ANTI-DISCRIMINATION LAWS IN AUSTRALIA: A CRITICAL ANALYSIS
Authored By - Sakshi Gupta
Australian Law is strict with regard to discrimination where it is unlawful to discriminate on the basis of age, race, disability, sex, gender identity and sexual orientation in areas including education and employment. Australia has federal, state and territorial laws to protect people against discrimination. The Federal laws of Australia which contain provisions regarding anti- discrimination are: “Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984.” In addition to these federal legislations, each state and territory in Australia has equal opportunity and anti-discrimination agencies with statutory responsibilities.
Traditionally, the incorporation of anti-discrimination laws has been perceived as being radical due to their important role in recognising the discriminatory practices within society. However, given the significant changes in the social structures and practices over the past few decades, the effectiveness of these laws in achieving equality and eliminating discrimination in Australian contemporary society has come under much scrutiny. Consequently, critics have identified a significant number of limitations with regards to the regulatory and enforcement mechanisms of the Australian anti-discrimination laws, which is reflected through the individual complaints based model. In Australia, anti-discrimination law is enforced by individuals who file a complaint individually at the statutory equality commission, which handles and tries to resolve complaints. The individual complaint based model of anti- discrimination laws, aims to “eliminate discrimination and inequality by providing individual victims the right to take legal action against individual discriminator for compensation”. Under this model, the employers are prohibited from discriminating and in case of any violation, they are liable to the victim but in general, they are not specifically required to be active in eliminating discrimination or promoting equality.
While the Australian anti- discrimination laws were profound at the time of their introduction, however, they have not been very successful in addressing the many different forms of discrimination, calling for the need for further improvement. The objective of these laws is ‘to eliminate discrimination,’ the regulatory mechanisms in the legislation are largely ineffective at achieving this goal. For the purposes of this paper, the effectiveness of the complaints-based model will be evaluated by discussing its limitations with reference to its causes. Furthermore, potential reforms will be examined in order to overcome these limitations and provide a more effective compliance regime.
Effectiveness of the Complaints-Based Model
Given that there is no constitutional force with respect to anti-discrimination, federal laws are enacted based on international treaties and conventions through the ‘external affairs’ power, such as the international human rights agreements. In addition, there are State and territory laws that have also been incorporated in both public and private spheres. The enforcement of these anti-discrimination laws through the complaints-based model provides victims with the right to take legal action against perpetrators. As such, this regulatory model is based on the premise that discrimination is a wrongful act that prohibits equality as it is carried out to harm another individual.
Even though there is no single legislation based on anti-discrimination, the current complaints based model has played a considerable role in promoting equality which is evident by the significant reduction of blatant forms of discrimination. This is demonstrated by the Ansett Transport Industries (Operations) Pty Ltd v Wardley (Wardley) case, where Wardley was discriminated whilst applying for a job as a pilot based on her sex. She was able to challenge the exclusionary policies by enforcing the anti-discrimination legislation. Consequently, it may be assumed that this model effectively addresses the objective of eliminating discrimination by allowing victims of prohibited discrimination to protect their individual liberty through litigation. Nevertheless, this regulatory framework has given rise to numerous limitations as a result of the proscriptive nature of the model and the narrow scope of the anti-discrimination legislation.
Having established that the complaints based model involves a negative duty, responsibility is placed on the victims to bring an action to court for seeking remedies to the discriminatory behaviour of the perpetrator. This places excessive burden on the victims, who have to sacrifice their time, resources and energy to resolve the conflict. To further complicate the process, victims are encouraged to firstly go through a conciliation process instead of pursuing litigation, which can be extremely lengthy and expensive. This process allows the victims to resolve their disputes in a confidential manner by confronting the perpetrators and negotiating an agreement. However, given the confrontational nature of this dispute settlement procedure, victims have the option to proceed with litigation for settling their matter.
Burden of Proof
However, in accordance with the complaints-based model, the victim would have to satisfy all the elements of the relevant anti-discrimination legislation by providing a meritorious case. Given that the onus of proof is on the victim to prove the occurrence of the discriminatory act on the balance of probabilities, they are faced with two obstacles. Firstly, the complainant has to access information which is only known and controlled by the respondent, who has no obligation to provide any reason for the discriminatory act. Given that respondents are generally more influential, interested parties would also be inclined not to support the defendant in the fear of jeopardising their own situation.
Secondly, there may be circumstances where direct evidence would be non-existent or unavailable. Consequently, complainants in certain situations may be forced to rely on circumstantial evidence, which would significantly limit their chances, as courts would have to consider the ‘cumulative effect’ of the provided evidence. This is further complicated by the complexity of the statutory framework, which has an indirect impact on the complainants as they are kept in a state of uncertainty for long periods. As such, this limitation has resulted in many people being deterred from making complaints of discrimination, which is evident by the significantly high number of cases which go unreported.
By focussing on each individual complaint, the sanctions awarded are generally limited to compensatory remedies. These types of remedies are not focussed on improving the behaviour of the wrongdoer, but only aim to compensate the victim for the harm they have suffered as a result of the discrimination. Moreover, the sanctions provided for the discriminatory acts do not have a deterrent effect as judges fail to recognise the extent of the pain and suffering endured by the victims.
Furthermore, it is now being increasingly recognised that in many situations there is no single perpetrator. In these circumstances, there is inherent inequality within the institutional system. As such, the respondent in most situations would not have to take preventative actions by implementing anti-discriminative measures unless a complaint has been put forward. For example, from an employment perspective, if the causes of inequality in the workplace cannot be proved, the employer would have no responsibility for addressing the inequalities. Consequently, even if it is argued that there are standard anti-discrimination regulations imposed in every workplace, there is no mechanism to monitor the legitimacy of the standards. This reinforces a significant limitation imposed by the reactive nature of the current regulatory model.
Therefore, the sanctions provided through the complaints-based model prevent any systemic changes to occur, which is required to amend the systemic discrimination that is entrenched through the policies and practices within the institutional structure. By not addressing the source of the problem, this regulatory model does not provide any incentive for the respondents to take a proactive approach in reducing discriminatory behaviour.
Lack of Enforcement Agency
Additionally, the proscriptive nature of the complaints-based model is emphasised by the lack of enforcement agency. In contrast to overseas equality commissions, the Human Rights and Equal Opportunity Commission (HREOC) does not play a significant role in enforcing the law as it only provides an opportunity for the complainants to resolve their complaint informally before proceeding to litigation. Even though this independent statutory agency was established to administer federal legislation, it has no power to initiate investigations of noon-compliance and no power to assist complainants with satisfying the various elements of the legislative process. Consequently, by focussing on victim-only prosecution, HREOC is not able to play a substantial role in enforcing the legislation but is only limited to educating and raising awareness about anti-discrimination. Given that claimants, who are usually disempowered groups, have to invest in numerous resources to pursue legal action, this limitation exemplifies a fundamental regulatory weakness.
Hence, it is evident that the proscriptive nature of the complaints-based model has created several limitations in the effective enforcement of the anti-discrimination laws. Nevertheless, the limited scope of the legislation also needs to be analysed to completely understand the foundation of the criticisms.
Limited Scope of the Legislation
These limitations of the complaints-base model have been further highlighted by the closed model approach of the legislation, which needs to be examined in order to determine the effectiveness of the current regulatory system. The anti-discrimination laws are not only limited to some areas of the public sphere, but also specifically define both direct and indirect discrimination. This has the effect of reducing the discretion given to courts as they are forced to take a conservative approach. The complexity and limited scope of the statutes has limited the development of the public understanding of the notions of discrimination and achieving equality. This has allowed respondents to exploit this flaw by being able to find loopholes within the legislation to avoid liability. As such, victims are further disadvantaged as the enforcement of the current law is reliant on them bringing cases to court by satisfying the necessary elements of the legislation. Consequently, it is evident that the strict nature of the legislation emphasises the limitations of the complaints-based model.
Additionally, given that the anti-discrimination laws deal with an important subject matter in relation to ensuring the right of everyone to be treated equally, it may be assumed that these laws should be interpreted differently in comparison to other statutes. However, in Australia the courts have construed these laws from a literal reading by simply giving effect to the words. Furthermore, given that judges have usually experienced social advantage, it may be argued that their interpretations do not reflect a neutral perspective due to their conscious and subconscious experiences. As such, the courts have adopted a narrow interpretive approach, which could potentially arise as judges may devalue or under-estimate the serious effects of discrimination. This creates another limitation through the creation of technical distinctions due to the constricted approach of interpreting.
In addition, having established that most of the discrimination cases are resolved in the conciliation process, judges have experienced limited guidance and experience in interpreting open-textured terms and have struggled to effectively define the parameters of non-discrimination. As a consequence, the limited scope of the legislation coupled with the strict interpretations has made it more difficult for complainants to achieve success in proving discrimination.
This limitation is emphasised through Purvis v New South Wales case, which involved a student with multiple disabilities bringing a claim for direct discrimination against his school due to his expulsion. In this case, the judiciary discussed the distinction between direct and indirect discrimination by focussing on the comparator element. Furthermore, it reinforced that direct discrimination is based around a formal equality approach, where people are given the same rights regardless of their physical and social differences. By adopting such an approach, the current legislation is limited as it fails to challenge the existing inequality, which is influenced by dominant groups. This precent has complicated the progressive potential of the anti-discrimination laws by reinforcing the barriers for access to justice.
Hence, it can be concluded that the complaints-based model is ineffective in successfully achieving the goal of anti-discrimination laws, which is to eliminate discrimination. Given the lack of cases proceeding to litigation, there is much uncertainty in relation to the application of the current laws. This makes the enforcement process more onerous for the victims and prevents systemic change from occurring.
Having established that the current enforcement mechanism is problematic due to its proscriptive nature and complexity of the anti-discrimination laws, there is a need for these limitations to be overcome by referring to regulatory models of other jurisdictions. The courts in United Kingdom, Ireland and Canada have acknowledged these problems by implementing various strategies to not only reduce the burden of proof imposed on complainants but also create a more open legislative framework.
Reducing the Burden of Proof
It is clearly evident that the complaints based model places too much responsibility on victims through the negative duty characteristic, which is further exacerbated by the complexity of judicial interpretations of the substantive requirements of direct and indirect discrimination. As such, assistance needs to be provided for complainants to be able to effectively communicate their discrimination case during litigation. This may be possible by adopting a strategic approach and allowing the equality commission to play a more inclusive role in the enforcement process.
Even though the commission has power to investigate breaches by applying amicus curiae, intervention and public enquiries, it has various limitations in relation to presenting arguments and written submissions. Furthermore, it does not have the ability or the required amount of resources for focussing on enforcing the law. Consequently, the equality commission should introduce a ‘questionnaire procedure’ during the initial stages of the case. Analogous to the system in United Kingdom, this questionnaire would provide the complainant the opportunity to obtain relevant information from the respondent, which can potentially strengthen their case. Furthermore, by drafting specific questions tailored towards addressing the cause of the particular discrimination, this approach will allow both the claimant and the commission to determine the merits of the case. In addition, this potential reform could be strengthened if the responses or non-responses provided by the respondent were admissible as evidence in court. This would be beneficial for victims who are attempting to prove indirect discrimination, as they could potentially obtain statistical information about their situation.
However, this reform is only a temporary measure and it does not solve the crux of the problem. For example, there might be various circumstances where the respondent would genuinely not be able to answer the question or the information could not exist. This might be the case in workplace discrimination where employers are not obligated to produce and disclose comparable statistical data about the organisation. Consequently, the institutional and reporting framework needs to be amended in order to allow all relevant parties to be able to access any collected data for identifying the cause of systemic discrimination, which complements the questionnaire procedure.
Even though this procedure reduces the burden of proof required from the complainant, it does not shift the burden towards the respondent to ‘justifiably’ prove their actions in relation to both direct and indirect discrimination. Accordingly, Australia could adopt a two-step process of requiring the complainant to establish a case through their evidence and then the burden of proof would be placed on the respondent to prove that they did not commit a discriminatory act. In this way, the respondent is notified that they bear an evidentiary burden and will be required to provide an explanation for their behaviour. However, it may be argued that the shift of evidentiary burden does not resolve the issue in relation to assisting the complainant to reasonably prove the act. This is further complicated by narrow interpretations of legislation by higher courts, which has made it more difficult for the complainants to meet the requirements of the technical interpretations. Hence, it is evident that there is a need for a potential reform which overcomes the closed-model approach of the legislation which can allow for systemic change.
Open Legislative Framework & Proactive models
Having established that the current anti-discrimination laws have been narrowly defined, it only covers a limited band of discrimination. Consequently, there is a need for Australia to adopt an open legislative framework, which is similar to the Canadian model. This involves discrimination being broadly defined, so as to allow the courts to determine the scope of discrimination. As such, courts would be able to take a more proactive approach aimed at creating institutional change.
This proactive approach may be adopted through adopting a positive duty by meeting the requirement of certain conduct. By promoting a positive duty, the policies and practices will be operational even if a discriminatory act has not been committed. Some aspects of positive duty have been demonstrated through the introduction of the ‘Family Responsibilities and Carers’ Rights Act’. This legislation broadens the scope of the anti-discrimination legislations and attempts to rectify the flaws of the ‘Sex Discrimination Act 1984’. It does this by providing greater clarity and certainty for employers to reasonably consider the specific needs of workers with family responsibilities. This exemplifies the shift from formal to substantive equality in relation to family responsibilities. In this way, employers have an obligation to take preventative measures for avoiding discriminatory practices and cannot avoid these requirements until they have been proved as discriminatory. Furthermore, this positive duty approach has also been highlighted through the ‘Disability Discrimination Act 1992’, where education providers are required to make ‘reasonable adjustments’ for a person with disabilities. Although, these examples promote positive duty, they are only incremental changes which do not provide a more fundamental reform which addresses the social, structural and cultural problems.
Consequently, in order to achieve the public policy goals, the increasing role of organisations needs to be recognised due to their influence in providing more substantive innovations in relation to anti-discrimination laws.Given that organisations operate their own sub-systems within society, more analysis needs to be placed on understanding the motivations and values within these organisations when implementing practices promoting a positive duty. This would enable organisations to implement ‘actions plans’ to assist them with taking the necessary steps to comply with the anti-discrimination laws. Furthermore, by consulting with all the relevant stakeholders whilst reviewing policies and practices, the use of action plans can help identify and eliminate systemic discrimination.
Therefore, it can be concluded that the complaints-based model is an ineffective enforcement mechanism for achieving equality and eliminating discrimination within the society. The absence of an enforcement agency along with the complainant having to bear the entire burden of proof implies that inequality will only be addressed if specific perpetrators are identified. In addition, the closed-model approach of the legislation reinforces the need for legislative reform within this area. Consequently, there is a need to adopt potential reforms which reduce the burden of proof for complainants and encourage proactive measures to be implemented in order to provide a more effective compliance regime.
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Thornton, Margaret, ‘Equivocations of Conciliation: The Resolution of Discrimination Complaints in Australia’ (1989) 52 The Modern Law Review 733.
Human Rights Law Centre, Advance Australia Fair: Addressing Systemic Discrimination and Promoting Equality, May 2011.
Smith, Belinda, ‘Models of anti-discrimination laws – Does Canada offer any lessons for the reform of Australia’s laws?’ (Paper presented at Law and Society Association Australia and New Zealand Conference, University of Sydney, 10-12 April 2008).
Rees, Lindsay and Rice, Australian Anti-Discrimination Law – Text, Cases and Materials (The Federation Press, 2008).
Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92; 202 ALR 133.
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1984) EOC 92-003.
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act 1992 (Cth)
 https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/australias-anti-discrimination-law (Last accessed on 13th December 2021)
Belinda Smith, ‘Australian Anti-Discrimination Laws – Framework, Developments and Issues’ (2008) Kluver Law International 93, 94.
 Belinda Smith, ‘Models of anti-discrimination laws – Does Canada offer any lessons for the reform of Australia’s laws?’ (Paper presented at Law and Society Association Australia and New Zealand Conference, University of Sydney, 10-12 April 2008) 1.
 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1984)EOC 92-003.
 Belinda Smith, ‘From Wardley to Purvis – How far has Australian anti-discrimination law come in 30 years?’ (2008) 21 Australian Journal of Labour Law 3, 4.
 Sandra Fredman, ‘Changing the norm: Positive Duties in Equal Treatment Legislation’ (2008) Maastricht Journal of European and Comparative Law 369, 370.
 Ibid 371.
 Human Rights Law Centre, Advance Australia Fair: Addressing Systemic Discrimination and Promoting Equality, May 2011, 8.
 Dominique Allen, ‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review 578, 581.
 Ibid 582.
 Ibid 583.
 Fredman, above n 6, 372.
 Human Rights Law Centre, above n 9, 8.
 Smith, above n 1, 102.
 Ibid 99.
 Human Rights Law Centre, above n 9, 1.
 Fredman, above n 6, 373.
 Smith, above n 1, 100.
 Belinda Smith, ‘It’s about Time – For a Regulatory Approach to Equality’ (2008) 36 Federal Law Review 117, 132.
 Ibid 135.
 Ibid 132-3.
 Smith, above n 3, 4.
 Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ (2002) 26 Melbourne University Law Review 325, 331.
 Ibid 336.
 Smith, above n 3, 5.
 Gaze, above n 26, 332.
 Ibid 339.
 Smith, above n 1, 102.
 Ibid 99.
 Purvis v New South Wales (Dept of Education and Training) (2003) 217 CLR 92; 202 ALR 133.
 Smith, above n 5, 331.
 Human Rights Law Centre, above n 9, 10.
 Allen, above 10, 602.
 Dominique Allen, ‘Strategic Enforcement of Anti-Discrimination Law: A New Role for Australia’s Equality Commission’ (2010) 36 Monash University Law Review 103, 113.
 Human Rights Law Centre, above n 9, 35.
 Allen, above n 39, 114.
 Allen, above n 10, 602.
 Ibid 590.
 Ibid 591.
 Ibid 592.
 Smith, above n 1, 109.
 Human Rights Law Centre, above n 9, 31.
 Allen, above n 10, 597.
 Ibid 598.
 Ibid 604.
 Smith, above n 3.
 Fredman, above n 6, 369.
 Human Rights Law Centre, above n 9, 12.
 Smith, above n 22, 117.
 Ibid 128.
 Ibid 129.
 Human Rights Law Centre, above n 9, 12.
 Smith, above n 22, 136.
 Ibid 137.
 Ibid 138.
 Human Rights Law Centre, above n 9, 14.