1 May 2013 - Alternative Law Journal
This is an important debate, and yet it has somewhat hijacked discussion of the Bill overall. The Bill’s fundamental aim, to introduce a more efficient and effective regime for organisations and individuals to address unlawful discrimination, has been overshadowed by the religious exemption issue.
Australia is proud of its ethos of the ‘fair go’. Addressing unlawful discrimination is the legal expression of this important and dearly held philosophy. If a fair go for all Australians — regardless of age, disability or sex — is what we want, then we need to fight for legislation that will help us achieve this.
Our current anti-discrimination laws are far from achieving a fair go for all Australians. We have five separate Acts, each with differing tests and exclusions. Lawyers and non-lawyers alike find it difficult to understand rights and obligations. The Bill goes some way to solving these problems — it is one Act with one set of obligations. It is a piece of legislation that is accessible to individuals and businesses (and lawyers!)
The Bill also removes some of the ‘fair go road-blocks’ that currently exist in the law.
At the moment, if you have been discriminated against and you lose in court, you must pay the legal costs of the other party. My experience is that compensation offered in conciliation is very low, as are court awards in this jurisdiction. Therefore, deciding whether to take the matter to court is very difficult, when legal costs could easily be three or four times the potential compensation, even if you win. The Bill introduces the principle that each party pays its own legal costs. This is a step forward in addressing barriers to the ‘fair go’.
The Bill also reverses the onus of proof, thereby removing another ‘fair go road-block’. People or businesses are not explicit about their discriminatory decisions. Gone are the days when employers would openly state their reason for not promoting a woman was that she recently married and is of childbearing age. Those who aren’t promoted for an unlawful reason do not have access to evidence to prove this was the case. It makes sense that the employer should have to prove the decision not to employ or promote was for another, lawful reason.
However, there are ‘fair go road-blocks’ which are not addressed by the Bill, specifically related to systemic acts of discrimination.
In Australia (unlike the UK, US and Canada) only an individual or their representative can make a complaint of discrimination to the Australian Human Rights Commission. Discrimination, however, can be in the form of a broad policy or process that has had a discriminatory effect on people with certain characteristics: systemic discrimination.
We need to recognise the vulnerabilities of individuals who suffer discrimination based on a particular characteristic, such as poor English, having a hearing impairment or requiring time off work to care for a child with disability. This same attribute can mean that it is more difficult for that individual to assert their rights and complain about discrimination. Equally, individuals can often be reluctant to bring complaints if they want to maintain a relationship with the discriminator — particularly against their employer or education provider. We need the legal facility to address discrimination that affects many people who possess a particular characteristic, and discrimination that has broader implications for society as a whole.
Most discrimination matters settle, many on terms that do not reflect the seriousness of the discrimination, or result in inadequate compensation to the complainant. These settlements do little to change discriminatory practices, particularly because respondents insist on settlements being confidential. It is cheaper for these individuals and companies to continue to discriminate, paying small sums of money to silence individuals who speak up, than it is to change their policies and processes to ensure they are non-discriminatory.
The solution is simple. Advocacy organisations should be provided with the ability to bring complaints of systemic discrimination. This would remove the burden from marginalised individuals and would work to prevent systemic and repeat incidents of discrimination.
Australians truly value a ‘fair go’ for all, regardless of race, sex, disability or any other characteristic. We need legislation that reflects this. The Human Rights and Anti-Discrimination Bill with some crucial amendments, should be passed to ensure an efficient and effective regime for addressing unlawful discrimination.
JOANNA SHULMAN is CEO of the Redfern Legal Centre, Sydney.
