the email and not reporting the names and allegations to management. Barclay was suspended on full pay and denied access to the premises and the workplace internet. Barclay claimed that this breached s 346 because it constituted adverse action taken because he was a union member or engaged in industrial activity.73 He said his conduct was ‘industrial activity’ because of its nature and purpose: he had only become aware of the other members’ concerns because he was President, only sent the email in his capacity as an AEU officer, and only sent it to AEU members. Further, he refused to tell his employer the names of those who had informed him because of his union role. BRIT conceded that the suspension was adverse action and, due to the rebuttable presumption, bore the onus of proving that the reason for the action was not any of the prohibited reasons in s 346. There is a clear tension between the protection of a union official’s communications with union members, and the enforcement of the organisation’s code of conduct. The issue in this case was whether the respondent institution had discharged its onus of showing that Barclay’s union status and industrial activity were not substantive and operative factors in the CEO’s decision to discipline him. Courts at different stages of the proceedings took different views on this question. The test the High Court adopted was to ask what the decision maker’s reasons were as she understood them. She gave evidence that her decision was based on Barclay’s refusal to comply with the employee code of conduct that required disclosure of allegations of breaches of employment duties to management, and that she did not consider his union activity in imposing the penalty. Her evidence was accepted by the primary judge as ‘convincing and credible’74 and was undisturbed. Harvey was able to prove that she based her decision on Barclay’s behaviour, ‘would have taken the same action in similar circumstances against a person who was neither a member nor an officer of the AEU’,75 and, as a result, discharged the onus of proof. Section 346 prohibits adverse action taken because of union membership or industrial activity. Barclay’s conduct was clearly motivated by his role as a union delegate and constituted industrial activity to him. The Court, however, did not interpret the protection to extend to adverse action taken because of conduct that is merely characterisable as

73 A claim for breach of FWA s 340 was also made, unsuccessfully. 74 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251, 264–5 [54]. 75 Ibid [28].

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9

industrial activity. Instead it limited the prohibition to cover only action taken by a decision maker who themselves characterises or understands the activity in this way. The test looks to the decision maker’s own understanding of their motives, not to an objective assessment of their motives in the circumstances. As long as the decision maker can provide credible evidence that they understood their decision making to be because of a non-prohibited reason, such as employment-related misconduct, and to exclude any prohibited reason, then they will be able to rebut the presumption. This question is one of fact, … [and] direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.76

Some principles can be drawn from the High Court’s judgment that have implications for other general protections beyond s 346. Firstly, direct evidence from the decision maker of a non-prohibited reason is the primary way to rebut the presumption. If the decision maker is credible, their own evidence of their reasons for taking the action can discharge the burden of proof, although ‘mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts’.77 The decision maker must specifically exclude any use of the unlawful reason, and the defence will fail if this is not done.78 The credibility of their evidence may be undermined or challenged by contradictory evidence but the High Court did not agree to an inquiry into any subconscious reasons of the decision maker. Second, in respect of industrial activity, employers are not permitted to take adverse action consciously because of this. However, even if an employee is motivated by or understands their own activities to be ‘industrial activity’ this does not prevent the employer from characterising the activity otherwise as purely conduct in respect of employment.79 This would presumably apply to behaviour that is a manifestation of other protected attributes under s 351, such as family responsibilities or disability. The question is what reason actuated the employer, not the employee. Finally, a formal approach to equality was clearly adopted by all members of the Court. The question was simply whether Barclay had been treated the same as any other employee, not a more substantive question about the role the legislative protection was intended to serve. A substantive approach was open to the High Court, but was not taken. The s 346 protection of union membership and holding a position as a union official affords the member no latitude in respect of their employment. Such employees are to be treated simply

[38]

[39]

[40]

76 Ibid [45] (French CJ, Crennan J). (The other judges also accepted that direct evidence from the decision maker which is accepted as reliable is capable of discharging the burden on the employer: [128]–[132] (Gummow and Hayne JJ) and [141] (Heydon J). 77 Ibid [54] (French CJ and Crennan J citing Pearce); (1917) 23 CLR 199, 203 (Barton ACJ) (with whom Gavan Duffy and Rich JJ agreed). See, subsequently, Heidt v Chrysler Australia Ltd (1976) 13 ALR 365; Lewis v Qantas Airways Ltd (1981) 54 FLR 101. 78 The decision maker’s evidence must exclude the prohibited reason: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; which cannot occur if the decision maker does not give evidence: Heraud v Roy Morgan Research Ltd [2016] FCCA 185. 79 Picketing, for example, was treated in the same way in CFMEU V BHP Coal (2014) 253 CLR 243.

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like other employees: no worse, but their attribute (or membership and consequential behaviour) can be ignored. This is despite the express extension of protection in ss 346 and 347 to related activities, which would suggest some latitude to enable collective action. In this way the protection is afforded to being a member, but not to the doing of related lawful activities that give effect to membership and holding office. This is particularly surprising because under the FWA the attribute that most explicitly offers protection to manifestations or related activity, not merely status, is union membership, because the protection is expressed to cover ‘industrial activity’. If this express coverage fails to offer any real protection for an activity that is an expression or manifestation of the status, there is little scope for such extended protection being found for other attributes where activities are not expressly included, such as family responsibilities, disability, race, religion and pregnancy, unless the principles applying to protected attributes under s 351 can be distinguished from the treatment of union members under s 346. The High Court’s decision in Barclay mirrors the narrow, formal equality reasoning in the DDA case of Purvis80 (discussed in 5.2.1), where the Court treated the claimant’s behaviour not as a part of or manifestation of the relevant attribute (in that case, disability), but merely as a voluntary behaviour, as a circumstance that could be severed and understood as separate to the person. Protection that excludes manifestations that are inherently attached to the attribute is very narrow. Protection that only covers situations where the employer is subjectively acting specifically because of the prohibited character of the attribute, rather than because of the attribute’s effects in the workplace, is narrower even than direct discrimination, where the mental element is not limited to the employer’s subjective characterisation of their reason. It requires only that an employee be treated no worse (nor better) than other employees who are not of the same status. It was significant that the decision maker in Barclay ‘would have taken the same action in similar circumstances against a person who was neither a member nor an officer of the’ union.81 By implication, this suggests that employers need not consider whether an activity or behaviour is a manifestation of an attribute. This is illustrated in the case of State of Victoria (Office of Public Prosecutions) v Grant.82 After developing a mental illness, Grant’s performance as a solicitor declined and his employment was consequently terminated. His claim that this constituted adverse action because of ‘mental disability’ under s 351 was upheld by the Federal Magistrates Court but overturned on appeal. While the trial judge found that Grant’s conduct ‘arose wholly out of his medical condition’ and it was ‘obvious’ that Grant’s ill health played a part in the termination decision, the Full Federal Court held that the decision maker’s denial that ‘Grant’s medical condition played any part in his decision’ should have been accepted as rebutting the presumption in s 361. Knowledge of the mental illness and details supplied in medical reports did not sufficiently ‘link the misconduct and the illness’. The Full Federal Court asserted ‘it is possible for there to be a close association between the proscribed reason and the conduct which gives rise

80 Purvis v State of New South Wales (2003) 217 CLR 92. 81 (2012) 248 CLR 500 [28] (French CJ, Crennan J). 82 [2014] FCAFC 184.

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to the adverse action and for the decision maker to satisfy the Court that no proscribed reason actuated the adverse action’. The principle in Barclay has been affirmed several times in cases concerning industrial activities and workplace rights.83 However, judges have noted that the credibility of the employer’s evidence about their reasons has to be assessed in the circumstances of the case. In Sayed, the same approach was applied to s 351 matters, but the employer’s evidence about his reasons was not accepted because the inconsistencies in it were irreconcilable. Since an employer’s evidence may well be self-serving, it is very important for it to be carefully tested and assessed in the circumstances. Many of the attributes in s 351 are a basis for subconscious prejudice and disadvantage, but an employer who acts on unconscious disadvantage will not necessarily be caught by the Barclay test.

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9.3.4 Exceptions to s 351(1) The scope of s 351 is limited by exceptions set out in s 351(2):

[44]

(2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or (b) taken because of the inherent requirements of the particular position concerned; or (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken: (i) in good faith; and (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. As exceptions, these sections permit otherwise impermissible conduct under s 351(1). The inherent requirements exception in s 351(2)(b) reflects an old and continuing exception in the unlawful termination provisions of the Act. This exception allows an employer to exclude someone from a position or promotion, for example, if they cannot perform a central (inherent) part of the particular position (as outlined in 6.5.6). While the exception is not limited to the physical tasks or skills,84 they must be ‘essential to the position’,85 not merely a minor or peripheral aspect. Unlike the DDA’s inherent requirements exception, the FWA does not explicitly require inherent requirements to be reasonable or the employer to provide reasonable adjustments to enable a person to perform them,86 and it contains no express unjustifiable hardship limitation. Unlike anti-discrimination laws, this defence applies to every attribute, not just disability. The religious exception in s 351(2)(c) also has a long history. It is not a wide exception, being only available to those employers who are ‘an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed’ and only

[45]

[46]

83 E.g. CFMEU v BHP Coal Pty Ltd (2014) 253 CLR 243; CFMEU v Endeavour Coal (2015) 231 FCR 150. 84 Qantas Airways Ltd v Christie (1998) 193 CLR 280, 284 (Brennan CJ); X v Commonwealth (1999) 200 CLR 177, [100] (Gummow and Hayne JJ). 85 Qantas Airways Ltd v Christie (1998) 193 CLR 280, 295 (Gaudron J), 305 (McHugh J), 318–19 (Gummow J), 340–41 (Kirby J). 86 Kubat v Northern Health [2015] FCCA 3050, [73].

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in respect of specific conduct. The conduct must be taken in ‘good faith’, which has been interpreted to have its ordinary meaning of honest belief.87 Further, the conduct must be taken ‘to avoid injury to the religious susceptibilities of adherents of that religion or creed’; this requires more than mere offence88 and at least a proportion of adherents (supporters or followers) must be affected.89 (For comparison, see the discussion of religious beliefs exception under anti-discrimination law at 6.5.4.) The third exception highlights the complex interaction between the prohibition in s 351 and anti-discrimination laws. Section 351(2)(a) provides that the prohibition on adverse action does not apply to action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’.90 There was early speculation that this provision was intended to refer merely to the application of the exceptions that are contained in the various Commonwealth, state and territory anti-discrimination laws.91 This would have then operated simply to ensure that this new general protection did not, for example, make unlawful special or positive measures taken to address inequality that were permitted under existing anti-discrimination legislation. However, a broad interpretation has now been acknowledged: the only discrimination prohibited under s 351(1) would be discrimination that is already unlawful under an anti-discrimination law.92 Under this interpretation the FWA does not expand the groups of employees who have protection against discrimination; it merely provides the protected employees with additional rights for enforcement using either anti-discrimination laws or the FWA enforcement regime. Importantly, this interpretation means that the extent of protection offered by s 351 depends on where you are in Australia, despite the Act being a federal or national law, because of the varied scope of state and territory anti-discrimination laws. This interpretation of the s 351(2) (a) exception was supported in the recent case of a journalist, Scott McIntyre, whose employment had been terminated for politically inappropriate tweets on ANZAC Day.93 McIntyre had lodged a claim alleging breach of the general protection under s 351, claiming adverse action had been taken because of ‘political opinion’. However, he was based in New South Wales where anti-discrimination laws do not prohibit political opinion discrimination, so he later argued this made him eligible to lodge an unlawful termination claim.94 The unlawful termination provisions are not available to a claimant who ‘is entitled to make a general protections’ application in relation to the conduct (s 723) but McIntyre successfully argued that the s 351(2) (a) exception would apply, rendering him ineligible for protection under s 351(1).95

87 88 89 90 91

92 93 94 95

Bropho v HREOC (2004) 135 FCR 105, [88]–[91]. Hozack v Church of Jesus Christ of Latter-Day Saints (1997) 79 FCR 441. Members of the Board of the Wesley Mission Council v OV (No 2) [2009] NSWADTAP 57, [54]. The relevant federal, state and territory anti-discrimination Acts are listed in s 351(3). See Andrades, above n 53, 9–10; Simon Rice and Cameron Roles, ‘It’s a Discrimination Law Julia, But Not As We Know It: Part 3-1 of the Fair Work Act’, (2010) 21(1) Economic and Labour Relations Review 13; Belinda Smith, ‘Fair and Equal in the World of Work: Two significant Federal developments in discrimination law’ (2010) 23(3) Australian Journal of Labour Law 199. McIntyre v Special Broadcasting Services Corporation [2015] FWC 6768 (McIntyre); Sayed [2015] FCA 27, [161]; FWC Benchbook, above n 46, 114. None involve an authoritative decision after full argument, however. McIntyre [2015] FWC 6768. Under FWA s 772. McIntyre [2015] FWC 6768, [30]–[38] (Cambridge C).

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Section 723 is designed primarily to direct national system employees to the general protections provisions, but to allow non-national system employees who are excluded from the general protections to still have access to the unlawful termination provisions which apply to all employees. However, as McIntyre’s case demonstrates, it can also apply to employees who allege discrimination but are excluded by the general protections exception relating to ‘action not unlawful under anti-discrimination law’, which is not replicated for unlawful termination. Similarly, for example, an employee in New South Wales alleging dismissal because of religious belief might need to rely on the unlawful termination provisions because religious discrimination is ‘not unlawful under anti-discrimination law’ in New South Wales and thus might be exempted under the general protections provisions of s 351(2)(a). In contrast, such an employee in Victoria could use s 351 because religious discrimination is prohibited by Victoria’s anti-discrimination law.

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9.3.5 Exercising a workplace right Another important and related general protection is protection against victimisation for exercising a ‘workplace right’, such as enforcing or seeking to enforce rights under the FWA or other workplace legislation. Section 340 provides that ‘a person must not take adverse action against another person’ because the other person has a workplace right, has exercised such a right or proposes to do so. Such protections against victimisation have a long history in Australian labour laws.96 It is not uncommon for a law that provides rights to include this type of ancillary protection that makes it unlawful to threaten or punish someone for seeking to enforce their rights. All Australian anti-discrimination laws have similar provisions.97 A ‘workplace right’ is defined widely to include entitlements to benefits under ‘workplace laws’, rights to participate in proceedings or make a complaint or inquiry about compliance with a workplace law. Importantly, ‘workplace laws’ extend beyond the FWA to include any other law that regulates the relationship between employers and employees (s 12), which includes anti-discrimination laws that apply to workplace relations.98 This general protection provides an avenue for bringing some discrimination-type claims that is an alternative to a s 351 claim (in view of the broad exceptions in s 351(2)) or even to a claim under anti-discrimination law. Many cases that could have been formulated as claims of discrimination on the basis of carer responsibilities or disability can relatively easily be formulated as claims under s 340. This would avoid the application of the exceptions in s 351(2), and the procedural disadvantages of anti-discrimination law processes (noted in Chapter 7 and below). The disadvantage is that the shifting onus of proof that applies across the general protections leads to a very narrow form of protection. One bargaining chip, however, is that the decision maker will be required to give evidence about their own reasons for acting that will be tested against the circumstances.

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96 See Chapman et al, above n 19. 97 E.g. SDA s 94. 98 In Wroughton v Catholic Education Office Diocese of Parramatta [2015] FCA 1236, it was argued that the Sex Discrimination Act was not a ‘workplace law’ because it prevented behaviours rather than regulated the workplace. Flick J expressed doubt about this argument [75]–[78], but did not have to decide.

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In cases involving workplace rights, the Barclay test is applied to identify the employer’s motivations. In one case, an employee was dismissed for taking a day’s authorised leave on a date for which he had previously sought and been refused annual leave. Although he provided a medical certificate to cover the day’s leave, the employer’s evidence, that he was dismissed because the employer thought he was dishonest in taking the day as sick leave, was accepted.99 In effect, the medical certificate was disregarded, without any discussion of why this was permissible. In a subsequent case, an employee on a weekend roster who took sick leave and carer’s leave to care for his wife and children was transferred back to a weekday roster, which constituted adverse action.100 He complained that this was based on his exercise of his workplace right to take personal and carer’s leave. The employer’s evidence, that the reason for his transfer was that he was not present in the workplace, rather than because he took leave, was accepted as discharging the onus. This unacceptably narrow distinction draws the protection for workplace rights very narrowly, like industrial activity; an employer will only be liable where they are consciously motivated by the specific workplace right involved, rather than by the consequences of its exercise, such as the fact that a person taking leave is not present in the workplace.

9.4 Enforcement [55]

The enforcement of the general protections has similarities to the enforcement of claims under anti-discrimination law, but with a few significant differences. As an individual rights claim, a general protection application can look much like an anti-discrimination claim, starting with a simple application to an agency (the Fair Work Commission), conciliation by the agency, and only progressing to court for determination if the conciliation fails. But there are differences that relate to who can enforce the general protections, the range of processes for resolving a claim, the burden of proof, the sanctions a court can order for contravention, and costs of the litigation.

9.4.1 Who can take enforcement action? [56]

Unlike enforcement of anti-discrimination laws (see Chapter 7), while the victim or rights holder can bring an action, under the FWA they are not the only ones. General protection actions can be taken by victims, industrial associations (e.g. unions), or the regulator, the Fair Work Ombudsman (FWO).101 Industrial associations can bring an action in limited circumstances.102 Victims can bring claims of general protections breaches to the FWC103 to deal with the dispute. As noted below, the applicable procedure depends in part on whether or not the matter involves a dismissal from employment.

99 100 101 102 103

CFMEU v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 (affirmed on appeal). CFMEU v Endeavour Coal Pty Ltd [2015] FCAFC 76; Bromberg J dissent [182]–[189]. FWA s 539(2) (table item 11, column 2). See s 540. FWA s 365 (dismissal), s 372 (non-dismissal).

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Alternatively, instead of applying to the Commission, victims can take claims to the FWO. The FWO has been granted functions generally designed to promote compliance with the FWA. In addition to providing education and advice, monitoring, inquiring into and investigating matters, it can represent employees in proceedings or actually commence proceedings in court or the FWC to enforce the Act.104 Granting an agency powers of inspection and enforcement is not unusual in labour law, but using agency enforcement for discrimination claims is a significant departure from the framework in anti-discrimination laws. With enforcement powers and a range of sanctions available, there is scope for the FWO to regulate responsively and strategically.105

9 [57]

9.4.2 Dispute resolution processes The General Protections provisions are not limited to termination of employment, but a distinction is still made between dismissal and other kinds of adverse action in the setting of complaint time limits and the process for resolving disputes. Claims involving dismissal must be made to the FWC, within 21 days after the dismissal took effect.106 For such dismissal claims, the FWC must conduct a private case conference to try to resolve the dispute.107 If this is unsuccessful, the FWC issues a certificate noting this,108 and only then can an applicant choose to proceed to a court (FCA or FCCA) to have the matter adjudicated; they must apply to do so within 14 days of the FWC issuing the certificate.109 Alternatively, once the certificate is issued, if the parties agree, they can elect for the FWC to arbitrate the dispute.110 In dealing with the matter by arbitration the FWC can order reinstatement, compensation, maintaining continuity of employment and continuous service,111 but it cannot order penalties to be paid by the respondent. These time limits are punishingly short. For non-dismissal claims employees or prospective employees may apply to the FWC to deal with the dispute.112 The alternative is that the claimant can proceed directly to court, a right not available in respect of dismissals and generally not available under anti-discrimination laws.113 If the claim is lodged with the FWC and the parties agree to participate, the Commission must conduct a private conference to deal with the dispute.114 A person

[58]

[59]

[60]

104 FWA s 682. See 7.2.3 for discussion of choosing between avenues of action. 105 Tess Hardy, John Howe and Sean Cooney, ‘Less Energetic but More Enlightened?: Exploring the Fair Work Ombudsman’s Use of Litigation in Regulatory Enforcement’ (2013) 35 Sydney Law Review 565; Smith, above n 91; Beth Gaze, ‘Fair Work Ombudsman’s Regulatory Powers: The Use of Enforceable Undertakings’ (2013) 20 Australian Journal of Administrative Law 180; Dominique Allen, ‘Wielding the big stick: Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman’ (2015) 21(1) Australian Journal of Human Rights 119. 106 Or, in ‘exceptional circumstances’, within such further period allowed by the FWC: FWA ss 365, 366. 107 FWA s 368. 108 FWA s 369. 109 FWA s 370. 110 FWA s 369. 111 FWA s 369(2). 112 FWA s 372. 113 Cf EOAV s 122: see Chapter 7. 114 FWA s 374.

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seeking an order for breach of a civil remedy provision, apart from dismissal matters noted above, has six years to lodge their claim.115 As noted above, for general protections actions a rebuttable presumption applies in respect of the reason for adverse action (see 9.3.3.2 above). Finally, there is a fundamental difference in enforcement regarding the question of costs: under the FWA parties generally bear their own costs, in contrast to anti-discrimination law litigation where the default is that the losing party bears the other party’s legal costs as well as their own. The court will only order a party to pay costs of another party in limited circumstances, such as the taking of proceedings vexatiously or if unreasonable actions of a party caused the other party to incur costs.116

9.4.3 Sanctions [63]

[64]

For contravening a general protection, the FCCA and FCA have power to ‘make any order the court considers appropriate’ including an injunction, reinstatement or compensation for loss.117 The courts can also issue injunctions, including interim injunctions, to prevent adverse action.118 Sections 340, 346 and 351 are ‘civil penalty’ provisions, which means that in addition to compensatory remedies, the courts are empowered to order the respondent to pay a pecuniary penalty of up to 60 penalty units for an individual119 and 300 penalty units for a corporate respondent.120 The courts can order that the penalty be paid to the Commonwealth, a particular organisation or the individual claimant121 (like punitive damages in torts cases). The availability of penalties under the FWA as punishment for discriminating contrasts with anti-discrimination law which limits remedies to compensation. Giving the courts power to order penalties makes both specific and general deterrence available as tools of regulation. In determining orders the focus of the court is not only on what harm the victim has experienced, but on the culpability of the perpetrator and whether punishment is warranted to promote specific deterrence for the particular respondent or general deterrence for others.

9.5 Interaction with awards/agreements [65]

The FWA makes clear that modern awards and enterprise agreements must not contain discriminatory terms, and that any such terms are of no legal effect.122 This builds on earlier provisions in labour law to identify and remove discriminatory terms in awards.123 In this FWA ss 372, 544. FWA s 570. FWA s 545. FWA s 545(2)(a). See Jones v Queensland Tertiary Admissions Centre Ltd (2009) 190 IR 218. FWA ss 546, 539. A penalty unit is currently $180: Crimes Act 1914 (Cth) s 4AA. FWA s 546(2)(b). See FWO v Wongtas [2012] FCA 30 (on penalty considerations). FWA s 546(3). Sayed [2016] FCAFC 4 (allowing appeal on decision not to pay penalties to complainant). 122 FWA ss 136(2), 137, 153 (re awards); ss 186, 194, 195, 253 (re agreements). 123 Under s 568(2)(e) of the Workplace Relations Act 1996 (Cth), the Australian Industrial Relations Commission was required to ensure that awards did not contain terms that discriminated.

115 116 117 118 119 120 121

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way, the FWA not only constrains discriminatory employer conduct but also provides an avenue for challenging discriminatory rules, conditions and practices that have been reflected in awards and agreements over the years but historically have been immune to challenge under anti-discrimination laws.124 However, the Act does not provide a clear mechanism for challenging discriminatory inequalities between awards, such as the higher rates of pay for jobs predominantly done by men. The four-yearly review might allow for some adjustments, as might the equal remuneration provisions, but these are problematic.125 As noted in 6.5.3, the AHRC Act also provides a mechanism by which allegations can be made to the AHRC of discriminatory acts under industrial instruments, allowing the AHRC president to refer the instrument to the FWC for review and variation.126 This mechanism was used to prompt review by the FWC of a long-standing provision in the coal mining industry award that limited redundancy payments for older workers. The FWC found the provision to be discriminatory on the ground of age, declared that it had therefore never had any legal effect, and varied the award to remove it.127 As a corollary, an employer cannot rely upon compliance with an award or agreement as a defence to an allegation of discrimination: if the term is discriminatory it will have no effect and thus cannot constitute ‘action that is authorised’ by or under a law128 or ‘acts done under statutory authority’.129 The FWA goes further by providing that modern awards and agreements are not to include ‘objectionable terms’.130 An objectionable term is one that ‘requires’ or ‘permits’ ‘a contravention of Part 3-1’.131 As with discriminatory and unlawful terms, these objectionable terms have ‘no effect’.132 This provision has considerable potential for challenging terms of awards and agreements.133

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[66]

[67]

[68]

9.6 Conclusion The general protection provisions of the FWA have proven to be highly attractive avenues for litigating employment discrimination matters. First, the rebuttable presumption can ease the burden of proof for claimants, avoiding the problem of proof faced in direct discrimination claims. However, as discussed, the High Court has limited the effectiveness of this shifting burden and, in so doing, has also significantly limited the scope of the protection itself. Second, the enforcement regime is fundamentally different because the FWA empowers an agency, the FWO, to assist complainants and enforce the law. Third, unlike the approach

124 125 126 127 128 129 130 131 132 133

[69]

Owens et al, above n 3, 447–52. FWA pt 2-7 Equal Remuneration. See discussion in Equal Remuneration Decision [2015] FWCFB 8200. Section 46PW. For discussion, see Owens et al, above n 3, 447–52. Black Coal Mining Industry Award 2010 [2015] FWCFB 2192. See also Centennial Northern Mining Services Pty Ltd v CFMEU (No 2) [2015] FCA 136 (re agreements). Under s 342. See e.g. SDA s 40. See discussion at 6.5.3. FWA s 150 (modern awards), s 194(b) (agreements). FWA s 12 (definition of ‘objectionable term’). FWA s 356. For discussion see Smith, above n 4.

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under anti-discrimination laws, the courts are empowered not only to order compensation for complainants but also punishment for the employer in the form of civil penalties. Fourth, although enforcement of the adverse action provisions is through the federal courts like anti-discrimination law litigation, the FWA provides that costs are generally not awarded in such matters.134 This reduces the risk of loss for parties bringing such claims, in contrast to anti-discrimination litigation. Finally, the FWA process allows for different but related claims to be made about the same conduct. So, for instance, a decision to make an employee redundant during their maternity leave could be argued both as adverse action because of carer’s responsibility or because of an exercise of a workplace right under s 340. However, while the adverse action provisions offered hope of an effective level of protection against discrimination at work, courts have adopted a narrow interpretation, severely limiting their contribution. This is evident in how the onus of proof provision has been interpreted in Barclay. This precedent has allowed the courts to accept tenuous distinctions, such as a distinction between having a disability and the ‘practical consequences’ of it135 and between the reason for an absence and the fact of being absent from work,136 thereby virtually erasing protection for employees. Further, the broad exceptions in s 351(2) reduce the protection of the provision to nothing more than an additional process for enforcing state and territory laws. The avenue with perhaps most promise for complainants is the ‘workplace right’. Adverse action proceedings also offer opportunities for procedural leverage because of the need for the decision maker to provide personal evidence of their reason. It is difficult to see how this result gives effect to the intention of the parliament. In the result, anti-discrimination law is still largely excluded from being adequately considered within workplace law by the interpretations given to these provisions.

134 FWA s 570. 135 See Hodkinson (2011) 248 FLR 409, discussed above at [20]. 136 Endeavour Coal [2015] FCAFC 76: see above n 83, 100.

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GOVERNMENT ACTION TO ADVANCE EQUALITY: HUMAN RIGHTS AND POSITIVE MEASURES

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10.1 Introduction [1]

[2]

Legislating against discrimination, whether in specific anti-discrimination or general workplace laws, is a vitally important government action towards eliminating discrimination and is the focus of this book. However, there is much more that governments can and have done. In this chapter we examine three other actions governments can take to eliminate discrimination and promote equality. First, governments can commit themselves not to discriminate in any of their powers; in particular, they can commit not to pass discriminatory laws, especially through adopting constitutional or other limitations on their powers. The desirability, nature, form and operation of such limits is the focus of this chapter. Secondly, governments can require public (and in some cases private) organisations to consider equality and to promote equality and non-discrimination in their actions, such as in developing policies, providing services, and employing staff. Thirdly, governments can use their power as large purchasers of goods and services to support equality rights through procurement conditions. All these avenues operate proactively to prevent discrimination from occurring and, in some cases, provide group-based redress for past discrimination.

10.2 Protecting equality through bills of rights [3]

[4]

[5]

Provisions that seek to limit discriminatory exercise of government powers differ fundamentally from anti-discrimination laws. The latter prohibit discrimination by individuals and organisations, and this includes governments when they are exercising the same sorts of powers as individuals and organisations, such as the power to employ staff, provide education, or provide goods, services or accommodation. But governments have distinctive powers beyond those of any other individual or organisation, such as legislative power to make laws, executive power to carry out the operations of government, including spending government revenue, and judicial power to interpret and enforce the law. These powers are not generally subject to anti-discrimination law in Australia. Bills of rights, sometimes called human rights charters, are the means by which such quintessential governmental powers can be constrained in order to support equality and avoid discrimination. A bill of rights usually contains a list of the rights that are agreed to be important, and establishes mechanisms to protect those rights. It can be adopted at statutory or constitutional level. If protection is statutory it can be overridden by a government enacting a later law. Only a constitutional bill of rights can operate to limit the power of a government to infringe human rights, for example by passing discriminatory legislation. As a result, a constitutional bill of rights is the most effective way of requiring governments to respect non-discrimination rights in exercising their powers. Equality rights are central human rights, as outlined in Chapter 2, but they are different in nature to many other human rights. Most human rights protection is defined in terms of protection against government infringement of rights, whereas effective protection for nondiscrimination rights requires that they be enforced in the private sector as well as against government. This means that governments must also take positive action to legislate for

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protection of equality rights and to ensure that effective protection is provided against infringements.1 There have been several attempts to adopt a bill of rights in Australia.2 Most efforts have focused on a legislative approach because of the difficulty of amending the Commonwealth Constitution.3 Unsuccessful bills include the Human Rights Bill 1973 (Cth), and the Australian Bill of Rights Bill 1984 (Cth), both based on the ICCPR. As noted in Chapter 3, a national human rights consultation in 2009 recommended the introduction of a statutory bill of rights, but this recommendation was not acted on.4 Most recently there has been debate about whether constitutional recognition of Indigenous peoples should be accompanied by some form of constitutional prohibition of racial discrimination.5 To date, at the national level there is neither a constitutional nor statutory bill of rights. However, some states and territories have adopted legislative human rights Acts. We examine below the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities 2006 (Vic). In the following discussion, we first consider constitutional bills of rights and then statutory models. Our focus is on what these initiatives contribute to improving protection for equality and against discriminatory exercises of power.

10 [6]

[7]

10.3 Constitutional context In Chapter 2 we noted that Australia is exceptional internationally in not having any form of constitutional protection against discrimination based on protected characteristics.6 In most jurisdictions with constitutional protection for equality and against unfair discrimination, it operates to ensure that governments cannot make laws that discriminate unfairly against groups identified by protected characteristics, rendering such laws invalid because they are outside constitutional power. This important mechanism for protecting the rights also has broader effects on legal and social culture. The existence of constitutional provisions for equality and non-discrimination plays a very important role in making them fundamental issues in the legal system and ensuring that all lawyers will be trained in the relevant ideas and doctrines. It also provides a focus for community education about rights, and what they can and cannot achieve.

[8]

1 This is often an obligation imposed by the Conventions on ratifying states; see e.g. International Covenant on Civil and Political Rights (ICCPR) arts 2.2, 2.3. 2 Andrew Byrnes, Hilary Charlesworth and Gabrielle McKinnon, Bills of rights in Australia: History, politics and law (UNSW Press, 2009). 3 Constitution s 128 allows amendment by a referendum approved by an overall majority of voters as well as a majority of voters in a majority of states. Past experience has been that unless a referendum proposal has bipartisan support it cannot succeed. 4 Attorney-General’s Department, National Human Rights Consultation Report (2009). Note the terms of reference excluded consideration of a constitutionally entrenched bill of rights. The report has been archived and is available at the Australian Government web archive (AGWA) at the National Library of Australia. 5 Shireen Morris, ‘Undemocratic, uncertain and politically unviable?: An analysis of and response to objections to a proposed racial non-discrimination clause as part of constitutional reforms for Indigenous recognition’ (2014) 40 Monash University Law Review 488. 6 See 2.6 [25]–[27]. The Constitution refers to discrimination only between residents of different states: s 117.

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Australia’s system of responsible government is based on the UK (Westminster) system of government (to which is added a US-style federation and written constitution). The UK government has an unwritten constitution, which provided no firm limits on government legislative powers, so the democratic political process is relied on to ensure governments act within limits because they will be accountable at elections. The common law developed protection for fundamental rights through case law presumptions, for example, against retrospective legislation, and to personal liberty, freedom of movement and expression, access to courts, fair trial, and procedural fairness when affected by the exercise of public power.7 These principles carried over as presumptions in the interpretation of statutes, now known as the ‘principle of legality’: that parliament is presumed not to intend to limit fundamental rights in the absence of clear words. Their effect is limited by the principle of parliamentary supremacy, by which legislation prevails over the common law. This ensures that the democratically elected parliament prevails, but also means that parliament is free to override those common law rules and presumptions, providing that it uses clear and unambiguous words in legislation to do so.8 The common law approach has two weaknesses in protecting equality rights. First, as discussed in Chapter 2, it never developed a principle against unfair discrimination. Secondly, even if it had, protection for fundamental rights that rests on a rebuttable presumption is an insufficient protection against the many ways government may make incursions on rights. While the preservation of democratic authority and legitimacy is enormously important, without effective protection for equality and non-discrimination, exercises of government power are not prohibited from oppressing protected groups. While other countries with the Westminster common law system of government, such as the UK and Canada, have adopted binding limits on government to protect human rights including non-discrimination (as discussed below), Australia has not.

10.3.1 Constitutional bills of rights [12]

[13]

What is distinctive about constitutional protection for rights compared to anti-discrimination legislation is that it controls the exercise of governmental powers, including the powers to make legislation, to exercise executive powers, and to make judicial decisions. Constitutional bills of rights can prevent governments from making discriminatory laws. Such a limitation on the legislature is essential for full protection for non-discrimination and equality rights; the absence of such constitutional protection in Australia has permitted a number of laws to be passed that have discriminated against Indigenous people (see 10.3.4 below). In the UK, the common law position has been substantially modified by a statutory bill of rights, discussed below ([21]), that is supported by limits imposed by European human rights laws. European law is binding, and thereby imposes limits on UK government

7 These rights have been referred to as a ‘common law bill of rights’: Spigelman CJ, ‘The Common Law Bill of Rights’ (Speech at the University of Queensland, Brisbane, 10 March 2008); French CJ, ‘The Common Law and the Protection of Human Rights’ (Speech to Anglo Australasian Lawyers Society, Sydney, 4 September 2009). 8 Coco v R (1994) 179 CLR 427.

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powers in the same way as a constitutional bill of rights could. As a member of the Council of Europe, the UK is party to the European Convention on Human Rights 1950 (European Convention) and the European Social Charter 1961, which is not affected by the ‘Brexit’ decision to leave the European Union. Breaches of the European Convention can be enforced in the European Court of Human Rights (ECHR) at Strasbourg. As a member of the European Union (EU), the UK is also obliged to provide protection for fundamental rights under the European Union Charter of Fundamental Rights 2000. This can be enforced through litigation in the European Court of Justice (ECJ) at The Hague. After the UK leaves the EU, binding human rights protection will still be required by the Council of Europe, but the EU Charter of Fundamental Rights will no longer apply. Constitutional protections against discriminatory laws take a range of different forms. In the USA, the 14th Amendment to the Constitution is in a part of the Bill of Rights that was adopted after the American Civil War, and provides that ‘[n]o State shall … abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws’. Nominally it applies to the states, but the due process clauses of the 5th and 14th Amendments to the Constitution apply the same prohibition to the federal government. Although earlier cases had permitted laws that discriminated by race, by 1954 in Brown v Board of Education of Topeka,9 the Supreme Court held that a law permitting racially segregated public schools was invalid because segregated facilities were inherently unequal. The Court held that laws challenged under the 14th Amendment were to be tested by scrutinising the law’s ends and means; the law would be valid only if it satisfied the appropriate test. Three levels have been developed. For classifications involving race, national origin or religion, ‘strict’ scrutiny is required, where the government must show that the classification serves a compelling state interest and is narrowly tailored and necessary to serve that interest. Intermediate level scrutiny applies to classifications based on gender, and requires a showing that the classification serves an important state interest and is at least substantially related to serving that interest. The lowest level of scrutiny for other classifications is ‘rational basis’ scrutiny where it must be shown that the classification is rationally related to serving a legitimate state interest.10 Canada first attempted to address the problem of protecting rights by adopting a legislative Canadian Bill of Rights 1960, which covered only a limited set of rights. Even though the Supreme Court held that it could be used to invalidate a conflicting statutory provision based on parliament’s intent to do so,11 the need to determine intention in each case rendered its protection weak compared to constitutional protection. Consequently, when the Canadian Constitution was updated in 1982, a bill of rights was included in the form of the Canadian

10

[14]

[15]

9 347 US 483 (1954). 10 16 B Am Jur 2d Constitutional Law § 857; Angelo Guisado, ‘Reversal of Fortune: The Inapposite Standards Applied to Remedial Race, Gender, and Orientation-Based Classifications’ (2013) 92 Nebraska Law Review 1. 11 R v Drybones [1970] SCR 282; the offence was an ‘Indian’ being intoxicated outside a reserve: Indian Act s 94(b).

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Charter of Rights and Freedoms,12 which protects equality rights (s 1513) and equality between men and women (s 28), and also contains a separate set of provisions to protect Canada’s indigenous first peoples.14 As discussed below (at [19]), even though it is constitutionally entrenched, this protection is moderated by a ‘reasonable limitations’ provision.

10.3.2 Constitutional or statutory bills of rights [16]

[17]

Constitutional protection of rights is the strongest mode of protection because it is entrenched (in the sense that it cannot easily be changed by the government alone) and imposes strict limits on government powers, whereby governments do not have power to legislate or otherwise act outside the constitutional framework. However, there are problems with entrenching a bill of rights. By giving the final say on the meaning of rights to the highest court, it tends to recast disputes as legal rather than political issues and prevent political resolutions of differences. This can be appropriate where fundamental rights need protection from government incursions, but problematic in other cases. Constitutional protection of rights can be rigid, especially where it is very difficult to amend the constitution. An interpretation adopted by the highest court cannot be avoided without either a constitutional amendment15 or persuading the court to depart from its own earlier precedent. For example in the US, the Supreme Court has interpreted the equal protection clause to prohibit a very wide range of classifications based on race, including classifications intended to benefit disadvantaged minority races. Beneficial schemes such as affirmative entry schemes for minority and disadvantaged race applicants to public higher education and for in-demand courses such as medicine and law have been eliminated or greatly restricted in the US through such court decisions (and citizen’s initiatives).16 The US Supreme Court also held that monetary limits on election spending were in breach of the first amendment’s provision that ‘Congress shall make no law … abridging the freedom of speech, or of the press’.17 This opened the door to the unconstrained influence of money in American politics by invalidating legislation passed by Congress to control spending.

12 Canada, Constitution Act 1982, Part 1. 13 Section 15(1): ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ Section 15(2): ‘Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’ 14 Part II: Rights of the Aboriginal Peoples of Canada. 15 See above n 3. 16 Laura McNeal, ‘Schuette v Coalition to Defend Affirmative Action: The majority’s tyranny toward unequal educational opportunity’ (2015) 59 Saint Louis University Law Journal 385, discussing case law up to Fisher v University of Texas 570 US_(2013). The US Supreme Court upheld a limited form of race-based affirmative action in Fisher v University of Texas 579 US_(2016). 17 Citizens United v Federal Election Commission, 558 US 310 (2010).

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On one view, a constitutional bill of rights enables unelected judges to override the elected parliament. It may require them to make decisions about fundamental social values that have far-reaching effects, very different to their traditional function of resolving disputes between two parties. Arguably judges are not better qualified to make such decisions than democratically elected politicians. This is reason to be cautious about the powers bills of rights give to judges, and whether there should be some provision to allow decisions to be overridden. Some flexibility and democratic control over courts applying constitutional rights provisions is desirable. There are various responses to this concern. One is to give explicit guidance or direction to judges about the values involved. The South African Constitution, for example, makes clear that ‘legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken’18 and prohibits unfair discrimination, making the assessment of fairness an essential part of assessing discriminatory measures. The 1982 Canadian Constitution attempted to preserve the ultimate powers of parliament while maintaining protection of rights for unpopular groups through its ‘reasonable limits’ clause (s 1) which has been a model for many subsequent charters:

10 [18]

[19]

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The second response to the danger of overriding democratic control was to adopt a bill of rights in legislative, rather than constitutional, form. As mere legislation it would not permanently limit the powers of parliament, but could impose a barrier to rights infringement that required attention in the democratic process. However, parliament’s ability to override its own legislation makes this avenue a much weaker protection. This is the approach that was adopted in the earlier Canadian Bill of Rights 1960, and New Zealand Bill of Rights Act 1990, and in the ACT and Victoria (see 10.4 below). The UK Human Rights Act 1998 has been a model for later legislative bills of rights. It protects the rights in the European Convention, which is binding on the UK. This distinguishes it from simple legislative bills of rights, because its protection is enforceable through complaints of breaches of human rights to the ECHR. One motivation for adopting the Human Rights Act was to ‘bring home’ to the UK courts decisions on whether its laws adequately met Convention obligations, as several UK laws had previously been held in breach by the ECHR.

[20]

[21]

10.3.3 Constitutional rights protection in Australia Australia has very little constitutional protection for human rights.19 As noted above, there have been several unsuccessful attempts to adopt a bill of rights in Australia.20 Most recently the National Human Rights Consultation recommended adoption of a statutory bill of rights,

[22]

18 Constitution of the Republic of South Africa, 1996, Chapter 2: Bill of Rights, s 9 Equality (2), (3). 19 Australia has some constitutional protection for rights, although its focus is largely on federal and business rights. George Williams and David Hume, Human rights under the Australian Constitution (Oxford University Press, 2nd ed, 2013); Amelia Simpson, ‘The High Court’s conception of Discrimination: Origins, applications and implications’ (2007) 29(2) Sydney Law Review 263. 20 See [6] above.

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but this recommendation was not followed.21 It also recommended that efforts should be made to develop a human rights culture through education, and suggested ways in which human rights could be given more consideration in government administration.22 Australian scepticism about human rights and bills of rights has several strands. One is simply resistance to expanding the legal system to take account of issues previously regarded as outside it. Another is the (disputed) assertion that rights are adequately protected and there is no need for any greater protection. Yet another is the claim that Australia has been quite effective at protecting weaker members of society without the need for a human rights approach, through its collectivist labour law and welfare regimes. Human rights is not the only way to think about the position of vulnerable or disadvantaged people, and has some disadvantages in overlooking material and economic considerations. However, it is the dominant mode, and has international prominence and an institutional structure. While the idea of a national bill of rights has not found traction, the ACT and Victoria have adopted legislative bills of rights, as discussed below at 10.4. In support of a national mechanism, we note that a human rights approach is now pervasive internationally, as discussed in Chapter 2, and provides a language and institutional framework for rights issues that is becoming more important in most other countries. Australia has ratified human rights conventions that oblige it to protect human rights in domestic law and this requires developing domestic understanding of human rights. Human rights education of lawyers, parliamentarians, and judges as well as the general population is a fundamental step towards developing a culture of respect for every individual, but it is more difficult without a bill of rights as a central focus.

10.3.4 Australia’s lack of constitutional protection against discrimination [25]

[26]

At the national level, Australia has no constitutional or other legal barrier to government discriminating against protected groups when it passes legislation, makes regulations or exercises discretions. Hence there is no barrier to discriminatory laws that have been passed on several occasions. Even though s 10 of the Racial Discrimination Act 1975 (Cth) (RDA) purports to limit racially discriminatory legislation, it has not been effective against discriminatory Commonwealth laws, as discussed in Chapter 6 (at [103]). Under the general principles of statutory interpretation, later inconsistent legislation can expressly or impliedly repeal earlier inconsistent legislation, and there is nothing to stop this rule being applied to the RDA.23 The RDA has been overridden by later legislation three times, each in a different way. The Hindmarsh Island Bridge Act 1997 (Bridge Act) authorised construction of a bridge in South Australia and overrode objections that had been brought by Indigenous women under 21 See above n 4. 22 Ibid. 23 The Australian constitutional context does not allow the RDA to have quasi-constitutional status above other ordinary legislation.

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Aboriginal heritage protection laws, also overriding the RDA by necessary implication. A High Court challenge to the Commonwealth’s power to pass the Bridge Act held that it was authorised by the power in s 51(xxvi) of the Constitution to legislate for the ‘the people of any race for whom it is deemed necessary to make special laws’, and that this ‘races’ power was not restricted only to legislation for the benefit of the people of the race, but could potentially extend to laws that disadvantaged them as well.24 The Native Title Act Amendment Act 1998 (NTA Act) extinguished some of the native title rights that the High Court had found to exist in the Wik (pastoral leases) case.25 It limited the RDA’s application by providing that it operated only in relation to ‘the performance of functions and the exercise of powers conferred by or authorised by this Act’.26 This prevented any challenge on the basis that the Act as a whole was inconsistent with and in breach of the RDA. The Northern Territory National Emergency Response Act 2007 (NTNER Act, commonly referred to as the NT Intervention) took another approach, explicitly declaring that the various measures it imposed on Indigenous people in the Northern Territory were special measures for the purposes of the RDA (s 132).27 This made parliament’s intention clear and precluded any court from finding that the measures did not meet the test for a special measure in the RDA and might therefore be discrimination. Unlike the US or Canadian contexts, in these three cases, the Australian laws could not be tested against a binding standard of non-discrimination that would scrutinise the legitimacy of the ends pursued and the proportionality and justification of the means used to achieve them. Complaints against government legislation and actions can and have been taken to UN Committees under the Convention on the Elimination of all forms of Racial Discrimination (CERD) and other human rights conventions, but even if they are successful, the decisions are not binding on the Australian government.28

10 [27]

[28]

10.4 Statutory bills of rights and equality protection The ACT was the first Australian jurisdiction to adopt a statutory bill of rights in the Human Rights Act 2004 (HRA), followed by Victoria’s Charter of Human Rights and Responsibilities Act 2006 (Charter). Both laws protect a range of fundamental rights, with a focus on civil

[29]

24 Kartinyeri v Commonwealth (1998) 195 CLR 337. This extraordinary result meant that the 1967 Constitutional amendment deleting the words ‘other than the aboriginal race in any State’ from s 51(xxvi) to allow the Commonwealth to legislate for the Aboriginal people, which was intended to advance them, could be used to their disadvantage. On the Hindmarsh Island bridge saga, see Margaret Simons, The Meeting of the Waters: The Hindmarsh Island Affair (Hodder Headline 2003). 25 Wik Peoples v Queensland (1996) 187 CLR 1. 26 NT Amendment Act 1998 sch 1 s 3, amending NTA ss7, 7(2). 27 See Chapter 8 at [44]. 28 The UN Committee on the Elimination of Racial Discrimination (which reviews the compliance of states with the Convention on the Elimination of all forms of Racial Discrimination (CERD)) commented in its Concluding Observations on Australia’s periodic report in 2010 on the need for measures to comply with the RDA: CERD/C/AUS/CO/15–17.

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and political rights, and are modelled on the UK Human Rights Act 1998, though details differ. Each Act identifies the protected rights, including equality and non-discrimination rights. Their operation affects each of the three branches of government. We consider below five major aspects of these statutory bills of rights: the rights protected; their effects on the parliament, the judiciary and the executive; and how they are enforced. Although our focus in the following discussion is on the equality and discrimination rights, some issues are discussed in the context of the existing case law, which concerns other areas of human rights. The discussion will focus on the Charter, noting significant differences in the HRA.

10.4.1 The rights protected and their limits [30]

The rights protected are civil and political rights largely based on the International Covenant on Civil and Political Rights (ICCPR).29 Only persons (defined as human beings), and not corporations, have rights (s 6). Among the rights protected by both laws are: • Recognition and equality before the law • Right to life and protection from torture and cruel, inhuman or degrading treatment • Freedom from forced work • Protection of privacy and reputation • Freedom of thought, conscience, religion and belief, and expression • Freedom of movement, peaceful assembly and freedom of association • Protection of families and children • Taking part in public life • Cultural rights / rights of minorities30 • Right to liberty and security of person • Criminal justice rights including: humane treatment when deprived of liberty, protection of children in the criminal process, fair hearing/trial, and criminal process rights • Property rights (Charter s 20) and compensation for wrongful conviction (HRA s 23).

[31]

The right to recognition and equality before the law is the first right listed in both laws (s 8). The Charter provides:

8 Recognition and equality before the law (1) Every person has the right to recognition as a person before the law. (2) Every person has the right to enjoy his or her human rights without discrimination. (3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. (4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination. 29 In 2013 a right to education was adopted in the HRA (s 27A), beginning recognition of economic, social and cultural rights. 30 Charter s 19(2); HRA s 27. The former specifically acknowledges and protects the distinct cultural rights of Aboriginal persons.

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This right is similar to the equality rights in international laws such as the Universal Declaration of Human Rights (UDHR) and the ICCPR (see Chapter 2 at 2.2). Sub-section (1) protects the right to recognition before the law, which is central to the conception of human rights, as it expresses the right and the capacity of each human being to be the holder of rights and obligations under the law. It has often been described as the ‘right to have rights’ and as a direct consequence of the right to respect for human dignity.31 Subsection (2) provides for non-discrimination in enjoyment of rights, similarly to art 2 of the ICCPR. Sub-section (3) contains substantive stand-alone guarantees of equality, including equality before the law, equal protection of the law, and a right to equal and effective protection against discrimination.32 As discussed in Chapter 2, equality before the law is a foundational aspect of the rule of law whereby everyone is equally subject to the law and it applies equally to every person, so that no-one, individual or government, is above the law. The right to equal protection of the law has been interpreted in the US and internationally as referring to the content of law, and requires laws not to be unfairly discriminatory. The right to equal and effective protection against discrimination requires states to provide laws that prohibit discrimination and to ensure effective and accessible methods of enforcing those rights. The term ‘discrimination’ is undefined in the HRA, but in the Charter is defined to mean discrimination within the meaning of s 6 of the Equal Opportunity Act 2010 (Vic) (EOAV), thus tying the scope of s 8 to that of EOAV.33 Finally, sub-s (4), which has no equivalent in the HRA, makes clear that ‘special measures’ to advance equality by assisting a disadvantaged group do not constitute discrimination. This ensures that the Charter refers to a model of substantive equality, in which a beneficial purpose can legitimise use of a classification that would otherwise be regarded as discriminatory. An example of s 8’s operation is Castles v Secretary, Department of Justice.34 A woman who wanted to continue her IVF treatment while in prison was denied a travel permit under the Corrections Act 1986 (Vic) to attend her chosen clinic. She challenged the decision as being in breach of her rights under the Charter, arguing that she had been discriminated against based on her ‘infertility impairment’.35 The Court held that there was no discrimination in terms of the then applicable EOAV 1995, because she was not treated differently from other prisoners on the basis of her infertility.36 However, the Court did not consider indirect discrimination, which is also discrimination under the EOAV, so consideration

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[33]

31 OHCHR, Working Group on Enforced or Involuntary Disappearances, General Comment on the right to recognition as a person before the law in the context of enforced disappearances (2011), in Human Rights Council, Nineteenth session, Report of the Working Group on Enforced or Involuntary Disappearances, 1. 32 The Victorian Supreme Court has recognised that s 8(3) is based directly on art 26 of the ICCPR as a stand-alone and substantive equality right: Kuyken v Chief Commissioner of Police [2015] VSC 204, [34]–[35]. 33 EOAV s 3(1) ‘discrimination’. 34 [2010] VSC 310. 35 Ibid [46]. She also argued unsuccessfully that her Charter privacy rights and human dignity were breached. 36 Ibid [85]–[91]. Infertility was a recognised disability, but there was no explicit obligation to make reasonable adjustments for disability. Ultimately the Court found that the Corrections Act gave Castles a right to health care that the Department should provide to the extent possible [171]–[174].

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should arguably have been given to whether the requirements for travel approvals had an unreasonable impact on people with her attribute. Since 2010, consideration of ‘discrimination’ should include failure to provide adjustments for disability or accommodation for parents and carers (EOAV 2010 s 7(1)). Rights cannot be absolute, because they can conflict with each other and sometimes also with other important interests. The international human rights conventions allow derogation from some rights in specific circumstances, and the HRA and Charter also allow for limitation of rights in certain circumstances. The limitation provisions are based on those in the Canadian Charter quoted above at [19], and provide that the rights protected can be subject only to ‘such reasonable limits’ set by law ‘as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.37 Five factors must be considered in making this assessment: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

[35]

[36]

These factors require an assessment of proportionality in terms of whether the importance of the ends sought and the appropriateness and necessity of the means chosen justify limiting the rights. This provision was held to affect the open-ended statutory discretion to grant a temporary exemption from the EOAV. It was held that an exemption could only be granted where the proposed action was either a special measure to achieve equality (and therefore not in breach of the Charter under s 8(4)), or else met the test for a reasonable limitation under s 7(2).38 This approach was later given statutory form in s 90 of the EOAV 2010, and has encouraged a more rigorous approach to deciding on applications for temporary exemptions. In a case concerning an exemption to allow the exclusion of staff, based on national origin, by companies using American-licensed technology to carry out defence-related work, the tribunal applied these tests to assess the asserted justification and the actual impact of the restriction on the workforce. Applying the reasonable limitation criteria in s 7(2), the tribunal said that two of the claimed justifications, the availability of more jobs, and the commercial interests of the employer, would not have justified the limitation on rights, but when the work’s relationship to national security was added, the exemption was sufficiently supported.39 Such use of the exemption power to permit racial discrimination that is not a special measure must be narrowly confined if the right to non-discrimination is to be adequately protected. 37 Charter s 7(2); HRA s 28. 38 Lifestyle Communities Ltd (No 3) [2009] VCAT 1869. 39 BAE Systems Australia Limited [2012] VCAT 349; Simon Rice, ‘Staring down the ITAR: Reconciling discrimination exemptions and human rights law’ (2011) 10 Canberra Law Review 97; Trish Luker and Margaret Thornton, ‘The new racism in employment discrimination: Tales from the global economy’ (2010) 32 Sydney Law Review 1.

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10.4.2 Parliament – making legislation The HRA and the Charter require special procedures to be followed in making legislation that attempt to make clear the impact of the proposed legislation on rights. When a bill is introduced into parliament, it must be accompanied by a Statement of Compatibility that identifies any potential conflicts with the protected rights and addresses any such conflicts in terms of the reasonable limitations clause.40 A parliamentary scrutiny committee is given the function of reviewing all bills for compliance with the protected rights and producing a report on each bill that identifies any impacts on rights.41 A similar set of provisions at federal level was one of the main outcomes of the National Human Rights Consultation, which recommended human rights education and scrutiny of legislation as steps that could be taken immediately even if a bill of rights was not adopted. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) establishes the process in the Commonwealth parliament, whereby bills must be accompanied by statements of compatibility and reviewed for compatibility by the Parliamentary Joint Committee on Human Rights.42 Statements of compatibility and human rights scrutiny reports may not necessarily change the parliamentary process, where political considerations are most likely to affect the passage of legislation. Nevertheless, these provisions ensure that a human rights assessment is available for any proposed bill, and in practice a considerable literature is being built up and expertise developed in the compliance of legislation with human rights which is available to the press and the community. For example, legislative changes to reduce welfare payments of sole parents received attention based on the human rights compliance reports.43

[37]

[38]

[39]

10.4.3 The courts – interpreting legislation Under these statutory bills the courts are directed to interpret legislation consistently with the included human rights so far as possible. Where it is not possible to do so, they can declare that legislation is inconsistent with the rights protected, but cannot invalidate it and still have to give effect to it. This interpretive obligation comes into effect only after a human right is engaged by the dispute, so the first step is to identify which (if any) human rights are engaged.44 The HRA and Charter both provide that ‘[s]o far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.45 The interpretive direction is potentially very powerful. It applies to all

[40]

[41]

40 Charter s 28; but non-compliance does not affect the validity of the parliamentary process (s 29). 41 Charter s 30. A bill can contain an express override of the Charter (s 31), although this has not been used. 42 Tom Campbella and Stephen Morris, ‘Human rights for democracies: A provisional assessment of the Australian Human Rights (Parliamentary Scrutiny) Act 2011’ (2015) 34 University of Queensland Law Journal 7. 43 See Beth Goldblatt, ‘Testing women’s right to social security in Australia: A poor score’ in Beth Goldblatt and Lucie Lamarche (eds), Women’s Rights to Social Security and Social Protection (Hart Publishing 2014, 263, 273–8). 44 Castles v Secretary Dept of Justice [2010] VSC 310 [45]. 45 Charter s 32; HRA s 31.

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[42]

[43]

[44]

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legislation and to everyone who relies on or applies legislation, such as government officials, the Victorian Civil and Administrative Tribunal (VCAT), and the Ombudsman, not only courts. It requires all state laws to be construed in light of the protected human rights. It fills a gap left by the failure of the common law presumptions of interpretation to protected equality and non-discrimination rights. In undertaking such interpretation, both laws authorise the consideration of ‘international law, and the judgments of foreign and international courts and tribunals’ relevant to a human right. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and ACT Human Rights Commissioner have power to intervene in any matter concerning the application or the interpretation of a statutory provision in accordance with the Charter or HRA. The Charter provides that the consistency of a law with protected rights can be tested by referring the issue to the Supreme Court (s 33). The Attorney-General and the VEOHRC must be notified of the proceedings and given a reasonable opportunity to intervene or make submissions. If the Court decides that a law cannot be interpreted consistently with the Charter, it can make a declaration to that effect (s 36). If a declaration is made, the AttorneyGeneral must give notice of it to the responsible minister, who must prepare a response for tabling in parliament within six months (s 37). However, a finding that an Act or subordinate legislation is inconsistent with a human right does not affect its validity, and any judicial interpretation could be overridden by later legislation. This is where the statutory bill of rights is weaker than a constitutional model. The first declaration of inconsistency made by the Victorian Supreme Court was successfully challenged in the High Court in Momcilovic v The Queen, a case concerning the presumption of innocence.46 The case involved a conviction for drug possession under a legislative provision that required the person on whose premises drugs were found to prove that the drugs were not in their possession. The Victorian Court of Appeal held that the provision breached the Charter’s protection for the presumption of innocence in criminal proceedings (s 25(1)), and that it could not be interpreted consistently with the human rights in the Charter, and accordingly made a declaration of inconsistent interpretation.47 The Court nevertheless had to give effect to the law, and upheld the conviction based on the established interpretation. On appeal, the High Court set the declaration aside and instead decided the case on a non-Charter basis. It held that the legislation had been misconstrued, and the reverse onus applied only to offences of mere possession, not the charge of possession for the purposes of trafficking involved in the case. As a result, the jury at trial had been misdirected and the conviction was set aside. The High Court commented in Momcilovic on the interpretive obligation in s 32, even though the comments were obiter and there was no majority view. The view of French CJ has been adopted subsequently by the Victorian Court of Appeal in cases involving s 32.48 Essentially, s 32 does not create a new paradigm of interpretation that allows the court to depart from the usual approach to statutory interpretation. The court is still required to

46 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1. The Court upheld the constitutional validity of s 32. 47 R v Momcilovic [2010] VSCA 50. 48 E.g. Kuyken v Lay [2015] VSC 204, [77]–[78] citing DPP v Kaba [2014] VSC 52.

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identify the purpose of the provision in accordance with the ordinary principles of statutory interpretation, but the rights in the Charter expand the field of the common law presumptions that are applied to interpretation through the principle of legality (see [9] above). In this way the Charter interpretive rule applies similarly to the principles of statutory interpretation in the Acts Interpretation Act 1901 (Cth) s 15AA – the words of the provision have to be given effect, and where there is a choice of meanings to guide the court, it is required to choose the meaning that best accords with human rights. This is a rather muted impact for a bill of rights, but as noted above, it does introduce a non-discrimination obligation to interpretation that was not present in the common law principle of legality. Where Charter issues are raised, courts have sometimes been able to decide issues on the basis of statutory interpretation principles rather than Charter rights, as they did in Momcilovic and Castles (at [33] above).

10

[45]

10.4.4 The Executive – obligations on public authorities One of the most important effects of the HRA and the Charter is that they require the executive branch of government, namely all government agencies and public authorities, to observe the protected human rights. It is unlawful for a public authority to act in a way that is incompatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision, unless the authority could not reasonably act differently or make a different decision under another state/territory or Commonwealth law.49 An act of a public authority in breach of human rights will be unlawful, and can be set aside. The effect of this provision is to convert a non-legal argument about respect for basic rights by public administrators into a legal argument that disregard for rights is unlawful. For example, a review of conditions in the Quamby Youth Detention Centre in Canberra by the Human Rights Commissioner in 200550 identified a range of problems with conditions for children and youth in the Centre. Because of the HRA, they were not merely concerns, but were unlawful practices where they breached the human rights in the Act, which opens the possibility of court enforcement of the rights. The definition of ‘public authority’ is extensive in both Acts, and includes the police, local councils, Ministers of the state, parliamentary committees, public officials, any entity created by statute that has public functions, or an entity that exercises functions of a public nature on behalf of the state or a public authority, but excludes parliament and courts and tribunals except when they are acting in an administrative capacity.51 Factors to be considered in determining whether a function is of a public nature include: that it is conferred by statute, is generally connected to or identified with the functions of government, that it is of a regulatory nature, is publicly funded, or that an entity is wholly owned by the state.52 There is no need for a contractual or agency relationship with the state for these tests to be satisfied.53

[46]

[47]

[48]

49 Charter s 38; HRA s 40B. 50 ACT Human Rights and Discrimination Commissioner, Human Rights Audit of Quamby Youth Detention Centre (June 2005). 51 Charter s 4(1); HRA s 40. 52 Charter s 4(2); HRA s 40A. 53 Charter s 4(4).

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VCAT held itself to be a public authority when exercising its powers under the EOAV to grant a temporary exemption.54 Because an exemption application is not a dispute between two parties, but an unopposed application by one party, it does not determine a question of law and VCAT is not acting judicially, in deciding it. Hence VCAT is acting administratively and is subject to the public authority requirements when deciding exemption applications, and must act in compliance with the Charter. A temporary exemption can only be granted where it amounts to a special measure to advance a disadvantaged group within s 8(4) of the Charter, or it meets the reasonable limitations test in s 7(2). In Lifestyle Communities, VCAT rejected an application to limit ownership of a residential development to persons aged 55 or over because neither alternative was established.55 One very significant effect of the public authority provisions is to require the training of public officials on human rights and how to ensure compliance with the HRA and the Charter. This requires a process of developing awareness and responsibility within the public sector for ensuring that public administration respects and protects the rights of the individuals with whom it deals and whose lives, in some cases, it can impact enormously. The need to ensure the validity of public authority actions is a powerful force for ensuring human rights training.

10.4.5 Bringing an action to protect Charter rights [51]

[52]

[53]

[54]

The existence of the HRA and the Charter opened the possibility of legal enforcement for breaches of human rights. In 2008, s 40C was inserted into the HRA, which provides that legal proceedings can be brought for a breach of the public authority provisions. The Victorian Charter is more reluctant to facilitate litigation, as discussed below. Case law relating to the equality right is accumulating slowly,56 in part because the existence of these laws seems to encourage courts to find that rights issues can be satisfactorily resolved through normal processes of legal or statutory interpretation without needing to rely on the Charter at all. Like any area of law, the rights conferred by the Charter have both a symbolic and a practical effect. The practical effect depends on how easy it is for people to enforce their rights. As we saw in Chapter 7, this often depends on the avenues that are available in which to enforce the law, and the costs and risks involved in bringing the claims. Section 40C of the HRA allows for an action to enforce the law against a public authority to be brought in the ACT Supreme Court. The Charter is more restrictive in how it can be enforced because parliament was very concerned not to open the floodgates to Charter litigation. It does not provide a stand-alone remedy for breach of rights, but allows a Charter claim to be brought only if it is added to another existing claim (s 39). No damages are available for a breach.57 For Charter claims presumably the underlying claim must be plausible, but it need not be one that is certain to succeed, so the Charter claim can be upheld even where the underlying

54 55 56 57

Lifestyle Communities (No 3) [2009] VCAT 1869 (exemption application) (Bell J). See also [35] above. Ibid. See Judicial College of Victoria, Victorian Human Rights: Charter Case Collection (September 2015). Charter s 39(3); HRA s 40C(4).

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claim fails. The underlying claim could be an action in tort or contract against a public authority, but the most common claim in relation to a public authority is likely to be an action for judicial review of administrative action, based on an argument that the authority did not have authority to act as it did or exercised its power contrary to the law.58 Judicial review actions have to be brought in the Supreme Court, so this is an expensive and difficult undertaking. Charter claims can sometimes be brought in VCAT, but only in certain cases. A public housing tenant could not raise a Charter argument in response to an eviction application under the Residential Tenancies Act, because that would be contrary to Parliament’s clear intention that challenges to the legality of administrative action should be heard in the Supreme Court.59 The Court acknowledged that many public housing tenants might want to raise Charter arguments in response to eviction, but concluded that the Charter did not intend such matters to be raised in VCAT as a collateral matter, that is, as a defence to an administrative action.60 It appears that Charter arguments could only be raised in VCAT directly as the subject matter of the proceedings by an applicant, or in the Supreme Court.61 On this basis, a discrimination claim under the EOAV against a public authority directly raises a Charter right, and thus Charter arguments can be made in VCAT to support a discrimination claim. For example in Slattery v Manningham City Council,62 an argument that a council discriminated on the basis of disability in excluding a resident from its premises was successful, as were claims that several rights under the Charter had also been breached, namely the right to equality (s 8), freedom of expression (s 15) and the right to participate in public affairs (s 18). This decision acknowledges that discrimination is a breach of universal human rights. Where an eviction is challenged as discriminatory, Charter claims can be raised in the VCAT proceedings.63 The Charter gives the VEOHRC a function of regularly reviewing the operation of the Charter (s 41), and a review of the Charter’s operation after eight years was conducted during 2015.64 Among its recommendations were clarifying which entities are and are not public authorities, and adopting a provision similar to s 40C of the HRA to allow a Supreme Court action to be brought solely for a breach of the Charter, as well as allowing an action for breach of Charter rights to be brought in VCAT in the same way that discrimination claims can be brought, and with similar remedies available (other than damages). Amendments were recommended to s 32, the interpretive obligation, in an attempt to clarify the High Court’s approach, and it was recommended that ‘discrimination’ be redefined as ‘direct and indirect discrimination’ on the basis of a protected attribute within the EOAV. Arguably this is its current meaning, but it would be useful to clarify that it includes not only indirect

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58 Janina Boughey, ‘The use of administrative law to enforce human rights’ (2009) 17 Australian Journal of Administrative Law 25. 59 Director of Housing v Sudi [2011] VSCA 266. 60 Ibid [259]–[264] (Weinberg J). 61 Ibid. In Burgess v Director of Housing [2014] VSC 648, Charter rights applied in a judicial review challenge to eviction. 62 [2013] VCAT 1869. 63 Goode v Common Equity Housing [2014] VSC 585. 64 Michael Brett Young, From commitment to culture: The 2015 Review of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Victoria, 2015).

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discrimination but failure to provide reasonable adjustments or accommodation within the EOAV (s 7(1)(b)).

10.4.6 The limits of statutory protection of human rights [58]

[59]

Statutory human rights protections are a very important step towards developing a culture of human rights for public bodies. They require the education of public employees and organisations about human rights and how they affect their work, and consequently the education of lawyers and judges about human rights generally. However, they do not involve the final step that a constitutional protection would provide, of limiting government’s power to pass laws contrary to human rights or invalidating legislation that is held to be in breach of rights, as the interpretive obligation has limited effect. They are incomplete protection against governments that are determined to infringe human rights of some or all of the people in their jurisdiction. For this reason, the possibility of constitutional protection remains important. The current debate over constitutional protection against racial discrimination is very important in the development of adequate protection against discrimination in Australia.65 Removing the racially discriminatory provisions from the Constitution (s 25 and the capacity to use s 51(xxvi) to disadvantage), and adopting a prohibition on discriminatory laws would take Australia to a position closer to other modern democracies.

10.5 Positive duties [60]

[61]

It has been convincingly argued that discrimination and other breaches of human rights should be addressed proactively if the transformative goals of Fredman’s multidimensional substantive equality are to be met.66 Rather than simply setting aside particular breaches of rights or incidents of discrimination within a system that continues to generate them, it would be more effective to prevent discrimination from occurring in the first place by changing the system and its practices. This requires positive action to be taken by people and organisations that are in a position to change the way things are done. In this way, positive duties are seen as a more effective response to discrimination. Positive duties differ from special measures in that special measures and affirmative action schemes are generally voluntary, merely permitting positive action. By contrast, positive duties require action to be taken to eliminate risks of discrimination and to move towards equality in substance. Positive duties are forward-looking, systemic, and seek to impel social transformation toward a system that prevents discrimination occurring and promotes substantive equality, in contrast with the backward looking, individualised nature of anti-discrimination law enforcement. Positive duties focus on capacity to bring about change, rather than on fault.67 Inequality is more fully addressed by imposing a duty on

65 See Chapter 2 at [27]. 66 Sandra Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford University Press 2008). 67 Sandra Fredman, ‘Equality as Proactive Duty’ (2012) 60 American Journal of Comparative Law 265.

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individuals and organisations that have power to reduce the possibility of discrimination occurring. Positive duties can take a range of forms, which differ in terms of the duty imposed, on whom it is imposed, how compliance is monitored, and how the duty is enforced, if at all. The obligations imposed can be procedural or substantive. An example of a substantive duty is the first statutory equality duty, adopted in Northern Ireland in 1989, requiring employers to take steps to ensure fair representation in their workforces of Protestant and Catholic employees.68 Specific duties are imposed on employers to monitor their workforces and take affirmative action measures to ensure fair participation, and compliance is monitored and enforced by the Equality Commission for Northern Ireland.69 Although Australia had earlier duties in the Affirmative Action (Equal Opportunity for Women) Act 1986 (Cth) and its successors (see Chapter 8), they imposed only procedural duties to adopt programs and contained no serious enforcement provisions. The Workplace Gender Equality Act 2012 (Cth) (WGE Act) is more specific in its obligations, requiring large private sector employers to report data on gender equality indicators to the Workplace Gender Equality Agency, but enforcement remains limited to the minor sanction of being publicly named for non-compliance. A general equality duty was adopted in the Northern Ireland Act 1998 (UK) s 75 on public authorities to promote equality of opportunity between people on a wide range of attributes including race, sex, disability, religion, and political opinion. Similar public sector duties were adopted in the UK on the grounds of race (2001), disability (2005), and sex (2006), and then replaced by a general public sector equality duty adopted in the Equality Act 2010 (UK) s 149(1):

10 [62]

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A public authority must, in the exercise of its functions, have due regard to the need to– (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it. This duty is largely procedural. Compliance can be enforced through judicial review where an authority has failed to comply,70 but it does not require any specific actions to be taken other than giving ‘due regard’. A different type of duty was adopted in the EOAV. Section 15(2) provides that a ‘person [who has a duty to not engage in discrimination, harassment or victimisation under the Act] must take reasonable and proportionate measures to eliminate that discrimination, sexual harassment or victimisation as far as possible’. Non-compliance can be a basis for an

[64]

[65]

68 Fair Employment (Northern Ireland) Act 1989; Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011) 301. 69 Equality Commission for NI, Guidance for Employers . 70 Aileen McColgan, ‘Litigating the Public Sector Equality Duty: The Story So Far’ (2015) 35 Oxford Journal of Legal Studies, 453.

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investigation by the VEOHRC under Part 9 of the Act, but no direct legal action is available to enforce this duty. Instead, compliance could be relevant to liability in a case claiming discrimination, harassment or victimisation. The duty stands as a legislative direction that duty bearers are expected to take action to avoid discrimination occurring. It has valuable educative and normative force, but its legal effect is not clear. Finally, changes are slowly filtering through Australian anti-discrimination laws that impose requirements to make reasonable adjustments or defences to vicarious liability. These include duties to provide reasonable adjustments for people with a disability or for parents and carers at work, either expressly as a stand-alone type of discrimination, as in the EOAV (see 5.3), or in less clearly positive forms. The duty to make adjustments has been added explicitly to the definitions of direct and indirect discrimination in the DDA, and in the EOAV as an element of the ‘reasonableness’ assessment in indirect discrimination in the Victorian Act (s 9(3)(e)). Obligations to take action are created implicitly by the vicarious liability provisions under which a duty holder can avoid liability for a breach of the law by an employee or agent where they show that they have taken ‘all reasonable steps’, such as workforce policy and training, to avoid a breach occurring. Many of these ‘reasonableness’ requirements are imposed only negatively, by holding the organisation liable if they are not met. As the High Court held in Purvis v NSW,71 this will not necessarily impose a positive duty to act. The positive formulations, such as explicit requirements to provide reasonable adjustments or accommodation, provide much clearer guidance to duty holders about what they are required to do. Fredman has argued that positive duties should be the future of equality law because of their potential for transforming systems to prevent discrimination arising.72 Designed to address systemic problems that are not easily reached by a prohibition on discrimination, they do not depend on individuals identifying a breach of the law and having the resources to follow through what can be a lengthy enforcement process. However, enforcement and compliance can be a challenge. Unless duties are specific in what is required, monitoring could be laborious and bureaucratic, while compliance action might not bring about the necessary change. For example, the Workplace Gender Equality Agency’s evaluation and use of information (submitted by employers to establish benchmarks for industries and advise employers about where they stand compared to their industry) is a specific and potentially effective way of proceeding. It follows more closely the Northern Ireland employment equity approach rather than the more general and open-textured UK public sector equality duty.

10.6 Procurement – the executive power [68]

A further tool available to government is the use of its power to enter contracts to further the goal of human rights protection by choosing to contract with organisations and individuals that are compliant with their obligations to respect rights. Because this involves the

71 (2003) 217 CLR 92. 72 Fredman, above n 66; Fredman, above n 67.

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use of the government’s executive power to enter contracts, a policy can be adopted at any time without the need for legislative authorisation, provided that the scheme does not itself breach anti-discrimination laws, and is regarded as a special measure. Procurement policies rely on the power of the state, and are considered soft regulation because they use the power to spend money as an incentive, rather than coercive legislative power. As government is a large spender in the economy through buying goods and services, this is potentially a powerful avenue to encourage compliance with human rights or other norms.73 This approach has been used extensively in many countries to pursue social justice and equality goals and ensure fair access to the benefits of government contracts and employment by contractors undertaking government-funded work.74 It operates by providing the carrot of government contracts to participating businesses, but to be effective requires monitoring and enforcement where regulated contractors fail to comply. This mechanism has been used systematically in the USA to pursue the goals of nondiscrimination and positive action. Under Executive Order 11246, federal contractors and federally-assisted construction contractors and subcontractors who do over US$10,000 in government business in a year are prohibited from discriminating in employment decisions on the basis of race, colour, religion, sex, sexual orientation, gender identity or national origin.75 Contractors are also required to take affirmative action and are prohibited from taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or the pay of their co-workers in certain circumstances, which are fundamental aspects of pay transparency to ensure that pay discrimination is not occurring. Similar requirements are also imposed for people with a disability and Vietnam-era veterans.76 All these programs are monitored and enforced by the Federal Office of Contract Compliance in the Department of Labor. In addition, a certain proportion of contracts is reserved for small business, or businesses owned by women, disabled veterans, or disadvantaged people. This systematic and thorough use of the executive power to allocate government resources has no match in Australia. Limited use of government’s purchasing power has been made in some areas, but there is no coordinated oversight of these policies, and little reported information on them. As noted in Chapter 8, a policy was adopted that failure to comply with the Equal Opportunity for Women in the Workplace Act 1998 (Cth) would lead to inability to tender for government grants or contracts, but it is not clear whether this was ever enforced. The current version, the WGE Act, provides that non-compliant employers may not be eligible to tender for contracts under the Commonwealth and some state procurement frameworks, and may not be eligible for some Commonwealth grants or other financial assistance (s 18), but contains no substantive provisions to give this force.

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73 See Christopher McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford University Press, 2007). 74 Ibid. 75 US Department of Labor, Office of Federal Contract Compliance Programs (OFCCP), at . 76 Section 503 of the Rehabilitation Act of 1973, as amended; Vietnam Era Veterans’ Readjustment Assistance Act of 1974.

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The Department of Finance sets out procurement policies that are to be applied in Commonwealth procurement, and includes a WGE Act procurement policy77 and a recently developed procurement policy for Indigenous businesses. The latter is an executive government policy which does not require legislation, and is similar in approach to US Executive Order 11246. Its purpose is ‘to stimulate Indigenous entrepreneurship and business development, to provide Indigenous Australians with more opportunities to participate in the economy’,78 and to increase the number of Indigenous-owned businesses doing business with the Commonwealth. The policy includes targets for purchasing from Indigenous enterprises, a mandatory set-aside to direct some Commonwealth contracts to Indigenous enterprises, and minimum Indigenous participation requirements for certain Commonwealth contracts. At this stage there is no reporting of the program’s operation or effectiveness. Finally, voluntary or informal policies can be adopted in the public and private sectors to provide equal opportunity. For example, Equal Opportunity Briefing Policies to ensure that women barristers get a fair share of advocacy work paid for with public funds have existed since at least 2004, and a national model policy was produced in 2009.79 The latter is used by some private firms as well to allocate work.80

10.7 Conclusion [74]

In this chapter, we have examined the range of ways that governments can broaden protection for equality and against discrimination beyond the prohibition of discrimination in anti-discrimination law. The methods we have examined are largely those that are already in operation in most comparable countries currently. In the next chapter, we move on to consider what other types of actions could be adopted to promote equality.

77 Australian Government Department of Finance, ‘Procurement Connected Policies’ and see specifically: Australian Government Department of Social Services, ‘Workplace Gender Equality Procurement Principles and User Guide’ . See also John Howe and Ingrid Landau, Light touch labour regulation by state governments in Australia: An assessment (Centre for Employment and Labour Relations Law, Working Paper No 40, 2006). 78 Commonwealth, Indigenous Procurement Policy (2015) 6. 79 Commonwealth of Australia, Legal Services Directions, Appendix E; Australian Bar Association, Equitable Briefing Policies, http://www.austbar.asn.au/strategic-objectives/policy-perspective/diversity-andinclusion; the Law Council of Australia developed a model policy in 2009 and updated it and included targets in its National Model Gender Equitable Briefing Policy (2016). 80 Australian Bar Association n 79 above.

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11.1 Introduction [1]

[2]

[3]

Despite widespread acknowledgement that discrimination is morally unacceptable and decades of anti-discrimination laws, discrimination is still prevalent. Our laws have operated to raise awareness of the harms of discrimination and to garner significant support for the principle of non-discrimination, but they have primarily only addressed formal barriers to equality. This chapter considers the need to improve the effectiveness of law in promoting substantive equality, and its capacity to bring about change to persistent practices and structures that produce discrimination. First we step back from existing laws and briefly consider theories of how law can influence change, and limits of law in addressing complex social problems like inequality (in 11.2). We then proffer some suggestions for alternative directions our laws might take to be more effective at providing redress for victims, promoting normative change and preventing discrimination (in 11.3). In thinking about what role law can play it is important to articulate the goal. Equality itself is sometimes conceived of as an end or a goal. In reality, while it is a goal, absolute equality can never really be achieved; as one manifestation of inequality is addressed, new forms often emerge. This is particularly clear when multiple diverse and intersecting attributes are considered, not merely a single attribute. The better goal of equality laws might thus be one of promoting a deep understanding and commitment to substantive equality – in Fredman’s four dimensions1 – as well as sophisticated and robust mechanisms for identifying and responding to inequality as it emerges from time to time and redressing inequality. This framing of the goal acknowledges the dynamic nature of interactions and inequality in society over time and the many and varied ways in which inequality manifests which militates against a single, prescriptive rule as a solution. Central to a mechanism being sophisticated and robust is the inclusion of voice or participation of marginalised people in both identifying problems of inequality and developing solutions.2 Like the rule of law, a rule of equality is really more than a rule; it requires a cultural commitment to the goal, a set of institutions and procedures to embody and maintain it as times change, and a vigilance of all in monitoring and sustaining it. As noted throughout the book, many of the weaknesses of the current anti-discrimination laws are the result of, or exacerbated by, the individual rights approach of the law and its reliance solely on individual claims for enforcement. There are many ways in which enforcement could be improved, and in this chapter we set out various proposals and revisit some that have already been raised throughout the book. We argue, however, that to bring about substantive equality, this individual claims-based system needs to be supplemented with measures that recognise and address the systemic nature and public cost of discrimination. Such initiatives include expanding public agency powers to promote greater compliance and social change. Some proposals have been examined in earlier chapters and will only be touched upon here. These include the use of charters or bills of rights, public sector equality duties, and procurement powers (all considered in Chapter 10). 1 Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011). The four dimensions are redistribution, recognition, transformation and participation, as discussed in Chapter 1. 2 Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Cornell University Press, 1990); Susan Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101 Columbia Law Review 458.

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11.2 What role can and should law play in promoting equality? Accepting substantive equality as a public policy goal, we need to consider what role law can play in fostering achievement of that goal. Law does have strong normative force, but does not operate without enforcement; those bound by the law need to be able to understand it and comply with it. One fundamental consideration in designing laws (or evaluating established laws) is to ask whether they acknowledge and respond to the actual range of reasons why the problem arose in the first place and persists. So, for example, for law to address the full range of discrimination, in its myriad manifestations, the law needs to recognise and respond to the many reasons discrimination occurs. More specifically, in order to change behaviours and the underlying values that drive these, regulation needs to be tailored to prompt commitment to the regulatory goal and also, importantly, needs to enable compliance.3 Regulated actors, such as government agencies and corporations that employ people, provide goods and services or perform statutory functions, are driven by different motivations and constraints that need to be acknowledged in regulatory design. The individuals within those organisations also have their own personal motivations, values and capacities. One way to conceptualise this regulatory challenge at a general level is with two axes (see Figure 11.1).4

[4]

Figure 11.1 Commitment and capacity of duty bearers

A

Leaders

Commitment

Laggards

B

Capacity

3 Christine Parker, The Open Corporation: Effective Self-Regulation and Democracy (Cambridge University Press, 2002). 4 Belinda Smith, ‘How might information bolster anti-discrimination laws to promote more family-friendly workplaces? ’ (2014) 56(4) Journal of Industrial Relations 547, 554.

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One axis represents commitment to the principle of non-discrimination and, more importantly, an acceptance that the individual or organisation has some responsibility for enabling or ensuring non-discrimination. In respect of this axis the role of law is to win hearts and minds, to push or prompt regulated actors – both individual and institutional duty bearers – to accept this responsibility and then move forward along the axis to strengthen or deepen this commitment. The other axis, one that is often under-explored by lawyers, is the capacity continuum that recognises the importance of ensuring the duty bearers have the capacity (knowledge, skills and other resources) to achieve the goal, in this case nondiscrimination. In respect of capacity, for a regulatory framework to be effective it would need to ensure employers and other regulated actors: (a) understand what the law requires of them; (b) can identify contraventions as they arise in their own activities; and (c) are able to design alternative, non-discriminatory language, policies, criteria and practices.5 In mapping all regulated actors across these axes, the laggards are those that lack both commitment and capacity in respect of the goal, while ‘best practice’ leaders are those that have a deep commitment to the goals of non-discrimination and the processes and resources to prevent discrimination or address it as it arises. These axes can be helpful in analysing both existing regulation and the merits of new initiatives. So, for example, we can identify and analyse particular weaknesses of Australian anti-discrimination laws. Throughout the book we have highlighted how these laws are complex, often unclear, and inconsistent across and even within jurisdictions. This means that even for an organisation that has a deep commitment to non-discrimination, there might be low capacity (represented by Actor B in Figure 11.1). This actor needs assistance in knowing what is wrong, or how to do the right thing. Alternatively, Actor A reflects the converse, an organisation or individual who has capacity, but is not committed to the goal. This actor needs incentives or threats to persuade or prompt it to utilise its capacity to comply. Compliance with the law might be very challenging – understanding what the law requires is a first step or prerequisite for then identifying possible breaches and designing alternative practices, but it is difficult to be sure what the legal obligations are. One reason for the lack of clarity about legal obligations is that the regulatory framework of anti-discrimination law does not have a good elaborative mechanism. The statutory language is not very accessible or clear and there is no good mechanism for resolving its meaning, leaving regulated actors, such as employers, uncertain about what the law requires of them. Under the common law, the courts play two roles: resolving disputes between parties and providing guidance through precedents on what the law means. By establishing compulsory, confidential conciliation as the primary means of dispute resolution under antidiscrimination laws, few cases go to court and this means that the courts barely play their usual common law role of publicly interpreting and developing the law incrementally. Conciliation may resolve individual disputes successfully,6 effectively replacing the courts in this sense. There is, however, no alternative regulatory mechanism to perform the other role of the courts of elucidating and elaborating statutory language through judgments that illustrate how the law does or does not apply. 5 Ibid. 6 See discussion of the merits and weaknesses of conciliation in Chapter 7.

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If the courts are not testing and clarifying the legal obligations, one alternative is that executive agencies could be provided with such a role. While the anti-discrimination agencies, such as the Australian Human Rights Commission (AHRC), do have powers to provide public education about the anti-discrimination laws they administer, any guidelines or educational materials they develop have no legal force. In this sense, the agency materials represent mere commentary: they reflect an informed interpretation of how the law could and possibly should be interpreted, but unlike statutory instruments, such as codes of practice under the s 14 of the UK Equality Act 2006, the AHRC publications are merely persuasive, not binding on parties (or courts). Another regulatory option is to empower the agency to certify as compliant industry codes of practice or individual employer policies and practices, but this is not possible under Australian anti-discrimination law. This means we have rules that say ‘don’t discriminate’ and ‘don’t harass’ but deficient mechanisms for ensuring that duty bearers understand what these obligations mean in practice. Litigating all the way through to a court judgment to determine compliance is a clunky regulatory mechanism for rule clarification. While it might be difficult for an organisation to develop non-discriminatory practices, in order to promote such change the law must, at a minimum, ensure actors are readily able to identify obligations and are able to determine compliance with some certainty. The axes of commitment and compliance can help us to understand where actors sit and to identify possible barriers to compliance, but we also need to understand how to move organisations to a higher level of commitment and capacity, and how to ensure any action is real and sustainable and not merely a box-checking appearance of compliance. Regulatory theory provides some guidance. A growing body of regulatory scholarship has emerged out of concerns about regulatory failures and innovation in regulatory design to address these failures.7 One key development in regulatory design is the acknowledgment that the regulated actors are often themselves organisations that have developed internal policies, procedures, practices and cultures. Organisations thus can play a significant role in regulation or governance not only as regulated actors or duty bearers, but also as regulators themselves of their internal operations. A simple prohibition that might be enacted in legislation imposing a duty on an employer to provide a safe workplace, for instance, needs then to be translated by the employer into policies and practices within the workplace, moderating or challenging existing practices. Regulatory innovation has built on this understanding to conceptualise the state as a ‘metaregulator’ in a multilevel governance system, devising new tools that can prompt, facilitate and institutionalise internal compliance systems to achieve public policy goals such as work health and safety, or non-discrimination.8 In this picture, the state might set the general goals

11 [8]

[9]

[10]

7 Christopher Arup et al (eds), Labour Law and Labour Market Regulation (Federation Press, 2006); Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (Oxford SocioLegal Studies, Oxford University Press, 1992); John Braithwaite, ‘The essence of responsive regulation’ (2011) 44 University of British Columbia Law Review 475–520; Orly Lobel, ‘The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought’ (2004) 89 Minnesota Law Review 342; Parker, above n 3; Sturm, above n 2. 8 Parker, above n 3; Belinda Smith, ‘A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth): Can it Effect Equality or Only Redress Harm?’ in Christopher Arup et al (eds), Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press, 2006).

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and play some role in facilitating and enforcing their achievement, but would also promote and rely upon the regulated actors to self-identify problems and develop solutions in conjunction with stakeholders, who might be employees, students, clients, patients or even owners or investors in a business. One particularly helpful theory for understanding how this works, and for designing regulation, is that of reflexive regulation, which is underpinned by Teubner’s ideas about the interaction of social systems.9 Teubner theorises that our society is constituted by interacting social subsystems that have their own norms and internal logic; to achieve change within a subsystem, an external stimulus needs to be applied in a way that harnesses the motivations and internal energy of actors in that system. If law merely imposes pre-developed external solutions, he argues, it will not be effective because it will face resistance and achieve little more than the appearance of compliance.10 For law to be effective at change, it needs to prompt internal problem identification and problem solving from actors who are in the best position to bring about change, and this is akin to the notion of meta-regulation. The regulation is reflexive in the sense that it prompts regulated actors to identify problems specific to their organisations and develop local solutions (or norm elaborations). Applying this to the problem of discrimination, regulated actors such as employers need to be prompted to identify how discrimination manifests within their workplace and develop local policies and practices to address that discrimination. Externally imposed solutions, such as a quota requirement, without more might fail to identify or address systemic barriers to equality within a particular organisation and thus change little. As both Fredman11 and Minow12 have articulated, one dimension of substantive inequality is the lack of voice or participation of disadvantaged groups. The perspective of target groups should not be ignored or assumed, in either identifying the nature and extent of the problem or in developing solutions. Reflexive regulation might prompt organisations to address inequality, but to achieve more than merely an appearance of equality, the voices of those who have been traditionally marginalised need to be heard and initiatives need to be monitored and assessed against the status quo by the targeted disadvantaged groups, not merely by traditional power holders. Finally, consideration of anti-discrimination law’s effectiveness cannot overlook structural problems that affect the types of laws that are passed as well as law enforcement through courts. Legislation is not only the product of the democratically elected parliament, but also tends to reflect the views of those with power in society. Legislation is generally unlikely to mount a serious challenge to that power. Similarly, courts are staffed by judges overwhelmingly drawn from relatively privileged ranks of society, and the fundamental dynamic of the common law is preservation of the status quo. Even where laws might aim to bring about substantial social change (such as anti-discrimination laws) by protecting the rights of people

9 Gunther Teubner, ‘After Privatization: The many autonomies of private law’ (1998) 51 Current Law Problems 393; Sandra Fredman, ‘Equality as Proactive Duty’ (2012) 60 American Journal of Comparative Law 265. 10 Fredman, above n 9, 272. 11 Fredman, above n 1; Fredman, above n 9. 12 Minow, above n 2.

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whom the common law has not protected, judicial method tends to be resistant, leading to narrow interpretations to reduce the threat to current arrangements. Thornton has argued that it cannot be expected that laws in a neo-liberal society will bring about serious change in social relations.13 For these reasons, law reformers must be aware of the range of resistance to legal change, both deliberate and unconscious, built into the legal system. It is rare for legislation to fundamentally challenge existing power structures and practices. This also applies to litigation, where Galanter many years ago explained why the ‘haves come out ahead’: they are well resourced and more likely to be repeat players, with the ability to settle unfavourable cases to avoid precedents, and as a result legal rules tend to favour their interests.14 Litigants challenging established powers tend to be ‘one-shotters’ with limited resources, with much less capacity to pursue legal change. The history of the attempts to enforce change in the USA, after segregated schooling was declared inherently unequal in Brown v Board of Education,15 illustrates this problem well. Despite orders by the Supreme Court to de-segregate the school systems, which involved orders for bussing students to schools that were not their closest schools in order to ensure integration, there was mass resistance to the orders at the state and school district levels that frustrated the attempt to bring about such change.16 Drawing on these insights about law’s role in promoting substantive equality, we set out below some possible alternative directions. In doing this we draw on the history of reviews of Australian anti-discrimination laws, which has been uneven. A review of the Racial Discrimination Act 1975 (RDA) was begun by the Human Rights and Equal Opportunity Commission (HREOC) in 1995, but was never completed.17 The Sex Discrimination Act 1984 (Cth) (SDA) was reviewed in 1992 and 2008 by parliamentary committees, and was also considered by the Australian Law Reform Commission in 1995.18 The Disability Discrimination Act 1992 (DDA) was reviewed by the Productivity Commission in 2004.19 The 2011–2013 federal ‘consolidation’ process was conducted internally by the government, jointly by the Attorney-General’s Department and the Department of Finance and Deregulation (discussed below at [17]–[18]). At state and territory level, the record of legislative review is patchier. Some reviews have been conducted by parliamentary committees, but major reviews were conducted by the NSW Law Reform Commission (1999),20 which led to little change, and in

11 [14]

[15]

13 Margaret Thornton, The Liberal Promise: Anti-discrimination Law in Australia (Oxford University Press, 1990). 14 Marc Galanter, ‘Why the “Haves” Come Out Ahead: Speculation on the Limits of Legal Change’ (1974) 9 Law & Society Review 95. 15 Brown v Board of Education of Topeka, 347 US 483 (1954). 16 Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (University of Chicago Press, 2nd ed, 2008); Roger Cotterrell, The Sociology of Law (Oxford University Press, 2nd ed, 1992). 17 Race Discrimination Commissioner (ed), The Racial Discrimination Act 1975: A Review (Australian Government Publishing Service, 1995). 18 House of Representatives Standing Committee on Legal and Constitutional Affairs, Half way to Equal: Report of the inquiry into equal opportunity and equal status for women in Australia (1992); Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality, 2008; ALRC, Equality before the Law: Justice for Women (Report 69, 1995). 19 Productivity Commission, Review of the Disability Discrimination Act 1992, Report No 30 (AGPS, 2004). 20 NSW Law Reform Commission, Review of Anti-Discrimination Act 1977 (NSW), Report No 92, 1999.

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Victoria by the Scrutiny of Acts and Regulations Committee (1993, 2009) and the Gardner Review (2008), which led to the Equal Opportunity Act 2010 (Vic) (EOAV).21 Most have generated useful research and ideas for possible reforms.

11.3 Alternative directions [16]

[17]

[18]

In this section we identify a range of initiatives that might be considered for Australian antidiscrimination laws, in light of the goal of substantive equality, evidence of deficiencies in our current laws, and theories about the role of law. Throughout the book, in identifying weaknesses of various aspects of our legislation we have sought to provide ideas about reforms. We are not repeating all of those here, merely drawing together proposals addressing what we have identified as the key weaknesses of the current laws. Some of these ideas were explored in the ultimately unsuccessful process undertaken to ‘consolidate’ federal anti-discrimination laws. Earlier proposals for reform of the law around the country sought to harmonise the federal and state laws. Among other benefits,22 this would make compliance easier for organisations that have activities in more than one state. Currently, organisations must comply with four different federal laws and with laws that differ in detail in every state and territory. Simplification and harmonisation would have major benefits if one uniform standard applied nationwide. However, it became clear that achieving consistency of protection across states and territories would be too difficult. Uniform national laws have been achieved in Australia through cooperative arrangements in other areas such as corporate law and work health and safety laws, and through commonwealth takeovers in areas such as workplace law, but there has been no attempt to achieve such uniformity in anti-discrimination laws despite the compliance burden. Instead the idea of consolidating the four federal laws into one consistent piece of legislation was proposed in the government’s response to the National Human Rights Consultation Report of 2011, rejecting the proposal to adopt a national bill of rights or human rights charter.23 Consolidating the Commonwealth Acts proved to be a more difficult task than was probably expected. While the exercise was supposed to be merely a consolidation rather than an overhaul, the terms of reference contained two commitments that were not always easy to reconcile without substantially changing the content of the laws. These were to simplify the laws (by reducing ‘complexity and inconsistency’) and not reduce any existing protections.24 After a Discussion Paper and lengthy consultation process, an Exposure Draft of a 21 Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Review of the Victorian Equal Opportunity Act 1984, Final Report (1993) 61; Scrutiny of Acts and Regulations Committee, Parliament of Victoria, Inquiry into Exceptions and Exemptions to the Equal Opportunity Act 1995 Final Report (2009) 64; Julian Gardner, An Equality Act for a Fairer Victoria: Equal Opportunity Review (Victorian Department of Justice, Final Report, 2008). 22 Mark Nolan, ‘The Legal and Psychological Benefits of Nationally Uniform and General Antidiscrimination Law in Australia’ (2000) 6 Australian Journal of Human Rights 79. 23 Australian Government, Australia’s Human Rights Framework (2010); Robert McClelland, ‘Launch of Australia’s Human Rights Framework’ (Speech delivered at the National Press Club of Australia, Canberra, 21 April 2010). 24 Commonwealth of Australia, Consolidation of Commonwealth Anti-Discrimination Laws, Discussion Paper (September 2011) 6, [9]–[10].

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Human Rights and Anti-Discrimination Bill (HRAD Bill) was released in 2012 for comment. The Exposure Draft was considered by the Senate Legal and Constitutional Committee, which recommended some changes,25 but it gained little public support26 and ultimately in 2013 the government decided not to proceed with it.27 The only changes that emerged were the adoption of the new attributes of intersex status, sexual orientation and gender identity in the SDA. Many ideas were generated for future directions for the law, and these were presented in the exposure draft of the HRAD Bill, drawing on insights from research about discrimination and alternative drafting approaches adopted in other jurisdictions. The proposed law was not radical: it addressed the inconsistencies between the four federal laws, and some weaknesses in Australia’s laws, but fundamentally it still defined a series of negative duties not to discriminate, to be enforced by individual victims of discrimination, through a twostage dispute resolution process of conciliation by an agency followed by a hearing and determination by a federal court. This unsuccessful law reform process confirms the sensitivity of anti-discrimination law in Australia and suggests that broad-based reform will be difficult to achieve. Anti-discrimination law has not been well understood in Australia, and there is an urgent need for greater depth of understanding of what the law can and cannot do to ensure better informed public debate over proposals. It is possible that incremental reforms may hold more promise in future. As we have noted in earlier chapters, especially Chapter 7, many of the weaknesses of the current anti-discrimination laws stem from, or are exacerbated by, the focus on individual rights, and resting compliance entirely on individuals’ willingness and capacity to enforce the law. There is a need to ensure effective enforcement of anti-discrimination law in a way that is less onerous for claimants and that focuses attention on the central issue between the parties rather than on technical issues. Ultimately a legal system that is designed to address disadvantage of particular groups of people, yet relies upon those disadvantaged people to be the sole drivers of change, is inherently weak.28 It asks those who are marginalised – economically, educationally, politically or otherwise – and who have experienced discrimination to identify the conduct as a legal wrong, identify a specific perpetrator as the one to blame, and then formulate and litigate a claim.29 The pitfalls and limitations of this system

11 [19]

[20]

[21]

25 Senate Legal and Constitutional Affairs Legislation Committee, Exposure Draft Human Rights and Anti-Discrimination Bill 2012 Report, February 2013. 26 Media attention focused almost entirely on one provision of the Bill, which was anticipated to unjustifiably restrict freedom of expression. (Belinda Smith, ‘Free Speech and other Human Rights: The clause that almost sank the Human Rights Bill’, The Conversation, 1 February 2013 .) Despite the Attorney-General announcing that the offending provisions would be removed, the Bill received very little further analysis, and other proposals to change anti-discrimination law received virtually no public discussion. 27 Mark Dreyfus, Attorney-General, and Penny Wong, Minister for Finance and Deregulation, Joint media release, ‘New anti-discrimination laws to cover sexual orientation, gender identity and intersex’, 20 March 2013; Simon Rice, ‘Government gives up on discrimination reform’ The Canberra Times, 22 March 2013. 28 Smith, above n 8. 29 William L F Felstiner, Richard L Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…’ (1980–81) 15 Law and Society Review 631.

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of laws have been identified throughout the book. In addition, the private and confidential nature of the dispute resolution system militates against any public ripple effect whereby claims might educate others. The purely compensatory system of remedies also limits the corrective and deterrent effect of any orders that are made, and it reinforces the misguided notion that discrimination is merely an interpersonal conflict that can be resolved through compensation to an individual victim. Even if these deficiencies were addressed, however, the legal framework would still struggle to provide the requisite external stimulus to prompt actors who are uncommitted to equality or lack the capacity to identify and rectify their own discriminatory practices. Many commentators have recommended moving beyond the individual complaints-based regulatory framework. Australia is unusual among comparable countries in failing to provide a regulatory body that has powers to enforce the law and ensure that it is elaborated, clarified and advanced. We have no agency, ombudsman or prosecutor who can bring actions on behalf of specific victims or society as a whole to protect the public interest in non-discrimination.30 For discrimination to be addressed more effectively, regulated actors like employers and goods and service providers need to be aware that discrimination is prohibited and, if motivated to comply, able to understand the obligation, recognise any contraventions and ensure alternative non-discriminatory practices. The law needs to deal with both lack of commitment to the goal of non-discrimination, and lack of capacity to identify and rectify breaches. In the following discussion we examine a number of ideas for change. Some are focused on improving access to justice and enforcement in the individual claims system, and others seek to use other regulatory mechanisms to encourage more proactive, preventative activities by duty bearers. We have chosen a number of significant areas for discussion here, relating to defining discrimination and the prohibited actions, enforcement and compliance issues, and remedies. First we consider dissolving the artificial line between direct and indirect discrimination to provide a unified definition combined with a single but structured defence of justification; and modifying the rule of discrimination to require reasonable adjustments to be provided in respect of all attributes. Second, in relation to enforcement and compliance, we examine a shifting burden of proof to assist rights holders to prove contraventions; and codes of practice to facilitate greater compliance by duty bearers. Finally, we briefly touch on removing or moderating the default costs rule used at the federal level, whereby costs follow the event, and introducing a greater range of remedies. Our concern with reforming the law is that the starting point should move away from the details of the existing law and draw on the conceptual framework and what we can learn from the operation of anti-discrimination and equality laws in other countries. Australia’s basic legislative approach was adopted decades ago and much has been learned about discrimination and legal approaches to it since then. For example, the idea that discrimination is inevitably comparative in the sense of requiring a comparison with a specific actual or hypothetical individual can be seen to be limiting and unnecessary. Similarly, the idea that a bright line exists between direct and indirect discrimination, or purpose and effect 30 As outlined in 3.3.2: Enforcement and remedies, and discussed in 7.4.6: Access to legal representation and the role of agencies. For further discussion see Smith, above n 8.

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discrimination, is difficult to justify. These issues are affected by both our detailed drafting style, and by the technical and narrow approaches to interpretation used by the courts. We argue that the future of the law should not be constrained by the approach chosen when it was first adopted so long ago. Although legislation needs to contain some open texture so it can be applied to a wide range of future possible situations, Australian legislation generally uses a ‘fussy’ (rather than ‘fuzzy’) drafting style that specifies definitions and prohibitions in detail.31 This has encouraged judges to adopt literal and narrow approaches to interpretation, and legal argument is often focused on issues of grammar rather than substance. This approach, for example, converts the multiple elements needed to make out a discrimination claim into multiple hurdles for complainants, any one of which they can fail. It may discourage judges from taking a purposive approach to interpretation32 to give the law its intended effect in light of its human rights goals.

11 [26]

11.3.1 Unified definition of discrimination As we have noted throughout the book,33 the line between direct and indirect discrimination is chimerical; conceptually these types of discrimination are not mutually exclusive. Australian courts, however, have held that the definitions are to be treated as mutually exclusive. Much litigation time and energy has been spent on drawing such lines and trying to articulate whether the disadvantage a person has suffered should be characterised as different treatment or different impact. This is somewhat ironic because the two-part definition of discrimination in our laws emerged from early decisions of the US courts that different treatment could extend to include different impact.34 Similarly, the definitions of discrimination in international discrimination conventions refer to any ‘distinction, exclusion, restriction or preference’ based on the attribute that has the ‘purpose or effect’ of nullifying or impairing the equal recognition, enjoyment or exercise of human rights and fundamental freedoms.35 An alternative would be to remove the artificial line between direct and indirect discrimination in our statutes, and declare them not to be mutually exclusive. Such an approach would require the courts to focus on whether there was disadvantage, by design or effect. Such a unified definition of discrimination is used in Canadian anti-discrimination law.36 This was proposed in the HRAD Bill.37

[27]

[28]

31 Keith Mason, ‘The intent of legislators: How judges discern it and what they do if they find it’ (2006) 27 Australian Bar Review 253. Lisbeth Campbell, ‘Legal Drafting Styles: Fuzzy or Fussy?’ (1996) 3(3) Murdoch University Electronic Journal of Law; Belinda Smith, ‘Rethinking the Sex Discrimination Act: Does Canada’s Experience Suggest we Should give our Judges a Greater Role?’ in Margaret Thornton (ed), Sex Discrimination in Uncertain Times (ANU E Press, 2010) 235. 32 Acts Interpretation Act 1901 (Cth) s 15AA: ‘In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation’. 33 See discussion in Chapters 1 and 5. 34 See discussion in Chapter 2. See also discussion of interpretive options for FWA s 351 in Chapter 9. 35 See e.g. CERD art 1, CEDAW art 1, CRPD art 2. 36 British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3 (Meiorin). 37 See HRAD Bill 2012 cl 18.

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However, acknowledging the overlap between direct and indirect discrimination has implications for defences. Under existing laws indirect discrimination can be justified as ‘reasonable’, but conduct that amounts to direct discrimination cannot be justified in this way and will be unlawful unless a specific exception applies. The absence of a general justification defence for direct discrimination reflects the desire of the drafters to ensure a strict approach to prohibiting use of protected attributes to draw distinctions between people, but the existence of the many specific exceptions clearly indicates that an absolute prohibition of any such use in all circumstances is not workable. The specific exceptions could be replaced with a general justification defence for direct discrimination, provided the courts recognised the limited role of such a general principle. A justification for permitting an action that either uses an attribute or has the effect of distinguishing people categorised by an attribute can be justified only where the countervailing right is sufficient to outweigh the fundamental human right to nondiscrimination. This requires a legitimate interest and a narrowly tailored means to achieve it. This difference in approaches to defences was a key issue in the Purvis case (discussed in Chapter 5).38 The school faced difficulties in accommodating the complainant’s learning needs because of his disability, and ultimately suspended him because he could not meet minimum behavioural standards designed to balance his needs and those of other students and staff. The claim was framed only as one of direct discrimination, arguing that in suspending the student the school had treated him less favourably than it would a non-disabled student in the circumstances. Direct discrimination had no general justificatory defence and, at the time, the Act had no exception of ‘unjustifiable hardship’ on which the school could rely to justify suspending the student because of his particular needs that it had struggled to accommodate. Without a ‘justificatory’ exception, the Court could not undertake any analysis of the adequacy of the school’s efforts and the balancing of competing considerations. If the claim had been framed as indirect discrimination, the imposition of a (facially neutral) behavioural requirement, the school would have been able to argue that the requirement was reasonable in all the circumstances, in effect allowing assessment of the impact on the complainant and the feasibility of less discriminatory alternative measures. Framing the claim as direct or indirect discrimination thus dictated whether there was scope for considering the reasonableness of the school’s actions. An ‘unjustifiable hardship’ defence to direct discrimination would have effectively permitted this to occur, but was not available at the time and now, outside disability discrimination, there is no vehicle for considering such a general defence. If direct and indirect discrimination were combined into a single category of conduct, it would not be plausible to allow different defences. A test akin to reasonableness or justification could be applied,39 although opening up direct discrimination to such a defence raises some concerns. A single justification defence could allow for consistency by replacing the many specific exceptions with a test that evaluates the conduct and its impact on a principled basis. That assessment could be akin to the reasonableness defence, but concerns would exist about the types of interests that could be accepted as justifications, as well as the standard of justification needed. A ‘reasonableness’ test suggests a standard that is too 38 Purvis v New South Wales (2003) 217 CLR 92. 39 See HRAD Bill 2012.

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low and gives too little weight to protection of human rights and avoiding discrimination based on protected attributes. Comparable countries have tests formulated at higher levels, and justification is preferable to ‘reasonable’. The test should also be more structured to ensure a full evaluation of both the purpose and means. This raises a second and related concern. Such an evaluation of reasonableness or justification clearly can operate as a conservative influence in discrimination laws because it can reflect and reinforce existing norms of merit, the status quo of practice and who should bear the costs of difference.40 It is, however, arguably a necessary mechanism to enable the real issues to be contested, not merely the technical or semantic issues of whether the conduct should be characterised as different treatment or different impact. The issue at stake in many claims of discrimination is ultimately one of fairness – whether it is fair or just for a person to be excluded or disadvantaged because of their attributes in light of our commitment as a nation to promoting equality and social inclusion. One possible way of recognising and ameliorating this tension between the status quo and the need to address exclusion would be to structure the justification test by listing factors that had to be taken into account.41 The UK legislation sets out a test of ‘legitimate and proportionate’.42 The Canadian courts have gone further to develop a multi-part test, incorporating subjective elements of good faith and objective elements amounting to proportionality. This test is set out in the leading case of Meiorin, a claim of sex discrimination in employment. Once the employer’s conduct or standard has been proven to constitute discrimination, this defence is available:

11 [32]

[33]

An employer may justify the impugned standard by establishing on the balance of probabilities: 1. that the employer adopted the standard for a purpose rationally connected to the performance of the job; 2. that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and 3. that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer.43

[34]

In essence, the Canadian test is designed to ensure firstly that blatant prejudice or intentional exclusion is prohibited, by imposing the good faith rule and requiring a legitimate aim. It then would operate to promote a principled assessment of conduct that involves balancing interests and weighing and sharing costs of inclusion and exclusion.44 40 See Minow’s assumptions of difference, including the assumption that the status quo is natural and neutral and thus those asking for change are seeking special treatment: Minow, above n 2. 41 This was the approach taken in the HRAD Bill 2012: see cl 23. 42 See discussion in 5.2.2.4. 43 British Columbia (Public Service Employee Relations Commission) v BCGSEU [1999] 3 SCR 3 (Meiorin), [54] (McLachlin J for the Court). 44 Smith, above n 31, 244–49.

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Ultimately, however, such tests still rely upon judicial interpretation. In order to make progress, it must be made clear to everyone affected by the laws (and judges interpreting them) that the legislation’s goal is to change discriminatory social practices. Despite legislative requirements to construe legislation according to its purpose,45 as noted above the courts have been reluctant to discern a wider purpose in anti-discrimination law.46 They have held that it is not intended to be the only remedy for discrimination,47 and that it is not intended to cover all forms of ‘discrimination’ but only that which falls within its technical definitions,48 preferring the approach of analysing the words of the legislation closely rather than examining the goals of the law. It is likely there is a range of causes contributing to this judicial reluctance. Australian judges appear not to accept that it is a legitimate judicial function to decide issues involving the scope of a law, even where the legislature has left interpretive space and directed them to use a purposive interpretation. In contrast, Canadian judges, in being asked to interpret legislation which does not have the same level of detailed specification, in effect are asked to give principled content to the law and apply it according to its purpose, and are authorised by the legislature to do this.49 The absence of a human rights charter requiring human rights to be integrated into legal analysis across a range of areas may deprive Australian judges of an adequate context for learning about human rights and gaining experience in their understanding and application of the law.

11.3.2 Duty to make reasonable adjustments [36]

[37]

The nature of the legal rule is obviously an important factor in designing laws to promote social change. Australian anti-discrimination rules are generally negative prohibitions – rules that say one must not discriminate. However, even a negative rule that prohibits discrimination can indirectly require action by regulated actors. For example, a rule that says categorical exclusions of an attribute group are unlawful implicitly imposes a duty on organisations to review their policies and remove any such exclusions, even if failure to do so does not in itself constitute a breach of the law. Similarly, the rule against indirect discrimination, prohibiting unreasonable conditions or requirements that disproportionately disadvantage members of protected attribute groups, implicitly imposes an obligation to ensure that any such conditions or requirements are in fact reasonable in all the circumstances. Similarly, the defence to vicarious liability of taking ‘all reasonable steps to prevent’ discrimination or harassment implicitly imposes on an organisation a duty to take preventative steps (to manage their risk of liability). One way in which this implicit obligation can be strengthened and made more explicit is to include an obligation to provide reasonable adjustments or accommodation. Federal legislation only contains such an obligation in the DDA,50 and the EOAV extends it to carers

45 E.g. Acts Interpretation Act 1901 (Cth) s 15AA. See above n 32. 46 E.g. Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26(2) Melbourne University Law Review 325. 47 Brennan J in Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349, [2]. 48 IW v City of Perth [1997] HCA 30; 191 CLR 1: ‘the Act … defines discrimination … in a rigid and often highly complex and artificial manner’ (Brennan CJ and McHugh J). 49 Smith, above n 31. 50 Discussed at 5.3.

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and, via the factors relevant to assessing reasonableness in indirect discrimination, to all attributes.51 The HRAD Bill retained it52 but could have extended it to all attributes, as is the case under Canadian anti-discrimination laws.53 By including an obligation to provide adjustments, duty bearers have more responsibility for reviewing their practices and environment and proactively making changes to reduce barriers to equality, a duty that is limited by a term such as ‘reasonable’ or up to ‘unjustifiable hardship’. The inclusion of this explicit obligation to provide different treatment in order to promote equality means that the fault or wrong is not necessarily an individual’s positive act, but could be a failure to act – a failure to make at least reasonable adjustments. Such a duty to provide adjustments or special measures to promote equality can be imposed in different ways. As noted above, it can be included in the definition of discrimination so that the failure to provide reasonable adjustments constitutes discrimination, as it is in the DDA and EOAV. The Canadian model weaves the duty into the defence. As noted above at [33], a standard (such as requirement, condition or policy) imposed by an employer, for example, that results in disparate treatment or impact will only be lawful if ‘it is impossible to accommodate employees’ with the claimant’s attribute ‘without imposing undue hardship upon the employer’.54 These are still complaints-based rules, but ones that contain a more demanding obligation to promote equality. Alternatively, other kinds of duties to promote equality could be imposed but without an individual complaint mechanism; such positive duties are discussed in Chapter 10 (10.5).

11 [38]

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11.3.3 Shifting burden of proof In addition to possible changes to the definition of discrimination and the scope of the prohibition noted above, a further proposal is for the introduction of a shifting burden of proof.55 The current burden of proof under anti-discrimination laws is onerous and poses a significant barrier for victims of discrimination in seeking redress through litigation because it requires them to prove a matter on which they do not have access to the evidence, which is generally all controlled by the respondent. Not surprisingly, it is one of the major reasons for the failure of discrimination cases in Australia, especially in the context of race, where tribunals have been very reluctant to conclude that race was the basis for different treatment. This barrier to litigation has little to do with the merits and has been adjusted in every comparable country. By making proof of direct discrimination so difficult, it allows duty bearers to avoid having to respond to the law. The HRAD Bill included a shifting burden mechanism. Unlike the FWA rebuttable presumption in respect of claims of discrimination, which only requires adverse action and an attribute to be proven, the HRAD Bill proposed a burden more like that used in the UK

[40]

[41]

51 EOAV s 9(3)(e). 52 HRAD Bill 2012 cl 23(6). 53 For discussion see Belinda Smith and Dominique Allen, ‘Whose Fault Is It?: Asking the right question to address discrimination’ (2012) 37(1) Alternative Law Journal 31. 54 Meiorin [1999] 3 SCR 3, [54]. 55 HRDA Bill cl 124.

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which requires the complainant to establish at least a prima facie case of discrimination.56 Specifically, it would have required the complainant to adduce evidence ‘from which the court could decide’ that the respondent acted for an impermissible reason or purpose, before the respondent was called upon to prove the contrary. A shifting burden of proof generally is designed to require the respondent to provide evidence of their motivation, which often the complainant cannot access. In turn, it may increase the pressure or normative prompt on organisations to take preventative action by imposing some pressure to be accountable for their decisions. In essence the complainant is required to meet an initial hurdle, such as proving a prima facie case of discrimination, before the burden of proof in respect of the reason for conduct shifts to the respondent. While the initial hurdle can vary,57 a shifting burden makes the case for a complainant easier by requiring duty bearers to disprove a presumption. It says to duty bearers that they need to be prepared with evidence to prove why they acted. It indirectly applies pressure on organisations to be proactive in observing the law, for example by adopting anti-discrimination policies, processes and practices, and observing them. Despite a shifting burden of proof for discrimination complaints being standard and relatively uncontroversial in jurisdictions overseas,58 it has not formed part of the Australian anti-discrimination framework. Proposals for such a shifting burden are regularly opposed by employer groups.59 The arguments against a shifting burden include hyperbolic suggestions that it would be akin to reversing the criminal law’s presumption of innocence, despite this mechanism being used even in criminal law and being a relatively widespread regulatory tool for civil matters.60 More legitimate concerns largely fall into three categories. First, there is concern that a shifting burden of proof might allow a flood of unmeritorious claims because lack of evidence about the reason for a decision would no longer be a barrier to lodging a claim and requiring a response. Good regulatory design does usually provide a means of identifying and discouraging unmeritorious and vexatious claims, and an onerous burden of proof can certainly perform this role, but arguably it operates like a sledgehammer where the complainant cannot access the evidence, and other, better, mechanisms operate to screen out such complaints. The Bill contained one such additional mechanism which is used in some states: where the agency terminates a matter on the basis that it is outside jurisdiction, trivial or vexatious,

56 See Equality Act 2010 (UK) s 136. 57 For a discussion of how the prima facie hurdle has changed over time in Canada see Judy Fudge and John Kicoyne, ‘McGill University Health Centre v Syndicat des employés de l’Hôpital général de Montréal’, The Court (Blog), 12 February 2007 . 58 See Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination Law (Federation Press, 2nd ed, 2014) 142–52. 59 See, e.g. submissions by Australian Industry Group and Business Council of Australia to Australian Government, Consolidation of Anti-Discrimination Laws – Discussion Paper 2011. See also the call by numerous employers for the shifting burden provision in the Fair Work Act 2009 (Cth) in s 361 to be removed: Australian Government, Towards more productive and equitable workplaces: An evaluation of the Fair Work legislation, 2012, 11.3.2. 60 See Australian Law Reform Commission, Traditional Rights and Freedoms: Encroachments by Commonwealth Laws, Report No 129, 2016 (Chapter 9 summarises the use and rationale for shifting burdens in various criminal and civil laws).

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the complainant is not automatically permitted to pursue the claim to a hearing but needs leave of the court to proceed.61 Second, a more moderate version of the hyperbolic concern noted above is that rebutting presumptions or disproving allegations can be difficult. This raises the possibility of ‘false positives’ whereby findings of discrimination are made not because discrimination occurred but because the respondent simply could not prove that the reason for a decision was a non-discriminatory one.62 Certainly the risk of false positives needs to be minimised, but from a public policy perspective this risk needs to be weighed against the opposite and sometimes overlooked problem, the risk of ‘false negatives’, whereby perpetrators of discrimination are not called to account because the occurrence of discrimination cannot be proven to the level of proof required.63 Choosing between these two false results is a policy choice.64 As businesses became more used to dealing with a shifting onus, they would become accustomed to documenting their legitimate reasons for actions that could be challenged, and this promotes good practice in many contexts. Finally, there is a concern about the capacity of organisations to respond to a higher expectation of rational and transparent decision making. It can be assumed that the spectre of rights litigation prompts organisations in managing their legal risks to review and possibly revise their practices to minimise the risk of claims and the risks of not being able to defend claims successfully. There is, however, a concern that some organisations, especially small businesses, may not have the requisite capacity to act, to know how to improve their decision making or have the resources to develop processes for identifying and eliminating bias. This places extra importance on drafting clear, consistent rules that can be followed and on providing effective guidance on what the law requires to enable compliance. These concerns about shifting the burden of proof need to be considered, but in the context of the wider public goal of addressing discrimination, risks of the existing system not achieving this, and alternative regulatory techniques that might be used to address the concerns.

11 [44]

[45]

[46]

11.3.4 Enabling compliance: Codes of practice or guidelines Another possible reform would seek to address the lack of clarity about legal obligations under anti-discrimination Acts. These cover the greater use of codes of practice and guidelines to promote clarity in respect of the legal duty not to discriminate and greater certainty about whether an actor is complying. As noted earlier (at 11.2, above), even if an employer (for example) is committed to addressing discrimination, a barrier to compliance might be the difficulty of understanding the legal duty not to discriminate and what that means for their workplace.

[47]

61 HRDA Bill cl 121. See, for example, ADANSW ss 92 and 96. Generally the complainant does have the option of seeking judicial review of the agency’s decision. See discussion in Chapter 7. 62 Naomi Cunningham, ‘Discrimination through the looking-glass: Judicial guidelines on the burden of proof’ (2006) 35(3) Industrial Law Journal 279, 281, 282. 63 Ibid 282. 64 Ibid.

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Providing for guidance materials to be developed and used to promote compliance is not unusual under Australian laws. For example, the FWA uses the Small Business Fair Dismissal Code, and industry codes are developed under work health and safety laws. Some codes are compulsory, prescribing steps that must to be taken in order to comply, while others are evidentiary, which means they merely suggest a way to comply with the law, and following the code could be taken into account by a court to determine whether a contravention or defence is made out. Agencies established by anti-discrimination laws in Australia, such as the AHRC, are all granted powers to develop educational or guidance materials, and have developed guidelines for groups such as employers. These generally do not have any legal status, although tribunals can be directed or permitted to take them into account in deciding matters.65 The Sexual Harassment Code of Practice (Harassment Code),66 for example, was developed by the AHRC and, despite its name, is not a code in the legal sense. The Harassment Code provides a summary and explanation of the legislative prohibition on sexual harassment and how the courts have interpreted this and the ‘all reasonable steps’ defence to vicarious liability. While not legally binding, this material does promote compliance by making the legal obligations set out in legislation and judicial cases more accessible to those who are bound by the laws. Codes could help to address discrimination in a number of ways, working on normative and practical aspects of the problem. Guidance materials could be used to persuade duty bearers to become more committed to addressing discrimination, and they could operate to enhance the capacity of duty bearers to identify discriminatory practices and develop alternatives.67 Materials that document and measure the costs of discrimination and the moral or business imperative for addressing it can help to prompt greater commitment to a goal of equality or non-discrimination. Other materials could help by translating legal obligations into plain English, making it clearer to duty bearers and rights holders what is and is not lawful.68 Alternatively, some duty bearers might be committed and understand their obligations but struggle to identify discrimination or name discrimination when they see it, and could benefit from materials that provide illustrations of the many different ways discrimination manifests. A final category of materials are those that disseminate examples of equality-promoting practices, illustrating alternative, more inclusive ways of operating. This latter type of guidance could also document trials and errors, and pitfalls that others might learn from, thereby promoting wider uptake by possibly decreasing the design and implementation costs of new approaches. Ultimately, however, guidance materials mostly assume a degree of commitment and operate primarily on the capacity axis by helping those who want to be helped to operate more inclusively to reduce discrimination. Such materials might have no effect whatsoever on those who contest either the premise of equality or their responsibility for promoting it.

65 E.g. EOAV s 148; ADANSW s 120A Codes of Practice. 66 AHRC, Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (October 2008). 67 See Smith, above n 4. 68 Ibid.

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11

For such actors, the law needs to provide some stimulus as a prompt to act. This could be a more demanding rule that requires action, such as a positive duty or obligation to provide reasonable adjustments as discussed above, or enhancements in the enforcement and compliance framework discussed further below.

11.3.5 Costs The current costs rule under federal anti-discrimination law is the default rule that costs follow the event, meaning that the party who loses the case in court will bear at least party/ party costs of both parties.69 For a victim of discrimination seeking a remedy this represents a significant risk and thus a barrier to enforcement. A complainant faced with even an inadequate offer of settlement in conciliation knows that rejecting it means facing not only the time, effort and outlay to pursue the matter through court, but this risk of having to pay the respondent’s costs as well in the event that she is unsuccessful in proving her claim. This barrier to enforcement is particularly important given that victims are the only people under the Acts empowered to bring enforcement actions. On the other hand, the general costs rules in the state and territory tribunals are that each party bears their own costs. While litigating in the tribunals is less risky and costly than in the federal courts, it nevertheless is very expensive to have legal representation, and a party that succeeds may well find that the benefit of any award of compensation is swallowed by the cost of bringing their own case. Again, this is a substantial barrier to enforcement, as the costs of taking action will not be reimbursed, and even a positive outcome is likely to leave the harmed party undercompensated. Allowing costs to operate as a barrier to the law’s enforcement is especially problematic if the burden of enforcing the law is primarily on the person affected by discrimination. The need for agency assistance with enforcement is clear, as is the need to address the costs of litigation and to ensure that individuals harmed by discrimination are properly compensated, above reimbursing the cost of pursuing their claim. Failing to address these issues indicates that there is no real commitment to ensuring that all individuals subjected to discrimination can enforce their rights. We considered other issues relevant to the problems of costs at 7.4.8, including costs-capping orders, access to legal aid, early access to expert legal advice (before investment in litigation occurs) and pro bono assistance. All are important but partial ways to address the problems of enforcement. Considering the barriers to enforcement that we have discussed, it cannot be said that the government is meeting its commitments under the discrimination conventions to provide effective protection against discrimination.

[52]

[53]

11.3.6 Expanding sanctions and public enforcement powers Empowering an agency to enforce the legislation is one regulatory change to Australian anti-discrimination laws that has been proposed many times to reform the individual

[54]

69 See Chapters 3 and 7.

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claims-based system.70 This feature of regulation is not unusual in other fields of law in Australia, such as labour law under the FWA and trade practices. It is also an established feature of anti-discrimination laws in other jurisdictions, such as the US, Canada and, to some extent, the UK, where the agencies have power to initiate enforcement actions independent of an individual claimant. This power could be granted to the existing regulatory agency, such as the AHRC, or another body if warranted to address any concerns about a conflict of interest. The Fair Work Ombudsman (FWO), for instance, was established to promote compliance with the FWA, separate to the Fair Work Commission that operates as a conciliator and arbitrator of disputes. Enabling enforcement by an agency has the potential to increase effectiveness of antidiscrimination laws in a number of ways. In contrast to individual victims of discrimination, an agency would be intimately familiar with the legislation and would be acting as a ‘repeat’ rather than one-off litigant and thereby readily able to identify possible breaches and navigate the litigation process. This means that the enforcement of contraventions would not depend solely on whether the victim has the wherewithal, time, energy and other resources to litigate through to a determination. Currently an employer or other duty bearer bound by the legislation could safely gamble that an individual victim would generally not be able or willing to pursue a claim beyond confidential conciliation, because of the cost of litigating through the court and the risk of costs orders. The agency would also have the power to pursue contraventions that represent systemic discrimination that are currently underenforced, because of the dispersed harm that means no individual victim has sufficient interest in pressing a claim. It could also bring test cases as a way of highlighting particular discriminatory practices that are widespread beyond the individual case. Finally, it is clear from many cases that even when a complainant is able to prove unlawful discrimination, they are not always able to prove harm and have it valued in a way that is really compensatory.71 An agency with more information about typical orders of compensation and other remedies available and greater capacity to understand what evidence is needed to establish harm could seek more appropriate remedies. The real promise of an enforcement agency might depend, however, on a related reform: expanding the range of orders a court could make to a full ‘pyramid’72 of remedies and sanctions to enable recognition of the public and systemic aspects of discrimination. While the federal courts are empowered to grant any remedy they think appropriate for unlawful discrimination, the courts have repeatedly interpreted this power narrowly to grant only compensatory remedies. Compensation could redress some of the harm suffered by individual complainants, but is often inadequate and does little to address 70 See e.g. Belinda Smith, ‘Not the Baby and the Bathwater: Regulatory Reform for Equality Laws to Address Work–Family Conflict’ (2006) 28(4) Sydney Law Review 689; Dominique Allen, ‘Strategic Enforcement of Anti-Discrimination Law: A New Role for Australia’s Equality Commissions’ (2010) 36(3) Monash University Law Review 103; and submissions summarised in Senate Standing Committee on Legal and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality, 2008, Chapter 6. 71 Beth Gaze and Rosemary Hunter, Enforcing Human Rights in Australia: An evaluation of the new regime (Themis Press, 2010). See discussion of Richardson v Oracle Corp Australia Pty Ltd (No 2) [2014] FCAFC 139 at 7.4.7. 72 Ayres and Braithwaite, above n 7.

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the wider and public harms that discrimination can cause. By limiting remedies to compensation, discrimination is characterised as merely a private, interpersonal tort-like dispute, not a public issue. Its public character could instead be served by other remedies such as punitive damages or civil penalties for actions or respondents that warrant some punishment and deterrence from future contraventions. To address entrenched and systemic discrimination, systemic preventative remedies could also be considered, such as ordering changes to policies, the implementation of training, and even improvements in processes or representation. There is traditionally some reluctance on behalf of the courts to order remedies that require ongoing monitoring or certification. One suggestion in response to this concern might be to empower the AHRC to perform this role of reviewing and certifying policies or training – a role that the FWO is playing in respect of regulating compliance with the FWA.73 What these twin reforms of an enforcement agency and full range of remedies allows is for a constructive and efficient approach to regulating called responsive regulation.74 Braithwaite describes the essence of this theory of regulation:

11

[57]

Responsive regulation has been an influential policy idea because it formulated a way of reconciling the clear empirical evidence that sometimes punishment works and sometimes it backfires – and likewise with persuasion. The pyramidal presumption of persuasion gives the cheaper, more respectful option a chance to work first. More costly punitive attempts at control are thus held in reserve for the minority of cases where persuasion fails.75

This theory suggests that it is the availability of a big stick punitive sanction (and an agency to wield it) that makes other, less intrusive, sanctions more effective.76 The use of increasingly punitive responses is represented by a pyramid, with a presumption that the lower level responses by the enforcement agency of providing education and guidance notes will be used first and most often in response to a possible contravention; the agency will only escalate up to more intrusive and punitive tools (such as compliance notices and ultimately litigation seeking penalties) in the case of the most recalcitrant and disengaged respondents. See Figure 11.2. Equipping a regulatory agency with a range of powers and allowing courts to order a full range of sanctions would enable the agency to approach the regulatory role responsively, so that compliance could be pursued through the use of lower level powers in a context where more coercive and punitive powers were available if compliance was not forthcoming.77

[58]

[59]

73 See e.g. Bush & Campbell Pty Ltd (Enforcable Undertaking, FWO, 5 November 2012), discussed at 7.2.3.2. 74 Originally named and outlined in Ayres and Braithwaite, above n 7. 75 John Braithwaite, ‘The Essence of Responsive Regulation’ (2011) 44 University of British Columbia Law Review 475, 484. 76 Ibid. 77 Drawing on the work of Ayers and Braithwaite, the use of responsive regulation to remedy discrimination was proposed in the UK: Bob Hepple QC, Mary Coussey and Tufyal Choudhury, ‘Equality: A New Framework – Report of the Independent Review of the Enforcement of UK AntiDiscrimination Legislation’ (Hart Publishing 2000). For more detail of such a proposal for Australian antidiscrimination laws see Smith, above n 70.

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Figure 11.2 Example of an enforcement pyramid (this one designed for the Australian Office of Transport Safety)78 Responsive Regulation Attitude to compliance Seriously disengaged

Possible compliance responses Prosecution Cancel Transport Safety Plan

Able but not willing

Injunction Enforcement order

Willing but not always able

Compliance control direction Vary/revise Transport Safety Plan Enforceable voluntary undertakings Infringement notice

Willing and able

Counselling Fully compliant

Educate Compliance responses aim to promote full voluntary compliance

Maintain awareness

Braithwaite also proposed nine essential principles of responsive regulation to guide regulatory agencies on the effective use of their powers, as follows: 1. Think in context; don’t impose a preconceived theory. 2. Listen actively; structure dialogue that: • gives voice to stakeholders; • settles agreed outcomes and how to monitor them; • builds commitment by helping actors find their own motivation to improve; • communicates firm resolve to stick with a problem until it is fixed. 3. Engage those who resist with fairness; show them respect by construing their resistance as an opportunity to learn how to improve regulatory design. 4. Praise those who show commitment: • support their innovation; • nurture motivation to continuously improve; • help leaders pull laggards up through new ceilings of excellence. 5. Signal that you prefer to achieve outcomes by support and education to build capacity. 6. Signal, but do not threaten, a range of sanctions to which you can escalate; signal that the ultimate sanctions are formidable and are used when necessary, though only as a last resort.

78 Braithwaite, above n 75, 483.

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7. Network pyramidal governance by engaging wider networks of partners as you move up a pyramid. [Rather than the enforcement agency being solely responsible for wielding a bigger and bigger stick, it could engage other stakeholders such as employees, investors and even insurers to also apply pressure to prompt compliance.] 8. Elicit active responsibility (responsibility for making outcomes better in the future), resorting to passive responsibility (holding actors responsible for past actions) when active responsibility fails. 9. Learn; evaluate how well and at what cost outcomes have been achieved; communicate lessons learned.79

In this approach, regulation is focused on seeking future compliance with the law, rather than on obtaining remedies for people who have been harmed by discrimination in the past. While this approach has enormous value for achieving the task of social change in respect of discrimination and equality, the legal response must also ensure that past wrongs are redressed for victims. It is clear that a responsive approach by the regulator has been taken up and used effectively by the FWO in respect of the FWA.80 For anti-discrimination laws it could enable a regulatory response to discrimination that is respectful but firm, and provide space to identify whether non-compliance was due to a lack of commitment or of capacity. The agency’s engagement with the regulated actor could be responsive to the attitude and reasons for apparent contravention. An education provider might not realise they are discriminating and merely need further help in identifying the contravention, while a small business might simply not have the capacity to develop non-discriminatory alternative practices. Another actor may have rationally decided that it was not worth investing resources into identifying and addressing inequality in their organisation, and might need persuading with something more than the provision of educational materials. Escalating up the pyramid, the agency would seek to encourage more commitment and action towards the goals of addressing discrimination; the existence of a public and punitive sanction could make the agency more persuasive in this regard. Like the FWO, the agency could negotiate with the respondent and settle claims with ‘enforceable undertakings’ by which the respondent publicly acknowledges contravention and undertakes to pay compensation or provide training as appropriate, rather than have the matter progress to a hearing in which the agency could seek civil penalties. While some similar outcomes are currently achievable in antidiscrimination law though conciliated settlements, their confidentiality deprives them of the value of publicly setting out the limits of and remedies for breach of the law in an educative fashion. For example, in an enforceable undertaking in a discrimination matter under the FWA, the FWO secured a public acknowledgment of wrongdoing from the respondent, an apology, and agreement to provide ongoing training for senior management as well as redress to the complainant.81 The only attempt to provide such regulatory powers in

[60]

[61]

79 Braithwaite, above n 75, 476. 80 Tess Hardy, John Howe and Sean Cooney, ‘Less Energetic but More Enlightened?: Exploring the Fair Work Ombudsman’s Use of Litigation in Regulatory Enforcement’ (2013) 35 Sydney Law Review 565. 81 See above n 73.

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Australian anti-discrimination law was the 2010 Victorian reforms that gave the VEOHRC power to issue compliance notices and accept enforceable undertakings. However, those powers were repealed in 2011 by the succeeding government before they had commenced.82 Even if the legal obligation of anti-discrimination laws remains a negative rule to not discriminate, this alternative approach to regulatory enforcement could lead to a more nuanced and constructive outcome. The rule, combined with the existence and known practices of the agency, would provide the external stimulus to regulated actors, prompting them to develop their own systems and practices to identify and address discrimination. Complaints of unlawful discrimination could still be made, but enforcement of the law would not depend only upon the will and capacity of the victim; the matter might not be resolved simply according to the power differential between the parties. The agency could investigate and engage with the respondent, starting at the base of the pyramid and only escalating as required, while engaging in a process of consultation with victims and target groups to ensure outcomes reflect the principles and objectives of the legislation. Of course much of the capacity of the agency to do any of this would depend upon what resources are available, including funding, expertise and some scope to experiment.83

11.4 Conclusion [63]

We have argued that there are many reasons for reconceptualising anti-discrimination law in Australia. A law whose enforcement rests entirely on vulnerable affected parties with few resources taking legal action involving substantial personal and financial risk, for relatively low returns, cannot be effective. Our laws lag behind comparable areas of law in Australia such as workplace or consumer law, as well as the anti-discrimination laws of comparable countries. As we have outlined, reforms are needed in areas such as providing regulatory enforcement to clarify and elaborate the law, supporting proof through a shifting onus, and providing remedies that deal with systemic aspects of breaches as well as adequately compensating those affected. While reform of the law is controversial, equality and nondiscrimination are widely accepted social values in Australia that call for a more effective legal response.

82 EOAV (as passed) pt 9. 83 Hardy et al, above n 80.

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APPENDIX Introduction to the Tables These tables summarise the key points and main differences in the laws around Australia. They are provided as a guide to the main provisions of the different Acts; individual Acts and specific sections should be consulted for the details. The Acts have been grouped by ‘type’ so that similarly organised Acts are listed side by side. The four groups are: (i)

RDA (Cth);

(ii)

SDA, DDA and ADA (Cth);

(iii)

state laws in NSW, WA and SA, which have separate divisions to deal with different attributes;

(iv)

and remaining state and territory laws that have generalised definitions of discrimination covering all attributes.

Information in the Tables is based on the Acts as they stood at 1 July 2016. Abbreviated forms of legislation have been used in the table headings. Please refer to abbreviations on page xi for full title of legislation. Data in the Tables does not reflect the amendments introduced by the Discrimination Amendment Act 2016 (ACT), parts of which will commence on 3 April 2017, but some asterisks have been included to note expected significant changes. The important changes brought in by this amendment are mentioned at the end of the introduction on page six.

Tables Table Table Table Table Table

1 2 3 4 5

– – – – –

Objects and attributes Discrimination and other prohibited conduct Areas covered Exceptions Procedure and remedies

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Table 1

OBJECTS AND ATTRIBUTES Issues

RDA

SDA

DDA

ADA

ADANSW

Objects

N/A

3

3

3

N/A

Definitions

3

4

4

5

4

Attributes Discrimination

9, 11–15

7

Race

Y

4(1) includes

Colour

Y

Y

Descent

Y

Y

National origin

Y

Y

Nationality Ethnic origin

Y Y

Y

Ethnicity Ethno-religious origin

Y

Sex and related

Race and related

Ancestry

296

Country of origin Race can comprise 2 + distinct races Immigrant status

Y

Sex

5

24

Sexual orientation/ sexuality

5A

49ZG (homosexuality)

Gender identity (or transgender)

5B

38B

Intersex status

5C

Marital or relationship status

6

39

Pregnancy

7

24(1B)

Appendix

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EOASA

EOAWA

EOAV

DAACT

ADAQ

ADAT

ADANT

N/A

3

3

4*

6

N/A

3

5

4

4

2, Schedule (Sch)

4, Schedule (Sch)

3

4

51

36

6(m)

7(1)(h)

7(g)

16(a)

19(1)(a)

5(1) means

4(1) includes

4(1) includes

2, Sch includes

4, Sch includes

3 includes

4(1) includes

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y

Y Y

Y

Y Y

Y

Y

Y

Y

Y Y

Y

Y *

Y

Y

29(2)

8

6(o)

7(1)(a)

7(a)

16(e) (gender)

19(1)(b)

29(3)

35O

6(p)

7(1)(b)

7(n)

16(c)

19(1)(c)

29(2a)

35AB

6(d)

7(1)(c)

7(m)

16(ea)

*

16(eb)

85T(2)

9

6(h)

7(1)(d)

7(b)

16(f), 16(fa)

19(1)(e)

85T(4)

10

6(l)

7(1)(f)

7(c)

16(g)

19(1)(f) (continued )

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Table 1

OBJECTS AND ATTRIBUTES (continued ) Issues

RDA

SDA

DDA

ADA

ADANSW

Potential pregnancy

7

24(1B)

Breastfeeding

7AA

24(1C)

Family/carer responsibilities

7A

49T

Disability

Parental/carer status Disability/impairment

5, 6

49B

Having a carer/use of disability aid, or assistance animal

7–9

49B

Age

14, 15

49ZYA, 49ZV

85A

Employment activity Industrial activity Irrelevant criminal record

Irrelevant medical record Lawful sexual activity Physical features Political belief or activity Profession, trade, occupation or calling Publication of fines details Other

Religious belief or activity

298

Religious appearance or dress

Appendix

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EOASA

EOAWA

EOAV

DAACT

ADAQ

ADAT

ADANT

85T(5)

10A

6(b)

7(1)(g)

7(e)

16(h)

19(1)(h)

85T(6)

35A

*

7(o)

16(j)

85T(4)

35A

6(i)

7(1)(e)

7(d)

16(i)

19(1)(g)

66

66A

6(e)

7(1)(j)

7(h)

16(k)

19(1)(j)

66(e)

66A(4)

7(3)

9

85

3

4, 21

66V

6(a)

7(1)(l)

7(f)

16(b)

19(1)(d)

6(c)

*

6(f)

7(1)(k)

7(k)

16(l)

19(1)(k)

6(pa) (expunged homosexual conviction)

7(1)(o)

16(q)

19(1)(q)

16(r)

19(1)(p)

6(g) 53

6(k)

7(1)(i)

7(l)

16(d)

7(j)

16(m)–(n)

19(1)(n)

7(1)(m) 67A 53

19(1)(qa) 6(n)

7(1)(i)

6(j)

*

7(i)

16(o)–(p)

19(1)(m)

85T(7)

(continued )

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Table 1

OBJECTS AND ATTRIBUTES (continued ) Issues

300

RDA

SDA

DDA

ADA

ADANSW

Characteristics extension

sub-s(1) of ss 5–7A

4(1) (disability includes imputations and behaviours)

14

7(2), 24(1A), 38B(2), 39(1A), 49B(2), 49T(2), 49ZG(2), 49ZYA(2)

29(2), 51(c), 66(c), 85A(c), 85T

Associate of someone with attribute

11–13, 15

7

7, 24, 38B, 39, 49B, 49ZG, 49ZYA

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EOASA

EOAWA

EOAV

DAACT

ADAQ

ADAT

8(1), 9(1), 10(1), 10A(1), 35AB(2), 35A(1), 35O, 36, 49D, 53, 66A, 66V

7(2)

5AA(2), 7(2)

4, 8, Sch (present or previous impairment)

14(2)

20(2)

29, 51(d), 66(f), 85A(d), 85T

35O(2), 36(1a), 49D, 66A(1a), 66V(2)

6(q)

7(1)(n)

7(p)

16(s)

ADANT

19(1)(r)

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Table 2

DEFINITIONS OF PROHIBITED CONDUCT

Issues

RDA

SDA

DDA

ADA

ADANSW

Direct Discrimination

9(1)

Sub-s(1) of ss 5– 7AA; 7A

5

14

Sub-s(1)(a) of ss 7, 24, 38B, 39, 49B, 49T, 49ZG, 49ZYA

Indirect Discrimination

9(1A)

Sub-s(2) of ss 5– 7AA

6

15

7(1)(c); sub-s (1)(b) of ss 24, 38B, 39, 49B, 49T, 49ZG, 49ZYA

Definition of Discrimination

What is included?

Refusal to reasonably accommodate responsibilities of parent or carer in work Failure to make reasonable adjustments for person with disability

5(2), 6(2)

Refusing to allow alterations to accommodation in respect of disability/impairment

25(2)(d)

Discrimination in respect of carers, assistants, disability aids and/or assistance animals

7–9

49B

Elements of Discrimination

RDA/NT

Act involving distinction, exclusion, restriction or preference that is

302

Based on [racial attribute] which has purpose or effect of nullifying or impairing protected right/ freedom

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EOASA

EOAWA

29, 51, 66, 85A, 85T

29, 51, 66, 85A, 85T

EOAV

DAACT

ADAQ

ADAT

ADANT

Sub-s(1) of ss 7, 8 8, 9, 10, 10A, 35AB, 35A, 35O, 36, 53, 66A, 66V; 67A(a)

8(1)(a)

8, 10

14

20(1)(a) [based on RDA]

Sub-s (2) of ss 8, 9, 10, 10A, 35A, 36, 53; sub-s (3) of ss 35AB, 35O, 66A, 66V; 67A(b)

8(1)(b)

8, 11

15

7, 9

17, 19, 22, 32

20, 33, 40, 45, 55, 56

66(e), 88, 88A

66A(4)

7(3), 54

84

9

85

39

3 (disability) 21 guide dogs

Made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity (continued )

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Table 2

DEFINITIONS OF PROHIBITED CONDUCT (continued )

Issues

RDA

SDA

DDA

ADA

ADANSW

Y (actual only)

Y

Y

Y (actual only)

by reason of

because of

because of

on ground of

8

10

16

4A

Treatment must be less favourable

Y

Y

Y

Y

Comparator required?

Y

Y

Y

Y

Y

Y

Y

Y (actual only)

Treatment (actual or proposed) Reason formulation

9 based on 18C because of

Requirement, condition (or practice) (actual or proposed)

Y (actual only)

B.

Complainant cannot/does not comply

Y

D. Reasonableness

Indirect 304

18

A.

C. Disproportionate impact formulations

Direct

Attribute need only be one of the reasons

Effect of disadvantaging persons with claimant's protected attribute

Y Y

Y

Y Y

Substantially higher proportion of persons without attribute can/do comply

Y

Effect of nullifying/impairing

purpose or effect of nullifying or impairing protected right/ freedom

Not reasonable in the circumstances (complainant must prove)

Y

Reasonableness as a defence (ie onus of proof on respondent)

Y

7B, 7C

6(3), (4)

15(2)

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EOASA

EOAWA

EOAV

DAACT

ADAQ

ADAT

ADANT

Y (actual only)

Y (actual only)

Y

Y

Y

Y (actual only)

Y

Eg 29 because of sex

on ground of

because of

because

on basis of

on the basis of

on the basis of

6(2) substantial reason

5

8(2) substantial reason

4A(2)

10(4) substantial reason

14(3)

20(3)(a)

Y 6(3)

Y

unfavourable

unfavourable

Y

Y

Y

Y

Y

No

No

Y

Y

Y (actual only)

Y (actual only)

Y

Y

Y

Y (actual only)

Y

Y

51 by reason of race

Y Y

Y

Y

Y

Y

Y (higher proportion)

Y

Y

Y

9(2)

Y

8(2)

(continued )

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Table 2

DEFINITIONS OF PROHIBITED CONDUCT (continued )

Issues

RDA

SDA

DDA

28A–28L

35, 37, 39 (disability harassment)

ADA

ADANSW

Other prohibited conduct Sexual harassment

Vilification

18B–18F

Aiding and assisting

17

Requests for information Advertisements

16

Victimisation Vicarious liability

306

18A

22A–22J

Race 20C–20D, transgender 38S–38T, homosexual 49ZT–49ZTA, HIV/AIDS 49ZXB–49ZXC 105

122

56

52

27

30

32

86

44

50

51

94

42

51

50

106

123

57

53

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EOASA

EOAWA

EOAV

DAACT

ADAQ

ADAT

ADANT

87

24–26 (and racial harassment 49A–49D)

92–102

58–64

118–120

17 (most attributes)

22, 20(1)(b) (all attributes)

See Criminal Code Chapter XI: Racist harassment and incitement to racial hatred.

See RRTA (race, religion)

65–67 race, sexuality, HIV/ AIDS*

124A race, religion, sexuality, gender identity

3(2), 19 various attributes

160

105

73

122, 123

21

107

23

124

90

27 26

103

68

182

69

127

20

25

86

67

103–104

68*

129–131

18

23

91

161

109

121A

132–133

104

105

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Table 3 AREAS COVERED Issues

ADA

ADANSW

14(1), 14(2) 15

18

all attributes

Commission agents

15

16

19

all attributes

Contract workers

16

17

20

all attributes

Partnerships

17

18

21

all attributes

19

20

23

all attributes

18

19

22

all attributes

Employment (and independent contractors)

Work

Industrial/registered/trade organisations

RDA

SDA

15(1)

14, 15(3)

Qualifying bodies

DDA

Employment agencies

15(2)

20

21

24

all attributes

Goods and services

13

22

24

28

all attributes except carer resp.

24

28

23

27

Superannuation

14(4)

308

11

Access to premises

11

Accommodation

12

23

25

29

Land

12

24

26

30

Education

9; Sched

21

22

26

25

27

Recreation

Provision or access to facilities

Clubs, associations

Government bodies

Edu

Provision & access

Insurance

Administration of laws and programs

Sport

Local government

22

9; Sched

all attributes except carer resp. all attributes except carer resp. all attributes except carer resp.

28 26

29

31 all attributes except age

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EOASA

EOAWA

EOAV

DAACT

ADAQLD

ADAT

ADANT

all attributes

all attributes

16, 18

10

13, 14–15

22(1)(a)

31

all attributes

all attributes

12

13, 14–15

3, 22(1)(a)

31

all attributes

all attributes

21

13

13, 15A

3, 22(1)(a)

all attributes

all attributes except publication of fines

31

14

13, 16–18

3, 22(1)(a)

all attributes

35

15

13, 19, 20

3, 21(1)(a)

32

all attributes

36

16

13, 21, 22

3, 22(1)(a)

33

17

13, 23

3, 22(1)(a)

34

20

45, 46

22(1)(c)

41

all attributes

all attributes all attributes

all except family resp.

race, disability

some attributes

85ZH

44

all except family resp.

52–57

48

66–71

48

20

22(1)(c)

41

22(1)(d)

38

most attributes

57

19

all attributes

most attributes

52, 53

21

all attributes

some attributes

50

all attributes

all attributes except publication of fines

38

18

37–39

22(1)(b)

29

all attributes

most attributes

64, 65

22

93–95

22(1)(e)

46

some attributes

71 101

22(1)(f)

73

81–83 76, 77

102

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Table 4 EXCEPTIONS Note: exceptions applying to one or two laws only are listed at the end of the table. Issues

RDA

SDA

DDA

ADA

ADANSW

8(1) (special measures to which A4(1) of CERD applies)

7D

45

33 (positive discrimination)

special needs: 21, 49ZYR (‘special needs programs and activities’), 126A

Exceptions

General

Special measures

Pregnancy, childbirth or breastfeeding

31

Indirect discrimination: reasonableness (see Table 2)

7B

35, 25(1A), 25(2A)

6(3), (4)

15

21B, 29A

Unjustifiable hardship/ adjustments not reasonable (disability or impairment)

49D, 49E, 49F, 49G, 49I, 49K 49M, 49N, 49O, 49V, 49W, 49X, 49Y, 49ZA

Acts done under statutory authority

40

47

39 (direct compliance), 40 (taxation law), 41 (pension/ allowance/benefit law)

Acts done to comply with orders of courts and tribunals

40(d)–(e)

47

39(7)–(9) (service of documents)

310

7, 24, 38B, 39, 49B, 49T, 49ZG, 49ZYA

54; 49ZYX (‘matters may be prescribed to be lawful’ – for age)

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EOASA

EOAWA

EOAV

47 (sex) and 85ZK (other grounds – ‘measures intended to achieve equality’); 65 (race), 82 (disability) and 85P (age – ‘projects for the benefit of’)

31 (sex), 35ZD (sexual orientation), 51 (race), 66R (impairment), 66ZP (age -‘measures intended to achieve equality’); 35K (family resp or status – ‘special needs’)

85T(4)(b) (ii), 85Z(3), 85ZE(3),85ZF(3), 85ZH(5), 85ZJ

ADAQLD

ADAT

ADANT

27 (‘measures 12 (‘special intended to achieve measures’), 88 (‘special needs’), equality’) 28 (employment)

104 (‘welfare measures’), 105 (‘equal opportunity measures’)

25 (‘disadvantaged groups and special needs’), 26 (‘equal opportunities’)

57

23(2)(b), 28, 31

86(2), 88(3)(a)

37

104

28

54

29, 51, 66, 85A, 85T

8(2), 9(2), 35AB(3), 35A(2), 35O(3), 36(2), 66A(3), 66V(3), 66ZA

9(2)

8(2)

11

15

84 (disability)

66I(4), 66K(2), 66L(3)(c), 66M(5) (impairment), 66Q(1)(b) (impairment)

23, 34, 46 (‘adjustments not reasonable’)

47 (disability), 51,52 (‘discrimination relating to access to premises’), 54, 55(3)

5 (definition), 35, 36, 44, 51, 92, 100

28 (family resp etc), 48 (disability) (‘access and provision of services’)

58 (‘accommodating special need unreasonable’)

85F(4)

66U (impairment) (‘Regulations’); 66ZS (age), 69

75

30, 25A (Adoption 106 (‘acts done in Act decisions)+K26 compliance with legislation etc’)

24(a) (‘actions required by law’)

26(2), 53 (‘acts done in compliance with legislation &c.’)

24(b)

26(2)

76

DAACT

(continued )

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Table 4

EXCEPTIONS (continued )

Issues Charities

RDA

SDA

DDA

ADA

ADANSW

8(2)

36, 23(3)(c) (accommodation)

49, 25(3) (accommodation)

34

49N(5) (accommodation), 55

35

56, 59A (adoption services)

36

57

Religious bodies

37, 23(3)(b) (accommodation), 23(3A)

Religious educational institutions

38 (employment)

Special categories

Religious beliefs or principles; religious dress or appearance

Voluntary bodies

39

Genuine occupational qualification/ requirement

30

Inherent requirements

14 (race), 31 (sex), 49ZYJ (age)

21A

18(4), 19(3), 20(2), 21(4), 22(2), 24(2)

49D, 49E, 49F, 49G, 49J, 49K, 49V, 49W, 49X, 49Y, 49ZB, 49ZC

18(3)

21

10A, 27A, 38F, 42A, 49G, 49Y, 49ZK, 49ZYE

Work

Special terms if job capacity is restricted by impairment Small partnerships

312

17(2)

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EOASA

EOAWA

EOAV

45 (sex), 64 (race), 80 (disability), 85N (age), 85ZI (other grounds)

21(3)(c), 47(3)(b), 66L(3)(b), 66ZG(3) (c), 70

80

50, 85ZM

21(3)(b), 35Z(3)(b), 82, 83 63(3)(b), 66(1)(b), 66ZG(3)(b), 67I(3) (b), 72

34(3), 85Z(2) (same sex), 85ZE(5)

73

ADAQLD

ADAT

ADANT

86, 91, 103, 110

23

52

32

86, 90, 103, 109

27(1)(a) (gender), 52 (‘participation in religious observance’)

40(4),51

39, 83

33, 46

41 (‘single sex, religion, etc. educational institution’)

27(1)(a) (gender), 51(2) (religion), 51A

30(2), 37A (work)

84

44–46

78, 80, 86, 90

27(1)(a), 42, 51A 43

21(3)(c),47(3)(b), 66L(3)(b), 66ZG(3) (c),71

0

31

0

27 (sex), 50 (race), 66S (impairment), 66ZQ (age)

26; 37 (‘reasonable term of qualification’)

34 (sex), 42 (race), 48 (disability), 57A (age)

25

85ZB(3), 85ZE(5), religious dress or appearance: 85Z(5) (work), 85ZE(4) (education), 85ZN

34(2) (sex), 56(2) (race), 85F(2) (age)

71(2)(a) (disability); 66Q(1)(a) (‘perform work adequately’) 85F(3)(a) (age), 85Z(3)(a)(i) (preg), 85Z(4)(a) (religious dress) (‘perform work adequately’)

49 (disability) (‘work related discrimination’)

66Q(2)

14, 35AF, 35E, 35S, 40, 57, 66E, 66Z

DAACT

35(1)(b)(i)

45(a) (disability) 35(1)(b)(ii)

34

30–32

27(1)(d) (gender), 36(a) (age), 41 (race), 49 (industrial activity), 51(1) (religion)

35(1)(a)

16–18

(continued )

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Table 4

EXCEPTIONS (continued )

Issues Domestic work

RDA

SDA

DDA

ADA

ADANSW

15(5)

14(3)

15(3)

18(3)

25(3), 38C(3), 40(3), 49D(3), 49ZH(3), 49ZYB(3)

Employment of married couple

46

Pay rates

25 (‘youth wages’)

Electoral officer or political work

Discrimination by qualifying bodies

49ZB(2), 49ZYG(3)

Work

Work with children/ vulnerable persons

Exceptions by ‘areas’ Work related exceptions (general)

Education exceptions

314

9(3), 13 by instrumentality of a state18A(2), 18E(2), on ship or aircraft 9(3), 15(4)

13 (state instrumentality employment or actions), 30, 34(1) (accomm), 35 (res. care of children), 38

21A, 21B

18(4), 19(3), 20(2), 21(4), 24(2), 25, 41A

14, 15 16 (on ship or aircraft), 25(1A), 25(2A), 31, 49D(4), 49V(3)–(4), 49ZYI(1)– (2)

21(3), 34(2) (accommodation)

22(3)

26(3)

17(3), 31A, 38K(3), 46A(3), 49(3)–(5), 49ZO(3), 49ZYL(3)–(5)

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EOASA

EOAWA

EOAV

DAACT

ADAQLD

11(3), 13(2), 35AC(3), 35D(2), 35P(3), 35R(2), 37(3), 54(4), 66B(3), 66D(2), 66W(3), 66Y(2)

24

24

26 (‘residential domestic services’)

35 (‘…of couple’)

31 (‘workers are to be married couple’)

28A (‘youth wages’)

57B (‘youth wages’)

33 (‘youth wages’)

27, 74 (political belief or activity) (‘local government’)

45 (‘political workers etc’)

37

50 (disability)

29 (sex) 79 (disability), 85F(4)(b) 66(2) (political conv)

73(2) (disability), 85H(2)–(3) (age)

ADAT

ADANT 35(2)

36(b) (‘wage rates that are based on age’) 53 (‘exceptions relating to political belief, affiliation or activity’)

28 (lawful sexual activity or gender identity) (‘work with children’)

50 (irrelevant criminal record in education training or care)

37 (irrelevant criminal record) (‘vulnerable persons’)

56, 71, 85F, 85Z, 85ZE(3)–(5), 85ZL (identity of spouse or domestic partner to preseve confidentiality')

27, 35L, 35M (family resp or status to avoid collusion), 66ZM

23–29

34–35 (sex), 42 (race), 44–45 (relig/pol), 48–49 (disability), 57A–57C (age), 57N (profession, trade, occ or calling)

24–36

27(1)(c)–(d) (gender), 36 (age), 41 (race), 45 (disability), 49 (industrial activity), 51 (religion), 53 (political belief)

35–37A

37(3) (sex), 85I(3) (age)

18(3), 32(2), 35I, 44(3), 61(3), 66(1) (a), 66I(3)–(4), 66ZD(4)

39, 41–43, 61

33, 36 (‘educational institutions for members of one sex’), 46, 51 (disability), 57E (‘minimum-age admissions’)

40–44, 86, 89

27(1)(b) (gender), 37 (age), 37A, 46 (disability), 50 (irrelevant criminal record), 51A

30, 40(2)–(2B)

(continued )

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Table 4

EXCEPTIONS (continued )

Issues

Exceptions by ‘areas’

Accommodation exceptions

RDA

SDA

DDA

ADA

ADANSW

12(3)

23(3), 28H(2), 34

25(3)

29(3)

20(3) (race), 22G(2) (sexual harassment), 34(3) (sex), 38N(3) (trans), 48(3) (marital or domestic status), 49N(3), 49N(3)–(6), 49ZQ(3), 49ZYO(3), 59 (nursing homes)

36(1)(b) (provision of services to members of voluntary bodies)

33(2) (sex), 49M(2) (disability), 49ZYN(2)– (3)

30(2)

49ZYN(3)

Accommodation provided for employees or students

34

Provision of goods and services exceptions

32

Disposal of land by will or gift

24(2)

26(2)

Clubs exceptions

25(3), 25(4)

27(4)

20A(3) (race), 34A(3) (sex), 34A(4) (sex), 49O(3) (disability), 49ZYP(3) (age)

Sport exceptions

42

28(3)

22 (nationality), 38 (sex), 38P (trans), 49R (disability), 49ZYW (age)

Requests for information exceptions

27(2), 43A

30(3), 54A (assistance animals)

106(2)

123(2) (4)

Vicarious liability exceptions

316

18A(2) (discrimination), 18E(2) (racial vil)

57(2) (4)

53(3)

Appendix

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EOASA

EOAWA

EOAV

DAACT

ADAQLD

40(3)–(4), 62(2)(a), 77(2)(a), 85ZH(4)– (5), 35Z(3), 88A (assitance animal)

21(3), 32, 35AM(3), 35L, 47(3), 63(3), 66L(3), 66ZG(3), 67I, 74 (nursing homes)

50(2), 58–62

26, 54 (disability)

27(1)(e) 30 (‘single sex (gender) (shared accommodation’), accom) 86–92, 103, 106C (‘accommodation for use in connection with work as sex worker’)

40

32 (sex), 35L (family 61 resp or status)

39

86, 88–89

27(1)(c) (gender) (‘residential care of persons under the age of 18 years’)

40(2)–(2B)

35(2) (for members of one sex), 39(2) (sex), 76(2)–(3) (disability), 85G(4) (b) (age), 85K(3)

22(4), 30 (for 46–49 members of one sex), 66J(2)(accessibility)

38 (for members of one sex), 53 (disability)

45A, 47–51

41(2), 42–45 27(1)(f) (gender) (‘provision or use of facilities’)

60(2) (race), 75(2) (disability), 85ZF(3) (sex), 85O (age)

21A(2) (sex), 35AN(2) (gender history), 35ZA(2) (sexual orientation), 47A(2) (race), 66ZH(2) (age)

51

35(2)–(2b) (sex), 57(2) (race), 85G(2)–(4) (age), 85ZB(2)–(3) (‘associations’)

22(3)–(4), 66M(3), 66M(5), 66ZI(3)

66–69

40 (sex), 43 (race), 55 (disability), 57L (clubs)

96–100

27(2), 27(3) (gender), 32 (age), 40 (race)

47

48 (sex), 81 (disability), 85Q (age)

35 (sex), 35AP(2) (gender history), 66N(3), 66ZJ(3)–(4)

72

41 (sex), 57 (disability), 57M (sport)

103,111

29 (gender), 31 (age), 43 (disability)

56

23(2)

108

161(2)

110

91(3)

ADAT

ADANT

78, 79

26(2)–(3)

121A(3)

133(2)

104(2)

105(2)

(continued )

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Table 4

EXCEPTIONS (continued )

Personal

Commerce/income

Issues

RDA

SDA

DDA

ADA

ADANSW

Insurance

41

46

37

37 (sex), 49Q (disability), 49ZYT (age)

Superannuation, pensions and allowances

14(4), (5), 41A, 41B

46, 51

37, 38, 41

36 (sex), 38Q (trans), 49 (marital), 49Q (disability), 49ZYS (age)

Benefits and concessions

49ZYL(5) (education), 49ZYN(2) (age)

Credit applications Residential care of children

35

Domestic accommodation

22(3)(a), 22H(2)

Health, public health, assistance animals

37

49ZYU (age)

25(3)(a),

29(3)

22G(2), 20(3), 34(3) (sex), 38N(3), 48(3), 49N(3), 49V(3), 49ZQ(3), 49ZYO(3)

48 (infectious disease), 54A (assistance animal), 7(3), 8(3)+E47

42

49P (disability) (‘public health’) 49PA, (disability, drug addiction)

Health

Health and safety

49ZYQ

Safety procedures/ considerations

49ZYV (age)

Other

Legal incapacity

318

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EOASA

EOAWA

EOAV

DAACT

ADAQLD

ADAT

ADANT

49 (sex), 85 (disability), 85R (age)

34 (sex), 66T (impairment), 66ZR (age)

47

28

72–75

30 (gender), 34 (age), 44 (disability)

49

78(2) (disability)

35AR (gender history), 66P (impairment), 66ZL (age)

77, 78, 79

29

58–65

30 (gender), 33 (age), 44 (disability)

49

87

57H

49

38

44

25

27

27(1)(c)

26

86, 87

86 (‘protection of health, safety and property’)

56 (disability) (‘public health’)

103, 107 (‘public health’)

85G(3) (age), 85K(3) 35I(3) (family (age) responsibility/ status), 66ZE(2) (age), 66ZF(2)(a), 66ZG(3)(d), 66ZI(3)

48 33 (sex)

40(3), 62(2)(a), 77(2)(a), 85L(5)(b), 85ZH(4)

25 (‘care of children’), 49 (‘supervision of children’)

21(3)(a), 35AM(3), 59 35Z(3)(a), 63(3)(a), 66L(3)(a), 66ZG(3) (a), 67I(3)(a)

79A (‘infectious disease’)

85F(3) (age), 85H(3) (age), 85Z(4), 85ZE(3)–(4), 85ZL

66ZM (age)

86

57C (employment and work), 57J (goods, services and facilities)

103, 108 (‘workplace health and safety’)

85M (age) (‘legal capacity and welfare of children’)

66ZO (age) (‘contracts with minors’)

85 (‘legal incapacity and age of majority’)

57G

103, 112

71(2) (disability), 73(2), 85F(3) (age), 85Z(3)(a)(ii) (preg), 85Z(4)(b) (religious dress)

66ZM (age)

86 (‘protection of health, safety and property’)

40(1)

47 (disability, infectious disease, public health)

55 (‘public health’)

54

50

(continued )

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Table 4

EXCEPTIONS (continued )

Issues

RDA

SDA

DDA

ADA

ADANSW

Retirement

49ZX (exempted officials)

Recreational tours and accommodation

49ZYN(2)(b) (age)

Sites of cultural or religious significance Children Migration/ citizenship

Other

Public act (for viification)

52

43

18D, 18E(2) (racial vil)

Temporary exemptions

20C (racial), 38S (trans), 49ZT (homosexual), 49ZXB (HIV/AIDS) 44

55

44

126, 126A

Exceptions that appear in only one or two Acts: Commonwealth Acts: SDA: Combat duties (43) DDA: Combat duties/peacekeeping (53, 54, 7(3)); Disability Standards (33, 34) ADA: Cth employment programs (41A); Taxation laws (40) State and Territory Acts NSW: Employment intended to provide training in skills to be exercised outside State (15, race); SA: Employment for purposes not connected with business carried on by employer SA: 56(1) (race), 71(1) (disability), 85F (age), 85Z(1) (other grounds) NT: Standard age for commencement of work (36).

320

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EOASA

EOAWA

EOAV

66ZN (voluntary retirement and exempted officials)

29 (early retirement scheme)

66ZF(2)(b)

88(3)(b) (age)

DAACT

52

135

ADAT

ADANT

32 (for partners), 103, 106A (exempted officials)

35

36

48 (goods and services), 79, 80 (disposition of land)

42 (‘cultural and religious places’)

43

50

39 (age)

45

57K (age)

49 (‘supervision of children’)

92

ADAQLD

103, 106B RRTA 11, 12

66(2) (vilification) 124A(2)

20(2) (publishing/ displaying), 55

89

109

56

113

59

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Table 5

PROCEDURE

Issues

AHRC Act (RDA, SDA, DDA, ADA)

ADANSW

EOASA

EOAWA

2 step (direct access s 10 RDA)

2 step

2 step

2 step

AHRC 46P(1), 46PD

ADB

EO Commissioner

EO Commissioner

Time limit for lodging a 12 months 46PH(1)(b) 12 months 89B(2)(b) complaint

12 months 93(2)

12 months 83(4), (5)

Who can complain?

46P(2), (3)

87A(1)

93(1)

83(1)–(2)

Complaint in writing

46P(1)

89(1)

93(1c)

83(1)

Other complaint requirements

46PD

89(2), 89A

93, 93AA

83(4)

Representative complaints

46P(2)(c), 46PB, 46PC

87A(1)(b)–(d), (2), 87B, 87C, 88C

93(1)(c),(1a), (1b)

83(1)(a), 83(3), 114–117

Accepting/rejecting complaints

46PH

89B

95A(1)

83(5), 89(1)

Complaint amendment

46PA, 46PF(3)–(4)

91C, 103

116

Complaint withdrawal

46PG

92B

83A(1)

Agency assistance to the complainant

46P(4), 46PT (discretion), 46PU (request to AttorneyGeneral for legal aid)

88A (discretion)

95C (discretion)

85 (discretion), 93(2)(a), 93(2)(b) (discretion), 93A (discretion)

Representation during conciliation

46PK(5)–(7)

91B

95(6)

88(4), 92

Process (two-step or direct access to tribunal) Complaints To whom

Agency process

322

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EOAV

HRAACT

ADAQLD

ADAT

ADANT

Direct access s 122

2 step

2 step

2 step

2 step

VEOHRC

HR Commission

ADC

AD Commissioner

AD Commissioner

12 months 116(a) 2 years 78(1)(a) (to Cssn), 12 months Victorian Civil and Administrative Tribunal Act 1998 Schedule 1 Part 7 s18 (to VCAT)

1 year 138

12 months 63

12 months 65

113, 114, 123, 124

Human Rights Commission Act 2005 (ACT) (HRCA) 43, 48

134

60

60

44

136(a)

62(1)(a)

64(1)(a)

46

135, 136, 138

62

64, 65

113(2)–(3), 114, 123, 124

43(1)(b)–(e), 43(3)– (5), 71

134(1)(b)–(c), 134(3)–(5), 146–152, 171, 194, 195, 196

60, 60A, 82, 83

116

45

138–141

60(3), 63(2), 64, 67

148, 149, 178, 196, 197

65A, 84

118 (withdrawal from dispute resolution)

78(1)(d)

170, 193

68, 98A

119

44(2), 71A(4)

186 (Tribunal discretion)

62(2) (discretion)

57(3)

163

75(3)–(4)

66–68

71

62

(continued )

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Table 5

PROCEDURE (continued ) AHRC Act (RDA, SDA, DDA, ADA)

ADANSW

EOASA

EOAWA

Power to direct attendance at conciliation

46PJ(4)

91A(2)

95(3)

87

Procedure at conciliation

46PK

95(5)

88

Confidentiality in conciliation and/or proceedings

49 (general obligation), 46PK(2) (held in private)

Issues

88(2) (held in private), 93(3) (evidence not admissible), 122

Complaint investigation 46PF, 46PI

90, 90B

93A, 94

84, 85, 86, 107(3)

Complaint termination

92, 92A

95A(1)

89(1)

113

95C (discretion)

113

46PH

Agency role in enforcement Tribunal process

324

Which tribunal or court

Federal Circuit Court or NCAT Federal Court

Equal Opportunity Tribunal

State Administrative Tribunal

Time limit to lodge/ require referral to tribunal after notice of non-conciliation

60 days after 46PH(2) notice – 46PO(2)

within 21 days – 93A or within 18 months of date of complaint 93B, or by President any time 93C

within 3 months of being notified of Commissioner’s decision – 95B(c)

within 21 days after receipt of s 89 notice – 90(1)

Requirements for lodging Tribunal/Court proceedings

46PO (application)

90B(5), 93A–93C (referral), 94A

95B, 95D (referral)

90, 93, 107(1) (referral)

Tribunal/Court Procedure

46PR (See also Federal Court Rules 2011 (Cth), Federal Circuit Court Rules 2001 (Cth))

23 Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) 38

115, State Administrative Tribunal Act 2004 (WA) (SATA) 32

Appendix

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EOAV

HRAACT

ADAQLD

ADAT

ADANT

no – 112(d)

59

159

75(1)

79

112, 115, 116, 118

55, 57, 58, 60, 61

160–162

74

81

117 (evidence of dispute resolution not admissible), 136–137 (discretion to preserve anonymity and limit publication of evidence provided)

99, 100A

145 (discretion to preserve anonymity), 161 (held in private), 164AA

75(5) (held in private), 77 (evidence of conciliation not admissible), 88 (discretion to limit publication of evidence or information)

79(3) (held in private), 82 (evidence of conciliation not admissible), 100 (discretion to preserve anonymity), 108 (general duty of confidentiality)

127, 129, 130, 132

14(1)(e), 69, 73, 74

154A–157, 235(b)

60(2), 69–71, 75A, 97

83–85

115, 118

45(2), 78, 80, 88

168, 168A, 169

64(1)

66, 66E, 67, 68, 80

intervener 159, amicus curiae 160

90

VCAT

ACAT

QCAT

Anti-Discrimination Tribunal

NTCAT

within 12 months of contravention allegedly occurring – VCAT Act Schedule 1 Part 7 s18

within 60 days after s 82(1) statement is given – 53A(1)(b)

within 28 days of being notified, 166(1); either party can request if Commissioner has not finished 6 months after notice of acceptance 167

Commissioner to refer within 28 days after notice of decision to reject 65(3) or dismiss 71(4); within 6 months after notice of acceptance 78(2)

request evaluation by Commissioner within 21 days 81(4), and request referral within 21 days after notice if Commissioner decides not to refer – 86(1), (4)

164A, 166, 167 (referral)

78 (referral)

86(1), (3) (referral), 86(4) (application), 87A

80, 81, 85–87, 96

90, 91

122–124 (application) 53A (referral), 53B (See also Victorian Civil (application), 53C and Administrative Tribunal Rules 2008 (Vic) 7.09) VCAT Act 97, 98, 100, Schedule 1 Part 7

ACT Civil and 175–189, 204–208 Administrative Tribunal Procedure Rules 2009 (No. 2)

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Table 5

PROCEDURE (continued )

Issues

AHRC Act (RDA, SDA, DDA, ADA)

ADANSW

EOASA

EOAWA

Interim orders

46PO(6), 46PP

105

96(2)

126

Costs rules applicable

See Federal Court Rules 60 NCAT Act 2011 (Cth), Federal Circuit Court Rules 2001 (Cth)

26

See SATA Part 2 – Division 6

Remedies

46PO

108

96

127

NCAT Appeal Panel – s80 NCAT Act

Supreme Court – 98(1) Supreme Court or Court of Appeal 134 (See also SATA 105)

Appeal Appeals against The next highest court Tribunal/Court decision in judicial hierarchy (See Federal Court of Australia Act 1976 (Cth) 24, 25(1A), 27)

326

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EOAV

HRAACT

121, 137

ACT Civil and 144 Administrative Tribunal Act 2008 (ACAT Act) 53

VCAT Act 109

ACAT Act 58

Queensland Civil and 84(2), 86A, 95, 99A Administrative Tribunal Act 2009 (Qld) (QCAT Act) 100

80(2) (conciliation), NTCAT Act 2014, 131–134

125, VCAT Act 124 (declaration), VCAT Act 130 (any other order)

53E, ACAT Act 56 (any other order)

209, QCAT Act 60 89, 91, 92 (declaration), QCAT Act 114 (any other order)

88, 89, NTCAT Act, 64 (any other order)

QCAT Appeal Tribunal (QCAT Act 142)

Supreme Court – 106

Supreme Court or Court ACAT Appeal Tribunal of Appeal (VCAT Act (ACAT Act 79) 148)

ADAQLD

ADAT

ADANT

98

101

Supreme Court – 100

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

INDEX Aboriginal heritage protection 257 Aboriginal peoples. See Indigenous peoples Aboriginal rights movement 34 accessory liability 137–8 ACT bill of rights format and provisions 62–3 human rights scrutiny of laws 261 limitations on rights 260 obligations on public authorities and government agencies 263–4 rights protected 258–60 statutory interpretation compatible with human rights 261 ACT Human Rights Commissioner 262, 263 ACT Supreme Court 264 action plans to address disability discrimination 130–1 adjudication access to legal representation 193–4 applications to courts or tribunals 188–90 complaint lodgement criteria 188–9 controlling access to 190 costs and risks of litigation 196–9 interim orders 190 interlocutory proceedings 190 mediation process 190–1 procedure 191 proof 191–3 remedies 194–6 respondents 189 rules of evidence 191 adverse actions. See employment-related adverse actions adverse effect 53

adverse treatment 53 advertising prohibition 138–9 affirmative action five models of. See also positive action 205 age discrimination attributes 100–1 aggravated damages 58, 195 all reasonable steps defence 167–9 American civil rights movement 33–4 anti-classification approach to discrimination 78 anti-discrimination agencies conciliation process 185–6 confidentiality of conciliation 186–7 educational and guidance materials 288 participation in legal proceedings 193–4 powers 184–5, 288, 289–94 role 183–6 anti-discrimination laws amendment and reform 45–6, 279 approach 15, 280–1 areas covered 308–11 consolidation 45, 278–9 constitutional context 38–9 design 48–51 development in Australia 13, 36–7 drafting of 281 effectiveness 276–7 federal. See Commonwealth anti-discrimination laws goal 272, 284 harmonisation 37, 45 impact on discrimination 272 individual rights approach 272 location in legislative hierarchy 56 major statutes in Australia 51 merits 58–9

objective 12 objects and attributes 296–300 reviews of 277 role 26–7 state and territory. See state and territory antidiscrimination laws weaknesses 272, 274 anti-subordination approach to discrimination 78 appeals 199 Aristotle 16 asymmetrical approach to attribute definition 76–8 Attorney-General’s Department 277 attribute categories age or age group 100–1 criminal records 102 disability 98–100 employment discrimination 231–2 family/carer responsibilities 94–5 gender identity 98 industrial or employment association or activity 101–2 marital status 95 medical records 102 political beliefs 101 pregnancy 93–4 presumed and past associations 83 race and related attributes 86–90 relationship status 95 religious beliefs and activities 101 sex and gender-related 92 sex and related attributes 90–1 sexual orientation 95–8 social origin 102 attributes additions to 45, 69 adoption of 45, 71–3 characteristics and manifestations 81–3

328

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comparison of antidiscrimination laws 296–300 connection with discrimination 52 definition, symmetrical or asymmetrical 76–8 establishment of existence of 52 formulating and conceptualising 70–1 interpretation by court 83–4 multiple and intersectional attributes 84–5 principled basis for protection 73–5 protected attributes as elements 52–3 structure and variation across legislation 68–70 terminiology 78–9 width of protection 79–84 Australian Bill of Rights Bill 1984 (Cth) 251 Australian Human Rights Commission (AHRC) 36–7, 61, 70, 275, 288 Australian Law Reform Commission 277 Australian Public Service Employment Principles 224 balance of probabilities 36, 117–18, 191, 192, 193, 237, 283 Barclay test 239, 241, 244 bills of rights attempts to adopt in Australia 38, 251, 255–6, 278 constitutional. See constitutional bills of rights in Australian states and territories 62–3, 256 in Canada 253–4, 255, in UK 252–3, 255 in US 253, 254 proposals for 39 protection of equality 250–1 statutory. See statutory bills of rights Braithwaite, John 291

Briginshaw principle 192 burden of proof adjudication and 191–3 employment-related adverse actions 60 shift onto respondent 117 shifting mechanism to assist rights holders 285–7 work-related adverse actions 236–41 Canada bills of rights 253–4 constitutional bill of rights 255 statutory bill of rights 255 capabilities theory 19 causation in tort law 115 chararacteristics provisions 81–3 civil law actions 50 civil regime 50 civil wrongs 50, 56 codes of practice 287–9 Commissioner for Community Relations 36 common law contract law 145 fundamental rights protection 38, 62, 252 lack of principle against unfair discrimination 26, 30, 38, 48 preservation of status quo 276 principle of parliamentary supremacy 252 relationship to antidiscrimination law 145 role of courts 274 sexual harassment, treatment of 166 statutory requirements and 195 torts 50, 166 vicarious liability in 166 Commonwealth antidiscrimination laws conflict with other state laws 42–3 conflicts with state antidiscrimination laws 40–2

consolidation 45, 278–9 enforcement 43–4 harmonisation 45 Commonwealth laws complaints against 257 conflicts with state antidiscrimination laws 42 lack of barrier to discriminatory laws 256–7 regulation of conflict with state laws 40 Commonwealth powers 38 adoption of antidiscrimination laws 39–40 corporations power 39, 231 express powers 38 external affairs power 36, 39 immigration power 39 limits of 43–5 race power 39, 257 compliance codes of practice or guidelines 287–9 identifying barriers to 275 conciliation as compulsory step 57 confidentiality of 186–7 failure to reach settlement 187 process 185–6 rationale for 176 settlement of claim 187–8 constitutional bills of rights compared to statutory bills of rights 254–5 features 252 in Canada 253, 255 in US 253, 254 contract law anti-discrimination law and 145 corporations power of Commonwealth 39, 231 costs default costs rule 57, 289 legal advice and representation 57, 182 risks of litigation 196–9 Council of Europe 253 court civil procedure 191

Index 329

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

courts applications to 188–90 role under common law 274 statutory interpretation 261–3, 281 criminal offences 49, 56 criminal record discrimination 102 critical race theory 86 Crown, the application of antidiscrimination law to 44, 144 damages 25, 196 punitive damages 58 default costs rule 57, 289 defences all reasonable steps defence 167–9 compliance with other laws or statutory authority 157 impact of unified definition of discrimination 282–4 justification 118–19, 282–3 reasonableness 54, 156, 282 religious beliefs 157–9 special measures 156, 214–18 unjustifiable hardship 160–1, 282 deficit model of disability 127 Department of Finance and Deregulation 277 difference, dilemma of 21 direct discrimination by reason of an attribute 114–18 causation 114 disadvantages of 25 distinguished from indirect discrimination 281 formal equality and 24 general nature of 105–7 legal definitions 24, 53, 108–9 limitations of 24 nature of 14, 22, 24 overlap with indirect discrimination 282 prohibition of different treatment 105

remedies 25 scope 24 treated less favourably than comparator 109–14 disability deficit model 127 social model 99, 127 disability action plans 130–1 disability discrimination attributes 98–100 education provision and 151–2 disability harassment 134 disability standards 129–30 disadvantaged groups 71 discrimination concept of 22 constitutional concept of 44–5 direct. See direct discrimination dual conception 105–7 indirect. See indirect discrimination law’s role in eliminating 26–7 legal definitions 36, 46, 259, 302–6 reasonable adjustments 125–9 scope of prohibition on 143–4 systemic discrimination 23 unified definition 281–4 discriminatory conduct continuum of 106 discriminatory laws lack of legal barriers in Australia 256–7 nullifying 170–2 validity of 62 disparate impact 23, 34, 37, 76, 106, 118, 147 disparate impact test 26, 119, 125 disparate treatment 34, 37 dispute resolution processes adjudication. See adjudication conciliation. See conciliation general protections actions 245–6 mediation 57 drafting of legislation 281 duty bearers 144

commitment and capacity of 273–4 obligation to provide reasonable adjustments 284–5 education provision prohibitions relating to 151–2 educational and guidance materials 287–9 egalitarianism 10 elements 51 exceptions 55–6 prohibitions 55 protected attributes 52–3 types of discrimination 53–5 employee general protections 229–30 attributes under FWA 231–2 coverage of employees by FWA 231 enforcement 244–6 exceptions under FWA 241–3 employee general protections actions bringing 244–5 dispute resolution processes 245–6 sanctions 246 employment discrimination awards and agreements 246–7 exceptions 161–3 pay inequality 149 prohibition of 230 unlawful termination provisions 230, 231, 243 employment entitlements 102 employment prohibitions 145–8 any other detriment prohibition 150–1 dismissal 149–50 recruitment and selection process 148 terms, conditions and benefits 148–9 employment rights 62

330 Index

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

employment-related adverse actions 59–61 definition in FWA 234–6 prohibition 232–4 proving the reason for conduct 236–41 enforcement process access to legal advice 181 barriers to 289 choosing appropriate avenue to pursue claim 180–3 Commonwealth antidiscrimination laws 43–4 comparison of statutes 296–328 complaint lodgement 178–9 effectiveness of current model 45, 279–80 evaluation of 199–200 expanding sanctions and public enforcement powers 289–94 impact of lack of public enforcement 177–8 issues 174, 175 legal costs 182 options 50 reliance on individual claims 56–8, 272 speed of processes 182 substantive factors 181 time limits 179 two-step process 175–7 work-related claims 60, 244–6 enterprise agreements 229, 246–7 equal and effective protection against discrimination 259 equal employment opportunity (EEO) programs 223 equal opportunity at work positive duty laws 219–23 Equal Opportunity Briefing Policies 270 equal protection of the law 22, 259 equality application in law 14–15 as fundamental value 10–13 concept of 14, 16–22, 272 formal. See formal equality

law’s role in fostering 273–8 role of constitutional provisions 251 substantive. See substantive equality equality before the law 21–2, 259 Equality Commission for Northern Ireland 267 equality in law 22, 48 equality laws goal of 272 equality of opportunity 17–18 equality rights 250, 259 protection under human rights law 63 ethnicity as protected attribute 88 European Court of Human Rights (ECHR) 253 European Court of Justice (ECJ) 253 exceptions as products of power relations within jurisdictions 164 comparison of statutes 311–22 compliance with other laws or statutory authority 157 operation of 155–6 rationales for 163 reasonableness 156 religious beliefs 157–9 special measures 156 temporary exceptions 164–5 to prohibitions 55–6 under Fair Work Act 241–3 unjustifiable hardship 160–1 variation between laws 163 work exceptions 161–3 external affairs power 36 extraterritoriality 44 Fair Work Commission (FWC) 229, 244, 245–6, 290 Fair Work Ombudsman (FWO) 60, 183, 229, 244, 245, 290, 291, 293 family/carer responsibilities and status 94–5 Federal Circuit Court of Australia (FCCA) 44, 176, 182, 229

Federal Court of Australia (FCA) 44, 176, 182, 229 Federal Magistrates Court 44 Fineman, Martha 75 formal equality definition of attributes 77 direct discrimination and 24 equality of opportunity and 18 focus of 105 limitations 17 nature of 16–17 Fraser, Nancy 19 Fredman, Sandra 19, 20, 75, 266, 268, 272 freedom of association 101, 163, 230 freedom of expression 135 freedom of religion 157, 158 freedom of speech 46, 55 Gardner Review 278 gender equality indicators 221 gender identity 98 general damages 195 goods and services provision 152–4 government agencies observance of protected human rights 263–4 grounds versus attributes 78–9 guidance materials 287–9 harassment 54 conduct 131–4 exceptions 155 prohibitions 154–5 harmonisation of antidiscrimination laws federal laws 45 national harmonisation 37 hate speech 55, 135 hearings 57 heterosexual privilege 75 High Court of Australia approach to discrimination 45 on interpretive obligation of Victorian Charter 262–3 homosexual vilification 96

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

Human Rights and AntiDiscrimination Bill (HRAD Bill) 85, 278–9, 281, 285 Human Rights and Equal Opportunity Commission (HREOC) 277 Human Rights Bill 1973 (Cth) 251 human rights legislation 61–3 human rights protection against government infringement of rights 250 common law and 38 constitutional protection 38 constitutional protection in Australia 255–6

inequality dynamic nature 272 in Australian society 10–12 information request prohibitions 139–40 interim orders 190 interlocutory proceedings 190 international human rights law place of equality in 12–13 International Labour Organisation (ILO) 30–1, 228 intersectional discrimination 84–5, 90 intersex status 91–2

immigration power of Commonwealth 39 Indigenous enterprises Commonwealth contracts 270 Indigenous peoples constitutional recognition 251 land rights 42, 61, 215 native title rights 43, 61, 171, 257 Northern Territory Intervention 257 protection as a ‘race’ 87–8 indirect discrimination condition or requirement 119–20 disproportionate impact/ effect of disadvantaging 120–1 distinguished from direct discrimination 281 general nature of 105–7 inability to comply 121–2 justification defence 118–19 legal definition 53, 118–19 nature of 23, 25–6 overlap with direct discrimination 282 prohibition of 53–4 provisions 105 reasonableness 122–5 individual rights approach to discrimination 272 industrial or employment association or activities 101–2

jurisdiction claims against the Commonwealth 44 justification defence 118–19, 282–3 justification test 119, 283 knowledge of wrongdoing 84 labour law change in constitutional basis 228 collective system 228 focus 145, 227 inspectorate 60 non-discrimination principles 228–30 role 2 shifting of burden of proof onto employer 60 law reform process 37 law-making by parliaments human rights scrutiny of bills 261 League of Nations 30 legal advice access to 181 legal costs 182 legal frameworks designing 48–51 legal representation 57 legal system resistance to legal change 276–7 legitimate and proportionate test 123

liability accessory liability 137–8 all reasonable steps defence 167–9 personal liability 165–6 vicarious liability 144, 166–7 liberalism 15 liberty 15 limitations on rights 260 male privilege 75 marital status discrimination 43, 72, 83, 95 McIntosh, Peggy 75 mediation 57, 177, 185, 190, 190–1 medical record discrimination 102 Mill, John Stuart 15 Minow, Martha 21 modern awards 246–7 motive irrelevance of 84, 115 multiple discrimination 84–5, 90 National Association for the Advancement of Coloured People 33 National Employment Standards 229 National Human Rights Consultation 261, 278 national origin discrimination 89 native title rights 43, 61, 171, 257 neo-liberalism 15 Northern Ireland first statutory equality duty 267 Northern Territory Intervention 257 NSW Law Reform Commission 277 object definitions comparison of antidiscrimination laws 296–300 one-way costs orders 198 Oppenheimer, David 204 orders 195 interim orders 190

332 Index

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

Parliamentary Joint Committee on Human Rights 261 parliamentary supremacy 252 personal liability 165–6 political opinion discrimination 242 positive action 56 challenges to, and justifications for 212–14 controversial aspects 205–6 definition 204 exceptions allowing 207–9 forms 205 quotas 204, 206, 212–14 rationales for 206 special measures defence 214–18 special measures tests 209–12 positive duties 61 effectiveness 266 equal opportunity 219–23 forms 267–8 general equality duty 267 general public sector equality duty 267 imposition of 218–19 nature of 266–7 prescription of substantive outcomes 218–19 procedural duties 219, 267 public service duties 223–4 reasonable adjustments 268 substantive duties 267 pregnancy discrimination 80–1, 93–4 principle of legality 252 privilege 75 procurement 268–70 Productivity Commission 277 prohibition of discrimination 55 elements 51 prohibition on discrimination scope 143–4 proportionality 16 protective costs orders 198 public authorities observance of protected human rights 263–4 public enforcement powers 289–94 punitive damages 58

race concept of 86–7 definition of 87 ethnicity, cultural identity and religion 88–9 in anti-discrimination law 87 race power of Commonwealth 39, 257 racial discrimination law distinctive features of Racial Discrimination Act 169–72 intention of 87 race, definition of 87 racial vilification 135–7 reasonable adjustments 125–9, 268, 284–5 reasonableness defence 54, 156, 282 reasonableness test for unified definition of discrimination 282 indirect discrimination 122–5 recognition and equality before the law 258 reflexive regulation 276 regulation reflexive regulation 276 responsive regulation 291–4 regulatory agencies 50 regulatory design failures and innovations 275–6 relationship status discrimination 95 religious attire 89 religious belief exception 157–9 religious discrimination 88, 243 attributes 101 religious vilification 137 remedies aggravated damages 58 compensatory nature 58 damages 25, 196 direct discrimination 25 expanding 289–94 granted by courts and tribunals 194–6 individual focus 174 orders 195

responsible government 252 responsive regulation 291–4 reverse discrimination 206 right to have rights 259 rule of equality 272 rule of law 21–2, 259, 272 rules of evidence 191 sanctions 50 expanding 289–94 work-related general protections contraventions 246 Scrutiny of Acts and Regulations Committee 278 Senate Legal and Constitutional Committee 279 separation of powers enforcement of federal laws and 43–4 sex-related attributes 90–1 controversial nature of 92 family responsibilities 94–5 gender identity 98 intersex status 91–2 marital/relationship status 95 pregnancy discrimination 93–4 sexual orientation 95–8 sexual harassment 134, 135, 138 Sexual Harassment Code of Practice (Harassment Code) 288 sexual orientation discrimination 95–8 sexual vilification 137 social model of disability 99, 127 social movements and social change in Australia 34–5 social origin discrimination 102 social welfare law 2 special damages 195 special measures 56, 77, 156, 257 special measures defence 214–18 special measures tests 209–12, 215, 257

Index 333

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Cambridge University Press 978-1-107-43225-3 — Equality and Discrimination Law in Australia: An Introduction Beth Gaze , Belinda Smith Index More Information

standard of proof 117–18 state and territory antidiscrimination laws conflict with federal antidiscrimination laws 40–2 conflict with other federal laws 42 state and territory laws conflict with Commonwealth anti-discrimination laws 43 human rights legislation 251 Statements of Compatibility 261 statutory bills of rights compared to constitutional bills of rights 254–5 in Australia 256, 257–8 in Australian Capital Territory. See ACT bill of rights in Canada 253, 255 in UK 252–3, 255 in Victoria. See Victorian Charter of Human Rights and Responsibilities statutory human rights protections limits of 264–6 statutory interpretation consistency with rights protected 261–3 literal and narrow approaches 281 statutory torts 56 substantive equality as public policy goal 273 definition of attributes 77 focus of 105 law’s role in fostering 273–8 nature of 18–21 participative dimension 20 promotion of 124, 272 recognition dimension 19–20

redistributive dimension 19 transformative dimension 20 symmetrical approach to attribute definition 76–8 systemic discrimination 23 Tasmanian Anti-Discrimination Tribunal 44 taxation law 2 temporary exceptions 164–5 Teubner, Gunther 276 torts 50 Treaty of Versailles 30, 31 tribunals applications to 188–90 UK statutory bill of rights 252–3, 255 uniform national laws 278 United Nations non-discrimination and 30–3 unjustifiable hardship defence 113, 126, 130, 160–1, 282 unlawful termination provisions 243 US civil rights movement 33–4 constitutional bill of rights 253, 254 vicarious liability 144, 166–7 all reasonable steps defence 167–9 victimisation 55 victimisation provisions 140–1 Victorian Charter of Human Rights and Responsibilities actions to protect rights 264–6 format and provisions 62–3 human rights scrutiny of laws 261 limitations on rights 260

obligations on public authorities and government agencies 263–4 rights protected 258–60 statutory interpretation consistent with rights protected 261–3 Victorian Civil and Administrative Tribunal (VCAT) 262, 264, 265 Victorian Equal Opportunity and Human Rights Commission (VEOHRC) 262, 265, 268, 293 Victorian Supreme Court 262, 265 vilification 134–7 Westminster system of government 252 white privilege 75 whiteness studies 75 Whitlam Labor government 36, 39 women’s liberation 34 work adverse actions. See employment-related adverse actions discrimination. See employment discrimination equal opportunity. See equal opportunity at work general protections. See employmee general protections prohibitions. See employment prohibitions Workplace Gender Equality Agency 61, 221, 267, 268 workplace relations system 227–8 workplace rights 59, 102, 243–4 work-related exceptions 56

334 Index

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