Toothless Discrimination Law

Charlie Marshall

Which party will finally give anti-discrimination law some teeth?

As part of our election agenda series, the stirrer looks at discrimination law. 

Our discrimination laws are a mess, a hodge-podge of federal and state measures deliberately designed to make life difficult for the individual. There is a massive power imbalance between the complainant, who has to prove that discrimination has occurred, and do so at their own expense and with little help, and an employer, who can afford a battalion of lawyers to argue their case.

Employees who have been fired need a speedy resolution, so they can get on with their lives. They need to get back to work; they need the compensation for the discrimination they have suffered. Employers, on the other hand, can spin things out almost as long as they like, in the hope that the complainant will give up, either through sheer frustration, or a lack of funds, or both.

“Most people wouldn’t be aware but if you have suffered discrimination, the process of taking forward a complaint under equal opportunity laws is very burdensome and it’s a big disincentive and we don’t actually get many cases coming through the courts for that reason,” said Anna Brown, the then VGLRL convenor.

In 2012-3 the Gillard Labor government tried to sort things out: Nicola Roxon introduced a bill to consolidate all five federal anti-discrimination acts into one. But the measure ran into stiff headwinds from the business and the Christian lobbies, and was dropped.

The reforms would have created a more level playing field, giving the Human Rights Commission the power to take over, finance, and prosecute individual cases. They would also have gained the power to investigate a company for suspected discriminatory behaviour, even with no specific complaint against them.

In addition the Bill reversed the onus of proof. It is almost impossible for an individual to prove they’ve been discriminated against, and all too easy for a company to conceal their true motivation. The Bill did away with the need to prove that an employer had discriminated: now it would be up to the employer to prove they did not. This would bring the Bill into line with the Fair Work Act. As I wrote at the time:

“If it walks like a duck, and quacks like a duck, it’s a duck. If the effect of an action is to discriminate against a person or class of persons, then it is discrimination, regardless of the alleged intent. The law must make this clear.”

As a sop to the G.A.Y.* community, the Sex Discrimination Act was amended, adding protection for on the grounds of sexuality and gender identity, but even this small but important change was hobbled.

“The government will not curtail or remove the ‘religious exemptions’ which give church-owned businesses special privileges to discriminate against clients and employees who do not conform to their moral codes – including gays and lesbians, in accordance with assurances given to the Australian Christian Lobby by Julia Gillard.”

Changing the law will not be enough. Anti-discrimination law does not, of itself, guarantee that discrimination will end. For that to happen, the incoming government needs to take a much more proactive approach.

One very simple move would be to require that anyone doing business with state and governments and their agents must have pro-active policies and procedures in place that ensure they do not discriminate against G.A.Y.* people, internally or externally, regularly audited and approved by the Human Rights Commission.  This would ensure that anyone claiming religious exemptions could not do business with state or federal government.

*G.A.Y. = Good As You: the acronym formerly known as LGBTI2QQAA+

About the author

Veteran gay writer and speaker, Doug was one of the founders of the UKs pioneering GLBTI newspaper Gay News (1972) , and of the second, Gay Week, and is a former Features Editor of Him International. He presented news and current affairs on JOY 94.9 FM Melbourne for more than ten years. "Doug is revered, feared and reviled in equal quantities, at times dividing people with his journalistic wrath. Yet there is no doubt this grandpa-esque bear keeps everyone abreast of anything and everything LGBT across the globe." (Daniel Witthaus, "Beyond Priscilla", Clouds of Magellan, Melbourne, 2014)