INTRODUCTION
2.1 Discrimination law, like any other law, does not operate in a vacuum. It is influenced and affected by changing community needs. It is also affected by other areas of the law. Two areas of the law that have a significant impact on discrimination law and practice are constitutional law and industrial relations law. Australia’s international human rights obligations also exert considerable influence on discrimination law. This chapter considers the impact of these other areas on discrimination law, with particular emphasis on their impact on the Anti-Discrimination Act 1977 (NSW) (“the Act”).
THE CONSTITUTION AND DISCRIMINATION LEGISLATION
Federal and state discrimination legislation
2.2 The Australian Constitution (The Constitution of the Commonwealth of Australia Act 1901), creates two levels of government, federal and state, both having powers to make laws. Federal and state governments have both enacted discrimination legislation. The federal discrimination statutes presently in force are the following:
Racial Discrimination Act 1975 (Cth);
Sex Discrimination Act 1984 (Cth);
Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth); and
Human Rights and Equal Opportunity Commission Act 1986 (Cth).
The Disability Discrimination Act 1992 (Cth) has also recently been enacted and certain provisions commenced operation on 26 November 1992; the operative provisions of the Act will commence on 1 March 1993.
All states and territories, except Tasmania, have discrimination legislation; the Northern Territory will be the most recent entrant into the field when its discrimination legislation, which was passed by Parliament on 17 November 1992, is assented to in 1993.
From where does the Commonwealth derive its legislative power?
2.3 The main source of power that enables the Commonwealth to legislate in the field of equal opportunity and anti-discrimination emanates from s 51(xxix) of the Australian Constitution. That provision enables federal legislation to be enacted with respect to “external affairs” and permits the Commonwealth Government to ensure that international obligations assumed by Australia are given effect throughout the country. It is this power that provides the most common basis for the discrimination statutes enacted by the Commonwealth.
2.4 Federal discrimination legislation also derives validity from other heads of legislative power in the Constitution. For instance, s 5 of the Racial Discrimination Act 1975 (Cth) draws on the power in s 51 (xxvii) of the Constitution with respect to immigration and emigration; similarly s 9 of the Sex Discrimination Act 1984 (Cth) draws on a variety of heads of power, such as the trade and commerce power and the corporations power. The courts have also held that, where an international obligation deals with a subject matter within Commonwealth power, even if the matter is not within a direct head of Commonwealth power, the Commonwealth may legislate to give effect to the obligation.
2.5 Although the Commonwealth has enacted various statutes affording protection against different kinds of discrimination, the Constitution says little about human rights and nothing about equal opportunity or discrimination against individuals in express terms. However, in the recent landmark decision of Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) (1992) 108 ALR 577, the High Court ruled that the Constitution provides an implied right to free political speech. This decision has prompted speculation as to whether other human rights and a wider range of protections are implied in the Constitution.
AUSTRALIA’S INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND DISCRIMINATION LEGISLATION
How are international obligations assumed?
2.6 International obligations arise when the Commonwealth Government signs and ratifies an international convention or treaty. Thus, when the Commonwealth Government decides that Australia should become a party to an international convention, it also takes on responsibility for the implementation of the convention. The Commonwealth can then enact the provisions of such conventions (to which it is a party) into domestic legislation. The legislation must conform with the conventions, though not necessarily in precise terms.
What is an international convention?
2.7 An international convention is an agreement between different countries to regulate or make rules about matters of common interest. By ratifying a convention, a country undertakes to comply with the terms of the convention. In the Australian context, this can only be done by the Commonwealth Government since it is the only entity that possesses full international personality.
International Conventions applicable to federal discrimination legislation
2.8 The Racial Discrimination Act 1975 (Cth) gives domestic effect to Australia’s ratification of the International Convention on the Elimination of All Forms of Racial Discrimination, which is attached as a schedule to the Act. One of the stated goals of the Sex Discrimination Act 1984 (Cth) is to give effect to Australia’s ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, which is similarly attached as a schedule to that Act. The Disability Discrimination Act 1992 (Cth) provides that certain provisions of the Act have effect in relation to discrimination against people with disabilities, to the extent that the provisions implement Australian responsibilities under certain international instruments. Most notably, these are the United Nations International Covenant on Civil and Political Rights and the International Labour Organisation Convention concerning Discrimination in respect of Employment and Occupation. The Human Rights and Equal Opportunity Commission Act 1986 (Cth) established the Human Rights and Equal Opportunity Commission to administer the federal discrimination legislation. It promotes human rights as defined by the international instruments which are annexed as schedules to the Act:
- International Labour Organisation Convention concerning Discrimination in respect of Employment and Occupation;
- International Covenant on Civil and Political Rights;
- Declaration of the Rights of the Child;
- Declaration on the Rights of Mentally Retarded Persons; and
- Declaration on the Rights of Disabled Persons.
Importance of International Conventions
2.9 Since international conventions represent the collective aspirations and experiences of the world community on matters of common interest, they are a valuable source of legal principles. It must be noted, however, that Australia’s international obligations are not limited to the conventions named above. For instance, in December 1990, Australia ratified the United Nations Convention on the Rights of the Child. There is no specific enabling legislation as yet, but the terms of the Convention will still influence Australia’s domestic laws and policies. However, although legislation is not always necessary to comply with a convention, a convention does not become part of Australian law or create any enforceable rights and duties in the absence of specific implementing legislation.
2.10 In the context of Australian discrimination law and practice, the importance of international conventions is three-fold, in that:
- the objectives of the conventions are furthered in discrimination legislation;
- avenues of international supervision are provided; and
- the development of the common law is influenced.
These effects are discussed in more detail below.
Furtherance of objects of conventions in discrimination legislation
2.11 The impact of international conventions on federal discrimination legislation arises because the federal legislation is, to a large extent, based on the terms of these international conventions. The obligations contained in the conventions are therefore important to ensure a good understanding of the scope and correct interpretation of the federal legislation. Although most states and territories have passed legislation in relation to equal opportunity and anti-discrimination, they are not constitutionally bound to do so. States and territories that have no discrimination legislation of their own are governed by the federal discrimination legislation. International conventions consequently have an impact on the Commonwealth and on those states and territories without their own discrimination legislation.
2.12 In those states and the Australian Capital Territory which have their own discrimination legislation, soon to be joined by the Northern Territory, there is no restriction on the use of federal discrimination legislation, provided a complaint has not also been made under state legislation. Thus, the conventions upon which federal legislation is based can have an impact even on states and territories which have their own discrimination legislation, to the extent that federal legislation is relied on by a complainant in that jurisdiction.
2.13 With regard to the impact of international conventions on state discrimination legislation, s 6A(1) of the Racial Discrimination Act 1975 (Cth) and s 11(3) of the Sex Discrimination Act 1984 (Cth) provide that the respective Acts are “not intended to exclude or limit the operation of a law of a state or territory that furthers the objects of the Convention [upon which the federal Act is based] and capable of operating concurrently” [emphasis added]. Thus, to the extent that states enact discrimination legislation on a subject dealt with by the federal legislation based on a convention, the state legislation on the same subject must further the objects of the convention, to avoid inconsistency with the federal legislation. As Dr Gavan Griffith QC, the Commonwealth Solicitor-General, commented:
State law which is inconsistent with Australia’s treaty obligations will also, ex hypothesi, be inconsistent with any Commonwealth legislation implementing those obligations and the State law will be overridden through the operation of section 109 of the Constitution. Conversely, to the extent that Commonwealth legislation fails to implement treaty obligations, State law can be inconsistent with the unimplemented international obligation without being inconsistent with the Commonwealth law. (“Dancing Through the Minefield - Can Co-operative Federalism Work?”, paper presented at the Conference Human Rights - the Australian Debate, University of New South Wales, 10 December 1985).
2.14 The impact of international conventions on state discrimination law is therefore limited to the extent that the federal legislation deals with the same subject matter, in fulfilment of an obligation imposed by convention. Thus, as Dawson J said in the case of Gerhardy v Brown (1985) 57 ALR 472 at 541:
... except to the extent that the Commonwealth has exercised its legislative power with respect to that subject matter, the exercise by the States of their legislative powers with respect to the same subject matter has no relevant limits and is not subject to any of the requirements of the Convention [the International Convention on the Elimination of All Forms of Racial Discrimination].
2.15 The issue of co-operative implementation of treaty obligations by federal and state laws has also been given some judicial support, adding weight to the impact of conventions on both federal and state discrimination law. In this respect, Dr Griffith, in the paper referred to at para 2.13, also noted that:
[t]he external affairs power should support a Commonwealth law which demonstrably ensures that Australian law as a whole fulfils treaty obligations ... there is some judicial support for the view that a Commonwealth law under the external affairs power should ensure that laws giving effect to treaty obligations are uniform in their operation within the States.
Avenues of international supervision
2.16 The signing by Australia of the First Optional Protocol to the International Covenant on Civil and Political Rights has given Australian citizens and residents the right to complain to the United Nations Human Rights Committee about the violation of rights set out in the Covenant. The Committee only considers complaints between individuals and the government. Complaints concerning actions between private individuals are outside the scope of the Committee. It is also a pre-requisite that all domestic remedies must be exhausted before a case can be taken to the Human Rights Committee. Despite these and other limitations, the availability of this remedy is considered to be an avenue whereby Australian courts and Parliaments will be influenced by international human rights law.
Development of common law
2.17 An emerging trend that reveals the influence of international conventions (to which Australia is a party) concerns the use of such conventions in domestic law. This may arise in the courts through the development of the common law, when judges interpret statutes that are ambiguous and where there is a gap in the common law. It may also arise through Parliament, where laws are drafted with an awareness of international human rights standards.
2.18 The recent High Court decision of Mabo v The State of Queensland (1992) 66 ALJR 408, seems to point to the future development of Australian common law in keeping with international conventions and the extent to which they can influence Australian domestic law. Writing with the concurrence of Chief Justice Mason and Justice McHugh, Justice Brennan said, at 422:
[t]he common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law, especially when international law declares the existence of universal human rights.
2.19 The more recent High Court decision of Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2), referred to above in para 2.5, further reveals that the courts are becoming increasingly aware of, and responsive to, human rights standards and values. A majority of the Court found that the political system established by the Constitution carried an implied guarantee of freedom of discussion of political affairs, leaving open the possibility that the Constitution may also contain other human rights guarantees. For further discussion on the impact of international conventions on the development of the common law, see the articles by Justice Kirby listed in the “Background Reading” section at the end of this chapter.
Issues for consideration
- Impact of international conventions on discrimination law
Question 1
(a) Are there instances of inconsistency between the Anti-Discrimination Act 1977 (NSW) (“the Act”) and the terms of the Conventions upon which the parallel federal Acts are based?
(b) If so, how should such inconsistencies be addressed?
Question 2
(a) Should the focus of the Act be widened by implementing principles contained in other international instruments to which Australia is a signatory?
(b) If so, which particular international instruments should the Act recognise and implement?
Question 3
(a) As stated in one submission, should human rights standards contained in international conventions continue to influence the interpretation of domestic law?
(b) If so, should this be done within the parameters of the common law, as is presently the case, or should it be done by statutory enactment, perhaps by an amendment to the Interpretation Act 1987 (NSW), or both?
FEDERAL AND STATE LAWS - A PROBLEM?
The problem of inconsistency
2.20 As stated above, since the Constitution has created federal and state governments, the Commonwealth and the states are both able to legislate on a whole range of issues. Such legislation may sometimes be inconsistent. The inconsistency may be between federal and state legislation on the same subject matter (such as a provision in the Racial Discrimination Act 1975 (Cth) and a provision relating to race in the Anti-Discrimination Act 1977 (NSW)), or between federal and state legislation on different subject matters (such as a provision in a federal Act other than discrimination legislation which offends a prohibition of discrimination contained in the Anti-Discrimination Act 1977 (NSW)).
2.21 Section 109 of the Constitution provides that, in the event of inconsistency between a law of the Commonwealth and a law of a state, the former shall prevail. Despite s 109, the High Court has had to consider the issue of inconsistency on many occasions.
Inconsistency between federal and state discrimination laws
2.22 As stated earlier, most states, the Australian Capital Territory and the Northern Territory have enacted discrimination legislation in addition to the federal discrimination legislation. This gives rise to the problem of inconsistency between federal and state discrimination laws.
2.23 In Viskauskas v Niland (1983) 153 CLR 280, the High Court considered the issue of inconsistency between federal and state laws and held that the racial discrimination provisions of the Anti-Discrimination Act 1977 (NSW) were inconsistent with the Racial Discrimination Act 1975 (Cth). That decision resulted in an amendment to the Racial Discrimination Act. The amendment made it clear that a state or territory law, which furthers the objectives of the International Convention on the Elimination of All Forms of Racial Discrimination (which was ratified by the Commonwealth) and is capable of operating concurrently with federal law, can stand alongside the federal law. Similar provisions were included in the Sex Discrimination Act 1984 (Cth) when it was enacted and more recently in the Disability Discrimination Act 1992 (Cth).
2.24 Despite legislative efforts to solve the problem of inconsistency, it still exists. In the first instance, the provision for concurrent operation does not avoid the difficulties of direct inconsistencies. There is also a more important limitation arising out of the external affairs power. The courts have held that the validity of an Act depends largely on the implementation of a convention, whose terms require equal operation throughout Australia. However, achieving equal operation of anti-discrimination laws Australia-wide is a problem. Currently all states (except Tasmania), the Australian Capital Territory and the Northern Territory have discrimination legislation. Consequently, the Commonwealth’s intention to preserve state legislation results in uneven operation of discrimination laws. This is because the law in the states which have preserved anti-discrimination laws will differ from the law in the states which have no anti-discrimination law to be preserved. The problem of uneven operation could also extend to states which do have anti-discrimination legislation, if the provisions in the various state laws are not identical with one another.
An illustration of the problem:
This problem can be illustrated by an exception to discrimination in the area of employment on the ground of sex as follows:
Section 30 of the Sex Discrimination Act 1984 (Cth) permits what would otherwise be unlawful discrimination on the ground of sex where a person’s sex is a genuine occupational qualification for the job. Section 30(2) expands on the exception to include the following circumstances:
- the occupant of the position is required to live on the premises;
- there are no separate sleeping/sanitary facilities;
- persons of one sex already occupy the premises;
- it is not reasonable to expect separate facilities to be provided by the employer.
The Equal Opportunity Act 1984 (WA), the Anti-Discrimination Act 1991 (Qld) and the Discrimination Act 1991 (ACT) contain almost identical provisions.
The Equal Opportunity Act 1984 (SA) has a defence of genuine occupational qualification but does not go as far as the Commonwealth, Western Australia, Queensland and the ACT and will therefore be subject to judicial interpretation.
The Anti-Discrimination Act 1977 (NSW) contains the defence but omits the requirement that persons of the relevant sex already occupy the premises.
The Equal Opportunity Act 1984 (Vic) has no equivalent provision.
Would the above state legislation be able to operate concurrently with the Commonwealth Sex Discrimination Act 1984?
If the respective provisions apply in the various states, the resultant position will be the operation of uneven exemptions Australia-wide and direct inconsistency between the Victorian Equal Opportunity Act (and to a lesser extent the New South Wales Anti-Discrimination Act) and the Commonwealth Sex Discrimination Act.
The Sex Discrimination Act 1984 (Cth) provides that state laws dealing with sex discrimination will be valid unless there is direct inconsistency with the federal Act. In other words, identical provisions will be valid and therefore preserved by the federal Act.
If only the identical provisions are valid and therefore preserved, there would still be uneven operation since the other states will not have such identical provisions capable of being preserved.
If only the identical provisions are preserved, and if the federal law operates in the states with unpreserved or no legislation, what purpose is served by the presence of separate state and federal laws in the area of anti-discrimination?
Issues for consideration
- Inconsistency between federal and state discrimination laws
Question 4
How best can the constitutional inconsistencies described above be avoided?
Question 5
In a federal system such as ours, where should the responsibility lie for ensuring the proper protection of rights and freedoms? Is it something for which the Commonwealth Government should be solely responsible for by enacting legislation across the nation, should it be a state matter or should the responsibility be shared between the Commonwealth and states? In other words, should there be federal and/or state legislation on anti-discrimination?
Question 6
(a) Should New South Wales repeal its legislation to the extent that it deals with matters covered by federal discrimination legislation (ie the provisions in the Anti-Discrimination Act 1977 (NSW) concerning race, sex and disability)?
(b) Conversely, should the Anti-Discrimination Act 1977 (NSW) mirror the federal discrimination law in all aspects, except where it is superior?
Other sources of inconsistency
Federal legislation (other than discrimination legislation) and state discrimination legislation
2.25 Another area in which the problem of inconsistency arises is between federal legislation (other than discrimination legislation), and state discrimination legislation. Such inconsistency can result in circumstances that could undermine the effectiveness of state discrimination legislation. This is because the same principles of constitutional law apply - that is, that federal Acts prevail over the state Acts, even if it results in a discriminatory situation.
An illustration of the problem:
The problem of conflict between federal legislation (not dealing with discrimination) and state anti-discrimination legislation is well illustrated by reference to the case of Dao v Australian Postal Commission (1987) 162 CLR 317. In that case the Australian Postal Commission determined (among other things) standards for minimum body weight of prospective employees of the Commission, pursuant to the requirements prescribed by the Postal Services Act 1975 (Cth). Two Vietnamese women were denied employment since they failed to meet the minimum body weight requirement and alleged discrimination on the grounds of race and sex under the Anti-Discrimination Act 1977 (NSW). Both the Supreme Court of New South Wales and the High Court held that the Anti-Discrimination Act had no application in this case due to its inconsistency with the federal Act, which prevails.
Federal awards and state discrimination legislation
2.26 Federal legislation includes federal awards because they are made under a federal Act. Thus, a federal award may override state anti-discrimination legislation if it appears that the award was intended to exhaustively cover the employment relationship. (For further discussion and issues for consideration on industrial relations issues, see paras 2.38 - 2.75.)
State discrimination legislation and other state legislation
2.27 In New South Wales, another source of inconsistency is other New South Wales legislation. Section 54 of the Anti-Discrimination Act 1977 (NSW) provides that acts done under statutory authority are excepted from the operation of the Act. Thus, discriminatory conduct, if authorised by statutory authority, will override the provisions of the Anti-Discrimination Act by virtue of the exception provided by s 54 of the Act. (See also discussion on General Exceptions in Chapter 4 of this Paper.)
Issues for consideration
- Inconsistency between the Anti-Discrimination Act 1977 (NSW) and other New South Wales legislation
Question 7
Section 26 of the Sex Discrimination Act 1984 (Cth) renders unlawful the exercise of power under a Commonwealth law or program (conducted on behalf of the Commonwealth Government) if it results in discrimination on the grounds prohibited by that Act.
(a) Should a similar compliance requirement be included in the Anti-Discrimination Act 1977 (NSW) whereby other New South Wales legislation, awards and programs, will be required to comply with the Act, rather than be excepted and allowed to override it?
(b) Should such a compliance requirement be subject to exceptions?
(c) Would such a proposal have other ramifications that need to be considered?
(d) Is there a better way of resolving the problem of inconsistency?
Which law applies - federal or state?
2.28 Apart from the problem of inconsistency, another issue which arises out of the federal system is the choice of jurisdiction. With federal and state discrimination laws dealing with much the same subject matter, at least in the case of race, sex, and now disability, the complainant is often confronted with having to choose between federal and state legislation.
2.29 Various factors can influence this choice, including the range of grounds, the exceptions to those grounds, the areas of operation, the range of remedies available and the processing time. Making the right choice is important, particularly because the federal discrimination Acts (Race, Sex and Disability) prohibit an action being brought under their provisions where action has already been taken under state legislation regarding the same matter. State legislation does not have this restriction. It is therefore possible to initiate action under state legislation if action under federal legislation is unsuccessful.
2.30 In most states where there is a choice, a form of “co-operative federalism” exists, whereby the Commonwealth and states enter into agreements for mutual benefit. In Queensland, for instance, the functions of the Anti-Discrimination Commission established under the Anti-Discrimination Act 1991 (Qld) are undertaken by the Queensland office of the federal Human Rights and Equal Opportunity Commission (“the Commission”). In New South Wales, the agency arrangement (no longer in force) between the Commission and the New South Wales Anti-Discrimination Board (“the Board”) was also a typical example. This arrangement gave the Board the right to investigate complaints covered by federal laws or New South Wales law. It was cost effective and provided a single point of access for complainants. This was the case in New South Wales until 30 June 1991 when the Board ceased to be the “agent” of the Commission.
2.31 The present position in New South Wales is that the Commission has assumed responsibility for complaints lodged under the federal discrimination legislation. Consequently, complainants who lodge complaints with the Board are arguably precluded from transferring that complaint to the Commission and proceeding under the federal legislation. The issue of inconsistency of application in terms of the differences in the provisions of the federal and New South Wales anti-discrimination legislation is therefore of much more significance than it was while the Board was the agent of the Commission. For example, the Racial Discrimination Act 1975 (Cth) prohibits discrimination on the ground of race of a person’s relative or associate. The Anti-Discrimination Act 1977 (NSW) does not include comparable provisions. Similarly the federal provisions permit the Race Discrimination and Sex Discrimination Commissioners to require the production of information or documents, whereas there is no equivalent provision in New South Wales. These factors will no doubt have some bearing on the choice to be made by the complainant.
Question 8
(a) If federal and state anti-discrimination laws are to continue to operate concurrently, should some form of co-operative federalism be achieved?
(b) Is the Queensland arrangement a suitable model?
Question 9
Are there other appropriate legislative and administrative arrangements by which the responsibility of protecting human rights can be efficiently shared, thereby overcoming the problems caused by the need to choose between federal and state legislation?
THE FORM OF DISCRIMINATION LEGISLATION
2.32 Establishing which level of Government (federal or state) should enact human rights or discrimination legislation raises the related issue of the form that legislation should take: constitutionally entrenched equality rights; a general Bill of Rights; specific subject legislation; or a combination of the three?
Constitutionally entrenched equality rights
2.33 At present, equality rights are not enshrined in the federal or state Constitutions. However, following the recent landmark decision of the High Court in Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2), referred to in paras 2.5 and 2.19 of this Paper, Justice Toohey, one of the judges who decided the case, said at a constitutional conference in Darwin on 5 October 1992, that it may be possible to construct an implied bill of rights in the Constitution. According to Justice Toohey, the existence of such an implied bill would enable the court to strike down legislation it perceived as an invasion of “fundamental common law liberties”. The Government does not agree that the High Court established a general right to freedom of expression, still less that it can construct an implied bill of rights.
2.34 The Constitutional Commission in its Final Report (Vol 1, 1988) recommended that the Constitution be altered to provide the right to freedom from discrimination on the ground of race, colour, ethnic or national origin, sex, marital status or political, religious or ethical belief. This recommendation was intended to be “confined to the relationship between the individual and the arms of government” unlike the relevant federal and state discrimination laws which are concerned with governmental and other actions between individuals in relation to each other (as defined by the respective Acts). Giving its reasons for this recommendation the Commission stated, at para 489 of its Report:
[t]he purpose of the proposed provision is to ensure consistency in the relationship between the individuals and the arms of government with respect to equality rights throughout Australia ... Whether or not the Federal and State Governments choose to legislate with respect to discrimination, and however the federal and state anti-discrimination laws vary between themselves, there should be a uniform, consistent and entrenched right to equality of the nature we propose.
Bill of Rights
2.35 Simply stated, a Bill of Rights is a means of securing fundamental human freedoms by listing, in general terms, those rights which are to be recognised and declared and providing some mechanism for their enforcement. Its value and worth will depend on the nature of the rights that are identified, the way in which those rights are defined, whether the Bill is to be entrenched in the Constitution (or merely embodied in an ordinary statute) and the mechanisms available for enforcement. The need for a Bill of Rights in Australia at the federal level has been debated for many years, most recently at the Human Rights Conference held in Canberra in July 1992.
A Bill of Rights for New South Wales?
2.36 An emerging issue is the question of State Bills of Rights. Although a federal Bill, establishing national standards, is clearly preferable because it will be capable of being entrenched in the Constitution, it has been suggested that the potential of State Bills of Rights should not be discounted. Addressing the twenty-second Australian Legal Convention in Brisbane, in 1983, Senator Gareth Evans said:
[t]here is indeed a strong case for the enactment (as is the case in most States of the USA) of State Bills of Rights as well. The primary role of any such Bill of Rights would be to set general standards against which legislative enactments and executive behaviour could be tested, and if found wanting, modified or overturned: such Bills should also, if drafted in succinct and accessible terms, play a significant educative role in alerting the community to the nature and importance of those civil and political rights which have been traditionally regarded as crucial in civilised societies.
This issue was also addressed at the Human Rights Conference held in Canberra by Federal Human Rights Commissioner, Mr Brian Burdekin, who said that “the question of a Bill of Rights is not necessarily solely a question for consideration at the federal level in Australia”. Some consideration has been given to this question in Victoria. In Queensland, the Electoral and Administrative Review Commission released an Issues Paper entitled “Review of the Preservation and Enhancement of Individual’s Rights and Freedoms” in mid June 1992. This Paper deals with the question of a possible Bill of Rights for Queensland. However, no definitive results have been achieved in either jurisdiction. At the international level, there are precedents for sub-national Bills of Rights in the USA and Canada, where most, if not all, states or provinces have their own Bill of Rights to complement the federal one.
Specific subject legislation
2.37 An example of specific subject legislation is the form that discrimination legislation presently takes, that is, separate Acts dealing with discrimination only. In the federal arena, discrimination legislation is even more subject specific in that the federal Acts deal with specific types of discrimination (race, sex and disability). In the states and the Australian Capital Territory discrimination legislation deals with all types of discrimination.
Issues for consideration
- Constitutionally entrenched equality rights
Question 10
In view of the multi-cultural nature of Australian society, there are problems of inconsistency between generally accepted equality rights and certain customary practices and traditions of other religions and cultures, for example in relation to the treatment of women. It has been suggested that such inconsistencies may be best addressed by entrenched equality rights.
Question 11
(a) Does New South Wales need its own Bill of Rights, irrespective of whether the Commonwealth enacts a Bill of Rights?
(b) If so, should there be a general Bill of Rights or specific discrimination legislation (as in the Anti-Discrimination Act) or both?
Question 12
Could a Bill of Rights, if agreed upon, be a schedule to the Anti-Discrimination Act with a preamble outlining the principles guaranteeing certain freedoms and rights and including a context in which these freedoms should operate? (For example, explaining that the right to freedom of expression is not absolute and must be limited by the prohibition of racial vilification provisions.)
Question 13
Should a New South Wales Bill of Rights override any New South Wales statute that appears to legislate against its listed freedoms/rights?
INDUSTRIAL RELATIONS AND DISCRIMINATION LEGISLATION
Background
Sources of standards for equal opportunity in employment
2.38 Australia’s policy of equal opportunity and treatment in employment is based, at both the federal and the state level, on international instruments adopted in the field of human rights. The main sources of standards are the conventions of the International Labour Organisation (“ILO”) and of the United Nations (“UN”). The ILO conventions dealing with discrimination in employment, ratified by Australia include:
- Equal Remuneration Convention 1951 (No 100) ratified in 1974;
- Discrimination (Employment and Occupation) Convention 1958 (No 111) ratified in 1973; and
- Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities Convention 1981 (No 156) ratified in 1990.
2.39 The UN conventions dealing with discrimination in employment, ratified by Australia include:
- Convention on the Elimination of All Forms of Racial Discrimination 1965 ratified in 1975;
- International Covenant on Economic, Social and Cultural Rights 1966 ratified in 1976;
- International Covenant on Civil and Political Rights 1966 ratified in 1980; and
- Convention on the Elimination of All Forms of Discrimination Against Women 1981 ratified in 1983.
Implementation of conventions
2.40 Being a signatory to ILO and UN conventions obliges Australia to prevent discrimination in employment. This obligation is fulfilled by implementing some (but not all) of the conventions in legislation relating to anti-discrimination, affirmative action and industrial relations issues.
2.41 Discrimination legislation dealing with discrimination in employment exists nationally and statewide. For instance, the Convention on the Elimination of All Forms of Racial Discrimination, which is annexed to the Racial Discrimination Act 1977 (Cth), provides that measures to promote equality are not to be regarded as discrimination. Accordingly, that provision is included in s 8(1) of the Racial Discrimination Act. The Sex Discrimination Act 1984 (Cth) specifically states that one of its objects is to give effect to the Convention on the Elimination of All Forms of Discrimination Against Women and partly implements the provisions of that Convention relating to employment (the other part is implemented through industrial relations legislation). Complaints under ILO Convention 111 (Discrimination (Employment and Occupation) Convention) and the International Covenant on Civil and Political Rights are dealt with by the Human Rights and Equal Opportunity Commission in pursuance of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), although there is no specific legislation to implement the conventions. Similarly, there is no specific legislation to implement the ILO Convention 156 (Workers with Family Responsibilities) or the International Covenant on Economic, Social and Cultural Rights.
2.42 Equality provisions in the field of employment are also found in industrial relations legislation, labour codes and affirmative action legislation. For instance, part of the Convention on the Elimination of All Forms of Discrimination Against Women dealing with employment is implemented in the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth) and the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth). The Industrial Relations Act 1988 (Cth) also requires the Industrial Relations Commission to have regard to the Sex Discrimination Act 1984 (Cth). The Equal Remuneration Convention (ILO 100) is dealt with by a combination of industrial legislation, awards, determinations and agreements, government policy and administrative arrangements.
2.43 It has been suggested that the impact of international standards in the employment area is diminished in Australia because not all conventions that have been ratified are incorporated into law. Additionally, even when incorporated, they are not implemented fully. Despite these difficulties, the international standards on equality in employment contained in the conventions referred to above, have contributed immensely to the development of Australian discrimination and industrial relations law.
2.44 The importance of international conventions relating to employment has been re-emphasised most recently by the Federal Government’s plan to invoke its external affairs powers to give effect to several such conventions to offer federal protection to workers affected by the new Victorian industrial system. There is some scepticism about the constitutional validity of the proposed legislation. It is nevertheless a further confirmation of the potential impact that international conventions can have in the employment area.
The relationship between industrial relations and discrimination legislation
2.45 The fact that the international conventions relating to employment are implemented in discrimination legislation as well as in industrial relations legislation, shows that the two areas of law have a complementary effect on the employment relationship.
2.46 The aim of discrimination legislation, as far as it relates to employment, is to encourage and ensure equal employment opportunity and non-discriminatory attitudes among all people, so that employment decisions are based on merit and the capacity to perform the job, rather than characteristics that are irrelevant to the job. In seeking to ensure that employment decisions do not lead to unlawful discrimination, the Anti-Discrimination Act 1977 (NSW) (“the Act”) prohibits employment discrimination on certain specified grounds and establishes a complaint system based on dispute resolution by conciliation. The Act also deals with equal opportunity in public employment, makes provision for the exercise of a research and policy function and for community education to promote and eliminate discrimination. (For further discussion see Chapters 3-7 of this Paper.)
2.47 The aim of the industrial relations system is to promote industrial harmony and balance the competing interests of employers and workers. The tools used to realise this balance are the awards and agreements made pursuant to the federal and state industrial relations legislation, which set out the terms and conditions of employment for a defined period of time. In New South Wales, the Industrial Relations Commission ("Industrial Commission") determines matters relating to an industrial dispute referred to it by unions or employers.
2.48 The main feature common to industrial relations and discrimination legislation (federal and state) is that they both affect the employment relationship. Although discrimination in employment is only one of the areas in which discrimination is prohibited under the Anti-Discrimination Act 1977 (NSW), it is, and has consistently been, the main area in which complaints are made. The Annual Report of the Anti-Discrimination Board for 1991/92 confirms that employment-related discrimination outnumbered all other areas of complaint during that period (673 complaints or 54%).
2.49 Issues relating to anti-discrimination and industrial relations were considered in the Niland Green Paper “Transforming Industrial Relations in New South Wales” in January 1990. As stated in the Green Paper:
[w]hile industrial relations has long dealt with the idea of unfair or unequal treatment, not infrequently this results in members of some groups being treated more equitably than others. The past decade, however, has witnessed a considerable widening in the notion of unfair treatment at work: in this sense, community standards are probably changing more rapidly than the precepts and values in the mainstream of industrial relations. A sign of the times is that over half the case load of the Equal Opportunity Tribunal in New South Wales concerns grievances arising from problems at work. ... The principles of equal opportunity and anti-discrimination have become industrial relations issues in the 1980’s in ways that were unthought of a generation ago. The area is likely to become even more critical to industrial relations into the 1990’s.
2.50 The Green Paper led to a range of responses and efforts to deal with the problems identified, not least of which was the enactment of the new Industrial Relations Act 1991 (NSW).
Overlap between industrial relations and discrimination legislation
2.51 Since both industrial relations legislation and discrimination legislation deal with the employment relationship, there is in practice, an inevitable overlap between the two areas of law. As stated in the Niland Green Paper:
[m]ost matters arising out of employment relationships dealt with by the Anti-Discrimination Board and the Equal Opportunity Tribunal could, technically, also be dealt with by the Industrial Commission or the Conciliation Commissioners provided the issue qualifies as an “industrial matter” ...
2.52 Under the new Industrial Relations Act 1991 (NSW), employees working under state awards (apart from those employed in businesses of less than 20 people) can bring complaints of discrimination before the Industrial Commission, if the complainant has gone through an internal grievance handling procedure. The new legislation also allows any person employed under a state award who is dismissed or threatened with dismissal to apply to the Industrial Commission for their claim of unfair dismissal to be dealt with. Thus, a woman dismissed on the ground of pregnancy will be able to pursue an action either in the industrial system or under the Anti-Discrimination Act 1977 (NSW).
2.53 There is also scope for dual litigation. Sections 235-244 of the Industrial Relations Act 1991 (NSW) relate to workers’ compensation for injured employees and allow an employee to commence an action for reinstatement. The employee can also bring a separate action for discrimination on the grounds of physical impairment under the Anti-Discrimination Act 1977 (NSW). There is nothing in either Act to prevent employees bringing actions under both Acts.
2.54 Sections 245-254 of the Industrial Relations Act 1991 (NSW) deal with unfair dismissal. In this context, s 254 provides that the Industrial Commission should reject an application if a person has redress under another Act (such as the Anti-Discrimination Act) and has commenced proceedings under that other Act or has not lodged an undertaking not to proceed under that other Act. However there is nothing in the Anti-Discrimination Act to prevent a person from gaining compensation in the industrial jurisdiction and then commencing proceedings under the Anti-Discrimination Act.
2.55 Given the overlap between the two jurisdictions, one of the most contentious issues about the determination of employment discrimination grievances is the selection of jurisdiction. Some argue that it belongs in the industrial jurisdiction, while others believe it belongs in the discrimination jurisdiction. Still others favour two different but parallel jurisdictions, so that complainants can select the most appropriate, depending on the circumstances of the case. This matter was dealt with in some detail in the Green Paper which considered the issue of choice in the light of the differences and similarities between the two jurisdictions. Some of the notable points of comparison were:
- access - the anti-discrimination jurisdiction gives an individual, but not a trade union, standing to complain; the industrial jurisdiction gives only a trade union standing to act on an individual member’s complaint, thereby responding to collective rather than individual problems;
- process for resolving conflict - both jurisdictions promote conciliation but conciliation officers in the discrimination jurisdiction can only facilitate agreement, whereas in the industrial jurisdiction the Conciliation Commissioner can give determinations;
- evidence - neither jurisdiction is bound by rules of evidence, but the need to determine complex questions of law in the discrimination jurisdiction have sometimes resulted in proceedings in the Equal Opportunity Tribunal being perceived as unduly legalistic;
- outcomes - conciliation and arbitration in the industrial jurisdiction must comply with industrial principles, which often contain provisions that can have a discriminatory effect; determinations in the discrimination jurisdiction must comply with principles of equality which cannot have a discriminatory effect and may sometimes be contrary to accepted industrial principles. Also, although damages can be awarded in both jurisdictions, industrial law generally uses principles of contract law and is therefore restricted to past losses of an economic nature; discrimination law uses principles of tort law which includes past and future losses, and economic and social damages, but with a maximum limit of $40,000.
2.56 Despite the above, the Green Paper noted the effectiveness of maintaining the contribution of both jurisdictions to the eradication of unfair practices in the employment relationship. It stated that in view of the “complex and socially sensitive nature of direct and systematic discrimination” and the “new and path breaking work of the Equal Opportunity Tribunal in bringing forth new and appropriate standards of fairness in the world of work”, the “preferred arrangement is to continue dual jurisdictional coverage”. However, the Green Paper recommended that “particular initiatives to enhance the effectiveness of the work of the Industrial Relations Commission in the area of anti-discrimination, and the provision of better co-ordination arrangements between tribunals in the two jurisdictions” should be considered.
Issues for consideration
- Overlap between industrial relations and discrimination legislation
Question 15
Should joint conciliation be considered with a formal mechanism for referral of conciliation from one jurisdiction to the other?
Question 16
(a) Should there be closer co-ordination and contact between the Anti-Discrimination Board, the Equal Opportunity Tribunal and the Industrial Relations Commission to consider issues of mutual concern, including overlapping jurisdiction?
(b) If so, how can such co-ordination be facilitated?
Question 17
Are there areas in which discrimination in employment is not covered effectively by either jurisdiction?
Question 18
It has been submitted that it is unfair and arguably an abuse of process and not in the public interest for an employer to have to defend two actions arising out of the same set of facts.
Recent trends in industrial relations that impact on discrimination issues
2.57 Major changes have recently occurred in industrial relations, in both federal and state spheres of government. As stated above, the operation of industrial provisions affects equity in employment and has an impact on discrimination issues. Thus, changes that provide safeguards for disadvantaged workers can be understood as complementary to the more individualistic focus of traditional anti-discrimination legislation. Conversely, new industrial relations policies and legislation can fail to embody the principles of anti-discrimination. Some of the more important changes that may have an impact on discrimination issues are noted below.
National Wage decision and enterprise bargaining
2.58 In Australia, centralised wage-fixing systems enable equal pay provisions, without the need for legislation. It has been argued that such centralised systems have permitted incomes policies to address the interests of the low-paid and have consequently benefited many disadvantaged groups.
2.59 New trends in industrial relations have been reflected in the National Wage decisions in recent years. The Australian Industrial Relations Commission, in the National Wage Decision of October 1991, adopted the principle of enterprise bargaining within a regulated framework. Enterprise bargaining refers to the decentralised process through which management and employees (and their organisations, including unions) negotiate and reach agreement about the pay and working conditions to suit the needs of people within the enterprise. According to the Discussion Paper on enterprise bargaining by the Department of Industrial Relations, Employment, Training and Further Education published in 1992, enterprise bargaining focuses the attention of management and employees on recognition of their common interests in the performance of their organisations. Through negotiation, they can agree on how staff may be better organised to achieve the organisation’s objectives, and on industrial conditions which are tailored to those working arrangements.
2.60 The Industrial Relations Act 1991 (NSW) requires that National Wage decisions are to be considered in relation to the conditions of employment. The Industrial Relations Act also supports the introduction of enterprise bargaining. It provides for agreements to be struck through enterprise bargaining and places emphasis on parties accepting greater responsibility for industrial arrangements at the enterprise level.
Impact of enterprise bargaining on disadvantaged groups
2.61 Although enterprise bargaining is now generally accepted as a way for Australian industry to become more productive and competitive, there has been concern that some disadvantaged groups, such as women, would be at a further disadvantage and discriminated against in an enterprise bargaining regime. The National Women’s Consultative Council convened a forum in May 1992 to consider the issues which enterprise bargaining and other methods of wage fixing present for women. In its Interim Outcomes Report (July 1992), the Council has listed some concerns for women workers and strategies to address those concerns. In essence, the concerns arose from the structure of the labour market which places men and women in different circumstances from which bargaining commences. Disadvantages anticipated for part-time workers (which was found to be dis-proportionately female) were liable to have a much greater impact on the female workforce. Similar concerns may be shared by other disadvantaged groups and possibly exacerbated for women from non-English speaking backgrounds, Aboriginal and Torres Strait Islander women and who have a disability.
Awareness of principles of equal opportunity
2.62 A relatively recent trend, both in federal and New South Wales industrial relations law and policy is the requirement to be aware of and implement principles of equal opportunity. Section 93 of the Industrial Relations Act 1988 (Cth) places a specific onus on the Australian Industrial Relations Commission to take account of the principles embodied in the federal discrimination legislation. Section 3 of the Industrial Relations Act 1991 (NSW) includes non-discrimination in its objects as follows:
to promote the conduct of industrial relations in a non-discriminatory manner and to provide for equality of opportunity in employment matters.
2.63 The Industrial Relations Act 1988 (Cth) was also more recently amended by the Industrial Relations Legislation Act 1992 (Cth). One of the aims of the amendment was to facilitate workplace bargaining agreements, to encourage their use in the prevention and settlement of disputes, and to specify the safeguards against proposed agreements that would potentially disadvantage employees. The amendment requires the Australian Industrial Relations Commission to be satisfied that workers covered by an agreement are not disadvantaged, using a ‘test’ of disadvantage, before it certifies such an agreement. The ‘test’ relates to the terms and conditions of employment which are not to be lowered if the certification of the proposed agreement would result in reduction of any entitlements or protection, or if the reduction is contrary to the public interest. This amendment applicable to industrial agreements is consistent with the extension of the Sex Discrimination Act 1984 (Cth) by recent amending legislation (Sex Discrimination and Other Legislation Amendment Bill 1992 (Cth) passed by Parliament on 8 December 1992), to cover federal awards and variations to industrial awards. This amendment will guard against the introduction of discriminatory provisions in new awards.
2.64 Amendments to the Affirmative Action (Equal Employment Opportunity for Women) Act 1986 (Cth), also passed by Parliament on 8 December 1992, are intended to introduce the concept of contract compliance, whereby Federal Government contracts for goods and services and specified industry assistance will only be available to employers who comply with the requirements of the Act.
Other co-operative ventures
2.65 The legislative changes referred to above illustrate the trend towards a co-operative approach between industrial relations and anti-discrimination law, and the importance of both jurisdictions acting in concert to address the complexity of the dynamic area of employment. The value attached to this co-operative approach is further evidenced by the current Inquiry into Pregnancy Discrimination and Maternity Leave which is being jointly conducted by the Anti-Discrimination Board, the Department of Industrial Relations, Training and Further Education and the Women’s Co-ordination Unit in New South Wales.
2.66 In recognition of the high proportion of complaints made to the Anti-Discrimination Board which are employment related, the Board has recently produced Guidelines for Employers. This is a document setting out the principles and law of anti-discrimination and equal employment. The Board has also established a specialist Employers’ Advisory Service and continues to conduct training sessions for managers, make presentations at employers’ conferences and produce a range of employer-related resources.
Issues for consideration
- Implications of recent trends in industrial relations for discrimination law
Question 19
How effective are the new directions in industrial relations from an anti-discrimination perspective?
Question 20
Is the reference to equal opportunity in the objects of the Industrial Relations Act 1991 (NSW) sufficient to oblige the Industrial Relations Commission and the courts to take account of and apply the principles of equal employment opportunity enunciated in the Anti-Discrimination Act 1977 (NSW)?
Impact of awards on discrimination legislation
What is an award?
2.67 Industrial awards are made pursuant to federal and state industrial relations legislation and set out terms and conditions of employment for a defined period of time. Thus, an award will govern and control the employment relationship as to the matters with which it deals, and will expose parties in breach of its clauses to penalties under the relevant industrial relations statute.
Status of awards in relation to the Anti-Discrimination Act
2.68 Awards made under federal legislation have the same force and effect as a federal law. Section 152 of the Industrial Relations Act 1988 (Cth) provides that where a state law is inconsistent with, or deals with a matter dealt with in a federal award, the federal award is to prevail. Thus, if there is an inconsistency between a federal award and the Anti-Discrimination Act 1977 (NSW), the former will generally prevail. In practice, however, it appears that whether a federal award will override state legislation will depend on whether the award intends to exhaustively regulate the relationship between employer and employee. Section 54 of the Anti-Discrimination Act 1977 (NSW) also specifically exempts federal and state industrial awards and agreements (in the case of compulsory retirement, federal awards only) from the operation of the Act.
Inconsistency arising from the operation of awards
2.69 Many industrial awards, federal and state, contain discriminatory provisions. For instance, when the Anti-Discrimination Act came into force, many sex-differentiating provisions were contained in industrial legislation and incorporated into awards. Such provisions included the specification of different basic wage rates for male and female employees, weight limits, amenities, shiftwork and work in lead processing industries. The subordination of the Anti-Discrimination Act to industrial awards in the event of inconsistency raises the possibility of the continuation of such discriminatory provisions entrenched in industrial awards. (For further discussion on s 54, see Chapter 4 of this Paper.) In the federal sphere, the recent extension of the Sex Discrimination Act 1984 (Cth), to cover federal industrial awards, will guard against the introduction of discrimination in new awards.
Issues for consideration
- Inconsistency between industrial awards and discrimination legislation
Question 21
(a) Given that federal and state awards prevail over state discrimination legislation, how can such awards be framed to avoid the problem of inconsistency?
(b) Should consideration be given to the removal of the current exemption for awards and agreements in the Anti-Discrimination Act 1977 (NSW), in keeping with the recent amendments to the Sex Discrimination Act 1984 (Cth)?
(See also the discussion relating to General Exceptions in Chapter 4.)
Impact of occupational health and safety legislation on discrimination legislation
Protective measures
2.70 Protective measures for workers are contained in various ILO conventions. Matters dealt with in the conventions include underground work for women, night work for women employed in industry and maximum permissible weight to be lifted. The ILO Convention 111 expressly permits these protective measures to be continued. The Convention on the Elimination of All Forms of Discrimination Against Women provides for:
the right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.
Thus, many traditional sex-specific provisions were contained in industrial legislation, such as the now repealed Factories Shops and Industries Act 1926 (NSW), and industrial awards when the Anti-Discrimination Act was first introduced in 1977. By virtue of the s 54 general exception in the Anti-Discrimination Act, referred to above, the principles of anti-discrimination were frustrated in the face of such provisions which were justified on the basis of protecting women from hazardous work. They had profound effects on pay equity, the segregation of occupations, the workforce and on the educational system. Thus, protective measures can often operate in a discriminatory manner and have a corollary effect of restricting women’s employment opportunities.
2.71 The ILO view on protective measures expressed at the Meeting of Experts on Special Protective Measures for Women and Equality of Opportunity and Treatment in Geneva (1989) is that it is up to each country to determine what to do about protective provisions. Addressing the Equal Opportunity and Anti-Discrimination in Employment Conference in September 1991, Justice Elizabeth Evatt said:
[t]here is a case for saying that, apart from the protection of pregnancy, the same standards and the same protective provisions should apply to men and women equally, so far as possible.
The new approach
2.72 The older protective and restrictive provisions were contained in a number of statutes and regulations, which were highly prescriptive and also restricted women’s access to employment. The modern approach to occupational health and safety legislation is directed at covering all workers and people entering workplaces. Indeed one of the aims of the Occupational Health and Safety Act 1983 (NSW) is the provision of a system of work that is safe and without risk to health for all employees. Occupational health and safety legislation should not therefore be irreconcilable or inconsistent with equal employment opportunity.
2.73 Efforts have been made in Australia to reconcile occupational health standards with equal opportunity requirements. For instance, the Occupational Health and Safety (Committees in Workplaces) Regulation 1984 (NSW) requires that occupational health and safety workplace committees must take into account the composition of the workplace they are to represent. Although the prescribed factors to be taken into account in determining the composition of the committees do not explicitly refer to grounds of discrimination, their breadth allows for the goal of equal opportunity to be achieved. The Miscellaneous Acts (Sex Discrimination) Amendment Act 1987 (NSW) removed restrictive provisions relating to women working in mining, some provisions in the Factories Shops and Industries Act 1926 (NSW) and some provisions in the Industrial Arbitration Act. On 1 September 1991, the Occupational Health and Safety (Manual Handling) Regulation 1991 adopted the National Standard for Manual Handling and repealed the weight limit provisions in the Factories Shops and Industries Act. The new regulation adopted risk identification, assessment and control rather than gender-based criteria in setting national standards. At the time of writing, the only known restrictions remaining are the regulations concerning women working with lead, and separate amenities in workplaces above a certain number of employees. Despite these and other similar ventures, some anomalies have arisen through occupational health and safety policies that are based on the older theory of protection. (See also the discussion relating to General Exceptions (acts done under statutory authority) in Chapter 4.)
2.74 The links between federal and state legislation and practice, and the consequent inconsistencies and overlaps are evident in occupational health and safety legislation as in discrimination and other legislation. A decision was made at the Special Premier’s Conference in 1991 to work toward national uniformity in occupational, health and safety standards. The issue of national uniformity in this area is also being addressed by the National Uniformity Taskforce.
Issues for consideration
- Occupational health and safety and discrimination legislation
Question 22
(a) Are there difficulties in accommodating principles of anti-discrimination in occupational, health and safety practices and policies?
(b) If so, how can these difficulties be overcome?
(See also Issues for consideration about General Exceptions (acts done under statutory authority) in Chapter 4.)
Industrial policies and discrimination
2.75 Industrial policies, like other government policies, are not always translated into legislation and awards. Nevertheless, they are the driving force behind many administrative arrangements and practices. It has been submitted that industrial policies, whether or not translated into legislation and awards, must be scrutinised to eliminate any discriminatory effects. There is some doubt and confusion amongst employers as to whether certain employment practices and policies conflict with the principles of discrimination legislation. Indeed, the prospect of a policy being overturned for its discriminatory content could raise substantial economic and political implications. It could also lead to a greater interest in compliance with the principles of anti-discrimination.
Issues for consideration
- Industrial policies and practices
BACKGROUND READING
The Constitution and discrimination legislation
Articles and Books
AUSTRALIAN AND NEW ZEALAND EQUAL OPPORTUNITY LAW AND PRACTICE, Vol 1 (CCH Australia Ltd)
AUSTRALIA. CONSTITUTIONAL COMMISSION [Chairman: Sir Maurice Byers] Final Report of the Constitutional Commission, Vol 1 (AGPS, Canberra, 1988)
BRENNAN, G “The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Response”, paper presented at the Conference Australia and Human Rights: Where to From Here? (Canberra, 15-17 July 1992)
BURDEKIN, B “The Impact of a Bill of Rights on Those Who Need it Most”, speech presented at the Conference Australia and Human Rights: Where to From Here? (Canberra, 15-17 July 1992)
McCARRY, G “Landmines Among The Landmarks: Constitutional Aspects of Anti-Discrimination Laws” (1989) 63 Australian Law Journal 327
NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD AND EQUAL OPPORTUNITY TRIBUNAL Annual Report 1991 - 1992
NILAND, C “Federal Co-operative Arrangements on Equal Opportunity and Human Rights: Australian Idealism or Administrative Pragmatism?” in M Wood, C Williamson and C Sharman (eds) Governing Federations: Constitution, Politics, Resources (Hale & Ironmonger, Sydney, 1989)
QUEENSLAND. ELECTORAL AND ADMINISTRATIVE REVIEW COMMISSION Review of the Preservation and Enhancement of Individual’s Rights and Freedoms (Issues Paper, June 1992)
WILCOX, M “The North American Experience: A Personal Reaction”, paper presented at the Conference Australia and Human Rights: Where to From Here? (Canberra, 15-17 July 1992)
Cases
Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) (1992) 108 ALR 577
Commonwealth v Tasmania (1983) 158 CLR 1 (“Tasmanian Dams Case”)
Gerhardy v Brown (1985) 159 CLR 70
Koowarta v Bjelke-Petersen (1982) 39 ALR 417
Metwally v University of Wollongong (1985) 60 ALR 68
Viskauskas v Niland (1983) 153 CLR 280
Australia’s international human rights obligations and discrimination legislation
Articles and Books
ANDERSON, C and ROWE, G C “Human Rights in Australia: National and International Legal Perspectives” in H Schlochauer, I von Munch, O Kimminich and W Rudolf (eds) Archiv Des Volkerrechts (JCBMohr, 1986)
BIRD, G “International Law and the Australian Legal System” 17 (4) Alternative Law Journal 187
COMMONWEALTH SECRETARIAT (LONDON), HUMAN RIGHTS UNIT “Developing Human Rights Jurisprudence: The Domestic Application of International Human Rights Norms” (Judicial Colloquium at Bangalore, 24-26 February 1988)
DOYLE, J J and WELLS, B C “How Far Can the Common Law Go Towards Protecting Human Rights?” to be published in International Human Rights Law in Comparative Perspectives (Oxford University Press)
EASTMAN, K “Human Rights Remedies: A Guide” 17 (4) Alternative Law Journal 169
EDITORIAL “Human Rights in Australia” 7 (5) Criminal Law Journal 241
EVANS, G “Discrimination and Human Rights”, paper presented at the 22nd Australian Convention of the Law Council of Australia (Brisbane, 1983)
GRAY, A “A Victorian Bill of Rights: Judicial Review and Other Issues” (1991) 63 (1) Australian Quarterly 74
GRIFFITH, G “Dancing Through the Minefield - Can Co-operative Federalism Work?”, paper presented at the Conference Human Rights - the Australian Debate (University of New South Wales, 10 December 1985)
KIRBY, M “Human Rights - Emerging International Minimum Standards”, paper presented at the 14th Annual National Conference, The Australian Society of Labor Lawyers (Melbourne, 23 May 1992)
KIRBY, M “Implications for Australia of the Continuing Internationalisation of Human Rights” to be published in International Human Rights Law in Comparative Perspectives (Oxford University Press)
LUCAS, D “What Are Our Human Rights?” (1992) 26 (10) Australian Law News 30
RADFORD, G “International Treaty Obligations and their impact on Anti-Discrimination in Australia”, paper presented at the IIR Conference Practical Anti-Discrimination and the Law (Sydney, 19 March 1991)
Cases
Mabo v The State of Queensland (1992) 66 ALJR 408
See also cases listed above in relation to “The Constitution and discrimination legislation”.
Industrial relations and discrimination legislation
Articles and Books
AUSTRALIA. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Discrimination against Women in the Lead Industry (Occasional Paper 5, 1990)
BERTIN, J E “Reproductive hazards in the workplace” in N Taub and S Cohen (eds), Reproductive laws for the 1990s: A briefing handbook (Humana Press, 1989)
BRAITHWAITE, J and GRABOSKY, P Occupational health and safety enforcement in Australia (Report to the National Occupational Health and Safety Commission, 1985)
BURTON, C The Promise and the Price: the Struggle for Equal Opportunity in Women’s Employment (Allen & Unwin, Sydney, 1991)
CALLUS, R, MOREHEAD, A, CULY, M and BUCHANAN, J Industrial Relations at Work: the Australian Workplace Industrial Relations Survey (AGPS, Canberra, 1991)
EVATT, E “Impact of International Instruments and Bodies on Australian Domestic Law”, paper presented at the Conference Equal Opportunity and Anti-Discrimination in Employment (Sydney, 27 September 1991)
GUNNINGHAM, N “Equal Employment Opportunity and Protective Legislation: Directions For Reform” (1986) 16 Federal Law Review 240
GUNNINGHAM, N and WINDER, C “Protective Legislation and Discrimination in Employment in the Australian Lead Processing Industries: Implications for Future Non Discriminatory Legislation” (1988) 4 (2) Journal of Occupational Health and Safety 175
MACKEN, J J, McCARRY, G and SAPPIDEEN, C The Law of Employment (3rd ed, Law Book Co, 1990)
McCALLUM, R C “Civil Liberties and Industrial Relations; Hein v Jaques Ltd” (1987) 13 (4) Australian Bulletin of Labour 225
NEW SOUTH WALES. DEPARTMENT OF INDUSTRIAL RELATIONS, EMPLOYMENT, TRAINING AND FURTHER EDUCATION Enterprise Bargaining in the New South Wales Public Sector (Discussion Paper, August 1992)
NEW SOUTH WALES. DEPARTMENT OF INDUSTRIAL RELATIONS, EMPLOYMENT, TRAINING AND FURTHER EDUCATION [prepared by J Niland] Transforming Industrial Relations in New South Wales (Sydney, January 1990)
THORNTON, M “Job Segregation, Industrialisation and the Non-Discrimination Principle” (1983) 25 Journal of Industrial Relations 38
THORNTON, M “Discrimination law/industrial law: are they compatible?” (1987) 59 (2) Australian Quarterly 162
TOWNSEND-SMITH, R Sex Discrimination in Employment: Law, Practice and Policy (Sweet & Maxwell, London, 1989)
WALLACE, M “The Legal Approach to Discrimination and Harassment” (1985) 57 Australian Quarterly 57
Cases
Australian Iron and Steel Pty Ltd v Banovic & Anor (1990) 89 ALR 1
Dao v Australian Postal Commission (1987) 162 CLR 317
Najdovska v Australian Iron and Steel Pty Ltd (1988) 12 NSWLR 587
See also cases cited in the employment section of (1989-1990) Equal Opportunity Cases (CCH Australia Ltd, 1991) and (1991) Equal Opportunity Cases (CCH Australia Ltd, 1992)
