De la ausencia del Estado en la Frontera Norte al acercamiento mediante

Four options to consolidate anti-discrimination law are considered: Option One: retain the status quo

Option Two: an omnibus act that addresses significant inconsistencies with no broader reform

Option Three: a simplified act with increased use of voluntary sub-legislative guidance

Option Four: a proactive anti-discrimination regime involving a significant expansion of the framework, the imposition of positive duties and specific obligations and a formal regulator.

Considering the costs and benefits set out above and in view of the Government’s objectives of:

• continuing to work towards a discrimination-free culture and provide equality of opportunity to participate and contribute to the social, economic and cultural life of the community, and

• creating a legislative regime that supports the broad objective by adopting laws that are as clear as possible so that businesses and other stakeholders understand their obligations and can meet these obligations with assistance where necessary,

it is recommended that Option Three be endorsed.

As noted above, precise quantification of costs and benefits of the options is not currently possible. This is primarily due to the voluntary nature and ‘negative’ obligations (that is, the obligations not to discriminate) of anti-discrimination law which uses a complaint-based enforcement model. Some quantification of the costs of Option Four is possible as this imposes positive obligations.

Option One will have no impact on business or duty-holders in that they will not be required to update existing human resources policies or implement training to understand new obligations, however it will not address the problems of legal complexity identified in Section Two of the RIS and will not assist in moving towards a more discrimination-free culture. Similarly, Option Two will have little impact on business or duty-holders as there will be little change to the law, apart from removing glaring inconsistences. Again, this will do little to address the problems identified in Option Two, but will itself involve minor costs to update policies and practices as necessary. Section Five includes analysis of these costs, which are expected to be at higher end of between $1,000 and $5,000 for businesses that have policies which require updating and between $2,000 and $20,000 for businesses which wish to undertake staff training on the changes.

Option Three is the preferred option. This option will consolidate the existing five pieces of legislation that comprise anti-discrimination law in Australia by adopting the highest current standard across the Acts to address gaps and inconsistent approaches and by making the

law clearer and more efficient, following the broad principles of anti-discrimination law. This approach is supported through a package of business assistance mechanisms and

streamlining the complaints process and other function of the Australian Human Rights Commission.

Option Three provides a balance of costs to business and other duty-holders (such as through updating policies and practices) and benefits to the individuals and wider community that flow from a discrimination-free culture. The costs of updating policies and staff training are expected to be lower than Option Two, given the simpler approach that forms part of this option, and therefore at the lower end of the ranges listed above for Option Two. The option does not impose new positive obligations and, generally speaking, applies incremental shifts and changes in existing definitions which while resulting in increased business costs to implement the law, in light of existing obligations under the FW Act and State and Territory anti-discrimination law will be less than completely ‘new’ obligations. By removing

inconsistencies between these regimes, this option also lays the groundwork for further harmonisation in the future.

In terms of benefits to individuals and the society in general, setting out clearer obligations through the law (including a clear statement of obligations in the legislation) and introducing new co-regulatory mechanisms will encourage a shift away from redressing wrongs to avoiding discrimination in the first place. Other aspects of Option Three such as the shifting burden of proof and introducing a no-cost jurisdiction will improve access to justice for

individuals in cases that cannot be resolved by conciliation. If enforcement action is needed, clearer laws and a streamlined complaints process will improve access to justice, both by aiding parties’ understanding of the issues and reducing complexity, and therefore the time, of litigation. Taken in combination, Option Three provides net benefits that will allow for enhanced participatory opportunities which, in turn, will leads to productivity benefits as outlined in Section Two and increased benefits of ‘social capital’ which is increasingly recognised as influencing economic wellbeing.135

Option Four meets the Government’s objectives of moving towards a more discrimination- free culture. It is generally described as the ‘fourth’ generation of anti-discrimination law. It moves away from a complaint-based model to one which imposes positive obligations to redress inequality. The RIS shows that to implement this model in Australia would impose significant costs across many sectors of society (business, the not-for-profit sector, the Government and the Commission). At this time, the costs of this Option must be assessed as outweighing the benefits.

In addition, the following additional issues were considered:

• the addition of sexual orientation and gender identity as protected attributes

• the ability of religious organisations that receive Commonwealth funding to provide aged care services to continue to claim an exemption from anti-discrimination obligations, and

• the addition of further protected attributes in the context of work relating to religion, political opinion, industrial activity, social origin, nationality, criminal record and medical record.

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For each of these issues, two options were considered: keeping the status quo or making the proposed change. In the case of new attributes, the benefits, while often largely symbolic, outweighed the cost impact of the changes, as for the most part they did not introduce new obligations beyond other existing laws. However, this was not the case for criminal record, where the unclear impact and cost of the changes did not outweigh the benefits of introducing this new attribute.

In the context of changes to the religious exemptions for the provision of aged care with Commonwealth funding, it was unclear what the cost impact would be. However, as noted above, the fact that no religious organisation will have more onerous obligations than any other organisation providing the same services, making the change to limit the exemptions is the preferred option.

Therefore, the preferred options for reform of the Commonwealth’s anti-discrimination regime are as follows:

• a simplified act with increased use of voluntary sub-legislative guidance • protection of the following additional attributes:

o gender identity and sexual orientation

o religion, political opinion, industrial activity, social origin, nationality and medical record (in relation to work only), and

• to limit the operation of the religious exemptions for organisations in receipt of Commonwealth funding to provide aged care services to the community.