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