The changing face of discrimination law

1. Discrimination law update The changing face of discrimination law Tasmanian CLC State Conference 15 November 2013 Robin Banks, Anti-Discrimination Commissioner

2. Discrimination law update Overview • Amended laws and operative dates • The amendments • Gender identity and intersex • Sexual orientation and relationship status • ‘Bullying’: section 17(1) • Exceptions and exemptions • Procedural matters • Where next? • Supporting the process

3. Discrimination law update Amended laws and operative dates • Sex Discrimination Act 1984 (Cth) • Amendments took effect 1 August 2013 • Anti-Discrimination Act 1998 (Tas) • Amendments to take effect 1 January 2014

4. Discrimination law update Gender identity and intersex • New protection against discrimination • on the basis of gender identity: • Sex Discrimination Act 1984 (Cth): new section 5B • Anti-Discrimination Act 1998 (Tas): section 16(ea) • on the basis of intersex: • Sex Discrimination Act 1984 (Cth): new section 5C • Anti-Discrimination Act 1998 (Tas): section 16(eb) • New protection against conduct that offends, humiliates, intimidates, insults or ridicules on the basis of gender identity and intersex: • Anti-Discrimination Act 1998 (Tas): section 17(1) (amended)

5. Discrimination law update Gender identity • gender identity means the gender‑related identity, appearance or mannerisms or other gender‑related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth and includes transsexualism and transgenderism. • Federal and Tasmanian Act (italicised text in Tas Act only)

6. Discrimination law update Intersex status • intersex status means the status of having physical, hormonal or genetic features that are: (a) neither wholly female nor wholly male; or (b) a combination of female and male; or (c) neither female nor male. • Federal and State Act (italicised text in Federal Act only)

7. Discrimination law update Sexual orientation and relationship status • Existing discrimination protection under Tasmanian Act: section 16(c) and (fa) and 17(1) • New protection against discrimination federally: • on the basis of sexual orientation: • Sex Discrimination Act 1984 (Cth): new section 5A • on the basis of relationship status: • Sex Discrimination Act 1984 (Cth): section 6 (amended) • New protection against conduct that offends, humiliates, intimidates, insults or ridicules on the basis of sexual orientation: • Anti-Discrimination Act 1998 (Tas): section 17(1) (amended)

8. Discrimination law update Sexual orientation • New definition in Sex Discrimination Act 1984 (Cth) • sexual orientation means a person’s sexual orientation towards: (a) persons of the same sex; or (b) persons of a different sex; or (c) persons of the same sex and persons of a different sex. • Existing definition in Anti-Discrimination Act 1998 (Tas) amended: • sexual orientation means: • heterosexuality; or • homosexuality; or • bisexuality; or • transsexuality.

9. Discrimination law update Relationship status – Federal law – new • marital or relationship status means a person’s status of being any of the following: (a) single; (b) married; (c) married, but living separately and apart from his or her spouse; (d) divorced; (e) the de facto partner of another person; (f) the de facto partner of another person, but living separately and apart from that other person; (g) the former de facto partner of another person; (h) the surviving spouse or de facto partner of a person who has died.

10. Discrimination law update Relationship status – Tasmanian law – existing • relationship status means the status of being or having been in a personal relationship, within the meaning of the Relationships Act 2003

11. Discrimination law update ‘Bullying’ – section 17(1) – Tasmanian Act • Makes it unlawful to engage in conduct that offends, humiliates, intimidates, insults or ridicules • Currently limited to seven attributes • Amendment extends to an additional seven attributes

12. Discrimination law update Section 17(1) • Current • gender • marital status • relationship status • pregnancy • breastfeeding • parental status • family responsibilities • Plus … • race • age • sexual orientation • lawful sexual activity • gender identity • intersex • disability

13. Discrimination law update Other substantive changes – Tasmanian Act • Areas of activity now all apply to all attributes: • Previously administration of state laws and programs, and industrial awards and enterprise agreements had limited coverage • Commissioner may take matter to Tribunal after own-motion investigation • Removal of judicial review

14. Discrimination law update Exceptions and exemptions: Federal Act • Broad defence for actions done by religious bodies • including educational institutions in relation to sex, sexual orientation, gender identity, marital or relationship status or pregnancy in employment and education provision • Aged-care services provision by religious organisations not exempt • Broad defence for actions done by voluntary bodies • Defence in relation to sport extended to gender identity and intersex status • Defence in relation to record keeping on gender

15. Discrimination law update Exceptions and exemptions – Tasmanian Act • Defence in section 55 extended to section 17(1): • to provide appropriate recognition of the need to balance equality and non-discrimination rights with freedom of expression • Commissioner may grant exemption to faith-based schools in relation to admission, to permit discrimination on the basis of religious affiliation only where choice between candidates necessary

16. Discrimination law update Procedural matters – Tasmanian Act • Permits dispute resolution process at any stage in complaint handling by Commissioner • Permits part-acceptance and part-dismissal of complaints • Enables appointment of a litigation guardian • Requires Commissioner/ Tribunal approval of settlement re children and people with limited capacity

17. Discrimination law update Procedural matters – Tasmanian Act … continued • Express power to combine complaints • Express power to amend complaints in relation to identified respondents • All respondents to be provided with complaint and summary of complaint • Commissioner may dismiss a complaint due to failure by complainant to pursue it • Representation at Tribunal throughout process by leave

18. Discrimination law update Procedural matters – Tasmanian Act … continued • Interim orders to be made on by the Tribunal • Costs orders may be made by Tribunal against party’s representative

19. Discrimination law update Where to next? • Future challenges: • Focus on freedoms at the expense of rights – who benefits • Proposed repeal of section 18C of the Racial Discrimination Act 1975 • Potential impact of the ‘great liberal democratic rights of freedom of expression, freedom of association, freedom of worship and freedom of the press’

20. Discrimination law update Where to next? • Future challenges: • Understanding discrimination as more pervasive than one-off events that are amenable to legal complaint • Achieving more focus on compliance and systemic change • Attributes – move towards protection on the basis of systemic disadvantage • Promotion of pro-active equal opportunity actions

21. Discrimination law update Supporting the process • Training available through OADC on the process and what role lawyers and advocates have in supporting parties • Regular updates on cases, outcomes and answers to frequently asked questions published in In respect of rights

22. Discrimination law update www.antidiscrimination.tas.gov.au antidiscrimination@justice.tas.gov.au Like ‘Office of the Anti-Discrimination Commissioner’ on facebook Subscribe online for free toIn respect of rights Call the OADC on 1300 305 062