November 2012 Briefing on exposure draft Human Rights and Anti- Discrimination Bill

Introduction – Bill released for consultation Short sharp consultation Committee process ahead of introduction to Parliament Introduction to Parliament early 2013 Intended passage mid 2013

Bill to replace all Commission Acts AHRCA to be replaced as well as RDA, SDA, DDA, ADA “Human Rights and Anti- Discrimination Bill”

Overall assessment Clearer, broader, stronger Shorter

Implementation of recommendations 43 out of 53 Commission recommendations implemented fully or substantially Majority of SDA review Committee recommendations implemented

Tasks in consultation period Further detailed input to AGD Effective public participation –Commission submission and briefing paper –Sector specific briefing materials and processes Supporting positive features of Bill and seeking improvements where possible (may be limited scope)

Public engagement Processes since early 2012 have been mostly within Government Need early re-engagement with stakeholders on Bill to enable effective input General and sector specific processes Early release of Commission submission

Overview Significant advance on existing law – substance and mechanisms New compliance mechanisms Distinctive features of some Acts preserved: –RDA s.10; –RDA 18C; –Disability Standards

Overview 2 Concern re criminal record jurisdiction: how to meet ILO obligations? May be some scope for pursuing further implementation of Commission and sector recommendations

Summary of main advances on existing Acts 1.Objects 2.Areas and application 3.Definition of discrimination 4.Coverage of protected attributes 5.Exceptions and exemptions 6.Compliance mechanisms

Objects of Act Objects and interpretation linked to Australia’s international obligations Reference to substantive equality Removal of “as far as possible” limitation in the objects of the SDA, DDA and ADA.

Areas and application Expanded definition of human rights All areas of public life Broad coverage of harassment Extended list of particular areas covered Simpler and broader coverage of work related areas Application to State governments and agencies

Definition of discrimination Removal of requirement for comparator Removing the “cannot comply” requirement Simpler discrimination test for racial discrimination Unification of discrimination tests Proposed discrimination

Other unlawful conduct Requests for information simplified Victimisation, advertising – inconsistent and ineffective offences provisions removed

Coverage of protected attributes More grounds covered in all areas of public life Some grounds covered in work and work related areas only Characteristics extensions – all grounds Associates – all grounds Past, future, presumed attributes – all grounds Intersectional discrimination- all grounds

Exceptions “Exemptions” now refers only to temporary exemptions Exceptions more consistent across grounds Still some differences (e.g. most exceptions don’t apply to race) General limitations clause replaces some but not all permanent exceptions 3 year review for all exceptions

Exceptions 2 Special measures (not classed as an exception) Religious exceptions – similar to State laws Actions necessary to comply with Commonwealth law Actions in accordance with prescribed law (not race or sex; improved position for age)

Compliance Audits/reviews – human rights or discrimination Action plans Compliance codes Certification of special measures

Complaints Standing for representative and public interest bodies: not implemented Revised provisions for complaints already made to other bodies Leave of court required for some complaints terminated by Commission

Complaints 2 Shifting burden of proof Costs – general rule no costs but provision for exceptions and list of factors to consider Commission intervention in appeals

Areas of concern Removal of coverage of criminal record Options for addressing?

Areas of concern 2 Details of gender identity and intersex coverage need consideration

Areas of possible concern Special measures and racial discrimination Special measures and special needs Temporary exemptions and race

Areas of possible concern 2 Acts necessary to comply with Commonwealth laws Prescribed laws Charities exceptions Others?

Outstanding issues Need to decide what approach to take on: 1.Reasonable adjustment across all grounds 2.Positive duties 3.Most ILO grounds extended only for related work purposes 4.Express coverage of carer responsibilities

Outstanding issues 2 Domestic /family violence Homelessness RDA s.10 for all grounds Standards for all grounds Certified compliance plans Self initiation and standing

Human rights complaints “Human rights” – seven instruments Complaints only about “Commonwealth conduct” No ICESCR complaints More discretion about reporting

Human rights inquiries Inquiries powers and functions available for all instruments Inquiries re laws that should be made or action taken by Commonwealth Inquiries re other actions that should be taken “by Australia” Commission initiated or Ministerial request (same as now)

Commission structure Specialist Commissioners maintained – race, sex, disability, social justice, age, children Human Rights Commissioner position deleted – regarded as overlapping with President

Implementation issues Implications of revised list of instruments defining “human rights” –including for social justice functions Changes to reporting – including Social Justice Resourcing of compliance roles Resourcing and other implications of expanded coverage Review of exceptions

Questions and discussion Further issues needing attention? Questions and comments