Enhancing Equality: Reforming Anti-Discrimination
Laws to Make Australia Fairer

The Hon Catherine Branson QC

Reforming Australia’s Equality Laws: A Conference about
best-practice models and frameworks for the promotion of equality.

Tuesday, 26 July 2011, Melbourne

I begin by acknowledging the traditional owners of the land on which we meet,
the Wurundjeri people, and I pay my respects to their elders past and
present.

I also acknowledge everyone present as a fellow worker for human rights. On
behalf of us all I thank our hosts, RMIT and the Human Rights Law Centre as
convenors of this conference.

Thanks are also due to the Attorney-General of Australia and his Department
for supporting the Human Rights Law Centre in facilitating public debate and
input for the process of consolidating Federal discrimination laws.

This consolidation process, as you know, is part of the Human Rights
Framework announced by the Government last year in response to the National
Consultation on Human Rights.

It is no secret that many people concerned about human rights protections in
this country, including the Australian Human Rights Commission, did not see
everything they were hoping for in the Government’s response to the
National Consultation.

We did, however, see in that response important opportunities to progress
human rights in our country.

Provision for improved Parliamentary scrutiny of legislation, including human
rights impact statements, means that at least part of the “dialogue
model” contained in the Victorian charter will be in place at the Federal
level. Importantly, scrutiny will be undertaken by reference to all of the
principal human rights instruments, not just a more restricted list of rights.
This will provide a challenge as well as an opportunity for improved
transparency in law and policy making and thus, one trusts, improved respect for
human rights.

The development of a new National Human Rights Action Plan, including
implementation of the commitments made during Australia’s Universal
Periodic Review before the United Nations Human Rights Council, is another
potentially significant part of the Human Rights Framework.

The Action Plan process offers opportunities to stocktake and benchmark the
current status of human rights in Australia. It also provides the chance to set
targets for progress over the life of the plan and to identify actions necessary
to reach those targets.

A draft Baseline Study is currently out for public comment and a draft of the
Action Plan itself will be available later in the year.

I encourage everyone here to involve themselves in this process, including
through the website hosted by the Human Rights Law Centre. I also urge you all
to press for targets and actions for progress towards equality to feature
prominently in our Human Rights Action Plan.

The National Human Rights Action Plan offers an opportunity to put the
pursuit of equality and other human rights on a better footing.

That brings me back to today’s program.

A process of review and consolidation of federal discrimination laws could be
seen as a fairly technical and limited exercise. “Review and consolidation
of existing laws” sounds less ambitious and exciting than language such as
“development of a comprehensive Equality Act”.

The Australian Human Rights Commission, however, is approaching this process
from the perspective that this is not a purely technical exercise of tidying-up
and simplification, but rather, a process that offers real and important
opportunities to see how discrimination law can contribute more effectively to
achieving equality in our society.

I should note that the Commission has not, at this point, adopted formal
positions on the details of the legislation that should emerge from this
process. I’m sure our views will continue to benefit from discussion by
academic and other experts and interested parties, today and as the process
develops.

But I can say that I think there are reasons to approach the process with a
fair degree of ambition and expectation.

That applies both to the grounds of discrimination which the law should
cover, and to how it should work to eliminate discrimination on those
grounds.

In relation to the grounds of discrimination covered, while the Government
has referred to “consolidation” of existing discrimination laws,
which might be read as referring only to coverage of the Racial, Sex, Disability
and Age Discrimination Acts, it has also referred to developing a single
“comprehensive” law.

Election commitments were made, with a welcome degree of cross party support,
to include at least the grounds of sexuality and gender diversity in this
process of reform.

It would also seem sensible and necessary to look at those additional grounds
covered by the Fair Work Act and by the Australian Human Rights Commission Act,
at least so far as employment is concerned.

Of course, coverage of these additional grounds should not be assumed as an
automatic result of the consolidation process. Arguments may need to address how
placing additional obligations on employers fits within an exercise which is
also about reducing regulatory burdens.

Part of the answer to this may be that:

• there would be little if any increase in substantive obligations in
  including these additional grounds within a single Federal discrimination law,
  given their coverage in most cases by the Fair Work Act at the federal level and
  in some State and Territory laws, and
• that the overall regulatory burden could, in fact, be diminished by having a
  clearer and more consistent regime to deal with.

Simplicity and
consistency in legislation is not only a benefit to judges, lawyers and law
students, but also to people trying to understand the law in order to comply
with it.

Objectives of “streamlining” federal anti-discrimination law and
addressing current inconsistencies between the Acts, making the system more
user-friendly and reducing compliance costs by clarifying rights and
obligations, may primarily be about efficiency.

But in announcing the process, the Attorney-General and the Minister for
Finance also emphasised increasing the effectiveness of discrimination
law in achieving the objective of removing barriers to equal participation in
society, with consequent economic and social benefits.

Legislative clarity is itself an important compliance strategy. Legislation
is likely to have greater effectiveness as well as efficiency the more readily
its terms are able to be understood and explained without resorting to judicial
or legal interpretation.

The amount of recourse to the courts to date to ascertain the meaning of
basic provisions in federal discrimination laws has been disappointingly high
for what are meant to be beneficial laws. It has been disappointing because:

• resort to superior courts for interpretation is expensive to the parties and
  to the public
• the lack of clarity in the law leading to this level of recourse is likely
  to have limited the degree of voluntary compliance occurring and increased costs
  of seeking legal and related advice, and
• in several basic respects, such as identifying the elements of direct
  discrimination, the courts have not left the law appreciably clearer than it was
  before being subject to judicial interpretation.

So an opportunity
to improve the clarity of the law is welcome. There are some obvious areas for
attention:

• complex and inconsistent definitions of discrimination
• an array of different exceptions and different areas of life covered or not
  covered under the different Acts, and
• gaps and inconsistencies between the Acts in the mechanisms provided for
  promoting compliance.

A number of people who will be speaking later
today have written about the need for improved compliance approaches, or
regulatory frameworks, to enable discrimination law to achieve its objects of
promoting equality and eliminating discrimination, together with providing
access to justice and redress. I look forward to that discussion continuing.

As we go about this task, it is important to note the commitment of the
government that there will be no diminution of existing levels of protection.
This raises important issues – such as how we preserve some of the unique
features of the different pieces of legislation.

For example, in relation to the Racial Discrimination Act:

• there is no capacity provided in the Act, or indeed in international law,
  for exemptions to racial discrimination – only beneficial, special
  measures. This will need to reconciled with the other pieces of legislation that
  do permit exemptions.
• section 10 of that Act is also unique among existing legislative provisions.
  It has played a critical role in promoting racial equality in Australia. It is
  likely that without this section, Eddie Mabo’s claim that native title
  continued to exist would not have been heard by the High Court. Whether an
  equivalent provision to section 10 of the RDA should apply across the board is
  an important consideration during this process. As an absolute minimum, section
  10 of the RDA must be retained for the purpose of promoting racial
  equality.

The Commission has, of course, made public comments in the
past on many other issues and directions for reform, including in submissions
such as in the Parliamentary review of the Sex Discrimination Act and the review
by the Productivity Commission of the Disability Discrimination Act. But I
don’t want to pre-empt how the Commission’s views might develop
further through this current process.

Once again, I congratulate the Human Rights Law Centre for organising
today’s conference. I am confident that the discussions which happen
today, and leading on from today, will significantly help the Commission, the
Government, and people and organisations in the field, as we all work to improve
Australia’s discrimination laws as tools for promoting and achieving
equality.

May I now turn to introduce our keynote speaker, Dr Dimitrina Petrova, who I
had the privilege of meeting in London last year? She will be speaking to us on
‘International Trends and Best Practice Models of Promoting
Equality’. She is singularly qualified to do so. I will mention only a
few of those qualifications.

Dr Petrova is the founding Executive Director of the Equality Rights Trust,
an international human rights organisation based in London which was launched in
January 2007 to promote equality as a fundamental human right. Previously she
headed the European Roma Rights Centre, an international human rights
organisation based in Budapest, which has been the recipient of a number of
awards for its pioneering work on racial equality.

Since 1997, Dr Petrova has also been Visiting Professor at the Central
European University’s Legal Studies department and she is currently a
Fellow at the University of Essex. Dr Petrova holds a PhD from the University
of Sophia and her writings include over 75 publications on human rights,
equality, democracy, politics and the social sciences.

Please welcome Dr Petrova.