Comment

Kieran Pender
Australia’s frayed anti-discrimination laws

In early May, the High Court delivered a judgement that further undermines the fragile patchwork quilt of anti-discrimination law in Australia. You might have missed it – Citta Hobart v Cawthorn received little attention with all eyes on the federal election. But pensioner David Cawthorn’s case highlights the increasing challenges facing those who experience discrimination in its many forms and wish to seek legal redress.

Australia’s anti-discrimination framework dates to the 1970s and comprises overlapping and sometimes inconsistent laws in every state and territory, and at the federal level. The High Court’s judgement presents a looming headache for Attorney-General Mark Dreyfus, QC, as Labor plans an overhaul.

But most significantly, the framework and its latest frailties put justice further out of reach for those such as Cawthorn. The disability advocate, who has paraplegia and relies on a wheelchair for mobility, had brought a discrimination claim against the developers of Parliament Square in Hobart over their proposal for a stair-only primary entrance. The only accessible entrance at the development, which has since been finished, is up a steep hill.

 

Before we consider Cawthorn’s plight, some context. Australia’s constitution sought to meld existing colonial institutions with a new, federal overlay. Chapter III implemented these blended arrangements for the judicial system – establishing the High Court, permitting parliament to create new federal courts, and allowing state courts to exercise this “federal jurisdiction” alongside their existing authority. This was largely a cost-saving measure – it meant the newly established government did not have to create a whole new court system. But as a consequence of the separation of powers entrenched in the constitution, disputes giving rise to this federal jurisdiction can only be heard by a court – state or federal – and not any other body.

A few decades later, Owen Dixon, KC – who was to become one of the most influential judges in Australian history – made an unusual point to a royal commission. “If a tramp about to cross the bridge at Swan Hill [on the New South Wales/Victoria border] is arrested for vagrancy and is intelligent enough to object that he is engaged in interstate commerce ... a matter arises under the constitution,” the barrister said. “His objection may be constitutional nonsense, but his case is at once one of federal jurisdiction.”

If not for Bernard Gaynor, a right-wing activist and former Queensland senate candidate, this innocuous observation might have been lost to history. But in 2014, Gaynor’s persistent homophobic comments prompted campaigner Garry Burns to make a complaint to the Anti-Discrimination Board of New South Wales. Thus began a sorry saga that has significantly undermined the efficacy of the federalised anti-discrimination framework.

The crux of the problem is as follows. If you face discrimination in a variety of settings, say at work, or while seeking to access goods and services, the law provides an avenue for redress, including compensation. All states and territories have anti-discrimination laws, although they vary in breadth. The ACT has 24 protected attributes – from pregnancy to political conviction, race to relationship status – across the border there are far fewer. NSW’s outdated Anti-Discrimination Act does not apply to political beliefs, for example, and provides only narrow protection against discrimination “on the ground of homosexuality” or “transgender grounds” – not against sexual orientation or gender identity discrimination more generally.

The complexity does not stop there. Over the decades, the federal government supplemented this state and territory framework with its own anti-discrimination laws: the Racial Discrimination Act (1975), Sex Discrimination Act (1984), Disability Discrimination Act (1992) and Age Discrimination Act (2004). There have also been several unsuccessful attempts to enact a federal religious discrimination act, most recently at the beginning of this year.

The protections provided by federal law are largely complementary to those at state and territory level, but the avenues for redress are different.

State regimes typically provide for a complaint mechanism to the state human rights or equal opportunity commissions. If a complaint can’t be resolved by mediation or conciliation, it is determined by a state tribunal, such as the Victorian Civil and Administrative Tribunal. These bodies are designed to be quicker and cheaper than courts, requiring no lawyers or strict rules of evidence. They generally have “no costs” rules, whereby neither party is ordinarily liable to pay the other’s legal fees.

The federal regime involves mandatory conciliation by the Australian Human Rights Commission (AHRC), and an unsuccessful complainant can commence proceedings in the Federal Court or Federal Circuit and Family Court. Those jurisdictions are more formal: lawyers are advisable and parties are liable for adverse costs, paying the other side’s legal fees if they lose. An unsuccessful discrimination claim could bankrupt a litigant, even one who self-represented or secured pro bono legal assistance; costs in contested claims in the Federal Court often rise into the hundreds of thousands of dollars.

Choice is not necessarily a bad thing. If you are discriminated against in the workplace on the basis of your age, you could complain under the federal system, and if conciliation is unsuccessful, you could sue in a federal court. If you win, you could be better off than the alternative. Awards of damages can be higher – some state tribunals have compensation caps – and your employer might have to pay your legal fees too. But if you are unsuccessful, you might lose your house.

 

Few would describe this system as optimal. But following Gaynor’s High Court case in 2018 and Cawthorn’s in May, the patchwork became distinctly sub-optimal – as a consequence of the constitution’s federal overlay and the issue raised by Dixon way back in 1929.

In Burns v Corbett, the case arising from Burns’s complaints against Gaynor, the High Court held that the jurisdiction provided by state law to the NSW Civil and Administrative Tribunal was unconstitutional. Gaynor was a resident of Queensland, and the constitution provides that disputes “between residents of different states” give rise to federal jurisdiction, and federal jurisdiction cannot be given to a state tribunal, because it is not a court. This hampered the effectiveness of state anti-discrimination law, meaning the tribunals could only hear disputes between local residents. Some states have enacted a partial fix for this scenario, by giving jurisdiction in such circumstances to their state courts.

Cawthorn compounded the problem. The property developer had argued Tasmania’s Anti-Discrimination Tribunal had no jurisdiction as it could not exercise federal jurisdiction. On appeal to the High Court, the case’s significance was evident: every state, plus the federal government and the AHRC, intervened.

In May, the High Court held that state discrimination tribunals have no competency if a party raises any issue giving rise to federal jurisdiction, such as a constitutional objection or a defence under federal law. Provided the federal claim is not “incomprehensible or nonsensical”, the tribunal is deprived of jurisdiction (although the court qualified, in a footnote, that Dixon’s “constitutional nonsense” might not meet this bar).

The practical consequence of all of this is that the informal, no-cost anti-discrimination forum offered by tribunals across the country is in jeopardy. If a respondent – say, an employer facing a workplace sex discrimination claim – raises a federal issue, the tribunal cannot hear the claim. The federal argument need not be successful, or even arguable. Provided it is not incomprehensible, the case falls away.

A complainant may instead have to litigate in federal courts, at much higher cost and greater risk. More likely, they would discontinue the complaint entirely.

 

These two decisions frayed the threads of Australia’s anti-discrimination patchwork – they may yet snap. In Cawthorn, the High Court suggested Tasmania’s anti-discrimination laws might be unconstitutional, for being inconsistent with federal disability standards. This threatens the ability of states to enact more generous protections, a saving grace of the piecemeal federalised model, which has seen protections “level up” over time. It would take a brave complainant to use the state system, at least in the disability context, given the spectre of a constitutional challenge.

The new Labor government has promised a range of reforms. Full implementation of the Respect @ Work recommendations around workplace sexual harassment are imminent; a religious discrimination law and strengthened protection for LGBTQIA+ students have also been promised. But these issues are just the tip of the iceberg.

Because this latest obstacle to an effective anti-discrimination framework is constitutional in nature, there are no easy solutions. One is to convert state tribunals into courts, as is already the case in Queensland. This would give them jurisdiction, but diminish flexibility and increase expense – at least for the governments, which may wish to pass the additional cost on to litigants. Replicating the costs protection at state level in federal law would even up the playing field. The Respect @ Work report recommended this in the sexual harassment context, which the Labor government has promised to implement. Even this might have unintended consequences, by reducing access to no-win, no-fee lawyering – which is often uneconomical in no-costs jurisdictions. A solution might be found in the asymmetrical costs protections provided in whistleblowing laws.

These would be minor fixes. The Gillard government attempted a more holistic approach, but failed to consolidate and strengthen federal anti-discrimination laws. We must hope that the Albanese government has more success.

The seminal critique of Australian anti-discrimination law was published in 1990. The Liberal Promise: Anti-discrimination Legislation in Australia, by Margaret Thornton – now an emerita professor and occasional collaborator of mine at the Australian National University – noted the contradiction in using law to achieve social change. “Ultimately, the quality of justice which emerges for women and minority groups [will] always be contingent upon the good graces of the powerful,” she wrote. “There is a limit to which legal institutions can operate as vehicles for social change, even though we cling to the myth that they can effect the transformative vision.”

This critique rings true today, after three more decades of unsatisfactory service from the anti-discrimination framework, and compounded by the High Court’s latest roadblocks. But Thornton ended on an optimistic note, not wanting to be seen as “nihilistic”. Australia’s anti-discrimination laws are a long way from perfect, and may not achieve transformative social change. But sometimes, they can empower individuals such as David Cawthorn to seek modest justice. We must pursue law reform to strive for this and much more.

For now, Cawthorn is back to square one. During the six-year saga, with his complaint hijacked by constitutional arguments, not once has the advocate actually had the chance to explain why the new central Hobart development might be contrary to anti-discrimination law. Cawthorn may try again – Tasmania has since conferred jurisdiction on its magistrates court to hear such claims, to bypass the constitutional issue. A further complaint, the Disability Voices Tasmania group said, would hopefully allow “arguments about the real issue”, namely whether people with a disability “have fair, equitable and dignified access”.

This article was first published in the print edition of The Saturday Paper on August 13, 2022 as "Piecemeal protections".

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