THE CASE FOR AND AGAINST ANTI-DISCRIMINATION LAWS
7.1 Many countries around the world, including the United States of America and the United Kingdom, have some form of anti-discrimination legislation. Being a signatory to a number of international conventions which require a commitment to non-discriminatory treatment of people and reflecting the international trend towards equality of opportunity and anti-discrimination, Australia has passed wide-ranging anti-discrimination laws at federal and state level over the past 20 years. This trend towards introducing anti-discrimination legislation, generally supported by parties of different political persuasions, is indicative of its value and worth. Indeed, the absence of such laws is becoming more the exception than the rule.
7.2 To confirm the value of anti-discrimination legislation in New South Wales, the Anti-Discrimination Board in all its Annual Reports has a chapter on “Handling Complaints” which includes statistics on the number of complaints received and finalised under the Act during the year in question. In 1991/92 the Board handled a total of approximately 12,000 inquiries, of which 1243 were written complaints. The breakdown of the written complaints finalised (not received) during 1991/92 is as follows:
- 29% were conciliated;
- 52% not proceeded with due to withdrawal of complaint or loss of contact;
- 3% declined as frivolous, vexatious, lacking in substance, or not revealing a contravention of the Act;
- 11% referred to the Human Rights and Equal Opportunity Commission; and
- 5% referred to the Equal Opportunity Tribunal for hearing.
7.3 While these statistics are indicative of the number of complaints made, they should not be accepted as the extent of discrimination experienced. Many people affected by discriminatory conduct do not know that they can complain, are afraid of complaining, or for some other reason have not complained, which means that the problem of discrimination is much larger than it appears.
7.4 On the other hand, there are some who argue that discrimination laws should be repealed; that they impair productivity and that they are costly and inefficient. Epstein in “Forbidden Grounds: The Case Against Employment Discrimination Laws” (1992) 105 Harvard Law Review 2080, argues that employment discrimination laws in particular do more harm than good to intended beneficiaries. He states that employment discrimination is unlike force or fraud because victims of discrimination are free to search for the best available job offer while victims of force or fraud are unable to choose a trading partner. Thus, competition among employers in the labour market acts as a powerful check on discrimination and makes discrimination laws, particularly employment discrimination laws unnecessary. According to Epstein, any remaining discrimination, which he calls “voluntary segregation”, is economically efficient and should not be prohibited. In other words, the market should be left free to regulate discrimination for itself.
7.5 There is another view that describes anti-discrimination legislation as tokenistic, making little or no impact in the wider scheme of things. This is more a criticism of the form that the legislation takes than the necessity for the legislation itself. Margaret Thornton summarises this view in an article entitled “Sex Discrimination Legislation in Australia” (1982) 54 (4) Australian Quarterly 393 thus:
[a]lthough describing complaint-based anti-discrimination legislation as tokenistic has become something of a cliche, ‘tokenism’ does nevertheless most aptly encapsulate its essence. First, the legislation operates within narrow parameters, further severely weakened by the exceptions and, secondly, the procedure of the complaint-based system is fraught with obstacles designed to deter all but the most intrepid complainant faced by an intractable respondent because of the almost insuperable burden of proof, the fear of public humiliation and indignity, together with the possibility of substantial costs.
7.6 Creighton, commenting on the then new Victorian Equal Opportunity Act in an article entitled “The Equal Opportunity Act - Tokenism or Prescription for Change” (1978) 11 Melbourne University Law Review 503, while condemning it and its South Australian and New South Wales counterparts of tokenism, concluded that:
[t]okenism as it undoubtedly is, it is better to have the EOA [Equal Opportunity Act] than to have nothing so long as it is not allowed to obscure the need for a much more radical approach to the problems with which it purports to deal. Even a rather half-hearted gesture like the EOA can serve a useful purpose as a consciousness-raising exercise both for the victims of discrimination and for the perpetrators of it.
Issues for consideration
Question 262
In adopting a “first principles” approach to the review of the Anti-Discrimination Act 1977 (NSW) and in the light of the diverging views stated above, the Commission welcomes views on the following, with particular reference to the NSW Act.
(a) Is there a need for anti-discrimination legislation?
(b) Has it been effective in reducing discriminatory practices?
(c) How best can its effectiveness be measured?
(d) Is there a better way of dealing with discrimination issues than by legislation?
LEGISLATION OR EDUCATION?
7.7 Some opponents to legislation in the area of anti-discrimination argue that what is needed is vigorous community education not legislation. They believe wrongful discrimination is largely the result of “wrong” attitudes which can only be changed by education and that the law can at most only change behaviour, by consistent enforcement, not attitudes.
7.8 On the other hand, stressing the importance of legislation, Justice Elizabeth Evatt, giving evidence in a private capacity to the Inquiry by the House of Representatives Standing Committee on Legal and Constitutional Affairs into Equal Opportunity and Equal Status for Australian Women, said that:
... laws enacted by Parliament in relation to matters of current social interest play an important part in changing attitudes.
There is a very interesting process involved in public opinion, legislation and judicial decision making; they each feed into the other. But where the leaders, the elected members, see that there is an issue which is fully justified in terms of human rights and internationally accepted standards, and they legislate for it, that legislation will work towards change, if it is carefully planned and implemented appropriately.
7.9 Yet it is suggested that legislation and education need not be considered as mutually exclusive alternatives. Even if law has only a limited role in social change and reform in immediately changing behaviour not attitudes, attitudinal rehabilitation through community education, with its inevitable long term focus, should be an adjunct to legislation. Martin Luther King said:
[m]orality cannot be legislated but behaviour can be regulated. Judicial decrees may not change the heart, but can restrain the heartless.
7.10 The result may be that, if community education produces its desired result in the long term, the need for legislation may diminish in time. However, in the short term there may be merit in linking legislative reform to community education.
7.11 The stance adopted in New South Wales seems to be that legislation and education do go hand in hand in combating discriminatory practices. This view may be implied in the words of the Preamble to the Act:
[a]n Act to render unlawful racial, sex and other types of discrimination in certain circumstances [by means of the legislation] and to promote equality of opportunity between all persons [by means of education].
In other words, they are two indispensable, complementary ways of reaching the common end of equality of opportunity.
NOT BY LAW ALONE: THE ROLE OF EDUCATION
How is education undertaken in NSW?
7.12 Education to promote human rights can be undertaken in various ways. Under the Act, the Anti-Discrimination Board (“the Board”), the Equal Opportunity Tribunal (“the Tribunal”) and the Office of the Director of Equal Opportunity in Public Employment (“the Director’s Office”) each have a role in this regard.
The Board’s role
7.13 As stated in Chapter 6, the role of education is an important function of the Anti-Discrimination Board. Section 119 of the Act sets out details of how the Board should accomplish this function “for the purpose of eliminating discrimination and promoting equality and equal treatment of all human beings”. The Board places great emphasis on its role in preventing discrimination by education through:
- information provision;
- policy development and research;
- interaction with the community and interest groups;
- interaction with potential respondents; and
- interaction with major institutions and organisations.
7.14 Some of the recent educational incentives taken by the Board include the following:
- producing and distributing publications in English and in other languages;
- providing speakers on request at seminars and conferences for employers, managers and service providers, for educational institutions, private and public sector organisations etc;
- establishing a new program of talks focusing on key organisations, such as the Registered Clubs Association, which already provide information and resources for particular sectors of the community;
- establishing an employer advisory service;
- training teachers within the Adult Migrant Education Services (AMES) and ensuring that sessions on anti-discrimination laws become an established part of the courses run by the AMES;
- preparing display material for use at public displays;
- contributing to the educational initiatives of others, whether as speakers, as representatives of the Board or through the publication of written material; and
- general policy development and research.
The Tribunal’s role
7.15 Apart from the activities of the Board, such as those described above, the substantiation of a complaint can have a general educative effect on the community. An appropriate remedy together with the publicity that follows can not only deter potential perpetrators but also encourage prospective complainants to initiate actions where they have been previously unsure of their rights. It can also contribute to public awareness of what constitutes unacceptable discriminatory conduct. The Equal Opportunity Tribunal has a role in this regard as its decisions serve to educate the community on the Act and its objectives. By contrast, the conciliation process does not have this potential for community education because the statutory requirement of confidentiality precludes it from having an impact upon the community at large. As Hilary Astor and Christine Chinkin have stated in their book Dispute Resolution in Australia at 274:
Respondents may admit unlawful organisational practice in private but decline or fail to take measures to remedy the situation. Their admission cannot be later used to effect much needed change since it was made in a confidential setting. The outcomes of conciliations cannot be used to demonstrate the possibility of success or the level of settlements, nor to encourage others to negotiate or make complaints about discrimination.
The role of the Director’s Office
7.16 Though restricted to public employment, the Office of the Director of Equal Opportunity in Public Employment has a significant impact in reducing discrimination in the work place. This is evidenced by the results of a survey of the Equal Employment Opportunity Program conducted in April 1990. The purpose of the survey was to determine progress under the program since the first survey in 1985 and the enactment of Part 9A in 1980. Some of the key findings of the survey were that:
- women have increased their representation in the more senior levels of the clerical administrative stream since 1985;
- the representation of people of non-English speaking background in the public sector has increased substantially during the period 1985-1990; and
- Aboriginal staff are proportionally better represented in specialist professional and specialist professional support occupations than they were in 1985 and “less clustered” in the wages area.
7.17 The above findings are not indicative of a complete change for the better in the workplace. In fact, given that women represented 38.2% of clerical administrative staff at lower levels in 1990, women are still under-represented at more senior levels. The same is true for other disadvantaged groups. However, the findings are indicative of a change for the better, slow though it may be. This change appears to reflect the impact of Equal Employment Opportunity programs in the work place which inevitably has an impact on the community. The very fact that all employees of public sector departments and authorities must comply with Part 9A will have an educative effect on those public servants.
Issues for consideration
- Accessibility and awareness of legislation
Question 263
While anti-discrimination legislation in most jurisdictions is contained in Acts of Parliament, it appears that the regulation making power that exists in New South Wales and elsewhere has not been used. Another possibility that has been suggested is to supplement the legislation with Codes of Practice and guidelines that will endorse and give effect to the principles of anti-discrimination in a more “user friendly” manner than Acts of Parliament.
(a) Will the inclusion of a "user friendly" Code of Practice, as an appendix to the legislation, assist in making the legislation more accessible and effective?
(b) Alternatively or additionally, should regulations be used to supplement legislation and education in combating discriminatory practices?
(c) In either case, what implications should follow the breach of a regulation or Code of Practice?
Question 264
Despite the emphasis placed on the role of education in combating discriminatory practices in the community, many groups and individuals are still unsure of their rights and duties under the Act. A particular concern of disability groups is the inaccessibility of the written word and the inability to make complaints due to insufficient education about the Act. One suggestion has been to introduce audio-taped versions of the Act.
Are there other more effective ways of reaching the various disadvantaged groups?
Is there a need for developing a “plain English” version of the Act?
Question 266
Should it be a requirement that the principles embodied in the Act are included in secondary school and vocational courses?
Question 267
There also appears to be very little, if any, impact made outside the main cities.
(a) Is there a need for the Board to have more branch offices or rely more on community relations campaigns and outreach programs?
(b) How else can the non-metropolitan community be reached?
Question 268
It has been suggested that the Act should be publicised to a much larger degree in the print and electronic media, the private sector and among people of non-English speaking backgrounds.
How best can the Act be publicised among these and other groups?
Question 269
The statistics show that many more complaints are finalised by the conciliation process via the Board than by the judicial process via the Tribunal.
Since the conciliation process could have an impact upon the community but for the confidentiality element, should it be made more accessible to the public by lifting or modifying the confidentiality requirement?
(See also discussion and Issues for consideration in Chapter 6 regarding the conciliation process.)
- Interaction between Board, the Tribunal and the Director’s Office
A QUESTION OF RESOURCES
7.18 While the Act has many deficiencies in terms of its scope and operation as identified in this Paper, even if all the legislative problems are resolved, the Act’s effectiveness will be greatly influenced by the available resources. This issue of allocation of adequate resources has been raised by various organisations and interest groups in submissions made to the Commission. Adequate resourcing will have an impact on the Act’s administration and enforcement as well as on its overall impact on the community at large in the provision of quality services.
Issues for consideration
Question 272
Are there particular areas that require increased resources?
Question 273
In Germany, it is a legislative requirement that at least one disabled person must be employed for every 16 employees in the work place; non-compliance results in a substantial fine that is used to fund services for vocational training/employment.
Should resources be generated by alternative means, such as those used in Germany?
BACKGROUND READING
ASTOR, H and CHINKIN, C "Conciliation of Discrimination Disputes" in Dispute Resolution in Australia (Butterworths, Sydney, 1992)
BREST, P “In Defense of the Anti-Discrimination Principle” (1976) 90 Harvard Law Review 1
CREIGHTON, W B “The Equal Opportunity Act - Tokenism or Prescription For Change?” (1978) 11 Melbourne University Law Review 503
EPSTEIN, R P “Forbidden Grounds: The Case Against Employment Discrimination Laws” (1992) 105 Harvard Law Review 2080
EVANS, G “Discrimination and Human Rights”, papers presented at the 22nd Australian Legal Convention (Brisbane, 1983) published by Queensland Law Society for the Law Council of Australia
NEW SOUTH WALES. ANTI-DISCRIMINATION BOARD AND EQUAL OPPORTUNITY TRIBUNAL Annual Report 1991 - 1992
PAUWELS, A Non-discriminatory Language (AGPS, Canberra, 1991)
THORNTON, M “Sex Discrimination Legislation in Australia” (1982) 54 Australian Quarterly 393
