Putting teeth into anti-discrimination law

The federal government is reviewing anti-discrimination law. The plan is to merge all existing federal laws banning discrimination on grounds of age, disability, race and sex into one comprehensive anti-discrimination act.

The government has not explicitly said whether it will extend this new law to include sexual orientation and gender identity, but that is the hope.

However, given the general limpness of anti-discrimination laws to date, you’d have to ask, what’s the point?

As anyone who has tangled with any of the existing anti-discrimination laws will tell you, they’re difficult to use, expensive and time-consuming. As well as being full of loopholes through which any religious organisation can drive a fleet of Popemobiles.

I’m afraid I’m deeply sceptical of the existing laws. They create large and expensive self-justifying bureaucracies which appear to have quite limited impact on discrimination on the ground, relative to their cost.

It also seems to me that the laws, as currently framed, are uniquely unfair and unbalanced. No other law, so far as I know, places the burden of proof on the victim and provides for no independent mechanism to investigate the alleged wrongdoing.

Let’s be clear here; suppose you are refused a promotion. The question is not were you discriminated against. You didn’t get the promotion, that in itself is the proof.

The real question is, was the employer justified in discriminating against you?

There can be good reasons for discriminating against candidates – their qualifications, for example. And bad ones, such as their sex, age, race, sexual orientation, gender identity etc.

As the law stands, you would have to prove that your employer discriminated against you motivated by one or more of the illegal reasons, rather than the permitted ones. This is a near-impossibility, especially when an employee will almost always have fewer resources that the employer.

The burden of proof needs to be reversed, so that the alleged offender must prove the candidate was lawfully discriminated against.

Furthermore, the role of the rights commissioners must be expanded to allow them to investigate and prosecute cases, rather than leaving it to individuals.

Unless these deficiencies are addressed, adding sexual orientation and gender identity to the list will not help as much or as quickly as it should.

Ask any woman. Women were awarded ‘equal pay for work of equal value’ in 1969 (DFAT). Yet even today, women graduates earn $2000 a year less than male ones when they start work, rising to $7500 less five years later (ACTU).

Info: The Australian Human Rights Commission (AHRC) is running a consultation on federal protection from discrimination on the basis of sexual orientation and sex and/or gender identity. You can make a submission online until Nov 26 at www.hreoc.gov.au/human_rights/