December 2021 A reform agenda for federal discrimination laws 3.3 The purpose of discrimination laws? The existing federal discrimination laws identify that the legislation is intended to achieve the following purposes: • to eliminate discrimination as it is experienced by persons with particular attributes and where experienced in certain areas of life • to ensure equality before the law for everyone in the community • to promote recognition and acceptance within the community of the principle that all people have the same fundamental rights as the rest of the community • to reflect Australia’s international human rights commitments to prevent discrimination and promote equality. • to set Australian standards and values around principles and threshold against discrimination.41 Extensive academic commentary on anti-discrimination law has reflected on the ‘larger policy reasons’ for anti-discrimination laws, particularly focusing on the idea of the ‘equality’ goal of such laws in Australia and elsewhere.42 While the laws are framed as ‘anti’ discrimination, expressing a ‘negative duty’ – not to do certain things because of protected attributes,43 there are also clear examples of equality measures – provisions conceptualised and framed through the objective of achieving an outcome of substantive equality. Illustrations of a substantive equality approach are the ‘special measures’ provisions, the positive duty to provide reasonable accommodations in the disability context and indirect discrimination, which requires a sensitivity to the manner in which existing practices may advance some groups over others:44 all acknowledge that different treatment is sometimes required to achieve a similar outcome. Hence the four Discrimination Acts reflect commitments to advance equality both through removing discriminatory barriers – a goal of non-discrimination – and to advance equality through direct measures – particularly in the Sex Discrimination Act and the Disability Discrimination Act.45 The Commission considers that both approaches remain appropriate for 21st century Australia, but that the laws can go further. This inquiry is framed through the language and aspirations of the Universal Declaration of Human Rights, that all people are ‘free and equal in dignity and rights’. In response to the Attorney-General’s Department’s Discussion Paper on the consolidation of discrimination law, the Commission submitted that Australia’s obligations on equality as reflected in the international treaties behind the Discrimination Acts should be brought more clearly into focus.46 The Commission recommended that a consolidated law should state the objectives of promoting the achievement of equality and the elimination of discrimination, and indicate clearly that it is intended to be interpreted in accordance with Australia’s international obligations on human rights. In this Free and Equal report, the Commission reiterates this recommendation in relation to the reform agenda for discrimination laws. 34 FREE AND EQUAL An Australian Conversation on Human Rights