INTRODUCTION

3.1 As stated in Chapter 1 of this Paper, New South Wales was one of the pioneering states in Australia to enact legislation in relation to discrimination by way of the Anti-Discrimination Act 1977 (“the Act”). While this Discussion Paper is primarily concerned with a review of that Act in terms of its scope and effect, it is important to first place the Act in the historical context from which it originated. This chapter considers the origin and background of the world-wide trend to secure rights for disadvantaged groups and of the current discrimination legislation in Australia, with special emphasis on the legislative framework of the New South Wales legislation and its general approach to discrimination issues.

ORIGINS OF DISCRIMINATION LEGISLATION

What is discrimination legislation about?

3.2 Discrimination legislation is an important public issue relevant to any analysis of human rights. Simply stated, discrimination is a problem which arises in relation to equality. Its importance springs from its very nature and pervasiveness, basically because all human beings are not equal in every respect. It is often this inequality that gives rise to discrimination, which, in certain defined circumstances, anti-discrimination legislation seeks to prohibit.

Historical background

3.3 There is a tendency to regard anti-discrimination legislation as a creature of the late twentieth century and attribute it to the civil rights movements that have evolved over the last 30 years. Although this may be true to an extent, the origins of discrimination law can be traced back much further to Aristotelian philosophy. Aristotle, in the Nicomachean Ethics, wrote of justice that it is the fairness in the distribution of the good things of life and said that the “ratio between the shares shall be the same as that between the persons”. While difference was not meant to be a ground of differential treatment, unless the difference was a relevant one, even Aristotle acknowledged that the question of what differences are relevant posed a problem. He wrote:

[e]veryone agrees that in distributions the just share must be given on the basis of what one deserves, though not everyone would name the same criterion of deserving: democrats say that it is free birth, oligarches that it is wealth or noble birth, and aristocrats that it is excellence.

Although in today’s context, the criteria would be different, the principle is still the same: it is not acceptable to treat one person differently from another, unless such difference or discrimination is based on good reason allowed by legislation.

The beginnings of modern discrimination law

3.4 Contemporary anti-discrimination law developed after the second world war. The first countries to introduce anti-discrimination legislation were the United States of America, Canada and the United Kingdom.

3.5 Gross discrimination against black Americans became institutionalised in American law after the enfranchisement of the slaves in the mid-nineteenth century. There were sustained efforts during the 1920s and 1930s to use legal means to counter this. However, it was not until after the second world war and the upsurge in the civil rights movement in the 1950s that American anti-discrimination law developed in any meaningful manner.

3.6 From the 1960s onwards, the concept of anti-discrimination became one of the more successful ideological exports of the United States. It was the direct source of the British legislation and has influenced the Australian legislation considerably. Thus, anti-discrimination law developed significantly in other countries, often influenced by developments in American law.

Social history and background of Australian discrimination law

3.7 Australian discrimination law has been influenced not only by discrimination legislation in other parts of the world, primarily the United States, but also by many other factors. As stated in Chapter 2 of this Paper, Australia’s international human rights obligations have had an important part to play in this regard. Australia ratified the International Labour Organisation Agreement No 111, 1958, in June 1973 which defines “discrimination” as including:

any distinction, exclusion or preference made on the basis of race, colour, sex, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment and occupation.

3.8 The late 1960s and the 1970s also saw the resurgence of the feminist movement. In 1967, the United Nations passed a declaration on the Elimination of All Forms of Discrimination Against Women. The Commonwealth Government ratified this agreement in 1973. 1975 was designated International Women’s Year. Social movements and pressure groups of other disadvantaged people also emerged about the same time. This, together with the recognition of the ill effects of Australia’s race and sex segregated work force sparked off a series of legislative measures in the area of anti-discrimination in Australia. The resultant legislation was in response to lobbying for equal rights and improved conditions and was a significant step towards affording those rights and remedies to all disadvantaged groups.

Legislative developments in Australia

3.9 The first anti-discrimination legislation in Australia was the South Australian Prohibition of Discrimination Act of 1966. This Act was subsequently repealed and replaced.

3.10 The first successful legislative initiative in the federal sphere was the enactment of the Racial Discrimination Act 1975 (Cth).

3.11 New South Wales entered the arena in 1976, when the Government introduced the Anti-Discrimination Bill, which was finally passed in 1977. The Anti-Discrimination Act 1977 (NSW), when originally enacted, prohibited discrimination on the grounds of race, sex or marital status in the areas of employment, the provision of goods and services and accommodation, and on the ground of race in education. It established two agencies: the Counsellor for Equal Opportunity to receive, investigate, and conciliate complaints; and the Anti-Discrimination Board to hold an inquiry into a complaint referred to it by the Counsellor or Minister and to review the laws and policies of New South Wales. The scope of the Act has been significantly widened over the years, and the original enforcement mechanisms have been replaced by the establishment of an Anti-Discrimination Board to administer the Act and receive and conciliate complaints, and the Equal Opportunity Tribunal to hold inquiries into each complaint or matter referred to it under the Act.

3.12 There has been much legislative activity in Australia, both federally and statewide, in the area of discrimination since the early 1970s. At present, the Commonwealth and all states and territories in Australia, either have, or have attempted to introduce, some form of discrimination legislation. Additionally, the Commonwealth and the various states conduct regular reviews of various aspects of existing legislation, often resulting in amending legislation to improve the overall impact of discrimination law in Australia. For instance, in the federal sphere, the recent amendments to the Sex Discrimination Act 1984 (Cth) arose from the “Half Way to Equal” Report of the House of Representatives Standing Committee on Legal and Constitutional Affairs and the Human Rights and Equal Opportunity Commission’s Report “A Review of Permanent Exemptions under the Sex Discrimination Act 1984”. The following anti-discrimination legislation is currently in force:

Federal

• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Affirmative Action (Equal Employment Opportunity for Women) Act 1986
• Human Rights and Equal Opportunity Commission Act 1986
• Disability Discrimination Act 1992

New South Wales

• Anti-Discrimination Act 1977

Victoria

• Equal Opportunity Act 1984

Queensland

• Anti-Discrimination Act 1991

South Australia

• Equal Opportunity Act 1984

Western Australia

• Equal Opportunity Act 1984

Australian Capital Territory

• Discrimination Act 1991

Northern Territory

• The Northern Territory has passed its Anti-Discrimination Bill 1992, which is due to be assented to early in 1993.

Tasmania

• Tasmania does not presently have anti-discrimination legislation. An attempt to introduce such legislation was frustrated when the proposed Bill lapsed on the prorogation of Parliament in early 1992.

Overview of discrimination legislation in other jurisdictions

3.13 Although all discrimination legislation, whether federal or state, has a common aim, in that they all seek to prohibit certain kinds of discrimination, there are some differences in the scope of and general statutory approach adopted by the various jurisdictions.

Differences in scope

3.14 The prohibited grounds of discrimination, the areas in which those grounds are prohibited and the exceptions they are subject to determine the general scope of discrimination legislation in Australia. In addition to prohibited grounds, there are also unlawful acts which are prohibited generally, rather than by reference to specific areas of operation. The Table in Appendix 1 provides a comparative view of unlawful acts and grounds of discrimination in relation to areas of operation in the various jurisdictions that have or have attempted to have discrimination legislation in Australia. The Table does not set out the range of exceptions, which can limit the scope of the legislation in any given situation.

Differences in general statutory approach

3.15 The most obvious difference in approach between federal and state discrimination legislation is that the federal legislation deals with discrimination by subject matter, resulting in separate Acts prohibiting different types of discrimination. Thus, the Racial Discrimination Act 1975 deals with race discrimination, the Sex Discrimination Act 1984 with sex discrimination and the Disability Discrimination Act 1992 with disability discrimination. The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 deals with equal employment opportunity for women and the Human Rights and Equal Opportunity Commission Act 1986 establishes the Human Rights and Equal Opportunity Commission which administers the federal discrimination legislation and deals with the wider human rights issues. Discrimination legislation in the states and territories deal with all prohibited grounds, such as race, sex and disability, and other matters relating to unlawful discrimination, in single Acts.

3.16 Apart from this general distinguishing feature between federal and state discrimination legislation, there are other features peculiar to certain Acts. The following are examples (not a detailed analysis) of some of those peculiar features.

3.17 Unlike all other discrimination legislation in Australia, the Racial Discrimination Act 1975 (Cth) gives persons of any race, colour, ethnic or national origin, a right of equality before the law (s 10). Also, the Act does not distinguish between the concepts of direct and indirect discrimination. Rather, the emphasis is on the distinction having an adverse effect on a particular racial or ethnic group (s 9(1A)).

3.18 Recent amendments to the Sex Discrimination Act 1984 (Cth) contained in the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) and the Human Rights and Equal Opportunity Legislation Amendment Act 1992 (Cth) (pursuant to recommendations made by the House of Representatives Standing Committee on Legal and Constitutional Affairs in the Report "Inquiry into Equal Opportunity and Equal Status for Women in Australia" and the Sex Discrimination Commissioner in the Report "A Review of Exemptions") have improved its operation and widened its scope considerably. Most notably, “sexual harassment” has been redefined, removing the requirement which previously existed that the complainant suffer, or reasonably fear that he or she will suffer detriment or disadvantage if he or she objects to the harassment. The operation of the sexual harassment provisions have also been extended to cover a range of situations where discrimination is unlawful under the Sex Discrimination Act. The new definition is modelled on the definitions of “sexual harassment” contained in the Equal Opportunity Act 1984 (SA), the Discrimination Act 1991 (ACT) and the Anti-Discrimination Act 1991 (Qld). The Sex Discrimination Act has also been amended to allow individuals to complain about allegedly discriminatory clauses in federal industrial awards, variations to awards and certified agreements made after the commencement of the provisions. (Previously, discriminatory acts done as a result of compliance with an industrial award were exempted from the operation of the Sex Discrimination Act.) Also of importance is that family responsibilities will not constitute a valid reason for termination of employment.

3.19 The Disability Discrimination Act 1992 (Cth) which commenced in part on 26 November 1992 (the operative provisions to commence on 1 March 1993) is very similar to both the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth) in its structure. The definition of “disability” is very wide and includes physical disability, intellectual disability and mental illness. It also covers imputed, past, present and future disability.

3.20 Recent amendments contained in the Sex Discrimination and Other Legislation Amendment Act 1992 (Cth) have also brought the Racial Discrimination Act, the Sex Discrimination Act and the Human Rights and Equal Opportunity Commission Act in line with the Disability Discrimination Act and other state anti-discrimination legislation which allow complaints of victimisation to be considered through a process of conciliation. The existing provisions which allow complaints of victimisation to be prosecuted in court will remain. The amendments have also put in place a new mechanism for enforcing determinations by the Human Rights and Equal Opportunity Commission (“the Commission”) under the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act. It will no longer be necessary for a complainant who wishes to enforce a determination of the Commission to bring proceedings in the Federal Court, which in practice required that the matter be heard afresh. Under the new mechanism, once a determination is made by the Commission, it must register the determination in the Registry of the Federal Court which will give it the effect of an order of the Court, unless the respondent applies to the Court for a review of the determination. Of importance also, is that the representative complaints provisions of the Racial Discrimination Act, the Sex Discrimination Act and the Disability Discrimination Act have been replaced by new provisions adapted where appropriate from the representative proceedings provisions of Part IVA of the Federal Court Act 1976 (Cth) which came into force in 1992.

3.21 The Equal Opportunity Act 1977 (Vic) approaches discrimination (or equal opportunity as it is referred to in Victoria) differently to the rest of Australia. Though based on a comparison of treatment to establish discrimination, it contains two key concepts: discrimination on the ground of "status" and discrimination by reason of "private life". "Status" refers to a person’s sex, marital status, race, impairment or the conditions of being childless, or a de facto spouse. "Private life" refers to the holding (or not) of any religious or political belief or view by a person, or engaging in or refusing to engage in any lawful religious or political activities.

3.22 Unlike all other anti-discrimination legislation in Australia, the Preamble to the Anti-Discrimination Act 1991 (Qld) specifically expresses support for the Commonwealth’s ratification of various international conventions. A feature peculiar to this Act is the use of examples to illustrate the provisions of the Act. Another important feature is that the functions of the Anti-Discrimination Commission are undertaken by the Queensland office of the federal Human Rights and Equal Opportunity Commission under the co-operative arrangement provided for in the Act.

3.23 The criteria for establishing discrimination on the various grounds under the Equal Opportunity Act 1984 (SA) are based on “unfavourable treatment” rather than on the comparative basis of “less favourable treatment” as is the case in most jurisdictions, except the ACT. South Australia is also the only jurisdiction that has formal rules governing the procedures to be followed in the Tribunal (Equal Opportunity Tribunal Rules 1988).

3.24 As stated above, Tasmania does not currently have discrimination legislation of its own. The approach adopted in the lapsed Anti-Discrimination Bill 1992 (Tas) was structurally different to other existing legislation. It listed the grounds and all areas of operation, then proceeded on the basis of special and general exceptions. The Bill also classified the failure to accommodate a special need as prohibited conduct, thereby going beyond the prohibitions common to anti-discrimination legislation in requiring a person to reasonably accommodate another person’s needs. Unlike other discrimination legislation, the Bill also made provision for complaint-based and non-complaint based investigation of discriminatory conduct.

3.25 Like South Australia, the Discrimination Act 1991 (ACT) defines discrimination with the focus on “unfavourable treatment”. The definition of indirect discrimination is also different to that in other jurisdictions. The definition has taken the focus away from the aggrieved person’s inability to comply with the requirement or condition, to the actual effect the requirement or condition has on the aggrieved person. Also of significance is that the Act prohibits discrimination based on presumed and past attributes.

3.26 The recently passed Anti-Discrimination Act 1992 (NT) defines discrimination in terms of its “effect of nullifying or impairing equality of opportunity”. Harassment is included on the basis of any of the attributes of the grounds of discrimination.

THE LEGISLATIVE FRAMEWORK OF THE ANTI-DISCRIMINATION ACT 1977 (NSW)

Aims of the Act in relation to the legislative framework

3.27 The aims of the Act, as set out in its Preamble, are “to render unlawful [certain] types of discrimination in certain circumstances and to promote equality of opportunity between all persons”. Accordingly, the legislative framework of the Act focuses on:

• prohibition of discriminatory conduct; and
• promotion of equal opportunity.

3.28 The Act deals with prohibition of discriminatory conduct by:

• setting the parameters for such conduct and identifying grounds, areas of operation and exceptions; and
• establishing enforcement bodies for dealing with such conduct.

3.29 The Act deals with promotion of equal opportunity by:

• establishing an affirmative action agency; and
• implementing education programs through the agencies established by the Act.

Prohibition of discriminatory conduct

Grounds and areas of operation

3.30 The Act defines certain grounds of discrimination and the areas in which the defined discrimination is prohibited. The grounds and areas are set out in the table below. Discrimination is only unlawful if it falls within the grounds and the areas specified in the Act. There is no general prohibition on discriminatory behaviour. Other types of discrimination, however unfair they may appear to be, are not prohibited by the Act. However, they may be illegal, depending on whether they infringe people’s rights under other laws (for instance, a rude remark made in public about a person’s family background might be defamatory though not discriminatory). Chapter 4 of this Paper deals with the grounds and areas of operation and raises issues for consideration concerning them.

Table of grounds and areas of prohibited discrimination under the Anti-Discrimination Act 1977 (NSW)

The Following types (or grounds) of discrimination are prohibited by the Act:	But, they are only prohibited if they happen in one of the following areas:
* race	- employment
* sex	- State (but not private) education
* marital status	- obtaining goods and services
* homosexuality/lesbianism	- accomodation
* intellectual impairment	- registered clubs
* physical impairment	- access to places and vechicles (for race only)
* compulsory retirement on the ground of age [is prohibited]	- access to places where liquor is sold (for sex only)
* racial vilification [is unlawful]
And they must not be subject to special or general exceptions under the Act.

[Link to text only version of table]

Exceptions

3.31 Even if an act is discriminatory because it is a defined ground in a prohibited context, it may not be an offence if it is subject to an exception under the Act. There are two types of exceptions: general and special. General exceptions are those that apply to the Act as a whole, that is to all the grounds. Special exceptions are those that are peculiar to particular grounds, and differ from ground to ground. Special exceptions can be sub-divided into two categories: those that apply to particular areas of operation within specific grounds and those that apply to all areas of operation within specific grounds.

3.32 Although each ground has different special exceptions, the legislative pattern of the exceptions in relation to the various grounds and their respective areas of operation is similar. The following diagram, which sets out the exceptions to what would otherwise be discrimination on the ground of race, is therefore representative of the legislative pattern of the exceptions under the Act and how they work. Chapter 4 of this Paper deals with special and general exceptions and raises issues for consideration concerning them.

Exceptions to discrimination on the ground of race

Exceptions to discrimination on the ground of race	General Exceptions (under s54-59 applicable to race and all other grounds)
	Special Exceptions (applicable to specific grounds in this case, race)	to race discrimination only in some areas of operation: - work - exceptions for genuine occupational qualifications, provision of training skills outside NSW, employment in a ship. - education - exception for prescribed educational authority - accommodation - exception if provider resides in accommodation, or accommodation for mot more than six persons - registered clubs - exception if principal object to provide benefits to particular race
		to race discrimination only in all areas of operation: - provision of special needs - selection in sport

[ Link to text only version of table]

Enforcement bodies

3.33 Having identified the prohibited discriminatory conduct, the Act then establishes enforcement bodies for dealing with the prohibited acts of discrimination. The enforcement bodies are:

• the Anti-Discrimination Board, with powers to investigate and conciliate complaints; and
• the Equal Opportunity Tribunal, with powers to grant enforceable remedies.

Chapter 6 of this Paper deals with these enforcement bodies and raises issues for consideration regarding their role and efficiency in the resolution of discrimination disputes.

Promotion of equal opportunity

Affirmative action agency to ensure equal employment opportunity

3.34 Another Part of the Act creates the Office of the Director of Equal Opportunity in Public Employment which is responsible for ensuring and promoting equal opportunity in public employment. Chapter 6 of this Paper deals with this area and raises issues for consideration.

Education function

3.35 The Act places great emphasis on the role and value of education, which is achieved through the research and promotional functions of the Anti-Discrimination Board. The Equal Opportunity Tribunal and the Office of the Director of Equal Opportunity in Public Employment also have a role in promoting equal opportunity through education. Chapter 7 of this Paper deals with these agencies in relation to their educative function.

THE NEW SOUTH WALES APPROACH TO DISCRIMINATION

3.36 In order to understand the New South Wales approach to discrimination through the operation of the Anti-Discrimination Act, it is necessary to have some knowledge of the definition of discrimination in terms of the Act and the Act’s response to such discrimination.

What is discrimination?

3.37 The crucial word for the purposes of the Act is “discrimination”. The basic meaning of “discrimination” is “to make clear a distinction; to differentiate”. The Oxford English Dictionary defines “discrimination” to mean “the making of a distinction, to give unfair treatment, especially because of prejudice”. There is however, no general definition of “discrimination” in the Act, but rather discrimination is described in relation to each ground.

The main features of the concept of discrimination in the Act

3.38 Although there is no general definition of discrimination in the Act, there are substantial similarities in the way discrimination is described for each ground. For present purposes, these similarities can be construed to constitute the main features of the concept of discrimination.

Less favourable treatment

3.39 In every instance, discrimination conveys the idea that one party is treated less favourably than another and not merely that there is a difference in treatment. This is commonly referred to as the “comparability model” because it requires a comparison to be made between the treatment of the person discriminated against and another real or hypothetical person of a different status (such as of a different race or sex, or some other category). For example, discrimination on the ground of physical impairment takes place if a person treats the physically handicapped person “less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not physically handicapped”.

3.40 Implicit in the application of this comparability model is the assumption of prescriptive equality - that is, that the two parties should be treated equally and that they can be compared. It does not challenge the status quo. Instead, it only allows the disadvantaged to obtain the social benefits the advantaged enjoy to the extent that they are the same or perceived to be the same. It is the characteristics of the advantaged that have historically defined the criteria for entitlement. Consequently, this approach does not contribute to the re-organisation of social institutions to meet the needs of the disadvantaged, to the extent that their needs are different from the advantaged, given that the advantaged have no comparable need.

3.41 This approach causes particular problems when applied to persons with disabilities. Impairment does involve functional limitations or differences which may affect a person’s work performance or other activity. However, it is important to bear in mind that it is a person’s social and physical environment which largely determines the extent to which a disability will restrict the opportunities available. No consideration is given to the fact that it is not practically possible to compare a person with a physical handicap with a person without such an impairment. A quadriplegic’s difficulty in gaining access to a building is due not only to inability to walk, but also to the design of the building. People’s special needs and limitations in their abilities are not taken into account. The same is true to differing degrees in the case of other grounds.

Discrimination “on the ground of ... ”

3.42 A phrase common to the various kinds of prohibited discrimination is “on the ground of ” which simply means “on the basis of ” or “because of ”. For example “[a] person discriminates against another person on the ground of race if, ... ”. All other kinds of discrimination are phrased similarly. The interpretation of this phrase is important because it will decide whether or not discrimination has taken place. Interpreting it to mean that the particular ground was the substantial and operative factor that caused the discriminatory behaviour will have a different effect to interpreting it to mean that it was one of the factors resulting in the behaviour complained of, but not the crucial one. The trend in New South Wales seems to be that the proscribed ground must be the significant but not necessarily the sole or dominant factor in the decision-making process.

3.43 Another way of determining whether or not a discriminatory criterion was used as the basis of a decision is the “but for” test used in the United Kingdom and the United States of America. The “but for” test requires one to ask whether, but for a discriminatory element, the decision would have been made. If the answer is ‘no’, then the basis is regarded as discriminatory.

3.44 Also relevant to a discussion about the basis of discriminatory behaviour is the question regarding the position when such behaviour is based on a mixture of lawful and unlawful criteria. Although the Act does not expressly deal with this issue, the courts have decided that the presence of mixed factors will not avoid unlawful discrimination - that is, despite the presence of other criteria, the unlawful criterion is relevant if it caused the discriminatory conduct.

3.45 While it is unlawful to discriminate against a person on a designated ground, it is not unlawful to discriminate on the basis of association with a person or group of persons under the New South Wales Act. Thus, discrimination against a person on the ground of the person’s race is unlawful, but discrimination against a friend or associate of that person because of the association is not unlawful.

Types of discriminatory conduct

3.46 Discriminatory conduct, as described above, can be intentional or unintentional, direct or indirect.

Intentional or unintentional discrimination

3.47 The Act makes no mention of the relevance of a person’s motive or intention for determining whether discrimination has occurred. However, the courts have consistently held that if a person acts discriminatorily even without intending to, such conduct will be unlawful. Thus, actions spurred by beliefs and attitudes that are discriminatory, but without a conscious intention to discriminate, will still be unlawful discrimination.

Direct and indirect discrimination

3.48 Discrimination can either be direct or indirect. In the United States direct and indirect discrimination are referred to as “disparate treatment” and “disparate impact” respectively. The Anti-Discrimination Act 1977 (NSW) does not specifically use the terms direct and indirect discrimination, but discriminatory behaviour is commonly categorised as such. Both direct and indirect discrimination are prohibited for each ground.

Direct discrimination

3.49 Direct discrimination occurs when a person is treated “less favourably” than another person clearly on the grounds of that person’s race, sex (or another prohibited ground). Such discrimination can be overt or on the basis of a characteristic appertaining or imputed to the person’s status. For example, in relation to racial discrimination, direct discrimination is defined in s 7(1) as follows:

A person discriminates against another person on the ground of his race if, on the ground of-

(a) his race;

(b) a characteristic that appertains generally to persons of his race; or

(c) a characteristic that is generally imputed to persons of his race, he -


(d) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race; or

(e) segregates him from persons of a different race. [emphasis added]

3.50 The refusal to hire a person simply on the ground that the applicant is of a particular race would be an example of direct discrimination on the ground of race. Similarly, direct discrimination could occur on the basis of a characteristic which either appertains to or is imputed to relate to a particular race, rather than the race itself. Courts have defined a “characteristic” to mean “a character which is distinctive or typical or is a distinguishing peculiarity or quality which appertains generally to the persons of that sex” or other status, as the case may be. The Act does not provide any guidance on the meaning of the word “characteristic appertaining”, except to say that pregnancy is a characteristic that appertains to women and that being accompanied by a guide dog is a characteristic appertaining to visually impaired persons. Generally speaking, a characteristic which appertains to a person of a particular status, is one which the majority of persons of that status have; a characteristic which is imputed to a person of a particular status is one which the majority of persons of that status are believed to have, whether or not it is so. Accordingly, if a person is refused employment because he speaks English with a foreign accent, the person could be discriminated against directly on the basis of a characteristic appertaining to persons of his race, which is speaking English with a foreign accent. Similarly, if a person is refused employment because of a manner of behaviour believed to be common among people of a particular race, such a refusal could be direct discrimination on the basis of a characteristic imputed to persons of that race.

3.51 This extension of the definition of direct discrimination beyond the purely mechanical statutory definitions of some (not all) of the grounds as set out in the definitions section of the Act (s 4), gives a wider ambit to the concept of discrimination in relation to the various grounds. For instance, “race” is defined in s 4 to include “colour, nationality and ethnic or national origin”. Although this definition is useful, it provides very limited information in comparison with the scope that characteristics appertaining and imputed lend to the definition of race.

Indirect discrimination

3.52 The concept of indirect discrimination first received judicial recognition in the United States, where it is called “disparate impact”. It was later embodied in the United Kingdom legislation and subsequently imported into Australian legislation.

3.53 Indirect discrimination is treatment which appears to be "neutral" or "fair", or practices which are not overtly discriminatory in form, but which are discriminatory in impact and outcome, borne unequally by a particular group. As Justice Wilcox of the Federal Court said in Styles v Department of Foreign Affairs and Trade (1988) EOC 92-239:

... discrimination against a group of people on account of some shared characteristic - such as sex, race, often takes a subtle form. By reason of historical facts or ingrained attitudes, rules and practices which, upon their face, make no distinction between different groups of people - ‘facially neutral’ in the American terminology - may have the effect of operating unfairly upon a particular group. In such a case a disadvantage may be visited upon members of that group which is not made less real because it is indirect, unintended and even unwitting.

3.54 Of course, as John Basten stated in a paper presented at a seminar on "Indirect Discrimination and the Sex Discrimination Act" held by the Human Rights and Equal Opportunity Commission in March 1991:

... some practices which are neutral on their face may be deliberately imposed with discriminatory intent; such practices constitute disguised discriminatory treatment. Otherwise, facially neutral requirements are to be judged by their consequences or effects, rather than the intent or motivation of the employer.

3.55 Thus, indirect discrimination tends to occur in situations where a policy or act appears to be neutral or non-discriminatory in that it treats all people equally, such as a height requirement of 180 cm for all firefighters. In practice, however, the requirement may mean that certain races and women, who tend to be shorter, are less likely to obtain jobs. Similarly, it has been argued that another common form of indirect discrimination is the erection of physical barriers that prevent people with disabilities from gaining access to certain buildings and which consequently precludes them from accessing particular jobs, goods and services. This issue is currently before the New South Wales Equal Opportunity Tribunal (“the Tribunal”) awaiting determination. The decision of the Tribunal in Najdovska v Australian Iron and Steel Pty Ltd (1986) EOC 92-176 is a good illustration of how complaints of indirect discrimination can strike at apparently neutral, although inherently discriminatory work practices. In that case, thirty-four women were retrenched as a result of a downturn in the steel industry in accordance with a “last on, first off” policy. The women complained that the policy was indirectly discriminatory because it had an unfavourable effect on them, as a result of previous delays in hiring women in the steel industry. The Tribunal held that the policy, though neutral on its face, had a disparate impact on the women caused by the unlawful discrimination (the delay in hiring) that had preceded it.

3.56 In order to establish indirect discrimination on any ground the Anti-Discrimination Act 1977 (NSW) requires that four elements must be satisfied. They are that the:

(i) person discriminating “requires the other person to comply with a requirement or condition”;

(ii) requirement or condition be one that “a substantially higher proportion of persons not of the same [status, ie. race, sex, etc] as the other person comply or are able to comply”;

(iii) requirement be “not reasonable having regard to the circumstances of the case”; and

(iv) “other person does not or is not able to comply”.

3.57 Although the concept of indirect discrimination may seem to be relatively straightforward, its application has given rise to difficulties and consequently very few decisions have been based on indirect discrimination. The principles of indirect discrimination have only been the subject of appellate consideration in Australia in relation to sex discrimination. However, the difficulties apply equally to all grounds of discrimination. It has been suggested that many of the difficulties have been exacerbated by the form of the statutory criteria listed above. For instance, many cases have grappled with the application of the phrase “requirement or condition”. Similarly, the courts have had difficulty in defining a ‘base group’ which is necessary for the purpose of assessing whether “a substantially higher proportion of persons not of the same [group] as the other person comply or are able to comply”. In Australian Iron and Steel Pty Ltd v Banovic (1989) 89 ALR 1, the High Court confirmed that ‘proportion’ requires a comparison between two proportions. Justices Deane and Gaudron said, at 11, that the approach adopted:

requires the selection of relevant base groups which do not themselves incorporate the effect of allegedly discriminatory practices and which can accordingly be used as reference points for ascertaining the effect of those practices.

3.58 The reason for adopting this approach stated by Justices Deane and Gaudron, also at 11, was that:

The comparison of the proportions of complying men and women to the male and female populations to be divided by the condition or requirement in question will reliably reveal the extent of the significance, if any, of sex to compliance only if sex is not a factor influencing the composition of those populations.

3.59 While these matters have caused some difficulties, it appears that the courts have given a liberal interpretation and attempted to resolve the issues by focussing on the purpose of the legislation and the context of its application.

3.60 An issue that is yet to be satisfactorily resolved is that concerning the test that the requirement or condition “be not reasonable having regard to the circumstances of the case”. In the United States case of Griggs v Duke Power Co (1971) 401 US 424 (1971), the Supreme Court analysed the concept of “disparate impact” and said that:

The Act [Title VII of the Civil Rights Act 1964] proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity [emphasis added].

3.61 In the United Kingdom legislation the condition must be “justifiable”. Some commentators consider the requirement of “business necessity” in Griggs and the United Kingdom test of “justifiable” to be stricter than the Australian test of “reasonable”.

3.62 Although under-utilised, the concept of indirect discrimination has the capacity to strike at fundamental discriminatory employment structures and policies. It also has the capacity to illustrate how discrimination can be built into a system without any outward signs of unequal treatment. As Chris Ronalds observed in her book Anti-Discrimination Legislation in Australia - A Guide:

elimination [of indirect discrimination] requires a certain amount of restructuring of the existing system. It is obviously the most important type of discrimination to eliminate as the ramifications of any restructuring are much wider and deeper than the solution to an individual complaint.

The distinction between direct and indirect discrimination

3.63 In the case of indirect discrimination it is clear that reasonable requirements or conditions do not constitute discrimination. This is not the position in the case of direct discrimination. The New South Wales Equal Opportunity Tribunal has held in various cases that direct discriminatory conduct cannot be justified on the basis of reasonableness. Thus, it will be more advantageous for a complainant to bring a case for direct discrimination, if that option is available.

3.64 The distinction between direct and indirect discrimination is sometimes blurred because direct discrimination includes “characteristics appertaining to” and “characteristics imputed” which are often misunderstood as forms of indirect discrimination. The distinction can have significant implications in relation to how the tribunal or court treats the case. For instance, failure to treat a homosexual person suffering or possibly suffering from HIV infection may be direct discrimination if HIV is considered to be a physical impairment. It may also be direct discrimination on the ground of homosexuality, based on a stereotype assumption that the person is in a high risk group for HIV infection. On the other hand, it may not be clear whether such discrimination is direct, or indirect on the ground that being within a high risk group for HIV infection the person was treated as if he or she had the infection.

3.65 Since indirect discrimination is about treatment that appears to be neutral and fair, it is often regarded as less blameworthy than direct discrimination. As Chloë Mason stated, in a paper entitled “Investigating Indirect Discrimination”, presented at a seminar called “Indirect Discrimination and the Sex Discrimination Act” in March 1991:

[t]he systematic nature and characteristic indirectness of indirect discrimination may give an impression that indirect discrimination is less important than direct discrimination and that indirect discrimination is a remote experience. The experience of indirect discrimination, however can be frustrating especially in those cases in which practices which cause indirect discrimination are treated as ‘commonsense’.

3.66 An important aspect of indirect discrimination, which affects its detection and prevention is recognition that it is not less important or less blameworthy than direct discrimination. Given that indirect discrimination causes significant problems to disadvantaged groups, a better understanding of this often misunderstood concept will assist in remedying practices which have been accepted in the past without recognition of their discriminatory impact.

What is the Act’s response to discrimination?

3.67 As stated above, the legislative framework of the Anti-Discrimination Act has set up the following bodies:

• The Anti-Discrimination Board, to administer the Act and to promote anti-discrimination and equal opportunity principles in NSW;
• The Equal Opportunity Tribunal, to hold inquiries into matters referred to it by the Anti-Discrimination Board; and
• The Office of the Director of Equal Opportunity in Public Employment, to ensure equal employment opportunity.

3.68 There are two stages at which the Act responds to discrimination:

• before it occurs and a complaint is made, by means of the Board’s educative function and by the part played by the Office of the Director of Equal Opportunity in Public Employment in ensuring equal employment opportunity;
• after a complaint is made, by enforcing the Act either through the Anti-Discrimination Board’s conciliation process or the Equal Opportunity Tribunal’s inquiry process.

Complaints-based approach

3.69 An important pre-requisite for enforcing the Act in the event of discriminatory conduct arising is the need to make a complaint. If a person has been discriminated against, nothing can be done unless a complaint is made in writing to the Anti-Discrimination Board. This is why the Act is said to operate on a complaints-based model. The Board does not have self-initiating powers whereby it can proceed without complaint. It has been pointed out that there are limits inherent in a complaints-based model, the most important being that discrimination cannot be addressed unless a person is prepared to make a complaint. Even when a complaint is made and discrimination is established, the solution often only benefits the complainant and does not necessarily follow-up on systematic discrimination that is often revealed through the individual complaint. This is dealt with in more detail in Chapter 6 of this Paper.

Issues for consideration
• Structure of the Anti-Discrimination Act 1977 (NSW)

Question 24

It has been argued that the present approach (whereby certain types of discrimination, on specified grounds, in specified areas and subject to specified exceptions are prohibited) tends to produce an undue focus on definitional issues, while obscuring the basic harms the law is supposed to alleviate.

Should the Anti-Discrimination Act 1977 (NSW) (“the Act”) be re-structured so that less emphasis is placed on the definitions of discrimination?

Question 25

The Act does not create or confer a right to equality or freedom from discrimination as does the Racial Discrimination Act 1975 (Cth).

(a) Should there be a general provision prohibiting discrimination and providing for a right to equality before the law or should the Act merely emphasise the detrimental effects of all forms of discrimination?

(b) Additionally, should there be specific grounds of discrimination?

Question 26

(a) Should the Act be structured differently?

(b) If so, how?

Question 27

Should the Act clarify its provisions by use of illustrations?

Question 28

Given the emphasis being placed on multiculturalism in many national policies, there may be an inherent tension in applying principles of non-discrimination on the ground of, say, sex with the ground of ethnic origin.

Are there particular problems concerning possible conflicts between grounds of discrimination?

(For issues concerning the inclusion of other grounds and matters of general importance to all grounds, see Chapter 5 of this Paper.)

• Definition of discrimination

Question 29

(a) Is the comparability model an appropriate method of determining all or some types of discrimination?

(b) If not, should a different model be considered?

(c) Would a general merit test approach (whereby merit is defined with no need for comparison) be appropriate?

(d) If so, how should “merit” be defined?

(e) Is the “unfavourable treatment” model adopted in the Australian Capital Territory more appropriate?

(f) Alternatively, should tests of reasonableness and fairness be applied to the comparability model so that the emphasis will be on the result or effect of discrimination?

(g) Would a more appropriate approach (particularly for a disabled person in an employment situation) be to require an “accommodation” of the special requirements of the case?

(This issue is dealt with in more detail in Chapter 4, in the discussion relating to discrimination on the ground of physical and intellectual impairment.)

Question 30

If another approach is being suggested, should it be adopted across the board for all grounds of discrimination?

Question 31

(a) Should the phrase “characteristics generally imputed to” be clarified to state that the characteristic is one that is not actually possessed by the complainant but must be imputed to the complainant?

(b) Should it also include past and presumed attributes as is the case in some other jurisdictions?

Question 32

(a) Should the meaning of “on the ground of” be clarified in the Act?

(b) Should it mean:

- the sole ground;

- the main ground;

- a substantial or material ground; or

- simply one of many grounds for discrimination?

Question 33

How should behaviour based on a mixture of lawful and unlawful factors be regarded?

Question 34

Should the position relating to the presence of mixed factors be clarified in the legislation?

Question 35

Would a “but for” test, rather than a “significant and operative factor” test be more appropriate in determining the basis of discriminatory conduct?

Question 36

Should it be unlawful to discriminate on the basis of association?

• Intentional or unintentional discrimination

Question 37

(a) Should there be a requirement of intent to discriminate in establishing discriminatory conduct, or should the emphasis continue to be on effect?

(b) Should the position with regard to intent be specifically stated in the legislation?

(c) Should it be a defence if it can be shown that the alleged discriminatory action was done for "good motive" or in the best interests of the business concerned or to avoid industrial unrest?

• Direct and indirect discrimination

Question 38

It has been suggested that the distinction between direct and indirect discrimination needs to be clarified. The Racial Discrimination Act 1975 (Cth) does not distinguish between the concepts. Section 9(1) of that Act

refers to “a distinction ... based on race ... which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise ... of any human right or fundamental freedom”.

Should New South Wales follow suit in terms of a more general provision?

Question 39

At present the test of indirect discrimination requires a mathematical formulation to work out compliance by a substantially higher proportion of the majority non-disadvantaged group. Justice Priestley of the NSW Court of Appeal said, in Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 at 614, that the provisions dealing with indirect discrimination "have two faults" which may preclude the Act from achieving its aims. They are: "the imprecision and inaptness of the language, particularly in regard to ‘requirement or condition’ and the requirement regarding compliance by a substantially higher proportion" which "by accident sometimes produce anti-discriminatory results and sometimes not".

It has been suggested that the difficulties the courts have had in applying the terms “requirement and condition” and in interpreting the proportionality test have now been satisfactorily resolved by the High Court in Australian Iron and Steel Pty Ltd v Banovic (1989) 89 ALR 1.

(a) Is there still a need to reformulate the test of indirect discrimination?

(b) If so, how?

(c) Should there be some legislative clarification of the meaning of “substantially higher proportion” in the definition of indirect discrimination applicable to the various grounds, or is the High Court’s interpretation sufficiently liberal?

Question 40

An American lawyer, Catherine Mackinnon in an article “Making Sex Equality Real” has suggested the adoption of the subordination principle by which women’s inequality is defined in terms of subordination to men rather than differences between the two groups. This model evaluates practices, policies and laws to assess whether they operate to maintain women in a subordinate position and avoids the necessity for legalistic analysis of what differences are invalid bases for disparate treatment.

Would it be worth considering something similar for all types of indirect discrimination?

Question 41

The courts have held that “inability to comply” means inability to comply in practice. Thus, a disabled person who uses crutches would be unable to comply with the requirement to climb stairs even if the person could do so with the aid of another.

Should the legislation clarify this matter?

Question 42

The Anti-Discrimination Act 1991 (Qld) provides a range of factors which are to be taken into account when determining whether a term, including a requirement or condition, is reasonable. The factors include:

(a) the consequences of failure to comply with the term;

(b) the cost of the alternative terms;

(c) the financial circumstances of the person who imposes, or proposes to impose the term.

Should similar and/or other factors be included in the NSW legislation to provide some guidance?

Question 43

Should the reasonableness test be more restrictive whereby the discriminator is required to show that the imposition of the condition or requirement was necessary in order to pursue the least discriminatory option reasonably available to the discriminator in the circumstances of the case?

Question 44

At present, the onus is on the complainant to prove that a neutral requirement is unreasonable in the circumstances. It has been suggested that the alleged discriminator is most likely to be able to justify the discriminatory conduct.

Should the justification for the discriminatory provision lie on the respondent rather than on the complainant?

Question 45

The Annual Reports of the Anti-Discrimination Board indicate that the vast majority of complaints (79% in 1990/91) continue to claim direct rather than indirect discrimination. It is believed that this apparent absence of incidence of indirect discrimination is not a realistic reflection of the situation.

(a) What is this lack of complaint due to?

(b) How can this situation be rectified?

(See also Chapter 4 (Discrimination on the grounds of physical and intellectual impairment) for further discussion on the conceptual problems that arise in relation to the application of indirect discrimination provisions in the context of impairment. For further discussion on general issues of concern common to all grounds, see Chapter 5 of this Paper.)

• The Act’s response to discrimination

Question 46

(a) Should the Act continue to be complaints-based only?

(b) If not, is there a more effective way of preventing discrimination?

(c) Alternatively, should the complaints-based approach be supplemented?

(d) If so, how?

(e) Should the Anti-Discrimination Board have self-initiating powers whereby the process of investigation and conciliation can proceed in the absence of a complaint?

(For further discussion on the enforcement bodies, see Chapter 6 of this Paper.)

BACKGROUND READING

Origins of discrimination legislation

Articles and books

LUSTGARTEN, L Legal Control of Racial Discrimination (McMillan, London, 1980) Chapter 1

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Annual Report 1978

NICOMACHEAN ETHICS (Bobbs-Merril Co Inc, Indianapolis, 1962) 118

RONALDS, C Anti-Discrimination Legislation in Australia - A Guide (Butterworths, Sydney, 1979) Chapter 1

Legislative developments in Australia

Articles and Books

AUSTRALIA. HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION A Review of Exemptions (AGPS, Canberra, 1992)

AUSTRALIA. PARLIAMENT. HOUSE OF REPRESENTATIVES STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS [Chairman: Mr M Lavarch] Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992)

AUSTRALIAN AND NEW ZEALAND EQUAL OPPORTUNITY LAW AND PRACTICE, Vols 1 and 2 (CCH Australia Ltd)

EINFELD, M “Human Rights Australia and the Justice System” (1989) 63 Law Institute Journal 738

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD Discrimination - The Other Epidemic: Report of the Inquiry into HIV and Aids Related Discrimination (1992)

RAYNOR, M “Discerning Discrimination in Western Australia: Equal Opportunity and Anti-Discrimination Legislation”, paper presented at the Law Society of Western Australia Law Summer School (Paper 13, 1988)

THORNTON, M The liberal promise: anti-discrimination legislation in Australia (Oxford University Press, 1990)

THORNTON, M “Clutching at Straws: Anti-Discrimination Legislation in Australia” (1982) 23 Refractory Girl 21

VICTORIA. LAW REFORM COMMISSION Review of the Equal Opportunity Act (Report 36, 1990)

WERTHEIM, B “Victorian Equal Opportunity Law and Practice” (1989) 63 Law Institute Journal 724

(See also legislation listed in text.)

Legislative framework of the Anti-Discrimination Act 1977 (NSW)

Articles and Books

GAZE, B “Discrimination” in J Wallace and T Pagone (eds) Rights and Freedoms in Australia (Federation Press, 1990) Chapter 3

MALLOCH, M “Is Equal Opportunity Possible?” (1983) 8 (1) Womanspeak 10

MATHEWS, J “Protection of Minorities and Equal Opportunities” (1988) 11 (2) University of New South Wales Law Journal 1

The NSW approach to discrimination

Articles and Books

BASTEN, J “Indirect Discrimination and the Sex Discrimination Act”, paper presented at a seminar on Indirect Discrimination and the Sex Discrimination Act (Occasional Paper No 6 from the Sex Discrimination Commissioner, Human Rights and Equal Opportunity Commission, Sydney, June 1991)

HUNTER, R “Indirect Discrimination and the Law” (1989) 63 Law Institute Journal 734

HUNTER, R “Indirect Sex Discrimination” (1989) 14 (1) Legal Services Bulletin 18

LUSTGARTEN, L Legal Control of Racial Discrimination (McMillan, London, 1980) Chapters 1-3

MACKINNON, C “Making Sex Equality Real” in L Smith, Righting the Balance: Canada’s New Equality Rights (Canadian Human Rights Reporter Inc, Saskatchewan, 1986)

MASON, C “Investigating Indirect Discrimination”, paper presented at a seminar on Indirect Discrimination and the Sex Discrimination Act (Occasional Paper No 6 from the Sex Discrimination Commissioner, Human Rights and Equal Opportunity Commission, Sydney, June 1991)

McCARRY, G “Discrimination ‘on the ground of’: a Note on an Overlooked Requirement” (1985) 13 Australian Business Law Review 250

NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD AND EQUAL OPPORTUNITY TRIBUNAL Annual Report 1991-1992

RONALDS, C Anti-Discrimination Legislation in Australia - A Guide (Butterworths, Sydney, 1979)

ROWE, G C “Misunderstanding Anti-Discrimination law: The New South Wales Court of Appeal in Reddrop” (1986) 10 Adelaide Law Review 318

TONGUE, S “Indirect Discrimination: Some Recent Overseas Cases and Developments”, paper presented at a seminar on Indirect Discrimination and the Sex Discrimination Act (Occasional Paper No 6 from the Sex Discrimination Commissioner, Human Rights and Equal Opportunity Commission, Sydney, June1991)

Cases

Australian Iron and Steel Pty Ltd v Banovic (1989) 89 ALR 1

Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587

Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92-108

Director-General of Education v Breen (1982)2 IR 93

Griggs v Duke Power Co 401 US 424 (1971)

Najdovska v Australian Iron and Steel Pty Ltd (1986) EOC 92-176

Styles v Department of Foreign Affairs and Trade (1988) EOC 92-239

Secretary, Department of Foreign Affairs and Trade v Styles (1989) 88 ALR 621