Consolidation of Commonwealth Anti–Discrimination Laws Submission Discrimination Law Experts’ Group




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Consolidation of Commonwealth


Anti–Discrimination Laws

Submission






Discrimination Law Experts’ Group

13 December 2011

The Discrimination Law Experts Group met on Monday 28 November 2011 to collaborate on a response to the discussion paper issued in relation to the Consolidation of Commonwealth Anti-Discrimination Laws Project. The Experts Group included the following members who contributed to the development of this Submission:

Dr Dominique Allen, Law Faculty, Deakin University

Adjunct Professor Peter Bailey, AM OBE, College of Law, Australian National University

Ms Anna Chapman, Law Faculty, University of Melbourne

Dr Elizabeth Dickson, School of Law, Queensland University of Technology

Associate Professor Beth Gaze, Law Faculty, University of Melbourne

Dr Karen O’Connell, Law Faculty, University of Technology Sydney

Associate Professor Simon Rice, OAM, College of Law, Australian National University

Dr Belinda Smith, Sydney Law School, University of Sydney

Professor Margaret Thornton, College of Law, Australian National University

The Working Group meeting and this submission were coordinated by Associate Professor Beth Gaze.



TABLE OF CONTENTS




Summary of recommendations 4

4

1

Introduction 6

6

2

Objects of the Act 7

7

3

Meaning of Discrimination, Exceptions and Exemptions 8

8

4

Burden of Proof 11

11

5

Special Measures 14

14

6

Special Exceptions 16

16

7

Temporary Exemptions 17

17

8

Complaints and Compliance Framework 18

18




Conciliation







Remedies: damages and compensation







Remedies: any reasonable act or course of conduct







Litigation costs







Representation







The AHRC’s role and functions




9

Concluding Remarks: confidentiality, research and victimisation 28

28




Appendix 1: Relationship of Recommendations in this submission to those in our Report of March 2011 30

30




Appendix 2: March 2011 Report, Discrimination Law Experts Roundtable 31

31

Summary of Recommendations

2 Objects of the Act

A form of objects clause is proposed (see p. 7-8)



3. Meaning of Discrimination, Exceptions and Exemption

A series of provisions is proposed that defines discrimination and clarifies the roles of justification, exceptions and exemptions (see p. 8-9). These recommendations replace the recommendations in our March 2011 report concerning the definition of discrimination and exceptions to discrimination.



4. Burden of Proof

We recommend that once a complainant has established a prima facie case of unfavourable treatment based on an attribute, a rebuttable presumption should arise that the treatment was based on the attribute. The respondent would be able to rebut the presumption by introducing evidence about a non-discriminatory basis for their action.



5. Special Measures

We recommend that the consolidation Act should include a single special measures provision, covering all protected attributes, and should include a process for temporary authorisation of special measures, to reassure business and other organisations that actions which benefit an attribute group and provide for substantive equality will not breach the Act.



6. Special Exceptions

We recommend that the religious exceptions be repealed. If they are retained we recommend that they not apply to functions undertaken under contract to the government and that are undertaken with public funding. If they are retained we recommend that a religious organization seeking to rely on them should be obliged to identify the religious doctrine or susceptibility involved and the source of religious authority for the claim.



7. Temporary Exemptions

We recommend that the process for considering and granting temporary exemptions be consistent across all attributes, and that the process of granting exemptions should be as set out in our March 2011 submission.



8. Complaints and Compliance Framework

We make recommendations relating to:



  1. Conciliation

  2. Remedies: damages and compensation

  3. Remedies: any reasonable act or course of conduct

  4. Litigation costs

  5. Representation

  6. The AHRC’s role and functions

9. Concluding Remarks: confidentiality, research and victimisation

We recommend that any confidentiality provision should not preclude either:



  • Publication of de-identified information about conciliated settlements, or

  • Access to data for research purposes where the research has been approved by a human research ethics committee.

We recommend that the victimisation provision be revised to make clear that possible criminal liability for victimisation is not a barrier to bringing a civil claim; if necessary, the criminal provisions for victimisation should be repealed.
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