MEANING OF DISCRIMINATION AND CIRCUMSTANCES IN WHICH DISCRIMINATION IS
Divisions 2 and 3 of Part 2-2 of the Draft Bill provide for the meaning
of discrimination and the circumstances in which discrimination is unlawful.
These provisions, along with the exceptions clauses in Division 4 of Part 2-2
(discussed in more detail in chapter 5 of this report), provide the framework
for the operation of the unified Commonwealth anti-discrimination law. Submitters
and witnesses commented extensively on the general approach in these
provisions, as well as making specific suggestions regarding the wording of
Definition of discrimination in the Draft Bill
Numerous submitters raised concerns regarding the new simplified
definition of discrimination in clause 19 of the Draft Bill, and particularly paragraph
Subclause 19(2) states that discrimination by one person treating another unfavourably
includes the person:
(a) harassing the other person;
(b) other conduct that offends, insults or intimidates the other person.
In public comments cited by many submitters and witnesses to the inquiry,
former NSW Chief Justice the Hon James Spigelman AC QC has argued that the
inclusion of the terms 'offends, insults or intimidates' in the Draft Bill would
have the effect of broadening the scope of conduct which can be considered
unlawful discrimination beyond the current standards in the Sex Discrimination
Act, the Disability Discrimination Act or the Age Discrimination Act, with adverse
implications for the right to free speech in Australia. In particular, the
committee notes the following comments by the Hon Mr Spigelman:
[D]eclaring conduct, relevantly speech, to be unlawful,
because it causes offence, goes too far. The freedom to offend is an integral
component of freedom of speech. There is no right not to be offended...
The new Bill proposes a significant redrawing of the line
between permissible and unlawful speech...Words such as 'offend' and 'insult',
impinge on freedom of speech in a way that words such as 'humiliate',
'denigrate', 'intimidate', 'incite hostility' or 'hatred' or 'contempt', do
not. To go beyond language of the latter character, in my opinion, goes too
Stakeholders argued that the inclusion of paragraph 19(2)(b) sets a
standard for discriminatory conduct which would curtail freedom of speech in
For example, Mr Robert Johnston from the Australian Association of Christian
Schools told the committee:
This is an extraordinarily low threshold to be embedding in
law, especially when coupled with [the] proposed new onus of proof being placed
on the respondent rather than the complainant. This is an alarming and
dangerous innovation...Far from strengthening the human rights of freedom of
speech and expression, this innovation inevitably silences constructive and
robust debate on any issue on which one might choose to be offended.
Introduction of a subjective test
Concerns were expressed that the wording of paragraph 19(2)(b) means
that the test for discriminatory conduct would be a subjective test, rather
than an objective one. Submitters to the inquiry noted that the definition of
racial vilification currently in section 18C of the Racial Discrimination Act,
and replicated in clause 51 of the Draft Bill, is framed by the 'objective
standard' of conduct that is 'reasonably likely, in all the circumstances, to
offend'; however, there is no similar objective standard in clause 19 of
the Draft Bill.
In its submission, the Law Council of Australia (Law Council) observed:
[B]y inquiring into whether conduct 'insults, offends or
intimidates', paragraph 19(2)(b) focuses on how the conduct is received
by the aggrieved party and on how that party feels, rather than on the
nature of the conduct or the reason or purpose for which it was undertaken.
This has the potential to confuse the adverse or detrimental impact of the conduct
with the way in which the conduct was received.
The submission from Joint Media Organisations contended that the lack of
an objective standard for discriminatory material which 'offends' would have a
significant impact on the type of material media organisations would publish:
The inability of organisations to foresee what standard will
be set is likely to have a 'chilling effect' on the publication or broadcast of
potentially contentious material. This will most directly affect consumers,
whose access to the range of content they are currently able to read, hear and
see, may be limited as a result.
The Institute of Public Affairs argued that, even if an objective test
were included in clause 19, determining what conduct or speech is unreasonably
offensive would still be a difficult matter for the courts to determine:
No amount of judicial hypothesising about what an ordinary
person might feel will be able to simulate social standards. But legislation
that transforms the shifting, amorphous and socially contingent concept of
offense into a legal doctrine requires the judiciary to do so.
Departmental response and suggested
changes to clause 19
The Explanatory Notes state that clause 19 is intended to preserve
existing policy found in current Commonwealth anti-discrimination legislation,
and that the harassment component in the definition of unfavourable treatment
in subclause 19(2) largely reflects existing law, as brought out in the
relevant case law.
In its submissions and evidence to the committee, the Department discussed
at length the concerns raised regarding paragraph 19(2)(b). The Department
reiterated that it 'is not the Government's intention to broaden the
prohibition against racial vilification to other attributes'
or to make any conduct which a person finds offensive unlawful:
The intention of subsection 19(2) of the Bill is to clarify
what courts have already found—that 'discrimination' (treating a person less
favourably because of their attributes such as race, sex, disability or age) can
include harassment on that basis. The relevant provisions of the Bill
(paragraphs 19(2)(a) and (b)) are intended to be read together to provide
greater guidance on the types of conduct that may constitute harassment,
without limiting the definition of that concept. While not expressly including
an objective test, the surrounding context of this provision is intended to
require objective analysis.
The objections [in submissions] appear to relate to the
possible unintended consequences of the wording used rather than the central
idea that 'harassment' falls within the scope of 'unfavourable treatment'.
Clarifying that harassing behaviour can fall within the scope (including
conduct such as verbal abuse based on a protected attribute) remains important.
There is a difference between expressing an opinion, even in strong language,
and subjecting another person to harassment.
In a document tabled at the public hearing in Canberra, the Department
elaborated on the meaning of 'harassment' as part of the definition of 'unfavourable
There was no intention to attempt to comprehensively define
'harassment', which can take many different forms. However, the inclusion of
paragraph 19(2)(b) sought to provide guidance on the type of conduct that
might constitute harassment. For example, harassment could include conduct
which was offensive, insulting or intimidating towards another person (such as
offensive remarks based on the person's race or insulting language about that
person's disability). Ultimately, the concepts of harassment and discrimination
are limited by the requirement that such treatment be based on another person's
The Secretary of the Department conceded that, given the concerns raised
about the interpretation of paragraph 19(2)(b), the provision should not remain
in its current form.
The Department outlined four possible options in relation to this provision:
- remove paragraph 19(2)(b), leaving subclause 19(2) to state
simply that unfavourable treatment can include harassment, without giving any
guidance as to what might constitute harassment;
- remove subclause 19(2) in its entirety, leaving the legislation
silent on the question of whether discrimination can include harassment;
- use alternative words in paragraph 19(2)(b), such as 'degrade',
'denigrate', 'humiliate' or 'intimidate'; and/or
- expressly clarify that the test for harassment is an objective
Stakeholders also put forward their views on possible changes to clause 19,
which roughly accord with the options outlined by the Department, as discussed
Removing paragraph 19(2)(b) or
subclause 19(2) in its entirety
Many submitters and witnesses suggested that paragraph 19(2)(b) should be
deleted from the definition of discrimination altogether. For example, the Law
Council noted that the unfavourable treatment test contained in subclause 19(1)
of the Draft Bill 'would appear to offer sufficient protection against
harassment on the grounds of any protected attribute regardless of whether
paragraph 19(2)(b) is included'.
The Department agreed: '[a]s courts have found that discrimination can include
harassment without express reference in legislation to this effect, [removing
subclause 19(2)] should not alter this interpretation'.
Some submitters welcomed the intent of explicitly clarifying in the Draft
Bill that discrimination includes harassment. Associate Professor Anna Cody
from the National Association of Community Legal Centres argued that the
concept of harassment should be retained within the definition of unlawful
discrimination, even if paragraph 19(2)(b) is removed.
Liberty Victoria commended the Draft Bill for including references to
harassment as part of unlawful discrimination, and recommended that paragraph
19(2)(b) should be removed or amended, without also removing paragraph
Strengthening the wording of
paragraph 19(2)(b) and including an objective standard
Other submitters advocated amending paragraph 19(2)(b) rather than
removing it altogether. For example, the Public Interest Advocacy Centre
recommended that paragraph 19(2)(b) should be redrafted to provide that
unfavourable treatment includes, but is not limited to, 'conduct that
humiliates or intimidates the other person, or has the intent or effect of
nullifying or impairing the other person's enjoyment of human rights on an
The Human Rights Council of Australia proposed amending paragraph 19(2)(b) to
read 'other conduct that causes tangible or intangible harm or damage to the
Liberty Victoria argued that '[m]ixing subjective, and potentially
trivial, terms like 'offends' and 'insults' with objective, and serious, words
like 'intimidates' leads to uncertainty and potential interpretations quite at
odds with the intent of the Bill'.
Liberty Victoria recommended that, if paragraph 19(2)(b) is not omitted, it
should be 'at least replaced with words of objective harm and sufficient
The notion of objective harm has to involve not subjective
words like 'offend' and 'insult' but where conduct, including words, spoken and
written, are known to cause harm, in particular on the basis of an attribute.
It has to take into account not just what is done or said but the attribute and
the history of discrimination suffered by people of that attribute.
The Department warned that using alternative words in paragraph 19(2)(b)
such as 'degrade', 'denigrate', 'humiliate' or 'intimidate', would 'likely set
a standard of conduct which would be considered unacceptable in society'.
It cautioned, however, that the introduction of such words into discrimination
law could have uncertain implications:
'[D]egrade' and 'denigrate' in particular would be new concepts
in anti‑discrimination law. The use of these new phrases could create
further uncertainty, undermining the purpose of including any further guidance
in addition to 'harassment'. In particular, such new concepts may have the
effect of inadvertently expanding the operation of the provision, as these have
not previously been the subject of jurisprudence in this context.
The Department stated that, whichever option is chosen for amending
clause 19, it should be expressly clear that an objective standard should
apply in relation to harassment:
[This] would remove any doubt that the standard to be met is
to be objectively determined, rather than whether an individual merely felt
offended or insulted. This would clarify the Government's policy intention and
maintain existing jurisprudence on the meaning of harassment.
The Department commented, however, that including an objective standard
in relation to harassment 'could inadvertently create further confusion about
other aspects of the meaning of discrimination, which do not have express
Several other suggested changes were also put forward by submitters. The
Law Council proposed that, as an alternative to removing
paragraph 19(2)(b), subclauses 19(1) and (2) could be replaced in their
entirety with a provision modelled on the Equal Opportunity Act 2010
(Vic), which provides that discrimination occurs 'if a person treats, or
proposes to treat, a person with an attribute unfavourably because of that
The Centre for Comparative Constitutional Studies recommended that, if
paragraph 19(2)(b) is to be retained in some form, there should be an explicit
exception for the attribute of 'political opinion' so that unfavourable
treatment does not include conduct that offends or insults a person on the
ground of political opinion.
Circumstances in which discrimination is unlawful
The committee received evidence on several issues relating to the
circumstances in which discrimination is unlawful under clause 22, namely:
the general provision in subclause 22(1) that discrimination is
unlawful if it is connected with any area of public life;
- the limitation in subclause 22(3) which provides that
discrimination on the grounds of seven specific protected attributes is only
unlawful in connection with work or work-related areas; and
the coverage of voluntary and unpaid work under the definition of
'employment' for the purposes of the Draft Bill.
Discrimination to be unlawful in 'any
area of public life'
Subclause 22(1) provides that discrimination against a person is
unlawful if it is 'connected with any area of public life', and subclause 22(2)
includes a non-exhaustive list of areas of public life covered by the
legislation. The Explanatory Notes explain that existing Commonwealth anti-discrimination
laws are inconsistent in relation to the coverage of unlawful discrimination.
According to the Department:
The Bill simplifies the approach to specifying when
discrimination is unlawful by prohibiting discrimination that is connected with
any area of public life. This raises protections to the current highest
standard, reflected in the [Racial Discrimination Act]. The specific areas of
public life set out in [sub]clause 22(2) are consistent with the areas
regulated by existing Commonwealth anti‑discrimination law and are
provided for additional guidance.
Concerns about making
discrimination unlawful in 'any area of public life'
Some stakeholders argued that covering 'any area of public life'
constitutes a radical expansion of the reach of discrimination law in relation
to attributes other than race. For example, Professor Nicholas Aroney and
Professor Patrick Parkinson AM asserted:
The Commonwealth's existing anti-discrimination laws, like
the anti‑discrimination laws of the States, are limited to prohibiting
discriminatory conduct by persons possessing responsibility, authority or power
in particular areas of public life...[such] as employers, managers,
administrators, providers of accommodation, goods or services, public
authorities, and so on...
If enacted in these terms, the prohibition contained in the [Draft
Bill] would extend to the conduct of any person provided that conduct
was in some way 'connected with' an area of 'public life'...In practice, the
proposed clause 22(1) would prohibit any employee of a company, any
student at a school, any client of a business, any customer of a
department store, any patron of a restaurant, any member of a
club, any spectator of a sporting activity, and so on, from
engaging in conduct that is in any way unfavourable to another person connected
with that area of 'public life', so long as the unfavourable treatment is in
relation to one of the relevant protected attributes.
Professors Aroney and Parkinson argued that, while current
discrimination laws are designed to regulate 'vertical relationships of
responsibility, authority or power', the Draft Bill extends regulation to
'horizontal relationships of all kinds':
It is in horizontal relationships that offensive and
insulting conduct most often occurs. This kind of conduct is best responded to
at a community level, without the distant and heavy hand of Commonwealth law
and regulation intruding into such matters. People sometimes behave badly in
their social relations with others; but the best way to encourage good
behaviour is by modelling it, and by reinforcing standards of right conduct and
courtesy, not by running off to court to engage in protracted and expensive
Freedom 4 Faith argued that the extension of coverage to any area of
public life is likely to lead to a greatly increased number of complaints, and
in particular nuisance or vexatious complaints, meaning that more time would be
spent 'sifting between the few meritorious and the many unmeritorious
Support for making discrimination
unlawful in 'any area of public life'
Conversely, Professor Simon Rice OAM from the Discrimination Law Experts
Group welcomed the approach taken in clause 22:
There has been discussion about the breadth of the [Draft
Bill] to encompass public life. It has been put in terms of extending the [Draft
Bill] horizontally as well as vertically and that certainly seems to be the
case. In our view, that is as remarkable as criminal law applying to all areas
of life, and I mean all—public and private and not simply selected areas of
life—or tort law applying to all areas of life and not selected areas of life.
If discrimination law is supposed to represent values in Australia then we
support a move that does not privilege some areas of life and exclude other
areas of life, but extends to all.
The Human Rights Law Centre also applauded the expansion of coverage to
all areas of public life. It argued that this level of protection is consistent
with international human rights law, and 'provides a much clearer, simpler
framework for duty-holders and complainants to understand and operate within'
than the existing framework of Commonwealth anti-discrimination law.
The Explanatory Notes state that, while covering discrimination in
connection with any area of public life will lead to 'some expansion' of the
coverage of anti‑discrimination protections, 'there are expected to be
relatively few areas of public life that are not already covered, primarily
areas such as small partnerships and volunteer work'.
A departmental official also confirmed in evidence to the committee that none
of the specific areas of public life listed in subclause 22(2) are new to
Commonwealth anti‑discrimination law.
Protected attributes covered only
in work and work-related areas
Subclause 22(3) provides that discrimination related to seven attributes
(family responsibilities, industrial history, medical history, nationality or
citizenship, political opinion, religion and social origin) is unlawful only if
it is connected to work and work-related areas.
Arguments for extending coverage
for these attributes to 'all areas of public life'
The AHRC expressed concern that providing narrower coverage for these
attributes than the other attributes protected under the Draft Bill could
result in complexity and confusion, with particular implications for:
- matters of intersectional discrimination (for example, where a
matter which is not work-related raises issues of both race and religion); and
- consistency between the Draft Bill and state and territory laws,
which 'provide more general coverage on a number of these grounds'.
Accordingly, the AHRC recommended further consideration of extending the
coverage for these attributes to all areas of public life, 'in the interests of
simplicity and improved consistency'.
Several other stakeholders agreed with this position. For example, academics
from the University of Adelaide Law School argued that limiting the application
of some attributes will undermine the effect of the legislation as a whole:
Enacting prohibitions of discrimination only in the context
of work will inevitably inspire questions as to why the prohibitions are not
extended into other areas of public life. Not only does this have the potential
to undermine public confidence in the scope and operation of protections
against discrimination offered at federal level, it will also limit the utility
of the federal legislation to effect real change in discriminatory attitudes
and beliefs in society. Limiting the prohibitions to the context of work
effectively states that discrimination on the basis of religion in education
(for example) is not serious because it is not prohibited. Such limitations on
the regulation of discrimination also have the potential to undermine perceptions
of the government's commitment to principles of equality and a broad human
The Discrimination Law Experts Group agreed that all attributes should
be covered in all areas of public life, stating that limiting protection for
these attributes to work-related areas 'creates an irrational disparity between
the status accorded to these attributes and that accorded to other attributes
protected by the [Draft Bill]'.
Arguments for reducing or
eliminating coverage of these attributes
Conversely, several submitters argued that covering these attributes in
work‑related areas goes too far. For example, the Australian Chamber of
Commerce and Industry (ACCI) asserted that making discrimination on the basis
of the six attributes which are currently part of the AHRC's 'equal opportunity
in employment' (EOE) complaints scheme 'creates a new and additional layer
of regulation which subjects employers to litigation which does not currently
exist under federal anti-discrimination law'.
The ACCI also noted that the inclusion of these attributes as unlawful
protected attributes creates overlap with similar provisions in the Fair Work
Act, which protect employees from adverse action on the basis of, among other
things, political opinion, social origin or industrial activities.
The Secretary of the Department indicated that including these
attributes in work-related areas will achieve greater consistency with the Fair
Work Act and state and territory anti-discrimination regimes.
The Department advised that the '[i]nclusion of these grounds in the Draft Bill
should not increase the regulatory burden for duty holders because in most
cases it is already unlawful to discriminate on these bases' under either the Fair
Work Act or under state and territory laws.
The Department also highlighted that clause 90 of the Draft Bill
prevents 'double-dipping' between different complaints regimes by making it
clear that a complaint may not be lodged with the AHRC by an individual if the
same complaint has already been lodged under the Fair Work Act or under state or
Coverage of voluntary or unpaid
work in the definition of 'employment'
Clause 6 defines 'employment' to include 'voluntary or unpaid work'. The
inclusion of voluntary work in the definition of employment received significant
attention, with stakeholders divided as to whether or not volunteers should be
covered under the legislation.
Arguments supporting the inclusion
of 'voluntary or unpaid work' in some form
The National Association of Community Legal Centres (NACLC) and
Kingsford Legal Centre (KLC) expressed support for the expansion of the
definition to cover volunteers:
NACLC and KLC welcome the inclusion of 'voluntary or unpaid
work' in the definition of employment in section 6 of the [Draft Bill]. We
strongly support the inclusion of voluntary workers as protected under
discrimination law and believe that all employers and organisations utilising
voluntary workers have a responsibility to ensure a discrimination free
Similarly, the Human Rights Law Centre supported the inclusion of
volunteers in the definition of employment, arguing that current protections
for volunteers are ad-hoc and insufficient to meet Australia's international
obligations. The Human Rights Law Centre emphasised that the Draft Bill would
only cover volunteers in 'public life':
We note that 'public life' would include, for example,
volunteers who perform work in the not-for-profit organisations, government
bodies, schools and emergency services. By contrast, we expect that
volunteering outside 'public life' would include volunteering to co-ordinate a
book club for a group of friends or help a neighbour tend their garden.
...[V]olunteering also provides people with engagement and
participation opportunities. For example, a person with a disability or
parental responsibilities may engage in voluntary work to assist their
transition into paid employment. In that sense, protection for volunteers is
important for achieving overall substantive equality.
The Public Interest Law Clearing House (PILCH), although supportive of
extending discrimination protections to volunteers, expressed concern at the
approach taken in the Draft Bill. At the public hearing in Melbourne, Ms Simone
Ball from PILCH contended that 'imposing vicarious liability on community
organisations for acts done by volunteers...is too broad and may lead to [a]
reluctance by not-for-profits to involve volunteers'.
In its submission, PILCH suggested that 'liability should only attach where a
community organisation exerts a certain level of direction, control and
supervision over its volunteers'.
Further, there are 'key legal differences between an employee and a volunteer':
Defining a 'volunteer' as a type of 'employee' disregards
important distinctions between these two different types of workers and would
be very confusing for [not-for-profit organisations] and volunteers...Different
legal obligations are owed by an organisation to their employees, as opposed to
their volunteers (for example, remuneration, leave entitlements, superannuation
and statutory insurance obligations for employees). The terms 'employment' and
'employee' have always had a well-known, ordinary meaning at law (and been the
subject of much judicial consideration), as have the factors...which distinguish
employment from volunteering.
PILCH suggested that the Draft Bill should be amended to include
volunteering as a specifically listed area of public life in subclause 22(2).
This would 'provide clarity for the [not-for-profit] sector and assist
organisations in interpreting the Federal anti-discrimination laws'.
If this approach is not taken, however, PILCH suggested the following as an
[T]he Draft Bill should at a minimum be re-drafted to include
'voluntary and unpaid work' as part of the definition of 'work and work related
areas' in its own right, rather than as part of the definition of 'employment'.
Arguments opposing the inclusion of
'voluntary or unpaid work'
Professors Aroney and Parkinson suggested that extending the definition
of employment to include volunteer work may pose constitutional difficulties:
[I]t is likely that the constitutional basis for this
extension must rest, if anywhere, upon the International Labour Organization
(ILO) conventions, in particular, the Discrimination (Employment and
Occupation) Convention, 1958 (No. 111). Notably, that Convention uses the terms
'employment' or 'occupation' rather than 'work', and there is no indication
whatsoever in [that] Convention that it is intended to go beyond paid
employment...While the ILO may have an interest in volunteer work for statistical
purposes, there is no reason to believe that volunteers are within the scope of
ILO Convention 111. Indeed, the ILO makes it clear that its own definition of
volunteer work for statistical purposes seeks to capture activity which is
quite unrelated to the world of paid employment. Examples...include buying
groceries for an elderly neighbour or driving a neighbour to a medical
We find it difficult to see where in the federal Constitution
the Commonwealth is authorised to regulate such activity (and nor can we see
any sensible reason to do so).
Religious organisations raised concerns about the broadening of the
definition of employment to include volunteers, citing the potential
administrative burden it may introduce. For example, Freedom 4 Faith stated:
[T]he adverse regulatory impact of this proposed legislation
is greatly increased by the inclusion of volunteers within its scope...One of the
major interpretative questions is where the boundaries of work, leisure and
community service lie. Does the woman who runs the Church playgroup as a
volunteer engage in 'unpaid work'? What about the pastoral care team who
faithfully visit those who are housebound or in hospital? Is running a youth
group considered volunteer 'work'? What if the local church is run by elders
who, on a voluntary basis, take turns to preach and carry out other leadership
Freedom 4 Faith acknowledged that the government may wish to provide
protections from discrimination for volunteers, but questioned why such
provisions are required:
[T]here is no evidence of any problem with discrimination
against volunteers in faith-based communities that warrants legislative
intervention. Even if one or two examples could be produced, there are likely
to be issues concerning freedom of religion and association that need to be
balanced against whatever claim of discrimination is being advanced. In
practice, if people do not feel welcome in offering their assistance in such
contexts, then they will simply go elsewhere.
The Australian Catholic Bishops Conference (ACBC) agreed:
Volunteers are the backbone of the Church, much of which is a
collection of small enterprises with limited resources...Across the Church
nationally, tens of thousands of volunteers are involved in the activities of
the Church in Australia. Legislation that diverts resources away from service
delivery to managing risk, litigation and developing protocols to serve new
anti‑discrimination laws, risks jeopardising the services provided by
Church agencies and volunteers. Imposing a duty not to discriminate would
significantly increase compliance costs, be disruptive and a disincentive to
engage volunteers. Therefore, the ACBC does not support the application of
anti-discrimination regulation to the acceptance of and treatment of volunteers
in the same way as applied to employees.
A regulatory or financial burden placed on Churches or
charities should not be so high as to hinder the recruitment and retention of
volunteers, as the costs will fall on those people the organisations care for.
'Special measures' and 'reasonable adjustments' clauses
Some submitters commented on the provisions in the Draft Bill relating
to 'special measures' and
'reasonable adjustments', which are aimed at promoting
equality for protected groups to prevent discrimination.
'Special measures' provisions
Clause 21 provides that policies, programs or conduct which are designed
to achieve substantive equality for people who have a particular protected
attribute are designated 'special measures' and are not unlawful
discrimination. Under clause 80, the AHRC may make 'special measures
determinations' to state that a particular policy, program or conduct is a
special measure. These determinations are legislative instruments and are in
effect for such period as stated in the determination.
Several submitters commented on these provisions, expressing concern
that there is no requirement in the Draft Bill for the AHRC to undertake
consultations with the group that would be affected by a special measures
determination during its development. In relation to special measures affecting
Indigenous Australians, the National Congress of Australia's First Peoples
[T]he Bill adopts a uniform definition for special measures,
but does not include a specific requirement for free, prior and informed
consent of First Peoples in the making of laws and policies which affect
Aboriginal and Torres Strait Islander Peoples, as required in the United
Nations Declaration on the Rights of Indigenous Peoples...
Special measures are [currently] used across Australia to
enact laws for the 'advancement' of First Peoples without any yard stick for
their effectiveness, duration or community support and acceptance...
[W]here laws and policies are being created that affect First
Peoples, these peoples should be properly informed and there should be honest
and open negotiation so that affected peoples are able to give their free and
prior informed consent.
The Discrimination Law Experts Group agreed that there should be more
extensive requirements for consultation regarding special measures
determinations, in a process that 'must be transparent, and must guarantee that
active and appropriate measures are taken to seek the views of persons likely
to be affected'.
While supportive of the inclusion of special measures provisions in the Draft
Bill, the Law Council expressed concern that the current drafting constitutes a
'significant departure' from how the term 'special measures' is understood at
In particular, the Law Council advocated a form of drafting which would ensure
that special measures are formulated:
- after appraisal of the need for the measure based on accurate
data on the socio-economic and cultural status of the group; and
- through prior consultation with the affected group and with their
Disability Discrimination Legal Service and Villamanta Disability Rights
Legal Service expressed concern that, under the current drafting of the special
measures provisions, a special measure exemption could be granted to allow an
employer to pay workers with a disability lower wages than other workers. They
argued that the Draft Bill should explicitly clarify that this cannot
constitute a special measure.
'Reasonable adjustments' provisions
Several submitters commented on the way the 'reasonable adjustments'
provisions, currently found in the Disability Discrimination Act in relation to
the protected attribute of disability, have been included in the Draft Bill.
In the Disability Discrimination Act, the concept of 'reasonable
adjustments' is incorporated into the definition of discrimination itself, providing
that a person's conduct is discriminatory if they do not make reasonable
adjustments to accommodate a person's disability. The Draft Bill retains the
concept of 'reasonable adjustments' in relation to disability only, but rather
than including it in the clauses defining discrimination, it is included in the
'justifiable conduct' exception in clause 23. Subclause 23(6) provides that, in
relation to disability, conduct is not 'justifiable' if a reasonable adjustment
could have been made but was not.
The Discrimination Law Experts Group argued that not including the
reasonable adjustments concept in the definition of discrimination is a
reduction of protection against disability discrimination, by making the
reasonable adjustments obligation 'less explicit and thus weaker in effect'. In
addition, the placement of this provision with the exceptions in the Draft Bill
[It] arguably creates the misleading impression that
reasonable adjustments are relevant only at the stage of defending a claim,
rather than being an element that is essential to consider in determining
whether discrimination occurred.
Disability Discrimination Legal Service and Villamanta Disability Rights
Legal Service agreed that placing the reasonable adjustments provision in the
definition of discrimination would strengthen the definition for people with a
disability and would provide more clarity.
Conversely, National Disability Services expressed support for the way the
'reasonable adjustments' provisions have been included in the Draft Bill.
The Discrimination Law Experts Group also argued that the reasonable
adjustments provisions should be extended to all protected attributes since
there is an implicit obligation under the Sex Discrimination Act, the Age
Discrimination Act and the Racial Discrimination Act to make reasonable adjustments
in relation to other attributes:
[I]n the Bill the explicit obligation to provide reasonable
adjustments operates only in respect of disability. This results in
inconsistency across attributes, and may incorrectly suggest that adjustments are
not required in respect of other attributes.
The Department did not explain why the reasonable adjustments provisions
have not been included as part of clause 19, but did provide a rationale for
not extending the provisions to all protected attributes:
The Government is not proposing to extend the duty to make
reasonable adjustments to other attributes in the Bill due to the regulatory
aims of the project, and a concern that extending the requirement to other
attributes may diminish the prominence of the duty to make reasonable
adjustments in relation to disability.
For attributes other than disability, a requirement to be
flexible and consider alternative arrangements is a key component in the
exception for justifiable conduct... In circumstances where an adjustment could
readily be made to avoid discrimination, it would be difficult to establish
that not modifying a policy or practice to adopt the adjustment is justifiable. 
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