A great opportunity for modernising our ailing discrimination laws is lost

New Attorney-General Mark Dreyfus inherited a difficult choice when he assumed responsibility for the proposed new discrimination legislation released by Nicola Roxon and Penny Wong late last year and reviewed by a Senate committee over the summer. While his decision to proceed with legislation making sexual orientation and gender identity prohibited grounds of discrimination is welcome, it probably signals a disappointing end to the broader process of modernising our national discrimination laws. The draft Roxon/Wong legislation, the Human Rights and Anti-Discrimination Bill, generated a number of negative responses, many of which were inaccurate or misleading. These responses demonstrate how difficult it is to conduct an informed public debate about complex issues when there is little more than a draft piece of legislation to tell people about what is proposed. Something more is needed in order to make it easier for people to distinguish fact from fiction when deciding whether to support a proposed Bill.

The Bill sought to consolidate and modernise five separate pieces of anti-discrimination legislation passed by both Labor and Coalition governments since 1975. Those laws – which deal with discrimination on the grounds of race, sex, disability and age, as well as matters of procedure – generally received bipartisan support when they were before parliament. Even when this was not the case – such as with sex discrimination legislation in 1984 – later governments did not overturn the laws passed earlier by their opponents, maybe because they believe most Australians accept that things like a person’s race, sex or disability are simply not relevant when deciding whether someone should get a job, the lease for a flat, or a seat in a coffee shop.

While these five separate laws served Australia reasonably well for some time, they have not kept pace with developments elsewhere. Their lack of clarity has often led to long, costly and disappointing litigation because the courts have not produced clear guidance about the meaning of disputed provisions. The High Court in particular has been challenged by these laws, failing to provide majority statements about the meaning of the law in all but one of the discrimination cases it has decided.

Experience elsewhere demonstrates that laws of this nature need regular refinement in order to operate successfully. A good example concerns the description of conduct which is unlawful discrimination. The definitions of unlawful discrimination in our laws are based on legislation passed in the United Kingdom in the 1970s which reflected earlier US Supreme Court decisions about the meaning of broadly-worded laws made by Congress in the 1960s. While the definitions of unlawful discrimination in both the US and the UK have evolved over the past 40 years, Australia retains out-dated definitions devised in Westminster when this body of law was still in its infancy.

The contentious “shifting onus” provision in the draft Bill is nothing more than a “catch up” provision that brings Australian anti-discrimination law into line with developments that took place in the US Supreme Court in 1973, the UK courts in the 1990s and our own employment laws at the beginning of the 20th century. While the US Supreme Court has regularly re-affirmed its 1973 decision about a shifting onus of proof in discrimination cases, the UK parliament passed laws over a decade ago that gave legislative force to earlier decisions of its courts about a shifting onus. There has also been “shifting onus” provision in Australia’s employment laws since 1904 that deals with dismissal of an employee on the ground of union membership. The Howard government’s Work Choices legislation extended the operation of this “shifting onus” provision to a raft of grounds including race, sex, disability and age without opposition from anyone.

The rationale for a “shifting onus” provision is simple. If a person with a protected attribute – such as an Indigenous person – can produce evidence which demonstrates an adverse outcome for which there is no clear explanation, like being denied a job for which that person is qualified, it is fair and reasonable to ask the person who made the decision – the employer – to explain why it occurred. To require the applicant to bear the burden of proof about the matter when there is undisputed evidence of an adverse outcome places the applicant in the almost impossible position of trying to prove the reasons for another person’s conduct.

Many of the other new provisions in the draft Bill that generated debate, such as the meaning of the term “unfavourable treatment”, are lawyer’s law that are often explained helpfully in law reform commission reports. Regrettably that source of information is not available here to still the voices of those who see agendas that simply do not exist.

Experience elsewhere also demonstrates that it is important to review the grounds upon which it is unlawful to discriminate, especially because of the importance of making formal, legal statements about the social inclusion of those people who have previously been outcasts. One of the most important changes in the Bill was the addition of sexual orientation and gender identity as prohibited grounds of discrimination.

It was this important and welcome change that Mark Dreyfus chose to prioritise. A new Bill to insert these new protected grounds into sex discrimination legislation has been introduced into parliament and it appears to have sufficient support to pass. But what of the rest of the reforms?

When announcing his move to add these new grounds to the Sex Discrimination Act, the Attorney-General said his Department would continue to work on the broader reforms taking into account the Senate committee's recommendations which split along party lines. No timelines have been provided. Given the limited number of sitting days before the election, this announcement effectively consigns long overdue reform of Australia’s anti-discrimination laws to the next government.

How might we have prevented this important step in the evolution of our discrimination laws from sinking in the mire of party politics? Three years ago, when the reform project was first announced, then Attorney-General Robert McClelland could have referred the matter to the Australian Law Reform Commission. If I were Attorney-General, this is the course I would have taken. Public policy issues of this nature ordinarily benefit greatly from examination by a law reform commission because everyone has a chance to have a say, myths are debunked, realistic reform options are identified and complex issues are explained clearly and dispassionately.

The opportunity to modernise our ailing discrimination laws deserved no less.

Neil Rees is professor of law at the University of the Sunshine Coast. He is a co-author of Australian Anti-Discrimination Law and a former Chairperson of the Victorian Law Reform Commission.