Reforming Australia’s Equality Laws

There were 20 speakers at the human rights law one-day conference – and no morning tea break! Specific discrimination such as race, sex, disability, marriage, age and homelessness were covered, along with more general discussions about the meaning of equality and how to achieve it.

Australian Human Rights Commissioner Catherine Branson pointed out that anti-discrimination laws throughout Australia are complex, with different exceptions, gaps and inconsistencies. Her objectives, in the planned consolidation of anti-discrimination acts, are to achieve uniform legislation; with specified targets, which reduces the regulatory burden, with no diminution of existing levels of protection.

This is not a purely technical exercise if equality is to be more effectively achieved.

Dr Dimitrina Petrova (who helped draft the Yogyakarta Principles) argued that change never just happens – people work for decades, then there is a moment of opportunity, once a political opening appears, to achieve change.

The UK Equal Opportunity Act of 2010 (consisting of 239 pages, 28 schedules, 216 pages of explanatory notes) is ‘part of the fifth generation of equality law – after 45 years of evolution of the concept of equality’.

She offered an evolutionary classification of law from formal equality, to substantive, to comprehensive, to transformative equality. Even substantive equality of opportunity is not enough, she argued, because embedded structures of inequality remain embedded and it does not overcome past disadvantage.

Petrova stated that equality, as a human right, creates a whole different paradigm from anti-discrimination, but warned that legislation cannot be transplanted from one jurisdiction to another without considering the national context.

So it would not be productive for Australia simply to replicate UK law, although of the two countries, the UK could exchange lessons learned.

ANU’s Law Professor Margaret Thornton gave an excellent talk on discrimination’s intersectionality.

Anti-discrimination legislation currently exists in ‘silos’, with each law addressing one type such as race, age, or sex. Thornton asserted that the Sex Discrimination Act is ‘uncertain…limited and outdated’, with many exemptions.

It does not cover sex discrimination against lesbians. Therefore, in the process of consolidating the different pieces of anti-discrimination, she warned that it was imperative not to import the current legislative weaknesses into the uniform Act.

One of the ways in which this might be avoided is to incorporate a clear statement about giving effect to CEDAW. Another would be to give guidance to judges in the objects clause, since all High Court discrimination cases have failed for the past 15 years.

By Barbary Clarke, co-Convenor of the VGLRL’s Policy Working Group.