Potential reform of Australia’s federal discrimination laws

The Australian Human Rights Commission is currently reviewing Australia’s federal discrimination laws and considering what reforms should be made to those laws. To that end, the Commission recently released a discussion paper, “Free and Equal: An Australian Conversation on Human Rights“, setting out its preliminary views on the priorities for reform.

The paper notes that laws prohibiting discrimination at the federal level have existed since 1975, with new protections being added every 8 to 10 years, but without necessarily full consideration as to how effective the existing protections are or how each of the different protections are to intersect.

While it is acknowledged that federal discrimination laws have positively contributed to a reduction of discrimination in society, including by changing community attitudes to the treatment of different groups, providing a basis for community awareness and education to tackle discrimination and discriminatory attitudes, and helping to resolve individual complaints, clearly those laws can be improved and made more effective.

Current issues impeding the effectiveness of Federal discrimination laws

The Commission has identified six key issues which it considers are impeding the effectiveness of those laws:

1. the current mix of discrimination laws is complex, including different definitions of discrimination applying as new laws have been introduced;
2. those discrimination laws have not been consistently updated to reflect what is now considered to be best practice or to address concerns which have been identified as a result of previous reviews;
3. the intersection between federal and state discrimination laws is difficult to navigate, with some grounds of discrimination being covered under state laws but not at federal level, and that the harmonisation of those laws is a desirable outcome;
4. various court decisions have limited the scope of protections and the operation of federal discrimination laws;
5. there are gaps in the protection provided by current laws – volunteers and interns are not protected consistently, and carers are not fully covered in the context of disability discrimination. Recent reviews have also highlighted the limited protections at federal level in relation to religious freedom and beliefs; and
6. while complaints brought under the Australian Human Rights Commission Act such as those relating to discrimination in employment on the basis of religion, irrelevant criminal record, trade union activity or political opinion, can be investigated and conciliated, where those complaints are not resolved there is no right for a complainant to commence court proceedings.

Interestingly in identifying gaps in the coverage of the current protections, the Commission has specifically referred to the emerging challenge of protecting individuals from “algorithm bias”, through the application of artificial intelligence to decision-making processes.  Algorithm bias can arise where technologies are used in decision-making processes that affect people’s human rights, and can operate to a fairly disadvantage categories of individuals, including categories defined by protected attributes such as race, age or gender.

Priorities for federal discrimination law reform

Taking into account those issues impeding the effectiveness of current laws, the Commission has identified various priorities for federal discrimination law reform, including:

• simplifying and making consistent definitions of discrimination, victimisation, special measures and reasonable adjustments across all laws;
• addressing current limitations in coverage of existing protected attributes by expanding protections for carer/family responsibilities, state government employees, volunteers and interns;
• addressing gaps in protection by introducing new protected attribute for “thought, conscience or religion”, as well as considering the need for any other new or expanded protected attributes;
• reviewing all permanent exemptions under discrimination laws to ensure that they are strictly necessary and result in the minimum intrusion on people’s rights, and transition or sunset those that are no longer required or fail to meet community standards;
• introducing a ‘general provisions’ clause for ‘justifiable conduct’ as an alternative to permanent or temporary exemptions;
• revamping review processes for standards under the Disability Discrimination Act and consider industry support packages to build awareness and compliance with the standards;
• broadening the Commission’s functions to enable voluntary audits and inquiries into systemic issues;
• introducing a positive duty to proactively take measures to eliminate unlawful discrimination and harassment and advance equality; and
• amending the complaint handling processes of the Commission to ensure access to justice, especially for vulnerable people, and to improve efficiency of the process.

The Commission has requested that submissions responding to the various questions posed in the discussion paper be provided by 30 August 2019.  Once those submissions have being considered, the Commission will release a draft reform agenda for human rights in October 2019, ahead of a finalised roadmap for reform mid-2020.

Gadens can assist organisations to comply with their discrimination law obligations, including by reviewing relevant policies and conducting training for employees on those obligations and best practice.

Authored by Brett Feltham