Consolidation of Commonwealth Anti-Discrimination Laws

Submission in response to the Attorney-General’s Department Discussion Paper ‘Consolidation of Commonwealth Anti-Discrimination Laws’
(February 2012)

COTA’s draft submission responds to the Attorney-General’s Department’s Discussion Paper (the Paper) entitled the Consolidation of Commonwealth Anti–Discrimination Laws. In this context, consolidation refers to the introduction of a single, comprehensive law to replace the existing four separate pieces of legislation, dealing with the grounds or “attributes” of sex, race, disability and age and the act, that established the Australian Human Rights Commission (AHRC).

We applaud the declaration of principles as a safety net for articulating expectations about the protecting human rights and meeting our international obligations while introducing simpler and most cost-effective mechanisms.

We also note Treasury’s Well-being Framework (Treasury 2004) as a descriptive tool to guide the Department of Finance in its assessment of the exposure draft bill because it recognises that the expression of human freedom or rights includes “their effective opportunities to exercise those rights, given their personal and social circumstances”.

Although particular UN Conventions will be used to ground provisions on the attributes of race, women, disability and children (para 6), COTA Australia anticipates that for older people, it would be feasible to call into service the International Convention on Civil & Political Rights; International Convention on Economic, Social and Cultural Rights; and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This submission highlights the need for a statute that obliges duty-holders to respond to the ageing society by removing barriers to participation, and to revise the existing “positive discrimination” provisions. Reference to this type of objective could be
made in the explanatory notes to the bill.

We note the discussion paper presents a lot of good descriptions and options for reform including comparative provisions from other State or other national jurisdictions, e.g. more effective powers for the AHRC (para 225), such as investigation without an individual complaint as available to the Victorian Commission. It stops short of illustrating whether this and other options are used in practice and how they advance anti-discrimination. The paper does not give a snapshot of the status of anti-discrimination action, evident through complaint-making, analysis of cases, or more systemic interventions. Information of an evaluative kind would have been helpful in responding to some questions, e.g. Q27.

COTA Australia notes how the Paper illustrates options for change with provisions in other jurisdictions, both States/Territories and in other countries. While these illustrations are good starting points, generally it would be helpful to have some analysis of how the provisions have been applied, particularly as they could become part of the new draft Australian bill.

In December 2011, the Attorney-General announced the National Human Rights Action Plan. COTA Australia is pleased by the Commonwealth Government’s commitment “to review federal legislation to identify provisions that may create barriers to older people participating in productive work.” It would be helpful if this review could extend to federal programs or, at least to federal programs whose age restrictions have not been reviewed in with respect to our ageing society and the risk of supporting negative stereotypes. Such a review could represent the exercise of a positive duty, considered under Q5 below.

While the objectives of the Victorian Act, the Equal Opportunity Act 2010 (s3) may be a useful basis for a harmonised Commonwealth equality act, protection against discrimination of older people in an ageing society may fall to the provisions and administration of ‘temporary exemptions’ and ‘positive discrimination’/’special measures’ (s3(d)) discussed below under Qs 3,5, and 24.