December 2021 A reform agenda for federal discrimination laws 3 Context for reform 3.1 What discrimination laws exist at the federal level? The first federal discrimination law in Australia was the Racial Discrimination Act, introduced to implement the International Convention on the Elimination of All Forms of Racial Discrimination.19 The Commonwealth Parliament added discrimination law protections in each decade after 1975, on the basis of: • sex, marital status or pregnancy in the Sex Discrimination Act 1984 (Cth) • disability in the Disability Discrimination Act 1992 (Cth) • age in the Age Discrimination Act 2004 (Cth) • sexual orientation, gender identity and intersex status (SOGII) by amendments to the Sex Discrimination Act in 2013. The passage of each new Discrimination Act set out new grounds of ‘unlawful discrimination’ and access to the complaints-handling procedure set out in the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The four Discrimination Acts were accompanied by the appointment of a designated Discrimination Commissioner to the Commission in respect of the relevant subject matter.20 The model that applies to all the federal Discrimination Acts is complaint-based, as civil wrongs, and reliant on a hybrid Alternative Dispute Resolution (ADR) model, based on conciliation of individual complaints. If a settlement cannot be reached through conciliation, a person aggrieved can institute civil proceedings in the Federal Circuit Court or the Federal Court and seek a range of enforceable remedies, including damages.21 For the most part, matters are resolved administratively through conciliation. This has proved to be the hallmark of the Commission’s complaint handling since the establishment of the Commission in 1981.22 The essential characteristic of the federal Discrimination Acts is a prohibition on discrimination in respect of particular attributes, such as race and disability, in specified areas of public life, such as employment and education. There are also defined exceptions. However, the burden of pursuing a remedy rests on individuals. The focus of discrimination law has been on incidents that occur in areas of public life, which includes workplaces. Rather than building on existing regulatory frameworks in the area of workplace relations, ‘anti-discrimination laws were developed to stand alone’.23 Moreover, in contrast to labour law, ‘the focus of anti-discrimination laws has been human rights and status equality’.24 28 FREE AND EQUAL An Australian Conversation on Human Rights