INTRODUCTION AND BACKGROUND
Referral of the inquiry
On 20 November 2012, the then Attorney-General, the Hon Nicola
Roxon MP, and the Minister for Finance and Deregulation, Senator the
Hon Penny Wong (Minister), released the Exposure Draft of the Human Rights
and Anti‑Discrimination Bill 2012 (Draft Bill).
On 21 November 2012, the Senate referred the Draft Bill to the Senate
Legal and Constitutional Affairs Legislation Committee (committee) for inquiry
and report by 18 February 2013.
The reporting date was subsequently extended to 21 February 2013.
Purpose of the proposed consolidation
The Draft Bill consolidates into a single Act the five existing
Commonwealth Acts which deal with human rights and anti-discrimination
laws. The five Acts to be consolidated are:
- the Racial Discrimination Act 1975 (Racial Discrimination Act);
- the Sex Discrimination Act 1984 (Sex Discrimination Act);
- the Disability Discrimination Act 1992 (Disability Discrimination
- the Age Discrimination Act 2004 (Age Discrimination Act);
the Australian Human Rights Commission Act 1986 (AHRC
In announcing the release of the Draft Bill, the then Attorney-General
and the Minister explained that the current Commonwealth anti-discrimination
regime is 'unnecessarily complex and difficult to navigate'.
Further, the consolidation of
anti-discrimination legislation would provide better protection against
discrimination, with a clearer and simpler regulatory framework for business,
organisations and individuals.
According to the Attorney-General's Department (Department), there are
significant differences in the drafting and coverage of protections under each
piece of Commonwealth legislation dealing with anti-discrimination matters,
many of which add to the complexity facing organisations and individuals
attempting to comply with the law.
Each of the four core anti-discrimination Acts deal with different protected
- race and immigrant status (Racial Discrimination Act);
- sex, marital status, pregnancy, potential pregnancy, breastfeeding
and family responsibilities (Sex Discrimination Act);
- disability (Disability Discrimination Act); and
- age (Age Discrimination Act).
Each of these Acts takes a different approach to how the attributes are defined
and covered, and the areas of public life in which they are protected. For
example, the Racial Discrimination Act prohibits discrimination in any area of
public life, while the Age Discrimination Act, the Disability
Discrimination Act and the Sex Discrimination Act only prohibit discrimination
in specified areas of public life.
Other areas of inconsistency between the current Commonwealth Acts include: the
approaches to the test for discrimination; provisions relating to vicarious liability;
and the exceptions and exemptions under the Acts.
The Explanatory Notes to the Draft Bill (Explanatory Notes) state:
Little of this complexity is necessary to achieve the policy
aims of the legislation. Rather, the difficult and inconsistent drafting of the
Acts has made compliance unnecessarily burdensome and has diminished the laws' potential
to promote attitudinal change.
Background to the proposed reforms
The proposal to consolidate the Commonwealth anti-discrimination
framework into a single Act has been suggested for a number of years, and has
been the subject of considerable public consultation prior to the release of
the exposure draft legislation.
Previous committee inquiry
The Senate Legal and Constitutional Affairs Committee's 2008 inquiry
into the effectiveness of the Sex Discrimination Act touched on the question of
whether the Commonwealth anti‑discrimination laws should be consolidated.
The committee received evidence detailing the opportunities and challenges
associated with such a change, and recommended that the Australian Human Rights
Commission conduct an extensive public inquiry to examine the merits of
replacing the existing Commonwealth anti‑discrimination Acts with a
Government announcement and
On 21 April 2010, the former Attorney-General, the Hon Robert
McClelland MP, released Australia's Human Rights Framework, an initiative
outlining a range of measures intended to further protect and promote human
rights in Australia. One of the key measures announced as part of the Human
Rights Framework was the consolidation of Commonwealth anti-discrimination laws
into a single Act.
On 22 September 2011, the government released a discussion paper to seek
community views on the consolidation of Commonwealth anti-discrimination laws.
The discussion paper received 240 public submissions from a wide range of stakeholders,
covering many issues relating to the consolidation project. The release of this
paper was followed by a four-month consultation process, which included three
public stakeholder forums as well as individual meetings between the
Department and key stakeholders.
This consultation process has guided the development of the exposure draft
Approach taken in the consolidation project
The Explanatory Notes state that, in consolidating five Commonwealth
Acts into a single Act, the Draft Bill is not intended to significantly change
what conduct is currently unlawful. The Draft Bill will, however, make a number
of changes to the existing anti‑discrimination framework with the aim of
producing a simpler and clearer law.
The Explanatory Notes explain that the Draft Bill aims to:
- lift differing levels of protections to the highest current
standard, in order to resolve gaps and inconsistencies without diminishing
- ensure that clearer and more efficient laws provide greater flexibility
in their operation, with no substantial change in practical outcomes;
- enhance protections where the benefits outweigh any regulatory
- encourage voluntary measures that business can take to assist
their understanding of obligations and reduce occurrences of discrimination;
- establish a streamlined complaints process, to make it more
efficient to resolve disputes that do arise.
New policy positions adopted in the
Despite being primarily a consolidation exercise, the Draft Bill contains
several changes from existing Commonwealth anti-discrimination law, including:
- a single, simplified test for discrimination applying to all
- introduction of new protected attributes of sexual orientation
and gender identity,
and recognition of discrimination on the basis of a combination of attributes;
- a streamlined approach to exceptions, including a new general
exception for justifiable conduct and the preservation of religious exceptions
(with some limitations applying to Commonwealth-funded aged care services
provided by religious organisations);
- additional measures to promote voluntary compliance with the Draft
Bill, including certification by the Australian Human Rights Commission (AHRC) of
organisation or industry-specific compliance codes; and
changes to the complaints process, including:
- a shifting burden of proof once an applicant has established a
prima facie case of discrimination;
- an enhanced ability for the AHRC to dismiss clearly unmeritorious
- provision that parties should generally bear their own costs in
Conduct of the inquiry
The committee advertised its inquiry in The Australian on 5
December 2012. Details of the inquiry, including links to the Draft Bill
and the Explanatory Notes, were placed on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to over 500 organisations and individuals, inviting
submissions by 21 December 2012.
The committee received 3,464 submissions to the inquiry. For
administrative purposes, approximately 1,300 of these submissions were
categorised as 'form letters' (or variations of form letters).
Approximately 1,200 of these submissions opposed the Draft Bill, while around
100 supported it.
Most of the form letters appeared to result from 'campaign-style'
emails. Some of the form letters referred to specific clauses in the Draft Bill,
calling for the removal or amendment of clauses, or supporting particular clauses.
The majority of form letters, however, did not contain substantive commentary
on these clauses.
A further approximately 1,550 submissions were categorised as
submissions expressing general support for, or opposition to, the Draft Bill.
Many of these general statements did not refer to the provisions in the Draft
Bill at all, nor did they address or provide commentary on substantive issues. Of
these submissions, approximately 1,480 opposed the Draft Bill and 70 expressed
support for it.
The committee decided to publish all submissions received from
organisations on its website, as well as a selection of submissions from
individuals that were indicative of the types of views presented. Examples of
each type of form letter received were also published on the committee's
website. A total of 595 submissions were published on the committee website.
The submissions published on the committee's website are listed at Appendix 1
to this report.
The committee held three public hearings for the inquiry: in Melbourne
on 23 January 2013; in Sydney on 24 January 2013; and in
Canberra on 4 February 2013. A list of the witnesses who appeared at
the hearings is at Appendix 2 to this report, and copies of the Hansard
transcripts are available through the committee's website.
Scope of the report
Due to the short timeframe given to the committee to conduct this
inquiry, the committee has necessarily been required to limit its analysis and
consideration to key areas. It has simply not been possible for the committee
to fully investigate the range of matters raised by stakeholders during the
course of the inquiry. Accordingly, the committee's report focusses on the
major issues raised in submissions and at the public hearings. The committee recognises,
however, that many submissions made extensive recommendations relating to
specific policy areas, as well as technical aspects of the Draft Bill, and the
committee considers that these issues are worthy of examination by the
In that context, the committee notes the commitment given by the
Secretary of the Department at the public hearing in Canberra:
[T]he department welcomes the views of those many
stakeholders who have constructively engaged in this process to highlight where
the wording of the draft bill may not match the policy intentions. Indeed,
consultation has been a major part of this project and a valuable tool in
finding out what is working, what is not and how things could be done better to
improve the federal anti-discrimination system...We should be clear that we do
not want to be defensive about anything in this legislation, so if people have
ideas and the committee has ideas, [we] should listen carefully and take that
Given this undertaking, the committee expects that the Department will
review all submissions received by the committee and address relevant policy and
drafting issues prior to the introduction into the parliament of the legislation
in its final form.
Structure of the report
This report is divided into seven chapters:
- chapter 2 outlines the key provisions of the Draft Bill;
- chapter 3 examines the protected attributes covered under the Draft
Bill, as well as discussing additional attributes that have not been included
in the Draft Bill as protected attributes;
- chapter 4 discusses the Draft Bill's definition of
discrimination, and the coverage of discrimination protections in public life;
chapter 5 discusses the exceptions to unlawful discrimination,
focussing on the general exception for justifiable conduct, the 'inherent
requirements for work' exception, and the exceptions relating to religious
- chapter 6 examines the complaints and courts processes
established under the Draft Bill for discrimination cases, focussing on the
burden of proof and the costs model for court cases; and
chapter 7 sets out the committee's views and recommendations.
Note on references
References to the committee Hansard are to the proof Hansard.
Page numbers may vary between the proof and the official Hansard transcript.
The committee thanks those organisations and individuals who made submissions
and gave evidence at the public hearings.
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