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Cite as: December 2011 85(12) LIJ, p.24

Last year, the federal government announced its intention to consolidate its anti-discrimination legislation. Now it's asking how.

The federal government wants to turn the current complex maze of anti-discrimination laws into an easy to navigate path and has launched a discussion paper to determine the best route to reform.

It is hoped the consolidation of the federal anti-discrimination laws will ultimately lead to improved equal opportunity outcomes by making the legislation easier to understand and apply.

Employers’ obligations and employees’ rights will be clearer and therefore easier to adhere to and protect.

Federal anti-discrimination legislation is currently found in four different Acts – the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 – while one body, the Human Rights Commission, handles claims.

In April 2010, the government announced it intended to consolidate the legislation and in September this year released a discussion paper to seek community views on the project. Federal Attorney-General Robert McClelland said the multiple Acts relating to discrimination were “substantially inconsistent and unnecessarily complex”.

“This results in confusion in respect to obligations arising under the laws and can increase the cost for legal and specialist assistance,” Mr McClelland said.

The LIV and Victorian Women Lawyers (VWL) have been active in making submissions on the flagged consolidation and in discussions with other groups about the way forward (see http://tinyurl.com/6tjboy6 and http://tinyurl.com/cgzm65h ).

Both organisations welcomed the release of the discussion paper. VWL Law Reform Committee chair Emily Hart said the wider the response to the paper, the higher the quality of the ensuing legislation. Ms Hart said importantly, the government had promised that any changes to the existing legislation would not result in the loss of any current protections.

LIV Legal Policy and Practice lawyer Francesca Steele said people with limited financial means would especially benefit from a simplified system that would not require legal advice to understand.

She said clearer legislation should lead to better rates of compliance.

“We would also hope that by reviewing the content and operation of the laws during this process, the end result will be an Act that promotes positive actions towards equality in society (rather than focusing on anti-discrimination), better protections for vulnerable groups in society and a heightened awareness and tolerance of diversity and difference,” she said.

The paper identifies issues that could shift the emphasis of the new Act from not only providing protections against active and deliberate discrimination but to eradicating systemic discrimination.

One disappointment, for both the LIV and VWL, was that the discussion on positive duty was confined to public sector organisations.

A positive duty would require employers to take measures to prevent discrimination rather than just refrain from actively discriminating.

Ms Hart said Victoria’s Equal Opportunity Act 2010, enacted in August, as well as existing occupational health and safety laws, were examples of where a positive duty existed for private employers.

VWL Law Reform Committee member Prue Elletson said it was still too early to assess the impact of Victoria’s new equal opportunity legislation but that the federal government should be informed by the work done in the state as well as in overseas jurisdictions, such as the UK where a range of anti-discrimination legislation was last year consolidated into one Act.

“I think that this is an opportunity for the Australian legislation to become a best practice model and an opportunity for the Australian government to really consider the body of research and the body of discussion that’s been going on internationally about equality and how a modern society should best deal with that,” Ms Elletson said.

One area that the government has made clear is not open for discussion is same-sex marriage, with the topic omitted from the paper.

Ms Steele said not allowing gay marriage was discriminatory and the consolidation project was the right forum in which to address the issue.

She said the public debate about consolidation should also consider combining the various anti-discrimination laws of the states and territories and the establishment of a statutory body with enforcement and prosecutorial powers to police the new laws.

The response to the discussion paper will inform draft legislation. Submissions can be made until February 2012.

For more information visit www.ag.gov.au/antidiscrimination.

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