The Federal Government is approaching the end of a long process in reforming anti-discrimination law, one that started in 2009. Currently, a draft exposure bill is before the Senate Legal and Constitutional Committee and hundreds of submissions have been received. Despite the urgings of Labor Senator Doug Cameron, the committee will not accept further submissions.
The committee is due to hear evidence on 23 and 24 January — although exactly who they will hear it from is not public at this stage.
The draft Human Rights and Anti-Discrimination Bill is not anything like an actual human rights charter, but more accurately a consolidation of the five different pieces of legislation that cover aspects of anti-discrimination law. These are the:
Racial Discrimination Act 1975 (RDA)
Sex Discrimination Act 1984 (SDA)
Disability Discrimination Act 1992 (DDA)
Age Discrimination Act 2004 (ADA)
Australian Human Rights Commission Act 1986 (AHRC Act)
The reasons for this change are varied — from making it easier to make a single complaint that covers several areas of discrimination, to cutting down on the varied rules for business. Importantly also, it is a chance to extend anti-discrimination law, for the first time, to cover areas such as sexual identity and gender diversity. Workplace protection is also extended to cover political opinion and religion. These acts have not been substantially amended since their introduction, so some areas of discrimination, such as sexual orientation, are not covered by the federal law.
Currently, each of these acts has different rules about what constitutes discrimination and on what grounds. This legislation will use a common set of definitions. Those subjected to multiple discriminations will only have to make a single complaint.
Rachel Ball of the Human Rights Law Centre explains the changes like this:
"Discrimination harms individuals, families, businesses and communities. The Human Rights and Anti-Discrimination Bill 2012 will ensure that the law is more effective in preventing and remedying these harms. Overall, the draft Bill constitutes a long-awaited simplification and modernisation of our anti-discrimination laws, which will benefit employees and employers alike."
However, some are concerned that this consolidation does not go far enough, and some people are still being left out.
Greens Senator Penny Wright says, "Anti-discrimination laws should also cover other aspects like intersex status, religious beliefs or activity, irrelevant criminal records and social status. This would mean people could not be discriminated against, for example, if they are homeless or unemployed."
The Equality Rights Alliance, a network advocating for women’s equality, wants the provisions of the Disability Discrimination Act, which ask employers to make reasonable accommodations at work, to be extended to cover family and care responsibilities and for the law to provide protection for people who are survivors of domestic or family violence.
Under both the current and the proposed system, organisations are allowed to discriminate if they can justify doing so to the Human Rights Commission. Groups, such as women’s refuges, have successfully argued that they employ only women in certain roles. Exemptions have to be applied for on a case-by-case basis, unless that organisation is a religious one.
While many aspects of the anti-discrimination laws are being updated, there is one area of discrimination that is not only untouched, but has in fact been extended. Under the current laws, religious organisations have a permanent exemption from the requirements not to discriminate, except in the provision of aged care. The proposed bill increases the grounds on which religious groups can discriminate to include gender identity, marital or relationship status, potential pregnancy, pregnancy, religion, sexual orientation.
Various religious groups have raised concerns that any change to this exemption would harm their ability to practice their religion and impinge on their freedom. Christian Schools Australia says that "the "freedom to manifest one’s religion or beliefs is internationally recognised as a most significant human right, not lightly to be limited by legislation or otherwise".
However, significant concerns have been raised about the impact of this permanent exemption on the delivery of public services, such as education, health care and welfare. Increasingly, social services are outsourced from government to the not-for-profit and private sector. In many regional areas, they are the only providers of such services in the community.
Under this exemption, a young same-sex attracted person could be legally excluded from accessing a health service, or a single parent refused help from an employment agency that was run by a religious organisation, despite the service receiving public funding.
It is also unclear how the exemption will impact on service delivery under the National Disability Insurance Scheme (NDIS). In theory, religious groups who are providing services to people with a disability under the NDIS will be able to discriminate against people — and there are no provisions for challenging this.
People in cities are likely to be able to choose service providers but in regional and rural areas, there may only be one service provider available. If that service provider will not support a single parent, an unmarried person, or a gender diverse person, that person will have no recourse under this law.
The key difference between exemptions for religious groups, and everyone else, is that they have a permanent exemption. So, instead of having to argue on a case-by-case basis for an exemption from anti-discrimination law, religious groups just don’t have to comply with the law. Arguments, such as this from Kevin Donnelly that draw an equivalence between religious schools, which receive over $6 billion per year of public money, and a women-only swimming session, are completely bogus.
Why are religious groups given this special exemption from laws that apply to everyone else? Is it, as Jennifer Wilson argues, to do with appeasing factional chiefs in the ALP caucus? Or, as social service delivery is dominated by large, religious organisations, is the Gillard Government afraid they will withdraw if they have to comply with the law? Or is the idea of taking on a fight, to extend protection to all Australians, just too much after the battles on other policy fronts. Whatever the reason, this review has missed a chance to fix a glaring anomaly in the law.
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