Law Reform Advisory Council

Review of the ACT Discrimination Act 1991

Submission of the ACT Human Rights and Discrimination Commissioner

June 2014

Objects of the Discrimination Act

1. Should the objects of the Discrimination Act be amended? If so, how? For example, should they recognise certain inequalities; should they refer to substantive equality; should they recognise the right to equality; should they require beneficial interpretation?

As the Consultation Paper observes, the objects of an Act provide a snapshot of the central concerns at the time an Act was passed. In the current objects, there is a strong emphasis on achieving equality between men and women, and addressing sexual harassment. This is because gender equality, particularly in the workplace, and the need for women in particular to be able to work in an environment free from sexual harassment (with women being more likely to experience such treatment) were prominent issues at the time the Act was drafted. These issues remain important to the ACT community. However, since the Act was drafted, there has also been a significant amount of work done to highlight and address other inequalities in our community.

Recent consultation by the Children and Young People Commissioner with school children around the ACT has highlighted the ongoing importance of the Discrimination Act, and the objects for which it stands. I believe that strengthening and broadening the objects is an important and timely amendment given the evolution of equality concepts as evidenced by developments in this, and other jurisdictions. Nonetheless, I and my Commissioner colleagues continue to advocate that community education retains an important place alongside the law in promoting equality and encouraging people to change discriminatory attitudes and behaviour.

The current objects refer to the principle of ‘equality of opportunity’, which is a way of achieving what is known as ‘formal equality’. This means creating a situation where the same rules apply to everyone, in an attempt to be equal. It is now recognised that simply treating everybody in the same way, or providing the same opportunities to all, will not achieve an equal outcome because some people start from a more disadvantaged or marginalised position than others. A more relevant concept is that of ‘substantive equality’, which encompasses the idea that it may be necessary to provide reasonable adjustments or take special measures (which is already reflected in s.27 of the Act) that recognise past disadvantage, in order to achieve true equality. A change to the objects could also reflect a broader area of protected attributes. The Equality Act 2010 (UK) has adopted this approach, recognising ‘the desirability of reducing socio-economic inequalities’.

I propose to extend the objects of the Act to better reflect the range of protections required to achieve equality for all, and the more modern concept of ‘substantive equality’. The objects should also specifically state that this is ‘beneficial’ legislation. This means that because the Act is designed to provide a benefit, if there is an ambiguity about the way it is to be interpreted, the meaning that best provides that benefit should be adopted.

The Human Rights Act 2004 (HR Act), the first comprehensive human rights legislation in Australia, has strengthened the legal foundation of equality and non-discrimination in the ACT. In particular, s.8 of the HR Act sets out the guarantee of ‘recognition and equality before the law’. It specifies that ‘everyone has the right to equal and effective protection against discrimination on any ground’. Section 30 of the HR Act requires that all ACT laws must be interpreted in a way that is consistent with this ‘equality right’ (and any other relevant rights) wherever possible.

The Victorian Scrutiny of Acts and Regulations Committee in 2009 recommended that the objectives of the equivalent legislation in Victoria include that an objective of the Act is to ensure protection from discrimination to the greatest extent possible consistent with the rights in the Victorian Charter of Human Rights and Responsibilities.[1] The subsequently passed Equal Opportunity Act 2010 has an ‘objectives’ section that reflects these principles and provides a useful comparison, as Victoria is the only other Australian jurisdiction that has both anti-discrimination and human rights legislation.

Accordingly, I propose that the objects be amended to reflect that the Act aims to:

· Eliminate discrimination, harassment, vilification and victimisation in all areas of public life;

· Encourage the identification and elimination of systemic causes of discrimination, harassment, vilification and victimisation;

· Further promote and protect the right to equality set out in the Human Rights Act 2004

· Promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that-

o Discrimination can cause social and economic disadvantage and that access to opportunities is not equitably distributed throughout society;

o Equal application of a rule to different groups can have unequal results or outcomes;

o The achievement of substantive equality may require the making of reasonable adjustments and reasonable accommodation and the taking of special measures.

Defining discrimination

2. Should the definition of discrimination be amended in any way? If so, how? For example, should it be defined to make it clear that direct and indirect discrimination are not mutually exclusive, or to remove the distinction altogether?

I am aware of recent discussion nationally about amending the traditional definitions of discrimination to remove the distinction between direct and indirect discrimination. While I appreciate the motivation for such an approach, I have yet to see a practical example of how such a definition has been adapted into legislation. Further, I believe the ACT’s current focus on unfavourable treatment, as opposed to ‘less favourable’, already provides an improved definition compared to other jurisdictions. The test of ‘less favourable’ tends to require a comparison of the way the aggrieved person was treated against the treatment of another person. The test of ‘unfavourable treatment’ requires no such comparator.

Although many jurisdictions both in Australia, and internationally, rely on tests of discrimination which set up this dichotomy of ‘direct’ and ‘indirect’ discrimination,[2] I accept that the distinction can be conceptually difficult for parties to complaints, and sometimes even for decision makers. The problem in determining which type of discrimination is applicable in a particular matter has led to complainants pleading both types, adding to the complexity of complaints. It has also led to lengthy and complex litigation about whether or not ‘direct’ and ‘indirect’ discrimination are mutually exclusive.[3]

A Roundtable meeting of discrimination law experts concluded that the distinction between direct and indirect discrimination has shown itself to be unworkable and recommended the adoption of a streamlined statement that avoids a mutually exclusive distinction between direct and indirect discrimination.[4] The Roundtable proposed that a single definition could make both understanding of, and compliance with, the law easier. The definition of discrimination proposed in that report was based on the International Labour Organisation Convention 111, which appears in s 3(1) of the Australian Human Rights Commission Act 1986 (Cth)), and the Convention on the Elimination of All Forms of Discrimination against Women, and is as follows:

Discrimination includes

(a) any distinction, exclusion, preference, restriction or condition that is made on the basis of a protected attribute which has the purpose or effect of, and

(b) any condition, requirement or practice that has or may have the effect of

impairing or nullifying the recognition, enjoyment or exercise, on an equal footing, of equality of opportunity or treatment.[5]

As the Roundtable noted, this definition of discrimination clearly encompasses, in an inclusive approach, what has been known as direct and indirect discrimination, and reflects the wording of s.5(2) of the Sex Discrimination Act 1984. However, the Roundtable did not explicitly recommend the above proposed definition, and I believe this demonstrates the practical challenge of implementing such a change. While I would welcome further consideration of this issue, at this stage I would favour retention of both direct and indirect discrimination based on unfavourable (not less favourable) treatment.

3. Should the definition of discrimination be amended to include conduct on the basis of more than one attribute?

The Discrimination Act could define discrimination to include reference to one or more attributes, or a combination of attributes. This approach was taken in the Exposure Draft of the Commonwealth’s Human Rights and Anti-Discrimination Bill. Further, it is the approach in a number of other jurisdictions. In Canada, for example, discrimination includes conduct ‘based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds’.[6]

I note this would be a minor amendment to the current approach in s.4A that the discriminatory reason doesn’t need to be the dominant or substantial reason for doing an Act. Defining discrimination to include reference to one or more attributes would reduce the need for complainants to make multiple complaints when they cannot easily or accurately attribute the discriminatory conduct to one single attribute. In practice complainants tend to use only one complaint form where there are multiple attributes and events over time. In addition I note that any difficulty here could be eased by reversing the onus of proof, i.e. the respondent would need to show treatment was not done for a discriminatory reason. I discuss this further below at Q56.

4. Should a duty to make reasonable adjustments to accommodate the needs of a person with a disability be made explicit in the Discrimination Act ?

I support an amendment to the Discrimination Act making the duty to make reasonable adjustments to accommodate the needs of a person with a disability explicit.

Jurisprudence in the ACT suggests that unlawful discrimination will occur where a person does not make ‘reasonable adjustment’ for a person with a disability in certain areas of public life.[7] In 2009 the Commonwealth amended the Disability Discrimination Act 1992 to explicitly include this requirement.[8] However, the ACT Discrimination Act does not currently expressly include this requirement. While a duty to make reasonable adjustments to accommodate the needs of a person with a disability may be inferred through the operation of, for example, s.49(1)(b) of the Discrimination Act, this is somewhat unclear.

As the Consultation Paper notes, amendment of the ACT Discrimination Act to include an express duty to make reasonable adjustments to accommodate the needs of a person with a disability would not mean any major change to the existing law, but would bring greater certainty and clarity to this issue, and would harmonise ACT discrimination law with Commonwealth law. I believe that this is particularly important as the ACT is a human rights jurisdiction.

5. What factors should be considered when assessing the reasonableness of adjustments?

In Victoria, the reasonableness of an adjustment is decided having regard to ‘all relevant facts and circumstances’. This includes factors such as:

· The person's circumstances and the nature of their disability;

· The nature of the required adjustment;

· The financial circumstances of the employer or service provider and the effects on the service provider of making the adjustment;

· The number of people who would benefit from or be disadvantaged by the adjustment; and

· The consequences for the employer or service provider and the person of making the adjustment.[9]

The factors noted in Victoria’s 2010 Equal Opportunity Act aimed at assisting the assessment of what constitutes a ‘reasonable’ adjustment are a useful mechanism bringing greater clarity. Indeed, under that legislation, an education authority is not required to make reasonable adjustment if they are complying with the Federal Disability Standards for Education.[10] In principle I support this approach. When assessing the reasonableness of adjustments a harmonised approach between Commonwealth and State and Territory levels is both appropriate and desirable.

However, I have some concerns that the Federal Disability Standards for Education has been interpreted in a restrictive manner, and one inappropriate for the ACT when taking into account the ACT’s status as a human rights jurisdiction with an explicit right to education since 2012.[11] In Walker v State of Victoria [2012] FCAFC 38, the Full Court affirmed the decision of Tracey J in Walker v State of Victoria [2011] FCA 258, which held that the standard grants educational authorities a broad discretion about what adjustments are required.[12] Further, while the Standards require that a school consult with a student or his or her parents, the Court was not clear as to how extensive such consultation must be.[13] On this basis, I submit that the Federal Standards may better be used as a component or factor to be taken into account when assessing the reasonableness of adjustments, rather than used as a complete defence. This is consistent with the fact that the ACT is a human rights jurisdiction. This issue aside, the Victorian legislation appears to provide a useful model.

6. Should such a duty exist to accommodate the needs of people based on other attributes, such as age, sex and carer’s responsibilities?

In the interests of substantive equality, an express and positive duty to accommodate needs associated with any protected attribute should be placed on employers and ACT Public Authorities. While this will extend the obligations on employers and Public Authorities, it will not affect service providers or other organisations.

I note that s.24 of the Northern Territory Anti-Discrimination Act provides that ‘a person shall not fail or refuse to accommodate a special need that another person has because of an attribute’, subject to a reasonableness test. This may be a useful starting point in framing a positive duty on employers and ACT Public Authorities to accommodate the needs of people based on any protected attribute.

I have long argued that a positive duty to accommodate the needs of people based on their family responsibilities should be imposed on employers. In the Commission’s submission to the then Human Rights and Equal Opportunity Commission’s 2005 Striking the Balance Inquiry, made on behalf of most members of the Australian Council of Human Rights Agencies’, I noted:

[T]he number of inquiries and complaints being received by agencies on the ground of carer/parental status indicates that there is some way to go before employers fully understand their obligations to accommodate family responsibilities at work. It may also suggest that people are becoming more assertive of their need to have their family responsibilities reasonably accommodated at work, even though their rights in this regard remain inadequately protected.[14]