ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
1.1
Equality is a cornerstone of our democracy; it is fundamental to
ensuring that individuals and groups can access opportunities and essential
standards of living so as to participate fully in society and realise their
potential. The Australian Greens are committed to creating a more equal world
and believe that as a community we should take positive steps to better promote
and protect the right to equality and
non-discrimination, including by actively addressing the underlying causes of
systemic discrimination.
1.2
For these reasons, the Australian Greens strongly support the
Government's consolidation of existing Commonwealth anti-discrimination laws,
which has provided 'an opportunity to consider the existing framework, and
explore opportunities to improve the effectiveness of the legislation to
address discrimination and provide equality of opportunity'.[1]
The consolidation process has been extensive and ongoing for some time, and we
recognise the level of consultation that has been undertaken with stakeholders
and the public in order to develop clearer and more consistent
anti-discrimination legislation.
1.3
As a result of this comprehensive consolidation process, the Draft Bill
is a good improvement on the current situation. In particular, the Australian
Greens strongly support a number of key changes, including: the unified
definition of discrimination; the expanded coverage of protection against
discrimination in all areas of public life; proposed clause 124 that provides
for a shared burden of proof; the inclusion of sexual orientation and gender
identity as protected attributes; and the change to a 'no costs' jurisdiction.
1.4
However, throughout the Senate Committee's inquiry it became apparent
that there remain some gaps and areas that require further strengthening and
clarity. For the most part, the Committee Report addresses these gaps and
makes recommendations for improvement. The Australian Greens support these
recommendations, which are aimed at improving the Draft Bill. However, the
Australian Greens are of the view, based on the strong evidence and expert
submissions provided throughout the inquiry process, that some recommendations
made by the Committee could go further. We also have additional comments and
recommendations to make in relation to matters that have not been fully
considered by the Committee Report.
1.5
Before we address these matters, we firstly wish to emphasise the
importance of the Draft Bill. This Draft Bill provides an opportunity to improve
and strengthen Australia's anti-discrimination laws and better promote the
right to equality, which will have many positive effects. Recent evidence
shows that more equal societies enjoy better public health and educational
outcomes, improved social cohesion and positive economic results such as
increased productivity, efficiency and growth. These outcomes benefit the whole
community.
1.6
The eventual passage of, and assent to, this Draft Bill, incorporating
the changes suggested by the Committee Report and these additional comments,
will result in positive social and economic benefits for all Australians. This
Draft Bill should therefore be prioritised by the Government for introduction
and passage through the Parliament by the end of the June sitting this year.
Protected attributes
1.7
The Committee Report recommends that the definition of gender identity
be clarified and advocates for protection against discrimination to be extended
to intersex people, victims of domestic violence and on the basis of irrelevant
criminal record. These recommendations are all very welcome and strongly
supported by the Australian Greens. However, we feel that the Draft Bill
should also be amended to extend the definition of family responsibilities to
include caring responsibilities. In addition, we feel that an opportunity has
been lost by failing to expand the protected attributes to include 'social
status' (i.e. meaning a person's status as being homeless, unemployed or a
recipient of social security payments).
1.8
The Committee Report highlights that several submitters, such as the
Discrimination Law Experts Group and the ACTU, called for the definition of
family responsibilities to be explicitly extended to cover a broader range of
care arrangements. The rationale behind broadening this definition is
twofold. Firstly, the definition should be inclusive and recognise the 'different
family, caring and kinship relationships' of different groups, which is
consistent with the overall aims and purposes of the Draft Bill that seeks to
promote equality and celebrate diversity in Australian society. [2]
Secondly, the ACTU and the AHRC argued that the definition required amendment
so that the Draft Bill was consistent with other relevant Commonwealth laws and
state and territory legislation.[3]
The Australian Greens feel that this minor amendment is within the scope of the
consolidation process and that any regulatory impact would be minimal. We
therefore recommend that the definition of 'family responsibilities' be changed
to 'family and caring responsibilities'.
1.9
Unfortunately, very little attention was given in the Committee Report
to the suggestion by several expert witnesses that 'social status' be included
as a protected attribute under the Draft Bill. It is well established that
discrimination against people who are homeless, unemployed or recipients of
social security payments is widespread in our community.[4]
The United Nations Committee on Economic, Social and Cultural Rights has
recognised that people can experience 'pervasive discrimination, stigmatization
and negative stereotyping' as a result of experiencing poverty or homelessness,
which can significantly affect their ability to access and enjoy other human
rights.[5]
1.10
The extent of this discrimination in Australian society, and the need
for reform to the Draft Bill, was highlighted in the submissions by the HRLC,
PIAC and PILCH. Compelling evidence, put forward by Lucy Adams of the PILCH
Homeless Persons' Legal Clinic at the Melbourne hearing, made the case for
including 'social status' as a protected attribute under the Draft Bill:
Social status, including homelessness, unemployment and
receipt of social security should be a protected attribute. The experience of
the PILCH Homeless Persons' Legal Clinic shows us the devastating effect of
discrimination against homeless people on a day-to-day basis, and yet this
discrimination remains lawful in Australia...[6]
[The clinic] conducted a consultation in 2006 with 183 people
who had experienced homelessness. Seventy per cent of them identified that they
experienced discrimination on the basis of their homelessness or their receipt
of social security or their unemployment or a combination of those things when
trying to access accommodation...and 50 per cent of those people identified
that they felt discrimination had prolonged their homelessness and made it more
difficult or impossible for them to find a sustainable pathway out of
homelessness. It does prevent people accessing goods and services. It prevents
them accessing accommodation. It essentially presents a barrier to economic and
social participation and exacerbates social exclusion. The impacts of that are
numerous, including on people's physical and mental health.[7]
1.11
The Australian Greens support the inclusion of 'social status' (to
include homelessness, unemployment and recipients of social security payments)
as a protected attribute under the Draft Bill. While we understand that this
is an expansion of the law and there is no precedent for protecting people from
discrimination on the basis of their 'social status', similar to the Committee's
view on protecting victims of domestic violence we believe that this is another
area where the Commonwealth must lead the way.
1.12
The Australian Greens also concur with the submissions by the AHRC, the
Discrimination Law Experts Group, the HRLC, and other organisations,[8]
which recommend that subclause 22(3) should be amended to extend protections
for the seven attributes set out in that subclause to 'all areas of public
life'.[9]
We believe that such a change will not only reduce uncertainty and simplify the
law,[10]
but is more likely to be consistent with the right to equality and
non-discrimination.[11]
Exception for justifiable conduct
1.13
The Australian Greens strongly support the recommendation of the
Committee Report that clause 23 of the Draft Bill be amended to address the
concerns raised by stakeholders. In particular, the provision should be
refined to ensure it is 'drafted narrowly in accordance with human rights
principles and construed narrowly in accordance with the objects of the Bill
and the beneficial nature of the legislation, and...focused clearly and
unequivocally on the achievement of substantive equality'.[12]
In this regard, the Australian Greens agree that the words 'a legitimate aim'
in
clause 23(3)(b) be replaced with the words 'an aim that is consistent with
achieving the objects of the Act'. We also support the submissions made by the
Discrimination Law Experts Group and the HRLC and say further that a clear
connection should be required between the justifiable nature of the conduct and
the objects of the Act.[13]
Inherent requirements exception
1.14
As the Committee Report recognises, some submitters opposed the
inclusion of the 'inherent requirements of work' exception in clause 24.
Submitters expressed concern regarding the lack of definition around 'inherent
requirements'[14]
and the extension of the exception to all protected attributes, which
effectively reduces protection against discrimination.[15]
There was also evidence that this clause is superfluous because the general
exception for justifiable conduct under clause 23 'will provide employers with
sufficient scope to defend the use of job requirements as criteria for
recruitment and performance management in work'.[16]
On this basis, the Australian Greens recommend the removal of clause 24 from
the Draft Bill. Alternatively, at a minimum, the inherent requirements
exception should specify that duty-holders must make reasonable adjustments
before they can rely on the inherent requirements exception.
Religious exceptions
1.15
The Australian Greens acknowledge the importance of the right to freedom
of religion and have recommended that protection of this attribute under the
Draft Bill be extended to all areas of public life (refer to recommendation 4
below). As such, we respect the right of religious organisations to ordain,
appoint, train and educate priests, ministers and members of a religious order
in accordance with their own
internally-established practices and doctrines and accept that clause 32 of the
Draft Bill is reasonable and should remain.
1.16
However, we do not believe that religious organisations should be
automatically exempt from acting consistently with the right to
non-discrimination in all instances. Clause 33 of the Draft Bill applies to
fields of activity which go beyond the internal workings of religious
organisations and impact on members of the public. We therefore support the
Committee’s recommendation that the Draft Bill be amended to remove exceptions
allowing religious organisations to discriminate against individuals in the
provision of services. However, after considering a number of written
submissions by various stakeholders, the Australian Greens are of the view that
we should go much further if we are serious about promoting and protecting the
right to equality in Australian society.
1.17
A number of human rights groups and legal experts submitted 'that there
should be no permanent exceptions for religious organisations in respect of any
protected attributes'.[17]
There was evidence that the existing religious exceptions regime effectively 'perpetuates
a false and unjustified hierarchy of rights, entrenches systemic discrimination
and generally restrains society’s pursuit of equality'.[18]
1.18
There was also clear evidence from organisations working with religious
bodies that the blanket exception is simply not needed,[19]
and instead religious organisations can ‘rely on the general exception of
justifiable conduct in clause 23 of the Draft Bill'.[20]
Indeed, it was submitted that the general exception of justifiable conduct
clause, 'used in the right way, would allow a more thorough examination of
human rights in conflict and consideration of how they might be balanced'.[21]
The Australian Greens are concerned by this evidence, which clearly
indicates that the blanket and permanent exception in clause 33 that applies to
religious organisations is arbitrary, overly broad and unnecessary,
particularly in light of the new general exception of justifiable conduct
clause. We therefore recommend that the permanent religious exception
contained in clause 33 of the Draft Bill be removed, in favour of reliance on
the general exception for justifiable conduct.
Costs
1.19
The Australian Greens support clause 133 of the Draft Bill, which
provides that each party will be required to bear their own costs, subject to
the court's discretion to award costs in justifiable circumstances. However, we
note that some submitters indicated that the provision should be amended to
limit costs orders against complainants to circumstances in which the complaint
was vexatious, frivolous or without foundation. We are of the view that the
Australian Government should give further consideration to whether clause 133
requires refinement to limit costs orders against complainants to circumstances
in which the complaint was vexatious, frivolous or without foundation.
Reasonable adjustments
1.20
While there is some discussion in the Committee Report in relation to
reasonable adjustments, the Committee does not express a view or recommendation
on this matter. This is despite the concerns raised by submitters regarding
the inclusion of reasonable adjustments concept in the justifiable conduct
exception, rather than within the definition of discrimination, which has the
effect of weakening protection against discrimination.[22]
The Australian Greens feel that any weakening in the Draft Bill requires
adequate consideration and response.
1.21
Accordingly, taking into account a number of written submissions on this
matter, the Australian Greens recommend that the duty to provide reasonable
adjustments should be incorporated within the definition of discrimination, as
a separate subclause. This will bring the Draft Bill into line with the
current situation.
1.22
We are also of the view that the explicit duty to provide reasonable
adjustments should be applicable to all attributes, and note that Victorian
anti‑discrimination law requires employers to make reasonable adjustments
for employees with family or caring responsibilities, which appears to be
working to the benefit of both employers and employees. This amendment would
also bring the Draft Bill into line with what is currently best-practice under
domestic law.
Special measures
1.23
Similarly, while there is some discussion in the Committee Report
regarding the special measure provision under clause 21 of the Draft Bill, no
recommendation follows. This is despite the fact that several submitters
raised significant concerns regarding the lack of a consultation requirement
and that the way the clause is currently drafted is inconsistent with
international human rights law. The Australian Greens believe that the 'special
measures' clause under the Draft Bill requires amendment for the following
reasons highlighted by the National Congress of Australia's First Peoples:
[t]he Bill adopts a uniform definition of special measures,
but does not include a specific requirement for free, prior and informed
consent of First Peoples in the making of laws and policies which affect
Aboriginal and Torres Strait Islander Peoples, as required in the United
Nations Declaration on the Rights of Indigenous Peoples...special measures are
used across Australia to enact laws for the 'advancement' of First Peoples
without any yardstick for their effectiveness, duration or community support
and acceptance...where laws and policies are being created that affect First
Peoples, these peoples should be properly informed and there should be honest
and open negotiation so that affected peoples are able to give their free and
prior informed consent.[23]
1.24
The Australian Greens are particularly cognisant of the way that 'special
measures' provisions have been used in the past to justify top-down policy
approaches particularly in relation to indigenous affairs; the Stronger Futures
legislation is a case‑in‑point. We encourage the Government to
refine this clause and note that the submissions of the Discrimination Law
Experts Group and the HRLC provide guidance as to how the special measures
clause could be amended to better promote the right to equality and
non-discrimination. We also note that the Parliamentary Joint Committee on
Human Rights indicated that as it is currently drafted this clause appears to
enable measures that limit rights to be defined as a special measure and
request the Government specifically respond to this concern.[24]
Insurance exception
1.25
A matter that is not addressed in the Committee Report, but which was
raised through both written submissions and at the Melbourne hearing, is
concern for the current operation of the exception for insurance,
superannuation and credit in clause 39 of the Draft Bill. The Mental
Health Council of Australia (MHCA) and beyondblue drew the Committee's
attention to the way that people with a mental illness regularly experience
discrimination when they seek to obtain insurance or claim against an insurance
policy. The MHCA and beyondblue raised significant concern that the current
exception that applies to insurers is not operating in the spirit in which it
was intended to apply and suggested that the Draft Bill be amended to guard against
the arbitrary application of this exception. The Australian Greens support the
submissions of the MHCA and beyondblue and recommend that the Government
consider improving accountability and transparency mechanisms under clause 39,
including clarification of the term 'other relevant factors'. The Explanatory
Memorandum could also be amended to provide further clarification and
explanation of the purpose of the exception.
Systemic discrimination
1.26
Another matter, which was not addressed in detail during the hearing
process but that shone through many written submissions, is the need for the
Draft Bill to be amended to better address systemic discrimination. Systemic
discrimination occurs as a result of patterns, policies and practices that
exist in society's institutions and structures and which have the effect of
creating and perpetuating disadvantage for whole groups of people. To
effectively eliminate barriers to equality, the law must recognise and actively
address systemic discrimination that is entrenched in our social structures.[25]
The Australian Greens are of the view that the following changes to the Draft
Bill would improve the law's ability to effectively tackle systemic
discrimination:
- Include a positive duty on the public and private sector to
promote equality and eliminate unlawful discrimination;
-
Amend clause 60 – right to equality before the law – so that it
applies to all protected attributes;
- Make provision for representative complaints by the AHRC or
public interest organisations on behalf of individuals or groups experiencing
discrimination; and
- Consider amending the Draft Bill to prioritise and allocate
responsibility for sexual orientation, gender identity and intersex issues with
a member of the AHRC.
1.27
Amending the Draft Bill to include a positive obligation to promote
equality would bring Commonwealth law into line with best-practice under
comparative international jurisdictions and current domestic law.[26]
It will also ensure that focus is directed towards preventing discrimination in
the first place, rather than punishing misconduct, which will go some way
towards addressing systemic discrimination.
1.28
Making provision for equality before the law on the basis of all
attributes will ensure that laws are non-discriminatory; this will actively
promote the right to equality and non-discrimination through the law-making
process. To reduce confusion and uncertainty in the Draft Bill, and so that it
is consistent with international human rights law, the right to equality before
the law in clause 60 should be extended to all protected attributes.
1.29
PILCH and NATSILS made a strong case for amending the Draft Bill to
allow for representative actions to be brought on behalf of individuals or
groups experiencing discrimination. As Rachel O'Brien from NATSILS said, 'allowing
representative complaints to proceed to court could go a long way to addressing
some of the systemic issues facing Aboriginal and Torres Strait Islander
peoples'.[27]
The Australian Greens consider that this amendment is crucial, noting that
representative proceedings are currently possible in Victoria and it is
appropriate for Commonwealth legislation to promote consistency and follow
best-practice domestic law.[28]
1.30
Given the incorporation of sexual orientation and gender identity as protected
attributes under the Draft Bill, and the Committee's recommendation to include
intersex as a protected attribute, the Australian Greens feel that it is timely
and appropriate for these matters to be prioritised by the AHRC. We also
suggest that the Australian Government consider amending the Draft Bill to
allocate responsibility for these matters to a member of the Commission.
Recommendation 1
1.31
The Draft Bill should be prioritised by the Government for
introduction and passage through the Parliament by the end of the June sitting
this year.
Recommendation 2
1.32
That the definition of 'family responsibilities' be changed to 'family
and caring responsibilities'.
Recommendation 3
1.33
That the Draft Bill be amended to incorporate 'social status' (to
include homelessness, unemployment and recipients of social security payments)
as a protected attribute.
Recommendation 4
1.34
That subclause 22(3) be deleted from the Draft Bill, in order to
extend protections for the seven attributes currently set out in that subclause
to 'all areas of public life'.
Recommendation 5
1.35
In addition to replacing the words 'a legitimate aim' in clause
23(3)(b) with the words 'an aim that is consistent with achieving the objects
of the Act', the Australian Greens recommend that the Australian Government
consider the submissions of the Discrimination Law Experts Group and the HRLC
regarding whether a clear connection should be required between the justifiable
nature of the conduct and the objects of the Act.
Recommendation 6
1.36
That clause 24 be removed from the Draft Bill. Alternatively,
and at a minimum, the inherent requirements exception should specify that
duty-holders must make reasonable adjustments before they can rely on the
inherent requirements exception.
Recommendation 7
1.37
That the religious exception contained in clause 33 of the Draft
Bill be removed, in favour of reliance on the general exception for justifiable
conduct.
Recommendation 8
1.38
That the duty to provide reasonable adjustments be incorporated
within the definition of discrimination, as a separate subclause.
Recommendation 9
1.39
That the explicit duty to provide reasonable adjustments should
be applicable to all attributes.
Recommendation 10
1.40
Amend clause 21 of the Draft Bill to better promote the right to
equality and non-discrimination and ensure adequate consultation is undertaken
with affected groups. The submissions of the Discrimination Law Experts Group,
the HRLC and the National Congress of Australia's First Peoples should be
considered as part of this amendment process.
Recommendation 11
1.41
Amend clause 39 of the Draft Bill to incorporate accountability
and transparency mechanisms, including clarification of the term 'other
relevant factors'. The Explanatory Memorandum should also be amended to provide
further clarification and explanation of the purpose of the exception.
Recommendation 12
1.42
Amend the Draft bill to include a positive duty on the public and
private sector to promote equality and eliminate unlawful discrimination.
Recommendation 13
1.43
Amend clause 60 of the Draft Bill to extend coverage of the right
to equality before the law so that it applies to all protected attributes.
Recommendation 14
1.44
Amend the Draft bill to make provision for representative
complaints by the AHRC or public interest organisations on behalf of
individuals or groups experiencing discrimination.
Recommendation 15
1.45
Consider amending the Draft Bill to prioritise and allocate
responsibility for sexual orientation, gender identity and intersex issues with
a member of the AHRC.
Senator
Penny Wright
Australian
Greens |
Senator Sarah
Hanson-Young
Australian Greens |
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