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

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 2 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 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) 4 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) 5 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) 6 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) 7 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: (a)heterosexuality; or (b) homosexuality; or (c) bisexuality; or (d) transsexuality. 8 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. 9 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 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 11 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 12 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 13 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 14 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 15 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 16 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 17 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 18 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’ 19 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 20 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 21 Discrimination law update

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