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Legal and Constitutional Affairs Legislation Committee
23/01/2013
Human Rights and Anti-Discrimination Bill 2012

BANKS, Ms Robin, Anti-Discrimination Commissioner, Office of the Anti-Discrimination Commissioner (Tasmania)

NAYLOR, Mr Andrew, Chairperson, Human Rights Council of Australia

TOOHEY, Ms Karen, Acting Commissioner, Victorian Equal Opportunity and Human Rights Commission, Australian Council of Human Rights Agencies

[14:32]

CHAIR: I now welcome representatives from the Human Rights Council of Australia, the Office of the Anti-Discrimination Commissioner in Tasmania and the Australian Council of Human Rights Agencies. We have submissions from each of the three agencies. We have numbered them 474, 429 and 358 respectively. I invite you to make a very brief opening statement each and then we will go to questions.

Mr Naylor : The Human Rights Council of Australia supports the bill. There are aspects of the bill that can be, but as the first significant review of Commonwealth anti-discrimination legislation since the Brennan committee in 2009 and in the absence of a national bill of rights the bill, in the council's opinion, is the most important legislative measure. For the bill to be effective, it has to four things. It has to comply with Australia's international human rights obligations, it has to set standards of conduct that are consistent with and that exemplify the principles of equality and non-discrimination, it has to avoid as far a possible inconsistencies with state and territory legislation and it has to be workable. The legislation is not mere rhetoric. People are discriminated against all the time in their daily lives and it is important that, while it be workable, this bill as the national anti-discrimination sets the tone for how we treat one another moving forward into the rest of the 21st century.

The council accepts that there are tensions sometimes between conflicting rights. There are tensions between the criteria that I have outlined. Just by way of illustration, in the context in particular of clause 23, which is the general exception provision that seeks to apply international law to create a general exception, the council has a concern about whether that exception is too open-ended and impractical and is too subjective as to the intentions of the discriminator. The council does not for a minute object in any sense to the intention or the motivation behind the concepts that have been imported into the provision but quite how you tease out that in practice—whether it will be workable in practice—is a matter of some concern. There is no guidance, for example, in clause 23 about the kinds of conduct that will be permissible. There is an objectivity requirement in relation to the proportionality of the contact vis-a-vis is the aim, but the legislation needs to guide members of the public generally, it does not need to guide international human rights law, as it needs to guide those who will need to have reference to the legislation on a daily basis. And as important as the concepts of legitimacy and proportionality are, I query whether or not they are concepts which are sensible for importation into domestic legislation. There is a question also about the consistency with state and territory legislation, which does not use this kind of open ended exception provision. The council would not want a situation where people are deterred from using the national antidiscrimination legislation because it provides some relief from discriminatory conduct. In that context, the council is of the view that what needs to be held in mind is the importance that this is the national antidiscrimination law, that it needs to set the tone, that it needs to maintain high standards.

CHAIR: Ms Banks?

Ms Banks : Thank you, Chair, and thank you for the opportunity to give evidence. I guess it is useful to start by saying that I support the consolidation project and the development of a simplified approach of federal antidiscrimination law and I think this bill goes a long way to achieving that. There is some disappointment in it for me in the sense that I think such a big project should be an opportunity to reflect on the effectiveness of the law and to look at international developments, at new ways of approaching discrimination law. I think the consolidation does that—it consolidates. It has not really taken the opportunity to progress the way we think of and address discrimination in Australia and there is quite a lot of more contemporary thinking that is not reflected necessarily in the bill. That said, I support the bill as it is because I understand that the intention of the government was to consolidate, as a starting point, all of the federal acts.

There are a couple of things I want to reflect on particularly from two points of view. One is my perspective as a legal practitioner who has worked in discrimination law and secondly as the commissioner for Tasmania—and I might briefly reflect on the question of having been a practitioner—and raise my concerns about the arguments being made about floodgates. The experience in Australia is not that discrimination law results in floodgates of litigation. One of my concerns about discrimination law, including this bill, is its overreliance on individual remedy mechanisms to change the way we as a society deal with each other and afford people equal opportunity. Too much of the emphasis in discrimination law is on the individual complaint mechanism and probably not nearly enough is on how we work with industry, business, government, to implement proactive measures to bring about positive change without the need for a complaint. Complaint means somebody has felt harm even if it is not proven to have happened. I am very interested in how we look to prevent discrimination and put more emphasis on that.

In terms of my experience as the Tasmanian commissioner, I have been in the job now for 2 ½ years and one of the interesting things about Tasmania that I am very proud of is that it was the last state to implement antidiscrimination law and it learnt from the experience of others—I guess that is what I am hoping we could do here. It implemented what I think is a very fine piece of antidiscrimination legislation. It is still heavily reliant on individual complaints. So to that extent I think it has some shortcomings but I hope that during my term I will be able to address with the government some opportunities for further reform.

There are four aspects of the Tasmanian bill that are highly relevant to the key issues that are in debate around the federal bill. One of them is the inclusion of political opinion as a protected attribute. It is protected in Tasmania, as it is in some other jurisdictions. It has not been the basis of very much complaint at all—I can think of one or two complaints in my time as the commissioner. Again, it has not been an area where we see a lot of people exercising claims. It is always important to keep in mind what the experience is of those jurisdictions that have the protection already: how is that protection being exercised?

The second is section 19(2)(b), the clarification of 'unfavourable' as including, but not limited to, conduct that offends, insults or intimidates, I think it is—I cannot remember the precise words in the federal bill. The Tasmanian act has a provision, section 17(1), which provides that it is unlawful to engage in conduct that offends, insults, humiliates, intimidates or ridicules another person on the basis of a limited range of prescribed attributes. Those attributes include relationship status, and relationship status specifically deals with same-sex relationships in Tasmania.

Again, we have very limited experience with that provision because we do not get a lot of complaints of offensive conduct on the basis of relationship status, and certainly not arising from public discourse. That may seem surprising, but it is the reality; I think that people can engage quite actively in public discourse without causing offence. There is a proposal to amend the act in Tasmania to extend protection to all protected attributes, and that certainly got through the lower house. The bill to amend this is now in the upper house, and I suspect that as a result of the public debate federally we might see a little bit more discussion about it in our parliament.

But I do think it is important to understand that a lot of the harm that is done through discriminatory attitudes comes about in precisely this way—through insulting, intimidating and offensive behaviour or words. If we are truly going to understand the experience of people who are discriminated against and who have fewer opportunities because of protected attributes, we need to find some way to ensure that people understand that the way they use language can be part of the problem.

Another issue that I just want to touch on briefly is the exceptions in respect of religious bodies. Tasmania does have exceptions, but they are the narrowest of any state or territory. They have been in place for the entirety of the legislation's history—12 years of legislation. I am not aware of complaints during my period as commissioner—and I deal with all of the complaints—where a religious body has sought to rely on one of those exceptions. This is quite interesting to me, because you would think that the exceptions are there to allow them to engage in a whole lot of conduct. In the main, what I see are organisations, including religious bodies, relying on an argument that in fact what they did was not discriminatory. They were not targeting a protected attribute; they were acting because of a rational basis for what they did—a person was not suitable for the job for reasons irrespective of their protected attributes.

I think that what it has meant in Tasmania is that religious bodies have perhaps turned their minds in different ways to how they ensure that their religious practice does respect the rights of others to the greatest extent possible without interfering with their doctrinal approach. They have done that, and I think they have done that very effectively. I know that I have had very open and honest conversations with religious bodies in Tasmania about some issues for schools, and those are very respectful conversations. I suspect it is easier to have that kind of respectful conversation in Tasmania because the law applies largely to everybody in the state, including all religious bodies, with limited exceptions. I think that we are proof that you can do it; you can have very constrained exceptions, and that can work for the faith based organisations.

Finally—and I suspect this is not a highly contentious issue—the question of gender and intersex identity is being redefined in Tasmanian law to make it clearer and to ensure that the full spectrum of gender and gender identity is fully protected. My concern with the federal bill is that it takes a binary approach to gender: it suggests that you are either male or female, and that your identity is either male or female. I think that contemporary thinking suggests—and I think more than suggests but indicates—that that is an incorrect analysis of the human experience and that there are in fact people across a spectrum of gender and gender identity. I urge the committee to recommend to the government that the definition in the bill be amended to reflect the new Tasmanian provisions and to separate out intersex, because intersex is not an identity issue; it is actually a sex characteristics issue, and it is important to give that protection. Thank you.

CHAIR: Thank you very much. Ms Toohey, do you have any opening comments for us?

Ms Toohey : Just very briefly: I am here on behalf of the Australian Council of Human Rights Agencies. Our submissions were made on behalf of all the state and territory equal opportunity commissions excluding the New South Wales commission and the federal commission. A number of those commissions also made separate submissions, so really the ACHRA submissions look specifically at areas where there is an interaction between the proposed bill and state law.

There are about four key issues that we want to put on the record here that are addressed in both our submissions—in particular, issues arising from the provisions relating to legislative instruments, so the provisions that relate to exemptions, special measures and compliance codes, which represent a significant expansion of the federal commission's powers. These mechanisms certainly have the potential to provide a complete defence to a complaint of discrimination at a state or territory level, and that is obviously a concern for our commissions when there is no obligation provided in the legislation for consultation between the federal commission in making a decision about those compliance codes and the state bodies or indeed the communities affected by those decisions. Generally, for any matter where there is a regulatory ability to provide a defence to a complaint, that matter is contested in court. There is no requirement for that in the current legislation, and again it leaves it open, for example, for state bodies, public and private bodies to apply for the commission to sign off on a compliance code which may well have the effect of providing a defence to discrimination that happens at a state level, without the state having the opportunity to provide that input.

The other couple of areas have been briefly mentioned by the other people appearing. The religious exceptions, as Ms Banks has mentioned, operate in a range of ways across the various states and territories. The concern with the current draft of the legislation is that it actually has the effect of reducing protections in a number of those states, and that was not the intent of the bill as we understand it. Our concern at a state level is that people who currently have a higher level of protection to do with religious organisations would actually have those protections reduced if the current draft were to proceed.

Again, the ACHRA submissions support the specific inclusion of protection on the grounds of intersex. A number of states already include that in a number of definitions, and certainly each of the state commissions represented with the ACHRA submission was very clear that it is very important that that be included as a separate ground, not within gender identity but sitting within a specific definition within the legislation.

ACHRA was also very strong on the fact that a number of states also provide protection for discrimination on the ground of criminal record and that that ground should be restored in this legislation. It is actually being removed in the consolidation. The commissions were very concerned that there is a group of people who are very vulnerable to discrimination who have actually had their protections reduced, which again was not the intent of the legislation.

ACHRA is very supportive of the bill and certainly commends the bill. ACHRA also encourages the committee to recognise that clearly, while some elements of the community have concerns about elements of the bill—some of those elements clearly have existed for many years—it is important to recognise the opportunity that we have here to extend, consolidate and clarify the protections of some of the most vulnerable members of our community. Thank you, Madam Chair.

CHAIR: Thanks very much. I need to ask people to have maybe three questions each, and we might fit everybody in.

Senator PRATT: Ms Banks, on the significance of splitting gender identity and intersex, I think you said that it relates to intersex status being a sex characteristic and a biological characteristic as opposed to gender identity, which is an identity issue. What problems are caused in the current way the draft is written in conflating the two?

Ms Banks : The key problem is that the current draft still requires a person to identify as one or other, so a person who is intersex who does not identify as male or female would not have protection under the act on that basis, which is problematic for a very significant and growing population of people who are intersex.

Senator PRATT: They may not identify as one or the other because essentially they have the biological characteristics of both. It would be like asking me to be a man or—

Ms Banks : I do not think I can answer that very well. Somebody who is intersex would be better at answering what it would feel like to have to identify one way or the other. Part of the issue is that it still requires an election, almost, of identity. But, secondly, they are different things. Gender identity—the gender a person feels they are—is quite different conceptually from what their the sex characteristics are; and to conflate them does serve to confuse. I think also one of the important benefits of naming attributes and doing it well—I noted Senator Brandis' earlier comment about some of the definitions; some of the concepts are not particularly well defined—

Senator BRANDIS: Or defined at all.

Ms Banks : or defined at all, yes. There is a public benefit in actually naming intersex as a protected attribute because it increases community understanding that people exist in our community who are intersex—quite a significant number of people. Subsuming it within gender identity loses that educative benefit and I think that is a very significant part of what we are seeking to achieve—awareness in the community that this is a reality for many people and they do experience discrimination because of it.

Senator PRATT: Lastly, can I ask all of you, in relation to exemptions and exceptions as they relate to the contracting-out of government services. Tasmania has moved some way on this. On one hand you can take, for example, a private school which is clearly branded with a religious branding and consumers will know what they are getting, versus someone who turns up to an organisation like Employment Plus; they are told by Centrelink they have to go and yet they may find that they do not have any anti-discrimination protection. All of you will have a reflection on how those things should more ideally work.

Ms Toohey : Certainly the ACHRA position is that discrimination laws should be extended as far as possible, particularly where there is public money involved. Certainly there are a range of services—aged care, child care, legal services, employment services—where public money is provided to faith based or other organisations, and the ACHRA view is that those organisations clearly should be bound by the same discrimination law protections as any other organisation operating in a public space.

Ms Banks : I probably do not have much to add other than it seems to me that, if somebody is operating a business or has a business model and is competing with others, they should be bound by the same laws. It is a fairly simple principle. We would all hope that the law applies to us all equally and that we are not above the law.

Senator PRATT: Can I ask in relation to education—I personally do not support exemptions in schools—when they have an overt religious affiliation versus other services, how should we navigate this when a school clearly has a particular ethos that it wants to uphold? What is the Tasmanian experience of getting through that?

Ms Banks : The Tasmanian experience to date has been that there is no exception for enrolments in faith based schools in Tasmania and that has been the subject of quite a lot of discussion recently because, as part of the proposed reforms, some of the faith based organisations sought to have an exception added to the Act to allow them to discriminate in enrolment and admission on the basis of religion. It was interesting because it was on the basis of religion, not on the basis of any other grounds. It is an interesting thing that in Tasmania the organisations have constrained it to religion. I have worked with those groups and what was proposed in the draft legislation, but failed to pass the lower house, was the power to grant an exemption to a school where it had more students seeking to enrol in or be admitted to the school than it had spaces available for. In that circumstance the school would be able to seek an exemption to permit it to discriminate in favour of children of that faith or students of that faith. That meant that it was not an open slather; you could not do that whenever they liked. So, if they had five students and they had 100 places available, they would not be able to do it—unless they had 110 students seeking admission. So it really is where a choice had to be made.

My personal view—because, as I said, the parliament has not accepted that there should be any exception included or any exemption power—is that, if it is a faith-based school, it makes sense that if they had to make a choice that faith would be part of that decision, but on no other ground. I am hoping that there will be an opportunity in the upper house to revisit the decision to exclude it. I think it is an important progress in how we deal with these issues—rather than full exceptions, which are effectively seen by many organisations as carving out an area from the coverage of act, saying that in limited circumstances an exemption should apply the parliament sets the framework of that exemption and empowers the commissioner to apply it. It has been a very interesting experience to work through those issues.

Senator RYAN: I want to go to the faith-based schools issue and put a scenario to try to understand your way of thinking on this. A Catholic or a Christian school—and I have been to these schools—have very strong views on abortion. It is also a live political issue, I think it is fair to say. Take, for example, the case of a teacher at a school expressing a view on whether or not abortion should be legal—which is very much against the doctrine of the faith. The Catholic Church and various other churches—for better or for worse—have a very strong view on whether abortion should be legal. That is clearly also a political opinion, which, under this draft, is a protected attribute.

Do you believe that the school or the institution—in this case, the one I am thinking about is the Catholic Church—should be prohibited from taking action against a teacher who is actually doing something that is directly contrary to a particularly core view? And it is an employment relationship and it is done with public funds—because we have a choice based school system with a non-voucher voucher and money follows the student. What is your view of a scenario like that? Should the institution be restricted from taking action against a person who is saying something contrary to, in this case, a central tenet of what the school teaches?

Ms Banks : I would start by saying that I think it depends where they are saying it, but let us say—

Senator RYAN: Say they are saying it in a classroom. They are teaching religious education. I had teachers who taught maths where you would have social discussions. They are saying it in the classroom at some time.

Ms Banks : I think the bill actually provides the balance. The justification defence, I think, would be arguable in that situation. I think that is the balance that the bill provides. It says, yes, political opinion is protected but, if you can justify the conduct under section 23, it is defensible conduct. I think that is an important balance—that we do not just say we carve out a whole area of activity; we say this is in principle the protection people have and there are circumstances where conduct is defensible.

Senator RYAN: In this case you say it is arguable, which means that it is contestable.

Ms Banks : Yes.

Senator RYAN: Let us assume that there was counselling and there were requests and the education office, which usually run on a state or divisional level, said, 'You really need to stop doing this'—and I always consider these laws through the prism of what happens at the extreme, what happens at the margins—and the person just kept doing it. People are sending their children to this school and presumably faith is one of the issues.

The problem I have with what you are putting is that we are then saying to an official appointed by the Attorney-General, 'You are going to make this decision as to what is reasonable', because there is no more guidance here. There is no guidance here to say whether or not it is reasonable. We are simply saying that we are not going to allow the community to make the decision; we are going to rely on a person who we appoint to make a very important value judgement about whether or not it is reasonable. That is taking a prerogative very much away from the community in this regard. I am using that as an extreme example because it can happen and can happen very easily because of the size of our non-government education system.

Ms Banks : I presume when you are talking about an official you are talking about a judge of the Federal Court, because that is who would be making that decision. They are empowered every day to make decisions on quite contentious issues.

Senator RYAN: If you go to the tax act or corporate law, I remember studying these things and they are huge. We do not just have broad phrases, or we try not to, where value judgements and moral judgements are made. Particularly when it comes to the law of contract or a very highly codified law like the Corporations Act, we have in one case centuries of common law that restrict judicial just discretion. There are not that many cases of contract that come up before a court where the principles have not been considered before. With the corporate law and the tax law the parliament takes a very detailed approach to proscribing and prescribing activity. But in this case we are saying that a school in a state which has acted reasonably but has a teacher who insists on expressing their view and says because of this bill, 'I have got the right to express my political opinion,' a profound tenet of that institution cannot be defended. That is one of the reasons parents are sending their kids there. I think that is a pretty substantial assault on civil society and the rights of the community. We are not saying that teacher cannot work in the state system, we are not saying that teacher cannot work at another school, maybe another Christian school that has a different view. But you are saying the right of the institution to have its views reflected in this is going to be overseen by broad-brush law and we are allowing a judge to make this pretty big value judgement.

Ms Banks : I am saying I think the conduct of the school is likely to be defensible. You referred to the common law developments around contract. We have had 1,000 years of contract law; well, not 1,000 years. I cannot remember my contract law history. Discrimination law is new law. In Australia it is 30 years of law and these things are developing, and they develop through the same approach that the common law of contract developed, through judges making judgements and helping us to understand what is and is not acceptable conduct. I am wondering if one of my colleagues might want to respond as well to the question asked.

Senator BRANDIS: I would like to follow on from what you just said, Ms Banks. Knowing many federal judges as I do and being good mates with more than a couple as I am, I never cease to be astonished at the innocent belief that Federal Court judges somehow are equipped to make the most profound moral judgements about society's problems. It has got nothing to do with what they have ever been taught at law school, it has got nothing to do with what they have ever encountered in legal practice. This insouciant faith in the wisdom of Federal Court judges as philosophers and ethicists astonishes me. You obviously do not know any. Having made that observation, I have got three questions, one to each witness. Ms Toohey, do you draw a distinction between unfavourable treatment and discrimination, and what is it?

Ms Toohey : In the Victorian law discrimination is defined as unfavourable treatment, so—

Senator BRANDIS: Is that it?

Ms Toohey : As the Victorian commissioner—

Senator BRANDIS: So they are the same thing.

Ms Toohey : That is one of the definitions in the Victorian law and, yes, unfavourable treatment based on an attribute covered by the legislation.

Senator BRANDIS: That is an important qualification. Is it unfavourable treatment or is it unfavourable treatment based on an attribute?

Ms Toohey : By virtue of how the law operates, it is with reference to the attributes covered by the law.

Senator BRANDIS: Right. This is my concern with the growing overreach, as I see it, of antidiscrimination law, that the more you extend the number of attributes that are able to be relied upon the more you reduce what is described as antidiscrimination law to being merely a law against unfavourable treatment. Bizarrely, you end up exactly where the IPA were when they gave their evidence and basically said they do not philosophically believe in antidiscrimination law at all. If everything is antidiscrimination, then nothing is antidiscrimination and you are left with this husk of a law which merely says: people should not be mean to each other. It provides no protection at all to vulnerable people who are peculiarly susceptible to unfair treatment such as Aboriginal people, gay people or pregnant mothers and so on. Do you see my point, Ms Toohey?

Ms Toohey : I understand your point but there are a list of attributes in the legislation, certainly in the Victorian legislation and in the draft.

Senator BRANDIS: Indeed.

Ms Toohey : As I understand it and certainly in Victorian Law there is an evidence base, based on those attributes, for those attributes being in there because of unfavourable treatment which leads to poor social and economic outcomes, unemployment and a lack of access to education. At this stage, as I understand it, in the exposure draft there is a similar list of attributes. It is not a broad-brush, unfavourable treatment for everybody.

Senator BRANDIS: No, it is not but only because, as you say, there are some defined and limited attributes upon which it is conditioned. But do you accept my broader point that the more widely you expand the number of attributes, the more you weaken the focus of the law so that it ends up being a general law prohibition against unfavourable treatment—people treating each other badly so that you are back with Mr Wilson and the IPAs and we do not have an anti-discrimination law at all?

Ms Toohey : I would argue that the expansion or the inclusion of some attributes relates to recognition that there are groups within society that are disadvantaged. Certainly, that is our experience in the Victorian context.

Senator BRANDIS: And it should be limited to disadvantaged groups, shouldn't it?

Ms Toohey : It should be limited to groups that no doubt can demonstrate that disadvantage.

Senator BRANDIS: Ms Banks, coming to you on a different point: do you say, if I understood you correctly, that all gender identities should be regarded as special attributes?

Ms Banks : Gender identity, as a concept and as defined, should be a protected attribute under the act.

Senator BRANDIS: That is, all gender identities?

Ms Banks : I am not sure what you mean by that.

Senator BRANDIS: You are the one who introduced the term 'gender identities' into the discussion or perhaps Senator Pratt did. This issue arose in your discussion with Senator Pratt. I just want to make sure that we understand what we are talking about so that male, female, intersex or whatever else there might be—

Ms Banks : Transgender, transsexual spectrum—

Senator BRANDIS: Transsexual—all of those gender identities should be—

Ms Banks : Except that intersex is not a gender identity. I guess that was the opening point.

Senator BRANDIS: Just going through the other protected attributes here—for example, immigrant status. Does that mean people from all countries in the world who are immigrants should be within the protected attributes and that that should be a protected attribute? Or only people from some countries?

Ms Banks : Under my legislation it is being an immigrant.

Senator BRANDIS: So from every country?

Ms Banks : Yes, because you have to show the unfavourable or the discriminatory treatment on that basis. Some immigrants will never be able to show that because they will not have experienced that unfavourable treatment.

Senator BRANDIS: All nationalities?

Ms Banks : Again, yes.

Senator BRANDIS: All political opinions?

Ms Banks : I suspect the answer to that should be yes, again.

Senator BRANDIS: So if a person expresses a political opinion which is racist or homophobic, that should be protected?

Ms Banks : It is political opinion.

Senator BRANDIS: Okay. So to use the example I gave to the IPA people, when Mr Andrew Bolt, in a workplace environment, expressed some views which were subsequently found, whether rightly or wrongly, by the Federal Court to be of a racist character, under this draft law he should not have been subject to any unfavourable treatment or his employers should not have imposed any conditions on his employment in view of him expressing those racially offensive opinions—offensive to the applicants in Eatock and Bolt, anyway?

Ms Banks : As I understand it, it was not an issue of his employer treating him unfavourably as a result of him expressing his views.

Senator BRANDIS: Does the inclusion of political opinions in the protected attributes—you agree with me that that means all political opinions—mean that nobody in the various categories defined by the bill as 'public life' should ever be the subject of unfavourable treatment?

Ms Banks : I think you are avoiding the fact that there are exceptions built into the legislation, for very good reason, particularly in relation to speech. It is always a balance. You recognised this yourself in your questions and discussions with the IPA. These rights—freedom of speech, freedom of association, the right to equality and the right to nondiscrimination—do come into contact from time to time. We have to find—

Senator BRANDIS: I did not say there is any such thing as an absolute right to equality.

Ms Banks : I did not suggest that you did. I was observing that you earlier indicated that you do understand that rights come into conflict and one of the roles of the parliament is to find the appropriate balance of those rights to set the guidance for judicial decision makers on how they should apply that balance to specific instances of alleged discrimination.

Senator BRANDIS: You are paraphrasing what I said, so I cannot but agree with you. It is all very well to say that, from a philosophical point of view, that may be the case—as I say it is—but when the parliament writes an act it is not the same thing. The parliament should not be writing an act which is internally inconsistent; it should avoid doing that. When I look at the list of protected attributes and I see political opinion as one of the protected attributes in an act which elsewhere seeks to protect people on the basis of their sexuality, their race and so on, it seems to me that there is written into the heart of this act an inconsistency. That same conduct, from the point of view of protecting people from being discriminated against racially or on the basis of the sexuality or whatever, or offended or insulted because of their race or sexuality or whatever, is also protected conduct because the expression of political opinions, which might be racist or homophobic, is protected conduct. Do you see that there is an inconsistency at the heart of the act?

Ms Banks : I actually do not think that the expression of political opinions that are racist, for example, is necessarily protected conduct. What is protected as the attribute of having political opinions.

Senator BRANDIS: They are protected attributes. You agreed with me that political opinions, in clause 17 of the bill, means all political opinions. That must mean racist political opinions and homophobic political opinions and political opinions hostile to the tenets of one religious faith or another.

Ms Banks : I think the latter are religious opinions rather than political opinions.

Senator BRANDIS: Be that as it may—

CHAIR: We need questions, not debate.

Ms Banks : I do not think I can answer that question because I do not think inconsistency exists.

CHAIR: I think we have got to stop having a debate and just get to questions and answers.

Senator BRANDIS: Mr Naylor, at paragraph 2 of your submission you say that the HRCA 'welcomes and strongly supports the enactment of the consolidated human rights and racial discrimination act'. You go on to say 'it is a very good improvement on the current range of laws, which suffer from a range of inconsistencies and omissions'. So you acknowledge that it is more than a consolidation; it is an improvement which deals with some matters which the current suite of human rights bills does not deal with?

Mr Naylor : Indeed. The proposed bill creates a provision in relation to sexual orientation that is not currently on the books.

Senator BRANDIS: So it is wrong to say this is a consolidation; whether for good or bad, it takes the law forward in significant ways.

Mr Naylor : It has been described all the way along as a consolidation. I think it is true to say also that the bill creates substantive changes to the current law. Indeed, I welcome the process in that regard.

Senator BRANDIS: Sure; indeed you do, and that is clear from your submission. My point is a narrow one—that it is misdescription to say that it is merely a consolidation. It is both a consolidation and an extension of the existing law, is it not?

Mr Naylor : It is primarily a consolidation, I think, but it also makes some substantive changes.

Senator WRIGHT: Ms Toohey, I would like to take you to your submission, proposing that criminal record be included as a protected attribute. I would like you just to explain why you think that is important. I think the submission makes the point that it is an omission in the sense that there is some level of protection or some level of redress available where criminal record has been used as a discriminatory basis in the current law and that that is not included. Why is that important?

Ms Toohey : It is currently covered under the Human Rights Commission Act provisions, so it is protected in the area of employment. It is also covered under some state laws as a protected attribute at a state level. The ACHRA position is that we are getting increased reports that people are experiencing discrimination, particularly in employment, on the grounds of criminal record and also access to services, but often on the grounds of irrelevant criminal records. So people are unaware that they get criminal record checks done. They are unaware of what their obligations are. So they exclude people from employment and certainly from goods and services on the basis of a criminal record that does not appear to be relevant. Some of these records, as we know, go back many, many years. At this stage there are very limited protections. While the current protection in Commonwealth law certainly is not adequate in that it is not enforceable in a court, it does provide some level of protection, and the removal of that, in our view, is a reduction in the current level of protections available.

Senator WRIGHT: Can you give some idea of the sorts of goods and services, or the implications on the ground for people, and why it matters? Does it disproportionately affect people of disadvantage? We have been having the discussion about what the point of anti-discrimination law is.

Ms Toohey : I think the federal commission has put out a set of guidelines on criminal record and discrimination on the grounds of criminal record which are very good and which talk about the need to assess the record against the particular inherent requirements of the job that the person is applying for. We have reports, particularly from the Aboriginal community and from advocates working with young people, that records around things like public space offences, in particular, become relevant. In Victoria there is no spent conviction protection at the moment. So if someone does a criminal record check you are very vulnerable in terms of the information that is provided. And because there are inconsistent provisions across the country around spent records you can have very long criminal records being produced and people being discriminated against for events that occurred many, many years ago. Certainly some of the matters we have seen are about events that occurred 20 or 30 years ago. And again, because of a lack of consistency in the application and the support given to people with a criminal record, it is very difficult for employers in some circumstances to know when they should or should not discriminate, so they elect to be very conservative about it.

So, we do not have that protection in Victoria, but in the other states and at a federal level, where there is some protection, we have seen matters affecting particularly the Aboriginal community, some of the migrant communities and certainly young people. But I have also seen matters of people who are 50 or 60 who have criminal records going back to an event that occurred 30 years ago and who are being refused employment now. So it is a very relevant issue. I think with the increase often in offences around public space it is becoming more and more relevant, particularly to young people, and in the long run will lead to many of them being affected in terms of their employment and therefore their economic wellbeing.

Senator WRIGHT: Certainly that accords with passionate entreaties that have been put to me at times from the Aboriginal community about the way it affects Aboriginal people seeking employment. It is a barrier for them to get out of that unemployment situation. The other thing is that I think you made reference to our international human rights obligations as well. Could you just expand on that briefly—on why it is important in terms of conventions that we have actually signed up to as a nation?

Ms Toohey : Certainly under the International Labour Organization obligations, criminal record is one of the protected attributes. While to date it has not been, as I said, an enforceable attribute—so you have not been able to prosecute a matter in court—it has enabled the federal commissioner and those of us who work in human rights to use the irrelevant criminal record argument that exists at an international level to work with employers around their policies and practices around that. Again, in Victoria it is a particular issue because of the spent convictions scheme, and, again, there are inconsistencies across the country. It is an area I think where, as you have said, there are groups that are particularly vulnerable and, in not complying with our international obligations—and certainly the commitments that were made in this exposure draft not to reduce protections—we certainly think that there are groups in the community that will be made more vulnerable to social and economic disadvantage.

Senator WRIGHT: So the ILO provisions are not just an enabling arrangement; they are actually, you would say, an obligation that we have signed up to, to do—what?

Ms Toohey : The ACHRA members would say that they are an obligation. I think one of the other issues for the ACHRA members is that, because there is patchy implementation at a state level, providing a safety net at a federal level means that it is a conversation that we can have at a state level about the need for that protection to be enacted at a state level. If it is not enacted at federal level, to meet those international obligations, it becomes difficult or more difficult for us to have that conversation. As I said, it is very relevant for a number of our stakeholder groups.

Senator BOYCE: I just wanted to raise with you the question of the inclusion of social origins as a protective attribute. A lot of submissions sort of said, 'What is it and why should it be there?' Are any of you aware of any cases or complaints that might be brought because that is now there that have not been able to be brought?

Ms Banks : It is tricky, and I do not purport to be an expert on this, but one of the issues that is regularly raised with me in Tasmania is of people who, because of where they live and because they live in an area that is—

Senator BOYCE: A bad suburb or something—is that what you mean?

Ms Banks : Yes, a bad suburb—that kind of stuff—and a suburb that is dominated by people on Social Security benefits, just cannot put their postal address on a job application; they are overlooked automatically. People in some of those suburbs in Tasmania will get a post office box in a nice suburb in order to avoid the problem of being discriminated against because of, in this case, a combination of where they live and the reputation of that suburb in terms of its social origin. I think it is a tricky concept and I think it probably needs some framing around it to make it an effective concept in discrimination law. But that is a very clear and cogent example I hear about all the time in Tasmania.

Senator BOYCE: Does anybody else have any comments?

Ms Toohey : That is consistent with research that we are aware of that has been done around the blind testing of applications that do not get looked at or get refused on the grounds of postcode, essentially. Again, there are a number of matters raised with us about people from particular suburbs or regional areas not being considered because of perceptions of, as Ms Banks has mentioned, the social and economic circumstances of those particular suburbs. That has certainly been the most common area that has been raised by the ACHRA members, and we would support the inclusion of that but also clarification around exactly what it is intended to cover.

Ms Banks : One of the issues in previous work that I have dealt with is the experience of homeless people in terms of discrimination. To me, social origin should contemplate people whose lived experience is that of being homeless or having been homeless and how that impacts on them.

Senator BOYCE: I was just wondering. I would not have thought of that as a 'social origin', to be perfectly honest—

Ms Banks : And that is one of the difficulties I guess: is it or isn't it?

Senator BOYCE: I understood it had something to do with caste systems and international or other cultures' discrimination.

Ms Banks : That is why it probably needs some work on definition.

CHAIR: Time is—

Senator BOYCE: One more question?

CHAIR: Very quickly—

Senator BOYCE: It is a very brief question. Whether it will have a very brief answer I do not know.

CHAIR: If it is not brief you will have to get it cut off and take it on notice.

Senator BOYCE: Many of the submissions to the inquiry have been very, very concerned about the inclusion of those terms, 'insults, offends or intimidates,' into paragraph 19(2)(b). Why do any of you not find that inclusion concerning?

Ms Toohey : The ACHRA submission essentially says that we appreciate that there has been a lot of commentary in that space. Our concern is the absence of some clarification around what discrimination means. In our view the combination of 19(2)(a) and (b) essentially suggests that those behaviours in the particular context and in the areas that are described within the legislation protects people from those behaviours on the grounds of their attributes. Certainly at a complaint-handling level it is useful to have that clarification, because often people do not know what we mean by discrimination. The fact that it now includes harassment and a number of other definitions is very helpful for us at a complaint-handling level.

We would certainly say that it is a useful clarification. We agree that there may need to be some clarification of the specific terms, given people's concerns about the use of the word 'offend' in particular. I might pass to Ms Banks, though, because the Tasmanian law does specifically use that terminology and she has some quite specific experience in that.

Ms Banks : Yes, the Tasmanian act does use 'offend and insult' as well as 'intimidate', 'ridicule' and 'humiliate'. It has a subjective element to it—so, a person is offended on the basis of a protected attribute and, as I said, there is a limited range. It also has the element where a reasonable person would have anticipated that offence, humiliation or whatever else. It does provide a balance by not being a purely subjective, 'I felt offended'—it requires a secondary element.

Our experience is that it has not been a provision that has been used to challenge public discourse and free speech in that sense. It has been used to challenge both actions and words that were, I would say, highly offensive to an individual person. We also have what I call 'vilification'. It is an incitement provision, and has a higher test for it. This provision has been used, and I think it is framed to identify interpersonal conduct rather than public conduct. The incitement provision does the public work.

I understand the concerns, and I think that the really important concern is: are we working with words that are too subjective? I think that rather than throw the baby out with the bathwater it would be good to work on if we can develop that further so that people do understand it. I think it is important to put into the act what we mean. Lawyers might understand what might be contemplated within the scope of 'discrimination' but the general public do not always understand. In my experience, many people think that as long as you treat everybody in the same way that you are not discriminating against them, and that is not conceptually correct in discrimination law. So the more that we can clarify what is needed, and what the courts have held to be discrimination in the past, and build that into this legislation, then I think that has a better educative effect.

Mr Naylor : I think that the Human Rights Council has not dissimilar concerns in relation to the clarity, or the breadth, of 19(2)(b) in particular. As a general proposition, the council would not want a situation where near offence or insult—the kind of conduct which is at the lower end of the spectrum—is—

Senator BOYCE: The 'Yar! Boo! Sucks!' sort of behaviour?

Mr Naylor : Yes. In one sense, this picks up on the point being made by Senator Brandis earlier: it is important that the legislation be meaningful. The traditional causation test is an attempt to give meaning to the legislation. Whether that is altogether appropriate with the removal of the comparator, I would have to say that I am not altogether sure. But it is important that the legislation not extend its reach too broadly, and I think that near offence or insult perhaps does that. I think it is a definitional problem.

CHAIR: We are going to have to finish it there. I thank the three of you for your submissions and, certainly, a lot of your time this afternoon. Thanks very much.