The Australian recently reported (14 March 2008) that the NSW Attorney-General John Hatzistergos was leading a push to harmonise State and Federal anti-discrimination laws.
This column has previously canvassed the extent to which the NSW anti-discrimination regime differs from the Federal scheme. Although harmonisation has become the raison d’etre of legal reform in recent times, it is worthwhile questioning whether bringing about consistency in the regulation of anti-discrimination presents a priority for reform.
There is no doubt that there is a range of inconsistencies when it comes to the Federal and State regimes. For example, the NSW system caps the amount of compensation a complainant can receive while the Federal system has no cap in place. Furthermore, the grounds of discrimination covered by the Federal regime vary compared with the State system – in the NSW system, discrimination on the basis of homosexuality and transgender status is prohibited, while Federal law is silent on this issue.
However, this in and of itself has not created much of a problem because a complainant has had a choice about which forum to utilise and one system has not proven more difficult to access than another.
The major reason cited by Mr Hatzistergos for bringing about harmonisation in Federal and State regulation is that inconsistency results in difficulties for businesses. On its face, this statement does not seem to ring true because a complainant is statute-barred from bringing a concurrent complaint in both the State and Federal system in relation to the same act of discrimination.
To comply with anti-discrimination legislation, a business need only ensure that it does not unfavourably treat a person on the basis of a prescribed trait or characteristic, or in the case of an employer, take proactive steps in the workplace to promote a culture that values tolerance and diversity. It is difficult to see how compliance with two separate systems which ultimately impose a similar obligation presents that much of a difficulty.
At the risk of sounding cynical, it would seem that Mr Hatzistergos’ latest actions are a red herring to distract attention away from the painfully slow pace of legal reform in the arena of discrimination.
The LGBTI community has really borne the brunt of the snail’s pace of reform. It would appear that there are far more pressing priorities for reform when it comes to discrimination (e.g. taking a look at whether religious organisations should continue to enjoy an exemption from anti-discrimination law) than pushing a harmonisation agenda which is unlikely to yield any meaningful results.
Manoj Dias-Abey is a lawyer practising in one of Australia’s largest workplace relations law firms.