Harmonisation on the agenda

By Joe Catanzariti.

Key Points:
We can expect further developments and changes to the Federal and various State and Territory anti-discrimination laws.

Australia has both Federal and State and Territory anti-discrimination laws that operate concurrently. To some degree there are similarities, but there are also aspects of divergence between the Federal and the respective State and Territory legislative framework.

In recent times, there has been an interest in harmonising the anti-discrimination laws.

At the Standing Committee of Attorneys-General meeting in March 2008, the Ministers agreed that interested jurisdictions would examine options for harmonising commonwealth, State and Territory anti-discrimination laws and that a working group be established to develop options for the Ministers' consideration.

At a further meeting of the Standing Committee in July 2008, the Ministers:

• noted the working group would identify options for harmonisation in the short, medium and longer term;
• approved the terms of reference for the working group, which are to develop options for harmonising anti-discrimination laws and complaint handling systems in consultation with the Federal and various State and Territory equal opportunity commissions.

The Standing Committee has also identified certain stages of inquiry and priorities:

• Stage 1: To identify non-legislative options to enhance access to complaint handling procedures (a priority);
• Stage 2: To identify options for reform that require minor legislative and procedural reform (medium term objective);
• Stage 3: To identify options for substantive reforms to anti-discrimination laws, procedures, and institutional structures (long term objective).

NSW moves to harmonise

In line with the moves towards harmonisation the NSW Government has proposed to lift the statutory cap on damages found under the Anti-Discrimination Act 1977. Under the Federal anti-discrimination laws there is no cap on damages and that is much the case with other States and Territories.

On 28 October 2008, the Administrative Decisions Tribunal Amendment Bill 2008 (NSW) received assent. In a media release, the NSW Attorney-General, The Hon. John Hatzistergos said of the Bill that it "follows moves by the NSW Government to harmonise anti-discrimination laws with the Commonwealth and other States and Territories".

Notably, the Bill (now the Act):

• increases the maximum amount that the NSW Administrative Decisions Tribunal may award as compensatory damages to $100,000 for a complaint (from $40,000);
• while simultaneously expanding the circumstances on which costs can be sought against a party.

The commencement date of these key provisions are yet to be proclaimed. Nonetheless, employers should note that these provisions will not operate retrospectively to claims that are already on foot prior to the commencement of the provisions.

For employers, the amendments to the Anti-Discrimination Act will increase the potential damages a respondent may be liable for. However, concurrent changes to the costs provisions will also seek to deter unmeritorious claims.

Federal developments

There is also interest at the Federal level to harmonise the anti-discrimination laws.

Presently the Senate Standing Committee on Legal and Constitutional Affairs is conducting an inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality. The inquiry, amongst other things, deals with the issue of "consistency of the Act with other Commonwealth and State and Territory discrimination legislation, including options for harmonisation". The Committee is due to provide its report on 3 December 2008.

The Australian Human Rights Commission (formerly the Human Rights and Equal Opportunity Commission) in its submissions to the inquiry appears to be supportive of measures to harmonise and has said:

"The benefits to be gained from the harmonisation of equality and discrimination laws are, in many respects, obvious. Under the existing State of affairs, whilst the various laws are largely similar, some significant differences exist.

Accordingly, individuals face a difficult decision as to where to commence their action without prejudicing their prospects of success, which is complicated further by restrictions against swapping between jurisdictions mid-stream.

Likewise, respondent organisations and bodies, particular those that operate in more than one State or Territory, face the complex task of ensuring that their actions, policies and operations comply with overlapping obligations under multiple pieces of legislation that all seek to address the same social wrong".

Similarly, the Office of the Anti-Discrimination Commissioner (Tasmania) and South Australian Equal Opportunity Commission and the Office for Women (SA) seem to be supportive of harmonisation of the anti-discrimination laws.

Final comments

Harmonisation is on the agenda and we can expect that both in the short to long term there may be further developments and changes to the Federal and various State and Territory anti-discrimination laws. Certainly there is interest to look at both procedural and substantive reform, but equally there is an interest to ensure that any peculiar State or Territory protections are not diluted in any streamlining process. For example, the NSW Government has been keen to submit to the Senate inquiry that specific provisions that provide protection for carers against discrimination be given attention.

Thanks to Millen Lo for her help in writing this article.

For further information, please contact Joe Catanzariti.