5.1 As originally introduced in 1976, the Anti-Discrimination Bill 1976 (NSW) had nine grounds, namely: race, sex, marital status, age, religious and political conviction, physical handicap or condition, mental disability and homosexuality. A further ground, trade union membership, was inserted in the Legislative Council. After considerable debate, the Anti-Discrimination Act 1977 (NSW) (“ADA”) which was passed in 1977 included only three grounds, namely: race, sex and marital status.

5.2 Race, the first ground identified in the ADA, was extended in 1994 by adding the concepts of “ethno-religion” and “descent” to the definition.¹ The first form of unlawful vilification, namely racial vilification, was added in October 1989.²

5.3 The concept of sex discrimination was amended by a reference to the characteristic of pregnancy in 1994.³ Sexual harassment was not specifically defined in the original Act but was developed by the Equal Opportunity Tribunal (“EOT”) and the courts as an important form of sex-based discrimination in employment.⁴ However, it has now been defined as a separate form of unlawful conduct by the 1997 amendments to the ADA.⁵

5.4 The concept of sex discrimination was extended further by the inclusion of a specific ground relating to transgender discrimination in 1996.⁶ Included at the same time was the unlawful act of transgender vilification.⁷

5.5 The ground of physical impairment was added in 1981 and in 1982 the ground of intellectual impairment was also introduced.⁸ These were re-defined and extended to cover mental illness and past and future disability in 1994 under the single ground of disability.⁹ Also in 1982 the ground of homosexuality was added, which has been extended by rendering unlawful homosexual vilification as from March 1994.¹⁰ Vilification on the ground that a person has or is believed to have HIV/AIDS was also made unlawful in 1994.¹¹

5.6 In 1990, a new ground of “compulsory retirement from employment on the ground of age” was inserted.¹² However, its operation was staggered, commencing with application to public sector employees in January 1991, extending to Local Council employees in January 1992 and then to all public and private sector employees as from January 1993. In June 1994, a general prohibition of discrimination on the ground of age commenced.¹³

5.7 It is clear that the scope of the ADA has been expanded in a somewhat piecemeal fashion over the 20 years of its existence. In some respects the grounds are more limited than those available in other jurisdictions in Australia. There remains pressure for a continuing expansion of the existing grounds and the introduction of new grounds.

5.8 The purpose of this Chapter is to consider both the scope of the current grounds and the justifications which may be advanced for including new grounds. The issues of principle which arise in this context have already been dealt with in Chapters Three and Four. It is important that, so far as possible, the grounds covered by the ADA be justified on a principled basis. However, the Commission acknowledges that changes inevitably follow from changing social attitudes and practices. It also recognises the need to provide coherent legislation which can be the basis for establishing appropriate norms of public conduct, without causing undue confusion.

EXISTING GROUNDS

Race

5.9 The first Commonwealth legislation in the area of discrimination was the Racial Discrimination Act 1975 (Cth) (“RDA”). This Act adopted from the international Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) the definition found in Article 1.1 of CERD, namely discrimination based on “race, colour, descent, or national or ethnic origin”. Each of these terms is included in the definition in the ADA which, in addition, includes the concepts of “nationality” and “ethno-religious origin”.

Nationality

5.10 The inclusion of “nationality” may probably be traced to an English decision in 1972 in which the House of Lords declined to equate nationality with national origin.¹⁴ In truth, the concept of nationality differs significantly from that of national origin. As noted by one commentator:

[National origin] is something an individual cannot alter, even though he may immigrate and change his allegiance. This factor gives national origins its affinity with race: both are ineradicable characteristics, independent of personal choice, which frequently give rise to hostile stereotypes. Nationality, by contrast, is primarily a legal category commonly – though less so in Britain than elsewhere – equivalent to citizenship, which may, with the approval of the authorities, be changed at a person’s election.¹⁵

Ethno-religious origin

5.12 The concept of “ethno-religious origin” is novel. It appears to have been introduced into the definition of race in order to ensure that Jews and Sikhs were within its scope. In an historical sense, this concern is understandable: much of the pressure for outlawing racial discrimination arose in the post-World War II years as the full enormity of the Holocaust became apparent. It would indeed be ironic if Jews did not fit within the CERD definition of race. Nevertheless, the reason for the amendment remains obscure. As long ago as 1979, the New Zealand Court of Appeal accepted that, in the context of the Race Relations Act 1971 (NZ), Jews constituted a group on the grounds of “ethnic origins”.¹⁶ The Commission is not aware of any judicial determination which would cast doubt on that conclusion.

5.13 It is also suggested that the definition has been broadened to cover Sikhs. Again, the amendment seems quite unnecessary for that purpose: the Race Discrimination Act 1976 (UK) was applied in 1983 to protect Sikhs by holding unlawful, as a form of indirect racial discrimination, a refusal by a school to admit a Sikh boy who declined to cut his hair and cease wearing a turban.¹⁷

5.14 Accordingly, the insertion of this term in the definition in 1994 was almost certainly unnecessary. More importantly, its scope is confusing. In his Second Reading Speech, the Attorney General stated:

The effect of the latter amendment is to clarify that ethno-religious groups, such as Jews, Muslims and Sikhs have access to the racial vilification and discrimination provisions of the Act.¹⁸

5.15 If this were the intention, the proper course is to consider on its merit the addition of religion as a ground. As the Commission concludes that such a ground should be introduced,¹⁹ with the necessary restrictions to avoid inappropriate coverage, the term “ethno-religious origin” should be removed from the definition of race. Groups such as Jews and Sikhs would still be covered by, for example, the category defined by “ethnic origin”.

Language

5.16 A common problem in relation to race discrimination complaints is whether discrimination on the grounds that a person is not fluent in a particular language, usually English, is a basis for a complaint. In the United States of America, the traditional approach was to treat a condition of employment that a person be fluent in English as falling within the concept of disparate impact or, in our terminology, indirect discrimination. That approach has merit in that the ability to speak English obviously can be a relevant consideration in relation to employment in some circumstances. Treating it as a form of indirect discrimination would permit the imposition of such a requirement in circumstances where it was reasonable to do so. For example, in a job where communication with a largely Greek speaking clientele is required, fluency in Greek would be an understandable requirement. Similarly, in the manufacturing industry or mining, the ability to communicate with one’s workmates may be an important safety consideration. In some workplaces of which the Commission is aware, the language of communication may not be English at all, but may be a language of a dominant migrant group who have been employed in that workplace. In addition, the employer may require a foreman who is fluent in the workplace language and the language of management, which may be English.

5.17 The difficulty in relation to the ADA is that fluency in a particular language may be treated as a characteristic and, therefore, constitute an element of direct discrimination. As already noted, the definition of the precise characteristic in question may not always be easy. In the circumstance envisaged, the characteristic may be “inability to speak fluent English”. That characteristic may be identifiable as one appertaining generally to persons of numerous races, although not of course Anglo-Saxon or Anglo-Celtic Australians. However, the fact that the characteristic applies to a number of races and its absence appertains generally to a number of other races does not necessarily take it outside the scope of the ADA. As the High Court has noted in the context of s 10 of the RDA, such provisions may need to be given a “distributive” operation protecting each particular racial group.²⁰

5.18 The question of language has been considered in a number of Australian cases in the context of employment.²¹ In Campos v Tempo Cleaning Services²² it was held that language came within the meaning of what constitutes discrimination on the ground of race²³ since it is a characteristic that appertains generally or is generally imputed to persons of a particular race. The case of Oset v Ministry of the Cabinet²⁴ is another in which it was argued that the language difficulties of the complainant were the reason for her dismissal and that this therefore constituted discrimination on the grounds of race. The Western Australian Equal Opportunity Tribunal appears to have assumed that this ground might be available. On the facts, however, the Tribunal found that the decision not to extend her employment was based on her lack of skills.

5.19 In Lyffyt v Capital Television²⁵ the Australian Capital Territory Human Rights Office held that since an accent may distinctively mark a person to be of a certain race, unfavourable treatment on the basis of a person’s accent would amount to indirect discrimination on the ground of race. However, the complainant was unable to prove that her accent was an operative factor in the decision not to employ her on a permanent basis and thus her claim was dismissed.

5.20 The Commission is of the view that Campos was probably correctly decided, given the extended definition of discrimination on the basis of characteristics appertaining to a particular ground. However, fluency in a particular language may be a genuine occupational qualification in some circumstances. Accordingly, the Commission will return to this question in defining relevant exceptions in Chapter Six.

Recommendation 30

Remove the term “ethno-religious origin” from the definition of race.

Draft Anti-Discrimination Bill 1999: cl 18(1)

General

5.21 The scope of this ground raises questions relating to pregnancy and breastfeeding, which may involve particular characteristics appertaining to the female sex.

5.22 The separate ground of family and carer responsibilities is dealt with as a proposed new ground.²⁶ As it is clearly intended to be a gender-neutral ground, it is not appropriately dealt with in this context. On the other hand, in so far as current social practices may give rise to indirect discrimination claims on the basis that women in particular bear a greater burden of family responsibilities, the extent of overlap with the ground of sex is considered below.

Pregnancy

5.23 Discrimination on the ground of sex because of pregnancy is widespread in employment. Women are often dismissed, denied promotion or chosen for retrenchment ahead of other employees on informing employers of their pregnancy.²⁷ However, it is not always clear that pregnancy is an irrelevant consideration, especially in employment cases. The example often cited in support of this proposition is that of the employer who seeks to replace an existing employee on maternity leave. Is the employer required to ignore the fact that a particular applicant, otherwise suitable for the job, is herself pregnant and would expect to take maternity leave shortly after appointment?

5.24 A case which in part illustrates the point is the English case of Webb v EMO Cargo (UK) Ltd.²⁸ The case involved an employer who dismissed an employee after she advised the employer that she was pregnant. She had been recruited for an unlimited period, but initially to cover the maternity leave of another employee. The first tribunal to hear the case found that there had been no unlawful sex discrimination and that the complainant was dismissed, not because of her pregnancy, but because she would not be available to cover for the absent employee during the critical time. The tribunal held further that the correct comparison was with the hypothetical man who would be unavailable at the critical time. This finding was upheld on appeal, but the House of Lords, mindful of the need to construe the provisions of the Sex Discrimination Act 1975 (UK) in accordance with European Community law on equal treatment, referred the matter to the European Court of Justice (“ECJ”) for a preliminary ruling.²⁹

5.25 The ECJ held that the dismissal of a female employee on the ground of pregnancy constituted direct discrimination on the ground of sex. It distinguished between the case of a pregnant woman who was unable to perform work because of her pregnancy (which is not an illness) and a man unable to perform work because of a medical condition. The Court also found that the dismissal was not justified as the appellant was recruited for an indefinite period and her unavailability due to pregnancy was only for a limited time relative to the length of her contract. Subsequently, the House of Lords upheld the appeal.

5.26 Of greater concern is the case of a woman who seeks employment for a short term position, for example where another employee is on maternity leave. That is not quite the same as the situation in Webb v EMO Cargo referred to above. Assume, however, the woman is rejected because, being pregnant, she cannot complete the short-term contract. The employer might legitimately complain that it was grossly inequitable to require it to hire and train two persons for a short term position, rather than one. Of course, should the first fall sick, that result may be unavoidable. However, the issue is whether that risk must be accepted where it reaches the level of certainty. One answer to this difficulty would be to provide a genuine occupational qualification exception with respect to such employment. The scope of such an exception would require careful consideration so as to avoid the exception overwhelming the ground.

5.27 There is currently an exception provided from the prohibition with respect to pregnancy and employment in circumstances where, when the employer interviewed the woman “the woman was pregnant, unless, at that date, the woman did not know and could not reasonably be expected to have known that she was pregnant”.³⁰ No such exception exists under the provisions of the Sex Discrimination Act 1984 (Cth) (“SDA”).

5.28 This exception was considered at length by the Anti-Discrimination Board (“ADB”) in its Report of the Inquiry into Pregnancy Related Discrimination,³¹ and by the Implementation Committee of the Report into Gender Bias and the Law.³² Both recommended the removal of this exception on the basis that the employer’s only concern should be whether the pregnant woman is the best applicant for the job. The example of a job requiring a marketing exercise to be completed in 12 months was cited by the ADB in the Pregnancy Report. If the requirement is reasonable but the pregnant woman cannot comply with this requirement because she requires time off around the birth, then the employer will not be breaching the ADA by refusing to hire the pregnant woman.³³

5.29 However, this analysis assumes that the issue of pregnancy arises as a form of indirect discrimination. Given the express provisions that pregnancy is a characteristic appertaining generally to women,³⁴ that analysis must be wrong. On the other hand, the reasoning adopted suggests that a defence should be available where non-pregnancy is a genuine occupational qualification or that the ground of pregnancy should be subject to a requirement of reasonable accommodation, with a corresponding defence of undue hardship. Such a defence would be justifiable, but the current provision is not so limited.

5.30 There may also be circumstances where pregnancy discrimination is not sex discrimination within the current definition. For instance, it might be difficult to establish sex discrimination in a case where a woman who is not pregnant is chosen over a pregnant woman. On this issue one commentator observed:

There should be no doubt that pregnancy and gender can be distinguished. While only women can become pregnant, not all women are pregnant. Consider a case where two females apply for a post, one of whom is pregnant. If the employer chooses to offer the job to the woman who is not pregnant and for that reason, it offends common sense to say the unsuccessful candidate suffered on the ground of sex. Sex is the quality which distinguishes men from women, not men from pregnant women or pregnant women from non pregnant. The fact that only women become pregnant does not mean that pregnancy can be identified with gender.³⁵

5.32 Further, the commentator assumes that, where a comparison is required under the present law and the comparison has in fact been made, a complainant cannot rely upon a hypothetical comparator. In other words, the commentator assumes that where the only applicants for the job are women, none can complain on the grounds of sex discrimination. However, where a woman is treated unfairly on the basis of a characteristic that appertains generally to her sex, there has been discrimination. The fact that other women may not share the characteristic is recognised by the current requirement that the characteristic appertains generally, rather than universally, to the identified grouping.

5.33 This issue was raised in the Commission’s Discussion Paper, Review of the Anti-Discrimination Act 1977 (NSW) (“DP 30”).³⁶ Many submissions received by the Commission were in favour of making pregnancy a separate ground of discrimination.³⁷ The ADB submitted that although there have been no significant problems with the inclusion of pregnancy discrimination within the definition of sex discrimination, it would be logical to include it as a separate ground.³⁸

5.34 Anti-discrimination legislation in Victoria, Queensland, South Australia, Western Australia, the Australian Capital Territory and the Northern Territory provides that pregnancy is a separate ground of discrimination.³⁹ In Tasmania, pregnancy is considered one of the attributes of sex.⁴⁰

5.35 The ADA currently provides that “the fact that a woman is or may become pregnant is a characteristic that appertains generally to women”.⁴¹ This statement was inserted in 1994. Further, the Act expressly provides in s 24(2) that, for the purpose of direct discrimination under s 24(1), circumstances are not materially different for the purpose of the required comparison:

by reason of the fact that the persons between whom the discrimination occurs:

(a) are a woman who is pregnant and a man; or

(b) are not of the same marital status.

5.37 This difficulty would not arise with the proposed new definition of discrimination. Further, the problem of the woman who is rejected on the grounds of pregnancy, if that is a characteristic appertaining generally to women, would also be avoided by the proposed new definition of discrimination. The woman in question is clearly being treated disadvantageously on the ground of a sex-based characteristic and, as no comparison with a man is required, the definition would be satisfied.

5.38 In late 1997 the government released an exposure draft of a bill to introduce a specific ground of pregnancy discrimination.⁴³ The proposed amendment would introduce a new prohibition against discrimination on the ground of pregnancy if the aggrieved person is or may become pregnant and, on that ground, is treated less favourably than the perpetrator treats or would treat a person who is not pregnant or cannot become pregnant.⁴⁴ This terminology includes not only pregnancy, but the capacity to become pregnant. As already noted, there may be a distinction between the fact of pregnancy and the capacity to become pregnant, the latter characteristic sometimes being referred to, perhaps inelegantly, as “potential pregnancy”.⁴⁵

5.39 At the Federal level, the issue of potential pregnancy was explored at length by the House of Representatives Standing Committee on Legal and Constitutional Affairs in its 1992 Report, Halfway to Equal.⁴⁶ As a consequence of the Committee’s recommendation, the SDA was amended to include potential pregnancy as a ground of discrimination.⁴⁷

5.40 Whatever the correct analysis of the examples discussed above under the current law may be, it is clear that the law is in need of clarification and it appears to the Commission that, in accordance with the general consensus of the submissions, pregnancy should be dealt with as a separate ground. In part, the reason for this is that the circumstances of pregnancy, or even potential pregnancy, may not be entirely irrelevant considerations. To the extent that such considerations are relevant, that fact should be acknowledged and the next question should be addressed, namely whether the circumstances are such that an obligation of reasonable accommodation should apply. The concept of reasonable accommodation is dealt with in more detail in relation to the related grounds of disability and carer responsibility.⁴⁸ Pregnancy is a condition which is gender-based and should properly be the subject of all reasonable forms of support in a civil society. Accordingly, it is appropriate to treat pregnancy (and potential pregnancy) as a separate ground, impose an obligation of reasonable accommodation, subject to the usual limit that it not involve undue hardship. This will not extend the grounds significantly, nor will it affect the areas of their operation.

Breastfeeding

5.41 A similar question arises in relation to breastfeeding. Again, the capacity to breastfeed may be a characteristic which appertains generally to women: it is certainly a characteristic which is unique to that sex. However, the fact of breastfeeding is a far less frequent characteristic than the capacity. This question differs from that of pregnancy and capacity to become pregnant in that the capacity to breastfeed is rarely treated as a consideration, whereas the capacity to become pregnant, not infrequently, is so treated. In Queensland, breastfeeding is considered an attribute for which discrimination is prohibited, but only in the area of the provision of goods and services.⁴⁹

5.42 Despite the fact that it is less commonly the subject of controversy, the principles which apply to pregnancy have equal application in relation to breastfeeding. Accordingly, the Commission is satisfied that breastfeeding should also be identified as a ground and treated on the same basis as pregnancy.

Recommendation 31

Pregnancy (including potential pregnancy) and breastfeeding should form separate grounds of discrimination.

Draft Anti-Discrimination Bill 1999: cl 16(2)

5.43 The ADA currently renders unlawful discrimination on the grounds of “marital status” which is defined in the following terms:

“Marital status” means the status or condition of being –

(a) single;

(b) married;

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) in cohabitation, otherwise than in marriage, with a person of the opposite sex.

“the de facto spouse of another person.”

5.45 Submissions have suggested that the present definition is restrictive in two ways, each of which is inappropriate. The first relates to the omission of traditional marriages from the definition. In 1986, the Australian Law Reform Commission (“ALRC”) recommended that recognition be given to traditional Aboriginal marriages for a range of purposes.⁵⁰ For example, in the area of adoption the ALRC recommended that the concept of “married person” be extended to an Aboriginal person who is living in a relationship that is recognised as a marriage according to the traditions of an Aboriginal community or Aboriginal group to which the person belongs.⁵¹

5.46 In New South Wales, one area in which traditional Aboriginal marriages have been recognised by the law is that of adoption. In 1987 the Adoption of Children Act 1965 (NSW) (“Adoption Act”) was amended to provide that the court may make adoption orders in favour of a couple in which:

(i) the man and the woman are Aborigines (within the meaning of the Aboriginal Land Rights Act 1983) and are recognised as being married according to the traditions of an Aboriginal community or Aboriginal group to which they belong, and

(ii) the child in respect of whom the application for the adoption order is made is an Aboriginal (within the meaning of that Act).⁵²

In general it appears that Torres Strait Islander practices and customs are different from those even of North Queensland Aborigines, and more adaptable to the general law. Torres Strait Islanders are strictly monogamous, mostly church married. The most significant area of islander “customary” practice noted in the field report was that of adoption, especially of extra marital children, by grandparents or other members of the extended family.⁵³

5.49 The Commission recommends that the definition of marital status be expanded in accordance with the ALRC Report to include traditional marriages amongst Indigenous Australians, which may include South Sea Islanders who are Australian citizens.

5.50 More generally, the concept of marriage will, inevitably, involve foreign marriages carried out in accordance with the laws and customs of other peoples and places. Whether they are recognised for Australian purposes will depend upon private international law principles. The difference in relation to Indigenous inhabitants is that they would otherwise be expected to comply with Australian laws and customs. There is no good reason, however, to decline to recognise traditional laws and customs in relation to marriage by Indigenous Australians in the same way that the common law recognises rights and interests arising under traditional laws and customs in relation to land tenure.

5.51 The second area in which it was suggested that the current definition was inappropriately restrictive concerned homosexual couples. It was seen as anomalous that the ADA proscribed discrimination on the grounds of homosexuality, yet defined marital status in a way which excluded same sex couples. A number of the submissions received by the Commission in response to DP 30 argued that the definition of “marital status” within the ADA should be amended to include same sex relationships.⁵⁶

5.52 This issue arose in an early case before the EOT. In Wilson v QANTAS Airways Limited,⁵⁷ two homosexual male flight attendants complained of discrimination in that they were treated less favourably than either married flight attendants or those living in a heterosexual de facto relationship. The particular benefit in question was the ability to be granted coincident dates and places of travel, where both partners were employed by Qantas. The NSW EOT dismissed the complaint on the basis that the conduct did not fall within the ground of marital status. The circumstances which gave rise to the complaint were ultimately changed voluntarily by the employer so as to recognise that homosexual couples could enjoy the same benefits as their heterosexual counterparts.

5.53 The Commission accepts that this circumstance gives rise to an anomaly. If there are areas in which homosexual relationships should not be recognised on the same basis as heterosexual relationships, those areas can be dealt with by way of appropriate exemptions. Accordingly, paragraph (f) of the current definition of marital status should refer to persons living in cohabitation with a person of the same or the opposite sex.

5.54 If protection is to be extended to cover homosexual relationships, the identification of the ground as “marital status” is inappropriate in the light of Marriage Act 1961 (Cth). The Commission considers that a preferable term would be “domestic status”.

Identity of partner

5.55 In Boehringer Ingleheim Pty Ltd v Reddrop,⁵⁸ the New South Wales Court of Appeal held that the term “marital status” was not broad enough to include the identity of a person’s spouse. The ADB subsequently recommended that the definition of marital status be amended to include “the identity of a person’s spouse, ex-spouse or a person with whom a person is cohabiting”.⁵⁹

5.56 More recently, in Waterhouse v Bell,⁶⁰ the Court held that “corruptibility at the hands of one’s husband” was a characteristic imputed generally to married women. Waterhouse distinguished Boehringer on the basis that Mrs Reddrop may have disclosed confidences to her husband who worked in a rival firm, but that was a characteristic that was peculiar to her and not one generally imputed to married women. By way of contrast, in Waterhouse, the ground of adverse treatment was corruptibility being a characteristic generally imputed to married women.⁶¹

5.57 The question is whether any amendment is needed on account of the apparent gap in the law illustrated by Reddrop. Despite the recommendation of the ADB, the Commission is not satisfied that an amendment is required. The difficulty with the decision in Reddrop was that it appeared to reject the availability of the conclusion now confirmed by the Court of Appeal in Waterhouse. Mrs Reddrop ran her case on the basis that the identity of her spouse was taken into account purely because she was married. Had she not been married, the interviewers would not have known her circumstances, an inference sought to be derived from the fact that they did not ask about the circumstances of any person with whom the successful applicant cohabited. Accordingly, she claimed she was treated differently on account of her marital status and not merely because of the identity of her spouse. The reasoning of the Court in upholding her appeal was not clearly restricted in a manner now made clear in Waterhouse.

5.58 On the other hand, it is not clear that the identity of one’s partner is necessarily an irrelevant factor. For example, an employer may well wish to take account of the fact that a prospective employee, who will have access to highly confidential information as to the whereabouts of valuable property, not have, nor be in a close relationship with, a person with convictions for robbery and fraud. As that would not be an irrelevant circumstance in relation to the prospective employee personally, it could only be irrelevant in so far as it was a characteristic of a partner on the basis that a stereotyping judgement had been made as to the nature of the relationship. If such a judgement were made, it would fall within the present prohibition. Otherwise, the circumstances of the spouse or partner may well be accepted as relevant.

5.59 By comparison, the ADA has recently been extended so that not only the race, sex etc. of the complainant, but also the race, sex etc. of a relative or associate constitutes a prohibited ground. In other words, it is not the identity generally of a relative or associate which is an issue, but a characteristic of such a person which is itself a proscribed ground.

5.60 Accordingly, the Commission is not satisfied that it is appropriate to extend the ground as currently defined to include all aspects of the identity of a spouse.

Recommendation 32

“Marital status” should be re-named “domestic status”.

Draft Anti-Discrimination Bill 1999: cl 16(1)(c)

Recommendation 33

Define “domestic status” as being:

(a) single;

(b) married (including Indigenous Australian customary marriages);

(c) married but living separately and apart from one’s spouse;

(d) divorced;

(e) widowed; or

(f) in cohabitation with another person in a domestic relationship other than marriage.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Existing ground

5.61 In its original form, disability discrimination was dealt with under two separate heads of physical impairment and intellectual impairment. This gave rise to a number of definitional problems. Furthermore, the commencement of the Disability Discrimination Act 1992 (Cth) (“DDA”) on 1 March 1993 gave rise to a number of inconsistencies as a result of disparate coverage. From August 1994, however, the ADA has included a definition of disability which mirrors the definition contained in the DDA.⁶²

5.62 The definition of disability in the ADA includes “the presence in a person’s body of organisms causing or capable of causing disease or illness”, thus identifying a range of circumstances which may involve no present and identifiable disability in the normal sense of the word. It also makes clear that the definition includes a disability which the person will have in the future or it is thought that the person will have.⁶³ It is possible that this last element may differ from the DDA which refers to a disability that “may exist in the future”.⁶⁴

5.63 The potential breadth of this definition is in one sense deceptive: its scope is ultimately limited by the response of others in the community. However, because of the potential scope, care must be taken in identifying relevant exceptions. This exercise must also be undertaken in the knowledge that if inconsistency arises between the State and Commonwealth laws, the Commonwealth law will prevail.

5.64 The ground of disability differs from most of the other prescribed grounds in that it identifies a circumstance which is not necessarily irrelevant in all circumstances. Two illustrations may be taken from the decision of President Kirby in Jamal v Secretary, Department of Health, a decision of the New South Wales Court of Appeal: a person who is totally blind cannot be an airline pilot and a person who has lost both hands in an industrial accident cannot carry out the work of a concert pianist.⁶⁵ As his Honour noted, these are extreme examples. They are necessarily extreme because the purposes of the ADA should make one wary of borderline cases. First, the legislative intention is to preclude decisions made on stereotyped assumptions. Individual assessment is required of the person’s capabilities. Secondly, the ADA requires a level of accommodation, even in circumstances where a disability may render it difficult for a particular person to carry out all the functions of a position. These purposes require analysis to determine whether the present legislation achieves the necessary effect.

Reasonable accommodation

5.65 It is helpful to consider first the requirement of what is commonly referred to as “reasonable accommodation”. The test is identified in relation to employees in negative terms. To understand the precise nature of the test, it is necessary to consider the present wording in detail. The substantive provision in s 49D(4) reads as follows:

Nothing in subsection 1(b) or 2(c) renders unlawful discrimination by an employer against a person on the ground of the person’s disability if taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment; or

(b) would, in order to carry out those requirements, require services or facilities that are not required by persons without that disability and the provision of which would impose an unjustifiable hardship on the employer.

5.67 A number of issues arise from this provision. In particular, the drafting must be compared with its predecessor, which was considered by the Court of Appeal in Jamal. First, the previous provision identified the test as one where the relevant conclusion “appeared to the employer ... on such grounds as it was reasonable to rely”.⁶⁶ Although an element of reasonableness had to be fulfilled, the test ultimately turned on the view formed by the employer. The present terminology makes no reference to what appeared to the particular employer, thus allowing the Tribunal in a relevant case to make the assessment for itself.

5.68 Secondly, the earlier provision referred to whether the employee would be unable to carry out the “work required to be performed” in the course of the employment. The present provision, by contrast, refers to an inability to carry out “the inherent requirements of the particular employment”. In substance, the legislature has adopted the approach of the EOT which had drawn certain inferences as to “the essential nature of the job” considered in that case. Although that terminology has not been adopted, the present provision permits a distinction between the inherent requirements of the employment and a detailed job description.

5.69 Finally, paragraph (b) requires, by reference to the inherent requirements of the particular employment, consideration of whether, with services or facilities, the person could carry out those requirements. If so, the ADA then requires that consideration be given to whether the provision of such services or facilities would impose “an unjustifiable hardship” on the employer.

5.70 Although the intention is reasonably clear, the phraseology gives rise to two difficulties. First, while there is an intention to require reasonable accommodation for the particular disabilities of an individual, that obligation is imposed indirectly by way of an exception to a defence.⁶⁷ Secondly, the use of the disjunctive “or” between paragraphs (a) and (b) is confusing. Either paragraph (a) is identifying an inability even with services or facilities, or, more plausibly, it is only when one has identified the relevant inability that paragraph (b) comes into operation. Furthermore, one may ask why no provision is made for the situation where the disability makes it difficult or impossible to carry out rarely required or unimportant parts of the job, without impinging on the inherent requirements of the particular employment. Surely it is intended that reasonable accommodation of those inabilities should be provided.

5.71 These difficulties led the Commission to consider whether the provision should be substantially redrafted. The main argument against amendment arises from the fact that an identical provision is to be found in the DDA. Any variation to the ADA would give rise to a risk of inconsistency between the two laws.⁶⁸ However, the Commission is of the view that the risk of inconsistency is low and the need to clarify this provision is a matter of importance. Further, the provision needs to be addressed in this Chapter in relation to the ground, because it is an essential element of the prohibition and not merely a limited exception.

Employment

5.72 The general approach to be taken to disability discrimination is discussed in Chapter Three, where the Commission recommended that the requirement to provide reasonable accommodation for employees with disabilities should be formulated as a positive obligation rather than as an exception to a defence.⁶⁹ The discussion in that chapter concerned the particular area of employment, by way of example of the approach to be adopted. The following discussion does not attempt to repeat the matters set out there, but considers the general principles and how they should be adapted to areas other than employment.

5.73 The ADA is intended to ensure decisions are made on an individual basis, without reliance on stereotyped assumptions. This element of protection is particularly important in circumstances where an obligation to accommodate particular disabilities is imposed. It is for this reason that the defence with respect to inability to carry out the inherent requirements of the particular employment does not apply, in relation to applicants, to the arrangement the employer makes for the purpose of determining who should be offered employment, nor to the terms on which the employment is offered. By similar reasoning, in relation to employees, the provision does not permit discrimination in the terms or conditions of employment, access to opportunities for promotion, training or transfer or to any other benefits associated with employment, nor to the subjection of the employee to any other detriment.⁷⁰

5.74 The distinctions drawn give rise to some internal inconsistencies and some results which may not be desirable in policy terms. For example, one may consider the position of an employee who can carry out the inherent requirements of the particular employment, so long as he or she is provided with facilities which do not impose an unjustifiable hardship on the employer. The person cannot be refused employment or dismissed in those circumstances, without contravening the ADA. However, the provision of the relevant facilities may require a variation of the standard terms and conditions of employment. Clearly that variation should be permissible. For example, a person with a back injury may need more frequent rests from work requiring standing or lifting. The submission of the Disability Discrimination Legal Centre identified this problem and pointed out that under the current provisions it may be easier to dismiss an employee who develops a disability during the course of their employment than it would be to alter the terms and conditions of employment to cater for the disability.⁷¹ They argued that one way this problem may be resolved is “by extending the exceptions [in s 49D(4)] to all aspects of employment”.⁷²

5.75 However, the more difficult question is whether, given those circumstances, the employer should be entitled to provide employment at reduced wages which would reflect the reduced ability of the worker. Subject to protection from abuse, such a provision might actually increase the willingness of employers to take on people with disabilities and thus improve the position of people with disabilities. Such a provision should also take into account any obligation of employers to provide a workplace rehabilitation program for injured employees.⁷³

5.76 The exception concerning ability to carry out the inherent requirements of the particular employment does not apply in relation to denial of access to promotion, transfer or training. This appears illogical. An employer should be able to take on an employee in a particular position for which he or she is capable (with or without reasonable facilities) but should also be able to reassess the ability of the employee in relation to a new position which may require different capabilities. Without unduly complicating the provision, it is illogical and unhelpful both to disabled people and potential employers to fail to provide expressly for these circumstances.

Recommendation 34

Extend the defence of “unjustifiable hardship” to all areas currently covered by s 49D(1) and 49D(2).

Draft Anti-Discrimination Bill 1999: cl 14, 25

Recommendation 35

Provide that there is no contravention of the ADA where, in order to accommodate the disability of a person:

• reasonable adjustments are made to the terms or conditions of employment; and
• the person consents to the adjustments.

Draft Anti-Discrimination Bill 1999: cl 14, 25

Provision of goods and services

5.77 In relation to the general provision concerning discrimination in providing goods or services, an express exception is provided where the disability would result in an unjustifiable hardship to the provider.⁷⁴ This exception applies to both a refusal to provide goods or services and the terms on which they are provided. Again, the obligation to accommodate a disability is implicit and should be made express. On the other hand, there is no distinction between a refusal and the imposition of different terms or conditions.

5.78 Just as the changes necessary to accommodate a person with a disability may require radical alteration of the essential requirements of a position, so a service which must be differentially provided for a person with a disability may need to be defined with care in order to ensure that the relevant comparison is being made. Thus, in Scott v Telstra Corporation Ltd⁷⁵ the Human Rights and Equal Opportunity Commission (“HREOC”) was required to consider whether the failure of Telstra to supply a tele-typewriter to permit people with a profound hearing disability to have access to telephone services involved the provision of a different kind of service to that provided to persons without a hearing disability. Telstra argued that the services it provided consisted of two products, namely a telephone network and a standard handset. However, HREOC found that the service was properly described as access to a telecommunications service or network.⁷⁶ Although difficult questions of fact may arise in relation to such matters, the case does not illustrate any underlying ambiguity in the equivalent provisions of the DDA.

5.79 A similar issue had arisen in Waters v Public Transport Corporation.⁷⁷ That case had involved the introduction into Victorian Public Transport of a “scratch-ticket” system and the withdrawal of conductors from trams. In that case, some attention was given by the High Court as to the distinction between the definition of the service in question and the identification of a “requirement or condition” with which a person must comply in order to enjoy or have access to the service. Some of these questions will not arise as a result of the new definition of discrimination. Thus, the need identified by Chief Justice Mason and Justice Gaudron to identify in the notion of “‘requirement or condition’ something over and above that which is necessarily inherent in the goods or services provided” will no longer arise.⁷⁸ Even in that context, their Honours held:

It was open to the Board to identify the service provided by the corporation with more or less particularity. For example, in the context of the complaints with respect to the removal of conductors, the Board might have identified the service as the provision of transport by trams, some of which had conductors and some of which did not. However it was for the Board to identify the service, and the complaints and the evidence permitted it to proceed on the basis that it did.⁷⁹

5.80 A number of the submissions received by the Commission have argued that there should be a specific requirement placed on service providers to consult with people with disabilities at the planning stage of any building or facility (such as shopping centres, schools and parks). The submission of the Disability Discrimination Legal Centre argued that:

The inability to complain about future indirect discrimination makes it more difficult for a complaint of indirect discrimination to be successful. This is because the respondent would have reasonable redress to a defence of unjustifiable hardship – particularly in relation to the built environment of services with costly infrastructure. Such a defence would not be as available if a complaint of future indirect discrimination could be made prior to the building being completed or the service implemented.⁸¹

Education

5.81 In accordance with the present structure of the ADA in relation to areas of operation, education is dealt with separately from the provisions of goods and services, although the provision of educational services is arguably within the terms of the broader area. The separation is important in the present context as the exception permitting or requiring reasonable accommodation does not apply in the same manner in relation to education as it applies to services generally. Thus, reflecting the exception concerning employment, the reasonable accommodation provision only applies in refusing an application for admission as a student, access to benefits provided by the educational authority, and in expelling the student. It does not apply to the terms on which a student is admitted nor to the subjection of a student to any other detriment. Both because of the inconsistency with the general section concerning provision of goods and services and for the reasons outlined above, this provision requires revision.

5.82 Further, it is necessary to consider the obligations on educational authorities with respect to children with disabilities. Parents of children with disabilities often argue that, wherever possible, such children should be kept within mainstream schools. Where an educational authority provides both mainstream and special schooling it may be argued that the additional resources required to keep a child at a mainstream school are not so very far in excess of the resources required by the same child in a special school. Nevertheless, such questions have led to complex litigation and difficult assessments of cost and benefit. It should be noted that there are also arguments in favour of main-streaming from the perspective of children without disabilities. The public interest in promoting understanding and tolerance of people with disabilities is advanced by retaining such children in ordinary schools. It is further argued that the decision as to whether a child with a disability, given reasonable facilities and services, benefits or suffers from main-streaming is a decision which should ultimately lie with the parents.

5.83 These arguments give rise to great difficulty for discrimination law. The resolution of differences of opinion in this area are not readily accommodated by precise legal rules, but where general principles must be applied, differences in their application may not be satisfactorily resolved by adversarial litigation.

5.84 The question for the Commission is whether the ADA should be amended so as to limit the scope for such disputes.

5.85 The Commission is not satisfied that amendment of the ADA would assist in this regard. In recent years there has been a change in philosophy with respect to children with disabilities. The benefits of keeping them in the mainstream education system have attracted increasing recognition and acceptance. The issue between those with differing views in the community is whether that process has gone far enough, either in principle or in its practical application. It is neither necessary nor appropriate for the law to determine the correct outcome of those differences of opinion. The changes to date have almost certainly been beneficial: determination of the proper balance will only be achieved over time and may involve further litigation. That process is inevitable and does not indicate a failing in the law.

5.86 Some of the material available to the Commission suggests that parents of children with disabilities have sought to use the ADA (and its equivalent in other jurisdictions) to achieve a greater level of access to and support within mainstream education for their children. On the whole, challenges to current practices have failed. However, the Commission is not satisfied that those failures indicate that the legal framework gives inadequate support to children with disabilities. The ADA properly requires that disabilities be accommodated, subject to the proper application of the undue hardship principle. Those concepts apply across a range of situations and there is no justification for treating education according to different principles.

“Drug use” and appearance

5.87 Amongst possible extensions to the grounds on which discrimination is prohibited, are categories generally identified as “drug use” and appearance. For reasons set out below, the Commission is of the view that no separate grounds should be introduced with respect to these matters, but that they are, so far as necessary, covered by the current definition of disability discrimination.

“Drug use”

5.88 The key issue for consideration is whether a decision to consume drugs is a personal choice, and if so, whether it is one which involves a basic human right and therefore requires protection. No assistance in this regard is obtained from international instruments with respect to human rights as none appear to deal with drug use.

5.89 Even if a more generous view is taken of the right to consume drugs, the right must presumably exist only in those who are consuming legal drugs. If the State wishes to proscribe the use of particular drugs, it would be inconsistent to expect its citizens to ignore illegal drug use in others in ordering their affairs.

5.90 Further, it is commonly argued that drug use may itself frequently give rise to relevant considerations. For example, consumption of cigarettes is now prohibited on health grounds in most workplaces. However, whilst this consideration is undoubtedly relevant and important, it may need to be dealt with by way of an exception if a relevant ground can otherwise be identified.

5.91 Two issues appear to be worthy of serious consideration. First, there is the issue of imputed or assumed drug use. For example, it may be inappropriate to refuse a person employment or the provision of goods or services or another relevant benefit on the basis that he or she is thought to be a drug user, when that is not the case. This argument does no more, however, than to assert that decisions based on irrelevant considerations are unfair. Unless the particular consideration in question affects a basic human right, it is not the function of the ADA to deal with such matters.

5.92 The second issue is whether drug consumption is indeed a personal choice. For some people who may be described as addicted to a particular substance, the drug use may not be a choice at all. Discrimination in such cases is inherently suspect because it is based on a characteristic which the individual is not reasonably able to change or avoid. However, the question then is whether an addiction constitutes a disability on the basis that it involves a partial loss of bodily or mental functions or a malfunction of a part of the person’s body. Alternatively, it may constitute a disorder of thought processes that results in disturbed behaviour. The answer to this question depends upon medical, psychological or psychiatric opinion to a significant extent. On one view, these difficult issues should be resolved by legislative clarification. On another view, it is the underlying facts which must be clarified rather than the law. The Commission is inclined to the latter view. For example, it would be possible to define disability to include a form of addiction with a physiological cause. However, that does little to clarify what may constitute a relevant addiction; it also would not clarify the underlying factual question. On the other hand, simply to refer in the definition of disability to “addiction” or “addictive behaviour” would give rise to precisely the same problems, although the clarification might depend to a greater extent upon legal questions than on factual issues.⁸³

5.93 Given these difficulties, the Commission has considered whether there is evidence to suggest that this question presents a practical problem in social terms for New South Wales. The Commission is aware of anecdotal material which suggests for example that smokers feel discriminated against. However, those concerns arise mostly in relation to smoking in the workplace, restaurants and other public places which would almost certainly be the subject of legitimate claims for exemption. Neither the submissions to the Commission nor inquiries of the ADB suggest that there is any identifiable level of adverse treatment based on drug use. Accordingly, the Commission does not propose any variation in the law in that respect.

Appearance

5.94 There is no doubt that some questions of appearance readily fall within the present definition of disability, particularly, where there has been a partial loss of a part of the body or a malfunction, malformation or disfigurement of a part of the body. To a small extent, therefore, discrimination on the grounds of appearance is already covered.

5.95 As noted below, some aspects of appearance can fall within other heads of discrimination. For this reason, the need for a general ground identified as “appearance” or “physical features” is discussed separately below.⁸⁴

Homosexuality

5.96 As the ADA stands, it is unlawful to discriminate against someone on the ground of homosexuality or imputed homosexuality. It is not unlawful to discriminate against someone because they are heterosexual or bisexual to the extent that it is not in truth the element of homosexuality which gives rise to the adverse treatment.

5.97 In its report, Discrimination and Homosexuality,⁸⁵ the ADB recommended the adoption of the term “homosexuality” rather than “sexual preference” or “sexual orientation”.⁸⁶ This decision was based on two arguments:

firstly, the evidence is overwhelming that it is homosexuals and not heterosexuals, who are discriminated against; and secondly, the alternative terms suggested above are too vague, and could be interpreted to include other sexual preferences, such as incest or paedophilia, which the Board is not recommending should be made grounds of unlawful discrimination.

5.99 The ADB noted that “the level of discrimination against men and women who are homosexual is high and homophobic attitudes and behaviour persist within the general community”. However, the ADB also stated that it has received several inquiries in recent years from heterosexuals who claim to have been discriminated against because of their sexuality. A number of other submissions received by the Commission in response to DP 30, some citing personal experiences, also adverted to the problem of discrimination experienced by heterosexual people and expressed the view that “heterosexuality” should be included as a separate ground of discrimination under the ADA.⁸⁸

5.100 A number of reasons have been advanced for extending coverage to heterosexuals and bisexuals. Foremost among them is the fact that the ADA aims to promote equal treatment for everyone regardless of their personal characteristics and status. Laws against sex discrimination protect men, although the vast majority of sex discrimination is directed against women. People from non-English speaking backgrounds and Aborigines are subjected to racist treatment far more than other Australians, and yet the race discrimination provisions protect everybody. The ADA is anomalous by not allowing a complaint by a heterosexual who complains of unfair treatment for that reason.

5.101 The level of heterosexual complaints is, at present, low. This may indicate a general awareness that heterosexuals do not have any entitlement to complain under the ADA. Alternatively, it may indicate that heterosexuals are not concerned to intrude generally in areas of gay dominance. However, it may be argued that there is no reason in principle why homosexual persons running general businesses should be entitled to give preference to homosexual persons in employment.

5.102 As regards bisexuals, it is argued that some people who are bisexual have difficulty in lodging a complaint on the ground of homosexuality as they do not identify themselves in this way.

5.103 Legislation in South Australia, the Australian Capital Territory and the Northern Territory prohibits discrimination on the basis of “sexuality”, while Queensland legislation prohibits discrimination on the basis of “lawful sexual activity”.

5.104 There are, however, reasons for not changing the current provisions. New South Wales is currently the only State that specifically covers the rights of homosexual people: this is of great symbolic importance. Changing the current definition so that homosexuality will not be a separate and distinct ground may create a public perception that a level playing field now exists and that it is time to remove special protection from gay men and lesbians. Given the level of discrimination against homosexual people, there is a need to focus on the disadvantaged group and heterosexuals, because they are the “majority”, are able to tolerate isolated incidents of possible discrimination.

5.105 A powerful argument in favour of preferential treatment of homosexuals is that, unlike most other social groups who are protected by the Act, and certainly in distinction to heterosexuals, homosexuals tend to have a strong self-identification on the grounds of their sexuality. They are specifically protected at an international level as a result of numerous decisions in various countries according homosexuals the status of a particular social group for the purposes of the Refugee Convention.⁸⁹ Australian decisions are to like effect. This level of self-identification as a social group can best be protected by maintaining a ground specifically for homosexuals.

5.106 The Commission believes that the above are important concerns of the homosexual community and must be considered. However, they must be balanced against other factors. Given that coverage will not be denied or reduced by extending the ground, the Commission believes that coverage should be extended to heterosexuals and bisexuals. Other jurisdictions have adopted the definition of “sexuality” to cover all three, rather than refer to “homosexuality, bisexuality and heterosexuality”.⁹⁰ Such a ground will continue to give due recognition to homosexuality as a ground of unlawful discrimination.

5.107 The ADA should also expressly recognise that homosexuality includes lesbianism.⁹¹

5.108 Transsexuality is not considered here as it has recently been included as a separate ground, and relates to gender orientation rather than sexuality.

Recommendation 36

Include “sexuality” as a ground of discrimination to be defined as heterosexuality, homosexuality, lesbianism and bisexuality.

Draft Anti-Discrimination Bill 1999: cl 16(1)(e), 18(1)

5.109 Age discrimination became unlawful in New South Wales in July 1994.⁹² It covers chronological age so that people of all ages are covered. It aims at undermining entrenched attitudes where they are built on misconceptions. For instance, older workers are often presumed not to be skilled in modern technology, to be inflexible in their work practices, unable to acquire new skills and incapable of physically demanding work. Similarly, younger workers are sometimes considered immature, unreliable and inexperienced. That those judgements may be correct in particular cases does not mean that they are universally correct. Decisions should not be based on stereotyping assumptions.

5.110 The age discrimination provisions were preceded by compulsory retirement provisions which were introduced in 1990.⁹³ These provisions rendered it unlawful for a person to require another person to retire from employment on the ground of that person’s age. The provisions applied to public sector employees from 1 January 1991, to local government employees from 1 January 1992 and to all other employees in New South Wales, whether or not employed under an award or agreement, from 1 January 1993.

5.111 The Commission is of the view that separate compulsory retirement provisions are superfluous now that the ADA prohibits age discrimination. The existing provisions on compulsory retirement should be integrated with the age discrimination provisions. This would avoid the anomalies that currently exist in the coverage of the compulsory retirement and age discrimination provisions. For instance, the compulsory retirement provisions cover employees but not partners, whereas the age discrimination provisions cover both. So also the definition of employee in the compulsory retirement provisions⁹⁴ does not specifically include someone who works under a contract for services, in contrast to the definition of employment in s 4 of the ADA which applies with respect to the age discrimination provisions. This issue arose for consideration in Lorang v Mater Misericordiae Hospital⁹⁵ where an anaesthetist contested the lawfulness of his forced retirement under s 49ZV of the ADA. The majority of the Court of Appeal dismissed the claim on the basis that he was not employed by the hospital, but rather had an arrangement with the hospital based on separate contracts for services with each of his patients and consequently did not have the requisite employment relationship. President Kirby delivered a compelling dissenting judgment, saying that the overall purpose of the ADA was to remove stereotypes based upon assumed characteristics. The proposed amendments would overcome the anomalous result identified by President Kirby.

5.112 Whilst the concept of prohibiting age discrimination is justifiable, as age discrimination often constitutes an impermissible form of stereotyping assumptions, there are difficulties in principle with the operation of the prohibition. First, there may be potential inconsistency with other grounds of discrimination. For example, in university employment, where there has traditionally been an imbalance in favour of men over women, especially amongst senior ranks of teaching staff, the abolition of retirement ages is likely to perpetuate that inequality. Thus, women who previously had a reasonable expectation of promotion upon the retirement of their senior male colleagues, may find that expectation is significantly delayed.

5.113 On the other hand, some women would argue that the abolition of compulsory retirement ages is a benefit to them in the long run. The fact that many women take time out from careers to raise families means that they tend to reach more rewarding levels of achievement later in life. The absence of compulsory retirement may assist such women in achieving their full career potential.

5.114 Secondly, stereotyping assumptions aside, there is little doubt that at some stage, depending on each individual’s circumstances, intellectual and physical capabilities deteriorate. This has particular consequences in the area of employment. Although compulsory retirement had an air of arbitrariness, employers could avoid making harsh judgements about the individual capabilities of employees. The current scheme either requires the individual to retire voluntarily, with the possible implication that he or she accepts being no longer “up to the mark” or, invidiously, wait to be told so by the employer. On one view, the abolition of compulsory retirement may have been intended to reduce effective “life tenure” of employees and to encourage in employers the practice of subjecting all staff to the scrutiny of merit review throughout their working lives. Again, this may have beneficial economic effects, but at potentially significant social costs to individuals.

5.115 Thirdly, in times of less than full employment, a compulsory retirement age may tend to open up more jobs to young people entering the work force.

5.116 Accordingly, there are a number of social and economic factors which must be balanced. It is by no means clear that the current prohibitions satisfactorily reflect an appropriate balance in this difficult area.

5.117 The difficulty with the general prohibition on age discrimination is demonstrated by the numerous exceptions contained in the current ADA. There are in practice many ways in which age legitimately shapes our lives. In many instances general rules are formulated which have a somewhat arbitrary effect. Thus age governs the time at which one can obtain a driving licence and purchase cigarettes or alcohol. Such general rules fail to take account of individual abilities and experience, but, where large numbers of decisions must be made on a routine basis, such rules also avoid the arbitrariness of subjective assessments.

5.118 Such considerations provide a pragmatic basis for doubting the value of a general prohibition on discrimination on the ground of age. As will be seen in Chapter Six, the current exceptions are so substantial that the ground cannot be said to have anything like the broad application of other grounds.

5.119 A further source of concern is the very broad potential scope of the indirect discrimination provisions. Many legitimate distinctions will affect people differentially depending on age. While it is recognised that indirect discrimination is not unlawful if it is justifiable, in relation to age particularly the need to justify can give rise to undesirable levels of uncertainty.

5.120 Against the background of these considerations, the Commission has given serious attention to the desirability of recommending repeal of the ground or to a restriction of the ground to the areas of the greatest legitimate concern. For example, the first specific legislation in English speaking countries dealing with age discrimination appears to have been the Age Discrimination in Employment Act 1967 (US). Congress included a statement of the purpose of the new law in the following terms:

It is therefore the purpose of this chapter to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.⁹⁶

5.122 If presented with a clean legislative slate, the Commission would recommend restricting prohibitions with respect to age discrimination to the area of employment and to the age group identified in the US legislation. Such an approach is justifiable because there is a volume of evidence to support the view that older workers are not routinely treated on their merits, but, as a class, suffer from prejudice and stereotyped assumptions. As age is an immutable human characteristic, it should not be permissible to treat people detrimentally on that ground. On the other hand, the evidence to suggest that age is inappropriately used as a basis of discrimination in other areas is limited and equivocal. The ADB provided the Commission with some material which suggested inappropriate discrimination, particularly directed against young people, in the provision of services (including insurance and car rental) and in access to accommodation. The material did not suggest that such problems were so widespread as to justify legislative intervention and was often equivocal, in part because it was not necessarily clear that age should be treated as an irrelevant consideration in the circumstances of particular cases, nor that judgments were being made on a stereotyped basis.

5.123 On the other hand, the legislative slate is not clean and to restrict the ground of age discrimination to those over 40 years of age and to limit its operation to the area of employment would require a major reduction in the scope of the present Act. To remove or limit the scope of the current regime would tend to undermine the legitimate effect of the current provisions in concentrating attention on the inappropriateness of stereotyped assumptions about people on the basis of age, where individual decision making is required. This factor has satisfied the Commission that, on balance, the ground should be retained.⁹⁷ Nevertheless, its main area of operation should be treated as that of work and it should not be permitted to override statutory requirements in specific areas.

5.124 One consequence of this approach may be that specific exemptions will need to be sought from the President of the ADB in relation to conduct which is difficult to exclude by way of a general exception, but which should not be caught by the prohibition. One example may be the policy adopted by some university medical faculties of not accepting students who are over a particular age. Such a policy should reflect a careful assessment of the resources available to the university and the appropriate basis for their allocation. Thus it may be considered that the public resources devoted to educating a medical student should be directed towards those applicants who are likely to give a significant level of service to the community after obtaining the necessary qualification. The Commission considers that decisions in that regard should appropriately be made by the relevant university authority. On the other hand, it can be argued that the safeguard of having to justify the decision to a body with particular experience in discrimination matters, namely the ADB or the President, provides a useful check on the appropriateness of the end result.

Recommendation 37

Repeal the compulsory retirement provisions and integrate them with the provisions relating to age discrimination.

Draft Anti-Discrimination Bill 1999: cl 31, 33

5.125 The ADA was recently amended to proscribe discrimination on the ground of transgender status.⁹⁸ The Commission had raised the issue in DP 30, following a series of reports which had brought to light the need for protecting transgender persons from discrimination.⁹⁹ The Commission received a number of submissions in support of adding transgender status as a ground of discrimination under the ADA.¹⁰⁰ In 1996, the Government introduced a new Part 3A, which prohibits discrimination on transgender grounds.

5.126 A “transgender person” is defined as one who identifies or has identified as a person of the opposite sex by living or seeking to live as a member of that sex, or who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex. The person may or may not have had gender reassignment surgery.¹⁰¹

5.127 The ADA does, however, distinguish a sub-category of transgender persons. It identifies a “recognised transgender person” as one who has had his or her birth certificate altered under the Births, Deaths and Marriages Registration Act 1995 (NSW) (“BDMR Act”) or under the corresponding law of another Australian jurisdiction.¹⁰² A person becomes a recognised transgender person when their birth certificate has been altered and a new birth certificate showing their new sex is issued.

5.128 A birth certificate cannot be altered under the BDMR Act unless the person making the application is 18 or over,¹⁰³ has their birth registered in New South Wales, has undergone gender reassignment surgery and is not married.¹⁰⁴ Declarations by two medical practitioners verifying that the person has undergone reassignment surgery must be attached to the application. Once approved and the register altered, the Registrar may issue a new birth certificate recording the sex as altered, with no reference to the person’s previous sex. A person whose sex is altered under the BDMR Act is “for the purposes of, but subject to, any law of New South Wales, a person of the sex as so altered”.¹⁰⁵

What constitutes discrimination on transgender grounds?

5.129 Under the ADA, it is discrimination on transgender grounds to:

• treat a transgender person less favourably than a non-transgender person;
• require a transgender person to comply with a policy or condition with which a substantially higher proportion of non-transgender people can comply, which is unreasonable and with which the aggrieved person cannot comply;¹⁰⁶
• treat a recognised transgender person as a member of that person’s former sex; and/or
• require a recognised transgender person to comply with a policy or condition with which a substantially higher proportion of the person’s former sex can comply, which is unreasonable and with which the aggrieved person cannot comply.¹⁰⁷

Major issues facing transgender persons

5.131 Two major issues face transgender persons: the first is the need for effective protection from discrimination suffered because their gender orientation is different from their sex at birth. The second issue is to be recognised under the law as members of the sex with which they identify.

5.132 The ADA attempts to deal with both these issues mindful of the changes to the BDMR Act which give legal recognition to post-operative transgender persons only. The amendments to the BDMR Act are consistent with the rejection of older case law which held that, at law, one’s sex is decided at birth¹⁰⁸ and the adoption of the more recently accepted view that legal recognition of their new sex may be accorded to transgender persons who have undergone, or expressed an intention to undergo, gender reassignment surgery.¹⁰⁹

5.133 The prohibition on treating transgender persons less favourably than non-transgender persons reflects the fact that, in the majority of cases, transgender persons are discriminated against because they are transgender rather than because of their gender as such. It is for this reason that transgender persons are not effectively protected under the sex discrimination provisions. Further, once a post-operative transgender person has had a new birth certificate issued in his or her new sex and is legally recognised as a person of that sex, treating that person as a member of the former sex is inappropriate. The fact that such protection is restricted to persons falling within the category of “recognised transgender persons” indicates Parliament’s intention to distinguish between transgender persons who have undergone gender reassignment surgery and those who have not.¹¹⁰

Interpretation of the new provisions

5.134 The ADB argues that, unless it is unreasonable in the circumstances, transgender persons should be treated as members of the sex with which they identify, whether or not they have undergone gender reassignment surgery.¹¹¹ A number of other submissions received by the Commission in response to DP 30 also argued that pre-operative transsexuals should receive the same protection under the ADA as that received by those who have undergone gender re-assignment surgery.¹¹² While it would appear that the treatment of someone who is not a recognised transgender person as a member of their former sex would not constitute direct discrimination, the ADB argues that such treatment may be indirectly discriminatory. The example it provides is where, in a gymnasium which provides separate saunas for women and men, a person who has not undergone an operation but identifies as female is not permitted to use the women’s sauna. It may be argued that the rule or requirement imposed by the gymnasium is that only people with the physical characteristics of the particular sex are allowed to use those sex-specific facilities. However, in practice it is most unlikely that such a requirement would be seen as unreasonable.

5.135 The ADA also requires that the imposition of such a requirement will be unlawful if “a substantially higher proportion of persons who are not transgender persons ... are able to comply” than the proportion of transgender persons.¹¹³ The proportionality test gives rise to some difficulties of application which, in general terms, are discussed elsewhere.¹¹⁴ There are specific difficulties of application in the present context. For example, if the use of a specific facility were limited to persons with the biological characteristics of women, it may be said that approximately 52% of the population at large could comply. However, as it has been suggested that approximately 90% of all transgender persons were born as males and that only about 20% undergo surgical intervention, 28% of the transgender population could comply with the condition.¹¹⁵ On the other hand, if the pool were identified as members of a particular club which ran single sex facilities, quite different calculations might be required, depending on the membership of the club.

5.136 The Commission believes that these difficulties of application will be avoided by the new definition of what constitutes discriminatory treatment and acts which cause discriminatory effects.

5.137 Some commentators have suggested that the present provisions provide inadequate protection to the persons who identify as members of the opposite sex from their biological sex. While in practice that protection, except in the case of recognised transgender persons being persons who have undergone surgical intervention, is obtained via the indirect discrimination provisions, which are limited by the concept of reasonableness, the Commission is satisfied that that is nevertheless the most practical method of achieving appropriate protection. There are many respects in which the community at large is reasonably entitled to treat people differently depending on their biological sex. This should not be permitted where such treatment is unreasonable. However, it is not possible in practical terms to abandon the indeterminacy of the reasonableness test in favour of specific exemptions from an absolute rule. Accordingly, the Commission is satisfied that the approach adopted in the present ADA achieves the correct balance of legitimate protection for a particular social status.

new grounds of discrimination

5.138 In DP 30, the Commission canvassed the inclusion of a number of new grounds of discrimination. They were:

• transsexuality;
• religion;
• political conviction and trade union membership;
• mental illness/psychiatric disability;
• age;
• unborn children;
• family status/family responsibilities/parenthood;
• prisoners/ex-prisoners;
• physical appearance;
• accent; and
• geographical location and social status.

5.140 The Commission proposes the inclusion of the following new grounds:

• religion;
• political opinion; and
• carer responsibilities.

Religion

5.141 Australia shares the inheritance of a legal culture of religious liberty, and of the general separation between Church and State. There is limited constitutional recognition of this in s 116 of the Commonwealth Constitution. Nevertheless, freedom of religion has not been specifically protected by State laws.

5.142 As Justice Kirby noted in 1993:

With the changing nature of Australian society, new tensions manifest themselves. They are present in the form of minority groups, with strong religious convictions, which tend to challenge the core of values of the nascent Christian religions which remain an integral part of “official” Australian life. Most of the concerns of these minority groups are governed by State laws. Thus they are not given much protection by the Federal constitutional provision ... The fact remains that specific protection for religious freedom by way of prohibition of discrimination on religious grounds has not found favour in State laws despite the powerful arguments for it.¹¹⁷

5.143 The right to freedom of religion and belief has been proclaimed in the Universal Declaration on Human Rights (“UDHR”) which is the cornerstone of modern international human rights law. It has also been proclaimed in the International Covenant on Civil and Political Rights (“ICCPR”), the Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief, the Declaration of the Rights of Children and International Labour Organisation Convention 111 (“ILO Convention 111”). The Convention Relating to the Status of Refugees requires that signatories provide refuge to persons fleeing persecution in their country of nationality for reasons of “race, religion, nationality, membership of a particular social group or political opinion”.¹¹⁸

5.144 It is perhaps ironic, given the importance attached, both in our Constitution and in international instruments to which Australia is a party, to protection from religious persecution, that discrimination on the grounds of religious belief is not covered by the ADA. The anomaly is accentuated by the prohibitions which exist in other Australian jurisdictions.¹¹⁹

Other considerations

5.145 The definition of “race” in the ADA now includes ethno-religious origin as part of its definition¹²⁰ but this is unsatisfactory, as it excludes a large proportion of religious discrimination which is not necessarily based upon the ethnicity of the individual. It seems anomalous and also discriminatory against non-ethno-religious groups to provide an avenue of redress for a religious group purely because they are “ethnic”. A separate ground for religion would allow protection for those instances of religious discrimination which have no racial or ethnic basis.

5.146 Other New South Wales laws also prohibit religious discrimination: the Education Reform Act 1990 (NSW), and the various Acts incorporating universities in New South Wales, for example, all proscribe religious and political discrimination in relation to the admission of students into public educational institutions. Also, the Co-operation Act 1923 (NSW) states that membership of a co-operative should be free from social, political, racial, or religious discrimination.

Submissions

5.147 The majority of submissions received by the Commission related to the issue of religion and the scope of religious exceptions. These submissions reveal a polarisation of views amongst religious groups as to whether religion should be included as a ground of discrimination. The large or mainstream religious institutions argued against the inclusion of religion as a ground of discrimination¹²¹ while religions and denominations with fewer adherents have argued for the inclusion of such a ground.¹²²

5.148 Objections to the inclusion of religion as a ground under the ADA have largely been based on a misapprehension about the basis of the proposed inclusion of religion. The concerns of institutional and individual objectors have not been borne out by the experiences in other States where laws prohibiting religious discrimination operate.¹²³ The Board of the Ahmadiyya Anjuman Ishaat-I-Islamm (Lahore), the Church of Scientology, individual scientologists and the Seventh Day Adventists were all in support of such a ground.¹²⁴ A representative view is quoted below:

The UN Declaration on religion ... is a valuable document intended to help protect religious freedom, the rights of minority religions and to combat intolerance and discrimination. In our view therefore, the Act needs to be widened to include religion as a ground of discrimination. We perceive that instances of religious discrimination against persons of minority beliefs such as Mormons, Jehovah’s Witnesses, Scientologists and non-Christian faiths such as Jews, Buddhists or Muslims would be discouraged.¹²⁵

5.150 Some submissions argued that the autonomy of religious bodies should be considered paramount, and that a move to add discrimination on the ground of religion would both infringe the rights of religious groups to discriminate in matters relating to their beliefs¹²⁷ and disturb the traditional approach of separation between Church and State in Australia.¹²⁸ It was also suggested that allowing a secular body to intervene in religious matters would be inappropriate.¹²⁹

5.151 The Sydney Diocese of the Anglican Church objected to the introduction of religion as a ground of prohibited discrimination. The Diocese objected to the ADB’s recommendations in its 1984 Report because it promoted a definition of religion which only recognised individualistic, personal religious belief. The Diocese claimed that the Board failed to recognise adequately that religion is often not practised individually but communally. A religious body is the outward manifestation of the communal practice of religion since a religious body is comprised of adherents with the same or substantially the same beliefs. A failure to recognise the communal aspect of religious practice meant, in the view of the Standing Committee of the Diocese, that the Board came down on the side of protecting individual rights without adequately considering the rights of those persons who practise their religious beliefs as a group.¹³⁰

5.152 The Diocese submitted that if religion were to be included as a ground of prohibited discrimination “the definition of religion must recognise and protect the interests of a religious body and its members”. The Diocese supported the retention of the present s 56 exception to determine the circumstances in which the rights of a religious body are to prevail over the religious beliefs of an individual.

5.153 The Commission accepts the force of these concerns, but believes that the majority of the arguments can be dealt with by ensuring an appropriate definition of religious belief and by the application of appropriate exceptions and accordingly should not be considered as compelling reasons against the inclusion of the ground.

5.154 In so far as religion involves deeply held personal beliefs, there may be a danger in allowing bodies like the ADB or Equal Opportunity Division (“EO Division”) of the Administrative Decisions Tribunal (“ADT”) to determine issues of conscience, as the results may be seen to vindicate one person’s beliefs over those of another. Some believe that the ADA could thus be seen as a legal means of enforcing the “rightness” of particular beliefs, and as such create divisiveness instead of promoting tolerance, accommodation and acceptance. While other grounds under the ADA can be said to be value-neutral, in that they reflect physical attributes or attributes which are able to be objectively determined, religion by its very nature has a subjective element, and as such could prove difficult to assess. While the Commission notes the potential difficulty, the operation of similar legislation in other jurisdictions suggests that experience does not give support to these concerns.

5.155 The close relationship between religious beliefs and ethnicity and race, as recognised in the ADA as presently drafted, tends strongly in favour of express recognition of religion as a prohibited ground of discriminatory conduct in the public sphere. Tolerance of religious diversity and cultural differences tends to go hand in hand.¹³¹ Further, the importance of recognising Indigenous land rights as a basis for the survival of Aboriginal people is more widely understood now than in the past. The close spiritual connections between Indigenous people and land is a further example of the close connection between religious belief and race. Substantive equality of treatment requires recognition and protection of those beliefs.

5.156 In so far as the tenets of a particular religion require recognition of communal activities and the protection of religious organisations, those matters must be recognised by the law as much as any other aspect of religious belief. The proposed amendment to the ADA must inevitably reflect the breadth of such views. To protect the rights of individual members of the community from religious intolerance involves no element of rejection of the communal nature of worship.

5.157 Accordingly, the Commission favours the inclusion of religion as a prohibited ground of discrimination. The need to delimit carefully the scope of the ground is recognised and addressed below.

Definition of ground

5.158 Assuming that such a ground is appropriate for inclusion, it is necessary to consider how the ground may properly be defined.

5.159 Providing a legally workable and non-discriminatory definition of the term “religion” has posed a significant problem in the past. The ADB’s Report Discrimination and Religious Conviction noted both the broad scope of areas that religion covers, and the range of opinions, crossing historical, cultural and academic ranks when it comes to defining religion.¹³² Most commentators accept that “religion” denotes some form of transcendental concept, with some allusion to an ideal life.¹³³

5.160 The High Court has twice considered the legal definition of religion. In Adelaide Company of Jehovah’s Witnesses v The Commonwealth,¹³⁴ the Court considered the question of religious protection under s 116 of the Constitution. Chief Justice Latham alluded to the difficulties of defining religion:

It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions that exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance ... What is religion to one is superstition to another. Some religions are regarded as morally evil by other creeds. ... Indeed, it is not an exaggeration to say that each person chooses the content of his own religion. It is not for the court, upon some a priori basis, to disqualify certain beliefs as incapable of being religious in character.¹³⁵

5.162 The other significant case on the meaning of religion was a taxation case, brought by the Church of Scientology.¹³⁷ Three judgments were delivered, each taking a different view of the meaning of religion. Chief Justice Mason and Justice Brennan identified two criteria for a legal definition of religion: first, that there be “belief in a supernatural Being, Thing or Principle” and, secondly, acceptance of canons of conduct in order to give effect to that belief.¹³⁸ They held that religious belief was not necessarily theistic¹³⁹ but will generally be concerned with ethical beliefs (or some sort of moral code) and a degree of faith shown in the rituals, practices and observances of the religion by its members.

5.163 Justice Murphy preferred a broader approach, adopting a line similar to the view on religion taken in United States jurisdictions. He stated:

The better approach is to state what is sufficient, even if not necessary, to bring a body which claims to be religious within this category ... On this approach, any body which claims to be religious, whose beliefs or practices are a revival of, or resemble, earlier cults, is religious ... Any body which claims to be religious, and offers a way to find meaning and purpose in life, is religious. The Aboriginal religion of Australia and of other countries must be included. The list is not exhaustive; the categories of religion are not closed.¹⁴⁰

A definition for anti-discrimination law

5.165 In the context of anti-discrimination law, there exists not only the same conceptual difficulty with a precise legal definition of religion, but also the problem that there are, arguably, two types of discrimination that it would wish to cover. One would be where discrimination occurs because of the person’s association with a particular religious group or denomination; the second, when a manifestation of belief (or non-belief) in the tenets of a religion leads to a discriminatory act. The ADB, in its report Discrimination and Religious Conviction, favoured an inclusive definition of “religious belief” covering:

• religious practice as well as belief;
• theistic and non-theistic, Christian and non-Christian beliefs;
• a particular religion or religions, or all religions; and
• a comparable deeply-held belief that can broadly be conceived as religious.¹⁴¹

5.167 The opposing dangers are that an excessively broad definition may encourage fraudulent claims and that a definition which is too narrow may inappropriately exclude certain groups. The problem with avoiding a definition is that without some way of determining what is a religious belief under the ADA, there is both uncertainty as to the extent of its coverage and the risk that conservative definitions may be adopted regardless, thus unduly restricting the scope of the ground.

5.168 In Victoria the proscribed ground is identified as

“a religious belief or activity”.¹⁴³ That phrase is in turn defined to mean:

(a) holding or not holding a lawful religious belief or view; or

(b) engaging in, not engaging in or refusing to engage in a lawful religious activity.

5.170 As a matter of principle, the Victorian and New Zealand positions appear to be logical and soundly based. If it be correct that there are many aspects of public life in which religious beliefs are irrelevant, so, in a relatively secular society, there must be areas of public life in which the absence of any religious belief, and indeed opposition to religion, must be irrelevant.

5.171 While the Commission is aware of the dangers involved in a definition of religion and religious belief, there is a need for parameters to be set to provide judicial guidance on the extent and scope of the ground. The Commission believes that it is useful to define the ground of religion to accommodate both religious belief and religious practice, as these can arguably be distinguished from each other. With this in mind, the Commission proposes a definition in the following recommendation:

Recommendation 38

Include religion as a ground of discrimination and define it as follows:

• “Religion” includes both religious beliefs and practices which do not contravene the criminal law.
• “Religious practice” means a practice related to the holding of a religious belief. This may include communal practices such as membership or association with a particular religious institution or church, or a ritual, custom or observance related to the holding of a religious belief.
• “Religion” includes the traditional spiritual beliefs and practices of Indigenous Australians and Indigenous people from other countries.

Draft Anti-Discrimination Bill 1999: cl 16(1)(h), 18(1)

5.172 The ADB’s Report on Discrimination and Political Conviction suggested that employment was the only area in which discrimination of this kind was a problem serious enough to warrant public concern. The ADB’s view was that discrimination in other areas was either not substantial or of a kind inappropriately dealt with under anti-discrimination legislation.¹⁴⁸ However, the ADB’s submission to the Commission in response to DP 30 suggested that, as political freedom was a fundamental socio-economic right, it should extend to all areas of operation.¹⁴⁹

5.173 In other parts of Australia there have been cases of political discrimination in areas other than employment. In Williams v Council of the Shire of Exmouth¹⁵⁰ discrimination was found in the provision of services by a local council, who refused to allow a protest group to use a community hall for a meeting. Two days earlier, the same hall had been used by parliamentarians to support the issue against which the complainants were protesting. The Western Australian Equal Opportunity Tribunal found that the reasons supplied by the council, of risks to safety and property damage, were largely unsubstantiated, and that the political beliefs of the protesters were a substantial reason for the failure to provide the hall for their use.

5.174 The arguments against the inclusion of the proposed ground tend to flow from fears concerning inappropriate coverage or uncertainty as to an appropriate definition. Although some comfort may be taken from the fact that the ground has not given rise to major problems in other jurisdictions, it may also be argued that the lack of reliance upon it, as demonstrated in the available case law, suggests that such an addition to the ADA is unnecessary.

5.175 The Commission takes the view that the absence of a broad-ranging concern about discrimination on the grounds of political conviction flows largely from the robustness of open political traditions in this country and the high level of tolerance that has resulted. On the other hand, freedom of speech, particularly in the area of political beliefs, is demonstrably a fragile phenomenon which may require protection from time to time. The time to introduce such protection is, ideally, when there is no specific public controversy occurring. Once opinions are inflamed, the chance for rational debate is greatly reduced and the opportunity to introduce appropriate protection is likely to be lost.

Definition

5.176 Legislation in other Australian jurisdictions does not purport to define “political belief” nor, where it is used, “political activity”. Although it is possible that, in a general sense, the terminology is well understood, it seems undoubted that the precise scope of the ground is difficult to define.

5.177 The ADB, in its Report Discrimination and Political Conviction, stated that a political belief includes:

any belief or opinion concerning the nature and purpose of the State, or the distribution and utilisation of State power, or the interactions between the State and organisations, movements, groups and individuals as they affect, and are affected by, the exercise of State power; or any belief or opinion concerning the distribution and utilisation of economic, social and cultural power in a society.¹⁵¹

5.179 The case law, especially in Victoria, has been illustrative of the difficulties inherent in deciding what is to be covered by political activity, especially in areas concerning trade union activity and industrial relations. Victorian cases have generally considered that for an activity to be covered, it must be shown that the belief or activity “bears on government”; that is, that the political activity must be related to the “form, role, structure, feature, purpose, obligations, duties or some other aspect of government”.¹⁵²

5.180 Thus, in Nestle Australia Ltd v The Equal Opportunity Board¹⁵³ the Supreme Court of Victoria held that a discrimination claim brought because of refusal to hire staff due to previous active union involvement, while being of a “political character”, was concerned with industrial activity and not government, and therefore was considered not to be grounded in a political belief under the Act.¹⁵⁴ In Hein v Jacques Ltd¹⁵⁵ it was found that a refusal to join a union whose activities were both political and industrial in character was a sufficiently political, rather than industrial, activity under the Act. However, this was qualified by the Board, which stated:

We consider that if union membership involves only minor participation in political activity, membership alone may not amount to engaging in political activity within the meaning of the Act. Nor would membership necessarily involve engaging in political activities if a union made provision for members to limit their involvement to industrial matters only so that, for example, such members were not included in determining political party affiliation fees.¹⁵⁶

5.182 Although there tends to be a close relationship between some political views and industrial activity, because trade union and other industrial activity is entitled to be considered (if at all) as a ground in its own right, the Commission takes the view that there should be a ground of political conviction but that it should be narrowly defined to exclude predominantly industrial issues. The Commission has considered adopting the approach suggested by the ADB in its report Discrimination and Political Conviction, quoted above, but excluding the last limb of the definition referring to “economic, and social and cultural power”.

5.183 The Commission was concerned that this definition might be both imprecise and too broad. Accordingly, the Commission considered whether to refer to discrimination based upon membership of or affiliation with a political party registered under the Electoral Act 1918 (Cth) or a belief that a person has such membership or affiliation. Such a definition would have the advantage of allowing for relatively precise exceptions to the ground. On the other hand, the concept of political affiliation is not the same as political opinion. Strenuous disagreements can arise among those having an identical affiliation. The Commission was not satisfied that the objective element thereby introduced did not undermine the purpose sought to be achieved.

5.184 In the end, there is no clear solution to this problem. The Commission recommends that the ground be identified as “political opinion” and that it be defined as clearly as possible by reference to the narrower concept of state power and its distribution.

Recommendation 39

Include political opinion as a ground of discrimination and define it as follows:

“political opinion” means a belief or opinion concerning:

(a) the nature and purpose of the state, or

(b) the distribution and use of state power, or

(c) interactions between the state and individuals, bodies or groups in the community.

Draft Anti-Discrimination Bill 1999: cl 16(1)(g), 18(1)

5.185 There has been considerable debate in recent years as to the level of protection which can be accorded to persons attempting to accommodate conflicting obligations, including family responsibilities, especially in the area of employment. The pressure to accommodate such needs is partly a reflection of the growing recognition that many of those with primary responsibility for dependent children and elderly or disabled family members are also in the work force. For example, in October 1997, women comprised 43% of the Australian labour force and just over a third of them had dependent children.¹⁵⁷ Traditionally, such women would have primary responsibility for caring for the children at home and in dealing with emergencies. Further, the parent in half of all sole parent families is in the work force. Looked at from the other perspective, only one in three of two parent families conform to the traditional model of male bread winner and female non-employed carer.

5.186 Given the level of female participation in the work force, it may be thought that the rising concern as to the allocation of family responsibilities is partly a result of increasing pressure on men to exercise such functions. However, such evidence as there is suggests that the average male contribution to family care has increased only marginally.

5.187 Given the primary role of women to care for children and elderly or disabled dependants, recognition of the need to accommodate those with family responsibilities may also be seen as recognition of the existence of a form of indirect discrimination based on sex. From that conclusion it may be argued that family responsibilities protection is not a significant extension of the concept of sex discrimination. However, as with many examples of indirect discrimination, it is arguable that it will only be properly addressed in practice if it is specifically dealt with in the ADA.

5.188 While the Commission accepts that protection of those with family responsibilities will largely benefit women, the availability of such protection may itself help to break down the traditional division of responsibility on male/female lines. In any event, it would be quite inappropriate to provide protection to women (as a form of sex discrimination) and not to men who undertake such responsibilities.

5.189 A number of submissions received by the Commission in response to DP 30 expressed the view that “family responsibilities” should form a separate ground of discrimination under the ADA rather than relying on the existing grounds of sex or marital status.¹⁵⁸

5.190 Further, in March 1990 Australia ratified the International Labour Organisation Convention No 156 – Workers with Family Responsibilities. This Convention applies to men and women workers with family responsibilities for their “dependent children” and for “other members of their immediate family who need their care and support”. The aim of the Convention is to avoid restricting such workers in “preparing for, entering, participating in or advancing in economic activity”, while leaving the mode of fulfilling these aims to each adopting country. Article 3, in particular, sets out that important first principles should be to remove discrimination against workers with family responsibilities, and, as far as possible, reduce the conflict between work and family responsibilities. Discrimination here means discrimination in employment as defined in ILO Convention 111.

Existing coverage

5.191 At the Federal level, there is a limited recognition of the need to protect people on the ground of family responsibilities in the SDA. In that Act, “family responsibilities” is defined to mean:

responsibilities of the employee to care for or support –

(a) a dependent child of the employee; or

(b) any other immediate family member who is in need of care and support.¹⁵⁹

(a) a spouse of the employee; and

(b) an adult child, parent, grand parent, grand-child or sibling of the employee or of a spouse of the employee.¹⁶⁰

5.194 The protection given under the SDA is, as the definition of family responsibilities indicates, limited to the area of employment. The definition of discrimination on the grounds of family responsibilities is limited to direct discrimination. The area of operation of the prohibition is in turn restricted to the conduct of an employer in dismissing the employee.¹⁶²

5.195 Apart from coverage in discrimination law, family responsibilities is also dealt with in industrial law. One of the objects of the Workplace Relations Act 1996 (Cth) is to ensure the prevention and elimination of discrimination on the basis of family responsibilities. The Act also provides that employment should not be terminated on the basis of family responsibilities.¹⁶³ In addition, the Australian Industrial Relations Commission (“IRC”) granted certain concessions¹⁶⁴ to workers with responsibilities in the Personal/Carer’s Leave Test Case¹⁶⁵ and the Family Leave Test Case.¹⁶⁶

5.196 Most jurisdictions in Australia have some form of prohibition of discrimination on the ground of family responsibilities. In Western Australia the ground is referred to as “family responsibility or family status” and is defined to mean:

(a) having responsibility for the care of another person, whether or not that person is a dependent, other than in the course of paid employment;

(b) the status of being a particular relative; or

(c) the status of being a relative of a particular person.

a person who is related to the first mentioned person by blood, marriage, affinity or adoption and includes a person who is wholly or mainly dependent on, or is a member of the household of, the first mentioned person.

5.199 In Queensland,¹⁶⁸ Victoria,¹⁶⁹ and the two Territories¹⁷⁰ coverage is more restricted, the ground being identified in terms of parental status or a derivation thereof. In Tasmania reference is made to parental status and family responsibilities.¹⁷¹

5.200 South Australia and New South Wales are the only two States that do not specifically cover family responsibilities or parental status although the Commission understands that plans are afoot to include this ground in South Australia and a Bill is currently being considered in New South Wales.

The Commission’s approach

5.201 Recognition of the need for protection from discrimination for people with family responsibilities has evolved through an awareness of changes in the roles and responsibilities within families and the impact of those roles on employment and, to a lesser extent, in areas of services and facilities, accommodation and other needs. Consequently there appears to be a valid case that family and carer responsibilities should be covered in the ADA.

5.202 On the other hand, family and carer responsibilities and employment obligations may conflict. For example, a need to collect young children from school may conflict with the terms of employment which require an employee to remain at work until 5.00 pm. In some respects, family responsibilities and disability have similar characteristics. Neither is necessarily irrelevant to employment decisions and each may properly require an obligation to take reasonable steps to accommodate the circumstances of the applicant or employee.

5.203 Similarly, the coverage of any such ground must reflect an awareness of the diversity of family and caring relationships. Thus, while the term family responsibilities is commonly understood to refer to the caring obligations relating to spouse and dependent children, other categories of relationships may be equally relevant. These may include the care of elderly and disabled parents, siblings, foster relationships, non-cohabiting long term companions, and long term ‘adoptive families’ common to Indigenous kinship systems.

5.204 The ADB in its Discussion Paper on Discrimination and Family Responsibilities¹⁷² canvassed various options ranging from a narrow definition limited to the traditional nuclear family “blood” relationships to the broader definitions covering extra familial care responsibilities, if a test of dependency could be satisfied. This definition was based on the ADA’s current definition of relative¹⁷³ but extended to include “a person who is wholly or principally dependent on, or is a member of the household including same sex households of the first mentioned person”.¹⁷⁴

5.205 The definition of family responsibilities was also considered in the Federal Personal Carers Leave Test Case¹⁷⁵ and the New South Wales State Family Leave Case.¹⁷⁶ In the former, the IRC provided coverage to a member of the employee’s immediate family or a member of the employee’s household where the employee is responsible for the care of the person concerned. The decision of the IRC changed the leave from “family” to “personal/carer’s” leave thus extending coverage beyond caring responsibilities for immediate family members. In the New South Wales State Family Leave Test Case, the IRC employed the household criterion, but specifically referred to particular relationships within the household of the employee.¹⁷⁷

5.206 In defining family responsibilities, consideration must also be given to whether the definition should be category-based or whether it should satisfy a care and support test within a dependent relationship, or both. Legal, blood and domestic relationships do not always correlate with caring ones. In keeping with these approaches, the Commission is satisfied that the ground should be identified as covering “responsibilities to care for or support another person in a significant relationship involving dependency, commitment, care and support.” The significant relationship should be based on the existing definition of “relative” in the ADA. Such a definition would cover the dependent child, any other family member and any other person who is clearly dependent on the employee for care, support and attention.

5.207 Caring responsibilities are not limited to illness, but include attending important school functions of a dependent child, attending medical appointments and religious, spiritual, traditional and cultural observances. Dependency should therefore be defined to include financial, personal, physical and or emotional reliance.

Inter-relationship with marital status

5.208 The main reason for including family and carer responsibilities as a ground of discrimination is in recognition of the changing structure of work and family life. The failure to recognise that the “public” and “private” areas of life overlap and conflict has resulted in disadvantage and unfair treatment. Consequently it is not intended that people who are discriminated against because they have no family responsibilities be protected.

5.209 This single sided approach can however give rise to difficulties that may create some tension with the ground of marital status. A case in point is Dopking v Department of Defence.¹⁷⁸ The issue for consideration was whether the provision of a “Home Purchase and Sale Expense Allowance” by the Department of Defence Force personnel with “family” discriminated against the complainant, Mr Dopking, who was a single person with no dependants, on the basis of marital status. HREOC found that Mr Dopking had been discriminated against on the basis that:

(a) being without family is a characteristic that appertains generally to persons of the marital status of the aggrieved person, and

(b) Mr Dopking was treated less favourably than, in the circumstances that were the same or not materially different, married persons were treated.

5.210 The Federal Court disagreed with this decision on the basis that the causal relationship between the marital status of the complainant and the less favourable treatment was not satisfied.¹⁷⁹ However the case illustrates the tension that could arise, particularly in the context of shift work, where people with family responsibilities are given preference over those without family responsibilities in the choice of shifts.

5.211 There are two methods of addressing this issue: first, in the area of employment, it may be necessary to extend the exception in relation to “undue hardship” to cover the circumstances of fellow employees, as well as those of the employer. Secondly, it will be necessary to include a provision excluding steps taken for the purpose of accommodating family and carer responsibilities from the prohibition on marital status discrimination.

Nature of prohibition

5.212 The real difficulty in this area is to identify the extent of the prohibition. If an employer treats a person detrimentally on the ground of family responsibilities, for example, by refusing to interview for a position where the applicant has dependent children, the scope of the prohibition will be relatively limited. Further, even within that area, there may need to be an exception for a genuine occupation qualification. For example, if an applicant says that he or she is not available between the hours of 6.00 pm and 9.00 am, because of the need to care for young children, that person is simply ineligible for a job (say) at a bakery which, by law, must operate only during those hours, or for milk deliveries which are required early in the morning. However, these are extreme cases. In other situations flexibility may be available. A principle of equality of treatment alone will not impose an obligation on an employer to improve the flexibility or otherwise vary the conditions attaching to a particular position. Accordingly, this ground will have little effect in practice if it does not include an obligation to make reasonable accommodation, subject to the defence of undue hardship. This is because actual or potential availability for work at particular hours may be a relevant consideration in relation to some employment. Rather than disregard this fact, it is necessary to acknowledge its force and impose reasonable requirements to achieve the underlying social policy.

5.213 One argument against the “reasonable accommodation” approach is that it imposes a burden on employers, and in particular small business. There are two answers to this objection. First, it is necessary to assess the strength of the objection in general terms. Secondly, if it is seen to have merit, then consideration must be given to limiting unreasonable effects, preferably with a carefully formulated exception.

5.214 In the first place, the objection bears the hallmarks of the objections historically raised in relation to regulation of anti-social conduct in many areas. The suggestion of unacceptable costs if women were provided with equal opportunities, due to the need to make additional toilet facilities available, and the fears accompanying the requirement to accommodate people with disabilities provide examples. In practice, the overriding social policy contained in anti-discrimination principles was given effect and the adverse economic consequences proved to be exaggerated. In the present case, it may be conceded that the proportion of the work force affected by family responsibilities will greatly exceed the proportion subject to significant disabilities, but on the other hand, will be less than the numbers affected by the prohibition on sex discrimination. More importantly, the appropriate balance is achieved through the “undue hardship” defence which provides a degree of flexibility in the application of this principle.

5.215 The second aspect of the objection really focuses upon the uncertainty which is said to flow from the “undue hardship” defence. However, this uncertainty has not proved a significant difficulty in relation to the area of disability discrimination. In practice, it seems that commonsense has prevailed and that relatively few cases have been brought in the marginal areas where outcomes will be difficult to predict. To the extent that new situations give rise to novel complaints, the usual course is likely to follow: namely that the ADB and the EO Division of the ADT will develop principles and guidelines which will give rise to increasing levels of understanding and certainty.

Conclusions

5.216 The Commission has given careful consideration to the objections that have been raised, which are somewhat briefly summarised above. It has also given consideration to the evidence of changing practices on the part of employers, flowing in large part from a growing awareness of the social problem and from the increasing willingness of industrial laws to seek solutions consistent with anti-discrimination principles.

5.217 Further, the Commission has given weight to the importance of the underlying social principle, as reflected in the ratification by Australia of ILO Convention No. 156. It is the firm view of the Commission that the proposed ground of family and carer responsibilities should include a prohibition on treatment based directly on this ground and should include a requirement that such responsibilities be the subject of reasonable accommodation.

Other areas of operation

5.218 The foregoing discussion is directed to the question of discrimination in employment and work. The next question is whether the protection should be provided in other areas of activity.

5.219 The concept of “family and carer responsibility” does not seem directly relevant in other areas. In particular, the examples which have been provided to the Commission do not illustrate a problem beyond the work area. For example, concern has been expressed about the refusal to allow access to a particular place or to provide a particular service to a mother with a young child in a stroller. Further, a similar issue has been raised in relation to accommodation where a landlord has declined to let premises to a family with young children. However, in each case, the real complaint is that the person concerned has a dependent physically present, rather than that he or she has responsibilities towards a dependent child. Thus, larger families require more room, whether in a cinema, an aeroplane or in accommodation. It should not be unlawful to impose an additional charge reflecting that fact. No doubt the burden in each case will fall upon the parent. Indirectly, it may be that the burden is related to the obligation of the parent to care for the child. Any protection given in such circumstances would need to be tightly worded, to avoid inappropriate consequences. However, the examples given do not illustrate irrational prejudice based on the existence of family responsibilities, nor do they necessarily illustrate stereotyped responses on this ground. Given the difficulties in formulating an appropriate prohibition and relevant exceptions, the Commission does not consider it necessary to extend the scope of this ground beyond that of employment.

5.220 If further evidence of a broader social problem comes to light, this conclusion may need to be revisited. However, the Commission is conscious of the need to avoid extending the ADA unnecessarily, particularly in circumstances which are not well documented and analysed.

Recommendation 40

Include carer responsibilities as a ground of discrimination in the area of employment.

Draft Anti-Discrimination Bill 1999: cl 16(1)(j), 19

Recommendation 41

Carer responsibilities should be defined as responsibilities to care for or support another person in a significant relationship involving dependency, commitment, care or support.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Recommendation 42

“Dependency” includes financial, physical or emotional reliance.

Draft Anti-Discrimination Bill 1999: cl 18(1)

Industrial activity

5.221 Industrial activity may refer to any workplace activity confined within the terms and conditions of employment, in the broadest sense, and the organisation for such activity, primarily through trade union membership. Trade union activities tend to cover both industrial activity and political activity. In so far as political activities are concerned, the Commission has dealt separately with these matters under the heading “political conviction”. As far as industrial activities are concerned, the main area of potential discrimination is in employment. This, however, is an area which is covered by industrial laws in a considered and appropriate manner.¹⁸⁰

5.222 Further, the appropriate protection of trade unionists and the regulation of trade union activities in the employment context is, on balance, better left to the jurisdiction of the industrial commissions and courts. Accordingly, whilst recognising “industrial activity”, defined as membership or otherwise of an industrial organisation and participation or otherwise in the activities of an industrial organisation as a possible area needing protection, the Commission is not persuaded that such protection should be included in the ADA. Indeed, to do so would duplicate existing protections, lead to public confusion and might well lead to undesirable jurisdictional competition. The ADA should therefore not be extended to cover “industrial activity” or “trade union membership”.

Appearance

5.223 Appearance can mean various things and can impact on various existing grounds. For instance, it can be associated with race in relation to customary forms of dress, disability in relation to height and weight, homosexuality or transsexuality because of stereotypical assumptions. It can also simply mean the way one dresses or wears one’s hair and can include aversive features. In some cases such discrimination may be covered in relation to existing grounds as a characteristic appertaining to or generally imputed to the particular group or as a form of indirect discrimination.

5.224 As a specific ground of discrimination, it is identified as discrimination on the ground of physical features only in Victoria.¹⁸¹ The phrase “physical features” is defined to mean a person’s height, weight, size or other bodily characteristics. The prohibition applies in all areas of operation but is subject to exceptions on the basis of genuine occupational qualifications, authenticity and in relation to modelling, artistic, photography, dramatic or similar work.

5.225 There have been few cases where the issue of appearance has been raised. In Russell v Director General, Department of Juvenile Justice¹⁸² the complainant, a female, was refused employment in a juvenile male detention centre because it was alleged her attractiveness could cause problems with detainees. She alleged discrimination on the ground of sex, saying that questions about attractiveness would not have been asked of a male applicant. Her action failed, the EOT finding that “attractiveness” could not be inferred to be a characteristic appertaining generally to sex, or a characteristic imputed to women generally. As such, discrimination on the ground of sex could not be found. The reasoning of the EOT is, however, difficult to support. The issue had nothing to do with characteristics but simply whether sexual attractiveness would have been considered at all in relation to a male applicant.

5.226 The issue also arose in Cope v Girton Grammar School,¹⁸³ a sex discrimination case in Victoria. In that case the complainant, a student at the school, alleged discrimination because the school’s uniform code required him to keep his hair short, but allowed female students to have long hair. He refused to cut his hair, and as a consequence was excluded from classes. Discrimination was found on the ground of sex, as the rules specifically stated a requirement of hair length for boys, without a corresponding rule for girls. However, the court was careful to point out that their decision was based on sex, and not appearance.¹⁸⁴

5.227 The case of Daniels v Hunter Water Board¹⁸⁵ also raised issues about appearance, this time in the context of discrimination on the grounds of perceived homosexuality. The complainant alleged he was discriminated against because he wore an earring and had a “trendy” haircut. The EOT found that he was discriminated against and harassed, because these attributes were different from the norm. The EOT stated:

In a free society, a person’s individuality and right to freedom of expression must be cherished. If the cost of freedom of expression is conformity and the price of non-conformity is harassment, then society has accepted unacceptable restrictions.¹⁸⁶

5.228 The question for the Commission, however, is whether appearance should be a ground of prohibited discrimination, independently of existing grounds. Where appearance is a matter of choice, this proposition is difficult to maintain. Appearance by choice may reflect beliefs or opinions of the individual, but the ADA identifies those which are appropriate grounds and those which are not. There is no good basis for prohibiting discrimination in relation to conduct which reveals one facet of opinion or belief where the opinions or beliefs themselves are not otherwise protected.

5.229 There remains that aspect of appearance which may properly be described as an inherent characteristic or physical feature of the individual, namely a feature which cannot be changed by reasonable choice. In some cases, features will constitute a disability and will be covered by that ground. The question is whether those features which are not properly described as a “malfunction, malformation or disfigurement of a part of a person’s body” should be the subject of protection in their own right.

5.230 It may be argued that if an employer, for example, cannot discriminate on the grounds of disfigurement, it should not be entitled to discriminate on the basis of a less significant physical feature. Against that proposition, three points may be made: first, a disability is not necessarily presumed to be irrelevant, but rather is subject to a requirement of reasonable accommodation. Secondly, a disfigurement may be established with a reasonable level of certainty, whereas a physical feature is a much vaguer concept which cannot be identified with adequate precision. Finally, employment decisions are frequently made on the basis of largely intuitive choices between people with adequate levels of competence and skill. The choice may reflect an assessment of any one of a number of characteristics which the employer may consider relevant in particular circumstances. Sometimes decisions will reflect conscious or unconscious prejudice on prohibited grounds. Such a case may be hard to prove, but, on the other hand, the standard can be clearly articulated. The concept of “physical features” or “appearance” is not one which can be articulated with any level of precision. Accordingly, in the absence of clear evidence that there is a significant social problem reflected in this proposed ground, the Commission is not inclined to adopt it as a further prohibition.

5.231 Beyond these matters, the Commission is not satisfied that there is a significant issue of human rights and fundamental freedoms raised by these concerns. The right of an individual to explore his or her personality in particular ways must be accepted: but such matters are not necessarily irrelevant to decisions made by employers and others. Indeed the choice of appearance is often intended to be noticed, not ignored. Consequently, the ADA should not be extended to cover this ground.

Criminal record

5.232 Discrimination because of one’s criminal record can affect many aspects of life and can be extremely wide ranging. It impedes the positive aspects of rehabilitation for the ex-offender and impacts on the family and associates as well. The ADB has indicated that it receives many telephone inquiries about such discrimination from persons who have a criminal record, or have been assumed to have a criminal record, because of an arrest or charge, even if the charge is dismissed. Consequently, the ADB has suggested that this ground is worthy of consideration by the Commission.

Existing provisions in anti-discrimination law

5.233 There are currently limited laws that deal with decision-making based on irrelevant criminal records. In the Federal sphere, such discrimination is not unlawful, but the HREOC has the power to conciliate such complaints.¹⁸⁷

5.234 The Northern Territory, on the other hand, makes discrimination because of irrelevant criminal record unlawful. “Irrelevant criminal record” is defined to include a spent record in terms of the Criminal Record (Spent Convictions) Act 1992 (NT) and a series of other circumstances.¹⁸⁸

Lapsed criminal convictions

5.235 New South Wales, Queensland, the Northern Territory and Western Australia all have legislation that deal with spent convictions. In New South Wales, the Criminal Record Act 1991 specifies the conditions under which an ex-offender may not need to disclose the existence of a former conviction. In Queensland, the Criminal Law (Rehabilitation of Offenders) Act 1986 provides that a conviction against a person will lapse after a “rehabilitation” period. In Western Australia, the Spent Convictions Act 1988 makes discrimination on the basis of a spent conviction unlawful in the area of employment.

5.236 The Commission is conscious that the legislature has addressed the problem of spent convictions in specific legislation. While it accepts that having a conviction may cause adverse responses, in, for example, the area of employment, such responses are not always irrational or unjustifiable. Besides, given that the problems to which such circumstances give rise are properly addressed in specific legislation, there is no compelling reason to address them separately in the ADA.

5.237 While the provisions in relation to spent convictions are useful, they are limited in application to those who have had convictions. As stated above, there are other instances where people are discriminated against on the basis of their involvement with the police, although they may not have been convicted of an offence: for example, where a charge has not been laid or has been withdrawn, and where a person has been discharged without a conviction. While there is a potential for unfairness in relying upon an arrest, criminal charge or acquittal, it may not be irrational or unjustifiable to take into account the conduct which may have led to such a consequence. Nor is it usual to say that a person acquires a particular status in such circumstances. As already noted , there are dangers in seeking to apply the statutory prohibitions in the ADA too broadly. Again, in the absence of a compelling case for extension to such a new ground, the Commission does not support its introduction to the Act.

Unborn children

5.238 Many international covenants and declarations ratified or endorsed by Australia recognise the rights of unborn children. In particular, the Preamble to the United Nations Declaration of the Rights of the Child recognises the need for “appropriate legal protection, before as well as after birth”. The Commission received submissions for¹⁸⁹ and against¹⁹⁰ inclusion of a ground giving effect to these principles in the ADA. Given that the major concern in relation to unborn children is their right to life and safety, the Commission is not satisfied that the ADA is the appropriate forum for dealing with this issue. As one submission noted, the Act seeks to protect people against unjust treatment but cannot be required to provide the protection that a Bill of Rights may give.¹⁹¹ It is also noteworthy that no other Australian jurisdiction includes such a ground in anti-discrimination legislation.

5.239 Because the “unborn child” has no independent existence outside the mother’s body, there are few circumstances in which the question of discrimination could arise, other than life and safety. In relation to protection of life as such, the question is when, and in what manner, the law should determine that the foetus is entitled to protection and abortion is not permitted. In our legal system, that question is determined by the criminal law: there is neither a need nor room for anti-discrimination law to operate in that field.

5.240 In relation to safety, there is no doubt that relevant considerations can arise, for example in relation to the employment of the mother in an industry which involves use of chemicals or other products (including tobacco smoke) which can be present in the workplace and can have a deleterious effect on the foetus. These questions usually arise in relation to the employment of the mother or the provision of services, including in restaurants, to the mother. However, it is not the role of anti-discrimination law to prescribe particular standards of health and safety whether at work or elsewhere. The purpose of the ADA is to ensure that irrelevant considerations are not taken into account in areas such as the provision of employment or other services. This approach does not require the provision of particular protection to the unborn child, as it is not being offered employment or services. Accordingly, the situation which applies in all Australian jurisdictions should be maintained and the ADA should not be extended in some manner to prohibit discrimination against unborn children.

Accent discrimination

5.241 A particular accent may be a characteristic appertaining to a particular race and can also be indicative of social status, although that is more difficult to define. The Commission received no submissions on whether accent discrimination should be a specific ground of discrimination. It is not a ground in any other Australian jurisdiction.

5.242 As noted above, a particular case brought before the Australian Capital Territory Human Rights Office sought to establish discrimination on the basis of accent.¹⁹² The complainant in that case was a woman of Dutch origin. She was passed over for a position as a television newsreader and complained that the adverse decision was on account of her accent and therefore her race. The Commissioner held:

In my view, accent, in some cases, may quite distinctively mark a person as being of a distinctive race, that is, of a certain national or ethnic origin or extraction. Accordingly, in such situations, if a person treats or proposes to treat another person unfavourably on the basis of that person’s accent, such treatment or proposed treatment would amount to racial discrimination within the terms of the Act.¹⁹³

5.244 Where an accent is not characteristic of a particular racial group, it is not obvious that accent may not be a relevant consideration for some forms of employment. Further, if indications of social status are also not appropriate grounds to be included in the ADA, no sufficient case had been made out to include accent discrimination as a separate ground.

Geographical location, social status and occupation

5.245 Although DP 30 raised the question of geographical location and social status as a possible further ground, the Commission received no submissions in relation to the issue. Further, there is no equivalent ground in any other Australian jurisdiction.

5.246 One reason that the matter was raised for discussion was the availability of statistical material which suggests that some community resources, such as university education, may be distributed disproportionately in favour of people of higher social status or living in favoured geographical areas. The statistics in themselves may not indicate any relevant area of concern. For example, if people from rural areas are under-represented in professional faculties at universities, that may depend upon a number of social factors which may determine academic achievement or choice of career path. It may also depend upon a failure by secondary educational institutions to provide equal resources in rural and urban areas. On the other hand, the latter result does not necessarily follow.

5.247 The suggestion that the ground of “profession, trade, occupation or calling” should be included as a ground of discrimination was made to the Commission in a submission¹⁹⁴ on the basis that workers in the sex industry are discriminated against by banking institutions, health service providers etc. The DA (ACT) contains a similar provision,¹⁹⁵ and the Human Rights Office (ACT) has received a few complaints on this ground from persons in various occupations.¹⁹⁶

5.248 In the absence of some compelling evidence to suggest that geographical location, social status or occupation is being treated inappropriately as a basis for decision making, the Commission does not consider that any separate grounds should be formulated in these terms.

Footnotes
1. Anti-Discrimination (Amendment) Act 1994 (NSW).

2. Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW).

3. Anti-Discrimination (Amendment) Act 1994 (NSW).

4. O’Callaghan v Loder [1983] 3 NSWLR 89; Hill v Water Resources Commission [1985] EOC 92-127.

5. Anti-Discrimination (Amendment) Act 1997 (NSW).

6. Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW). See ADA Pt 3A.

7. See ADA Pt 3A Div 5.

8. Anti-Discrimination (Amendment) Act 1981 (NSW) and Anti-Discrimination (Amendment) Act 1982 (NSW).

9. Anti-Discrimination (Amendment) Act 1994 (NSW).

10. Anti-Discrimination (Amendment) Act 1982 (NSW) and Anti-Discrimination (Amendment) Act 1994 (NSW).

11. Anti-Discrimination (Amendment) Act 1994 (NSW).

12. Anti-Discrimination (Compulsory Retirement) Amendment Act 1990 (NSW).

13. Anti-Discrimination (Amendment) Act 1994 (NSW).

14. See Ealing London Borough Council v Race Relations Board [1972] AC 342.

15. L Lustgarten, Legal Control of Racial Discrimination (MacMillan, London, 1980) at 67.

16. King-Ansell v Police (1979) 2 NZLR 531.

17. See Mandla v Dowell Lee [1983] AC 458.

18. New South Wales, Parliamentary Debates (Hansard) Legislative Council, 4 May 1994, at 1827.

19. See below at para 5.141.

20. See Gerhardy v Brown (1985) 159 CLR 70 at 122, per Brennan J.

21. Campos v Tempo Cleaning Service [1994] EOC 92-648 and [1995] EOC 92-720; Lyffyt v Capital Television [1994] EOC 92-557 (ACT); Oset v Ministry of the Cabinet [1990] EOC 92-322 (WA).

22. [1994] EOC 92-648.

23. As defined in s 7(1) of the ADA.

24. [1990] EOC 92-322 (WA).

25. [1994] EOC 92-557 (ACT).

26. See below at para 5.185.

27. New South Wales, Anti-Discrimination Board, “Why don’t you ever see a pregnant waitress?” Summary of Report of the Findings of the Inquiry into Pregnancy Related Discrimination (Sydney, September 1993).

28. [1994] QB 718.

29. The ruling was sought on the following question:

Is it discrimination on the grounds of sex contrary to Council Directive 76/207 for an employer to dismiss a female employee (the appellant)

(a) whom he engaged for the specific purpose of replacing (after training) another female employee during the latter’s forthcoming maternity leave,

(b) when, very shortly after appointment, the employer discovers the appellant herself will be absent on maternity leave during the maternity leave of the other employee, and the employer dismisses her because he needs the job holder to be at work during that period,

(c) had the employer known of the pregnancy of the appellant at the date of the appointment, she would not have been appointed, and

(d) the employer would similarly have dismissed a male employee engaged for this purpose who required leave of absence at the relevant time for medical or other reasons?

31. New South Wales, Anti-Discrimination Board, “Why don’t you ever see a pregnant waitress?” Report of the Inquiry into Pregnancy Related Discrimination (Sydney, 1993).

32. New South Wales, Department for Women and Attorney General’s Department, Gender Bias and the Law: Women Working in the Legal Profession: Report of the Implementation Committee (Sydney, 1996).

33. A number of the submissions to the Commission in response to DP 30 also argued that the provision was unnecessary and anachronistic and advocated its repeal: Anti-Discrimination Board, Submission 1 at 63; Gay and Lesbian Rights Lobby, Submission at 6; NSW Ministry for the Status and Advancement of Women, Submission at 21; National Pay Equity Coalition, Submission at 2.

34. ADA s 24(1B).

35. B Napier, “Fertile Ground for Discrimination” (1992) 18 Law Society’s Gazette at 19.

36. DP 30 at 93.

37. Anti-Discrimination Board, Submission 1 at 62; Commissioner for Equal Opportunity (SA), Submission at 4; NSW Ministry for the Status and Advancement of Women, Submission at 21; NSW Independent Teachers’ Association, Submission at 5; NSW Women’s Advisory Council, Submission at 8.

38. Anti-Discrimination Board, Submission 1 at 62.

39. EOA (Vic) s 6(h); ADA (Qld) s 7(c); EOA (SA) s 29(6); EOA (WA) s 10; DA (ACT) s 7(f); ADA (NT) s 19(1)(f).

40. SDA (Tas) s 16.

41. ADA s 24(1B).

42. This approach was rejected by the two members of the High Court who considered the issue in IW v City of Perth (1997) 71 ALJR 943 at 959-960, per Toohey J and 979-981, per Kirby J. The following comment in the judgment of Kirby J is apposite in the present context:

No reference is made in the description of the comparator to a characteristic appertaining generally to, or generally imputed to, persons having the same impairment. It would have been simple for Parliament to have defined the comparator in terms both of the impairment and the characteristics generally appertaining or imputed to impaired persons. But it did not do so.
The Commission recommends a remedy for this omission in the definition of discrimination: see Chapter 3.

44. See proposed s 38AA.

45. A number of the submissions to the Commission in response to DP 30 specifically argued that “potential pregnancy” should be a separate ground of discrimination under the ADA: Commissioner for Equal Opportunity (SA), Submission at 4; NSW Women’s Advisory Council, Submission at 8.

46. Australia, House of Representatives Standing Committee on Legal and Constitutional Affairs, Half Way to Equal: Report of the Inquiry into Equal Opportunity and Equal Status for Women in Australia (AGPS, Canberra, 1992) (“Lavarch Report”).

47. SDA s 7.

48. See below at para 5.65, 5.212. See also Chapter 3 at para 3.65-3.85.

49. ADA (Qld) s 7(2).

50. Australian Law Reform Commission, The Recognition of Aboriginal Customary Laws (ALRC 31, 1986) Vol 1 ch 12 and 13.

51. ALRC 31 at para 278.

52. Section 19(1A)(c) inserted by Adoption of Children Amendment Act 1987 (NSW).

53. ALRC 31 at para 96.

54. ALRC 31 at para 97.

55. Australia, Human Rights and Equal Opportunity Commission, The Call for Recognition: A Report on the Situation of Australian South Sea Islanders (AGPS, Canberra, 1992).

56. Anti-Discrimination Board, Submission 1 at 69-70; Combined Community Legal Centre Group NSW, Submission at 7; Gay and Lesbian Rights Lobby, Submission at 7; NSW Women’s Advisory Council, Submission at 8. However, it should also be noted that two submissions received by the Commission specifically opposed the inclusion of same sex couples under the definition of “marital status”: J McEvoy, Submission at 2; D Robertson, Submission at 14.

57. [1985] EOC 92-141.

58. [1984] 2 NSWLR 13 (CA).

59. New South Wales, Anti-Discrimination Board, Annual Report 1983/1984 at 99-100.

60. [1991] 25 NSWLR 99 (CA).

61. Considered by the EOT in Williams v Regional Publishers Pty Ltd (NSW, EOT 25/97, 19 March 1997, unreported).

62. Anti-Discrimination (Amendment) Act 1994 (NSW).

63. ADA s 49A(d).

64. DDA s 4(1) “disability”.

65. (1988) 14 NSWLR 252 at 262A-262B.

66. ADA s 49I(1).

67. The submission of the Disability Council of NSW argued that a positive obligation of “reasonable accommodation” should be introduced into the Act: Disability Council of NSW, Submission at 2.

68. A number of the submissions received by the Commission, before the 1994 amendments of the ADA, also argued that the disability discrimination provisions in the ADA should be amended to mirror those in the Commonwealth DDA: Disability Council of NSW, Submission at 3; P Jenkin, Submission at 1; People with Disabilities, Submission at 1; D Robertson, Submission at 13; A Stucken, Submission at 3.

69. See Chapter 3 at para 3.65-3.85.

70. Note that the defence in s 49D(4) only applies in relation to determining who should be offered employment and dismissing the employee.

71. This is because the “unjustifiable hardship” defence only applies to dismissal (and determining who should be offered employment) and not to altering the terms and conditions of employment.

72. Disability Discrimination Legal Centre, Submission at 5.

73. Workers Compensation Act 1987 (NSW) s 152 and 152A.

74. ADA s 49M.

75. [1995] EOC 92-717.

76. Scott v Telstra at 78,398-78,400.

77. (1991) 173 CLR 349.

78. Waters v Public Transport at 361.

79. Waters v Public Transport at 361.

80. Only McHugh J appears to have taken a different approach to this question, but the whole Court treated the matter essentially as a question of fact for the Tribunal.

81. Disability Discrimination Legal Centre, Submission at 2.

82 See Chapter 3 para 3.58 and recommendation 4.

83. The submission of the NSW Users and AIDS Association to the ADB’s Discussion Paper Drugs and Discrimination: Do They Mix? specifically argued that medical and disease models of drug use were inappropriate to explain the reality of drug dependence within contemporary society: NSW Users and AIDS Association, Submission to Anti-Discrimination Board (1 December 1995).

84. See below at para 5.223.

85. New South Wales, Anti-Discrimination Board, Discrimination and Homosexuality (Sydney, 1982) at 11.

86. The submission of the Gay and Lesbian Rights Lobby also argued against the inclusion of “sexuality” or “sexual orientation” as a new ground of discrimination under the Act on the basis that heterosexual people do not experience the same level of discrimination as that experienced in the homosexual community: Gay and Lesbian Rights Lobby, Submission at 9.

87. M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (Oxford University Press, Melbourne 1990) at 83.

88. Call to Australia, Submission 1 at 6; G Higgins, Submission at 1; B Rieneck, Submission at 1. It should also be noted that two of the submissions received by the Commission argued that “homosexuality” should not be included as a ground of discrimination under the ADA at all: Call to Australia, Submission 2 at 6; R Gibbs, Submission at 1.

89. Convention Relating to the Status of Refugees 1951.

90. Victoria and Queensland refer to “lawful sexual activity”; SA and NT refer to “sexuality” but include transsexuality in addition to the others; ACT as per above recommendation.

91. A number of submissions to the Commission in response to DP 30 supported this view: Commissioner for Equal Opportunity (SA), Submission; Gay and Lesbian Rights Lobby, Submission at 8; NSW Ministry for the Status and Advancement of Women, Submission at 19; NSW Women’s Advisory Council, Submission at 8.

92. Anti-Discrimination (Amendment) Act 1994 (NSW). A number of submissions expressed support for the inclusion of “age” as a separate ground of discrimination under the Act: National Children’s and Youth Law Centre, Submission at 2; National Pay Equity Coalition, Submission at 3; NSW Independent Teachers’ Association, Submission at 7; NSW Women’s Advisory Council, Submission at 10.

93. Anti-Discrimination (Compulsory Retirement) Amendment Act 1990 (NSW).

94. ADA s 49ZU(3).

95. [1994] EOC 92-602.

96. United States Code Title 29 s 621(b). The history of the legislation is discussed in K Lindsay, “Age Discrimination and the Academic Work Place” (unpublished LLM thesis, University of Newcastle, January 1996).

97. In a 1996 Report to the Federal Attorney General, the Human Rights Commissioner recommended that “the Commonwealth legislate to provide a comprehensive national prohibition of age discrimination”. See Australia, HREOC, Report of Inquiry into Complaints of Discrimination in Employment and Occupation: Compulsory Age Retirement (AGPS 1996) at 11.

98. Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW).

99. DP 30 at para 5.11; see also New South Wales, Anti-Discrimination Board, Annual Report 1985; New South Wales, Anti-Discrimination Board, Discrimination the Other Epidemic: Report of the Inquiry into HIV and AIDS Related Discrimination (Sydney, 1992) and New South Wales, Attorney General’s Committee, Fighting the Other Epidemic: Report of the NSW Attorney General’s Committee on Monitoring and Implementation of the Anti-Discrimination Board’s Recommendations on HIV AIDS Related Discrimination (Sydney, 1993).

100. Anti-Discrimination Board, Submission 1 at 131-134; Australian Transgenderist Support Association of Queensland, Submission; Commissioner for Equal Opportunity (SA), Submission at 8; K Cummings, Submission at 1; Gay and Lesbian Rights Lobby, Submission at 12; National Pay Equity Coalition, Submission at 3; NSW Women’s Advisory Council, Submission at 9; St John’s Anglican Church, Submission at 1; Transgender Liberation Coalition, Submission at 1-2; Transsexual Action Group, Submission at 1.

101. ADA s 38A.

102. ADA s 4(1). South Australia, the ACT and the Northern Territory allow transgender persons who have undergone a sexual reassignment procedure to alter the record of their birth: Sexual Reassignment Act 1988 (SA). See also Sexual Reassignment Regulations 1988 (SA); Births, Deaths and Marriages Registration Regulations 1997 (NT); Births, Deaths and Marriages Act 1997 (ACT).

103. Or, for persons under 18 years, application may be made by a parent or guardian of a child whose birth is registered in this State.

104. BDMR Act s 32B. It is the opinion of the Crown Solicitor expressed in an advice to the ADB of 14 November 1996 that the requirement of not being married in order to apply to have a birth certificate altered amounts to a breach of s 6(1) of the SDA which prohibits discrimination based on marital status. The Second Reading Speech in the Legislative Council indicates that the reason for this is that the legislation is not intended to overturn the provisions of the Commonwealth Marriage Act 1961(Cth): New South Wales, Parliamentary Debates (Hansard) Legislative Council, 30 May 1996 at 1795. Nevertheless it is unlikely that such a requirement would conflict with the Commonwealth marriage laws.

105. BDMR Act s 32I(1).

106. ADA s 38B(1)(a) and (b).

107. ADA s 38B.

108. Corbett v Corbett [1970] 2 WLR 1306.

109. See, for example, R v Harris (1989) 17 NSWLR 158; Secretary Department of Social Security v HH [1991] 14 ALD 58; Secretary Department of Social Security v SRA (1993) 118 ALR 467; R v Cogley [1989] VR 799.

110. New South Wales, Anti-Discrimination Board, Transgender Discrimination Policy Guidelines (September, 1996) at 5.

111. Anti-Discrimination Board, Transgender Discrimination Policy Guidelines at 6-7.

112. S Else, Submission at 1; St John’s Anglican Church, Submission

at 1; Transgender Liberation Coalition, Submission at 1-2; Transsexual Action Group, Submission at 1.

113. ADA s 38B(1)(b).

114. See Chapter 3 at para 3.91.

115. NSW Crown Solicitor’s Office, Advice to the Anti-Discrimination Board (30 January 1997).

116. Transgender status was added in 1996 and age in 1994. See Transgender (Anti-Discrimination and Other Acts Amendment) Act 1996 (NSW) and Anti-Discrimination (Amendment) Act 1994 (NSW). The substance of mental illness/psychiatric disability was included in the revised definition of disability in 1994; although these specific terms were not used reference is now made to “a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour” (ADA s 4).

117. M Kirby, “Religious Liberty in Multicultural Australia: Past Tolerance – Present Indifference – Future Problems”, paper presented at the International Religious Liberty Association, South Pacific Division, Pacific Congress (Suva, Fiji, 9 June 1993) at 18.

118. Convention Relating to the Status of Refugees 1951 Art 1A(2).

119. Religious discrimination is prohibited in discrimination legislation in most other states. See EOA (Vic) s 4; ADA (Qld) s 7(1); EOA (WA) s 53; DA (ACT) s 7 and ADA (NT) s 19(1)(m). These prohibit religious discrimination but do not guarantee freedom of religion as a right. At the Federal level, the Human Rights Commissioner may attempt to conciliate acts of discrimination based on religion, political opinion or trade union activity. However, discrimination on these grounds is not unlawful under the HREOC Act. The RDA provides some limited protection if a religious group can also be classified as an ethnic group. It can also cover religious discrimination in some circumstances as indirect race discrimination.

120. ADA s 4. This was raised as an issue in DP 30, and has since been enacted in the 1994 amendments to the ADA.

121. Anglican Church of Australia (Diocese of Sydney), Submission at 7; Catholic Education Commission NSW, Submission at 3; NSW Council of Churches, Submission at 2; Wesley Mission, Submission at 1. The Law Society of NSW also put forward the view that a Bill of Rights approach would preferable to adding more grounds of discrimination to the Act: Law Society of NSW, Submission at 5.

122. Ahmadiyya Anjuman Ishaat-I-Islam (Lahore) Sydney, Submission at 1; The Brethren (Universal Christian Fellowship), Submission at 2; Church of Scientology Australia, Submission at 1; Seventh Day Adventist Church, Submission at 2. See also P Fitzgerald, Submission at 10; J Hollier, Submission at 2; M Kirby, Submission at 11; K & M McKenzie & Co, Submission at 2; L Solomon, Submission at 1. See also R Leece, Letter (18 August 1997).

123. See, for example, Marett v Petroleum Refineries (Australia) Pty Ltd [1987] EOC 92-206; Petroleum Refineries (Australia) v Marett [1988] EOC 92-237; Christian Family Schools Association of Australia v Public Transport Corporation [1990] EOC 92-300; Marrett v Accelerated Christian Education [1993] EOC 92-481.

124. Ahmadiyya Anjuman Ishaat-I-Islam (Lahore) Sydney, Submission at 1; Church of Scientology Australia, Submission at 1; Seventh Day Adventist Church, Submission at 2.

125. Seventh-Day Adventist Church, Submission at 2.

126. New South Wales, Anti-Discrimination Board, Discrimination and Religious Conviction (Sydney, 1984).

127. The Anglican Church of Australia (Diocese of Sydney) submitted that, “freedom of religion necessarily requires that a religious body and its adherents be able to discriminate”. See Anglican Church of Australia (Diocese of Sydney), Submission at 2. See also Catholic Education Commission NSW, Submission at 2; NSW Council of Churches, Submission at 2.

128. Wesley Mission, Submission at 1; Catholic Education Commission NSW, Submission at 1.

129. NSW Council of Churches, Submission at 3.

130. Anglican Church of Australia (Diocese of Sydney), Submission at 4.

131. See Metwally v University of Wollongong [1984] EOC 92-030.

132. Anti-Discrimination Board, Discrimination and Religious Conviction at 7-18.

133. Consider, for example, the theistic notion of religion as a concept of relationship between man and a Deity. While this is true for many religions, there are significant strands of Buddhism and other Eastern faiths which even this broad definition would omit. However, this definition of religion has existed, both legally and in dictionaries, until quite recently.

134. Adelaide Company of Jehovah’s Witnesses v The Commonwealth (1943) 67 CLR 116.

135. Adelaide Company of Jehovah’s Witnesses at 123-124.

136. Adelaide Company of Jehovah’s Witnesses at 155, per Sparke J.

137. The Church of the New Faith v The Commissioner of Pay-Roll Tax (Victoria) (1983) 154 CLR 120.

138. The Church of the New Faith at 136.

139. The Church of the New Faith at 140.

140. The Church of the New Faith at 151.

141. Anti-Discrimination Board, Discrimination and Religious Conviction at 26-7.

142. Anti-Discrimination Board, Submission 1 at 135.

143. EOA (Vic) s 6(j).

144. ADA (Qld) s (71)(i).

145. EOA (WA) s 53.

146. DA (ACT) s 7(1)(h).

147. ADA (NT) s 4(4).

148. New South Wales, Anti-Discrimination Board, Discrimination and Political Conviction (Sydney, 1980) at 156.

149. Anti-Discrimination Board, Submission 1 at 145.

150. [1990] EOC 92-296 (WA).

151. Anti-Discrimination Board, Discrimination and Political Conviction at 8.

152. CPS Management Pty Ltd v Equal Opportunity Board [1991] EOC 92-332 at 78,290.

153. [1990] EOC 92-281.

154. In this case Vincent J stated at 77,849:

I find it very difficult to accept the proposition that the legislature intended by the use of words ‘political belief’ to bypass the entire body of law and the structures which have been established at both the Federal and State level to deal with the type of purely industrial relations questions which have arisen in the present matter.

156. Hein v Jaques at 76,795.

157. Australian Bureau of Statistics, Labour Force Australia (October 1997, Cat No 6203.0) Table 35. The total number of employed women for this period was 3,512,200, of whom 1,182,900 had dependents.

158. Anti-Discrimination Board, Submission 1 at 150; NSW Ministry for the Status and Advancement of Women, Submission at 24; National Pay Equity Coalition, Submission at 3; NSW Independent Teachers’ Association, Submission at 7; NSW Women’s Advisory Council, Submission at 10.

159 SDA s 4A(1).

160 SDA s 4A(2)

161. This arrangement would need to take account of the constitutional basis for the various provisions in the Act.

162. SDA s 14(3A).

163. WRA s 170CK(1) and (2).

164. Sick/bereavement leave to provide care or support for a member of their family or household and facilitative provisions in awards to negotiate flexible working arrangements with employers.

165. (1995) 62 IR 48.

166. (1994) 57 IR 121.

167. EOA (WA) s 35A.

168. ADA (Qld) s 7(1) identifies as parental status.

169. EOA (Vic) s 6 identifies as status as a parent or carer.

170. DA (ACT) s 7(1) identifies as status as a parent or carer and ADA (NT) s 4(1) identifies as parenthood.

171. SDA (Tas) s 16.

172. New South Wales, Anti-Discrimination Board, Discrimination and Family Responsibilities (Sydney, 1995).

173. Relative means a person related by blood, marriage, affinity or adoption. The Act also defines near relative to mean spouse, parent, child, grandparent, grandchild, brother or sister.

174 New South Wales, Anti-Discrimination Board, Discrimination and Family Responsibilities (Sydney, 1995) at 14.

175. (1995) 62 IR 48.

176. (1995) 59 IR 1.

177. The NSW definition refers to responsibilities of the employee to care for:

(a) a spouse of the employee;

(b) a de facto spouse, who in relation to a person is a person of the opposite sex to the first mentioned person who lives with the first mentioned person as the husband or wife of that person on a bona fide domestic basis although not legally married to that person; or

(c) a child or an adult child (including an adopted child, a step child, a foster child or an ex-nuptial child), parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employee or spouse or de facto spouse of the employee; or

(d) a same sex partner who lives with the employee as the de facto partner of that employee on a bona fide domestic basis; or

(e) a relative of the employee who is a member of the same household, where for the purposes of this paragraph:


1. “relative” means a person related by blood, marriage or affinity;

2. “affinity” means a relationship that one spouse because of marriage has to blood relatives of the other.

3. “household” means a family group living in the same domestic dwelling.

179. Commonwealth v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191.

180. Section 209 of the IRA makes provision for freedom of association, s 210 states that employees or prospective employees must not be victimised for reasons such as their trade union membership or non-membership. Section 211 forbids an industrial instrument to confer a right of preference of employment in favour of trade union members over non-members. In the Federal sphere, the WRA provides that freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association is one of its objects (See WRA s 3(f) and s 298A, Pt 10A). WRA s 170CK(2)(b) provides that employment must not be terminated because of trade union membership or non-membership.

181. EOA (Vic) s 6(f) and (m).

182. [1994] EOC 92-632.

183. [1995] EOC 92-680.

184. [1995] EOC 92-680 at 78,155.

185. [1994] EOC 92-626.

186. [1994] EOC 92-626 at 77,335.

187. HREOC Act s 31(b). Note also that the Crimes Act 1914 (Cth) provides that an organisation cannot take into account or disclose an individual’s past criminal convictions if they have lapsed. A conviction “lapses” when an adult conviction is more than ten years old and a juvenile conviction is more than five years old.

188. ADA (NT) s 19(1). The Criminal Records Spent Convictions Act 1992 (NT) applies to convictions where the offence was not punishable by imprisonment.

189. Right to Life Association, Submission; J Anderson, Submission; Australian Catholics Pro-Life Association, Submission; C Rice, Submission; Catholic Education Commission NSW, Submission. The main thrust of these submissions was that unborn children are the most defenceless members of human society and are frequently discriminated against by being denied the right to life. The Right to Life Association also stated that the criminal law has failed to remedy the problem.

190. National Pay Equity Coalition, Submission; NSW Women’s Advisory Council, Submission; J McEvoy, Submission.

191. J McEvoy, Submission.

192. Lyffyt v Capital Television (Pty) Ltd [1994] EOC 92-557; also see para 5.19 above.

193 Lyffyt v Capital Television (Pty) Ltd [1994] EOC 92-557 at 77,067.

194. Sex Workers’ Outreach Project, Submission.

195. DA (ACT) s 7.