A pathway for discrimination law reform
Canberrans are rightly proud that our city is inclusive and progressive. We value social justice and we value each other. We expect that everyone is treated equally, with dignity and respect, and without discrimination of any kind. Our laws should reflect our high standards.
The ACT’s Discrimination Act 1991 was nation-leading when it was passed and represented best practice in human rights and equal opportunity.
The Discrimination Act has served us well for more than 25 years, but it is time to update it.
In 2015, the ACT Law Reform Advisory Council concluded its Review of the Discrimination Act, providing expert advice on how discrimination laws can be improved. The Government has implemented a number of the recommendations and will now consult on significant outstanding recommendations.
Let’s put the ACT at the forefront again and modernise our discrimination laws.
Did you know?
The ACT was the first place in Australia to protect people from discrimination because they are a carer. The ACT was also the first to legislate broad protections from sexual harassment across different areas of life, e.g. on campus.
Why change discrimination law?
Too complex? Discrimination law across Australia is widely recognised as complex, which can make it hard for people to understand what the law requires and may discourage people from bringing complaints about discriminatory treatment.
Up to date? Some of the standards set in the Discrimination Act 1991 have not been updated since the Act was drafted.
A particular area of concern is the exceptions regime which can have a discriminatory effect on certain individuals (e.g. LGBTIQ people). Exceptions excuse discriminatory conduct, where it is reasonable in all of the circumstances. However, society’s views about what is reasonable change over time. Some of the ACT’s exceptions are very broad, which can undermine protections against discrimination. It’s time to reconsider whether the limits of our discrimination law are appropriate.
Human rights compliant? The Discrimination Act 1991 was drafted before the ACT adopted its human rights framework. Our discrimination law should promote the same standard as the right to non-discrimination in the Human Rights Act 2004. This includes striking the right balance between the right to non‑discrimination against other rights (e.g. privacy and freedom of religion).
Promotes widespread change? Our current laws rely on individual people bringing complaints. Is this the best way to eliminate discrimination? This model achieves change at considerable individual cost and addresses discrimination after it has occurred. Other places – like Victoria and the United Kingdom – have introduced positive duties to eliminate discrimination or promote equality. This puts the burden of addressing discrimination on people in a position to do something about it and encourages systemic, preventative change
Did you know? In 2018-19 the ACT Human Rights Commission received 166 complaints about discrimination. Almost half of the complaints concerned disability discrimination.
Statement of principles
Broader and Stronger Protections
Any changes to discrimination law should create broader and stronger protections to send a clear message that our society believes in equality and respect.
Clear, Simple and User-Friendly
Discrimination laws should be as clear, simple and user-friendly as
Align with our Human Rights Framework
Discrimination laws should align with our human rights framework, meaning that any exceptions should be reasonably justifiable and
Everyone should enjoy the same standard of protection
Discrimination laws should be comprehensive and consistent. Everyone should enjoy the same standard of protection, unless there are principled reasons to distinguish between the different protected groups.
Promote systemic and preventive change
Discrimination laws should promote systemic and preventive change.
The Government will release Discussion Papers in 2021 seeking views from members of the public about possible changes to discrimination law. Key issues include:
Should discrimination law protect people in all areas of public life?
Did you know? The ACT’s Discrimination Act prohibits discrimination in six areas of public life:
- Membership of clubs with liquor licences
- Access to premises
- Provision of goods, services and facilities
Complaints can be brought against anyone as long as their conduct occurred in one of these areas. This covers most but not all public activity. Should discrimination law simply apply to any activity that is not in private?
- Should exceptions to discrimination law be changed or removed?
- Should there be a positive duty to eliminate discrimination?
- Should protections against harassment and vilification be expanded?
• sexual harassment
• vilification (inciting hatred, revulsion etc of a person in public) on certain grounds, and
• victimisation (causing or threatening detriment to someone because they have made a complaint under the Discrimination Act.).
Can these other protections be strengthened? For example, currently vilification is only prohibited on some grounds under the Discrimination Act for some groups of people (e.g. people with disability are protected but women are not).
The bigger picture – connecting our community
Discrimination law reform is part of the bigger picture of making Canberra a safe and happy place to live. It complements other important initiatives underway that will enhance our social capital – the bonds that connect our community.
CANBERRA CAPITAL OF EQUALITY
The Government’s Capital of Equality Strategy aims to make sure that Canberra’s LGBTIQ+ community enjoys the equal protection of the law and full respect for their human rights. Consultation on reforming exceptions to discrimination law that have a discriminatory impact on LGBTIQ+ people is part of the First Action Plan for 2019-2021.
CANBERRA AS A RESTORATIVE CITY
Canberra is also working towards becoming a Restorative City. Restorative practice is all about recognising that relationships are central to our wellbeing, community and society. Discrimination law is fundamentally about respectful relationships and interaction with others. Strengthening the protections in our laws and encouraging community conversations about discrimination will contribute towards Canberra’s restorative goals.
Did you know? Around 26% of discrimination complaints in the ACT in 2018-19 were successfully conciliated by the ACT Human Rights Commission. This achieves outcomes for the parties in a quicker, more informal and accessible way than litigation, and promotes better relationships.
PROMOTING WELLBEING IN CANBERRA
The Government is also developing a Wellbeing Framework for release in 2021. This will allow Government decision-making and investment to be measured against well-being indicators which reflect our values and priorities for quality of life. This recognises that Canberra is more than an economy – we are a community where we aim for everyone to share in the benefits of a good life.
Discrimination law reform will promote wellbeing in areas like social connection and safety.
WE WANT TO HEAR FROM YOU
Discrimination can affect people in their day-to-day lives – at work, studying or training, dealing with government agencies, playing in a local sporting team, joining a club, or practising their religion.
Individuals, government agencies, schools, private companies and community organisations all have obligations not to discriminate.
The Government wants to hear what people in the community think before changing the law.
Calls for public submissions on discussion papers will open in 2021. Preventing discrimination is all of our responsibility.