Introduction

Work is a centrally important part of life for many people, and it is not surprising that claims relating to discrimination at work are the largest single category of discrimination claims. Discrimination and inequality in employment are addressed not only by anti-discrimination laws, but also by a range of provisions in the primary national labour law, the Fair Work Act 2009 (Cth) (FWA), as outlined in Chapter 3.

In this chapter we look at the provisions in the FWA that can be used in discrimination cases, focusing on s 351 which provides an individual right of protection against discrimination in employment. This is found in Part 3-1 of the Act, which covers general protections for employees. Section 351 prohibits ‘adverse action’ in employment or selection for employment because of attributes like those in anti-discrimination laws, including sex, race and disability. The general protections also prohibit ‘adverse action’ on other bases: s 340 (exercising a ‘workplace right’), s 346 (union membership and industrial activity) and s 352 (‘temporary absence from work because of illness or injury’). All of them have been used to bring claims that could have been formulated under the anti-discrimination laws.

The FWA is a very attractive avenue for these claims for several reasons. First, it includes a wider range of attributes than the federal anti-discrimination laws, thus extending the enforceable attributes at federal level. Second, it contains a shifting onus of proof so that where an action depends on showing that an act was taken for a particular reason, the onus will shift to the respondent to show that it was not taken for that reason. This avoids the difficulty of proving the basis for action that affects direct discrimination claims under anti-discrimination laws. Finally, the process for enforcement under the FWA is very attractive. It is fast and, if litigation is necessary, costs do not follow the event, but instead, each party bears their own costs, even in court.

We begin our analysis of FWA s 351 by providing some historical and statutory context (9.2), and then outline the scope of the protection (9.3) and the enforcement regime under the FWA (9.4). Finally, in section 9.5, we note other provisions in the FWA that prohibit discriminatory terms in industrial awards and enterprise agreements.

Introduction

As was outlined in Chapter 2, over the past century inequality has emerged as a public policy issue. Initially demands were made for equality in law. Many of these demands were for the removal of blatant exclusions in laws themselves, such as the legal exclusion of women from voting or standing for parliament. Changing these laws to remove exclusions and disadvantage was a fundamental step in promoting equality.

In addition to demands for equality in the law, demands were then made for broader legal rights to be treated equally in other spheres including employment, education, housing and public transport. Anti-discrimination laws were designed for this purpose – to challenge exclusion based on prejudice, assumptions and tradition.

Protections against discrimination were developed first in respect of racial inequality, then gender inequality. Later, the legal model was replicated to address discrimination based on other identity attributes as other groups that shared an attribute of disadvantage, such as people with disability or minority sexual orientation (called ‘protected groups’ in this book) emerged and saw this approach as a strategy for addressing similar types of problems. Anti-discrimination laws came to be understood as providing protection against exclusion based on specified attributes.

The development of anti-discrimination laws in Australia was traced in Chapter 2. In this chapter we elaborate on the framework of these laws and compare it with other legal approaches used in Australia to address inequality – positive action or positive duty laws, separate and additional protections against discrimination provided in workplace laws for employees, and human rights charters. After briefly outlining the different frameworks for each of these laws in this chapter, their operation is explained in more detail in later chapters – anti-discrimination laws in Part 2, and the three other approaches in Part 3.

Choices in designing legislation against discrimination

The common law did not develop general protections against discrimination, so the laws we have are legislative initiatives. Like all legislation these laws represent public policy choices and political compromises. Ideas for legislation emerge not out of a vacuum, but out of particular historical and political exigencies. In designing legislative responses to problems, all options can be explored; but often, examples of approaches taken in other jurisdictions are sought out as models for adaptation.

Introduction: Equality as a fundamental value

This chapter introduces the foundational concepts of ‘equality’ and ‘discrimination’ that underpin anti-discrimination laws. Neither concept has a clear, uncontested meaning, and both cover a range of ideas. Equality is generally regarded as a fundamental social value, but this apparent consensus may conceal disagreement about the specific idea of equality involved. Equality is a fundamental value in liberal political theory, and in democracy. An assumption that every individual should have equal liberties, including equal influence in government through ‘one person one vote’, is one of the foundations of modern Western societies including Australia. The development of anti-discrimination law was based on extending the liberal idea of equality beyond the political sphere to assert that every person was entitled to be treated fairly and have equal chances in life, without disadvantages arising from attributes such as race or ethnicity, sex, or disability. Anti-discrimination law is at present a relatively blunt weapon with which to challenge discrimination, and there is uncertainty and disagreement over the scope of activities that it does or should cover. In this chapter, we introduce some ideas about equality and discrimination as a starting point for understanding the basis of the law's approach.

Equality is a primary value in modern Australian society. Australians think of themselves as egalitarian – a view formed perhaps by the attitudes of the early settlers, both convicts and free settlers, who came to Australia either by force or by choice seeking greater opportunities, which they found in rejecting the social hierarchies of their countries of origin. Modern Australia is largely a society of immigrants (except for the Indigenous peoples) who have come in different waves over the past two centuries in search of a better life. For most Australians, egalitarianism remains an important value and an essential part of the all-important ‘fair go’.

Australian egalitarianism falls short for many people in disadvantaged groups, including, in particular, Indigenous people, as well as people with disability, women, and racial or ethnic and sexual minorities. Over time many inequalities have been eliminated because they came to be perceived as unjust, as a result of the efforts of campaigners. For example, early court decisions that women were not ‘persons’ who could vote, or enter universities or the professions, were eventually changed by Parliaments, as were laws limiting women's rights in family, property and criminal law.

Introduction

The first anti-discrimination laws in Australia were passed in 1966 in South Australia, and since then they have been adopted in every Australian jurisdiction. The need for legislation to prohibit discrimination existed because, as outlined in Chapter 1, the common law had failed to develop a general principle against unfair discrimination. As society changed and claims for equal rights attracted more support after the Second World War, social movements arose that campaigned for rights to be provided and respected by law. Those changes in the social order led to the landscape of anti-discrimination legislation that currently exists in Australia, and is continuing to evolve and develop.

This chapter reviews the social and legal background to the adoption of anti-discrimination laws in Australia, and examines their constitutional context and the source of power to adopt such laws. It then outlines the general development of the laws over the past few decades, during which parliaments have been more willing to broaden the scope of the law than to reform its basic components or modes of enforcement.

The impetus for anti-discrimination laws worldwide sprang from two main sources. First was the developing international consensus in support of universal human rights that was given effect through the United Nations (UN). The second important driver was the increasing pressure applied by social movements, including the civil rights movement in the USA. Both factors originated earlier in the twentieth century, but were strengthened in the aftermath of the Second World War.

The United Nations and non-discrimination

The UN system was set up in response to the horrors of the Second World War and with the aim of preventing the repetition of those events. It succeeded the League of Nations, which had been created by the 1919 Treaty of Versailles that ended the First World War but had failed to ensure peace in Europe. As part of the settlement of the First World War, a number of European countries were compelled to enter treaties that required them to protect national minorities. This was not enough to constrain states who wanted to act against their minority citizens in the 1930s, which became a major problem in the Second World War.

This book provides an introduction to Australian anti-discrimination law in its conceptual and social context. Our aim is to give a clear and accessible introduction to the law's important features, contradictions and challenges based on the ideas underlying and implicit in it, to provide a foundation for critical assessment of the law's strengths and limitations. While anti-discrimination laws are the core of the book, our concern is broader than just laws that prohibit and remedy discrimination. We refer to the field as ‘equality and discrimination law’ because it now includes laws and practices that seek to prevent discrimination occurring, and that challenge discrimination at a structural or systemic level as well as at an individual level, seeking to change norms and practices to be more inclusive of people who have faced barriers to participation because of their attributes.

Anti-discrimination law is not the only area of law which seeks to reduce disadvantage and inequality. Labour law, social welfare law and taxation law, for example, play important roles in reducing inequality. Anti-discrimination law, however, is the main legal avenue for individuals to challenge inequalities based on protected attributes such as race, sex, sexuality, disability, age, religion and political belief.

There is wide agreement that equality of some kind is a centrally important value and goal in a democratic society. But to prohibit discrimination by law requires very specific definition of exactly what is not permitted, and this is where disagreements frequently arise. People might have very different opinions about what equality is in any particular situation and what it requires in terms of changing social practices. People whose actions are likely to be restricted by anti-discrimination law can find it burdensome, and may object to the way it can limit freedom they previously had.

Australia has had anti-discrimination laws for over four decades. They apply to a very wide range of activities, including employment, education, service provision, sport, the supply of goods and accommodation, as well as many government activities and the activities of some clubs and voluntary associations. It is prohibited to discriminate based on or because of a wide range of attributes including sex, race, disability, age, sexuality, gender identity, parental and carer responsibilities, and political or religious beliefs.

Introduction

The protected attributes are the central element in anti-discrimination law. They identify the people who are protected by the laws. To establish a claim of discrimination, a person has to prove that they have, or are presumed to have, a protected attribute that is the basis of discriminatory treatment. Anti-discrimination law is one of the very few areas in which law must take account of attributes such as race, sex, disability and sexuality, in contrast to most areas of law which involve abstracting a dispute away from the personal characteristics of the parties. In anti-discrimination law, those characteristics are the core of the legal action, and this requires the courts to take a very different approach.

In this chapter we consider the attributes that the laws cover, how they are conceptualised and defined, and what types of situations are the major issues for people with each attribute. We begin with a brief history of the initial coverage and subsequent expansion of attributes protected by anti-discrimination laws. Before considering the detail of each specific attribute, we look at a number of general issues that help to refine the idea and role of the attributes: the basis for the selection of the attributes that are protected, the nature and scope of those attributes, the significance of the terminology used to refer to them, and the limitations of anti-discrimination law's focus on single attributes to the exclusion of multiple or intersectional discrimination involving two or more attributes.

In this Part we focus primarily on anti-discrimination legislation. Other forms of protection against discrimination that are discussed in Chapters 8 (positive action), 9 (Fair Work Act 2009 (Cth) (FWA)) and 10 (human rights protection) are also based on the protection of particular attributes.

Structure and variation across legislation

As a preliminary matter, the attributes are fundamental in the structure of anti-discrimination legislation. Australian anti-discrimination laws are structured and organised in two main ways. Some laws are organised by attribute, with a separate Act, or Part or Division of an Act, dealing with each attribute or group of related attributes, such as race, sex or disability.