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.

Human rights lawyer and academic Associate Professor Sarah Moulds said that for the gaps in the current law to be filled, a “fresh start” is needed.

“We’re stuck in a situation where, unless something’s happened directly to you that fits within one of these defined categories of anti-discrimination law, this whole area becomes something that you don’t understand and find it difficult to talk about,” she said.

“I’ve been involved in conversations about the consolidation of federal discrimination law with some colleagues here from the Law Council, many a decade or so at least ago, and we need a fresh start. We need a fresh way of thinking about it and talking about it with our political leaders and with our community, you know, but obviously, we have to do both things. And the fresh start idea is for maybe people like me, academics, who can have that platform and start that discussion, whereas incremental reform still needs to be a priority on the ground in each jurisdiction.”

Human rights lawyer and Melbourne Social Equity Institute Advisory Group chair Robin Banks did a PhD on discrimination law and, during her research, found that the level of success in discrimination claims has dropped significantly over the years.

“When we first had discrimination law in Australia at a federal level, the rate of success for complainants in court cases was about 60 per cent. [At the] same time, in Canada, it was about 60 per cent. It’s still about 60 per cent in Canada, [but] has dropped below 10 per cent in Australia,” she said.

“There is something fundamentally wrong with the way our courts are dealing with discrimination law, and it goes to things like evidence, the fragmentation of the experience, a whole lot of things.”

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When working on her PhD, Banks thought a lot about the work psychologists do around prejudice and said that the law should reflect prejudice.

“I want the law to reflect that knowledge, to get to the richness that what a person with disability experiences as discrimination is often very different to what an aboriginal person experiences. And for people with disability, the dominant or one of the dominant experiences is around paternalism and overprotection. Now, I don’t know how many judges would see that as egregious. In contrast to hate speech, it is equally a form of discrimination, but it’s a much harder argument to make unless our judges understand the richness of those different experiences,” she said.

“We’re talking about the most often, the most disadvantaged people in Australia, driving perhaps the most core thing of democracy, the idea of equality. And that seems fundamentally flawed to me. And when it comes to the rate of success, there’s a difference between the rate of success for people under the Race and Disability Discrimination Act. It’s about a third [of] the rate it is for women who bring or people who bring sexual harassment complaints.

“Sexual harassment complaints run at about 60 per cent success rate. Disability and race are around 25 per cent. Now, one of the explanations, I think, for that is that our judges don’t understand that experience that people with disability have and racial minorities have as discrimination, whereas they do understand, for whatever reason, that sexual harassment is a form of very egregious conduct.”

Associate dean of Indigenous Leadership and Engagement at the UTS Business School, Professor Nareen Young, agreed with Banks – and said that Australia could learn a lot from the Me Too movement, as it “made sex discrimination a commonality” and brought women together.

“I think that we have an opportunity, and particularly thanks to disability activists who have created an awareness that this could be any one of us. [These are] our families,” she said.

“And I think equality Australia did a great job around marriage equality, of saying, these are our families, these are our kids, these are our nieces and nephews. So, I think we need to not be saying we’re the marginalised. I believe we are a diverse society, Australian mainstream. And I think we need to approach it like that.”

In order to move forward, human rights lawyer Kate Eastman emphasised the importance of a restructure in order for the law not to remain “siloed” and sectioned.

“We will not get any real shift or change in federal discrimination law unless we have a very difficult conversation about the Human Rights Commission, its structure and how it operates. The commission structure is inherently siloed, and the work of discrimination law is inherently secret. I’ve been doing this for over 30 years. I’m up to about 6,000 discrimination cases. So, people do use the law, but I’m also the holder of the most incredible secrets.

“And discrimination law has made a profound effect on people’s lives, to their benefit and to the good. But our model is very much based on the secrecy around conciliation, and that’s attached to the fear of them busting out of conciliation and going to court. And so, part of this is the structure of the commission itself. This commission was established after the old commission. And the structure that we have reflects a structure that was developed in 1986,” she said.

“And we’ve been stuck with that model, but it’s completely siloed. So, the frustration everybody’s talking about around intersectionality will continue unless there is, in effect, a very significant restructure and rethink about the Human Rights Commission. So that has to happen. Otherwise, I think we’re going to remain siloed and lose the opportunity for genuine reform.”

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.