Submitters and witnesses raised various issues relating to the list of
protected attributes included in clause 17 of the Draft Bill. In particular,
stakeholders focussed on the new protected attributes of 'sexual orientation'
and 'gender identity', as well as 'political opinion', 'social origin' and 'family
responsibilities'. Submitters also commented on the omission of certain attributes,
which they considered should also be included as protected attributes in the Draft
New protected attributes of 'sexual orientation' and 'gender identity'
Many submitters welcomed the addition of 'sexual orientation' and 'gender
identity' as protected attributes.
Other submitters opposed the introduction of these new protected attributes.
Some submitters who supported the introduction of these attributes expressed
concern that the wording of the relevant provisions in the Draft Bill does not
go far enough to protect some sex or gender diverse individuals and groups
Definition of 'sexual orientation'
Some submitters suggested that refinements should be made to improve the
definition of 'sexual orientation' found in clause 6 of the Draft Bill. The
Discrimination Law Experts Group and the ANU College of Law 'Equality Project'
(ANU Equality Project) both advocated replacing the term 'sexual orientation' with
the term 'sexuality'.
The Discrimination Law Experts Group argued that 'sexuality' is 'a more
inclusive term that allows for a sexual identity not dependent on
a specific orientation' and proposed that 'sexuality' should be defined in
the Draft Bill to include 'sexual attraction, sexual identity and sexual
The Victorian Gay and Lesbian Rights Lobby (VGLRL), argued that the term
'sexual orientation' should be retained, as it 'reflects international and
Australian best practice and is a practical, workable definition that will
provide clarity for users of anti-discrimination legislation'.
Despite this view, VGLRL agreed with the Discrimination Law Experts Group that
the definition should include sexual behaviour, identity and feelings or attraction.
VGLRL also recommended that the references to 'opposite sex' in the definition should
be replaced with the term 'different sex', arguing that sex and gender are not
binary issues and the 'imposition of a sex binary therefore inappropriately and
unnecessarily confines the definition'.
Definition of 'gender identity'
Submitters raised concerns that the definition of 'gender identity' in
clause 6 is unnecessarily restrictive and does not provide adequate protection
for individuals in a range of circumstances.
In particular, submitters expressed concern that the definition limits
protection against discrimination for this attribute to an individual of one
sex who identifies as a member of the opposite sex.
For example, Dr Tiffany Jones proposed extending the definition of
'gender identity' to include non-traditional expressions of gender which are
not necessarily related to an 'opposite sex' (or transgender) gender identity.
The ANU Equality Project submitted that the definition should be extended to
cover the gender presentation and mannerisms of a person as well as their
gender identity (for example, a person who looks male but whose biological sex
is female, or a person who does not present as either male or female,
regardless of whether they identify themselves as male or female).
The requirement in the definition of 'gender identity' that an
individual must identify as a member of a particular sex 'on a genuine basis'
was also criticised by some submitters. For example, VGLRL noted that this qualification
does not apply to any of the other protected attributes, and argued that it
will simply cause confusion about the coverage of the definition of gender
identity, particularly given that the phrase 'on a genuine basis' is not
defined in the Draft Bill.
Ms Sally Goldner from VGLRL argued:
The test of genuine basis adds complexity and unnecessary
detail. Its retention in the bill would result in courts and commissions
intruding unnecessarily in the lives of transgender people at a time of stress and
may even run to counter the aim of reducing discrimination and its impact.
Ms Anna Brown from the Human Rights Law Centre argued that the inclusion
of the 'on a genuine basis' qualification appears to be at odds with the
assurance in paragraph 19(4)(d) that conduct may be unlawful discrimination if
it occurs on the basis of a person's assumption that a person has a protected
[I]t does not make sense that someone can be protected even
if they are perceived to be transgender or perceived to be of a particular
gender identity and yet the definition of gender identity has this [genuine
basis] requirement. It is offensive to transgender people and it is simply not
recommended that the definition of gender identity in the Draft Bill should be
amended to follow a form of words proposed in legislation currently before the
Tasmanian Parliament, as follows:
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 individuals designated sex at birth, and includes transsexualism
Coverage of individuals who are
Several submitters commented on whether intersex individuals would be
sufficiently protected under the definition of gender identity in the Draft
According to the Explanatory Notes, paragraph (b) of the definition of 'gender
identity' in clause 6 will cover individuals born intersex who identify as
either sex (that is, intersex individuals who identify as male or female).
The Explanatory Notes explicitly state that this definition 'does not
require recognition of, or provision of facilities for, people who do not
identify as either sex'.
Organisation Intersex International Australia (OII) raised several
issues concerning the scope of this coverage for intersex individuals. In
relation to the scope of the term 'intersex', OII observed:
Intersex is a term which relates to a range of natural
biological traits or variations that lie between 'male' and 'female'. An
intersex person may have the biological attributes of both sexes, or lack some
of the biological attributes considered necessary to be clearly defined as one
or the other sex. Intersex is always congenital and can originate from genetic,
chromosomal or hormonal variations. In many cases, intersex variations can be
determined prenatally, via amniocentesis.
Accordingly, OII argued that by seeking to cover intersex status under
the definition of gender identity, the Draft Bill fails 'to accurately define
intersex as a matter of biology, rather than gender identity'.
As Gina Wilson from OII explained:
It is not a matter of our behaviour; it is a matter of how we
are born. We are not behaving like anything. It is not a matter of sexual
orientation. We have the same range of sexual orientations as the rest of the
community. It is not about our gender identity. We have the same range of
gender identities as the rest of the community. It is about how we are
physically born...It is not a choice. It is not an orientation. It is not an
OII argued that state and territory anti-discrimination legislation
defining gender identity in similar terms to the Draft Bill 'has not been
effective' in protecting intersex individuals from discrimination.
Gina Wilson told the committee:
The wording in the draft bill is roughly the same as the
wording in the Victorian, New South Wales, Queensland and South Australian
legislation. We have attempted to use the legislation in New South Wales on
several occasions to address intersex issues where the discrimination was in
fact because of biological difference...We have been unable to successfully run
any case on the basis of our biological differences.
Councillor Tony Briffa argued that the Draft Bill should provide legal
recognition for individuals who are born with both male and female biological
The Anti-Discrimination Board of NSW agreed that definitions in the Draft
Bill relating to sex and gender identity 'should be wide and inclusive enough
to cover people who are intersex, without a requirement that any person should
identify as either male or female'.
Ms Karen Toohey, representing the Australian Council of Human Rights
Agencies (ACHRA), informed the committee that intersex status is included in 'a
number of definitions' in state legislation, and that all state human rights
commissions within ACHRA are supportive of intersex being included in the Draft
Bill as a separate attribute to gender identity.
Ms Robin Banks, the Tasmanian Anti-Discrimination Commissioner, expressed
the view that listing intersex status as a separate attribute would also help raise
awareness of intersex issues in the community:
There is a public benefit in actually naming intersex as a
protected attribute because it increases community understanding that people
exist in our community who are intersex—quite a significant number of people.
Subsuming it within gender identity loses that educative benefit and I think
that is a very significant part of what we are seeking to achieve—awareness in
the community that this is a reality for many people and they do experience
discrimination because of it.
OII recommended that intersex status should be listed as a protected
attribute separate to gender identity, and defined 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 male; or
(c) neither female nor male.
This form of words matches that found in legislation currently before
the Tasmanian Parliament,
and was supported by many other submitters and witnesses.
For example, Ms Sally Goldner from the Victorian Gay and Lesbian Rights Lobby
contended that using the 'explicit and easy-to-understand' definition from the
Tasmanian bill would reduce any regulatory burden arising from the inclusion of
'intersex' as a protected attribute.
The Australian Human Rights Commission (AHRC) submitted that, in order
to increase certainty and clarity in this area, the Draft Bill should provide
express protection against discrimination on the basis of a person's sex
characteristics, intersex status, or gender expression.
The AHRC commented that 'there is potential for uncertainty, including
expenditure on litigation, through issues of sex characteristics and gender
expression being covered only as part of the concept of gender identity'.
The Department made the following comments with regard to the definition
of 'gender identity' in the Draft Bill:
This definition reflects the most expansive standard of
protection in the States and Territories at the time the Bill was settled.
Since that time, the Government has become aware of the proposed definitions
for 'gender identity' and 'intersex' in the Tasmanian Anti-Discrimination
Amendment Bill 2012.
Expanding the definition in the Bill beyond existing
standards in State and Territory anti-discrimination law to include 'gender
expression or presentation' and 'intersex' may raise regulatory issues, which
the Government would need to consider further.
The Department also explained that the inclusion of the 'genuine basis'
qualification is consistent with wording in anti-discrimination legislation in
Victoria and the Australian Capital Territory, and is not intended to set a
particular threshold that must be met:
[It] merely requires genuine identification by the person. That
is, the definition is intended to cover any person who identifies as a
particular gender identity on a day-to-day basis.
The Secretary of the Department confirmed in evidence to the committee
that the government would be open to examining the possibility of adopting
different definitions for 'gender identity' and 'intersex status'.
Other protected attributes included in the Draft Bill
The committee also received evidence concerning the likely practical
effect and operation of a number of other protected attributes.
Definition of 'family
The definition in clause 6 of the protected attribute of 'family
responsibilities' applies with respect to responsibilities towards a person's
dependent child or any other member of the person's immediate family who is in
need of care and support.
Several submitters and witnesses called for this definition to be
broadened to cover a wider range of care arrangements. For example, the Discrimination
Law Experts Group argued:
This is a narrow definition that focuses more on the
relationship between people than their caring obligations. It also excludes the
network of relationships and care obligations of specific groups including, but
not limited to, Aboriginal and Torres Strait Islander communities.
In the context of a Bill that covers race and age
discrimination as well as discrimination on the grounds of disability, sex,
gender identity and sexual orientation, it is important that the definition of
family responsibilities is an inclusive one, capable of recognising the variety
of different family, caring and kinship relationships of all those groups
specifically protected by the Bill.
Submitters also argued that inconsistency between this definition and
similar terms in other legislation could result in 'confusion and uncertainty'
for duty holders.
The Australian Council of Trade Unions (ACTU) observed:
There is inconsistency across Federal, State and Territory
anti-discrimination legislation, each protecting variously those with
'family and caring responsibilities', 'family responsibilities' or
'caring responsibilities'. The [Draft Bill] should at least be drafted
consistently with other recent federal legislation including the Workplace
Gender Equality Act 2012 and section 351(1) of the Fair Work Act
2009, which refer to 'family and caring responsibilities' with a view to
ultimately achieving consistency across both state and federal legislation.
In response to these concerns, the Department stated:
[A]part from the Government's commitment to introduce sexual
orientation and gender identity as protected attributes, the Bill is not
expansionary in nature. The definition of 'family responsibilities' was
therefore not expanded to include caring responsibilities more broadly due to
the potential regulatory impact.
The Draft Bill includes 'political opinion' as a protected attribute in
subclause 17(k). Under subclause 22(3), discrimination on the grounds of
political opinion is only unlawful in relation to work and work-related areas.
'Political opinion' is not defined in the Draft Bill; however, the
Explanatory Notes state that it will take its 'ordinary meaning'.
Several stakeholders commented that the lack of definition would result
in an increase in litigation. For example, the Australian Chamber of Commerce
and Industry indicated that the lack of a clear definition would 'result in
uncertainty and potential unnecessary litigation to clarify what policy makers
Ms Robin Banks, the Tasmanian Anti-Discrimination Commissioner, advised
the committee that 'political opinion' is a protected attribute in Tasmania:
It has not been the basis of very much complaint at all—I can
think of one or two complaints in my [two and a half years] as the
commissioner. Again, it has not been an area where we see a lot of people
exercising claims. It is always important to keep in mind what the experience
is of those jurisdictions that have the protection already: how is that
protection being exercised?
Professor Simon Rice OAM, representing the Discrimination Law Experts
Group, expressed the view that the protection of 'political opinion' is
'unremarkable' as it already exists in state and territory anti-discrimination
Regarding the lack of a statutory definition for the term 'political
opinion', the Department noted:
Political opinion is...covered by the Fair Work Act  and
most of the State and Territory jurisdictions (variously described as political
'affiliation', 'activity', 'belief' or 'conviction'). Further definition of the
term is not considered necessary. The term political opinion is also undefined
in the Fair Work Act, enabling consistent jurisprudence to develop between the
Further, since 'political opinion' (along with
origin' and 'industrial history') is already covered under the Fair Work Act,
including it (and the other protected attributes) in the Draft Bill 'will have
limited regulatory impact on employers as they already must comply with the
Fair Work Act'.
The Draft Bill includes 'social origin' as a protected attribute in
clause 17. According to the Department, 'social origin' as a protected attribute
is limited to work and work-related areas to maintain the status quo and
minimise regulatory impact.
Like the protected attribute of 'political opinion', the Draft Bill does not
contain a definition of 'social origin'; however, the Explanatory Notes state
that the term will take its 'ordinary meaning'.
Some stakeholders raised concerns over the lack of a clear definition of
the concept of 'social origin'. Mr Tim Wilson from the Institute of Public
Affairs suggested that, as 'social origin' is an amorphous concept, it could be
interpreted in many different ways. Mr Wilson concluded that 'it becomes almost
impossible to know what you can and cannot say, and as a consequence people
will have no choice but to say nothing'.
The Anti-Discrimination Board of NSW argued that the inclusion of the
term 'social origin' is 'contrary to the Australian concept of an egalitarian
and meritorious society' and 'would appear to codify an acceptance that a class
system exists in Australia'.
Some witnesses suggested that the term would cover situations
where a person considered that they had been discriminated against on the basis
of where they live.
Ms Robin Banks, the Tasmanian Anti-Discrimination Commissioner,
provided the following example of how discrimination may occur in this context:
[O]ne of the issues that is regularly raised with me in
Tasmania is of people who, because of where they live and because they live in
an area that is...a bad suburb...and a suburb that is dominated by people on Social
Security benefits, [they] just cannot put their postal address on a job
application; they are overlooked automatically. People in some of those suburbs
in Tasmania will get a post office box in a nice suburb in order to avoid the
problem of being discriminated against because of, in this case, a combination
of where they live and the reputation of that suburb in terms of its social
Mr Edward Santow from the Public Interest Advocacy Centre (PIAC) noted that,
while the term is not defined, the intention would seem to be to protect people
being discriminated against because of their poverty or other social status. Accordingly,
Mr Santow suggested in evidence that the term should be replaced with
'social status' and should specifically include housing status, citing examples from PIAC's submission of
people being treated unfairly regarding their homelessness, in turn trapping
them into a cycle of poverty.
Ms Rachel O'Brien of the National Aboriginal and Torres Strait Islander
Legal Service (NATSILS) took a different view, explaining that NATSILS would
prefer to keep 'social origin' and 'social status' separate. Ms O'Brien
did, however, suggest that since there is apparent confusion about the meaning
of 'social origin', the Draft Bill should be amended to clarify whether the
attribute of 'social origin' includes the concept of 'social status'.
The Department advised that the inclusion of 'social origin' as a
protected attribute in the Draft Bill will have a limited regulatory burden for
duty holders as it is already unlawful to discriminate on the basis of 'social
The Department confirmed that 'social origin' is undefined in both the Fair
Work Act 2009 (Fair Work Act) and the Draft Bill 'to enable consistent
jurisprudence to develop'.
The Department advised the committee that the government is unaware of
any issues arising to date in the Fair Work Act context by having 'social
origin' as an undefined term.
Further, since the 2006-07 reporting period, the AHRC has received only two
complaints on the ground of 'social origin'.
Inclusion of 'religion' as a
The Draft Bill includes 'religion' as a protected attribute in clause
17. However, subclause 22(3) provides that discrimination on the ground of
'religion' is only unlawful in connection with work and work-related areas.
Arguments in favour of extending
coverage to all areas of public life
Several submitters argued that discrimination protection on the basis of
'religion' should be extended to all areas of public life.
For example, the Australian Bahá'í Community contended that there is a clear
basis for making discrimination on the basis of 'religion' unlawful in
work-related areas, yet providing that discrimination on this basis should
still be lawful in other areas of public life, such as in the provision of
goods, services or facilities.
The Australian Christian Lobby expressed disappointment at the limited
coverage of religion as a protected attribute, asserting that such an approach:
[C]onveys the message that in all other aspects connected
with an area of public life protection against discrimination on the basis of
religion is unwarranted, despite the fact that protection against other kinds
of discrimination is seen as necessary...The very limited scope of protection
against religious discrimination is a powerfully negative statement that cannot
have been intended. Australians of all faiths will be disappointed at the message
Arguments in favour of removing
'religion' as a protected attribute
On the other hand, the Australian Catholic Bishops Conference argued
that including 'religion' as a protected attribute would risk creating a
'religious freedom litigation culture' in Australia:
[T]he Exposure Draft...risks propelling matters of religious
practice and belief from being matters of public discourse to being matters for
litigation...Listing religion as a new protected attribute would introduce
uncertainty into the law, including the risk of legal actions hostile to
religion. Religion has never itself been a justiciable ground of action under
any Commonwealth legislation and so its addition is an untested addition to the
Attributes not covered in the Draft Bill
Some submitters expressed disappointment that certain other attributes
have not been included as protected attributes in the Draft Bill, namely: 'domestic
and family violence'; and 'criminal record'.
'Domestic and family violence'
Several submitters advocated for the inclusion of 'status as a victim of
domestic violence' as a protected attribute under the Draft Bill,
noting in particular that discrimination against victims of domestic violence
is a significant issue in the area of employment. Queensland Working Women's
[I]n many cases workers still experience discriminatory
actions including termination of their employment, inability to secure
permanent and stable jobs or are subject to derogatory comments or other
prejudices at work coinciding with their experience of domestic violence.
Ms Shabnam Hameed from the Australian Domestic and Family Violence
Clearinghouse cited an instance in which a person lost their job due to their
status as a victim of domestic violence:
A club dismissed someone on the basis that a patron, who was
also the ex of the person being dismissed, was harassing them at the club.
Had it been any other patron, the club already has processes in place to remove
that member from the club, to bar them from the club et cetera if the same or
similar behaviour—unpleasant behaviour, behaviour that was disrupting the club
or whoever—was taking place. In one instance the prejudice of being a victim of
domestic violence led to that person being terminated. In the instance that
just a rowdy person was engaging in exactly the same behaviour, the bar
attendant would not have lost her job.
The Australian Domestic and Family Violence Clearinghouse also expressed
the view that including domestic violence as a protected attribute is necessary
to give effect to Australia's international human rights treaty obligations,
including the Convention on Elimination of All Forms of Discrimination Against
Women and the ILO Discrimination (Employment and Occupation) Convention 1958
Inadequacies of the existing law
Ms Hameed explained how current employment legislation does not
adequately protect employees from discrimination on the basis of their status
as a victim of domestic violence:
Employment legislation does not and cannot adequately protect
employees from discrimination on the grounds of domestic violence as the status
of victim of domestic violence is not listed as a protected attribute in the
Fair Work Act...[and] protected attributes are limited to those in federal, state
and territory antidiscrimination laws. This means that employees who are
victims of domestic violence who are dismissed, injured in their employment,
had their positions altered to their prejudice or discriminated against have no
redress under this section of the [A]ct. Similarly, prospective employees who
are refused employment or who are discriminated against by the prospective
employer in the terms or conditions offered have no redress under section 351
of the Fair Work Act. Unfair dismissal protections and adverse action
protections are currently available under the Fair Work Act but are limited in
Ms Hameed identified that, although specific legislative protections are
not available, the industrial protections that do exist cover 'fewer than
20,000 employees Australia wide'. Further, less 'than one in 10 employees have
domestic violence workplace rights and these employees are only protected
against adverse action by the employer in relation to that workplace right':
For instance, an employee with a right to domestic violence
leave in their [Enterprise Bargaining Agreement] would be able to bring an
adverse action claim in the instance that the employer discriminates against
them because they applied for or took [domestic violence] leave. However, that
same employee would not be protected in any way should the employer
discriminate against them on the basis of being a victim of domestic violence
and not in relation to domestic violence leave.
Ms Belinda Tkalcevic from the Australian Council of Trade Unions also
cited the need for more to be done to support victims of domestic and family
violence in the workplace explaining that, although some progress has been made
in recent years, further reform is needed:
[T]he push to achieve the leave entitlements is fairly
recent; it has been mostly over the last year and I think it is at the point
now where it is almost a million workers who are now able to access some form
of leave for domestic violence. But the provisions require someone to actually
identify themselves as experiencing or having experienced domestic violence
which leaves them vulnerable to discrimination. So I think that the key here is
that, if you are going to extend the application of domestic violence leave to
employees, then you have also got to offer some protection if you are going to
require, as I think is quite reasonable, some sort of evidence or
acknowledgement from the employee to someone in the organisation that they are
going through this.
The Australian Domestic and Family Violence Law Clearinghouse maintained
that 'for all Australian employees to be protected against discrimination on
the basis of being a victim of domestic violence', changes should be made to
both the Fair Work Act and anti-discrimination legislation:
[A]ntidiscrimination law [should] be amended to include the
status of the victim of domestic violence as a protected attribute, as the
antidiscrimination legislation underpins the Fair Work Act [and] [c]hanges to
the Fair Work Act alone will not adequately protect victims of domestic
Many submitters expressed the view that social benefits, such as
reducing homelessness and enabling economic participation, could be achieved by
extending protections from discrimination to victims of domestic violence.
The Department noted that including 'domestic and family violence status'
as a protected attribute had been considered in detail during the consultation
- there is no specific protection of domestic violence as a ground
of discrimination under Commonwealth or state or territory law, although
certain aspects of this form of violence may be currently covered;
- anti-discrimination law may not be the best mechanism to address
challenges faced by victims of domestic violence; and
- introducing an additional regulatory burden on employers
potentially risks undermining positive action currently being undertaken by
employers in relation to protecting workers experiencing domestic violence.
At the committee's hearing in Canberra, however, the Secretary of the
Department conceded that inclusion of domestic violence as a protected
attribute could be considered by the government:
As far as the department are concerned, we are not going to
proffer a view on that except to say that...this is pretty much a codifying
exercise, not including new grounds, but it is open to the committee and to the
government to embrace [domestic violence] as an additional ground.
Some submitters were critical of the exclusion from the Draft Bill of 'criminal record'
(or 'irrelevant criminal record') as a protected attribute, particularly since
the AHRC currently has jurisdiction to hear complaints based on discrimination
relating to criminal history in its 'equal opportunity in employment' (EOE)
For example, the Human Rights Council of Australia (HRCA) observed:
[T]he Bill removes the jurisdiction of the AHRC under the
Australian Human Rights Commission Act to receive complaints of discrimination on
the basis of criminal record in employment and occupation. The Bill does not
replace this existing provision or otherwise include any other protection for
persons who are discriminated against on the basis of their criminal record.
The HRCA noted that, although the existing provisions which provide for
the EOE complaints scheme do not provide a legally enforceable remedy, they do
provide an avenue in which aggrieved persons can raise and address their
concerns. The HRCA submitted that, as a result of the exclusion of 'criminal
record' as a protected attribute, and the changes to the EOE complaints scheme
'Australia may no longer be in compliance with the ILO 111 Convention
requirements with regard to the ground of 'criminal record' discrimination'.
The AHRC informed the committee that, although the Regulatory Impact
Statement for the Draft Bill identifies that the separate complaints scheme
'involves significant uncertainty for business and other relevant parties', not
replacing the jurisdiction for the AHRC to receive complaints of discrimination
in employment and occupation in relation to criminal record 'will clearly have [an]
adverse impact on people who presently are able to seek assistance'.
The AHRC also pointed out that, although some protection against discrimination
on the ground of 'criminal record' is provided by the Commonwealth and state
and territory spent convictions schemes, this protection is incomplete due to
differences between the various schemes.
The Discrimination Law Experts Group raised similar concerns:
We do not support the exclusion of 'criminal record' from the
list of protected attributes in [clause] 17 of the Bill. A complaint can
currently be made to the [AHRC] of discrimination in employment on the basis of
a criminal record, so this omission represents a reduction in existing human
rights protections in Australia.
The obligations assumed by Australia in relation to
discrimination on the basis of criminal record under the International Labour
Organisation Discrimination (Employment and Occupation) Convention (1958)
should be met by including this attribute in the Bill.
Other submitters also supported the inclusion of 'irrelevant criminal
record' as a protected attribute.
Job Watch suggested that any uncertainty relating to the concept of 'irrelevant criminal
record' could be dealt with by way of a clear definition. Job Watch noted
that there are already legislative precedents for such a definition, including
in the Tasmanian Anti-Discrimination Act 1998.
Although many submitters expressed concern with the exclusion of
'criminal record' from the list of protected attributes in clause 17 of the Draft
Bill, not all submitters were of that view. Suncorp Group supported the
position taken in the Draft Bill and welcomed the decision to exclude 'criminal
record' as a protected attribute due to the uncertain nature of the concept and
differences in understanding what constitutes a relevant or irrelevant criminal
The Department explained the reasons for the exclusion of 'irrelevant
criminal record' from the list of protected attributes:
['I]rrelevant criminal record' is not included as a protected
attribute in the Bill as it may have a significant regulatory impact. It is not
currently covered by the majority of the State and Territory
anti-discrimination laws or the Fair Work Act. There is also uncertainty as to
when a criminal record is relevant or irrelevant in employment (for example, in
submissions on the Discussion Paper, the business sector raised concerns about
the ability to use criminal record to establish 'general character'). It is
therefore difficult to assess what regulatory impact would result from
including irrelevant criminal record as a protected attribute. The Regulation
Impact Statement notes that the costs to business and other duty-holders of
implementing the introduction of criminal record into the unlawful
discrimination regime would likely outweigh the benefits.
There may be more appropriate models for dealing with this
important issue which will not impose significant costs (such as existing
privacy and spent convictions schemes).
Navigation: Previous Page | Contents | Next Page