Rejig of discrimination laws should enshrine equality for all

DOMINIQUE ALLEN
May 3, 2010

The government needs to back its words on human rights with action.

THE Rudd government recently said it would review the four federal anti-discrimination laws with a view to merging  them into a single act.  The review could be the most significant aspect of the government’s new  human rights  framework – but only if the outcome is a law that will effectively tackle inequality. Australian law has prohibited discrimination for more than 30 years. These laws have eradicated the most overt forms of discrimination. Women can’t be prevented from applying for jobs based on gender. People can’t be removed from a pub because of their race. We cannot afford to be complacent; by no means do we live in an equal society.  Women’s participation in the workforce is 58.7 per cent, compared with 72.1 per cent for men, most women work part-time and many industries remain highly segregated. Race discrimination persists. We only have to think of the recent attacks on Indian students in Melbourne or the fact that indigenous people experience a standard of living well below that of the non-indigenous population. A recent ANU study found that a job applicant with a non-Anglo-Saxon sounding name will find it much more difficult to  get a job interview than an applicant with one. People with a disability face many obstacles in accessing buildings,  services and public transport.

The reason for this discrimination is dealt with case by case. There is no institution, like the ACCC or the Ombudsman, that can make sure that people are given a ”fair go” at work or school, or in the services they receive. It is up to victims to do something about discrimination.  If I am discriminated against by a potential employer because I am female and likely to have children soon, my only option, apart from trying to sort the matter out with the employer, is to lodge a complaint with the Australian Human Rights Commission. The commission will arrange a conciliation conference for the parties and we’ll try to resolve the issue. The chances are we will. We’ll spend a few hours discussing what happened and I’ll walk away with a small financial settlement in return for not going to court and keeping the matter confidential. That will resolve the issue for me, but what if there are other women in the workplace who have had a similar experience? What about other employers who are considering doing the same thing? Will my complaint deter them?

The answer is that the system can do little to help people in a similar situation to mine, or to discourage potential discriminators. If the Rudd government simply decides to combine the race, sex, disability and age discrimination acts under one umbrella act, nothing will change; Australia will continue to tackle discrimination in a piecemeal fashion. There is another option. The government could commit to actively tackling inequality and introduce the legal tools to achieve it. This is not a novel idea. Other countries have been doing it for decades. In the US, at least since the Kennedy administration, government contractors have been required to take action to ensure their workforces are  representative, or they risk being ineligible for government contracts. In Northern Ireland, specific employers have been required to achieve fair participation of the Catholic and Protestant communities in the workforce since 1989. South Africa introduced similar requirements to remedy decades of apartheid. In Britain, equality is promoted beyond employment. Public authorities have to consider the need to promote equality of opportunity based on race, gender and disability when carrying out their functions. This meant that when the Department of Health became aware that diabetes was prevalent among Britain’s Afro-Caribbean community, it made sure that its national framework for  tackling diabetes took the needs of that community into consideration. The Rudd government could also follow Victoria’s lead. Just last month, the Victorian government introduced laws that will enable the Equal Opportunity and Human Rights Commission to launch investigations into persistent or entrenched discrimination, rather than relying solely on victims to do something about it. Following an investigation, the commission will work with the organisation to resolve the issue.

The organisation may only need to change its behaviour or it may agree to something more comprehensive, such as developing an action plan to eliminate discrimination. Australian governments were once leaders in promoting equality and protecting human rights on the international stage. Let’s not forget that South Australian women were the first women worldwide to be extended the franchise as well as being allowed to stand for election. The Rudd  government recently reasserted Australia’s commitment to protecting human rights by becoming one of the first countries to sign the Convention on the Rights of Persons with Disabilities. It’s time for this government to bring that commitment to equality home by introducing laws that actively promote equality and give substance to the catch cry, a ”fair go” for all.

Dr Dominique Allen is a research fellow at the Institute of Legal Studies, Australian Catholic University.

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