SUBMISSION TO THE COMMONWEALTH ATTORNEY-GENERAL AND MINISTER FOR FINANCE AND DEREGULATION ON CONSOLIDATION OF COMMONWEALTH ANTI-DISCRIMINATION LAWS
1 February 2012
©2018 Victoria Legal Aid.Reproduction without express written permission is prohibited. Written requests should be directed to Victoria Legal Aid, Research and Communications, 350 Queen Street, Melbourne Vic3000.
Disclaimer.The material in this publication is intended as a general guide onlyhas been prepared for Victoria Legal Aid staff and community legal centre staff and volunteers for study purposes only. The information contained should not be relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken in reliance on the contents of the publication.
Contents
EXECUTIVE SUMMARY
RECOMMENDATIONS
KEY PROBLEMS AND RECOMMENDED RESPONSES
ANarrow and inconsistent interpretation of the law
BIndividual complaint processes alone are ineffective
CComplexity
The definitions
Justifying Discrimination
Temporary exemptions
Special measures provision
DDifficulties of proof
ECertain attributes, areas and conduct are not covered
Attributes
Intersectional discrimination
Equality before the law
Protected areas of public life
Vicarious liability
Harassment
Vilification
FLimited legal assistance and prohibitive costs
GLow awards of compensation
HInteraction of Federal anti-discrimination legislation with other laws
Victoria Legal Aid – Consolidation of anti-discrimination laws – 1 February 2012
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ABOUT VICTORIA LEGAL AID
Victoria Legal Aid (VLA) is a major provider of legal services to socially and economically disadvantaged Victorians. We assist people with their legal problems at locations such as courts, tribunals, prisons, and psychiatric hospitals as well as in our 15 offices across Victoria. We assist more than 80,000 people each year through Legal Help, our free phone assistance service. We are also proactive in delivering community legal education to disadvantaged Victorians.
Our specialist practice expertise
Under our Civil Justice portfolio we have a dedicated Social Inclusion and Equality team which holds weekly anti-discrimination law clinics and regularly provides advice and representation to clients who suffer discrimination, harassment, victimisation and vilification. In 2010-2011 the Social Inclusion and Equality subprogram provided 7,751 legal advices and 5,077 duty lawyer services, and handled approximately 600 substantive legal matters and 1,458 minor work matters. A significant proportion of these matters involved discrimination matters.
We assist clients with complaints of discrimination in various jurisdictions, including the Federal Court and the Federal Magistrates Court, using various legislation, including federal anti-discrimination legislation, the Fair Work Act 2009 (Cth) and the Equal Opportunity Act 2010 (Vic). This submission includes case studies drawn from our actual practice experience. All client names have been changed.
EXECUTIVE SUMMARY
This submission is a response to the Consolidation of Commonwealth Anti-Discrimination Laws Discussion Paper, released by the Federal Attorney-General’s Department in September 2011 (the Discussion Paper). The Discussion Paper proposes a consolidation of current Federal anti-discrimination laws into a unified, consolidated Act and forms part of the Federal Government’s proposed National Human Rights Action Plan.
Victoria Legal Aid (VLA) welcomes the Federal Government’s commitment to improve the legislative responses to discrimination and to work towards a more complete and streamlined equality framework.
Research shows that a community that is inclusive, respectful of difference and intolerant of discrimination will be more socially cohesive, productive and will have better public health and education outcomes. Robust policy, legislative and community imperatives that promote both formal and substantive equality can also lead to a reduction in violence, crime and family breakdown.[1]
This submission and the proposed recommendations are based on our practical experience which clearly shows that there is currently inadequate legal protection against discrimination. While Federal anti-discrimination laws have contributed to reducing discrimination in some areas and promoting community awareness of the importance of equality, gaps in the legislative framework remain.
We see that even where legal redress may be available, many individuals do not make a complaint of discrimination, or can be disadvantaged when they do so. Individuals subject to discrimination often report feeling ashamed, intimidated and at risk of further ill treatment if they complain. Moreover, the current equality framework can be difficult to navigate, definitions of discrimination and exemptions vary across the different acts, the evidentiary burden on a complainant is onerous and redress is often inadequate.
Our submission identifies a number of key weaknesses in existing federal anti-discrimination laws and provides recommended responses in relation to the following key issues:
ANarrow and inconsistent interpretation of the law
BOverreliance on individual complaint processes
CComplexity of the law
DDifficulties of proof
ECertain attributes, areas and conduct are not covered
F Limited legal assistance and prohibitive costs
GLow awards of compensation
HInteraction of Federal anti-discrimination legislation with other laws
Our submission does not seek to respond to every question listed in the Discussion Paper. However, for ease of reference, we have summarised our recommendations in the table below under sub-headings that reflect the grouping of issues and topics in the Discussion Paper.
The case studies used throughout this submission are real. Where names have been used, they have been changed to protect the client’s privacy.
RECOMMENDATIONS
We recommend that the following concepts be incorporated into the consolidation bill:
Meaning of Discrimination / See page1. / The consolidation bill should include an objects clause that confirms the beneficial purpose of the legislation. / 9 - 10
2. / There should be a positive obligation to eliminate discrimination, harassment and victimisation on all duty holders. / 10 - 13
3. / The definition of discrimination should be simplified, including by removing the comparator test. / 13 - 18
4. / After the complainant establishes a prima facie case, the burden of proving that an action is not unlawful should shift to the respondent. / 19 - 21
5. / A ‘questionnaire procedure’ should be incorporated prior to conciliation to encourage the early exchange of relevant information. / 19 - 21
6. / There should be a single special measures provision, covering all attributes. / 18 - 19
7. / Harassment should be prohibited in respect to all attributes. / 27 - 25
8. / There should continue to be a separate prohibition of sexual harassment, which extends to all conduct done other than in private. / 25
9. / Consideration should be given to extending the protection provided with respect to race by section 18C of the RDA to all other protected attributes. / 28
Protected Attributes / See page
10. / In addition to existing grounds, a consolidation bill should protect against discrimination on grounds of sexual orientation, gender identity, physical features, lawful sexual activity, status as a parent or carer, religion, political belief or activity, industrial activity, nationality, irrelevant criminal record, being a victim of violent crime, being a victim of family violence, homelessness and socio-economic status. / 21 - 24
11. / Discrimination against an associate of a person with an attribute should be prohibited. / 21 - 24
12. / There should be specific protection against intersectional discrimination, by prohibiting discriminatory conduct based on “one or more protected attributes”. / 24
Protected Areas of Public Life / See page
13. / The right to equality before the law should be extended to all attributes (not just race). / 24
14. / The consolidation bill should prohibit discrimination in all areas of public life, with a non-exhaustive list of areas that includes those already explicitly covered and the additional areas of law enforcement and corrections. / 25 - 26
15. / Employers and principals should be vicariously liable for unlawful acts done ‘in connection with’ the person’s employment or duties as an agent, unless they have taken ‘all reasonable steps to prevent the employee or agent from doing the act’. / 26 - 27
16. / Vicarious liability for workplace discrimination and harassment should be extended to those who manage and control the workplace. / 26 - 27
Exceptions and Exemptions / See page
17. / There should be a global defence based on a proportionality test (‘general limitations clause’). / 14 - 18
18. / The exceptions and exemptions should be removed. / 14 - 18
19. / There should be provision for temporary exemptions to be granted in accordance with the principles and framework contained in the general limitations clause. / 18
Complaints and Compliance Framework / See page
20. / There should be a regulatory agency empowered to undertake self-initiated investigations and compliance action. / 10 - 13
21. / There should be explicit protection of witnesses and individuals who assist complainants with their complaint, including prior to any formal complaint being made. / 19 - 21
22. / Parties should only be liable for their own legal costs unless there has been unreasonable behaviour. Alternatively, in matters of general public importance, parties should be entitled to protective costs orders. / 29 - 31
23. / Courts should be provided statutory guidance regarding the amount of monetary compensation payable, with the aim of increasing these amounts. / 29 - 31
24. / Review funding to legal aid and/or specialist community legal services and/or an independent agency to ensure that adequate assistance is provided to complainants. / 29 - 31
Interaction with Other Laws and Application to State and Territory Governments / See page
25. / The consolidation bill should explicitly state that it is not intended to exclude or limit the operation of a State or Territory law that furthers the objects of eliminating discrimination and giving effect to Australia’s international human rights obligations. / 32
KEY PROBLEMS AND RECOMMENDED RESPONSES
ANarrow and inconsistent interpretation of the law
A significant barrier to equality is that discrimination law is often narrowly understood and narrowly interpreted. For example, our experience in providing community legal education on discrimination suggests that while many people are familiar with the notion of formal equality, there is limited understanding about substantive equality, particularly with regard to special measures and indirect discrimination caused by treating people the same way regardless of their inherent needs.
There has also been some narrowness and inconsistency in the approach of judges to discrimination law.[2]For example, in cases where variations to workplace policies have been necessary to accommodate the protected attribute of the complainant, some judges have considered the variation to be a ‘benefit’ that may or may not be provided at the employer’s discretion, rather than a measure that is necessary to alleviate the discriminatory impact of the policy.[3] As a result, an attempt to overcome systemic disadvantage caused by the blanket application of a policy is reduced to a request for a discretionary favour. This undermines the intention of the legislation, being to promote equality. The inconsistent case law also suggests that the success of a complaint of indirect discrimination depends largely on the individual adjudicator.[4]
Case study 1 – Non-discrimination is not ‘special treatment’
Our client, David, worked for a transport company in a role that enabled him to look after his daughter in the evenings when his ex-partner was working, and on alternate weekends when he had custody of his daughter. However, David was subsequently moved to a different role and told that he would have to work during evenings and on weekends. When David told his employer that this was not possible due to his responsibility to care for his daughter, his employer said that he was subject to the same rules as everybody else and was not entitled to any ‘special treatment’. This was despite evidence showing that David’s family responsibilities could have been accommodated with negligible cost and inconvenience to the employer. The impact of the decision on David was that he became jobless, then homeless and could not financially support his daughter.
The client chose to make a complaint under the Victorian Equal Opportunity Act, which provided more protection to him than the Sex Discrimination Act. However, the prospects of his complaint of indirect discrimination were uncertain due to the ambiguous and often narrow Victorian and Federal jurisprudence on indirect discrimination against parents and carers in similar situations.[5] As a result, he settled his complaint for a relatively low award of compensation.
An objects clause that sets out the beneficial purpose of the consolidation bill would clarify the application of the bill and guide decision-makers to respond more expansively and in a manner that promotes substantive equality. Such an objects clause would also contribute to an expanded community understanding of equality. In this regard, we endorse the objects clause recommended by the Discrimination Law Experts’ Group at pages 7-8 of its submission, dated 13 December 2011.
Recommendation: response to narrow and inconsistent interpretation of equality law
We recommend that the consolidation bill include an objects clause that confirms the beneficial purpose of the legislation (Recommendation 1)
BIndividual complaint processes alone are ineffective
A significant weakness of Australian anti-discrimination law is its reliance on individuals to hold discriminators to account. This is particularly problematic in situations of workplace discrimination and harassment, where complainants and witnesses are often financially dependent on the discriminator and discouraged from making a complaint or giving evidence by the potential repercussions within their workplace, as well as their industry. For various reasons, the large majority of people with legitimate complaints under Australian anti-discrimination law do not report the conduct or make a complaint.[6] It is our experiencethat clients are deterred by:
- fear of negative consequences for themselves, particularly in employment matters;
- shame and humiliation in connection with the conduct;
- difficulties proving the conduct, including due to:
- witness reluctance to give evidence;
- lack of access to documents, such as emails, and other information held by the perpetrator;
- the complexity of the law and legal processes;
- disadvantage due to factors such as illiteracy, lack of education, disability and/or poor English-speaking skills;
- vulnerability caused by the detrimental psychological effects of the discrimination/harassment/vilification and/or personal circumstances;
- lack of free anti-discrimination law services; and
- the poor cost-benefit of litigation, even if the complaint is successful, due to the fact that compensation payments are low, and in any event, many complainants want non-monetary remedies such as an apology, a policy change or equal opportunity training in their workplace.
The following case study illustrates the difficulty with requiring vulnerable victims to hold their discriminators to account.
Case study 2 – a life-time of discrimination and harassment
Alice is a female with an interest in cars and motorbikes. She has worked in male-dominated fields her whole life and has been subjected to sexual harassment and discriminatory behaviour in almost every job.
- Alice was 15 when she started her first job as a casual petrol station attendant. She worked with an older full-time male who would regularly slap her on her bottom. It made her feel very uncomfortable, but she was too shy and embarrassed to say anything to anyone.
- Alice then worked as a receptionist. The owner of the company wanted Alice to date her son. The son would regularly come to the office, sit in the reception area and stare at Alice. During his visits, the owner would suggest to the son that he give Alice massages. Alice made excuses about why she did not want to date the owner’s son, not wanting to cause offence.
- At about age 21 Alice worked at a truck company. Her male co-workers would constantly tell dirty jokes and talk about ‘hot chicks’ and what they ‘do to their missus’. Among the many offensive comments that were made to her, Alice recalls sitting in a truck and the male colleague sitting next to her saying ‘shut your legs, it’s smiling at me’. Alice pretended that she didn’t hear him.
- In her late twenties Alice worked for a motorbike retailer. A co-worker regularly made offensive sexual comments to her, including ‘I’d like to tie you up and whip you’, ‘are you the type of girl who, if I came in a shot-glass, would drink it?’, and asking male customers ‘are her boobs the same size as your girlfriend’s boobs?’ The co-worker made these numerous offensive comments, and also forcefully grabbed Alice’s buttocks, in front of Alice’s manager and other co-workers. However, the manager would not take action against the co-worker in support of Alice.
Alice now suffers from depression, for which she is receiving treatment from a psychiatrist. She ended her relationship with her boyfriend because, even though she describes him as ‘the sweetest guy ever’, she does not trust men anymore.
Alice now works alone, due to a conscious decision that she has made not to be in a situation where she can be subjected to any further workplace harassment or discrimination. However, she misses making friends through work and the social interaction.
For the first time in her working life, Alice makes a complaint against her previous employer. While her former co-workers witnessed the harassment, they are unwilling to give evidence in support of Alice’s complaints because of the likely negative consequences for them if they do so. Alice settles her claim for a relatively low amount of compensation due to the difficulties proving her complaint in court.
Alice’s case is not isolated. Our extensive experience with clients in this area has highlighted that people are often reluctant to make complaints of discrimination and where they do so are often tentative about involving or implicating potential witnesses.
As noted above, in addition to providing one on one advice in these matters, VLA also conducts community legal education. Our common experience from these education sessions is that entire communities are unaware of their rights or how to exercise them. Even where there is awareness about discrimination laws, people often report feeling anxious about losing their job if they complain, about not being taking seriously and that the difficult process of complaining is not worth the effort. A positive duty to eliminate discrimination and a regulator who is empowered to enforce that duty may go some way to overcoming these limitations.