Introduction
Achieving comprehensive anti-discrimination legislation, in which all attributes are protected on an equal footing and well-resourced equality agencies are empowered to effectively enforce such obligations, is not common in the Asia-Pacific region. Jurisdictions have periodically introduced discrimination laws with respect to specific attributes in a piecemeal fashion, with differing spheres of operation and subject to tailored exceptions that make the pursuit of intersectional claims difficult. Over time, incremental reforms have added to the patchwork of coverage. Additionally, very few jurisdictions have effectively operationalised non-discrimination principles by imposing positive obligations on duty holders and providing effective and accessible means of redress to address both individual and structural discrimination.
This article centres the Asia-Pacific as a critical site of inquiry in understanding different legislative approaches prohibiting discrimination and the difficulty of realising discrimination law reform initiatives in the region. While the Asia-Pacific region is a significant global hub of financial and commercial activity, equality and rights-based protections remain underdeveloped at an institutional and organisational level,Footnote 1 and legislative approaches governing discrimination vary markedly. One thing that is common to many states in the region is an apparent reluctance to develop comprehensive legislation that would integrate uniform coverage of a broad range of grounds and enforcement mechanisms.
Exploring the way in which discrimination law reforms have been implemented in two jurisdictions, namely at federal level in AustraliaFootnote 2 and in Hong Kong, this article demonstrates how these processes have resulted in piecemeal rather than comprehensive reforms that have added to the patchwork of coverage, limiting the efficacy of anti-discrimination regulation. These fragmentary provisions sustain inconsistencies that hierarchise protected attributes, some of which are left with non-enforceable pathways to resolution. As a consequence, discriminatory treatment and practices may be perpetuated.
Such an analysis is timely as jurisdictions in the region – such as Singapore and Taiwan – are contemplating new legislative approaches aimed at prohibiting discrimination. Hence this analysis could inform stakeholders, including lawmakers and civil society advocates, of the pitfalls that emerge in pursuing discrimination law reform that could have some application in the design of reform proposals in Singapore and Taiwan.
Our article advances comparative insight regarding the reform of discrimination law in the Asia-Pacific. We first consider some of the foundational questions regarding theoretical approaches to discrimination law, including how non-discrimination is framed in international human rights law, and the politics around discrimination law reform. We then turn to analyse discrimination law reform processes that have occurred in Australia and Hong Kong. Drawing on this analysis, we identify lessons that may be relevant for other jurisdictions in the region in seeking to implement and reform discrimination laws.
We argue that governments in the region should favour comprehensive legislation prohibiting discrimination that provides equitable status for a broad range of attributes, removes inconsistencies and provides efficacious enforcement rather than piecemeal and incremental reforms. This would avoid inconsistencies stemming from patchwork protections, encourage practices aimed at preventing discrimination, whilst providing greater legal certainty to citizens and duty holders alike. Although implementing comprehensive anti-discrimination legislation may be politically challenging to achieve, it is ultimately a worthwhile endeavour in seeking to foster a culture of non-discrimination, enhance legal certainty and promote access to justice. This article is not directly concerned with how discrimination law should be designed in terms of the choice of particular attributes, definitions of discrimination, or the breadth of coverage of discrimination prohibitions per se. Rather it focuses on why pursuing comprehensive legislation should be prioritised over piecemeal reform and considers the messaging conveyed to communities impacted by the failure to pursue comprehensive legislation.
Theoretical approaches to discrimination law
Equality is generally regarded as a foundational concept for establishing laws prohibiting discrimination in liberal democratic societies, and forms part of the wording used in many international instruments and national laws, but what it entails and how it should be given effect is open to different interpretations. The prevailing philosophical debates in this area have not resulted in a clear singular rationale for discrimination laws.Footnote 3 Discrimination has been described as ‘a large and unwieldy moral concept’.Footnote 4 Concepts such as equality, human dignity, autonomy and liberty, have been advanced at various points in time as providing a theoretical basis for discrimination laws. Each of these concepts bring with it further definitional ambiguities and implementational questions.Footnote 5
Prominent theoretical scholars have grappled with the challenge of identifying the purpose, function and justification of discrimination law. As Sophia Moreau argues ‘[…] there are different interpretations of what it is to treat someone as the equal of another, and these interpretations appeal to other values, values such as respect, recognition, deference, freedom and social participation’.Footnote 6 Moreau also suggests that the wrongness of discrimination can be found in a range of different reasons that vary given the particular acts or practices involved.Footnote 7 Further, advancing one particular theoretical approach risks being underinclusive in terms of what prohibitions are warranted or, if not sufficiently precise,Footnote 8 fail to provide any meaningful justification for discrimination law. The complexity of finding a unified theoretical approach is also acknowledged by Tarun Khaitan who argues that there is a significant amount of theoretical confusion caused by the varied questions that arise regarding the purpose, definitions, scope and distribution of rights and duties under discrimination law.Footnote 9
In introducing legislative prohibitions, lawmakers are required to make a range of choices or determinations about the relevant attributes, the scope of coverage, and whether there will be direct legislative proscription, or whether self-regulation will prevail. Each of these choices brings with it its own philosophical considerations. A relevant question is whether there is any normative theory that best supports the idea of pursuing comprehensive discrimination legislation. Expressive theories look to how law makes statements and expresses attitudes.Footnote 10 Some theorists look to the message sent by the relevant law, act or practice to determine whether it signals inferiority or contributes to a lowering of the social status of those groups impacted by discrimination, with the consequence that it fails to treat them as equals or is demeaning.Footnote 11 An example of how this type of analysis has been applied in the field of discrimination law is the Canadian case of Law v Canada Footnote 12 that dealt with whether the common law definition of marriage breached the equality rights of same-sex couples.Footnote 13 Acknowledging the law’s expressive function, the Court stated that the discriminatory exclusion present in the common law definition ‘has the effect of perpetuating or promoting the view that the individual is less capable, or less worthy of recognition or value as a human being or as a member of Canadian society.’Footnote 14 Where there has been a failure to implement laws in a comprehensive manner, can a particular expressive content and social meaning to such laws be identified?Footnote 15 One of the problems that can arise from discrimination laws that prioritise certain protections over others (or contain broad exceptions) is that they can affirm specific social norms that perpetuate discrimination against individuals or groups. Such laws can convey a message that there is a hierarchy of status and thereby have the potential to diminish the dignity and respect to which all citizens are due. Similarly, methods of enforcement can themselves convey a social meaning. Where certain rights are non-justiciable and only supported by consensual processes such as mediation, this can signal that some protections are considered less significant within the legislative scheme. Making provision for broad exceptions may be viewed in a similar way.
While the choices that legislatures make in establishing or reforming discrimination laws can involve decisions regarding the attributes covered, the scope, and exceptions to the legislative prohibitions, it can also involve a choice regarding the rhetoric that best fits with their overall policy objectives. Hence, we often see legislatures adopt language to describe the rationale for such laws that purports to implement a particular understanding of non-discrimination or equality, which may include reference to concepts such as equal regard, dignity or respect.Footnote 16 However, legislatures rarely engage more deeply with theoretical questions regarding the underpinnings of these concepts. Moreover, under the guise of pursuing equality there may be other policy aims that a legislature in a particular jurisdiction might have in mind when establishing or reforming discrimination laws. These aims may instead encompass economic objectives or other social policy goals, such as societal harmony.
Non-Discrimination in International Human Rights Law
Some states look to international human rights law standards when introducing or reforming discrimination law, however these provisions do not, on their own, provide clear guidance. A central purpose conveyed in the United Nations Charter is the promotion of ‘respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’.Footnote 17 Further, core international human rights law treaties present an expanded range of grounds including ‘other status’ that appear to be non-hierarchised and non-exhaustive.Footnote 18 An authoritative interpretive General Comment No. 18 made by the United Nations Human Rights Committee (HRC) in 1989 provides further insight into what constitutes discrimination in practice.Footnote 19 While emphasising the enjoyment of these rights and freedoms on an equal footing, the HRC has acknowledged that this does not necessarily mean identical treatment. Beyond this guidance, the HRC does not specifically direct states as to how to implement the principle of non-discrimination in practice although it does impose a reporting obligation on states parties.Footnote 20 Notably, although constitutional provisions and equal opportunity laws are often used by states parties to provide evidence of adherence to the principle of non-discrimination, the HRC has pointed to the need to understand more about states parties’ measures aimed at addressing ‘discrimination in fact, which may be practised by public authorities, by the community, or by private persons or bodies’.Footnote 21
The field of discrimination law is perceived to have evolved at a relatively fast pace in comparison with other areas of law post-World War II,Footnote 22 and considerably since the adoption of the HRC’s General Comment No. 18 in 1989 with the extension of non-discrimination to grounds such as sexual orientationFootnote 23 and disability.Footnote 24 However, the diffusion of the principle of non-discrimination remains beset by complexity with disparate perspectives regarding the ‘values that should guide its interpretation and application’.Footnote 25 For example, despite the adoption of similar cross-ground comprehensive legislation across European states, in part shaped by the influence of international and regional human rights standards found in the European Convention on Human Rights together with the EU Charter of Fundamental Freedoms,Footnote 26 there is no consistent approach in how anti-discrimination norms are interpreted or applied in practice.Footnote 27
As a result of this lack of certainty stemming from ‘complex issues of law, policy and morality’,Footnote 28 the approach adopted by states to the implementation and reform of discrimination law varies substantially. States parties are in effect left to pursue their own agenda in accordance with their own socio-political and cultural context, as the myriad of approaches used in this area of the law demonstrates.Footnote 29
The Politics of reform
This diversity of approaches is reflective of the choices made by governments. In framing legal obligations and their enforcement, lawmakers confront the fundamental question of when to punish and when to persuade.Footnote 30 It is rarely a stark contrast between direct legislative prescription and allowing market forces to prevail through self-regulation. Nor is it likely that only one approach will find its way into the legislative framework. Pursuing a full agenda of reform that doesn’t create hierarchies or fashion exceptions for certain groups presents significant political challenges. Achieving consensus across political divides is particularly challenging. As Colm O’Cinneide identifies, in some jurisdictions
[s]erious political battle-lines have been drawn up …when it comes to issues such as gay rights, the status of dominant churches and other such ‘flash-point’ issues. In other states, fragile compromises have often been struck, which remain unstable and open to contestation […].Footnote 31
While the introduction of anti-discrimination legislation poses an opportunity to change societal attitudes, the political reality is that more often than not lawmakers arrive at a compromise regarding the scope of legislation in order not to challenge the prevailing social norms.Footnote 32 In terms of political realities, Margaret Thornton suggests that government’s ‘[respond] to those whom it views as its most powerful constituents’ and although individual lawmakers may campaign on particular issues ‘such initiatives can be thwarted by the party if perceived to run counter to the preponderance of mainstream opinion’.Footnote 33 Compromises may sometimes be justified on the basis that this is a step in the right direction, or to avoid societal disharmony, but the issues are rarely revisited. In other respects, the political impetus to pursue some grounds may be lacking or lead to more limited measures that are soft law in nature.
The enactment or amendment of discrimination laws may also be driven by non-state actors, especially civil society organisations and minority groups, which have increasingly adopted a diverse range of strategies, including strategic litigation, as a means of legally mobilising communitiesFootnote 34 to raise awareness about discriminatory practices in a bid to effect social change. However, as Beth Gaze and Belinda Smith note, ‘[t]he political path to protection has proved more difficult for minorities that are small or lack influence.’Footnote 35 Claim-making tends to be more effective when it draws attention to persistent problems that offend the values of society for an extended period.Footnote 36 More recently, global activism has proved to be influential in raising awareness about outdated and ineffective legislative protections prohibiting sexual harassment. In the wave of the #MeToo movement, several state-initiated reforms of sexual harassment laws occurred, including in some Asian-Pacific jurisdictions. The #MeToo Movement was perceived to be influential in Taiwan’s 2023 reform of its Act of Gender Equality in Employment, for example.Footnote 37 However, these campaigns may mirror the political processes in that they focus on discrete areas warranting scrutiny and action rather than promoting a holistic reform process more broadly.
The political alternative of pursuing comprehensive legislation has found increasing support in the concluding observations of the HRC during the periodic reporting process. Since 2010, the HRC has explicitly called upon states parties to develop comprehensive anti-discrimination legislation, including many states parties in the Asia-Pacific region.Footnote 38 For example, in 2014, the HRC called upon Japan to develop comprehensive legislation prohibiting discrimination on all grounds, including sexual orientation and gender identity, in addition to providing effective remedies for discrimination.Footnote 39
The Office of the High Commissioner for Human Rights has similarly promoted the adoption of comprehensive legislation, pointing to the renewed urgency to address inequality and discrimination, the lens of which has sharpened due to the COVID-19 pandemic which exposed the discriminatory and often disproportionate impact of laws and policies, particularly with regard to minoritised groups.Footnote 40 Its 2023 guide, intended to support state-level development of comprehensive anti-discrimination legislation protecting minority rights, identifies several criteria as critical for states parties to consider when developing comprehensive legislation.Footnote 41 These criteria include that all forms and manifestations of discrimination should be prohibited, that protected attributes should be open, extended and non-exhaustive, and that the effective operationalisation of equality in both public and private spheres requires the use of positive duties.Footnote 42
The development of comprehensive legislation however is by no means an easy feat. Discrimination law reform processes in the UK provide some insight into the scale of the project. The process of developing the Equality Act 2010 spanned fourteen years before a unified act was achieved and was initially driven by the need to comply with new EU legislation.Footnote 43 The comprehensive review process sought to streamline and consolidate several existing attribute-specific anti-discrimination regimes and their separate commissions with a view to addressing any inconsistencies. The process also sought to extend equitable protection to other attributes such as religion or belief, age and sexual orientation, the latter ground of which had not enjoyed equitable status as a protected attribute and was previously only covered by secondary legislation. Further, the review process aimed to broaden the application of positive duties to all protected attributes. Previously, public sector equality duties varied in their scope and applied only to disability, race and sex.Footnote 44 While a comprehensive review was undertaken in 2000 and the ensuing report (Cambridge Review)Footnote 45 mapped a new legal framework that sought to harmonise the various pieces of legislation and institutions, this proposal was not actioned immediately although subsequent government reviews built on this initial work.Footnote 46 It would take a further decade before a new omnibus law, the Equality Act 2010, was implemented replacing 116 separate pieces of legislation, nine of which were major pieces of legislation. Although consultations undertaken in achieving the omnibus law were regarded as relatively open, they have nonetheless been described as ‘heavily circumscribed by a number of fundamental choices made in advance’.Footnote 47
One of the main architects of the initial report, the late Professor Bob Hepple, described the consolidated Act as ‘adopting a unitary or integrated perspective of equality’ and the establishment of a single Commission and a single act as marking ‘a decisive shift away from the politics and the law of single identities.’Footnote 48 Hepple suggested that the Equality Act succeeded in this endeavour as it ‘harmonises, clarifies and extends the concept of discrimination, harassment and victimisation and applies them across nine protected characteristics’.Footnote 49 In addition, the Equality Act applied a statutory positive duty to public authorities in terms of having due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations between those persons sharing a relevant protected attribute under the legislation and those not sharing the same protected attribute.Footnote 50 While the Equality Act does provide some evidence of the successful pursuit of comprehensive legislation, some critics have suggested that it provides merely a ‘veneer of a single set of rules,’ and that ‘when you scratch below the surface, there are numerous ways in which the legislation continues to differentiate between the protected characteristics’.Footnote 51 Notably, while some jurisdictions in the Asia-Pacific region have specifically considered the operation of the Act in reviewing their own regulatory approaches aimed at eliminating discrimination,Footnote 52 they have decided against emulating the Equality Act’s design.
Towards a law reform agenda in the Asia-Pacific
Regionally, there are differing approaches to the manner in which discrimination is proscribed. Some take the form of standalone attribute-specific legislation in relation to attributes such as sex, disability, age and race, while others limit their scope to field-specific provisions, for example that operate in employment or educational settings only. Soft-law measures premised on self-regulation and education rather than proscription are also used in the region. Further, the operation of compliance mechanisms in the region are discernibly different, ranging from the restorative dialogue sought to be established through conciliation processes and agency information campaigns at one end of the spectrum to other more interventionist strategies such as prosecutions and legal sanctions.Footnote 53
Another regional variable is whether pursuing discrimination complaints are solely the burden of individuals or whether there are other bodies tasked with enforcement. Some equality agencies, for example the Australian Human Rights Commission (AHRC) and the Hong Kong Equal Opportunities Commission (EOC), play a significant role in the investigation and conciliation of complaints. The AHRC generally lacks capacity to institute proceedings in its own right, but has an amicus curiae roleFootnote 54 and can now enforce breaches of the positive duty in the Sex Discrimination Act 1984 (Cth) (SDA).Footnote 55 In Hong Kong, legal assistance may be provided to complainants in limited circumstances.Footnote 56 In other jurisdictions, limited, if any, enforcement apparatus exist (eg Taiwan), while others (eg Singapore) have prioritised approaches focused on raising awareness and encouraging the adoption of best practices, with some alternative dispute resolution (ADR) mechanisms made available.
Despite this complex range of variables pertaining to anti-discrimination prohibitions in the region, only limited attention has been paid to the Asia-Pacific.Footnote 57 Scholars recognise the importance of examining countries side by side to ‘illustrate similarities and differences in terms of process and outcomes while also recognising the diversity of experiences’.Footnote 58 Although there is some evidence of the cross-fertilisation of regulatory approaches within the region,Footnote 59 as Mustafa Ozbilgin and others note, even across industrialised societies ‘there remain major variations in the interpretation and practice of equality and diversity across national borders,’ which are ‘contingent upon history and place’.Footnote 60
Calls made by the HRC to initiate comprehensive legislation have had little traction in the Asia-Pacific to date, although some states in the region are currently contemplating various discrimination law reforms. Moreover, during the third cycle of the Universal Periodic Review process, several states were similarly recommended to move in this direction.
In the Asia-Pacific, proposals for law reform can come about by a variety of mechanisms. They can result from the work of dedicated law reform commissions or can emanate from research undertaken by equality agencies and other specialist institutions, governmental policy units, law reform research institutions, or parliamentary committees.Footnote 61 In some jurisdictions, bodies that have an economic remit may also be tasked with reviewing and reporting on reforms to discrimination laws, such as the Productivity Commission’s review of the Disability Discrimination Act 1992 (DDA) in 2004.Footnote 62 Reform recommendations can also arise from ad hoc enquiries staffed by experts that are established to investigate specific topics or the operation of particular legislative schemes (eg The Advisory Group on Eliminating Discrimination against Sexual Minorities,Footnote 63 set up by the Hong Kong SAR Government in 2013). In some jurisdictions in the region, such as India, several attempts have been made to introduce comprehensive legislation by a range of actors including politicians and not-for-profit bodies, but these efforts have proved unsuccessful.Footnote 64 More often than not, many such reports languish for long periods without any government action taken, or recommendations are implemented in an incremental, piecemeal approach.
Examples of current reform proposals in the Asia-Pacific include those of Taiwan and Singapore. Taiwan’s Executive Yuan’s Department of Transitional Justice and Human Rights has drafted comprehensive anti-discrimination legislation, the Anti-Discrimination Act, in line with commitments made in Taiwan’s 2022 National Human Rights Action Plan.Footnote 65 Currently, several fragmented laws aim to reduce inequality including field-specific anti-discrimination legislation, applying in educational and employment settings and extending to different protected attributes such as gender, sexual orientation and gender identity (SOGI).Footnote 66 In addition to constitutional protections against discrimination,Footnote 67 other rights-based laws exist in relation to attributes such as disability,Footnote 68 and Taiwan has also engaged with international human rights law standards.Footnote 69 Although there is no statutory equality body, the courts have played a role in litigating complaints.Footnote 70 Amendments made in 2023 to the Act of Gender Equality in Employment 2002 now enable complaints to be filed externally with the local authorities in some cases.Footnote 71 Amnesty International Taiwan has recognised that the draft Anti-Discrimination Act ‘marks a long-overdue departure from the previously incoherent approach’.Footnote 72 It has called on the Taiwanese authorities to prioritise the passage of the act to adequately fulfil the right to ‘non-discrimination and equality for all’ including the establishment of an appropriate equality body with effective oversight of the Anti-Discrimination Act’s implementation.Footnote 73
In Singapore, discrimination complaints have been dealt with through the Fair Consideration Framework, which is situated outside the scope of legislation. Employers are expected to comply with the Tripartite Guidelines on Fair Employment Practices formulated by the Tripartite Alliance for Fair and Progressive Employment Practices (TAFEP), which comprises three bodies, the Ministry of Manpower (MOM), the National Trade Unions Congress (NTUC), and Singapore National Employers Federation (SNEF). In those circumstances where internal grievance processes are unsuccessful, employment disputes may be mediated through the Tripartite Alliance for Dispute Management (TADM).
In July 2021, the Tripartite Committee on Workplace Fairness (Tripartite Committee) was formed with a view to exploring policy options in relation to workplace fairness, which included a reporting period and consultation with civil society groups.Footnote 74 Based on the Tripartite Committee’s recommendations, the MOM developed the Workplace Fairness Bill No 50/2024, the first draft of which was gazetted on 12 November 2024, and subsequently passed on 8 January 2025, despite concerns being raised about the design and operation of the proposed law.Footnote 75 To some degree, Singapore’s proposed Workplace Fairness legislation adopts an omnibus approach with the scope of the proposed legislation extending to several protected attributes including age, nationality, sex, marital status, pregnancy, caregiving responsibilities, race, religion, language ability, disability, and mental health condition. Although same-sex relations were decriminalised in Singapore in 2022,Footnote 76 wider legal sanctions against SOGI discrimination are currently excluded in the design of the legislation as unenforceable grounds. Further, the Workplace Fairness Legislation only covers direct discrimination and thus falls short of the Office of the High Commissioner of Human Rights’ recommendation that all forms and manifestations of discrimination should be prohibited. A second related bill, the Workplace Fairness (Dispute Resolution) Bill No 17/2025 on remedies was passed on 4 November 2025. Together these bills will be consolidated in The Workplace Fairness Act 2025, which will enter into force in late 2027, but its application will be limited − employers with less than twenty-five employees will be exempt from the legislation for a period of five years.
Given these examples of current reform proposals in the region, we now turn our attention to exploring the way in which discrimination law reforms have sought to be implemented in relation to Australia’s federal discrimination laws and in Hong Kong, as lessons from these jurisdictions may be relevant to law reform processes in the region.
Examining discrimination law reform processes in Australia and Hong Kong
Australia and Hong Kong both have long-entrenched prohibitions against different forms and manifestations of discrimination. Reform processes in both jurisdictions during the past couple of decades have presented an opportunity to revisit the scope and nature of anti-discrimination protections, but these reform attempts have fallen short in each jurisdiction. Australia’s attempt to develop consolidated legislation prohibiting discrimination across several protected attributes ultimately failed, and instead the process led to the addition of new grounds without following through on other substantive reforms. Subsequently, Australia’s federal discrimination laws have seen reforms implemented with respect to harassment and the introduction of positive duties under the SDA, but these innovations do not apply to other attributes. In Hong Kong, the EOC initiated its first comprehensive review of Hong Kong’s suite of anti-discrimination laws in 2013Footnote 77, but the review stopped short of examining whether comprehensive legislation should be developed. The review findings resulted in the Hong Kong Special Administrative Region (SAR) Government enacting limited reforms demonstrating constraintFootnote 78 and a missed opportunity for the advancement and strengthening of anti-discrimination legislation.
Federal Discrimination Law Reform in Australia
The scope of legislative protections from discrimination under federal discrimination laws has been implemented in a piecemeal manner with respect to discrete attributes over many decades, with the main legislative instruments adopted in respect to race in 1975, sex in 1984, disability in 1992, age in 2004, and sexual orientation, gender identity and intersex status added in 2013 as an amendment to the SDA. This siloing of grounds in discrete legislative schemes has been critiqued as particularly problematic for pursuing intersectional claims. It is argued that the structure of the legislation does not allow ‘the complexity of identity and its impact on the experience of discrimination to be revealed’.Footnote 79 Claims can in theory be brought under this structure by relying on separate acts concurrently, however in practice complaints of this kind are uncommon.Footnote 80 In addition to these bespoke pieces of legislation, the Australian Human Rights Commission Act 1986 also provides protections against discrimination in relation to particular attributes in the context of work as a consequence of Australia’s commitment to the International Labour Organization (ILO) non-discrimination convention.Footnote 81 The limitation of this alternate statutory scheme is that it does not meet the definition of unlawful discrimination under federal law and therefore does not lead to enforceable outcomes. Attributes such as sexual orientation and age were initially part of this alternate statutory scheme until dedicated federal legislative protections against discrimination were introduced. Some grounds remain within this sphere and have not progressed to enforceable grounds federally, for example discrimination with respect to criminal recordsFootnote 82 and political opinion.Footnote 83
The HRC has consistently called on Australia to develop federal level legislation covering all grounds of discrimination, recognising that existing legislative prohibitions in Australia’s federal law do not give adequate effect to articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR).Footnote 84 Over time, the HRC has become more resolute in calling on Australia to consolidate its existing laws in order to give ‘effective substantive and procedural protection against all forms of discrimination on all the prohibited grounds, including religion, and intersectional discrimination’.Footnote 85 While the consolidation of Australia’s federal discrimination laws has been considered by successive governments, reform efforts have thus far fallen short.
Attempt to consolidate Australian federal discrimination laws
In the early 2010s, a reform process was initiated in Australia aimed at consolidating the five pieces of relevant federal discrimination legislation into one comprehensive piece of anti-discrimination legislation. Many submissions focused on what form this consolidated Act should take, and sufficient progress was made for an exposure draft Bill to be released in 2012. One of the stated aims of the proposed Bill was to ‘reduce complexity and inconsistency in regulation to make it easier for individuals and businesses to understand rights and obligations under the legislation’.Footnote 86
The Human Rights and Antidiscrimination Bill 2012 (Cth) proposed a number of innovations, such as a new definition of discrimination,Footnote 87 a general justifiable conduct exception,Footnote 88 a shifting burden of proof,Footnote 89 and a realigned costs regime to reduce the chilling effect of the risk of a complainant being required to pay the respondent’s costs should their litigated claim fail.Footnote 90 Protections against SOGI discrimination were also included in the omnibus Bill. However, there were a range of important areas where the Bill proposed no changes to the substantive law, such as the failure to reframe the existing negatively defined duties to refrain from discrimination into positive obligations, the absence of any expanded reasonable adjustment duties to attributes beyond disability, and no extension of the equality before the law provisions to attributes other than race.
In other respects, the consolidation project was a missed opportunity to address structural and regulatory problems. Although some new voluntary co-regulation measures were proposed, the regulatory framework for the enforcement of federal discrimination laws remained essentially an individual, complaints-driven model. No provision was made in the Bill for empowering an equality agency to pursue strategic litigation as of means of encouraging compliance or investing an agency with a broader range of regulatory enforcement powers.
The subsequent Senate Legal and Constitutional Affairs Committee enquiry and report on the draft Bill,Footnote 91 and the ongoing public debates that the Bill triggered regarding the appropriate balance between free speech and protections against vilification contributed to the stalling of these reforms. The then Attorney General stated that:
The Committee’s inquiry into the draft Bill recommended significant policy, definitional and technical amendments which go well beyond the scope of the intended project. Nearly 100 recommendations were identified and will require deeper consideration in the process of consolidating five anti-discrimination acts into one piece of legislation.Footnote 92
However, the federal government chose to proceed with the SOGI and Intersex protections contained in the Bill through amendments to the SDA instead,Footnote 93 on the basis that these protections were ‘long overdue’ and ‘too important to be delayed any further’Footnote 94. While at the time the federal government stated an intention to continue with the consolidation project, it has not been revived. Any reforms since the failed consolidation project have only been with respect to discrete areas and not in the form of comprehensive reform.
Religious discrimination
Attempts to include statutory protection against religious discrimination to the suite of federal anti-discrimination statutes over the last decade have been controversial and ultimately unsuccessful. In 2017 an Expert Panel on religious freedom was appointed to examine whether Australian law adequately protected the human right to freedom of religion, chaired by the Hon Philip Ruddock former Liberal government Minister. The resulting report, the Religious Freedom Review,Footnote 95 made twenty recommendations to enhance the protection of the right to freedom of religion in Australia. In 2019, the Morrison Coalition Government indicated its intention to legislate protection against religious discrimination. Two draft exposure Bills were released for public comments in 2019, and a further Bill tabled in parliament in 2021. However, the manner in which this coverage was drafted, with a strong emphasis on freedom of religion, provoked considerable controversy and many submissions from interested parties. At the heart of the controversy was whether the proposed law achieved an appropriate balance with other protected rights (such as sexual orientation, gender identity and intersex status) and the extent to which the legislation should exonerate discriminatory acts and statements by faith-based organisations and individuals against others, where this conduct would otherwise be protected under other federal, state and territory discrimination laws. On 25 November 2021, the Religious Discrimination Bill 2021 (Cth) (2021 Bill) was tabled in Parliament. On 26 November 2021, the Attorney-General referred the 2021 Bill to the Parliamentary Joint Committee on Human Rights. The Bill was also referred to the Senate Legal and Constitutional Affairs Legislation Committee. Ultimately when the 2021 Bill was debated in Parliament, it was passed in the House of Representative with Labor and cross bench amendments to provide protections for LGBTIQ+ students, but the government withdrew the Bill before it was debated in the senate, anticipating it would be defeated on the floor of the Parliament. In August 2024 the federal government indicated that it would not proceed with a new iteration of the Religious Discrimination Bill due to lack of bipartisan support, with the Prime Minister stating, ‘One of the things I’ve spoken about is the need for greater social cohesion. And the last thing that Australia needs is any divisive debate relating to religion and people’s faith’.Footnote 96
Despite the inclusion of protections for sexual orientation, gender identity and intersex status referred to earlier, the area has remained a topic of public debate, particularly with respect to exceptions for religious bodies and educational institutions. The scope of exemptions in federal discrimination laws was subject to an extensive review by the Australian Law Reform Commission. The Commission’s 2023 Report recommended that the Sex Discrimination Act be amended to explicitly forbid religious educational institutions from discriminating on the basis of sex, sexual orientation, gender identity, marital or relationship status, or pregnancy against teachers, all other workers, and students and their parents.Footnote 97 The Report was only made publicly available by the federal government in March 2024, and the government indicated that it would not proceed with implementing the recommendations.
Sexual harassment reforms
Extensive evidence-based research on sexual harassment and respect at work has been a significant driver of law reform regulating sex discrimination and sexual harassment, as well as changes to enforcement practices. Kate Jenkins, former Sex Discrimination Commissioner of the AHRC (2016−2023) initiated a national inquiry into workplace sexual harassment in June 2018.Footnote 98 The resulting Report contained fifty-five recommendations,Footnote 99 coinciding with public interest and momentum for change around the #MeToo Movement. However, despite this public interest the then federal government’s initial response involved limited implementation of the core recommendations.
The Morrison Government responded by releasing a document outlining a ‘roadmap’Footnote 100 for implementing change in which the government’s priorities were identified as being in relation to the establishment of a Respect@Work Council, facilitating data collection, research and guidance material, and education and training. On the issue of legislative and regulatory reforms, the government supported amendments regarding the scope of the definition of harassment to include sex-based harassment and extending its application to judges and parliamentarians. However, the government declined to introduce a new positive duty in the SDA on the basis that this could add further complexity given the existence of a positive duty under Workplace Health and Safety legislation. It was also reluctant to commit to greater regulatory powers for the AHRC on the basis that it might pose a risk to its neutrality in seeking to resolve complaints. Along similar lines, it regarded the power to make a ‘stop bullying order’ in the Fair Work Act as adequate for dealing with sexual harassment without the need for a dedicated mechanism for complainants to bring sexual harassment at work to an end.
It would take a change of government for the balance of the recommended reforms to be taken up through amendments introduced by the Labor Government pursuant to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).Footnote 101 In terms of scope, the amendments make it unlawful to subject another person to a workplace environment that is hostile on the ground of sex, and lowered the test for a finding of sex-based harassment under the SDA. These amendments also introduced a positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct, including sex discrimination, sexual harassment, sex-based harassment and certain acts of victimisation in the workplace context. This positive equality duty requires that employers implement proactive and meaningful measures to prevent sexual harassment and other forms of unlawful conduct to create safe and inclusive workplaces. All organisations, irrespective of their size or resources must meet the positive duty through for example, the development of a sexual harassment policy and training programmes, establishing appropriate channels to report sexual harassment, and responding immediately to instances of sexual harassment.Footnote 102
The 2022 amendments also conferred new functions and powers on the AHRC to monitor and assess compliance with the positive duty in the SDA, with effect twelve months after the provisions came into operation. Related changes to give effect to recommended reforms in the fair work system were given effect under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).Footnote 103 The recommended changes to the costs model in the Respect@Work Report were not implemented in either the 2021 or 2022 legislation. Following a further Senate Committee report dedicated to this issue, a new costs regime for federal discrimination law claims was passed in 2024 when a consensus was finally achieved.
Recommendations for broader reforms
The AHRC’s 2023 Report on a reform agenda to protect human rights at the federal level describes Australian’s federal discrimination laws as ‘outdated and difficult to use’ with some of these laws remaining ‘substantially untouched since they were introduced more than 30 and 40 years ago’ and ‘often unsuccessful as a means of remedying discrimination, let alone preventing it.’Footnote 104 The report indicates that federal discrimination laws have ‘fallen behind other comparable jurisdictions within Australia and internationally,’ with many detailed proposals for law reform presented by bodies such as the Senate legal and Constitutional Affairs Committee and the Productivity Commission,Footnote 105 left unaddressed for decades.Footnote 106
The discrimination law reforms proposed in the AHRC’s 2023 Report seek to modernise the legislative scheme and move from a reactive to a more proactive and preventive approach. Drawing on the AHRC Position Paper in 2021, Free and equal: A reform agenda for Federal discrimination law,Footnote 107 the report recommends the staged implementation of various proposals, with urgent technical fixes to improve the operation of federal discrimination laws to be addressed in the short term, combined with a general commitment to undertaking broader reforms to shift to a co-regulatory model in the future.Footnote 108
The report sees the failure to reform federal discrimination laws as continuing ‘to create inefficiencies for business, impeding access to justice, and means that there are ineffective protections against discrimination at the national level’ and that the area is ‘riddled with complexities an inconsistencies’ and ‘uneven levels of protection depending upon which characteristic discrimination is based on.’ Footnote 109 The report also describes federal discrimination law as not providing ‘adequate support to the business sector to take proactive efforts to address potential discrimination’.Footnote 110 A core reform recommendation is that each of the federal discrimination laws be amended to include a positive duty to take reasonable and proportionate measures to eliminate unlawful discrimination and that this duty operate not only in relation to work but in relation to all areas of public life governed by discrimination laws, and be accompanied by appropriate enforcement mechanisms. Footnote 111
Regarding enforcement, the report also indicates that the review and expansion of regulatory and investigative powers in other areas of federal law over the past ten years, such as work, health and safety, and consumer laws, has not extended to discrimination laws, ‘suggest[ing] a lack of engagement from governments of the past decade in this area of law’.Footnote 112 The report describe the powers of the AHRC in relation to unlawful discrimination matters as ‘almost entirely based on persuasion, reliant on education and awareness raising and, where disputes arise, alternative dispute resolution’.Footnote 113 Acknowledging that ADR can be empowering for complainants and may lead to effective resolution, the report nevertheless states that the AHRC ‘should not bear the bulk of responsibility for ensuring compliance with discrimination laws’.Footnote 114
The Report refers to the thirty-eight reform proposals outlined in the 2021 Position Paper and notes some were implemented in whole or in part in the legislative responses to the Respect@Work Report in 2022, and that some proposals intersect with recommendations of the Disability Royal Commission’s Report in 2023. The Report proposes a roadmap for the staged implementation of reforms with some to be undertaken immediately and others to be pursued as longer-term reforms.
In the category of outstanding reforms that should be undertaken immediately, the report includes the introduction of religious discrimination protections, changes to reasonable adjustments under the DDA, the extension of protections for family and carer responsibilities to areas beyond work and to indirect discrimination as well as the protection of volunteers and interns and dealing with the cost-related issues. Proposed longer term reforms include for example, the introduction of positive duties for all protected attributes, the revamping of disability discrimination action plans and review of disability standards, extending the range of regulatory powers available to the AHRC, the removal of the comparator test for proving discrimination, clarifying the meaning of special measures in the Racial Discrimination Act 1975, the regular review of all permanent exemptions, and that consideration be given to introducing an intermediate adjudicative process that sits between conciliation by the AHRC and litigation in the federal courts.Footnote 115 These longer term reforms are categorised in the report as ‘likely to require more substantive and holistic changes to legislation, potentially by way of consolidation of discrimination laws’Footnote 116 pointing to the need for comprehensive legislation, rather than separate acts dealing with discrete grounds.
Discrimination Law Reform in Hong Kong
Hong Kong’s regulatory journey towards the elimination of discrimination occurred substantially later than that of Australia’s and coincided with the lead up to Hong Kong’s transition to Chinese sovereignty, when the British Colonial Government took steps to legislate rights-based protections.Footnote 117 The mid-nineties was a pivotal period for the development of a regulatory framework on equal opportunities. Former legislator, Anna Wu, initially tabled a private members bill to introduce comprehensive legislation on equal opportunities at the Legislative Council. However, the development of omnibus legislation did not gain traction and as an alternate pathway, the British Colonial Government adopted standalone legislation against sex-based discrimination in 1995, allowing for the establishment of the EOC.Footnote 118 At the same time, standalone legislation against disability discriminationFootnote 119 was adopted followed subsequently in 1997 by legislation prohibiting family status discrimination.Footnote 120
Supplementing this legislation, codes of practice under each ordinance, which are relatively narrow in remit as they primarily relate to employment, provide further guidance to employers and employees on a range of issues including for example, the principle of equal pay for equal work and equal pay for work of equal value.Footnote 121 The codes of practice do not apply to other settings such as the provision of goods and services, although there exists an additional Code of Practice on EducationFootnote 122 under the Disability Discrimination Ordinance 1995 (Cap. 487), which provides further guidance regarding the application of the statute in an educational context, including the use of reasonable accommodations for students with a disability.Footnote 123 These statutory codes of practice do not create legally binding obligations such as placing a positive duty on employers to take steps to prevent discrimination, but they may be admissible as evidence in court to establish whether duty holders have taken ‘all reasonable steps practicable’ to follow any specific guidelines outlined in the codes of practice. The EOC has also developed other non-statutory, policy guidance to support duty holders in implementing their legal obligations under the four anti-discrimination ordinances.
Notably, the passage of legislation prohibiting race-based discriminationFootnote 124 occurred much later than other enforceable grounds after a protracted and contentious period of debate,Footnote 125 providing a litmus test for whether any regulatory innovations would be considered in the design of the ordinance. Prior to the enactment of the Race Discrimination Ordinance 2008 (Cap. 602) (RDO), the Hong Kong SAR Government prioritised education and self-regulation in relation to race discrimination.Footnote 126 In the lead up to the enactment of the RDO, equality scholar Carole Petersen suggested that rather than merely replicating the design of earlier legislation prohibiting discrimination in relation to the attributes of sex, disability and family status, the drafting of the RDO provided the Hong Kong SAR Government with an opportune moment to review, reform and strengthen the existing equal opportunities enforcement model.Footnote 127
In designing the RDO, rather than engage in any comprehensive reform of the equal opportunities enforcement model, the Hong Kong SAR Government instead limited the scope of coverage in relation to government acts and policies, impinging upon the EOC’s jurisdictional oversight of the ordinance.Footnote 128 The resultant ordinance is perceived to be weaker than earlier legislation on sex-based and disability-based discrimination, providing inadequate protection from racial discrimination by the Hong Kong SAR Government in the exercise of its powers and functions,Footnote 129 including the operations of the Hong Kong Police Force. Internationally the HRC has also expressed concern that in comparison with other anti-discrimination ordinances in Hong Kong, the limited scope of the RDO fails to adequately comply with article 26 of the ICCPRFootnote 130
Currently, age as well as SOGI discrimination remain unenforceable grounds. Although a non-binding Code of Practice against Sexual Orientation Discrimination in Employment (Code of Practice) exists, it falls outside the jurisdiction of the EOC and is instead administered by the Constitutional and Mainland Affairs Bureau (CMAB). Organisations voluntarily sign onto and pledge their commitment to the Code of Practice.Footnote 131 Although the CMAB operates an enquiries and complaints hotline,Footnote 132 it does not have statutory power to intervene in any complaints concerning individuals or private organisations. Despite this reliance on self-regulation, the notion that voluntary procedures alone can incentivise widespread changes in discriminatory practices has been described by Hepple as ‘illusory’ as ‘voluntarism can work only if there is the possibility of gradual escalation of sanctions by the regulator.’Footnote 133
To some degree the development of regulatory approaches emulates that of Australia.Footnote 134 The Hong Kong SAR Government has taken a ‘step-by-step’ approachFootnote 135 adopting incremental reforms rather than taking steps to develop comprehensive legislation. This piecemeal approach has led to a patchwork of standalone legislative protections against discrimination that vary dependent on the nature of protected attributes, inhibiting the pursuit of intersectional discrimination claimsFootnote 136 with significant consequences for marginalised groups who may experience discrimination on multiple grounds.Footnote 137 Long-entrenched protections against sex, disability, family status, and latterly race discrimination provide some redress for discriminatory behaviours in the workplace, educational settings, and in the provision of goods and services. However, several general exceptions limit the scope of anti-discrimination laws, including for example where an employer can demonstrate that it is a genuine occupational qualification for an employee to be of a specific sex for privacy or other reasonsFootnote 138 or that it is an inherent requirement of a job.Footnote 139 Some exceptions are specific to Hong Kong’s socio-cultural context - although contentious, any discrimination between men and women arising from the Small House Policy, which enables only Indigenous male villagers to build a small house,Footnote 140 is exempt under the SDO.Footnote 141
Comprehensive review and reform
Hong Kong’s approach to discrimination laws has been critiqued for its narrowly framed focus on discriminatory behaviours that have already occurred.Footnote 142 Steps are yet to be taken to incorporate positive equality dutiesFootnote 143 into the suite of anti-discrimination laws, which would support the maturation of provisions beyond their existing scope.
Following the enactment of the RDO, in 2013, the HRC called upon the Hong Kong SAR Government to reform the RDO in consultation with the EOC to address loopholes in the legislation, and also urged the government to consider introducing comprehensive legislation in accordance with the ICCPR.Footnote 144 There has been some momentum to revisit long entrenched discrimination prohibitions including consideration of whether the scope and coverage of existing provisions remain fit for purpose. Approaching the twentieth anniversary of the EOC’s founding, there was an accelerated push by the EOC to undertake its first comprehensive review of Hong Kong’s anti-discrimination laws. In 2013, the EOC initiated the Discrimination Law Review (DLR), the purpose of which was to consider whether the existing suite of anti-discrimination laws needed to be modernised. Within the remit of the DLR, the EOC did not specifically evaluate whether comprehensive legislation should be developed. The EOC recognised that this question would require a separate, extended consultation process by the Government, in a similar vein to those consultation processes that occurred when the original anti-discrimination ordinances were adopted.Footnote 145
As a result of the DLR, the EOC subsequently made seventy-three recommendations to the Hong Kong SAR Government, twenty-seven of which were deemed to be urgent.Footnote 146 These recommendations included the provision of a positive equality duty under the DDO, expressly requiring duty holders to make reasonable accommodations across all fields for persons with disabilities. Notably, only seven recommendations were implemented, primarily via the Discrimination Legislation (Miscellaneous Amendments) Ordinance 2020. Workplace harassment is now inclusive of breastfeeding, disability, racial and sexual harassment, and extends to a range of ‘workplace participants’Footnote 147 including interns and volunteers. Unless employers as duty holders have taken appropriate steps to alleviate the risk of workplace harassment such as developing training programs or policies against sexual harassment, they may be held vicariously liable for harassment by workplace participants. The recognition of breastfeeding as a protected attribute was legislated via the Sex Discrimination (Amendment) Ordinance 2021 and came into force on 19 June 2021.
Significantly, the Hong Kong SAR Government did not legislate other recommendations including ensuring that women are able to return to the same position post-maternity. The EOC suggested that the Small House Policy exception no longer served a legitimate aim nor was proportionate in its discriminatory effect against women, Footnote 148 and recommended that discriminatory aspects of the Small House Policy should be repealed, however no action was taken by the Hong Kong SAR Government. In 2019, following a legal challenge, the Court of Final Appeal upheld the Small House Policy as constitutional,Footnote 149 despite a clear tension between ‘traditional’ rights enjoyed by Indigenous residents and equality.
Extending protected attributes
In response to the DLR, some submissions received by the EOC suggested the expansion of protected attributes to include age, sexual orientation, gender identity, religion and other attributes. Parallel to the DLR, the EOC invested in targeted research studies on excluded grounds including and age discrimination in employmentFootnote 150 and SOGI discrimination.Footnote 151 Notably, the EOC has not initiated any exploratory studies in relation to religion.
The EOC’s Exploratory Study on Age Discrimination in Employment examined the feasibility of legislating against age discrimination. The study noted that the majority of respondents supported age-based anti-discrimination legislation but that employers had raised concerns that any such legislation would inhibit decision-making with respect to the employment cycle.Footnote 152 The findings acknowledge that age-discrimination occurs across the spectrum impacting both younger and older workers, which is of particular concern given Hong Kong’s aging population.
Similarly, the EOC commissioned study on SOGI discrimination examined the feasibility of adopting anti-discrimination legislation on the grounds of SOGI (feasibility study).Footnote 153 In the public sector, the Bill of Rights Ordinance 1991 (Cap. 383) prohibits sexual orientation discrimination, and is binding on the Government, public authorities, and any persons that act on behalf of these entities.Footnote 154 However, the absence of legislative protection against SOGI discrimination presents a major gap in anti-discrimination legislation. Drawing on the body of evidence presented in the feasibility study regarding the prevalence of SOGI-based discrimination in society, the EOC recommended that the Hong Kong SAR Government proceed to develop legislation prohibiting SOGI discrimination.Footnote 155 The feasibility study pointed to consolidated, attribute-specific and field-specific (for example, in employment and education) models as well as approaches in regional jurisdictions influenced by Chinese culture such as Taiwan that could inform the design of any legislation.Footnote 156 The EOC sought to incentivise the Hong Kong SAR Government by pointing to the significant ‘opportunity for Hong Kong to become the leading jurisdiction on LGBTI equality in Asia’.Footnote 157
Despite the EOC’s recommendations, the feasibility study’s findings have had limited traction, and Hong Kong’s political leadership on LGBTI equality has not materialised. In part, the recognition of SOGI as a protected attribute has been hindered by several factors including opposition from a range of stakeholders including parental concern groups and conservative Christian groups.Footnote 158
Currently, there seems little prospect of anti-discrimination prohibitions on the grounds of SOGI being legislated despite longstanding acknowledgement of the Code of Practice’s limitations. In 2012, former Legislative Councillor, Cyd Ho tabled a member’s motion on the equal rights for people of different sexual orientations at the Legislative Council, calling for a consultation to be launched on legislation. The motion was defeated despite recognition that publicity and educational measures taken by the Hong Kong SAR Government including the guidelines themselves had ‘all along been unable to effectively protect people of different sexual orientations against discrimination, harassment and bullying’.Footnote 159
While there have been several high-profile judicial review cases that have advanced recognition of SOGI rights, the Hong Kong SAR Government, as an employer in its own right, has been criticised by the Court of Final Appeal in a 2019 landmark decision on spousal benefits for its failure to follow its own policy guidance on sexual orientation discrimination in employment.Footnote 160 Although strategic litigation has helped to raise awareness of discriminatory practices by government departments, the territory’s complex evolving socio-political and legal landscape has subsequently inhibited the tabling of any legislation prohibiting SOGI discrimination at the Legislative Council.Footnote 161
Reflecting on Discrimination Law Reform in the Asia-Pacific Region
The nominated jurisdictions of Australia and Hong Kong provide a good illustration of the challenge of having introduced a raft of anti-discrimination laws with respect to specific attributes at a point in time when there was sufficient political and social consensus to proscribe discriminatory treatment with respect to selected attributes, but where subsequent attempts to either consolidate or institute broader reforms have proved to be problematic. It is difficult to point to one factor that explains why reforming discrimination laws has proved to be so challenging in both Australia and Hong Kong. There is no shortage of evidence-based research undertaken and reports compiled by a range of government and other relevant bodies that map the way in which discrimination law protections could be developed including how legislative frameworks may be improved, but many of these reform recommendations are not carried through to achieve legislative change.
In the face of political opposition, governments in the region appear unwilling to proceed with reforms if they appear likely to cause social discord, particularly where the laws might be regarded as undermining traditional conservative socio-cultural values with respect to religious belief or sexual orientation. There also seems to be a political preference for the staged implementation of changes that sees less controversial dimensions of reform agendas implemented while other issues are left unaddressed, sometimes with an undertaking to revisit them in the future. The creation of exceptions or exemptions to anti-discrimination legislation often fall into this category, on the basis that they will be reviewed subsequently, but unless they are subject to a time limit or a sunset clause, they tend to remain in place indefinitely even in the face of reform recommendations suggesting they be reframed or limited in scope.
One area in particular where there has been little progress is in relation to changes in the nature of legal prohibitions. Over time, the framing of non-discrimination obligations has progressed since the period in which Australia and Hong Kong first introduced anti-discrimination legislation. This involves recognising that prohibiting discriminatory treatment, while necessary, should be supplemented by positive equality duties that involve proactive measures to pre-empt and eliminate discrimination, rather than simply remedying discrimination once it has occurred. The positive duty implemented in Australia in 2022 is a step in the right direction but has a limited scope as it only operates in relation to sexual harassment and sex discrimination. Despite the recommendation by the AHRC in 2023 that this positive duty be replicated for all protected attributes, this seems unlikely to be achieved in the short term and the AHRC acknowledged that this outcome would probably only be feasible with consolidated anti-discrimination legislation.
Another area where little reform has been implemented has been in relation to investing equality bodies with the type of regulatory powers common to other enforcement agencies operating in commercial, health and safety or workplace contexts. When equality bodies were initially established the prevailing notion was that ADR mechanisms such as conciliation and mediation were most suitable for the type of complaints involved, and the confidentiality of such processes preserved the party’s privacy. However, regulatory trends have evolved over time and greater emphasis is now placed on agency engagement in strategic enforcement of the law to address egregious breaches thereby challenging structural and systemic problems. In its 2023 Report, the AHRC categorised its powers as largely based on persuasion, education and ADR, and acknowledged that while ADR can be useful for resolving individual complaints, it should not be the primary means of enforcing compliance with discrimination laws. The public enforcement of claims can also provide a critical mass of case law to guide the development of the jurisprudence in the area.
Both Australia and Hong Kong are jurisdictions where some attributes that are subject to anti-discrimination protection lack the legislative framework to achieve enforceable outcomes. In Australia, attributes such as age and sexual orientation have progressed from such a position to now being the subject of unlawful discrimination prohibitions, but the enforcement of other attributes remains limited. Hong Kong has persistently maintained a preference for education and self-regulation in relation to the attributes of SOGI and age. This approach deploys persuasion and education over prohibitions and enforcement. While this approach can be effective for duty holders who are motivated to comply with non-discrimination obligations, it can lead to minimal or tokenistic compliance due to a lack of oversight.
There has been some commonality across the region regarding the need to establish more effective regulation of sexual harassment to promote and facilitate greater participation of women in the paid workforce. Many jurisdictions have recognised that existing laws have failed to diminish the persistent and prevalent problem of workplace sexual harassment and that other regulatory responses should be implemented. In part, this momentum for change has been boosted by the focus that the #MeToo movement brought to the issue of sexual harassment globally. However, even when laws have been updated, this may still take the form of staged reform, as the legislative change in Australia on this issue by successive government shows. Additionally, reforms such as outlawing discrimination based on pregnancy, family or carer responsibilities and breastfeeding, and implementing flexible work and parental leave entitlements are often presented as ways of enhancing the workforce participation of women. Although these types of reforms can form part of a gender equality framework, they are often instituted for more mundane reasons focused on enhancing economic prosperity rather than driven by human rights goals.
States engaging in discrimination law reform include Singapore, which is currently undertaking a process whereby some discrimination protections that have been the subject of soft-law measures will be converted to legally enforceable prohibitions. Evidence of a piecemeal approach appears in the proposed Workplace Fairness Legislative scheme in that its operation will be confined to employment, is applicable to employers with more than twenty-five employees only and does not proscribe indirect discrimination. Further, the exclusion of SOGI discrimination from the Workplace Fairness legislative scheme will create a dual track system whereby the Tripartite Guidelines will continue to apply to legally unenforceable grounds such as SOGI, with the potential for SOGI discrimination complaints to be only mediated by TAFEP.
Taiwan provides another example of a jurisdiction where there are several distinct pieces of legislation aimed at addressing discriminatory behaviours that deal with specific attributes or areas of operation. While there is some political interest currently in Taiwan to develop a comprehensive legislative scheme, as previously discussed, whether this can succeed where consolidation has not worked in either Australia or Hong Kong is yet to be seen. The political realities of how difficult it is to achieve reform may prevail over the well-intentioned goal of streamlining protections against discrimination into a consolidated act.
In terms of broader lessons for other jurisdictions in the region, a starting point is the difficulty of navigating the politics of law reform and achieving sufficient consensus to progress a broader reform agenda. Most states repeatedly revert to piecemeal reforms under the guise of that being a step in the right direction. However, these provisions are rarely revisited in any meaningful way that moves beyond a discrete, targeted area of reform to achieve a more comprehensive approach. As discrimination law reform attempts in both Australia and Hong Kong demonstrate, if legislation is narrowly tailored or fashioned via fragmentary legal provisions it can subsequently be difficult to expand the scope of protections to other attributes, or to amend the scope of exceptions or exemptions and their operation at a later stage. This fragmentation is particularly disadvantageous for individuals who experience discrimination based on more than one ground, inhibiting the bringing of intersectional claims.
Another lesson to be drawn is that the nature of discrimination law prohibitions has evolved over time and now encompass positive duties that may apply to actors in both the public and private domain. Such duties ‘seek to ensure social and institutional change by providing a legal framework through which the rights to equality and non-discrimination can be integrated in decision making processes and internalized by duty holders.’Footnote 162 While this type of duty was implemented in the UK in the 2000’s commencing with race, and subsequently applied to all protected attributes following the enactment of the Equality Act 2010, there has been little movement on this front in the Asia-Pacific region. States’ choices in relation to current law reform proposals predominantly maintain an approach that relies on negative prohibitions. Moreover, the choices can sustain non-enforceable pathways for some attributes, illustrated by the choice in Singapore to exclude SOGI from the Workplace Fairness Legislative scheme.
Failing to give full effect to the principle of non-discrimination as outlined in international human rights law also results in a range of practical consequences. The existence of parallel and overlapping legislative schemes regulating discrimination leads to multiple pathways, adding to the complexity for individual complainants seeking to navigate the different options. Each legislative scheme carries with it its own discrete limitations in terms of coverage, definitions, exceptions and exemptions, and associated dispute resolution processes, timeframes and potential outcomes. This patchwork of protections contributes to a lack of understanding about the scope of non-discrimination rights, and to a general reluctance to seek to assert such rights due to the difficulty of navigating the complaints process to seek redress for discriminatory treatment thus inhibiting access to justice. It also exacerbates the regulatory burden on duty holders where there are inconsistencies between obligations and differing compliance requirements. As Bell stated in relation to the morass of anti-discrimination laws in the UK prior to consolidation:
…the complexity of the law assists neither individuals, who need to understand clearly their rights, nor employers and service-providers seeking to respect their obligations. This inexorably points in the direction of rationalisation through integrated equality legislation.Footnote 163
This brings us to the question of what this lack of progression toward comprehensive legislation is communicating through the law’s expressive function. There is the risk that a lack of comprehensive legislation signals that certain prevailing norms are not to be challenged, conveying the message that those excluded from the purview of the legislative scheme are not as worthy of protection. This can perpetuate and sustain hierarchies of status that discrimination law attempts to address. Where states choose not to pursue comprehensive legislation, it may also signal to the community that the legislature is not prepared to move beyond a compromised approach nor willing to challenge prevailing social norms to fully embrace equality and non-discrimination, despite the demeaning message that this may convey.
Conclusion
Across the Asia-Pacific, equality rights are under-realised, but despite evident gaps in protection for citizens, there appears to be a lack of political will, ambition and any sense of urgency in many jurisdictions to implement comprehensive legislation. The mapping out of what needs to be done to move towards the adoption of comprehensive legislation is periodically undertaken by equality agencies, non-governmental organisations and other bodies, as for example in the case of the AHRC’s advocacy around the development of a federal human rights act. Despite efforts made by bodies to advocate for comprehensive legislation, in navigating the politics of law reform such bodies may be required to present proposed reforms in a manner palatable to governments with a staged approach to implementation. Governments may also choose to compromise or make concessions to avoid any social discord, particularly if proposed reforms are politically contentious. Consequently, any such framings of reform may seek to balance rather than fully endorse a rights-based approach. At a practical level it can be challenging for governments to step back from the morass of separate acts, selective attributes, differing protections and exceptions to comprehensively overhaul discrimination laws.
While governments may see it as expedient to address discrete areas of discrimination law and postpone broader law reform, the enactment of comprehensive legislation should be prioritised to meet states parties’ international human rights obligations, minimise legislative inconsistencies and provide greater legal certainty to citizens and duty holders alike. Governments also need to show the political fortitude to persist with broader reforms in the face of social and political opposition, to provide comprehensive anti-discrimination protections with equitable status for attributes and effective enforcement.
Acknowledgements
Research towards this article was conducted by Associate Professor Amy Barrow during periods as a Visiting Scholar at Singapore Management University (SMU), Yong Pung How School of Law and at the National University of Singapore (NUS), Faculty of Law. The author would like to thank colleagues at both SMU Yong Pung How School of Law and NUS Law for their support during her respective visits. The author would also like to acknowledge the support of Macquarie University in enabling a programme of outside study to undertake these visiting scholar opportunities.
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