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Commission plans to reform discrimination law

Rights Rights and Freedoms
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An 11 point plan for reforming federal discrimination law was released today by Commission President,  Emeritus Professor Rosalind Croucher.

Speaking today at the NSW Legal Aid Conference in Sydney, President Croucher said the Paper is designed to provide a pathway for modernising federal discrimination laws.

“This legislation has been developed over a 45 year period and in a piecemeal manner” said President Croucher. “The result is an overly complex mix of laws that have unnecessary differences in definitions and coverage between the discrimination laws, and which are difficult to use. This makes it harder for organisations to take measures to comply with the law, and harder for people who have been discriminated against to receive access to justice.”

The discussion paper identifies the problematic operation of permanent exemptions in the SDA, DDA and ADA.

“Permanent exemptions to the law have the effect of ‘freezing in time’ community standards in relation to sex, age, disability, sexual orientation and gender identity,” said Professor Croucher. “What was a political compromise in 1984, 1992 or 2005 is not acceptable in 21st century Australia.”

The Paper suggest that all permanent exemptions should:

  • only exist in circumstances that are strictly necessary and which result in the minimum intrusion on people’s rights that are required
  • be regularly reviewed to ensure that they reflect community standards and appropriately balance competing rights. 

The discussion paper forms part of the Commission’s Free and Equal: An Australian conversation on human rights

In launching the project at the Human Rights Awards last year, Professor Croucher explained the need for a Conversation—

Because we seem to have lost sight of the overall purpose of protecting the human rights of the whole community.

Legislation is not comprehensive in its protection. Our discrimination law is complex and does not protect everyone in our community. Our discrimination laws are important: they directly reflect our international commitments and can achieve many positive systemic outcomes, but discrimination law is framed in the negative space—what you can’t do—and relies on a dispute before offering a solution.

Our human rights system was innovative in the 1980s, but has now been surpassed by developments in other countries.

By mid-2020 the Commission intends to:

  • recommend an agenda for federal law reform to protect human rights and freedoms fully
  • recommend priorities for reforming federal discrimination law to make it more effective, comprehensive and fairer in its protection, and simpler to understand
  • articulate key actions that all governments must take to adequately protect the human rights and freedoms of all Australians
  • identify how we can build community understanding and partnerships to realise human rights and freedoms
  • identify options to invest in and build community capacity to realise human rights and freedoms.

“The past decade has been characterised by debates about human rights that are divisive, and have pitted people against each other. These debates have been myopic. They have been focused on individual ‘spotfires’, without considering the broader landscape in which they occur,” she said.

“The recent pattern of human rights being a language of dispute has meant that, each time a new controversy arises, freedom of religion for example, people are so entrenched in their views that the broader conversation we need to have is not the one we actually end up having. Assumptions are made and labels used to characterise opponents, particularly with the suffixes ‘ist’ or ‘phobic’, none of which is helpful,” said the President.

“I note in this respect that if you look at the human rights treaties Australia has committed to and their ratification over the past 40 plus years, almost half a century, it is an equal split between Coalition and Labor governments. This is an example of how human rights are neither a ‘Labor’ nor a ‘Coalition’ project.

In late August, we will be releasing a further Discussion Paper outlining proposed reforms to federal law and policy to frame human rights positively, and in a ‘frontloaded’ manner—moving them from reactive tools to proactive considerations.

The Commission will then convene a national conference on human rights, with special guest the United Nations High Commissioner for Human Rights, on Tuesday 8 October. Early bird tickets are now available here.

“We look forward to hearing the views of the community, as well as technical experts such as those in the legal profession and others for whom this is core business, about the way forward to ensure the effectiveness of our discrimination law system so that it truly meets the needs of 21st century Australia,” said Professor Croucher.

You can share your view as part of the national conversation here.

>> Read the report.




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