True Meaning of Equality Australian Anti-discrimination Laws and its

Ambiguity
Issues pertaining to discrimination have been controversial since time
immemorial. It goes without saying that a large number of countries have
their histories carved on episodes of discrimination. This is both in
the national arena, as well as the institutions themselves. Indeed, some
of these forms of discrimination are yet to be completely eliminated
from varied sectors, rather they have been modified with time or rather
institutionalized, thereby giving them some element of legitimacy
(Nelson, 2009, pp. 22). This, undoubtedly, works against equality and
equity of all human beings, something that international laws have
closely safeguarded. Employee Relations Law has been created with the
sole objective of promoting social inclusion, dignity of employees and
fairness at work. As much as discrimination law plays a central role in
the achievement these objectives, its capacity to achieve them has been
marred by its complexity and ambiguity. This complexity has not only
made it difficult for employees and employers to understand it
completely but also increased the difficulty for courts and tribunals to
apply and explain it. This has raised serious questions on its
application with the key question being whether it would not be better
for all parties for issues pertaining to discrimination to be restricted
to common law and other statutory provisions that prohibit direct
discrimination in the workplace. This is especially considering the
complexity, ambiguity and the conflicting provisions of the different
Acts that aim at eliminating discrimination.
There exist varied definitions of discriminations depending on the
context. Discrimination has been defined as a prejudicial or unjust
treatment of varied categories of individuals especially on the basis of
their characteristics such as sex, race, age, religion and creed
(Hastrup, 2002, pp. 13). In addition, the concept has been defined as
the distinguishing and/or prejudicial treatment of a person on the basis
of their perceived or actual membership to a certain category or group,
in a manner that is significantly worse than that which is usually
accorded to other people (Nelson, 2009, pp. 14). This action revolves
around the initial interaction or reaction of the group, influencing the
actual behavior of a person to the group leader or even the group
itself, baring members of a particular group from privileges or
opportunities that have been availed to another group, thereby resulting
in the exclusion of the entities or the individual on the basis of
irrational or logical decision-making (Plous, 2003, pp. 38).
Varied forms of discrimination have been defined and categorized into
two groups. These include direct discrimination and indirect
discrimination. Direct discrimination involves the treatment of an
individual in a less favorable manner based on some status or
characteristic that they actually posses or are believed to posses
(Stewart, 2013). This may be distinguished from indirect discrimination,
which comes around in instances where an apparently neutral criteria,
practice or specification would disadvantage individuals that have
certain characteristics unless the requirements may be objectively
justified through a legitimate aim (Gaze & Hunter, 2010, pp. 28). This
may occur, for example, in instances where a department store bars its
staff from wearing hats and headscarves when they are serving customers.
Such a rule would, in essence, be implying that individuals whose
religious beliefs require that they have their heads covered, for
example Muslim women, would be barred from working in that store (Gaze &
Hunter, 2010, pp. 29). In essence, the store would be indirectly
discriminating against such groups of people unless it can sufficiently
demonstrate that there exists a logical and objective reason justifying
such a policy.
Inadequacy of common law
Australia, like many other countries incorporates anti-discrimination
laws aimed at curbing the vice. However, scholars have underlined the
fact that these laws are considerably inadequate in addressing the vice
or even bringing it to an end. Scholars note that all
anti-discrimination statutes incorporated in the world of common law
have borrowed from the 1964 United States Civil Rights Act but lacks the
“faithful reproduction that would have allowed Australian lawyers to
draw from any established body of equality law from the US, and also
lacks the necessary improvements on the model borrowed from the United
States (Rees et al, 2008, pp. 5).
The anti-discrimination statutory schemes in Australia are modeled on
the British antidiscrimination law, especially the Sex Discrimination
Act of 1975, as well as the Race Relations Act (1976), both of which
replicate a large number of flaws that are present in the enactments.
The four distinctive commonwealth antidiscrimination statutes in
Australia that prohibit discrimination on varied prescribed grounds are
considerably new and include the Age Discrimination Act 2004, Disability
Discrimination Act (1992), Sex Discrimination act (1984) and Racial
Discrimination Act (1975). On the same note, every territory and state
has put in place one general statute that prohibits individuals from
exercising discrimination in public life on considerably broader grounds
than the ones that the Commonwealth legislation covers(Rees et al, 2008,
pp. 7).
It is worth noting, however, that Australia, like Britain incorporates
no Bill of Rights, in which case it has not entrenched or constitutional
guarantee for equality. Instead, its statutes that prohibit
discrimination come with activity-specific and formalistic prohibitions,
which essentially introduce a number of problems (Allen, 2009, pp 34).
Two of these problems revolve around comparators and causation in cases
of direct discrimination. Scholars note that the comparator requirement
in cases of direct discrimination was derived directly from the British
antidiscrimination laws that had been reworked and renamed in a manner
that would effectively separate it from the American origins (Rees et
al, pp. 82). It revolves around proving that there was differential
treatment or rather a comparatively less favorable treatment accorded to
an individual. This essentially introduces too much complexity as such
cases would require than a plaintiff provides proof that would allow for
the identification of a similarly situated comparator that does not have
the protected characteristics as the ground for the claim of
discrimination. The conclusive nature of the comparator question is
clearly evident in the case Purvis v New South Wales (2003), where the
appellant had been excluded in school thanks to his persistent assaults
on teachers and other pupils (Rees et al, 2008, pp. 8). He had claimed
that this was unlawful discrimination according to the Disability
Discrimination Act, Section 22, stating that his behavior resulted from
a brain damage that he suffered in infancy after an accident. However,
the respondents reiterated that the plaintiff’s disability was not the
predisposing reason for his being excluded rather it was the genuine
threat that he posed to teachers and other students (Allen, 2009, pp
36). However, the Australian High Court, by majority dismissed the
appeal stating that the exclusion of the pupil was not based on his
disability but instead it was based on the genuine threat that he posed
to teachers and other pupils. In this case, the jury seemed to underline
the fact that disability has to be reason for the discriminatory
practice, rather than the causal factor for the predisposing factor
(Chin, 2004, pp. 58).
The causation issue has a close relationship with the comparator
question and has introduced a number of problems to the Australian law.
First, it is extremely difficult or even impossible to determine the
state of mind of an individual at any time (Hastrup, 2002, pp. 35).
Scholars note that human motivations are extremely complex, in which
case it would be difficult to ascribe discriminatory conduct to one
ground or reason, not to mention the difficulty of finding evidence that
directly points at discrimination. Indeed, rarely will individuals admit
such discrimination, especially considering that sometimes such actions
will not be ill-intentioned rather they would be based on assumptions
pertaining to the inability of an individual to “fit in”, not to
mention that a large part of discrimination takes place unconsciously,
ignorantly or thoughtlessly(Allen, 2009, pp 41). This is worsened by the
fact that the language that antidiscrimination statutes use in Australia
is not only imprecise but could also have different meanings.
Exceptions/ Allowances for discrimination
As much as discrimination is recognized as a vice, there are instances
where the attributes, grounds and circumstances of the act may be taken
into account as seen as relevant (Nelson, 2009, pp. 47). For instance,
while employers are required to make reasonable efforts to accommodate a
disabled individual that may have the capacity to carry out his duties
in spite of his disabilities, the Disability Discrimination Act of 1992
allows exceptions in instances where the disability makes an individual
incapable of undertaking the inherent requirements with which a certain
job comes (Stewart, 2013).
On the same note, the Sex Discrimination Act 1984 exempts discrimination
in instances where being of a particular gender amounts to a genuine
occupational qualification for a certain job, or instances where some
privileges and rights are given to a woman by virtue of her pregnancy
(Stewart, 2013).
In addition, temporary exemptions may be granted according to Racial
Discrimination Act of 1975 in instances where there exists genuine
national security concerns or when there is a regulation on the same
(Stewart, 2013).
Prohibited Conduct/
Prohibited conduct revolves around direct discrimination with section 17
(1) of the Anti-discrimination Act 1998 prohibiting individuals from
engaging in conduct that would humiliate, offend, ridicule, insult or
intimidate another person based on gender, relationship status,
breastfeeding, parental status, marital status or even family
responsibilities in instances where a reasonable individual would have
anticipated the victim would be ridiculed, offended, insulted,
intimidated or humiliated (Nelson, 2009, pp. 47). For instance, where a
landlord declines to rent out his house to a single mother saying that
they would not want a single mother who has a grubby kid in the house as
the kid will damage furniture and fitting.
The prohibited grounds of discrimination underlines the grounds under
which discrimination has been rendered unlawful under the law, and may
include race (descent, color, ethnic or national origin), family
responsibilities, disabilities, sex (potential pregnancy, pregnancy,
marital status), or age. Discrimination is prohibited on ten grounds,
according to Article 2 UDHR including color, race, religion, language,
sex, political (or other) opinion, birth, property, social or national
origin or other status (Hastrup, 2002, pp. 35).
Consolidation of laws: Reasons
In 2011, the Federal Government formally started the process of Federal
Antidiscrimination Legislation consolidation, seeking the input and the
views of the community. At the Federal Level, the anti-discrimination
law was regulated by five legislations especially with regard to
employment apart from the Fair Work Act (2009). These include the Age
Discrimination Act 2004, Disability Discrimination Act 1992, the
Australian Human Rights Commission 1986, Sex Discrimination Act 1984 and
the Racial Discrimination Act 1975. The multiplicity of the laws
resulted in overlap and inconsistencies (Allen, 2009, pp 56). This
forced the government to seek to amalgamate the laws into a single
all-inclusive law in the hope that this would clarify protections, lower
complexities, as well as ensure that businesses have sufficient
assistance in comprehending and implementing their obligations.
Scholars have noted that there have been complains as to the
definitions of indirect and direct discrimination as used currently in
the anti-discrimination laws especially regarding their uncertainty,
complexity and inconsistency. For instance, there are questions on
whether the current tests aimed at establishing indirect and direct
discrimination should still be taken as separate concepts or replaced
with a combined test to determine unlawful discrimination. If the
unified test is unhelpful in enhancing the clarity of the obligations
under antidiscrimination laws, the government considered whether
consistency and clarity would be achieved through enhancing the current
definitions (Nelson, 2009, pp. 47).
In addition, the consolidation looks at the probability of shifting the
burden of proof from the complainant to the respondent, where the
respondent would be required to show that their actions were not
discriminatory after the complainant outlines other aspects of indirect
and direct discrimination (Fredman, 2011, pp. 38).
Moreover, the consolidation aimed at introducing a new positive duty
for organizations to act. There already was a positive duty as outlined
in the Equal Opportunity Act (2010) in Victoria, which required
duty-holders to take proportionate and reasonable measures to curb
sexual harassment, unlawful discrimination, as well as victimization.
The consolidation considered the necessity of public sector institutions
incorporating positive duties to curb harassment and discrimination.
On the same note, the consolidation aimed at expanding the
antidiscrimination law through increasing the protected attributes
(Fredman, 2011, pp. 38). Indeed, it aimed at including gender identity
and sexual orientation as protected discrimination attributes in the
consolidated law. Indeed, there were questions on whether there should
be an extension of the protected attributes so as to make it unlawful
for an individual to discriminate others on the basis of industrial
activity, political opinion, religion, medical record, nationality and
criminal record.
In addition, a unitary exemption would be introduced with the
consolidation process seeking support for an approach that would replace
the different exemptions with one general limitation clause (Fredman,
2011, pp. 38). A court would, using that clause, consider whether the
particular discriminatory action aimed at achieving a legitimate
objective, or whether it makes up a proportionate way of achieving the
objective.
Lastly, the consolidation aimed at enhancing the effectiveness of the
compliance framework. Current anti-discrimination laws have been
criticized as failing to offer businesses sufficient assistance in
meeting their obligations as duty holders (Fredman, 2011, pp. 38). In
this regard, the consolidation aims at allowing the duty-holder to make
a voluntary and non-binding submission on the actions to AHRC that would
allow businesses to enhance their procedures and policies. On the same
note, it would introduce a co-regulation scheme where the varied
industry bodies would come up with industry specific codes or mechanisms
that would supplement the antidiscrimination legislations, and which
would not only be binding but also regulated by the AHRC.
Who is affected by the actions of courts (Systemic Discrimination?)
Courts have the sole role of interpreting the laws and determining
whether an action was discriminatory, as well as whether there was a
legitimate or objective reason for the action. However, in certain
instances, it makes judgments that would institutionalize
discrimination. This is essentially called systematic discrimination,
which essentially involves a pattern, class, policy or practice in which
an alleged discriminatory action would have a broad impact on the
industry, company, geographic area, or profession (Plous, 2003, pp.34).
Systemic discrimination would involve practices such as discriminatory
barriers in hiring and recruitment, exclusion of qualified ladies from
fields of work that are conventionally male dominated, compliance with
the preferences of a customer leading to discriminatory assignment or
placements. Needless to say, the companies within which individuals work
and the individual employee would be the most affected as courts make
decisions pertaining to the rights, obligations and duties that
particular parties have in their relationships in an effort to curb
discrimination.
Work schedules and discrimination
The work schedules imposed in a large number of companies where
individuals would be required to work from Monday to Friday and even
Saturdays would be considered discriminatory to Jews especially
considering that they have specific religious beliefs as to the
timeframes within which they should be working (Plous, 2003, pp.34).
Indeed, they believe that they should be resting on Saturday and no work
should be done this day. In this case, such work schedules would be
considered indirectly discriminatory as they impose requirements that
limit the capacity of Jews to participate thereof (Hastrup, 2002, pp.
56). Unfortunately, such cases increase the complexity of
antidiscrimination laws especially considering that different societies
or religions will have varying beliefs and cultures and practices.
Real Meaning of Equality
Needless to say, the true meaning of equality gets lost in the myriad of
complexities pertaining to discrimination. Indeed, the exemptions and
provisions of varied laws make it difficult to determine exactly what
would encompass equality (Fredman, 2011, pp. 38). Nevertheless, equality
would essentially revolve around fairness of individuals in dealing with
others while considering the implications of such actions or rather the
requirements of the environments that demand such actions. In this case,
individuals would be considered equal in so far as they meet the
necessary requirements of the varied employment fields (Fredman, 2011,
pp. 38). For instance, it would be unfair to expect pregnant women to
undertake physically challenging jobs, in which case they would have to
be excluded from such jobs even in instances where they may have met
other requirements as their condition limits their capacity to function
appropriately and optimally.
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