Submission to the Attorney-General’s Consolidation of Commonwealth Anti-Discrimination Laws Discussion Paper
03 February, 2012 | Submission
The ACTU has consistently expressed the view that, in order to improve the effectiveness of the anti-discrimination legal framework, reform is required which will deliver:
1. A positive approach, including a clear statement of the objective of the consolidated Act to achieve substantive equality and the introduction of an obligation to take reasonable and appropriate measures to eliminate discrimination as far as possible;
2. New regulatory models that actively uncover discrimination, assist organisations to eliminate discrimination, prevent its recurrence, and enforce non-compliance;
3. Greater synergy between anti-discrimination law and complementary legislation such as, for example, Equal Opportunity legislation; and
4. The social and economic benefits of inclusive employment practices to the Australian community based maximising the full participation of a diverse range of skilled, experienced and talented labour market.
In our view, the key specific shortfalls in the anti-discrimination legal framework include:
- A lack of clear, positive objectives to prevent and eliminate discrimination and promote substantive equality;
- Out-dated definitions and technical requirements which serve to make it difficult for meritorious claims to progress;
- The reliance on individual complainants is biased in favour of large, well-resourced organisations and does not facilitate resolving systemic discrimination;
- There is insufficient provision for the Australian Human Rights Commission (AHRC) and other appropriate organisations to initiate investigations and claims of systemic discrimination;
- There is insufficient advocacy support and representation of vulnerable and disempowered complainants;
- The complaints process is time consuming, overly legalistic and costly;
- There are insufficient regulatory tools to encourage and assist organisations to prevent and eliminate discrimination; and
- The enforcement provisions are insufficient both in terms of regulation and the level of punitive damages, particularly when compared to similar jurisdictions such as occupational health and safety and consumer protection legislation.
These broad reform areas must be addressed if we are to genuinely strive to improve the efficacy of the anti-discrimination laws to eliminate discrimination and promote substantive equality.
It is in this context that we make the following recommendations.
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