December 2021 A reform agenda for federal discrimination laws When referring to reform of discrimination laws in this Paper, the Commission considers both ‘unlawful discrimination’ under the Discrimination Acts and ‘discrimination in employment’ under the ILO 111 jurisdiction. The ‘human rights complaints’ jurisdiction is considered in a separate Position Paper exploring the potential operation of a federal Human Rights Act. 3.2 A complex mix of laws? Different protections against discrimination, different definitions and processes for addressing breaches, also exist in the law of every state and territory in Australia. From the mid-1970s, state and territory laws providing for a civil remedy for discrimination were adopted: in South Australia (1975); New South Wales and Victoria (1977); Western Australia (1984); Queensland and the Australian Capital Territory (1991); the Northern Territory (1998); and Tasmania (1998).26 They followed a similar pattern of introduction and areas of coverage as the Commonwealth.27 At the time of writing, in 2021, there are some differences in coverage between these laws and the federal discrimination laws. There are also different regulatory powers for commissions in each jurisdiction. In addition to these laws, there are protections against discrimination in the employment context in the Fair Work Act 2009 (Cth). The Fair Work system is the national framework governing the relationship between employer and employee in Australia. It provides a separate but overlapping scheme that applies to some forms of discrimination in employment. The ‘General Protections’ provisions in Part 3–1 of the Fair Work Act, prohibit ‘adverse action’ in employment based on 13 protected attributes,28 including several that are similar to those covered by anti-discrimination laws. However, a key difference of the Fair Work Act regime is that it only applies to the field of work and only to employees and potential employees.29 The Fair Work Act introduced into labour law rights against discrimination in all stages of work, no longer limiting this protection to termination of employment of existing employees. Individual claims of adverse action can be brought to the Fair Work Commission by employees against their employers, to be resolved through conciliation or adjudication.30 The Fair Work Commission uses some ADR processes, but in a much more limited and truncated way than the Human Rights Commission. The Fair Work Act system operates differently from the antidiscrimination law model through the Human Rights Commission in a number of respects, particularly the enforcement machinery and powers. 30 FREE AND EQUAL An Australian Conversation on Human Rights