Page 1870 - Week 06 - Wednesday, 8 June 2016
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The Discrimination Amendment Bill therefore includes changes identified as suitable for initial introduction as part of a first stage. The amendments in this bill are about clarifying the objects and application of the existing protections and processes, and promoting consistency with developments in other jurisdictions. New protected attributes are also included, reflecting changing community values. Protections against victimisation and vilification in this bill are enhanced.
I will now turn to the provisions of the bill itself, and give a brief outline of their operation.
The bill amends the objects of the Discrimination Act to explicitly refer to the right to equality and non-discrimination in the Human Rights Act. The objects are refocused into high level aims of eliminating discrimination to the greatest extent possible and in all forms; specific references to gender equality and sexual harassment in particular are removed.
The objects recognise that the aim of discrimination law is not just the application of the same laws or conditions to everyone, but that substantive equality and equity must be progressively realised through the making of reasonable adjustments, reasonable accommodations and taking special measures to overcome existing social and economic disadvantage.
The bill includes a new explicit requirement that the act be interpreted in a way that is beneficial to people who have protected attributes to the degree that the interpretation is consistent with the objects of the act, the Human Rights Act and other rules of legislative interpretation.
This provision will encourage people applying the act, including the ACT Civil and Administrative Tribunal, to do so in keeping with its spirit—that is, to support vulnerable or marginalised members of society to enforce their rights not to be arbitrarily excluded from society because of discrimination. The act should not be interpreted narrowly or in a way that restricts the exercise of the rights in it.
The bill contains several amendments to recognise that discrimination is often complex and multifaceted in that it can occur on more than one ground, or over a series of acts, which may be impossible to isolate, or to clearly distinguish as either direct or indirect discrimination.
For example, the definition of discrimination in section 8 has not fundamentally changed, but the drafting has been clarified to draw a greater distinction between direct and indirect discrimination. It now recognises that a person may be discriminated against on the basis of one or more attributes. This marks a shift in the Discrimination Act and the complaints process in the Human Rights Commission Act 2005, from requiring a person to identify a very narrow instance of discrimination or specific reason for the discrimination to a recognition that people may be discriminated against on the basis of multiple attributes. The intention is to make the complaint process simpler for people who have multiple protected attributes and to prevent inefficiency that may result from the commission having to deal with multiple complaints arising from the same circumstances.
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