Moderated by Australian Human Rights Commission CEO Leanne Smith, a recent panel discussion, “Better For Everyone: Enhancing Australia’s anti-discrimination laws”, included five panellists.

It discussed the current state of anti-discrimination laws in Australia in the wake of landmark Respect@Work reforms aimed at addressing workplace harassment and discrimination.

In terms of how well the current federal discrimination laws serve the Australian community, panellist and human rights lawyer Kate Eastman said these laws were first developed as a “political device”.

“Our relationship with equality law and discrimination started really as political strategy, and then that strategy was then adopted in our Sex Discrimination Act, where we also looked at international law as well as other little cocktails of constitutional powers. And then that seemed to work,” she said.

“So, what we’ve sort of done is found all of these different topics and looked at a model that started for a very different purpose. And we’ve never stepped back and said, what are we actually doing around equality generally? I always sort of go back and look at the history because it helps me understand why we take this path.”

From an LGBTI perspective, LGBTI rights advocate Ghassan Kassisieh said that while there are gaps in the current framework, it’s important not to lose sight of the “incredible progress” that’s been made “because of the normative place that discrimination laws, and they’ve been replicated in every state and territory as well, to some degree, have created”.

“But we still know that gaps in those laws, particularly for religious schools, for religious organisations, have discriminated against our community. Just over two weeks ago, a teacher called me because she’d been terminated on the basis that her same-sex relationship was a breach of her employment contract. The reason that’s allowed is there’s a gap in the Sex Discrimination Act, the Fair Work Act, which also has gaps in it, two acts that don’t really talk to each other, and then gaps in the New South Wales law,” he said.

“And if we’re thinking about a holistic improvement, I think we do need to look at those gaps that currently exist in the law ruling staff to close them. If we are thinking more holistically, we also need proactive mechanisms so that it isn’t incumbent on that teacher who lost her job to bring the complaint, because we’d have a regulator that stood behind her and imposed standards and enforced standards so that the school couldn’t fire in the first place.”

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Human rights lawyer and Melbourne Social Equity Institute Advisory Group chair Robin Banks added that during research where she interviewed 70 people across Australia, there was an overwhelming feeling of frustration with the current laws.

“Everybody I spoke to with disability spoke of the frustration of discrimination law, the sense that if you managed to get an outcome, it was sort of effectively not enforceable. If you had the courage to take the action, if you had the capacity to see it through the process, that it really was not an effective mechanism. Enormous frustration with that element of the disability discussion, the Discrimination Act, but also state and territory laws,” she said.

“Despite being called standards and purporting to set standards, they’re not standards that are enforceable by a regulator, and instead, the individual has to find a way into that process. It has a normative effect that’s really important, but it’s probably not well enough known. It hasn’t become sufficiently integrated into the minds of business people and people who run government and other things. It’s not front and centre when they’re doing things. And all of that makes it a much less effective tool for the kind of social change that I think was intended.”

Federal discrimination law is so important in small jurisdictions because it does “normative work” and sets a standard, agreed human rights lawyer and academic Associate Professor Sarah Moulds.

“I think that’s critical, but it only changes things on the ground if people understand what it’s about and if they can access it in a practical way. And just like the panellists have said, it’s now the case that you really do need specialist legal advice to navigate whether you’re going to pursue a claim at the state level or at the federal level or Fair Work Act kind of jurisdiction,” she said.

“And then you also need to navigate various tests. We have things like comparator tests that really lean into a kind of deficit model of difference and ask us to compare ourselves to an imaginary normal person. And then we have exceptions that are complicated and really difficult for people to understand.”

As Australian discrimination law is premised on “slightly old-fashioned notions of formal and substantive equality”, Eastman emphasised that the current model needs to change to keep up with the times.

“We need to really be revisioning our discrimination laws to say, what does it mean to be equal? What does it mean to recognise that difference and diversity are part of equality, and how do we see about inclusion? And we need to think about how we make our laws responsive to human experiences. Our laws are very much sort of functional in the sense that discrimination occurs in particular locations and places. So, in the same way that we’ve got work, accommodation, services, whatever it might be, they’re also siloed,” she said.

“What we don’t have is consistency that’s responding to what the fundamental problem is, and that is around equality, recognising discrimination and saying, what do we want from these laws? So, I think it’s really this re-envisioning.”

However, in terms of how these laws are serving communities from a workplace context, the associate dean of Indigenous leadership and engagement at UTS Business School, Professor Nareen Young, noted that in her experience across a range of businesses, the “utterly abysmal failure of the HR industry to deal with their application adequately” is cause for concern.

“My experience goes to the range of businesses, government, NGOs, small, large, medium employers over the years, and I don’t think I have ever seen adequate application of these laws. The problem we have is that while they impact the zeitgeist and workplace culture. Culture, they’re non-binding and they are policies at the workplace, which it seems to me the Australian community thinks is optional. And you can either opt in or opt out, and you can say what you like at work,” she said.

“And the inter-jurisdictional crossover is difficult because of the binding nature of industry, and that is understood at workplaces. Most people understand if the award is breached, and they understand that that is binding. But the Australian community, due to the dismal failure of the HR industry, doesn’t seem to understand that those policies are binding as an employee. And I wonder how much that has impacted on the lack of understanding of the nature of human rights acts on us as participants in society.”

More to come.

Lauren Croft

Lauren is a journalist at Lawyers Weekly and graduated with a Bachelor of Journalism from Macleay College. Prior to joining Lawyers Weekly, she worked as a trade journalist for media and travel industry publications and Travel Weekly. Originally born in England, Lauren enjoys trying new bars and restaurants, attending music festivals and travelling. She is also a keen snowboarder and pre-pandemic, spent a season living in a French ski resort.