COMMITTEE VIEWS AND RECOMMENDATIONS
The goal of consolidating five Commonwealth anti-discrimination laws
into a single Act is one which has been suggested for several years. The Senate
Legal and Constitutional Affairs Committee recommended in its 2008 report into
the Sex Discrimination Act 1984 (Sex Discrimination Act) that
public consultation should be undertaken on the issue of whether Australia's
anti-discrimination laws should be consolidated.
The government announced in 2010 that it would proceed to consolidate these
laws, as part of its Human Rights Framework.
The stated aim of this project – producing a clearer and simpler
anti-discrimination law for consumers, employers and the general public – is a
worthwhile one. Anti-discrimination law is a key mechanism for promoting
equality and protecting vulnerable or marginalised groups in Australia, and the
parliament must do its utmost to ensure that the law in this area is fair and
Consolidating five Acts into one is not a simple task, and the committee
acknowledges the consultation process undertaken by the Attorney-General's
Department (Department) during the process of developing the Draft Bill.
Releasing the legislation as an Exposure Draft Bill has allowed the public
further opportunity to comment on these proposed reforms before they are
brought before the parliament in their final legislative form.
Over the course of the committee's inquiry, significant issues have been
brought to light regarding the drafting of some sections of the Draft Bill. It
is clear that substantial amendments are necessary if the consolidated
legislation is to fulfil its stated intent of providing a clearer, simpler law.
The committee takes very seriously its responsibility to ensure the best
possible outcome for this proposed legislation.
In addition, the committee is of the view that some of the policy
decisions made in the process of consolidating the Acts should be reconsidered.
The committee notes the Department's commitment to closely consider the changes
suggested by this committee in formulating the final version of the legislation.
The committee looks forward to seeing its recommendations implemented when the legislation
comes before the parliament in its final form.
This inquiry generated a high level of interest from submitters and
witnesses, the media and the general public. The receipt of 3,464 submissions
and form letters from individuals, despite the short timeframe set by the
Senate for the inquiry, is an indication of the strength of the views evoked by
the proposals in the Draft Bill among certain sections of the Australian
The committee has carefully considered the key issues raised over the
course of this inquiry. For some of the more contentious provisions in the Draft
Bill, including the definition of unlawful discrimination, the committee has
recommended amendments, as it considers there is a legitimate drafting or
policy justification for change.
For other aspects of the Draft Bill which attracted criticism during the
inquiry, including provisions relating to changes to court processes for
discrimination cases, the committee has decided that there is not an
appropriate justification for change to the provisions in the Draft Bill, and
hence has not recommended amendments. In each case, the policy justification
for the relevant proposal has been the primary factor considered by the
The committee's specific comments and recommendations in relation to the
Draft Bill are set out below.
The committee received evidence regarding many of the protected
attributes included in the Draft Bill. The committee has specific comments in
relation to several of these, namely: sexual orientation, gender identity,
political opinion, social origin, family responsibilities, domestic violence
and criminal record.
Sexual orientation and gender
The committee welcomes the introduction of protections for individuals
on the basis of sexual orientation and gender identity for the first time in
Commonwealth anti-discrimination legislation. This is an historic reform that
is long overdue, and will provide significant benefits to sex and gender diverse
In relation to the formulation of the definition of 'gender identity' in
the Draft Bill, the committee considers that some improvements are
necessary in order to provide comprehensive protection on the basis of this
attribute. Many submitters and witnesses expressed concern that the current
definition is too restrictive and does not go far enough to cover
gender-related identity, appearance or mannerisms. The committee concurs that
the definition of gender identity should be drafted so as to provide the
maximum possible protection for gender diverse individuals.
The committee also considers that the 'genuine basis' qualification
provided in the Draft Bill's definition of gender identity is unnecessary, and
in no way enhances the effectiveness of the definition; instead, it has the
potential to cause confusion about when an individual will be covered by this
The committee notes comments from the Department that the definition of
gender identity in the Draft Bill reflects the most expansive standard of
protection in the states and territories at the time of drafting, and that
since that time a more expansive definition has been proposed in the Tasmanian
Anti-Discrimination Amendment Bill 2012.
The committee considers that the proposed Tasmanian definition provides broad
coverage for the attribute of gender identity, and notes that there was
widespread support among stakeholders to this inquiry for the adoption of this
definition in the Draft Bill.
Accordingly, the committee is recommending that the definition of
'gender identity' in clause 6 of the Draft Bill be replaced with the definition
in the proposed Tasmanian legislation.
The committee received considerable evidence regarding the coverage of
intersex status in the Draft Bill. The committee recognises that intersex
individuals are often the subject of discrimination in public life, and that as
such there is a need for protection on the basis of intersex status in
Commonwealth anti-discrimination law.
The committee agrees with the evidence presented by Organisation
Intersex International Australia, and other submitters, that intersex status is
a matter of biology rather than gender identity, and as such should not be
covered within the definition of gender identity in the Draft Bill. Further,
the committee considers that the current requirement in the Draft Bill that
intersex individuals identify as either male or female is misguided, and is
unhelpful for intersex individuals whose biological characteristics do not
necessarily accord with a male or female identification.
The committee considers, therefore, that intersex status should be
listed as a separate protected attribute under the Draft Bill. The committee
notes comprehensive evidence from witnesses that the definition of 'intersex'
found in the Tasmanian Anti‑Discrimination Amendment Bill 2012 most
accurately provides coverage for intersex individuals. The committee supports
this definition as the preferred option for inclusion in the final form of the
As a concluding point, the committee is of the view that since intersex
status is a condition related to the innate biological characteristics of an
individual, it should not be an attribute to which any religious exceptions apply.
The committee recommends that the definition of 'gender identity' in
clause 6 of the Draft Bill be amended to read:
gender identity means the
gender-related identity, appearance or mannerisms or other gender-related
characteristics of an individual (whether by way of medical intervention or
not), with or without regard to the individual's designated sex at birth, and
includes transsexualism and transgenderism.
The committee recommends that subclause 17(1) of the Draft Bill be
amended to include 'intersex status' as a protected attribute. 'Intersex'
should be defined in clause 6 of the Draft Bill as follows:
intersex means the status of
having physical, hormonal or genetic features that are:
(a) neither wholly female nor
wholly male; or
(b) a combination of female and
(c) neither female nor male.
The committee does not consider that the Draft Bill requires amendments
in regards to the definition of the protected attribute of 'political opinion'.
The committee is satisfied that the holding of a 'political opinion' is already
protected in the workplace by the Fair Work Act 2009 (Fair Work Act) and
various state and territory legislation. The term 'political opinion' is also
undefined in the Fair Work Act, which will allow consistent jurisprudence to
develop between the two regimes.
The committee notes that, since the reporting year 2006–07, the
Australian Human Rights Commission (AHRC) has received only 15 complaints on
the ground of 'political opinion' under the 'equal opportunity in employment'
complaints scheme. Therefore, the committee is satisfied that the inclusion of
'political opinion' as a protected attribute will not lead to a surge of
complaints in regards to discrimination on this ground. The committee takes the
view that the inclusion of 'political opinion' as a protected attribute which
takes its ordinary meaning will not place an onerous burden on duty holders or
result in a significant increase in litigation.
The committee is satisfied that reliance on the ordinary meaning of the
term 'social origin' in the Draft Bill will not cause problems as an undefined
term. The committee takes this view on the basis of the evidence provided to it,
coupled with the fact that, in those jurisdictions where it is already unlawful
to discriminate on the basis of 'social origin', the law is operating as
The committee is satisfied that the inclusion of 'social origin' as a
protected attribute which takes its ordinary meaning will not increase the
regulatory burden for duty holders.
The committee does not consider that the Draft Bill requires amendment
to extend the definition of 'family responsibilities'. The committee is satisfied
that the protections provided for family responsibilities, including carers and
kinship relationships in existing industrial laws, are sufficient.
Domestic and family violence
During the inquiry, the committee heard examples of situations in which
discrimination has occurred on the basis of being a victim of domestic
violence. As the law currently stands, there is no recourse available in these
circumstances. The committee also heard that the key to enabling a victim of
domestic violence to break free from the abusive situation is financial
independence and security – which is primarily achieved through secure
The committee acknowledges the advice of the Department that the
regulatory impacts of introducing 'domestic violence' as a protected attribute
are unknown. The committee takes the view however that the social cost of
domestic violence on victims and families, especially children, is such that
any additional regulatory impost is outweighed by the benefits of providing
protection from discrimination and thereby enabling victims of domestic
violence to achieve financial independence and secure a better future for
themselves and their families.
The committee notes the Department's advice that there is no precedent
for protecting victims of domestic violence from discrimination within the
existing anti‑discrimination Acts. The committee however considers that
this is an area where the Commonwealth must lead the way, and is encouraged by
the Australian Government's recent commitment to amend the Fair Work Act
to provide more flexible working conditions for victims of domestic violence in
places of employment. The committee considers that this action, together with a
further amendment to the Draft Bill, will assist victims of domestic violence
to increasingly participate in the workforce and broader community.
The committee recommends that subclause 17(1) of the Draft Bill be
amended to include 'domestic violence' as a protected attribute, and that
clause 6 of the Draft Bill be amended to include an appropriate definition of
Irrelevant criminal record
Throughout the inquiry, the exclusion of 'criminal record' from the list
of protected attributes in clause 17, together with the removal of the separate
complaints scheme for 'equal opportunity in employment' matters, drew much
attention. These changes remove recourse for persons who consider they have
suffered discrimination in relation to work as a result of a criminal record.
The committee notes that the strongest concerns were raised by
disability groups and community legal centres, both of whom represent some of
the most marginalised and vulnerable people within society. The committee
acknowledges the concerns of these stakeholders and agrees that discrimination
in employment on the basis of a criminal record that is clearly irrelevant
should not be tolerated.
In this context, the committee notes the Tasmanian Anti-Discrimination
Act 1998 which provides protection against discrimination on the basis
of 'irrelevant criminal record'. The committee considers that the definition of
'irrelevant criminal record' set out in the Tasmanian Act is appropriate, and
strongly supports that approach to include protection against discrimination on
the basis of a criminal record that pertains to arrest, interrogation or
criminal proceedings where, for example:
- the circumstances relating to the offence for which the person
was convicted are not directly relevant to the situation in which the
- a person was found not guilty;
- charges have been dismissed; or
- a conviction has been quashed or set aside.
The committee considers that including 'irrelevant criminal record' as a
protected attribute, particularly as a result of the removal of the 'equal
opportunity in employment' complaints scheme, is an important step that must be
taken to provide protection against discrimination on this basis.
The committee recommends that subclause 17(1) of the Draft Bill be
amended to include 'irrelevant criminal record' as a protected attribute.
The committee recommends that a definition of 'irrelevant criminal
record' be included in the Draft Bill and be modelled on that contained in the Tasmanian
Anti-Discrimination Act 1998.
Definition of discrimination
The committee notes the significant interest generated by the definition
of discrimination in clause 19, and that this provision has been the subject of
extensive commentary in the media as well as in submissions and oral evidence
to the inquiry. A large majority of the submissions and form letters received
by the committee expressed views on the definition of discrimination adopted in
the Draft Bill. Almost all of these submitters voiced strong concern that
the inclusion of paragraph 19(2)(b), which states that discrimination can
include 'conduct which offends, insults or intimidates' another person, would
have a negative impact on freedom of expression in Australia.
In its evidence to the committee, the Department explained that
paragraph 19(2)(b) is intended to be read alongside paragraph 19(2)(a), to
clarify the types of conduct which have been found to constitute harassment in
anti‑discrimination case law.
The committee accepts that this is the intent of the provision, however the
drafting of paragraphs 19(2)(a) and (b) does not convey this intent clearly. On
a plain reading of these provisions, it is arguable that they could have the
effect of making offensive conduct unlawful, contrary to the government's
For that reason, the committee considers that changes are necessary to
this clause to preserve the intent of the drafters and avoid the unintended
consequences foreseen as a result of the current drafting. The main options
presented to the committee by the Department and other stakeholders were:
removing paragraph 19(2)(b) from the Draft Bill; removing both paragraphs
19(2)(a) and (b) from the Draft Bill; or replacing the words 'offends, insults
or intimidates' with stronger words such as 'denigrate', 'degrade' or
'humiliate'. The committee considers that each of these options would represent
an improvement on the current wording.
Strengthening the wording with terms such as 'denigrate' and 'humiliate'
would create a higher threshold test for harassment, and would avoid making
unlawful conduct which merely offends. However, the committee considers salient
the evidence from the Department that these alternate words would introduce new
concepts in anti‑discrimination law, and hence could create further
uncertainty within the law and inadvertently expand the operation of the
With this in mind, the committee is of the view that the preferable option is
simply to remove paragraph 19(2)(b) from the Draft Bill in its entirety.
With paragraph 19(2)(b) removed, the committee considers that it is
acceptable to retain paragraph 19(2)(a), in order to clarify that
discriminatory treatment can include harassment. This is consistent with case
law in which the courts have held that harassment of a person can constitute
unlawful discrimination. The committee believes that stating this explicitly in
legislation merely upholds what the courts have already found, rather than
dramatically expanding the meaning of discrimination. The committee does not
consider that further clarification of the scope of the term 'harassment' is
necessary in the Draft Bill, noting the following comments by the Department:
'Harass' would have its ordinary dictionary meaning. The Oxford
English Dictionary defines 'harass' as 'trouble by repeated attacks;...subject to
constant molesting or persecution'...
[T]he dictionary definition [of harassment] is one that would
be reasonably clear, as most people would understand harassment as having this
meaning. Further, it would be generally agreed that such behaviour is not
acceptable and is already unlawful.
As an additional point, the committee notes that removing
paragraph 19(2)(b) from the Draft Bill will not affect protections against
racial vilification which are provided for in clause 51. The committee strongly
supports the provisions set out in clause 51 of the Draft Bill, which are
based on the existing racial vilification provisions in section 18C of the
Racial Discrimination Act 1975.
The committee recommends that paragraph 19(2)(b) be removed from the
Areas of public life covered by the Draft Bill
7.44 The committee is satisfied with the
approach taken in clause 22, which provides that discrimination is unlawful in
connection with 'any area of public life' and sets out a non-exhaustive list of the areas of public life
in which the legislation would apply. This approach is already taken in the Racial
Discrimination Act 1975, and the committee considers that lifting
coverage for the remaining attributes to this standard will not have an
excessively expansionary effect.
In relation to the seven protected attributes covered only in
work-related areas, the committee considers that this is an appropriate
position for the Draft Bill to adopt. While some submitters presented
reasonable arguments for extending coverage for these attributes to all areas
of public life in the interests of simplicity and consistency across all
protected attributes, these seven attributes are currently only covered in
work-related areas, either through the AHRC's equal opportunity in employment
complaints scheme or under the Sex Discrimination Act.
As such, the committee is of the view that it is reasonable to cover
these seven attributes in work-related areas only, so as to avoid significantly
expanding the scope of the Commonwealth anti-discrimination regime. The
committee considers that, if the legislation is enacted, the operation of these
provisions should be monitored by the Department with a view to ascertaining
whether or not it would be prudent to achieve greater consistency across the
attributes by extending protection to these seven attributes in all areas of
Voluntary or unpaid work
Throughout the committee's inquiry, evidence was received suggesting
that the inclusion of 'voluntary or unpaid' work in the definition of
employment in clause 6 would have unintended administrative consequences for
community and not-for-profit organisations, and may divert funds away from
Community and not-for-profit organisations clearly play an important
role in society. The committee takes the view, however, that organisations
utilising volunteer services, such as places of business more generally, have
an obligation to provide a
discrimination-free workplace. While the committee supports the government's
approach to extend anti-discrimination protections to volunteers, the current wording
in the legislation does not adequately reflect the important legal differences
between employees and volunteers. An employer has different legal obligations for
their employees than they do for their volunteers in relation to, for example,
terms of remuneration, and leave and superannuation entitlements. Employers
also generally exert different levels of direction, control and supervision over
volunteers as opposed to their employees. The current form of the Draft Bill does
not adequately reflect these important differences.
The committee recommends that 'voluntary or unpaid work' be specifically
listed as an area of public life and be added to subclause 22(2) of the Draft Bill.
The committee recommends that the definition of 'employment' in
clause 6 of the Draft Bill be amended to remove paragraph (c) relating to
voluntary or unpaid work, and that a new definition of 'voluntary or unpaid
work' be included in clause 6.
The committee recommends that, in defining 'voluntary or unpaid work',
regard be had to the legal differences between employees and volunteers.
The committee received a large volume of evidence regarding the
statutory exceptions to unlawful discrimination contained in the Draft Bill,
and notes that some of these exceptions are among the most contentious aspects
of this proposed legislation.
As a preliminary comment, the committee welcomes the guarantee that all
the exceptions contained in the legislation will be reviewed, with that review
required to start within three years of the legislation's commencement. As
anti-discrimination law is designed to protect vulnerable groups within
society, it is essential that any statutory exceptions are properly constructed
and specifically targeted to provide the greatest possible protection against
discrimination for marginalised groups and individuals. Therefore, the three-year
review is an important mechanism to ensure that all exceptions in the legislation
are necessary and operating in an appropriate manner.
General exception for 'justifiable
The committee considers that the approach of including a general
exception for 'justifiable conduct' in the Draft Bill is a suitable one, and
believes that replacing many of the existing exceptions in current legislation
with this justifiable conduct exception will produce a simpler law than that
found in the existing statutes.
The committee considers it important to ensure that the operation of the
new justifiable conduct exception is monitored closely in the three-year
review, as there may be potential to simplify the exceptions further by
removing some of the specific exceptions if the operation of the legislation shows
that they could be effectively covered by the justifiable conduct exception.
While supporting the general approach of including a justifiable conduct
exception, the committee considers that the drafting of clause 23 could be improved.
Submitters raised concerns that: the test for justifiable conduct in
subclause 23(3) cannot apply to a person who unintentionally treats
another person unfavourably; there is no guidance on how concepts such as
'legitimate' and 'proportionate' in subclause 23(3) should be assessed; and the
use of a 'proportionality' test in this context is inconsistent with other uses
of such a test in international human rights law.
The committee notes two main suggestions from submitters for improving
the wording of clause 23, namely:
- replacing the term 'legitimate aim' in paragraph 23(3)(b)
with a reference to an aim that 'is consistent with achieving the objects of
the Act', to provide a clear link between the justifiable nature of the
conduct and the human rights objectives of the Draft Bill;
replacing subclause 23(3) with an exception based on the concept
of 'reasonableness', to provide that conduct is justifiable 'if the conduct was
reasonable in the circumstances of the particular case'.
Accordingly, the committee is recommending that amendments be made to
clarify the operation of this provision, but leaves it to the Department to
consider which form of words should be adopted in the final version of the legislation.
The committee recommends that the Australian Government develop
amendments to clause 23 of the Draft Bill to address concerns raised in
submissions to the committee's inquiry. In particular, consideration should be
- replacing the words 'a legitimate aim' in paragraph 23(3)(b) with
the words 'an aim that is consistent with achieving the objects of
the Act'; or
- replacing subclause 23(3) with a test based on the concept of
Exception for 'inherent
requirements of work'
The committee notes concerns from stakeholders that the exception for 'inherent
requirements of work' is overly broad and could reduce discrimination
protections. The committee also notes the rationale provided by the Department
for the wording of this provision, including that existing jurisprudence on the
meaning of 'inherent requirements' clarifies that this term is 'an objective
element that is not simply a matter of employer discretion'.
The committee also notes that several stakeholders argued that the
'inherent requirements of work' exception is unnecessary, as it would already
be covered under the new exception for justifiable conduct in the legislation.
The committee considers that the issue of whether the inherent requirements of
work exception could be removed in deference to the justifiable conduct
exception should be thoroughly considered in the three-year review of the
exceptions in the Draft Bill.
Exceptions for religious
The committee received much commentary on the exceptions in
clauses 32 and 33 of the Draft Bill relating to religious
organisations. Many stakeholders expressed the view that religious freedoms
have not been adequately protected, and that the exceptions in clauses 32 and 33
are inadequate. Other stakeholders expressed the view that the exceptions for
religious organisations undermine the very principles of non-discrimination the
legislation is designed to protect, and argued that these exceptions should be
tightened or removed.
At the outset, the committee acknowledges the strongly held views about
the role of religious organisations in the community, and recognises the
significant contribution of religious service providers to Australian society
in areas such as education, health services and aged care.
The committee agrees that religious freedom is a fundamental human
right, as acknowledged in the International Covenant on Civil and Political
Rights (ICCPR) and other international treaties, and that this right
should be acknowledged in any discussion of religious exceptions to
anti-discrimination laws. The committee notes that many religious organisations
which provided input to the inquiry argued that the right to religious freedom
has not been properly recognised in the Draft Bill, and proposed amendments to
The committee also acknowledges that a tension can sometimes exist
between the competing right to freedom of religious expression and the right to
non-discrimination. In the committee's view, discrimination on religious
grounds is justifiable if it is reasonable and proportionate in all the
circumstances. This does not mean, however, that discriminatory conduct by
religious organisations should always be lawful. The law should not provide
broad statutory exceptions allowing disproportionate or unreasonable
discrimination on religious grounds. The committee considers that the potential
impact of any discriminatory conduct on the individual concerned is a crucial
issue when determining the reasonableness of such action.
In this regard, the committee notes comments from the Parliamentary
Joint Committee on Human Rights that, without further explanation from the
government about how the broad religious exceptions in the Draft Bill are
consistent with other human rights, 'these provisions are likely to be
incompatible with the right to non-discrimination'.
Turning to more specific issues relating to the religious exceptions,
the committee has comments on several matters.
Exceptions for religious
organisations in relation to employment
The committee considers that religious bodies and institutions should
maintain the right to employ staff in accordance with their founding ethos and
values, and notes evidence from submitters and witnesses that staff members'
faith can be relevant to their appropriateness for employment even if they are
not being employed in a specifically religious role.
The committee believes that religious organisations and educational
institutions should retain this right, subject to the notification requirement
discussed in more detail below.
Limited exception for
Commonwealth-funded aged care
The committee agrees with the policy approach taken by the government in
deciding to limit the religious exception for Commonwealth-funded aged care.
The committee heard evidence, in particular, on the negative effects of
discrimination against older LGBTI Australians in aged care settings,
and considers that it is fundamentally important that all older Australians
maintain the right to access aged care services on an equal basis. The
committee notes that in some areas of Australia there is very limited choice of
aged care service providers, and hence does not agree with the argument that
individuals will always be able to choose a non-religious service provider should
they so wish.
Service provision delivered by
More generally, while the committee is of the view that religious
organisations should retain their statutory exceptions in relation to
employment, it can see no reason why individuals should automatically lose
their right to non‑discrimination in the provision of services because a
particular service is being provided by a religious organisation. The committee
is of the view that no organisation should enjoy a blanket exception from
anti-discrimination law when they are involved in service delivery to the
general community. It is vitally important that the rights of minority groups
are upheld when they are receiving help from service providers, particularly in
cases where the service provision is Commonwealth-funded.
The committee notes that, in other jurisdictions in Australia and
internationally, much tighter exceptions apply in relation to service delivery
by religious organisations than proposed in the current wording of the Draft
Bill. The committee heard evidence that, under the Tasmanian Anti-Discrimination
Act, there are no statutory exceptions for religious organisations from anti‑discrimination
requirements in relation to the delivery of services to the public. The
Tasmanian Anti‑Discrimination Commissioner told the committee that these
provisions have operated in Tasmania for over a decade without serious concerns
being raised about the erosion of freedom of religion.
Accordingly, the committee is recommending that the Draft Bill be amended
in order to remove exceptions that allow religious organisations to
discriminate against individuals in the provision of services, where that
discrimination would otherwise be unlawful. The committee strongly supports the
Tasmanian model for religious exceptions to anti-discrimination law in this
regard, and considers that this model should be implemented nationally through
the consolidated Commonwealth Act. With regards to the specific amendments that
would be required to implement this recommendation, the committee leaves it to
the Department to develop appropriate drafting for clause 33 in order to
meet this policy goal, undertaking further consultation if necessary.
In making this recommendation, the committee notes that some of the
religious organisations who presented evidence to the inquiry informed the
committee that they provide services on a non-discriminatory basis.
Many other stakeholders made compelling arguments for the limitation or removal
of religious exceptions in relation to service delivery, on the basis that all
Australians should be able to access services equitably.
In relation to government tender requirements for the provision of a
service, the committee considers that the Australian Government should have the
option of specifying in any public tender process that the service must be
provided on a non‑discriminatory basis, if that is appropriate in the
particular case. The committee has heard evidence that amendments to the Draft
Bill may be necessary to clarify that the government can make such
specifications in public tender processes.
The committee considers that the Department should investigate if this is the
case, and, if so, the Draft Bill should be amended to clarify that exceptions
in the legislation do not limit the government's ability to require that a
service contracted by the Commonwealth be provided on a non-discriminatory
As a final point, the committee notes that religious freedom is
protected under section 116 of the Australian Constitution, as well as under
the ICCPR and other international treaties to which Australia is a signatory. In
that context, the committee acknowledges comments from stakeholders that there may
be a strong argument that reasonable and proportionate actions taken in line
with religious freedoms are likely to be considered 'justifiable conduct' under
the general exception in clause 23 of the Draft Bill.
A significant number of submitters and witnesses argued that, in the
interests of transparency, religious organisations intending to rely on an
exception in clause 33 should be required to notify prospective employees,
students or other service users of that intention. The committee heard that a
similar requirement exists with regards to religious educational institutions
in South Australia. Subsection 34(3) of the Equal Opportunity Act
1984 (SA) provides that these educational institutions must have a written
policy regarding any discriminatory practices, and must give a copy of this
policy to prospective employees, as well as to any students, parents or members
of the public who request one.
The committee is of the view that there is considerable merit in this
type of notification requirement for religious organisations intending to rely
on an exception in clause 33. Such a measure would promote transparency
and alert individuals ahead of time as to the practices of a particular
The committee notes evidence from the Australian Catholic Bishops Conference
that Catholic health and aged care services in Australia already have a
publicly available ethical standards document.
A representative from the Australian Association of Christian Schools also told
the committee that, if religious freedoms were more adequately protected, it
would be quite reasonable for schools to declare the basis on which they make
decisions in such matters.
The committee does not consider that such a requirement would impose an
undue administrative burden on organisations, and believes that the public
benefit in having such matters clearly stated on the public record by service
providers justifies its inclusion in the Draft Bill.
The committee recommends that the Draft Bill be amended to remove
exceptions allowing religious organisations to discriminate against individuals
in the provision of services, where that discrimination would otherwise be
unlawful. The committee considers that the Australian Government should develop
specific amendments to implement this recommendation, using the approach taken
in the Tasmanian Anti‑Discrimination Act 1998 as a model.
The committee recommends that clause 33 of the Draft Bill be amended to
require that any organisation providing services to the public, and which
intends to rely on the exceptions in that clause, must:
- make publicly available a document outlining their intention to
utilise the exceptions in clause 33;
- provide a copy of that document to any prospective employees; and
- provide access to that document, free of charge, to any other
users of their service or member of the public who requests it.
Complaints and court processes
The committee is of the view that the changes proposed in Chapter 4 of
the Draft Bill which seek to improve access to justice will strike the right balance
in enabling people with complaints to pursue claims of discrimination whilst
minimising unmeritorious complaints and their costs to the broader community.
The committee considers that removing the separate complaints scheme for
'equal opportunity in employment' matters, and ensuring that those matters are
provided for through their inclusion as protected attributes, will clarify the law
and result in efficiencies.
Shifting burden of proof
The committee recognises that there has been considerable debate
concerning the proposed shifting of the burden of proof in clause 124 of
the Draft Bill, but considers that much of the public debate surrounding this
provision has been misinformed. The Draft Bill only imposes a civil liability
– not a criminal liability – so the suggestion that the Draft Bill removes the
presumption of innocence is inaccurate and misleading.
The committee takes the view that the shifting burden of proof proposed
in clause 124 is appropriate and will in fact reduce costs for respondents
as they will only be required to produce evidence explaining that their conduct
was justifiable after an applicant has established, through evidence, that
unlawful treatment actually occurred. The committee considers that imposing
this requirement on applicants will act as a deterrent against vexatious
Further, the committee notes the comments from the Parliamentary Joint
Committee on Human Rights that 'it is a well-established practice in
international and comparative human rights jurisprudence for the burden of
proof to shift in discrimination cases once a prima facie case has been made'.
The committee agrees with the approach set out in clause 133 of the
Draft Bill, which provides that each party is to bear its own costs, but includes
discretion in subclause 133(2) for the court to make orders as to costs. The
committee notes that a number of stakeholders voiced support for this approach
on the basis that it will markedly improve access to justice, particularly for
The committee supports the approach taken in clause 117 that streamlines
and clarifies the AHRC's ability to close complaints, and provides an
obligation to give notice of closure and the reasons for that closure. The
committee commends the inclusion of paragraph 117(2)(c) that explicitly
provides the AHRC with the authority to close complaints that it determines are
frivolous, vexatious, unmeritorious or lacking in substance.
The committee acknowledges that it received evidence from submitters
suggesting that, in those instances where leave is first required before a
closed complaint can proceed to the Federal Court or the Federal Magistrates
Court, provision should be made for representatives to initiate those
applications on behalf of an applicant. The committee does not agree that such
a provision is necessary, since clause 89 of the Draft Bill provides for
representative actions in the first instance, and clause 129 provides a
right of representation when applying to the Federal Court or Federal
Magistrates Court in relation to unlawful conduct.
Due to the complexity of the issues raised during the committee's
inquiry, and the short timeframe in which it has been undertaken, the committee
has necessarily focussed its attention on a limited number of key issues. In
making its preceding comments and recommendations, the committee acknowledges that
it has not been able to address all of the recommendations put forward in
submissions and evidence to the inquiry.
Some of the issues raised by stakeholders – but in relation to which the
committee has not been in a position to form extensive views – include:
- 'special measures' provisions in clause 21;
- 'reasonable adjustments' provision in subclause 23(6);
- the interaction between the proposed operation of the Draft Bill,
and other state and territory laws provided for in clause 14, as well as the operation
of the exception in clause 30 for conduct in accordance with prescribed laws;
the exception for insurance, superannuation and credit in clause
In the circumstances, the committee considers that the Department is
best placed to actively and thoroughly consider all evidence presented to this inquiry
during the formulation of the final version of the legislation.
Further, and due to significant time limitations, the committee has not
been in a position to closely consider certain recommendations proposed by
submitters which relate to specific technical aspects of the Draft Bill. The
committee therefore expects that, in addition to considering the
recommendations set out in this report, the Department will analyse and address
such suggestions prior to introduction into the parliament of the legislation
in its final form.
In particular, the committee considers that recommendations that relate
to improving the technical drafting of the legislation made by submitters such
as the Australian Human Rights Commission (Submission 9), the Discrimination
Law Experts Group (Submission 207), the Law Council of Australia (Submission 435),
and the Parliamentary Joint Committee on Human Rights (Submission 595) should be
closely examined by the Department.
Senator Trish Crossin
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