Chapter 5
THE NATURE OF ANTI-DISCRIMINATION LEGISLATION
Introduction
5.1 However detailed the proposed legislation, its effectiveness may
be limited if the mechanisms by which it operates are clumsy, drawn out,
expensive and effectively loaded against the individual complainant.
5.2 Many witnesses to the Committee indicated some considerable dissatisfaction
with the process and procedure of existing anti-discrimination legislation,
both State/Territory and Commonwealth. Certain concerns were clearly related
to the existence of anti-discrimination legislation itself, especially
that it was unnecessary; that it duplicated existing legislation; that
it provided privileges to a few, and took away the rights of the majority
especially to free speech. It was also believed that it emphasised rights
rather than responsibilities; [1] that it established
too many rights; [2] and that it also took away
rights and values which the community as a whole valued. [3]
5.3 A number of complaints, however, concerned the structure and process
of anti-discrimination legislation and its location within the various
anti-discrimination commissions. These complaints, reflecting opinion
from a number of different groups, were concerned with:
- the basic structure of legislation, which is primarily complaints-based;
- the existence and extent of exemptions; and
- the roles and responsibilities of anti-discrimination commissions
or tribunals.
Structure of the legislation
Complaints based approach
5.4 All anti-discrimination legislation in Australia, whether Commonwealth
or State/Territory, is described as complaints based, meaning that individual
actions are only generated by the making of a complaint by the person
or persons who believe they have been discriminated against.
5.5 One of the major objections to complaints-based legislation is that
it is seen as favouring those who have resources and time, and that aggrieved
individuals rarely have either. [4] While there
is no automatic correlation between such legislation and the need for
substantial input by the complainant, it seems that a number of factors
have resulted in a high workload coupled with a long waiting time for
a hearing, especially in respect of Commonwealth legislation.
5.6 This situation may change given the substantial changes recommended
in respect of the operation of the Human Rights and Equal Opportunity
Commission. [5] At the time of the Committee's
hearings, however, several witnesses stated that the number of complaints
made, and the existence of both State and Commonwealth legislation (which
led to some confusion about the better jurisdiction) were factors affecting
the effectiveness of existing forms of anti-discrimination legislation:
[6]
'It takes a lot of energy for a person to make a complaint in the first
place and to pursue a complaint. I often explain to people, 'If you
are going to embark on this course, it is going to require you to put
some energy into it', because often there are ways and means [by] which
people stall off things in an attempt to allow time to pass and to let
the thing fade out, and so on. In some senses, when you are making a
complaint, you need to be in reasonably good shape to make it. If you
have some of those underlying uncertainties - and, perhaps, intimidation
- hanging over your head, then you are much less inclined to go ahead
with the process.' [7]
5.7 Another witness raised a problem which affected all States especially
but may have had more disadvantage for Western Australia:
'...I am concerned with HREOC being basically administered out of New
South Wales ... I find this a bit onerous for individuals, firstly,
to lodge the complaint and, secondly, for it to be dealt with...
For individuals to be doing this across Australia is very difficult.
For them to come across for conciliation conferences et cetera is very
difficult ... it has to be accessible to the community, or else ...
go through the state equal opportunity commission.' [8]
Numbers of Complaints
5.8 Although a very small percentage of complaints ever reached the stage
of a hearing, numbers of complaints made per annum were increasing. [9]
Each of these had to be dealt with in some way, through discussion, conciliation,
withdrawal or hearing, and this process was time-consuming. 'The gay and
lesbian community in WA have lodged a claim of discrimination with HREOC
against the WA museum over an issue which happened a year ago but HREOC
has not yet even opened that case because it is so snowed under with work.'
[10]
5.9 Other witnesses stated that one could not measure the need for (or
the value of) [11] legislation by the number
of complaints - in many cases, people did not bother to complain because
of a lack of jurisdiction by a discrimination tribunal or authority:
'It is a very well known fact that there is no point in contacting
the Equal Opportunity Commission [in Western Australia] for there is
nothing that we can do.' [12]
5.10 In other cases people did not make complaints but in itself this
was no indication of a lack of problems. It was more indicative of a lack
of ability to take the necessary steps:
'...those who are most marginalised, and most in need of protection
from the law, are the least likely to trust or have contact with complaint
bodies.
when they do come forward they are among the least likely in the community
to be able to comply with the procedures to establish their case;
the nature of the alleged unlawful conduct may be such that individuals
affected are less likely to complain, due to concern about publicity
of the incident exposing them to further discrimination or harassment;
the systemic or endemic nature of the alleged unlawful conduct is such
that changes in practice will not be achieved through the resolution
of individual complaints.' [13]
5.11 The Anti Discrimination Board of New South Wales also noted that,
although a number of potential formal complaints were averted because
of the Board's or Commission's role in providing information and working
through a situation, [14] these necessarily
added to the Board's work. A similar situation was reported in Queensland,
where information and education services averted formal complaints but
did deal with difficult situations on a less formal basis:
'...we should not make too much of the fact that the percentage of
complaints is low. The ethnic communities, the indigenous communities
and the gay and lesbian communities also will tell you over and over
again that one of the significant indicators is not so much the number
of complaints that come but the number of problems that are solved simply
because people are able to draw attention to their rights under legislation
... So, while the statistics are low, our feedback consistently from
the communities that utilise the legislation is that its mere existence
is a significant influence on behaviour in the community.' [15]
Two or more jurisdictions
5.12 The existence of two jurisdictions in some states could create some
problems, [16] especially where there was some
overlap between the legislation. In some cases a complainant might have
to balance up the benefits and disadvantages of using the Commonwealth
or the State/Territory legislation:
'...in the areas of overlap, my view is very strongly that there should
be consistency. It makes for unnecessary pain and expense for complainants
and for people such as ourselves who administer this legislation to
weave our way through technical difficulties around, for example, the
fact that "lawful sexual activity" are the words in Queensland
and "sexual preferences" are the words somewhere else; or
that "sexual harassment" means this in Queensland and something
else in New South Wales.
There are also different technical requirements about lodgment dates
and timelines for various procedural steps and so on. This all makes
the choice of jurisdiction complex and difficult, but then that choice
of jurisdiction can have a significant impact on the eventual outcomes.'
[17]
5.13 It was also noted by witnesses that other legislation might exist
at a State or Commonwealth level which could duplicate existing or proposed
legislation - for example, legislation in States could provide some protection
in respect of incitement to hatred [18] and,
as many witnesses pointed out, the law of libel and assault could be used
to cover a number of issues complained about. [19]
Some anti-discrimination legislation therefore ran the risk of duplicating
an existing service and thereby perhaps devaluing its contribution. [20]
5.14 A somewhat different problem with multiple jurisdictions was also
highlighted in the Committee's hearings. It was noted that people might
consider a state was well served because it had access to at least two
sets of legislation and would fail to take into account the possibility
of some of that legislation either being removed or having little value:
'No doubt the committee would have heard evidence ... from the anti-discrimination
commissioner that the legislation is no longer safe. It is certainly
under threat in Queensland; only last week we saw it rejected by the
Western Australian government and Tasmania has still refused to enact
that legislation. So I think that nexus between state and Commonwealth
legislation needs to be removed. I do not think you can connect the
two of them.' [21]
5.15 In a similar vein - although not suggesting the demise of state
legislation - the Victorian Equal Opportunity Commission advised that
the content of any proposed Commonwealth legislation should not be directly
related to state coverage:
'We have put the view that any Commonwealth legislation should not
operate on the basis of the lowest common denominator. It should not
seek to remove any benefits that already exist in state legislation.
To that extent it should not be narrower than any existing state legislation,
so that the highest level of protection is maintained.' [22]
5.16 The Anti Discrimination Board of New South Wales also supported
the idea of both State and Commonwealth legislation operating. [23]
Intent
5.17 'Intent' has a limited place in most Australian anti-discrimination
legislation, and this necessarily affects the nature of the evidence that
may be admitted. Actions can be determined to be discriminatory regardless
of intent, and systemic discrimination is by its nature without conscious
intent, although it could be argued that there is a well established intent
or desire to maintain a status quo behind systemic or institutionalised
discriminatory practices. The major objective of the study of systemic
discrimination is to make people aware of the factors which may be influencing
their actions and those of an organisation, and to demonstrate there must
be a more conscious desire to change, or to implement less discriminatory
practices. [24]
5.18 Intent in most cases is also extremely difficult to demonstrate.
In the New South Wales Anti Discrimination Act 1977 Section 20B, the anti-vilification
provisions do require some assessment of intent and knowledge:
'Definition of "public act"
In this Division, "public act" includes:
(c) the distribution or dissemination of any matter to the public with
knowledge that the matter promotes or expresses hatred towards, serious
contempt for, or severe ridicule of, a person or group of persons ...'
[25]
5.19 The first case brought under this provision relied substantially
on the issue of awareness of the defendants that their words and actions
were detrimental to the individual. Awareness of the provisions of the
legislation, however, was not required.
5.20 The relevant clause in the Sexuality Discrimination Bill 1995 (Clause
26) does not raise the issue of intent. Evidence to the Committee from
the Law Institute of Victoria suggested that a specific statement concerning
the irrelevance of motive would be useful:
'Section 10 [of the Victorian Equal Opportunity Act 1995] ... provides
that 'In determining whether or not a person discriminates, the person's
motive is irrelevant." It makes it clear that a person who does
not 'mean' to discriminate, or does not realise they are doing so, can
still be found to have discriminated unlawfully if action is taken on
a prohibited ground. We believe the provision clarifies the fact that
discrimination can be conscious or unconscious.' [26]
5.21 The Committee believes that this type of provision is useful and
should be added to the Bill.
5.22 Given that information on sexuality and gender anti-discrimination
issues will need to be provided, especially in the workplace, the Committee
believes that priority should be given to information and education programs
on the implications of the bill.
Recommendation 1
That a clause be added to the Sexuality Discrimination
Bill 1995 which makes motive irrelevant.
Clause 6(7)
'In determining whether or not a person discriminates, the person's
motive is irrelevant.'
Formality of Processes
5.23 In order to improve access to available legal processes, there has
been an emphasis in much anti-discrimination legislation on having as
informal a process as possible. The intention is primarily to encourage
an environment in which issues are discussed and worked through without
the need to use expensive legal resources:
'We try to make [the complaints] process as user friendly as possible
for all sides. Obviously, at the conciliation stage that is probably easier,
but also at the hearing stage the commission has tried to keep an emphasis
on being as non-legalistic as possible and on assisting both complainants
and respondents and other witnesses to be able to deal with the matter
in the least stressful way possible.' [27]
5.24 With the changes to the operation of HREOC arising from the Brandy
case it was possible that greater formality would occur. However, given
that the greater part of HREOC's work involved dealing with complaints
rather than with formal hearings it was hoped that the relatively informal
atmosphere would be able to be continued. [28]
5.25 The informality of hearing proceedings is generally assumed to benefit
the complainant, and this is more likely to be the case than otherwise.
However, this does not mean that the respondent is disadvantaged by this
process, or that he or she does not also receive some advantage from the
absence of a number of legal processes.
Type of Evidence
5.26 Anti-discrimination legislation may not encourage a formal legalistic
process but it does allow it. In order to balance this to a degree, provision
is made for a different quality of evidence to be given, reflecting the
fact that many complainants may have limited access to legal assistance.
5.27 Another contributing factor to the more relaxed rules is that the
nature of evidence in discrimination cases is often nebulous. Much may
depend on perception, rather than action; it may be difficult for a person
to express his or her rejection of statements or actions; and, most importantly,
much discriminatory action can be either 'indirect' or, where direct,
may be carried out without any witnesses. Corroboration of evidence is
therefore unlikely.
5.28 This point was referred to by some witnesses to the Committee's
inquiry, although sometimes indirectly. As noted above, there was substantial
objection to vilification provisions for a number of reasons, [29]
including the fact that there may be a limited relationship between the
respondent and the outcome of his or her act. In such instances, the evidence
relating to 'intent' might be perceived as tenuous. [30]
5.29 Others stated that they were concerned the quality of evidence
might deteriorate with the development of sexuality and gender discrimination
legislation: [31]
'...the whole treatment of the HREOC in this bill is clearly, to my
mind, preferential. They can write their own rules of evidence. They
consider evidence that is not considered in a court of law. ' [32]
Systemic discrimination
5.30 Most anti-discrimination legislation contains provisions which address
issues of systemic discrimination as well as individual discrimination.
Systemic discrimination can often only be addressed by the Commonwealth
and state discrimination administration bodies identifying institutionalised
discrimination and developing strategies to overcome this.
5.31 Systemic discrimination, by its nature, is often hard to identify
as discrimination, as opposed to being seen as normal or standard actions
and beliefs:
'The commission has also recognised that it is not just individual
acts of discrimination that the legislation would be intending to deal
with ... but that there appears to be some systemic discrimination in
the systems and services operating within the community that fail to
adequately affect the status of homosexuals and lesbians.' [33]
5.32 One witness drew attention to this fact when referring to the issue
of exemptions in legislation, especially exemptions granted to religious
organisations. Making a distinction between religious belief and the practices
of religious bodies, the witness stated that institutional discrimination
was often perpetuated by granting unnecessary exemptions to various organisations.
[34] A similar point was made by another witness:
'...I think what we need to bear in mind is that discrimination is
not something which just occurs in terms of one individual acting against
another individual. Discrimination is systemic. In other words, there
are certain groups within society that, within the structures and institutions
of society, are regularly given a lesser status. In my opinion, discrimination
law should not only attempt to redress the acts of individuals against
other individuals, but also attempt to address these issues of systemic
discrimination.' [35]
5.33 Other witnesses believed that this type of systemic discrimination
needed to be addressed. One of the ways in which this could be done, they
believed, was to make a clear distinction between an organisation and
any other service it might provide. One example, was that one could allow
discrimination in respect of clergy in churches, but not in respect of
other employees, such as teachers or other staff in religious schools.
[36]
5.34 Some witnesses identified the exclusion of people from ordinary
life as a clear expression of systemic discrimination:
'As long as lesbians and gay men are denied participation in all aspects
of public life, real systemic equality - an agenda which all governments
must support - will never be achieved ... Without a voice, lesbians
and gays do not cease to exist - if you like, they have the option of
remaining invisible. It is the invisibility which is, perhaps, the worst
kind of discrimination thrust on gay men and lesbians in our society
... To the extent that lesbians and gay men are rendered invisible ...
a system of gender inequality, of sex discrimination as we know, it
will remain intact.' [37]
5.35 The same witness also stated that systemic equality had to apply
to every sphere. In this context, evidence was given that much anti-discrimination
legislation applied primarily to public acts, but systemic discrimination
was not restricted to such actions:
'Hatred has to start somewhere. The KKK in the United States spreads
its message by beginning with community hall meetings which it labels
private. These private meetings are as harmful as anything which is
distributed publicly. I think we have to get over the idea that harms
do not exist in the private sphere or that there is some kind of sacred
space in the private sphere. [38]
Roles and responsibilities of the parties- the complainant and the
respondent
5.36 In much anti-discrimination legislation, the traditional respondent
has had limited direct responsibilities. He or she must be aware of their
rights and responsibilities in respect of the provisions of the legislation
in areas of employment accommodation and so forth. He or she must assess
and evaluate the need for taking various actions in order to conform with
requirements, and must establish the reasonableness of various actions
such as making provision for access to premises or employment, as for
people with disabilities; or providing facilities for people of one gender
when most employees are of another gender. Apart from such actions, the
role of the respondent is usually seen as reactive.
5.37 In respect of the ILO Convention 111, the balance of power was very
much towards the 'respondent' because of the limited power of HREOC:
'In many cases, it is not all that easy to get the cooperation of respondents,
in particular, who are involved in complaints. In many cases, in my
experience, potential complainants have decided that it is not worth
their while to pursue a complaint of discrimination because even if
it was found in their favour, the outcome is dependent on the cooperation
of the respondent, and this may not be forthcoming.' [39]
5.38 The individual complainant [40] in complaints-based
legislation must establish a number of factors. These include:
- establishing that an event or action or series of these has occurred;
- establishing that these actions were discriminatory within the meaning
of the legislation; [41] and
- in some areas of legislation, demonstrating that the actions were
not reasonable in the circumstances. [42]
5.39 The issue of vicarious liability has had very little consideration
in Commonwealth anti-discrimination legislation, certainly when compared
with State anti-discrimination legislation. [43]
Thus, most Commonwealth cases are about individuals within organisations
rather than the organisation and its practices. This effectively allows
an organisation to continue operating in a discriminatory fashion:
'This is neither cost effective nor effective in addressing the systemic
nature of the discrimination. It furthers the Respondent's position,
in that the Respondent is more likely to be in a financial position
to settle the few complaints that may be lodged and continue with what
may be a cost saving discriminatory practice.' [44]
5.40 This responsibility for providing evidence of a complaint has been
seen to contribute to the stress placed on complainants who also experience
'burn out' arising from the extensive administrative and related processes
linked to pursuit of an issue through various channels: [45]
'The legislation must provide for a simple and inexpensive dispute
resolution process which includes compelling people to attend conciliation
where appropriate, allows for education to be imposed as part of the
resolution and empowers HREOC to enforce an agreed resolution.
Generally we are supportive of the process proposed in the Bill but
it is vitally important that HREOC be provided with adequate funding
so that we do not have the same situation which has occurred with similar
legislation where substantial backlogs have meant people waiting for
years for a complaint to be dealt with.' [46]
5.41 Some witnesses to the Committee also raised the issue of whether
in fact homosexual people (and, to a lesser extent, bisexual and transgendered
persons) could in fact be considered in the role of complainant. This
approach was based on the belief that complainants were to be seen as
powerless but homosexuals did not fall in that category:
'There is a myth that is being allowed to continue about the homosexual
community. The myth is that it is a weak or misrepresented or misunderstood,
or poorly represented, part of the society or part of the community.
We believe that the homosexual community has a very powerful lobby voice,
that it is very well represented and is a very articulate and, dare
I say it, well financed group.' [47]
5.42 A logical outcome of this belief is that it would be a mistake to
provide special services for such a group because they could not demonstrate
clearly that they were disadvantaged. Hence the argument that the proposed
legislation would not establish rights for the needy but would provide
privileges for a small but powerful group. [48]
5.43 Witnesses therefore believed that the role of the respondent had
been ignored, and that in fact there was considerable responsibility placed
on respondents or potential respondents. There was some discussion of
possible frivolous and vexatious use of the system by complainants [49]
which could lead to considerable expense being incurred by respondents.
[50]
5.44 Much of the dissatisfaction with existing and proposed anti-discrimination
law, however, appears to be concerned with provisions which seek to impose
some controls on individual 'liberties'. Many witnesses suggested that
existing vilification provisions in other legislation had demonstrated
the burden of evidence now unfairly placed on respondents (as well as
a belief that this aspect of the relevant legislation interfered with
free speech -'Anybody who opposes the normalisation of homosexuality will
be in fact attacked under the vilification law'): [51]
'All that must be established beyond the public act of threatening
is the likelihood that hatred would be incited. This overlooks the chance
that the incitement of hatred may be an indirect and completely unintended
effect of the act and merely the product of a totally unreasonable response
on that part of the audience.' [52]
5.45 Some of the resistance to aspects of the proposed legislation was
based on a misunderstanding of requirements, such as that regarding leasing
of accommodation within a private household. The objections, however,
do demonstrate a concern that the freedom of the individual would be reduced,
[53] and the capacity to control one's life
would be more limited:
'...you do not have to impose in the homes of private people. What
is going to happen if these homosexual transgender people are given
a private room in a home. Are they then allowed to bring in their -
what will I say - class members into that home to their bedrooms and
behave as they wish as a matter of rights?' [54]
5.46 Exemptions, however, are generally available in respect of certain
types of employment and accommodation. [55]
In the draft legislation, the same range of exemptions and responsibilities
is imposed on respondents as is to be found in other anti-discrimination
legislation. The only additional area of responsibility for respondents
is to defend a charge of vilification, but this does not necessarily require
actions more onerous than those required to mount a defence against other
charges. For the complainant, vilification is not necessarily any less
difficult to prove than any of the other grounds.
5.47 Some witnesses, indeed, believed that the number and coverage of
exemptions in anti-discrimination legislation benefited respondents and
the existing social structure. Thus, although anti-discrimination legislation
existed, its effect could easily be limited by permitting exemptions;
by allowing exemptions for groups (as in the case of community services
provided by religious organisations); [56]
or by increasing the burden on the individual complainant to meet various
criteria in order to demonstrate that discrimination might have occurred
(as in the case of the Queensland vilification legislation, which has
a double requirement): [57]
'...exemptions need to be very carefully considered ... If [they] are
too broad, and if they are not very carefully worded, then the redress
functions for vilification are notional only.' [58]
5.48 Witnesses also suggested that many of the complaints about the responsibilities
imposed by legislation were misguided, and that supposed burdens for respondents
were actually limited. In the case of vilification legislation, for example,
it was not uncommon for people to suggest scenarios which appeared to
be complex and as imposing burdens on ordinary people that would be difficult
to meet, as respondents. A more objective consideration of such scenarios,
it was argued, suggested that most eventualities were unlikely to occur:
'In the sorts of examples of vilification that groups bring to us,
it is generally quite easy to see the line between a free expression
of one's own views and the right to hold one's views as opposed to vilifying
and being hostile towards other groups because of their right to have
their own views. It is when you see those daily examples that it becomes
quite clear that those lines can be drawn.' [59]
Individualisation of Complaints
5.49 The complaints based approach has also been seen as a process which
tends to fragment issues and limit the systematic analysis of systemic
discrimination - 'the individualised approach permits attention to be
effectively deflected away from the institutional oppression': [60]
'The ICLC conducts considerable discrimination legislation in both
the state and federal systems. It is our experience that individual
complaints based anti-discrimination laws, both state(NSW) and federal,
often fails to adequately address systemic discrimination. Representative
actions are often beset with procedural problems which hinder the capacity
of such actions to do so and again force the onus of the system on aggrieved
individuals. It is important, in developing any new federal legislation
which will increase the net of anti discrimination coverage, to examine
the problems with the system as it now exists.' [61]
5.50 A fairly broadly based anti-discrimination legislation may also
stack the dice against complainants by widening the field of coverage.
As noted above, many witnesses argued that it would be a mistake to extend
the definition of 'sexuality' to include heterosexuality, [62]
and this argument appeared to be based on fairly pragmatic grounds: that
the inclusion did not reflect reality or the experience of people who
had been discriminated against for a long time. However, some witnesses
also went on to suggest that the development of special measures or positive
discrimination, as a means of compensating for an all-encompassing definition
of sexuality, was time consuming and therefore could be detrimental to
potential complainants:
'...the principle of essential equality' cited by Senator Spindler
... is thus misplaced in covering heterosexual people ... neutrally
phrased legislation may be used as a toll to increase discrimination
... Special measures exemptions are a cumbersome and unnecessary method
of dealing with this issue ... the burden of defending hostile uses
of the legislation, and of seeking exemptions, will fall upon lesbians
or gays.' [63]
5.51 Reference was made on several occasions to the time and resources
utilised in defending 'frivolous' cases, and it was believed that people
would attempt to waste existing resources by complaining they could not
get access to certain venues or services even if such access was not really
required. [64]
5.52 In these instances, the emphasis was more on the lack of good faith
by complainants who were thought of as being more members of a 'respondent'
class, the instance most commonly referred to being that of the Proudfoot
case. Some groups clearly separated this frivolous and timewasting action
from complaints by those who were being discriminated against by institutionalised
behaviours or socially sanctioned violence by individuals.
Direct and Indirect Discrimination -Comparability and Proportionality
[65]
5.53 Anti-discrimination legislation presupposes a norm against which
all members of society compare themselves or are compared. This occurs
in those sections of legislation which require that the aggrieved person
establish that they are treated 'less favourably' than others, or that,
in indirect discrimination, they must comply with a requirement which
is more easily met by others not distinguished by the same characteristics
as themselves.
5.54 The comparability principle is generally used in anti-discrimination
legislation in two ways. In direct discrimination clauses it provides
a contrast between two similar circumstances, demonstrating that in a
situation the only distinguishing factor between two parties may be their
race or their sexual orientation, not their skills or their experience.
5.55 In sexuality discrimination comparison is generally used in direct
discrimination clauses where the legislation seeks to establish that discrimination
can occur if the aggrieved person believes he or she has been treated
less favourably than a person from another group. One of the problems
with comparisons is that they may not be carefully phrased. If so, this
can allow comparison with a group which may have some characteristics
(real or perceived) in common with the aggrieved person. [66]
In such cases, the aggrieved person may not be deemed to have been discriminated
against. [67]
5.56 In indirect discrimination, comparability or proportionality can
help demonstrate that some qualities or skills may not be as characteristic
of or as common to one group as they are for another; and that either
such qualities are not essential in a situation or it is not reasonable
to expect that all people have them to the same degree.
5.57 An example of this would be a requirement to have a certain level
of education as a prerequisite for employment when a substantial proportion
of a community had not had access to that level of education and it was
not reasonable to expect that level of education for that position.
5.58 In indirect discrimination, the comparability approach can reinforce
a stereotype of what is normal in society. Women must compare themselves
with men, homosexuals with heterosexuals. This can perpetuate a norm which,
in fact, the legislation itself is trying to change - in short, the ends
of the legislation may indirectly be affected by the processes utilised
in the legislation:
'... all of the statutes use this reasonably pure test, which we call
the 'but for' test. The idea is that, when you test for discrimination,
you look at the actual or hypothetical treatment of a person who shares
all of the characteristics of the complainant other than the ground
upon which the complaint has been lodged. For example, a homosexual
person, in order to demonstrate discrimination on the ground of homosexuality,
would have to be able to point to an actual or hypothetical situation
in which a person who was the same in all respects but heterosexual
was treated more favourably.' [68]
5.59 Insofar as the process of comparability results in people being
defined by certain characteristics or imputed characteristics, it has
been argued that this approach tends to emphasise the specific characteristic
of the individual aggrieved (whether this is sex, sexuality, disability,
race, age or other factors) and does not consider them as a whole person.
[69] This is true to a degree, but is perhaps
an inevitable component of such legislation; such an approach can only
be overcome by general rights legislation or constitutional change which
acknowledged that certain rights existed for all. The onus would then
be on the perpetrator to demonstrate reasons why such benefits could not
be extended. [70]
5.60 One witness was opposed to the definition of 'discrimination' in
the Sexuality Discrimination Bill 1995 which requires that less favourable
treatment be demonstrated by comparing two groups. He suggested that the
example of the ACT legislation be followed instead. In the ACT Anti Discrimination
Act, he believed:
'...the requirement for unlawful discrimination is that a person is
treated unfavourably because of their sexuality (or whatever ground)
without the requirement of a comparison being made to the way other
people are treated. The latter approach is in my view preferable as
it accords with real equity rather than with a merely formal equality.'
[71]
5.61 The comparability approach may also require the disadvantaged group
to demonstrate in reality some quality, characteristic skill or ability
that other persons or groups do not have to demonstrate. In the draft
sexuality and gender legislation, the current version of the indirect
discrimination clause (Clause 6(2)) does not require the proportionality
test, since it only refers to an unreasonable requirement with which a
'substantial proportion' of people of other than heterosexual status cannot
comply. It does not require that the ability of the non-heterosexual community
to comply should be compared with that of the heterosexual community:
[72]
'[the clause] means that any practice or policy that cannot be met
by a substantial proportion of gay men and lesbians constitutes unlawful
discrimination, whether or not it can be complied with by any heterosexual
people. This move away from the proportionality test represents a significant
shift in the concept of indirect discrimination.' [73]
5.62 This witness did not appear to fully support this move, stating
that it would be preferable to replace the proposed Clause 6(2) with provisions
equivalent to those in the amended Commonwealth Sex Discrimination Act
1984 which reflected a more sophisticated concept of indirect discrimination.
[74]
5.63 The Anti-Discrimination Board of New South Wales, however, specifically
objected to the non-comparability approach on the grounds that an absence
of comparison effectively made the provision very difficult to operate:
[75]
'The test in Clause 6 does not contain an element that [a] requirement
or condition disadvantage a particular group, or that a higher proportion
of persons who are not members of that group could comply with the requirement
or condition. In effect this means that a person could complain they
have been discriminated against indirectly, even if a substantial proportion
of all people could not comply with the requirement or condition.
The current wording of the section removes the element that the particular
group of people be discriminated against by the requirement or
condition. The fact that the requirement or condition must not be ''reasonable
in all the circumstances" does not assist, because of the fact
that 'reasonableness" has not been defined to include considerations
of whether the particular group has been discriminated against.' [76]
5.64 The Committee has noted these concerns and has suggested changes
to the current Clause 6(2). The changes will require a complainant to
demonstrate that the action is clearly disadvantageous to any individual
or group, rather than the action being assumed to be disadvantageous because
it is discriminatory. The intention of this is to avoid frivolous and
vexatious complaints, not to require a greater proof in respect of valid
complaints
Recommendation 2
That indirect discrimination on the grounds of sexuality be demonstrated
to cause a disadvantage to the complainant
Replace Clause 6(2)(b) with the following:
Clause 6(2)(b) 'that, on the balance of probabilities, is considered
to cause disadvantage to the aggrieved person or group.'
5.65 The difficulty of some proportionality tests was also noted by the
New South Wales Anti-Discrimination Board, with respect to transgender
discrimination. The Board suggested that some transgender persons might
be able to comply in such tests while others might not. In short, there
was little value in considering all transgender persons as one group,
and, indeed, to do so could reflect a discriminatory approach. It would
be preferable to acknowledge that male to female and female to male transgender
people differed from each other and possibly from some, though not necessarily
all, other groups in society. The Board noted that the most effective
way of doing this would be to impose a test which examines if there was
any disadvantage to a complainant group:
'...there may be particular problems in attempting to apply a 'higher
proportion' test ... in the area of transgender discrimination.
This arises from the fact that while male to female transgender persons
may be unable to comply with a requirement or condition, female to male
transgender persons may be able to comply (and vice versa) ... An example
of an alternative test is that found in the Sex Discrimination Act 1984,
which looks at whether the requirement, condition or practice has a
disadvantageous effect on persons in the complainant group.'
[77]
5.66 The Anti Discrimination Board of New South Wales also proposed that
there be two different tests of direct discrimination in respect of transgender
persons, a suggestion intended to overcome the possibility of a person
not being treated as if they were a member of the sex with which they
identified - regardless of re-assignment surgery. [78]
5.67 As noted, the current form of the Commonwealth sexuality legislation
does not include a reference to indirect discrimination in respect of
transgender persons. Those who referred to this gap in legislation suggested
that a clause should be added, for the sake of uniformity and broad coverage:
'While the practical applications of indirect discrimination on the
ground of transgender identity may be limited, this does not justify
omitting such a provision from the Bill. The fact that situations may
arise means that it is imperative that such discrimination be made unlawful,
as it is with all other grounds of discrimination at a Commonwealth
level.' [79]
5.68 The Committee has considered these issues and believes that a clause
on indirect discrimination in respect of transgendered persons should
be added to the Bill. Noting the comments above in respect of the difficulty
of applying the 'higher proportion' test in respect of transgendered persons,
and the importance of not suggesting that transgendered persons are a
similar group regardless of gender, the Committee recommends changes which
refer to demonstrable disadvantage and acknowledge the different groups
of transgendered persons. [80]
Recommendation 3
That a Clause be added to the Sexuality Discrimination Bill 1995
to cover indirect discrimination in respect of transgender people.
Replace 6(4) (which becomes 6(5)) with the following:
Clause 6(4)(a) 'A person (the discriminator) also discriminates against
another person (the aggrieved person) on the ground of transgender identity
or status if the discriminator requires the aggrieved person to comply
with a requirement or condition that, on the balance of probabilities,
is considered to have a disadvantageous effect on the complainant group;
(b) for the purposes of this Clause, a 'complainant group' is restricted
to transgendered persons of one gender, regardless of re-assignment
procedures.'
Reasonableness/Reasonable in the Circumstances
5.69 A key factor in discrimination is the issue of whether any requirements
or discriminatory actions are 'reasonable'. This test can occur in a number
of arenas, usually in the context of direct or indirect discrimination,
but also in the area of providing benefits for a specific group. It is
possible for the word reasonable to exclude or include certain actions,
with the main proviso being that actions are reasonable ' in the circumstances'.
5.70 Neither the word 'reasonable' nor the phrase ' in the circumstances
' is defined in legislation, given that assessment must be made on an
individual basis. However, the Equal Opportunity Commission of Victoria
stated that the reasonableness tests in the Victorian legislation were
important in reassuring people that exemptions from provisions were not
so broad as to be without value:
'...in looking at some of the wording in those exceptions, there are
some objectives tests ... which we have said would be very difficult
to establish to our satisfaction that the exception applies ... I think
people have found some comfort at least in the fact that the precise
wording of the exceptions does enable some reasonableness tests and
some objective[s] tests before anyone could attempt to rely on them.'
[81]
5.71 In its comments on the draft Commonwealth sexuality and gender legislation,
the NSW Anti Discrimination Board stated that it would be useful to specify
those factors that were deemed relevant in determining whether an action
was 'reasonable':
'...in the Board's experience there has been much confusion on the
part of respondents in relation to the term "reasonable in the
circumstances". In order to attempt to reduce the level of uncertainty
created by the use of such terms, the Board recommends that the Bill
outline factors which can be taken into account in determining whether
a requirement or condition is "reasonable in the circumstances"'.
[82]
5.72 One of the difficulties with standards of reasonableness is that
it is open to a tribunal to determine such standards, which may differ
from those of the complainant. [83]
5.73 The Committee considers that a 'reasonableness test' clause should
be added to Clause 6(2) if the changes recommended above at Paragraph
5.68 and the following Recommendation are not accepted. The example to
be followed is the reasonableness Section in the Sex Discrimination Act
1984 (Section 7B).
Special Needs Groups
5.74 Even within specific anti-discrimination legislation, some categories
of people may require special attention in order to ensure that they are
afforded the same types of protection as others. Without this, there may
be situations which create a more disadvantaged set of complainants.
5.75 This point was made by one witness who noted that the basis of the
legislation - other anti-discrimination legislation, especially the Commonwealth
Sex Discrimination Act 1984 - was sound, but should not be slavishly followed:
'...there is a need to consider more carefully the extent to which
discrimination based on sexuality and transgender identity presents
the same kinds of issues as sex discrimination, and, conversely, the
extent to which the two forms of discrimination are sufficiently different
to require different provisions.' [84]
5.76 One of the problems for people of transgender status is that the
actual lack of recognition of transgender people can exclude them from
the protection of existing laws, such as sex discrimination legislation,
without necessarily giving any protection under other laws. Although there
is no reason why a transgender person cannot be protected through 'but
for' or 'comparability' clauses, these need to be carefully worded in
order to compare appropriate groups. As was noted above, some ambiguity
exists in current legislation which may exclude a person from coverage,
or which may make comparison virtually impossible. [85]
5.77 Those who appear to be most vulnerable would be people who sought
to live as members of one sex but were not so defined by any official
body. At present, this means that these people have not undertaken re-assignment
surgery and are not planning to do so, insofar as there is some recognition
of post-operative transgendered persons. Strictly speaking, however, 'there
is no specific legal obligation to treat a transgender person as a member
of the sex with which they identify.' [86]
5.78 The South Australian Equal Opportunity Commission advised that the
Commonwealth legislation should assist in clarifying the situation, insofar
as this was possible, because without a clear guidance in the legislation
a large number of people could well be excluded from coverage:
'Without such legislative guidance, gender identity must be defined
in terms of the common law, that is, in terms of whether the person
is pre- or post- operative or whether or not they have a sex re-assignment
certificate. This will limit the broad definition of transgender which
considers the individual's psychological and social/cultural identity
and not just their chromosomal configuration or gonadal or genital features.'
[87]
5.79 In order to overcome these problems, the Anti-Discrimination Board
of New South Wales suggested that there be two tests of direct discrimination
in respect of all transgender persons. The first would be the usual type
of test, that a transgender person was treated less favourably than a
person who was not transgender:
'The second test should make it unlawful to fail to treat a transgender
person as a member of the sex with which he or she identifies.' [88]
5.80 This recommendation has been accepted by the Committee through the
changes made to Clause 6, acknowledging that discrimination occurs when
a person's preferred and identified gender is not accepted.
5.81 The office of the South Australian Equal Opportunity Commissioner
noted some of the problems that can occur when legislation is not thorough
(although some of the problems referred to have been overcome by the South
Australian Sexual Reassignment Act 1988 which allowed at least post-operative
persons the right to be known in that State, as persons of their reassigned
gender):
'In South Australia we have encountered numerous difficulties where,
particularly transsexuals, not homosexuals, but people who have opted
to take on characteristics of the other sex, and, for example, have
undergone sexual reassignment procedures, have encountered discrimination
but it has been almost impossible to identify their transgender status
as the legal cause of their discrimination because the legal cause has
been their actual legal gender.' [89]
5.82 The major reason for this problem is that sex discrimination legislation
was not devised to deal with change of gender issues, but only with the
discrimination issues of people who had always identified as members of
their birth gender. Thus most sex discrimination legislation presupposes
that a complainant will be arguing that they have been discriminated against
because they are a member of a specific gender or that they are a member
of a specific gender and have been disadvantaged relative to the treatment
available to another gender.
5.83 The difficulty that transgender people experience in this instance
is that they are rarely considered to be a person of their preferred gender.
Hence, it is only if legislation exists at State or Commonwealth level
which considers that all transgendered persons are members of the sex
with which they identify that a complaint of direct discrimination could
be made.
5.84 Without this protection, claims of direct discrimination fail -
if the person is making a complaint that, for example, they have been
discriminated against because they are female. If the law does not perceive
them as female, they cannot progress with such a complaint:
'A male undergoes sexual reassignment and becomes... a female and is
in employment and wants to use female toilets. The transgender person
in that case could not possibly satisfy the test of discrimination elaborated
in clause 6 of this bill or, indeed, in any other instrument in force
in Australia.' [90]
5.85 With respect to indirect discrimination, which generally requires
comparison with another group - such as men - a male to female transgendered
person may find that she is still considered as having certain male characteristics,
and therefore has not been discriminated against.
5.86 In order to allow the usual provisions of anti-discrimination law
to operate, therefore, special attention may need to be given to the issues
relating to transgender people. As noted [91]
a major issue is the extent to which people are ' transgender' or are
rather seen as a member of the sex with which they identify:
'Many of us see no virtue in continuing to be classified as transgender,
or in having a transgender identity, we have a gender identity consistent
with our reassigned status.' [92]
5.87 However, according to the South Australian Equal Opportunity Commission,
certainty with respect to a definition of transgender and especially with
respect to a definite status for all transgender persons, would not be
easy to achieve. The reason for this was that the current definition of
transgender in the Sexuality Discrimination Bill 1995 was broad and all-encompassing.
[93]
5.88 Nonetheless, this problem may not be as serious as is thought. Although
there appeared to be considerable concern that people would move in and
out of a gender identity on a regular basis, [94]
this in fact appears to be a very rare occurrence. It should be possible
to identify as transgender those people who wish to remain 'transgender',
those who may return to their original gender, and those who physiologically
become their preferred gender:
'...to respect our reassignment, transgender identity must not be defined
in a manner that makes it logically impossible for someone to consider
that identity to be transitional for them. By requesting a definition
that can cease to apply after reassignment there is no implication ...
that reassigned persons are "better" than those who do not
seek reassignment, it merely recognises that gender identity is a continuum
and for some people an ambiguous gender reflects their true state whereas
for others it does not.' [95]
5.89 This issue has been dealt with through changing the definition of
transgender person (see Chapter 1, Recommendation 5) and having a specific
definition for a transsexual person (Chapter 1, Recommendation 6) while
still including transsexual people within transgender.
5.90 Those who wish to move on from being a transgender person to being
known as a member of another sex, should be protected by the status of
transgender and having this transgender status accepted regardless of
re-assignment surgery. Sex discrimination legislation, however, does not
accommodate this at present.
5.91 The issue of people who move between genders, and hence may be transgendered
persons, and male or female over a period of time, is slightly more difficult
to accommodate but not impossible. [96] The
main difficulty that is likely to occur is with use of sex discrimination
legislation when a person may be identifying as different genders over
a period of time; logically, however, such problems would be more effectively
addressed by a comprehensive sexuality and gender legislation, than through
sex discrimination legislation. [97]
5.92 The intention of the legislation with respect to other groups may
need to be clarified. As noted above, there was some concern expressed
by the Commonwealth Attorney General's department with respect to the
more difficult issue of those who were occasionally or temporarily 'transgender'.
[98] However, it may be necessary for legislation
to make a distinction between transgender people and those such as transvestites
and drag queens.
5.93 The current form of the legislation seeks to provide protection
to transgender people by providing a comprehensive definition which includes
a statement that a 'transgender' includes a person of one sex who 'assumes
any of the characteristics of the other sex, whether by medical intervention
... or otherwise.' [99] Neither transvestites
nor drag queens actually live or 'seek to live' as a member of the other
sex; [100] nor do they identify as a member
of the other sex. They do not define themselves as transsexual. Thus,
the only area in which they would be covered by the legislation is as
a person 'who assumes any of the characteristics of the other sex'.
5.94 This issue was discussed by the Human Rights and Equal Opportunity
Commissioner, who noted that it was possible that those who held a temporary
status would in fact be better protected by sexuality provisions:
'Where I would have thought that transvestism may have come in, but
does not [in the Commonwealth legislation], is that my understanding
is that transvestism is a form of sexuality. So, if the definition said
sexuality includes those things, I think it would certainly be arguable
that transvestism is covered. But it says 'sexuality means' so that
is restricted to heterosexuality, homosexuality and bisexuality.' [101]
5.95 In Chapter 1 it has been recommended that 'transgender person' is
redefined to include only those persons who live and identify full time
(or as much as possible) as a person of a particular gender, regardless
of re-assignment surgery. [102] Current recommendations
therefore do not provide specific protection to transvestites or any other
person who does not live full-time, or as much as possible, as a person
of the opposite gender, and whose sexuality is not included in the current
definition of sexuality. Persons in this group may need to utilise other
legislation such as that prohibiting assault.
5.96 It was suggested during the Committee's hearings that some protection
may be available to same sex couples through sex discrimination legislation.
Such provisions, if they apply, would be primarily in the area of marital
status and gender (sex). [103] However, given
the major concerns of some same sex couples (income issues, superannuation,
leave and other benefits), use of sex discrimination legislation to deal
with disadvantageous treatment is a second-best option. It is also one
fraught with problems similar to those experienced by transgender people.
5.97 The marital status of same-sex couples, for example, is not an issue
that could easily be brought under sex discrimination legislation, even
though such legislation is concerned to limit discrimination on the basis
of marital status. Where marital status relates to couples, it requires
parties to have a status recognised as marital, and this in turn currently
depends on partners being of a different sex to each other. [104]
Where marital status relates to a single person, the gender of the party
is irrelevant (unless, for example, there is some assumption being made
about likelihood of marriage and children as affecting employment):'Visiting
your bank manager for home loans [is] particularly difficult for lesbians
as most lending institutions are concerned about the prospect of marriage
and children.' [105]
5.98 Where an assumption is being made about employment availability
and so forth in respect of single people who are nonetheless in a partnership,
sex discrimination legislation can offer little special assistance - the
issues are ones which have to be addressed on a sexuality-free basis.
Refusal to provide a service may have a 'sex' basis rather than a sexuality
basis - for example, police may consider all domestic violence where a
women is the victim to be not as much of a crime as other forms of violence.
In such a case, a lesbian woman may be treated the same as a heterosexual
woman, and both may have been discriminated against initially on the basis
of their gender. However, sex discrimination legislation may not be the
most appropriate source of assistance for either. [106]
5.99 Assumptions may also be made about people on the basis of gender,
which would theoretically come under sex-discrimination legislation. However,
it is difficult to see that sex-discrimination legislation offers any
real recourse for same-sex couples. 'Most discrimination against same-sex
couples ... occurs at the state level in areas such as adoption, child
custody, property division, wills and intestacy, access to one's partner
in hospital, et cetera.' [107]
5.100 Male same sex couples are likely to have even less opportunity
to benefit, given that sex-discrimination legislation was primarily intended
to address individual and systemic discrimination against women, both
as women per se and as single or married women.
5.101 These complexities indicate that specific legislation is often
required to address specific situations. This factor was recognised by
many witnesses who indicated that legislation did have to be carefully
drafted since in many cases it did not always meet its objective:
'Persons of the same sex who in all other respects have relationships
which are equivalent to heterosexual de facto relationships are treated
differently. In the Federal sphere this occurs most obviously in the
areas of taxation, superannuation, immigration and health care.
There is some uncertainty as to whether such discrimination is caught
by a law making it unlawful to discriminate on the grounds of homosexuality
... The overarching legislation needs to make it clear that such discrimination
is covered.' [108]
5.102 If marital status is recognised through Clause 107 of the Sexuality
Discrimination Bill 1995, the Sex Discrimination Act 1984 could apply
to same sex couples.
Exemptions and Exceptions
5.103 As was discussed in Chapter 4, anti-discrimination legislation
offers a range of exemptions and exceptions. There are two major types
of exemptions - those which permit a number of groups to be excluded from
provisions on grounds such as religious belief; and those which allow
for affirmative action or positive discrimination to assist in overcoming
past disadvantage.
5.104 Many gay, lesbian, bisexual and transgender groups acknowledged
the claim that some organisations had on exemptions, but they were also
careful to make distinctions between these claims. There was some acceptance,
for example, that religions had a right to exclude some people from their
ministry on various grounds, including homosexuality; there was often
less acceptance that such an exclusion could be legitimately applied to
all areas of a religion's operation:
'In terms of the structures of religious institutions, obviously there
are issues in terms of the state, and the laws trying to enforce certain
things in that regard. So in terms of religious belief, religious doctrine
and the internal structure of religious organisations, in terms of clergy,
et cetera, we quite accept that.
We would have great concern is exemptions were to be looked on in a
broader area, particularly I think with changes with unemployment, the
gender of unemployed people on case management ... We have great concerns
about whether those church organisations would be subject to anti-discrimination
provisions in terms of dealing with unemployed gay, lesbian, bisexual
and transgender people.' [109]
5.105 The issue of exemptions for community services run by religious
organisations has been dealt with through making Clause 28 subject to
Clause 23 which has also been amended. [110]
5.106 A major problem with exclusions and exemptions which shelter organisations
from compliance is that they give a mixed message to the community. On
the one hand the legislation appeared to be suggesting that discrimination
was forbidden; on the other, it suggested that those purportedly protected
had some qualities from which society needed to be protected:
'We are not happy with the concept of exemption, because it does seem
to indicate that society does not fully accept that discrimination is
not acceptable across the board.' [111]
5.107 Another issue related to exclusion was raised by the Victorian
Council for Civil Liberties which believed that grounds which allowed
for a subjective assessment could actually encourage discrimination. This
comment was made in the context of discussion on vilification provisions:
'We have serious concerns with the attempt in this legislation to define
matters which were essentially subjective and impressionistic in nature.
The criteria for safe harbour provisions such as those enumerated in
the bill like reasonably in good faith, academic, artistic or religious
instruction and/or scientific or research purposes would require a judge
to give content to all or many of these expressions. It is our view
that the uncertainty inherent in that exercise is inimical to the law.
The provision is so widely cast that it would simply encourage the expression
of hatred on sexuality or transgender identity. It is, in our view,
a positive inducement to homophobes ... to dress up their views as pseudo
science to being them within the safe harbour provisions.' [112]
5.108 As was noted above, subjective decisions may also make it difficult
for a respondent or potential respondent to determine if he or she is
acting in a fashion likely to constitute vilification or an inducement
for others to vilify. [113]
5.109 A similar problem has also been identified with the processes of
legislation, which 'may further discourage potential complainants from
lodging a complaint.' [114] Legislation which
had a number of exemptions could be seen as making a statement about its
commitment to limiting discrimination, especially if the information required
to fight exemptions or to demonstrate that they were not 'reasonable'
was difficult to collect:
'...the other effect of those exemptions, though, is to actually probably
discourage people from lodging complaints, which then in effect would
mean that the legislation is not actually an effective mechanism of
redress. There does seem to be some evidence of that.' [115]
5.110 Many witnesses to the Committee suggested that affirmative action
or positive discrimination programs were an important part of anti-discrimination
legislation. Some suggested that they were the determining factor in whether
legislation offered equality of outcomes or only a more limited equality
of opportunity:
'A major concern is the extent to which the special measures clause
in the Bill will also allow discrimination by heterosexuals against
those groups sought to be protected by the Bill. Only paragraph a) refers
to equality of opportunity, which could (but need not necessarily)
be interpreted as recognition that non-heterosexuals are disadvantaged
and oppressed and is a term less preferred to equality of outcome or
substantive equality.' [116]
5.111 A further point in the argument for developing affirmative action
programs, or at least not presupposing that equality exists when legislation
starts, is that what is deemed to be normal in society may not be standard
for all members of society. A standard may reflect generations of advantage
or privilege which cannot be compensated for in the short term:
'...it is our view that equality before the law, or equality in any
sense, is not always achieved by "equal treatment". Equal
treatment of people in a society where the standard is heterosexuality
and deviance from the standard has traditionally resulted in discrimination
and prejudice, will not always produce equality of outcome ...' [117]
5.112 This has been clearly stated in a number of overseas arenas which
refer to anti-discrimination legislation of this nature perpetuating people
in their inequality by assuming that at a particular point in time all
people are equal:
'The bottom line in relation to the need for this sort of legislation,
and the proactive parts of this legislation that we would advocate,
is well encapsulated in a comment of Martin Luther King who said that
if you start treating people equally who have previously been treated
unequally, you capture them forever in their inequality.' [118]
5.113 This does support the argument that discrimination legislation
also needs to be reinforced by positive discrimination or affirmative
action legislation which seeks in a fashion to compensate for past exclusions.
5.114 Some witnesses sought to introduce a form of positive discrimination
or equalisation in the legislation, either through excluding heterosexuals
and heterosexuality generally - that heterosexuality not be included in
the term 'sexuality' - or through excluding them from the provisions of
any special measures. [119] There were two
main reasons listed for such exclusion: that discrimination was experienced
by non-heterosexuals rather than heterosexual persons, [120]
and that the legislation should seek to establish or create some equality
rather than continue the existing imbalance:
'...if people were to actually look at who is suffering inequality,
it is actually lesbians and gay men, not heterosexual people ... I think
the idea of anti-discrimination is to redress a wrong ... it is not
always appropriate to treat everybody the same, which is essentially
what anti-discrimination is about, but the concept of direct discrimination
is that everybody is treated the same. If there is inequality sometimes
treating people the same just exaggerates it and makes it worse...'
[121]
5.115 The Anti Discrimination Board of New South Wales was opposed to
including in the Commonwealth legislation any measure which would enable
special measures to be developed for heterosexuals. In particular the
Board believed it was a mistake not to require some evidence of 'special
need' or of measures being required to 'improve' service access. [122]
This approach is also seen in the Board's consideration of the need to
demonstrate disadvantage. [123]
5.116 Other witnesses supported this approach:
'...neutrality in the protected ground tells a lie. It tells a lie
about who is discriminated against and by whom, who is at risk and who
is doing the harm. It is potentially dangerous in that I think it could
provide yet another weapon in the arsenal of homophobic people to harass
and generally make life difficult for lesbians and gay men.' [124]
5.117 Affirmative action or special measures policies were also seen
as a means of maintaining a cultural safe haven and provision of appropriate
services. This type of general provision does exist in much State legislation,
with minority or cultural groups being able to maintain their own services
while still gaining access to more general services. [125]
Witnesses stated that the Commonwealth legislation should offer the same
options:
'...the state provides many services for heterosexuals, most of which
exclude homosexuals. We have, over a period of time, developed our own
services. We contribute our own money. Often we receive no government
funding; some times we receive some limited government funding. But
on the whole, we provide our own services for our own community. We
are concerned that ... we will be forced to extend the very limited
services available to a wider range of people or suffer the repercussions
of complaints.' [126]
5.118 One witness advised that some aspects of affirmative action or
positive discrimination could be addressed in the proposed legislation
by adding the words 'to meet their special needs' to Clause 27(b) of the
draft legislation, [127] an approach similar
to that proposed by the Anti Discrimination Board of New South Wales.
5.119 The outcome of this would be to make it clear that heterosexual
persons do not have unmet needs within a particular context. This would
provide them with protection against discrimination in key areas but limit
their access to special services, [128] and
ensure such access was available only to nominated groups:
'It cannot be said that including heterosexuality would meet any unmet
need, because there is no need for that protection. I think, more importantly,
it would derogate from the protection offered to lesbians and gay men.
I say that because there are a number of gay and lesbian specific groups
that would then be open to heterosexual people under such a ground.
I do not think temporary exemptions and special measures are sufficient
because they are ambiguous and they have been used in ways that would
perhaps not bring about real equality in terms of outcome.' [129]
5.120 This witness re-iterated this point in committee hearings, saying
that exceptions and exemptions were 'an inadequate framework in which
to address these sorts of issues.' [130] The
main reason for this was that the granting of special exemptions in order
to have an affirmative action program would disadvantage those who might
need assistance in advancing their needs: '...obviously, people need to
have sufficient information, understanding and perhaps financial resources
to seek and obtain a temporary exemption.' [131]
5.121 Those witnesses who were opposed to temporary exemptions to advance
specific projects were more likely to be in favour of special measures
which contributed to an equality of outcome: [132]
'If that sort of systemic discrimination is to be allowed to continue
by granting exemptions to these bodies, which still hold a great deal
of power in our society to define what is right and what is wrong, then
that is only going to impact more in furthering the inequality of gay
men and lesbians.
...this is not a question about religious belief ... It is only a question
of the practices [religions] engage in and the way they make people
suffer because of those practices. Religious belief can be what it likes,
but when it comes to a question of how religious institutions and bodies
are to treat individuals, there is no reason religion should not be
subject to the laws of the land in the same way that everybody else
is.' [133]
5.122 The Committee has considered these issues in detail. At Chapter
1 it has recommended that bisexual and transgender people have access
to services. At Chapter 4, it has further stated the view that publicly
funded services are not to exclude people on the basis of sexuality or
gender status. [134]
5.123 It has been stated that heterosexual services have excluded homosexuals
and others, and this may well be the basis for sexuality-specific services
(as well as the belief that heterosexual services do not meet special
needs). However, as no general service will be allowed to exclude on the
basis of sexuality or gender, a demand for sexuality and gender specific
services may be expected to decrease. The Committee considers it is preferable,
especially in areas where resources are scarce, that services and programs
are developed for the whole community and seek to meet the needs of all
members of the community. This belief is reinforced by the statement in
Chapter 4 about the need for careful assessment of special needs programs,
and the recommendation that affirmative action programs and services,
if approved, be reviewed and reported on regularly. [135]
The Role and Function of State and Commonwealth Anti-Discrimination
Boards and Tribunals
5.124 The Human Rights and Equal Opportunity Commission had limited involvement
in the issue of sexuality related rights and discrimination. The HREOC
Regulations of 1989 included sexual preference as a proscribed ground
of discrimination in respect of employment, responding to ILO 111. [136]
This meant that discrimination in employment, and occupation including
in termination of employment, was prohibited on the grounds of 'sexual
preference'. However, HREOC only had conciliation powers in respect of
the regulations and could not progress with an issue if conciliation did
not work:
'...where conciliation is unsuccessful or is deemed inappropriate ...
the Commission may report on the matter to the Federal Attorney General
... This is effectively the only power which the Commission can exercise
if a complaint proves to be non-conciliable.' [137]
5.125 In theory, HREOC also had a watching brief in respect of domestic
legislation to notify when it was in breach of Australia's international
obligations. This has led to separate reports being written on sexuality
issues, including transgender status (Transgenders and Discrimination:
Options for Legislative Protection, 1996). [138]
In 1992, the Disability Discrimination Act, effective from 1993, explicitly
recognised that people could be discriminated against on the basis of
real or perceived health problems. These included HIV/AIDS, considered
especially prevalent in the homosexual and bisexual community. The Disability
Discrimination Act prohibits such discrimination. [139]
5.126 5.127 In 1994, with the passing of the Human Rights (Sexual Conduct)
Act the Commission assumed additional responsibilities in respect of discrimination
on the grounds of invasion of privacy. [140]
5.128 There is currently little provision in Commonwealth law regarding
transgender people. HREOC noted that the Sex Discrimination Act 1984 provided
very limited, if any, protection to people of transgender status. While
there might be some provision in respect of post operative persons, the
wording of the legislation was primarily concerned with 'sex' as opposed
to any 'status' of an individual. [141]
5.129 Anti-discrimination legislation has a role for the administrative
body to take a more active part in limiting discrimination by seeking
to identify individual issues or the extent of systemic discrimination.
All relevant bodies have a direct educative role in the community They
also have a more indirect educative role, and a direct operational role,
through analysis and assessment of information.
5.130 Some of the problems identified with the operation of Commonwealth
and state anti-discrimination legislation were more directly problems
with the structure and processes of HREOC and with the various state-based
bodies. [142]
5.131 Most state bodies and HREOC have the power to undertake investigations,
either on their own initiative in response to observed problems, or at
the request of the relevant Minister; they can identify potential problems
and conflict with existing legislation, review overlapping provisions,
or determine gaps in legislation. [143] HREOC
was seen as rarely initiating investigations in the absence of complaints,
[144] and it was recommended by one witness
that the bill ensure that the Commission undertake such investigations.
5.132 A major role of both Commonwealth and state boards and commissions
is to review legislation, especially to identify gaps and overlaps, and
also to assess the degree of inconsistency in state or Commonwealth laws.
[145] Even where this role is not necessarily
allocated to a board or commission, the involvement of the relevant body
may be sought. Thus, the Equal Opportunity Commission Victoria expected
to be involved in the review of State legislation in order to identify
discriminatory provisions. It had a more clearly defined role in another
area:
'The commission ... as part of its duties has a responsibility to advise
the minister if, in the course of our duties, we become aware of discriminatory
provisions in legislation. So there is also a notification procedure
...' [146]
5.133 The review of anti-discrimination legislation, however, is a somewhat
different matter, given that those most involved in the administration
and application of such legislation should not necessarily be involved
in its review. Of the existing Commonwealth anti-discrimination legislation,
review has occurred primarily through two processes: the amendments to
legislation (particularly of the Sex Discrimination Act 1984) and the
review of the operation of the Human Rights and Equal Opportunity Commission
itself.
5.134 Witnesses who discussed the issues did believe there was a role
for the Human Rights and Equal Opportunity Commission (especially one
with more power) and believed the legislation should be a part of the
Commonwealth anti-discrimination legislation package. [147]
5.135 However, there was some considerable support for a general Commonwealth
anti-discrimination act, similar to those which operated in the States,
in preference to a series of anti-discrimination acts dealing with specific
issues. The benefits of all-encompassing legislation were discussed by
several organisations, and concerned primarily greater efficiency and
standardisation. [148]
5.136 Harmonisation of State/Territory and Commonwealth anti-discrimination
legislation was also mentioned by several witnesses. [149]
This process would require standardisation between Commonwealth acts as
well as between Commonwealth and other legislation; and would identify
any inconsistencies that contribute to the ineffective operation of anti-discrimination
legislation.
5.137 Given the support for, and opposition to, the range of exemptions
listed in the bill, any review of the legislation would need to consider
retaining or repealing various of the exemptions. As was noted by witnesses,
some exemptions had been provided almost automatically in anti-discrimination
legislation, and the value of them had not always been assessed:
'My own personal view ... is that the exemption for religious institutions
has never been tested ... I think there are some occasions upon which
... the religious sensibilities of particular organisations should be
taken into account. But there are others when I think it probably is
unreasonable and it probably is too broad.' [150]
5.138 The Victorian Civil Liberties Council was also somewhat sceptical
of the need for a number of exemptions, although recognising the political
value of these. It perceived there to be a need for review of exemptions
and a follow through of the information obtained from a such a study:
'It is our view, with respect to the exemptions contained in the legislation,
that these should be reviewed as a matter of course to ascertain that
they do not unduly trespass on the right to protection of the individuals
... whom the legislation is designed to protect. We believe that a statutory
requirement to review exemptions on a regular basis would strengthen
this proposal and the principle...
The commission, for instance, would monitor those complaints which
it did not have the jurisdiction over and it would decide, on the basis
of the merits of those matters, whether or not people were falling through
the safety net provided by the legislation. It is our belief that the
parliament could legislate for a statutory provision to review these
legislative exemptions in order to give that review greater force and
to necessitate its happening.' [151]
5.139 Given the concerns expressed about exemptions, it may be also useful
to link a review process to time limits for all exemptions/exemptions.
This could require all those seeking exemptions - whether for affirmative
action purposes or otherwise - to provide information on the effectiveness
of exemptions and the continued need for them. Although such a process
is often seen as a means of doing away with exemptions, [152]
anti-discrimination legislation will need to demonstrate that it can be
effective and cost-effective in its operation.
5.140 The Committee has made recommendations which affect the extent
of exemptions and exceptions. However, it also considers there is room
for a further review of exemptions and exceptions in other areas - such
as exemptions in respect of small business and partnerships.
Recommendation 4
That all exemptions and exceptions provisions not otherwise subject
to review be assessed and reported on within three years after the commencement
of the Act with a view to determining if such provisions are necessary
and effective.
Add to Clause 31
31(4) The President of the Commission will ensure that an organisation
with appropriate legal qualifications and experience in the field of
human rights legislation will review and report on all exemptions and
exceptions, other than those subject to specific review, within three
years from the commencement of the Act. The President will advise the
Minister of the conclusions of this report.
Complaints and Conciliation
5.141 The complaints and conciliation process forms a major part of the
work of most agencies, often overtaking educative functions. It covers
all processes from helping people to define a problem and determining
if discrimination might have occurred, to providing general advice on
the legislation: [153]
'...the number of cases simply do not reflect the extent to which people
are able to settle matters between themselves simply by saying to the
potentially offending party, 'Unless we get this sorted out, it's going
to be a matter of complaint to the Anti-Discrimination Board.' In fact,
we deal with numerous cases where people say, 'I don't want to lodge
a complaint yet. Can you advise me about what I can do?' We talk to
them. We talk to respondents. We get matters sorted out between complainants
and respondents in a way which, as a result, never turns up in the statistics.'
[154]
5.142 Once a complaint is made formally, in writing, a number of activities
occur. Discussions may be held which determine that there is no real case
to answer; or a complaint may be handled by another more appropriate area.
If this does not occur, conciliation between the parties is sought:
'If it appears appropriate, we would attempt to move towards some sort
of meeting between the parties if we think the matter can be resolved
in that way. In some instance, it is probably not helpful to get the
parties directly together, such as in a harassment matter. ...We would
either have a meeting or some form of conciliation type of arrangement
whereby we attempt to resolve the matter by negotiation or conversation
... if the conciliation breaks down, the commissioner then decides whether
the matter should go forward to a public hearing or not.' [155]
5.143 One witness noted that one of the benefits of the conciliation
process was that it could help reduce systemic discrimination:
'One of the things that can come out, and consistently does come out,
of conciliation agreements ... is an opportunity for complainants to
help drive respondents to the point where they will change the recruitment
practices and the grievance resolution practices within their organisation,
and they will change their policies and procedures in ways that should
and do serve to minimise the incidence of these sorts of things in the
future.' [156]
5.144 It is only when conciliation is unsuccessful, and the complainant
wishes to continue, that the second, a more formal process of gathering
information and having the case heard proceeds, and this may not occur
until some considerable time after the original complaint was made. [157]
This process is handled by parties different to those who have handled
the preliminary matter.
5.145 There was considerable scepticism expressed about the capacity
of some of the bodies to actually enforce any decision, although this
limitation applied primarily to Commonwealth rather than to State or Territory
legislation The New South Wales Anti Discrimination Act 1977 was seen
as effective, in part because of the power it gave the Anti Discrimination
Tribunal to award substantial damages.
5.146 The scepticism about HREOC may have been caused by various factors
including the limited function of HREOC in respect of sexuality-based
discrimination in employment; [158] the known
delays in having a case dealt with; and the substantial information and
process burden imposed on complainants. [159]
However, the major factor was no doubt the legal impediment to having
a decision enforced, an issue brought to a head with the so-called Brandy
case.
'...at the end of the day the availability, not so much of penalties
- that is not quite the right word - but orders, for example, that compensation
be made, is one of the bottom line community education tools that you
have.' [160]
5.147 There was also limited remedy available when an organisational
failure to comply occurred, leading to the suggestion that there should
be a mechanism in place allowing 'non compliance to be reported and acted
on' without further complaints having to be made. [161]
Without such a process, institutional or systemic discrimination could
continue unabated, requiring each individual complainant within the offending
organisation to start again.
5.148 To overcome these problems it was suggested that Commissioners
take more pro-active steps to initiate complaints (using existing powers)
and develop an effective means of dealing with systemic discrimination,
possibly through following models which allowed for a prosecution role.
[162] To a degree, this suggestion has been
overtaken by events, with proposals being made for all hearings to be
held in the Federal Court rather than the Commission. HREOC will no longer
have a prosecution role, and this will place more emphasis on its other
conciliation, education and individual investigation functions.
5.149 The Gay and Lesbian Rights Lobby noted that it was important to
ensure that education about access to law and education about the effect
of law should not only be provided to those making complaints but also
to those making decisions. Although not explicitly stated, this argument
suggests that although a complaints based system may appear to disadvantage
people because of the responsibility it places on them, there is a role
for this disadvantage to be limited by appropriate action:
'It is necessary that those who make decisions or take actions which
are covered by the Act should be informed of the effect of the legislation.
A system which only relies on the complaints to relay such information
will be costly and ineffective.' [163]
5.150 A number of factors, including reduced funding, have limited this
role and are likely to reduce it even further. As a result, most issues
are raised individually, although there is provision for class action
in the draft legislation.
5.151 Class actions bring together a large number of complainants, as
distinct from organisational representatives making a complaint on behalf
of complainants. The Sexuality Discrimination Bill 1995 makes provision
for both class and representative actions. [164]
At Clause 38, a list of individuals or groups who may make a complaint
includes:
' (1)
(c) a person or people included in a class of people aggrieved by the
act, on behalf of the people included in that class of people; or
(d) a trade union of which a person or people, or people included in
a class of people, aggrieved by the act is a member or are members,
on behalf of that person, those people or people included in that class
of people.
(2) In the case of a representative complaint, this section has effect
subject to section 64.' [165]
5.152 The New South Wales Anti Discrimination Act 1977 permits organisations
to make representative complaints, which differ from class actions:
'Under the representative body provisions, a body may lodge a complaint
if the interests or the welfare of its members or the people it represents
may be affected by the alleged contravention of the Act. In the Board's
experience, these provisions are often used in relation to alleged acts
of unlawful vilification.' [166]
5.153 Although the Anti Discrimination Board of New South Wales believed
there was no provision in the Commonwealth Sexuality Discrimination Bill
1995 for representative, as opposed to class action, complaints, [167]
Clause 64(3) of the Commonwealth bill does allow for action to be taken
by an organisation ('a representative complaint may be lodged without
the consent of class members'), so long as the other provisions of the
section are met. However, this would need to be read in conjunction both
with Clause 38 of the Sexuality Discrimination Bill 1995 and especially
with any changes made through the Human Rights Legislation Amendment Bill
1996 which are more restrictive. [168]
5.154 During the inquiry on sexuality discrimination witnesses made some
objection to the operation of class actions, especially the provision
that one class member could be replaced by another 'if it appears to the
Commission that the complainant is not able adequately to represent the
interests of the class members.' [169] The
objection appeared to be on the basis of potential damages, [170]
although damages payments through Commonwealth legislation are generally
less than those made under State legislation.
Future Role of the Human Rights and Equal Opportunity Commission
5.155 Although there was some concern with the operation of HREOC, witnesses
supporting the legislation appeared in favour of HREOC taking an additional
role of sexuality/transgender discrimination on board (although obviously
this role would be limited by subsequent developments). Witnesses believed
that there was a need for a separate commissioner, [171]
and for legislation which specifically addressed sexuality and gender
issues:
'...at the same time, gay, lesbian, bisexual and transgender people
experience other forms of discrimination as well as discrimination on
the grounds of their sexuality [but] it is unlikely the Commonwealth
would want to deal with, for instance, age discrimination yet because
of the international situation. So I guess that in terms of the constitutional
reality, the political reality, we would probably prefer this specific
bill to deal with one issue at a time.' [172]
5.156 This did not mean that potential complainants wished HREOC to deal
with all issues relating to sexuality and transgender discrimination.
A reason stated for this was both time delays but, more importantly, the
fact that HREOC was seen as having limited effect on groups such as employers:
[173]
'The differences between the Industrial Relations Commission and going
to a human rights commission are that, first of all, you have got a
time period, and the time period to go to an Industrial Relations Commission
... can be within two weeks...
To go to a human rights commission, you could be put on the waiting
list for two years...
Another issue is that I believe the Industrial Relations Commission
carried a hell of a lot more weight, because employers and unions who
go through that process, employers are less likely to ignore the Industrial
Relations Commission than they are a human rights commission, because
they know they have to go back to the commission again and if they do
not do the right thing they could fare badly on another case...' [174]
5.157 HREOC itself, however, although not claiming to take on board all
responsibility for employment issues, suggested that it would have been
appropriate for the bill to refer to ILO 111 as a basis for certain of
its powers. [175] This was in the context
of attempting to identify the strong claims which the bill had through
international agreements, but the point was similar: that power was necessary
for legislation to be effective.
5.158 Another witness, however, suggested that some of the provisions
of the legislation should be removed from HREOC's scope as being inappropriate:
'While there are many historical reasons why awards have distinguished
between male and female workers and why women have experienced unequal
pay, the same is not true of sexuality- or transgender-based distinctions.
There seems to be no good reason at all to have a referral and review
process for sexuality or transgender discrimination in awards or Remuneration
Tribunal decisions. Such discrimination should simply be unlawful.'
[176]
5.159 The Victorian Council for Civil Liberties believed that some responsibilities
in the bill were already met by other parties, or would not be met most
effectively by the Commonwealth legislation. State legislation already
existed in respect of incitement to violence. [177]
The vilification (and incitement) provisions of the legislation might
be unnecessarily heavy-handed in that their objective could be met in
other ways without running the risk of apparent limitation of free speech:
'...we could apply the principles that exist in the common law, in
the form of the duty of care that exists in a tort relationship and
which does not have regard to the quality of the relationship. Those
principles say that everyone has a duty of care, a liability, whatever
the nature of the relationship ... I am arguing that, with respect to
the anti-discrimination legislation, if the consequences of your action
are deleterious - if there is damage caused - applying similar principles
in those areas could actually have the effect of gaining a resolution
to incitement of violence or vilification ... without the disadvantageous
and deleterious effects on freedom of expression.' [178]
5.160 The Committee has considered this matter and has previously recommended
that the anti-vilification provisions in the legislation be reviewed in
order to ensure they are necessary and effective. [179]
5.161 The sexuality discrimination legislation proposes that a separate
position of sexuality discrimination commissioner be established to operate
in the same way as the other commissioners of HREOC do - that is, to undertake
investigations into matters that cannot be conciliated. [180]
According to HREOC the bill could have defined the commissioner's powers
more broadly (although all commissioners' powers are now subject to change):
'...the bill perhaps does not rely sufficiently on international human
rights instruments and the external affairs power in setting out the
jurisdiction or the conferral of power on the sexuality discrimination
commissioner. I think that it could go further in that direction. I
am quite confident that particularly the International Covenant on Civil
and Political Rights would support wide-ranging legislation to protect
rights, including legislation to protect against vilification.' [181]
5.162 Nonetheless, the idea of a separate commissioner did gain support,
including from those people who would have preferred to have a general
anti-discrimination act, rather than a series of separate acts. The reason
for the support of a commissioner for sexuality was to give these issues
appropriate prominence:
'The Commissioners created by the Sex Discrimination Act, Racial Discrimination
Act and Disability Discrimination Act have played an important role
in research and policy development in their respective portfolio areas,
and have provided a profile and a central locus of activity around the
Acts for which they have been responsible. A Sexuality Discrimination
Commissioner would be able to perform the same function in relation
to sexuality and transgender discrimination.' [182]
5.163 Noting that the proposed changes to HREOC included possible limitations
on the appointment of additional commissioners, the Victorian Council
for Civil Liberties suggested that the need for a commissioner in this
context could be met by providing commissioners in areas which needed
support and reducing them in those areas where legislation had been in
existence for some time:
'It certainly is the case at a state level that human rights commissioners
or tribunal members ... have a generic responsibility for the legislation
administered by those states. But in areas where we are newly enacting
provisions such as sexuality ... I think it would be very important
to provide resources and a focus for community attention around the
new provisions, around community education and around developing the
special skills and experience in conciliating these new complaints...'
[183]
5.164 Recognising resource constraints and the importance of commissioners
dealing with a wide range of discrimination issues, the Committee believes
that Sexuality and Gender discrimination issues would most appropriately
be dealt with by the Sex Discrimination Commissioner for at least the
first two years of operation of the Act.
Recommendation 5
That sexuality and gender discrimination issues be dealt with by
the Sex Discrimination Commissioner.
Remove Clauses 99-106, and replace as follows:
Clause 99 (1) The Sex Discrimination Commissioner is to assume responsibility
for issues of sexuality and gender discrimination.
(2) Within two years of the commencement of the Act, the President
of the Commission is to report on the management of sexuality and gender
complaints, including the appropriateness of the Sex Discrimination
Commissioner continuing to have responsibility for sexuality and gender
discrimination issues, and if there is a demonstrated need for additional
resources.
Human Rights Legislation Amendment Bill 1996 - Proposed Changes to
HREOC
5.165 The Human Rights Legislation Amendment Bill 1996 proposed a number
of changes to HREOC. The changes were developed as part of the response
to the so-called Brandy case which deals with the arrangement to enforce
HREOC determinations through registration of them with the Federal Court.
The High Court decision on the Brandy case was that the arrangement for
registering HREOC decisions in the Federal court and seeking their enforcement
through the Court was invalid since the process did not respect the division
of executive and judicial power.
5.166 The Human Rights Legislation Amendment Bill 1995 repealed the registration
and enforcement provisions. The Human Rights Legislation Amendment Bill
1996 proposes that complaints which cannot be conciliated should be heard
by judges, assisted by judicial registrars, in the Federal court. This
avoids the duplication of hearings likely to result from the refusal of
a respondent to accept a HREOC determination which upheld a complaint.
[184] In addition, other changes were proposed
in the legislation to establish a clear separation between the complaints
making, inquiry and conciliation functions, which would come under the
President of the Commission; and the education and amicus curiae functions
of the various commissioners.
5.167 It is proposed that the conciliation of other issues under the
Human Rights and Equal Opportunity Commission Act, including complaints
made about employment issues under ILO 111 are to be carried out by the
President of HREOC, and then reported on to the relevant Minister. [185]
5.168 There was no discussion in evidence to the sexuality discrimination
inquiry of any streamlining and harmonisation that may be required if
sexuality discrimination legislation is passed. Although the ILO Convention
remains important, especially in that it is the basis of certain rights
in the Workplace Relations Act 1996 and other legislation, the development
of discrimination legislation specifically addressing employment, training
and promotion issues and providing a conciliation and determination process
would make most employment inquiries under the HREOC Act redundant.
5.169 The role of the Sex and other discrimination commissioners would
be somewhat different to the role discussed by witnesses to the committee.
The most obvious change is the fact that commissioners would no longer
be involved in the inquiry work, which would either be undertaken by the
President's office or would be undertaken by the parties involved, possibly
with some assistance from the judicial registrars in the Federal Court.
5.170 The amicus curiae role, whereby commissioners provide information
on their areas of expertise will allow for the maintenance of certain
skills by commissioners. However experience in conducting inquiries and
making determinations will no longer be available.
5.171 The changes proposed through the Human Rights Legislation Amendment
Bill 1996 may have an equal effect on both complainant and respondent,
certainly where both are individuals. The costs of taking an unconciliated
matter to the Federal Court are likely to be substantially greater, given
that costs could previously be reduced to the minimum in HREOC cases if
neither party had legal representation. [186]
5.172 Although the Human Rights Legislation Amendment Bill 1996 proposes
that more informal processes be available in the Federal Court for discrimination
matters, there is no guarantee that these will be continued. This will
also have an effect on the rules of evidence and various application processes.
[187]
5.173 The possibility of making substantial change to systemic discrimination
may be limited by the changes proposed by the Human Rights Legislation
Amendment Bill 1996. While witnesses to the Committee's inquiry into sexuality
and transgender discrimination did not believe that systemic discrimination
was dealt with satisfactorily, it is unlikely that the role and function
of commissioners in the future will enable them to make substantial inroads
on systemic discrimination in specific areas such as race, gender, sexuality
or disability. This does not result from their lack of inquiry function,
since the outcome of inquiries would be available to them; but could arise
from the lack of a specific power or recommendation to undertake and report
on such discrimination on a regular basis. [188]
5.174 Insofar as Commonwealth agencies may be involved in systemic as
opposed to individual discrimination, the cessation of previous limitations
on agencies is detrimental to complainants. Previously, complaints against
agencies were dealt with by HREOC and agencies were obliged to accept
the determinations of HREOC. [189] The Human
Rights Legislation Amendment Bill 1996 requires all processes relating
to Commonwealth agencies to be the same as those for other parties. [190]
The Educative Role Of HREOC and State Tribunals
5.175 'We have to set guidelines for people to deal with differences,
and I would say that one way in which we need to set those guidelines
is through governments, via legislation and, obviously, through education
and other ways of dealing with differences, as well.' [191]
5.176 All Commonwealth anti-discrimination legislation provides HREOC
with an educative role, and many witnesses supported this role. State
legislation also enables public education services to be provided. Some
witnesses saw the legislation as a form of education in itself:
'This act performs a number of roles. It is preventive because it says
to people that this is not okay. It is educative because it sets boundaries
for people and says 'This is acceptable and this is what the government
considers to be not acceptable.' [192]
5.177 Some were careful, however, to make a distinction between the legislation
as a means of enforcing rights and as a means of changing behaviour:
'We reject the notion of legislation as an educative instrument. It
is our view that legislation creates legal rights and obligations and
summons the coercive power of the state to enforce them. It is a serious
matter to pass a law, particularly one which can have deleterious effects
on other rights such as freedom of speech and expression. However, education
by proper and considered means is surely the most effective way of combating
homophobia and irrational fears of transgender people. The council strongly
advocates government initiatives through public and community liaison
projects for this purpose.' [193]
5.178 In many instances, people saw the two are mutually dependent -
that without legislation, education would have a limited effect and vice
versa:
'Public education, without the backing of law, can sometimes be a failure.
Law provides leadership. I do not see law as being the solution to all
social problems by any stretch of the imagination, but it is certainly
a necessary instrument or one part of a framework of defences to social
issues when they arise. I think they do need to go hand-in-hand. I would
certainly say there is a need for legislation but, without the educational
component, the legislation is not worth the paper it is written on.'
[194]
5.179 A similar view was put forward by the Queensland Anti Discrimination
Commission which saw the education and the complaints and redress process
as equally important. The Commission believed in pre-empting problems
through the education process, and had been targeting employers and service
providers. However, it also believed that 'community education programs
tend to influence those who are most influenced and most amenable' and
that it was important to have other powers available:
'...one of the things that we are noticing is that people being on
the wrong end of some very effective complaints is one of the most useful
community education tools of all.' [195]
5.180 Education could also be provided through the development of legislation
which would provoke community response:
'...the debate around a specific bill would encourage that kind of
community debate - a rational debate about why gay, lesbian, bisexual
and transgender people are discriminated against and how that can be
remedied. That public debate is a crucial aspect of having this particular
bill.' [196]
5.181 A similar point was made in respect of some of the decisions of
the Anti Discrimination Tribunal of New South Wales, especially those
where financial penalties for actions may be substantial. [197]
5.182 Education and information services could also take the form of
meetings or discussions:
'The commission also has developed a reference group involving representatives
of most of the significant gay and lesbian organisations and associations
as well as representatives of government departments and other areas
... That is in an endeavour to maintain a two-way dialogue. The commission
explains how it proposes to deal with issues. We obtain feedback on
what we are intending to do and what we should be doing and what we
can do, as well as bring some of the more obvious information and education
issues to a broader audience. [198]
5.183 HREOC noted that although its involvement in sexuality issues had
been limited because there had been a restricted coverage by the Commonwealth,
the provision of submissions to inquiries and separate reports to Parliament
were part of a 'public education' role:
'I think we have assisted to have these matters seen as human rights
issues in ways that they were not in the past ... there is more that
could be done if there was a specific federal provision dealing with
these issues...' [199]
5.184 Education services were seen as fulfilling different needs for
different groups or individuals, including providing information before
discrimination occurred, and tailoring educational materials to meet the
particular needs of communities. [200] However,
some evidence suggested that education and information services did not
lead to a steady progress:
'...publicity in relation to the results of decisions...means that
people can at least read that and say whether it rings a bell for them,
whether they have been discriminated against in the past or need to
lift their game in the workplace or whatever. I suppose with some cases
there is certainly evidence of backlash.' [201]
Education through more indirect means
5.185 Witnesses suggested clearly that education services did not have
to be limited to those run by HREOC or state bodies directly, but could
take many forms to meet the range of needs in the community.
'...we have been able to talk about these issues with people from a
great variety of belief systems who are entering the training. So we
certainly have not been preaching to the converted by any means. It
has given us the privileged position of coming up constantly against
the attitudes and misinformation that people hold about sexuality and
the discriminatory attitudes that get expressed, and we have been able
to come up with the best mechanisms for interrupting some of those attitudes.'
[202]
5.186 Members of gay and lesbian organisations in particular were already
involved in education and information services, and suggested that there
were other forms of education which could help create a more positive
image. One of these methods was through the provision of courses on sexuality,
[203] and a second was to allow a range of
people with different sexualities to be role models for young people [204]
and to provide guidance for young homosexuals:
'What you can do is educate young gay men and lesbians about who they
are and to bring them to understand that they are not alone, there are
support services for them and they have a right to exist free from discrimination.'
[205]
5.187 The role of such education and information services would be to
help provide a positive image for all people, especially young people,
many of whom had a very negative image of non-heterosexual people:
'...those children grow up and continue on in our society where positive
images of lesbians and gay men are very rare and where the presentment
of positive images is met with a great deal of opposition and fear...'
[206]
5.188 Other witnesses stated that violence from young people was common,
and a form of herd or pack behaviour. [207]
Such forms of education as would address these problems have also been
devised by individuals especially when formal organisations, such as school
systems, have not yet developed programs. [208]
5.189 The Australian Catholic Bishops Conference and others expressed
concern that the provision of education and information could lead to
the support of homosexual activity as opposed to the discouragement of
unjust actions:
'...the functions of the Human Rights and Equal Opportunity Commission
include the promotion, by way of public discussion and the provision
of information, of human rights. With such a broad charter, one might
be legitimately concerned how public discussion and the provision of
information would be confined to unjust discrimination and not broadened
to the promotion of homosexual relationships.' [209]
Education services about transgender status
5.190 Similar information was provided by organisation and individuals
representing transgender persons. Given the complexity of issues relating
to transgender status, it could be argued that there is a greater need
for education in the community in order to establish the wide range of
issues that need to be addressed and to overcome some of the stereotypes.
[210]
Education and Information Services for Bisexuals
5.191 Bisexual organisations also provided information and education
services, although more limited resources may have affected the extent
to which these services actually reached into the wider community. However,
the Australian Bisexual Network did provide information through the Internet
and in this way was able to reach a substantial audience. [211]
Recommendation 6
5.192 That the Human Rights and Equal Opportunity Commission ensure
that funding of information and education services on gender and sexuality
discrimination take account of the specific needs of transgender and
bisexual persons and allocate resources for appropriate services in
respect of these groups.
Gaps in Education Services
5.193 A major problem identified by many organisations was the absence
of time or resources [212] for education services.
In most cases, this was caused by the need to deal with other aspects
of the organisation's role, such as handling of complaints. [213]
5.194 The Committee recognises the constraints imposed on organisations
by limited resources. It encourages organisations to utilise their resources
effectively, developing common information and resource services as much
as possible.
Conclusion
5.195 In practical terms, most day to day activities are more influenced
by State or local government than by the Commonwealth. For this reason,
access to State and Territory legislation may provide a more concrete
outcome in cases where the legislation is comprehensive. Given some of
the problems which witnesses identified as affecting the efficiency of
HREOC, the process of making and carrying through a complaint at State
or Territory level may also be more cost effective and be completed in
a shorter time period. This factor would also suggest that State and Territory
legislation is preferable, if it is comprehensive.
5.196 However, there are substantial variations in the level of protection
offered against discrimination, a factor which supports arguments for
uniform as well as comprehensive Commonwealth legislation. Evidence suggests
that discrimination still exists in areas which are subject to State legislation,
[214] as well as in areas which are either
subject to Commonwealth legislation [215]
or where existing Commonwealth legislation may be used to override a more
favourable State interpretation, as in insurance or superannuation. As
was noted by many witnesses, the Sexuality Discrimination Bill 1995 does
not deal with a number of issues under the control of the States and Territories,
such as inheritance laws, and thus will not cover all issues which witnesses
were concerned with. However, it does provide some coverage for people
affected by sexuality and gender discrimination in areas such as income
support, superannuation, employment and status and thus has the potential
to overcome some major problems for those most affected.
Footnotes:
[1] Evidence, Association of Catholic
Parents, p. 738.
[2] Evidence, Association of Catholic
Parents, p. 740.
[3] Evidence, Association of Catholic
Parents, p. 738.
[4] Thornton, The Liberal Promise, Anti-Discrimination
Legislation in Australia, pp. 182-183.
[5] See below, Paragraphs 5.155-5.160.
[6] Commonwealth anti-discrimination legislation
is administered in four States and Territories by the relevant State or
Territory anti-discrimination board, which is also responsible for the
administration of its own legislation Victoria (Evidence, pp. 221-222),
ACT, Western Australia, South Australia. The State body investigates the
issue and seeks to resolve it by conciliation. Should conciliation fail,
the matter is then referred back to the federal body (HREOC) for further
work (Evidence, p.222, Equal Opportunity Commission Victoria).
In 1996, changes to HREOC processes were recommended, affecting these
operations - see below, Paragraphs 5.155-5.160). In NSW, HREOC looks after
Commonwealth legislation and the Anti Discrimination Board looks after
State legislation; and in Queensland, at the time of this Committee's
hearings, the Commonwealth Human Rights Commissioner had responsibility
for both (Evidence, Queensland Anti Discrimination Commission,
p.685); in Tasmania, the Regional Director of HREOC also looked after
State legislation (Evidence, p. 355).
[7] Evidence, Tasmanian Regional Office
HREOC, pp. 354-355.
[8] Evidence, Mr Anthony Hosken, p. 628.
[9] Evidence, Tasmania, pp. 347, 355.
Submission, Anti Discrimination Board of New South Wales, Vol.
8, p. 1819 and
Evidence, p. 115.
See Evidence, Equal Opportunity Commission Victoria, p. 223.
[10] Evidence, Australian Council for
Gay and Lesbian Rights, p. 566 and also p. 574.
Evidence, Queensland Association for Gay and Lesbian Rights, p.
731.
See also Evidence, Mr Anthony Hosken, p. 628.
[11] The absence of complaints might mean that
legislation was fulfilling its objectives in many cases- 'one of the significant
indicators is not so much the number of complaints that come but the number
of problems that are solved simply because people are able to draw attention
to their rights under legislation', Evidence, Queensland Anti Discrimination
Commission, pp. 682-683.
See also Evidence, HREOC Tasmanian Regional Office, pp. 348-349.
[12] Evidence, Equal Opportunity Commission
of Western Australia, p. 536.
[13] Submission, Inner City Legal Centre,
Vol. 4, p. 762.
[14] See Evidence, Anti Discrimination
Board of New South Wales, p. 115.
[15] Evidence, Queensland Anti Discrimination
Commission, pp. 682-683.
[16] See also below, Paragraph 5.130, and Chapter
6.
[17] Evidence, Queensland Anti Discrimination
Commission, p. 687, and see also p. 682.
[18] See Chapter 4, Paragraphs 4.171-4.172,
and below Paragraph 5.159, and also Evidence, Victorian Council
for Civil Liberties, p. 803.
[19] See Chapter 2, Paragraphs 2.89 - 2.90.
[20] See also below, Paragraph 5.159.
[21] Evidence, Queensland AIDS Council,
pp.710-711.
[22] Evidence, Equal Opportunity Commission
Victoria, pp. 225-226.
[23] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1819.
[24] See below, Paragraphs 5.30-5.35 and 5.173-5.174.
[25] New South Wales Anti Discrimination
Act 1977, Section 20B.
[26] Submission, Law Institute of Victoria,
Administrative Law Section, Vol. 12, p. 2858
[27] Evidence, Tasmanian Regional Office
HREOC, p. 355.
[28] Evidence, Tasmanian Regional Office
HREOC, p. 355.
See also below, Paragraph 5.172.
[29] See above Paragraph 5.2 and Chapter 2.
[30] See below, Paragraph 5.48.
[31] Evidence, Association of Catholic
Parents, p. 740.
[32] Evidence, Dr Reece. p. 771.
See also below, Paragraph 5.172.
[33] Evidence, Equal Opportunity Commission
Victoria, p. 223.
[34] Evidence, Equal Opportunity Commission
Western Australia, p. 539.
[35] Evidence, Mr W. Morgan, p. 281.
[36] In respect of other staff, see discussion
in Evidence, pp. 453-454.
[37] Evidence, Mr C Kendall, p. 607.
[38] Evidence, Mr C Kendall, p. 608.
[39] Evidence, Tasmanian Regional Office
HREOC, p. 347.
[40] See Submission from HIV/AIDS Legal
Centre Inc, Vol. 10, p.2197.
This refers to research that considers HIV discrimination is especially
complex and not well served by current legislative processes that emphasise
individual rather than systemic discrimination.
[41] The process is outlined in Evidence,
Tasmanian Regional Office HREOC, pp. 350-351.
[42] Anti-discrimination legislation allows
some forms of 'acceptable' discrimination such as the provision of special
services for disadvantaged groups, see above, Chapter 4, Paragraphs 4.218-4.231.
[43] See Evidence, Tasmanian Regional
Office HREOC, p. 350.
[44] See Submission, Inner City Legal
Centre, Vol. 4, p. 763.
[45] Submission, Inner City Legal Centre,
Vol. 4, p. 762.
See also Evidence, Queensland Association for Gay and Lesbian
Rights, p. 731.
[46] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p.1028.
[47] Evidence, Assemblies of God Queensland
Conference, pp. 778-779.
[48] See Chapter 2, Paragraphs 2.89-2.91 for
the discussion on special rights as opposed to ordinary rights. 'Until
sodomy was decriminalised and the Mardi Gras was televised ... the case
for a disadvantaged minority may have been sustainable. What we are questioning
is whether homosexuals still remain a disadvantaged minority, and we say
that today a reassessment is in order...for a disadvantaged minority you
need a class which demonstrated political powerlessness. We do not see
that in the homosexual community. In fact we find that their influence
in the community is staggering...we think that the gay rights laws meet
none of the traditional criteria for human rights protection.' Evidence,
Australian Family Association, p. 579.
[49] Evidence, South Australian Equal
Opportunity Commission, pp 457-458.
[50] Evidence, South Australian Equal
Opportunity Commission, p. 458.
See also Evidence, Association of Catholic Parents, p. 748.
[51] Evidence, Focus on the Family,
p. 250.
[52] Evidence, Association of Catholic
Parents, p. 738.
[53] Evidence, Focus on the Family,
p. 250: 'vilification legislation is mind control'.
[54] Evidence, Association of Catholic
Parents, p. 746.
[55] See Chapter 4, Paragraphs 4.110-4.120,
4.194-4.197, 4.202.
[56] See Chapter 2, Paragraphs 2.22-2.24; Chapter
4, Paragraphs 4.183-4.193 and Recommendation 8.
[57] Evidence, Queensland Anti Discrimination
Commission, p.688, 694.
[58] Evidence, Queensland Anti Discrimination
Commission, pp. 683-684.
[59] Evidence, Queensland Anti Discrimination
Commission, pp. 688-689.
[60] Thornton, The Liberal Promise,
p. 38.
[61] Submission, Inner City Legal Centre,
Vol 4, p. 757.
See also Submission, Gay and Lesbian Rights Lobby, Vol 5, pp.
1019, 1023, 1028.
[62] A view probably supported by the evidence
of the Queensland Anti Discrimination Commission that the phrase 'lawful
sexual activity' in the Queensland legislation was being used to obtain
benefits not available through workplace policy - see Evidence,
p. 682.
[63] See Submission, Ms J Millbank,
Vol. 1, p. 122;
Submission, Gay and Lesbian Rights Lobby, Vol. 5, p. 1030.
See a fuller discussion of this issue below at Paragraphs 5.114-5.123.
See also Paragraph 5.64.
[64] See, for example, Evidence pp.
143-144, Ms J Millbank.
[65] Generally, the test for direct discrimination
is whether a person is treated less favourably on the grounds of their
sexuality or gender status as compared with a person of a different sexuality
or gender status. This test for direct discrimination is sometimes referred
to as the “similarly situated” test; the test for indirect discrimination
is that a complainant must show that a substantially higher proportion
of people of the sexuality or gender status of the complainant cannot
comply with a certain requirement or condition that is imposed, as compared
with people of a different sexuality or gender status; and that the
requirement is unreasonable. This test for indirect discrimination
is sometimes referred to as the “proportionality test”.
[66] See A. Chapman, 'Sexuality and Workplace
Oppression', Melbourne University Law Review 20 (1995) pp. 321-322
- the relevant case is where a person was seen as not being discriminated
against because of HIV status in that he received the same treatment as
other high risk groups, e.g. people who were haemophiliac. In such instances,
certain measures may be justified abstractly, much as a person with a
highly contagious disease might be excluded from some areas because of
the disease not the action which might have caused him to have the disease.
The person could not claim that they were discriminated against without
reason or that they were treated less favourably than other persons in
a similar situation.
[67] Legislation may also unintentionally exclude
some groups from coverage. The Anti-Discrimination Board of New South
Wales, for example, was critical of the proposed Commonwealth legislation
(subclause 6(3)) because it did not cover situations where a transgender
person was not treated as the sex with which they identified, and other
submissions also made this point.
[68] Evidence, South Australian Equal
Opportunity Commission, p. 449.
[69] See, for example, Chapter 4, Paragraphs
4.99-4.101.
[70] However, this need not be a problem if
the legislation is perceived as an interim step. Given the educative functions
within most anti-discrimination tribunals or commissions it could be argued
that legislation is a means of changing attitudes over time, as well as
providing some relief in a shorter time period.
[71] Submission, Associate Professor
Tahmindjis, Vol. 4, p. 3.
[72] There is currently no indirect discrimination
provision in respect of transgender people: see below, Paragraphs 5.67-5.68.
[73] Submission, Ms A Chapman, Vol.
4, p. 682.
Ms Chapman suggested that the draft legislation be changed to resemble
the indirect discrimination provisions of the amended Sex Discrimination
Act - Submission, Vol. 4, p. 683.
[74] See Submission, Ms A. Chapman,
Vol. 4, p. 683.
Submission, Ms Rosemary Hunter, Vol. 6, p. 1266.
[75] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p.1812.
[76] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, pp 1827-1828 (emphasis in original).
Also there was no requirement that the person making a complaint be unable
to comply with a requirement. Although this was seen as positive, in that
it enabled people to lodge a complaint regardless of the effect it had
on them (Submission, Anti Discrimination Board of New South Wales,
Vol .8, p.1828) the Board recommended that the list of remedies for those
able to comply should be noted.
[77] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1828.
See also Submission, Ms Rosemary Hunter, Vol. 6, pp. 1266-1267.
[78] See below, Paragraphs 5.76-5.95.
[79] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1827.
[80] In the new clause 6(4)(b) (Recommendation
3), the reference to a complainant group being restricted to transgendered
persons of one gender is a means of distinguishing between male to female
and female to male transgender persons and not considering all transgender
persons to be the same.
[81] Evidence, Equal Opportunity Commission
Victoria, p. 231.
[82] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1828.
The Board also suggested that the Bill possibly use the provisions of
the Sex Discrimination Act 1984 to cover indirect transgender
discrimination (which had been omitted from the draft sexuality legislation).
[83] Thornton, The Liberal Promise,
pp. 190-191. See also below, Paragraphs 5.107-5.108.
[84] Submission, Ms Rosemary Hunter,
Vol. 6, pp. 1265-1266.
[85] See Chapter 4, Paragraphs 4.99-4.100.
[86] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1816.
[87] Submission, South Australian Equal
Opportunity Commission, Vol. 2, p. 253.
[88] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p.1825-1826.
[89] Evidence, South Australian Equal
Opportunity Commission, p. 449. Again, a problem of this nature could
also occur if other legislation existed which was not overridden - See
Evidence, pp. 449-450.
[90] Evidence, South Australian Equal
Opportunity Commission, p. 449.
The Commission went on to note that unless the proposed Commonwealth
legislation specifically overrode the provisions of State laws, certain
actions would still be illegal within states, Evidence, p. 450.
See also Evidence, Equal Opportunity Commission Victoria, p. 230.
[91] See Chapter 4, Paragraphs 4.95-4.102.
[92] Submission, Gender Council of Australia
(WA) Inc, Vol. 6, p.1275.
[93] Submission, South Australian Equal
Opportunity Commission, Vol. 2, pp. 1252-1253.
[94] See Chapter 2.
[95] Submission, Gender Council of Australia
(W.A.) Inc, Vol. 6, p. 1275.
[96] The main problems appear to occur with
having multiple identities, possibly for criminal purposes, and moving
into areas which are ordinarily segregated by gender, such as sport -
see Chapter 4, Paragraphs 4.132-4.137 on sport, Chapter 6 Paragraphs 6.81,
6.85-6.93 on identity issues.
[97] See, for example, Paragraphs 5.96-5.102.
[98] See Chapter 3, Paragraph 3.71.
[99] Sexuality Discrimination Bill 1995,
Clause 5, 'transgender'.
[100] Evidence, HREOC, p. 136.
[101] Evidence, HREOC, pp. 136-137.
[102] Submission, Mr J. Mountbatten,
Vol. 10, p. 2233.
See also Mountbatten, 'Priscilla's Revenge: or the Strange Case of Transsexual
Law Reform in Victoria,' Melbourne University Law Review', 20 (1996),
pp. 871-895.
[103] Evidence, Equal Opportunity Commission
Victoria, p. 225.
[104] See Chapter 4, Paragraphs 4.63-4.65.
[105] Submission, Ms Thompson and Ms
Connor, Vol. 5, p. 930.
[106] See also Evidence, Mr Christopher
Kendall, p. 613.
[107] Evidence, Ms K. Walker, p. 277.
[108] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p. 1022.
[109] Evidence, Queensland Association
for Gay and Lesbian Rights, p. 735.
See also Submission Ms Thompson and Ms Connor, Vol. 5, p.933.
[110] See Chapter 4, Recommendation 8 (following
Paragraph 4.191).
[111] Evidence, Queensland Association
for Gay and Lesbian Rights. p. 735.
[112] Evidence, Victorian Council of
Civil Liberties, pp. 801-802.
[113] See above Paragraph 5.72.
[114] Submission, Ms A. Chapman, Vol.
4, p. 678.
[115] Evidence, Ms A. Chapman, p. 281.
[116] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p. 1031.
The reference is to Clause 27 of the Sexuality Discrimination Bill
1995.
[117] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p. 1030.
[118] Evidence, Anti Discrimination
Board of New South Wales, p. 107.
[119] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1812.
[120] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1821:
'Homosexuality was originally made a ground of discrimination under the
ADA [Anti Discrimination Act] because of the overwhelming weight
of evidence that homosexual people are subjected to significant and exceptional
levels of discrimination. There was little or no evidence of people being
discriminated against on the basis of their heterosexuality.'
[121] Submission, Ms A. Chapman, Vol.
4, p. 674
Evidence, pp. 279-280.
[122] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1830.
Evidence, p. 111.
[123] See above, Paragraphs 5.53-5.68, especially
Paragraph 5.64.
[124] Evidence, Ms J Millbank,
p.138, and see also p. 143.
A similar point was made by the Gay and Lesbian Rights Lobby, Evidence,
p. 183. and COAL, Submission, Vol 3, pp. 616-617.
[125] See Chapter 4, Paragraphs 4.218-4.222.
[126] Evidence, Gay and Lesbian Rights
Lobby, p. 183.
[127] Submission, Ms A. Chapman, Vol.
4, pp. 683-684:
'the appropriate wording of special measures provisions has been the
subject of considerable investigation and consultation.'
[128] Evidence, Ms A. Chapman, p. 273.
[129] Evidence, Ms A. Chapman, p. 273.
[130] Evidence, Ms A. Chapman, p. 280.
[131] Evidence, Ms A. Chapman, p. 281.
[132] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p. 1031.
[133] Evidence, Mr W. Morgan, p. 281.
See also Evidence, Anti Discrimination Board of New South Wales,
p. 111.
[134] Chapter 4, Paragraph 4.131, and see
also Paragraph 4.230.
[135] Chapter 4, Paragraph 4.230 and Recommendation
10.
[136] Submission, HREOC, Vol. 5, p.
1566-1567.
[137] Submission, HREOC, Vol. 5, p.
1572.
See also Submission, Queensland Anti Discrimination Commission,
Vol. 2, pp. 235-236.
[138] Submission, HREOC, Vol. 5, p.
1559.
[139] See Chapter 4, Paragraph 4.38.
[140] See Chapter 4, Paragraph 4.2. Although
the Tasmanian government repealed the relevant section of the Criminal
Code Act 1924 in 1997 it has not developed its anti-discrimination
legislation to provide protection on the grounds of sexuality.
[141] Submission, HREOC, Vol. 5, p.
1591.
[142] See above, Paragraphs 5.6, 5.8-5.11.
See also Evidence, Victorian Equal Opportunity Commission, p.
221.
[143] Evidence, Western Australian
Equal Opportunity Commission, pp. 534, 538.
Evidence, Equal Opportunity Commission Victoria, pp. 224-225.
[144] Submission, Inner City Legal
Centre, Vol. 4, p. 762.
[145] Evidence, HREOC, p. 128.
[146] Evidence, Equal Opportunity Commission
Victoria, p. 225.
[147] Evidence, pp. 733-734.
[148] See Chapter 6, Paragraphs 6.12, 6.15
and 6.17.
[149] See Chapter 6, Paragraphs 6.13-6.14.
[150] Evidence, Equal Opportunity Commission
Western Australia, p. 539.
[151] Evidence, Victorian Council for
Civil Liberties, p. 805.
[152] Evidence, Baptist Churches of
Tasmania, p. 420.
[153] See Evidence, Tasmanian Regional
Office HREOC, pp. 350-351.
[154] Evidence, Anti Discrimination
Board of New South Wales p. 115,
and see also Submission, Vol 8, p. 1819.
Evidence, HREOC, p. 130.
'One of the reasons why in our general schema of anti-discrimination
laws in this country we place such strong emphasis on conciliation is
that the vast majority of these sorts of questions can be sorted out by
getting people together and talking through what the issues are.'
See also above, Paragraphs 5.8-5.11.
[155] Evidence, HREOC Tasmanian Regional
office, p. 351.
However, as noted, ILO Convention cases cannot progress any further if
conciliation does not work. See above, Paragraph 5.37 and Evidence,
HREOC Tasmanian Regional Office, p. 351.
[156] Evidence, Queensland Anti Discrimination
Commission, p. 690.
[157] See above, Paragraphs 5.6, 5.8, 5.38-5.40.
See also Evidence, Equal Opportunity Commission Western Australia,
p. 540.
[158] See, for example, Evidence, Queensland
Anti Discrimination Commission, p. 691.
[159] See above, Paragraphs 5.6, 5.12, 5.36,
5.38-5.40.
[160] Evidence, Queensland Anti-Discrimination
Commission, p. 689, and also p. 691.
[161] Submission, Inner City Legal
Centre, Vol. 4, p. 763.
[162] Submission, Inner City Legal
Centre, Vol 4, pp. 763-764.
[163] Submission, Gay and Lesbian Rights
Lobby, Vol. 5, p. 1024.
[164] Sexuality Discrimination Bill 1995,
Clause 64.
[165] Sexuality Discrimination Bill 1995,
Clause 38.
[166] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1832.
[167] Submission, Anti Discrimination
Board of New South Wales, Vol. 8, p. 1833.
[168] See Senate Legal and Constitutional
Affairs Legislation Committee, Report on Human Rights Legislation Amendment
Bill 1996 (June 1997), pp. 64-69.
[169] Sexuality Discrimination Bill 1995,
Clause 66(1).
[170] Evidence, Association of Catholic
Parents, p. 748, and see also pp. 749-750.
[171] Submission, Ms Rosemary Hunter, Vol.
6, pp. 1267-1268 and below Paragraphs 5.161-5.164.
[172] Evidence, p. 366 Tasmanian Gay
and Lesbian Rights Group.
[173] See above Paragraphs 5.6, 5.37, 5.40.
[174] Evidence, Queensland Association
for Gay and Lesbian Rights, p. 731.
[175] Evidence, HREOC, p. 127.
[176] Submission, Ms Rosemary
Hunter, Vol. 6, p. 1266.
See also Chapter 6.
[177] Evidence, Victorian Council for
Civil Liberties, p. 803 and see above, Paragraph 5.8 [?]
[178] Evidence, Victorian Council for
Civil Liberties, p. 813.
[179] See Chapter 2, Recommendation 2.
[180] Evidence, HREOC, p. 124.
[181] Evidence, HREOC, p. 125.
[182] Submission, Ms Rosemary Hunter,
Vol. 6, p. 1268.
[183] Evidence, Victorian Council for
Civil Liberties, p. 808.
[184] Determinations made against Commonwealth
agencies generally had to be complied with. See Senate Legal and Constitutional
Affairs Legislation Committee, Report on the Human Rights Legislation
Amendment Bill 1996 (June 1997), pp. 1-10. However, appeals against
some decisions have been lodged, see Hansard, 28 August 1997, p.
6005; 30 October 1997, p. 8242.
[185] Senate Legal and Constitutional Affairs
Legislation Committee, Report on the Human Rights Legislation Amendment
Bill 1996, (June 1997), pp. 12-13.
[186] Senate Legal and Constitutional Legislation
Committee, Report on the Human Rights Legislation Amendment Bill 1996,
(June 1997), pp. 56-64.
[187] Senate Legal and Constitutional Legislation
Committee, Report on the Human Rights Legislation Amendment Bill 1996
(June 1997), pp. 54-56.
[188] Senate Legal and Constitutional Legislation
Committee, Report on the Human Rights Legislation Amendment Bill 1996
(June, 1997), p. 71.
[189] See above, Paragraph 5.166 and Footnote
184.
[190] See Senate Legal and Constitutional
Legislation Committee, Report on the Human Rights Legislation Amendment
Bill 1996 (June, 1997), pp. 22-23.
[191] Evidence, Dr Vivienne Cass, p.
522.
[192] Evidence, Queensland Association
for Gay and Lesbian Rights, pp. 733-734.
A similar point was made also by the Queensland Anti Discrimination Commission
which believed that the capacity to make enforceable orders was important,
Evidence, p. 689.
[193] Evidence, Victorian Council for
Civil Liberties, p. 802.
See also Evidence, Anti Discrimination Board of New South Wales,
p. 115:
'The usage of the act is also dependent upon the resources which organisations
like mine have to get out and provide community education.'
[194] Evidence, HREOC, p. 124.
See also 'I do not disagree with the need to press for community education;
but I do think the fact that legislation is in place does in some ways
provide an earnest of what the government intends, and then community
education can build on that legislation', Evidence, HREOC Tasmanian
Regional Office, p. 355; and Evidence, Anti Discrimination
Board of New South Wales, p. 115.
[195] Evidence, Queensland Anti Discrimination
Commission, p. 683.
[196] Evidence, Tasmanian Gay and Lesbian
Rights Group, p. 366.
[197] See Submission, Inner City Legal
Centre, Vol 12, p. 2741-2742.
[198] Evidence, Equal Opportunity Commission
Victoria, p. 224.
[199] Evidence, HREOC, p. 124.
[200] Evidence, Equal Opportunity Commission
Victoria, p. 224.
[201] Evidence, Tasmanian Regional
Office HREOC, p. 356.
[202] Evidence, AIDS Council of South
Australia/Adelaide Central Mission, p. 425.
[203] Submission, GALL, Vol. 3, p.
494.
[204] Evidence, Ms K. Walker, p. 282:
'the absence of role models is already one significant problem.'
See also Submission, Australian Feminist Law Foundation Inc, Vol.
6, p. 1322,
'The exclusion of lesbians and gay men as teachers potentially discriminates
against lesbian and gay students, as well as against the individual teachers
concerned, who are sent a negative message concerning their sexual preference
and deprived of role models and sympathetic counsellors in their schooling.'
[205] Evidence, Australian Council
for Lesbian and Gay Rights (WA), p. 573.
[206] Evidence, GLAD, p. 334.
[207] Evidence, Metropolitan Community
Church, pp. 180-181;
Evidence, Lesbian and Gay Anti Violence Project, pp. 188-189.
[208] Evidence, p. 441: 'what is appropriate
and safe to challenge and what is currently not appropriate and not safe
to challenge.'
See also Submission from Streetwize Comics (Vol. 6, pp. 1169-1174)
outlining some strategies by which information can be provided to younger
people.
[209] Submission, Australian Catholic
Bishops Conference, Vol. 4, p. 720.
[210] See Chapter 2, Paragraphs 2.90-2.109.
[211] Evidence, Australian Bisexual
Network, p. 679.
[212] Evidence, Tasmanian Regional
Office HREOC pp. 356-357.
Evidence, Queensland Anti Discrimination Commission, pp. 692-693.
[213] Evidence, Tasmanian Regional
Office HREOC, p. 355:
'Unfortunately, in recent years in Tasmania, our complaint load has been
increasing quite significantly, and we have had to concentrate rather
heavily on complaint handling. In years gone by, I tried to give a lot
of emphasis to community education ...'
[214] See Chapters 2 and 4.
[215] See, for example, Chapter 4, Paragraph
4.151.