Pushing Australia’s federal discrimination laws into the 21st Century: Time for a practical and intersectional approach

Isobelle Wainwright

Introduction

There was renewed interest in Australia’s federal discrimination laws in 2021. In September, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) implemented recommendations made by the Respect@Work report following a national inquiry into sexual harassment in the workplace. The highly politicised Religious Discrimination Bill 2021 (Cth) along with the Religious Discrimination (Consequential Amendments) Bill 2021 and Human Rights Legislation Amendment Bill 2021 was introduced to Parliament in December, and has been referred to the Legal and Constitutional Affairs Legislation Committee for inquiry, with a report due 4 February 2022.

In light of these developments, it is increasingly apparent that Australia’s federal discrimination laws need to be put under fresh scrutiny. An important contribution to this discourse is the release of the Discrimination Law Position Paper by the Australian Human Rights Commission on 10 December 2021. This is the first of three papers proposing reforms to improve national human rights protection as part of the Commission’s Free and Equal project. Following two years of extensive consultation, the Position Paper has proposed 38 recommendations for reforming Australia’s federal discrimination laws. Its message is clear: the system is ‘outdated, difficult to use and [does] not respond to the challenges of modern life’.

Understanding the discrimination laws system

There are four federal discrimination laws: the Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination Act 2004 (Cth). Collectively, these laws protect individuals from discrimination in public life based on a range of attributes, including sex, disability, sexuality, and age. The complaints-handling procedure for these forms of unlawful discrimination is handled by the Australian Human Rights Commission Act 1986 (Cth). Discrimination protection in the context of employment is also available in the separate but overlapping schemes of the Fair Work Act 2009 (Cth) and Work Health and Safety Act 2011 (Cth). In addition, there are eight discrimination laws at the state and territory level which contain disparate protections, definitions, and procedures.

Lessons from past attempts at reform

This complex web of legislation causes significant discrepancies between Acts, affecting the accessibility, practicality, and efficacy of human rights protection at a national level. To resolve this issue, in 2011, the Attorney General’s Department and Department of Finance and Deregulation proposed to consolidate the federal discrimination laws into a single Commonwealth anti-discrimination law. Despite a lengthy consultation process, progress halted after the release of the Exposure Draft of a Human Rights and Anti-Discrimination Bill (HRAD Bill) in 2012.

The Commission’s recently released Position Paper seeks to pursue ‘different horizons’ to the HRAD Bill, recognising that sweeping changes can attract resistance in such a politically charged space.¹ Instead, the Paper adopts a patchwork approach by proposing a range of recommendations which are either applicable across the system or which target specific legislation to fill the gaps. This circumvents the federal law system’s structural complexity by making sure there is ‘no wrong door’; whichever avenue the user chooses, the process should be accessible and straightforward. The decision to prioritise crucial structural reforms in the short-term reflects the Commission’s urgency.

Key recommendations

At the time of their implementation, Australia’s federal discrimination laws were at the forefront of rights protection on the international stage. So, what does it mean to have a federal discrimination laws system fit for the 21^st century?

The Position Paper answers this question by presenting four major areas of reform: ‘Building a Preventative Culture’, ‘Modernising the Regulatory Framework’, ‘Enhancing Access to Justice’, and ‘Improving the Practical Operation of Federal Discrimination Laws’. Many of the recommendations build on familiar discourse regarding modernising discrimination laws, such as implementing a positive duty to eliminate discrimination. Other recommendations seek to give the Commission more regulatory and enforcement powers through own-motion investigations, voluntary audits and reintroducing an intermediate adjudicative process.

An expanding discussion around modern discrimination law reform is the role of intersectional discrimination, which ‘refers to the fact that people often experience multiple overlapping forms of discrimination and harassment, for example on the basis of gender, race, disability or sexuality’.² The Position Paper recommends that the test for direct discrimination is simplified and homogenised. This recommendation accommodates intersectional discrimination as ‘protections for different attributes must be able to work together easily – having different tests for different attributes … is burdensome and less effective’.³

Currently, the discrimination laws system has three different models for defining direct discrimination: the ‘comparator test’ (used in the Age Discrimination Act 2004 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), and majority of State legislation), the ‘detriment test’ (used in Victoria and the Australian Capital Territory), and the Racial Discrimination Act test. The Commission’s recommendation is that the ‘comparator test’ is removed and replaced by the ‘detriment test’.

The ‘comparator test’ establishes discrimination by ‘comparing the treatment of the complainant to the treatment of others who lack their protected attribute’,⁴ whereas the ‘detriment test’ is based on the simpler premise that ‘discrimination occurs where a person is treated unfavourably on the ground of their protected attribute’.⁵ A central concern with the ‘comparator test’ is how to define the ‘comparator’. To do so requires a complex and fruitless separation between a person’s behaviour, their environment, and protected attributes. The Position Paper points out that this reasoning is particularly incongruent for people with disabilities, as it ‘effectively obscures or ignores the basis or cause of the behaviour for the person … and treats manifestations of their disability as though they were something discretionary that could be removed or taken off’.⁶ This is applicable to other contexts – people’s experience of discrimination is complex, shaped by converging identities which cannot be compartmentalised.⁷ Therefore, the recommendation is not only important because it makes it easier for individuals to bring overlapping complaints; it is also more compatible with intersectional theory which recognises the compounding, rather than ‘additive’, effect of characteristics.⁸

The future of Australia’s discrimination laws

The federal discrimination laws system is a historical artefact, developed in a piecemeal fashion as the Australian government implemented international treaties and agreements. With some of the laws having ‘remained substantially untouched since they were introduced over 30 and 40 years ago’, urgent reform which addresses the system as a whole is required. The Commission’s Position Paper suggests new ways to bring these laws into the 21^st century, offering more comprehensive and practical protection which reflects the public’s shifting understandings of identity and safety.