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A chat with Tasmania’s Anti-Discrimination Commissioner Robin Banks
‘WHAT discrimination law is about at its very core is treating people equally as human beings and things that are irrelevant shouldn’t be taken into account when making decisions.
It’s about taking people on their merit – not face value. We far too much use face value as a measure of how well they perform a job or what they’re like in their heart – and it’s not a good measure.
People often lose that core message – people should have equal treatment and opportunity irrespective of their characteristics. It’s asking people to move from a stereotype and perceptions to the reality of people around us and what they can contribute’’. – Tasmanian Anti-Discrimination Commissioner Robin Banks
THE CPSU sat down with Tasmanian Anti-Discrimination Commissioner Robin Banks recently to talk about potential changes to Federal and state anti-discrimination legislation, as well as how Tasmanian workplaces and the public sector are performing in this matter. Disability, age, drug and alcohol testing and criminal record checking were some of the areas that came up during this conversation.
You can read more below.
- The changes to Commonwealth Anti-Discrimination legislation will see Acts (Sex, Race, Disability, Age discrimination and the AHRC Act) consolidated into one – is this move a positive step in your opinion?
YES, it should be a very positive step. A concern we’re working through at the moment is to ensure the protections that exist under the five separate statutes are retained in the final draft Bill.
There’s a few bits and pieces where there’s clearly a need to remind the Federal parliament of its commitment to not reducing any of the protections.
There are some very positive things in it, like the clarification of the definition of discrimination.
It’s also good having all of the attributes protected in one Act, because in some ways it makes it easier to add protection for further attributes. To date federally, if we wanted new protections in discrimination laws it had to be a whole new Act, and would mean a whole lot more political will needed to change and provide that protection. But when you have a consolidated Act it’s a matter of adding attributes. This is the situation with the legislation in Tasmania and all of other states and territories, it’s a matter of a decision being made about a newly identified group of people being subjected to discrimination and, as such, needing legal protection.
IT’S also a way to simplify the legislation and allow an understanding of the experience of discrimination across different characteristics.
- The scope is widened under the new draft Bill, with the addition of gender identity and sexual orientation, what else would have you like to see included?
THERE are two new attributes – gender identity and sexual orientation. I think there’s a weakness in what the Federal Bill covers in terms of gender identity. There’s a proposed amendment to the Tasmanian Act to add gender identity and intersex. The Federal Bill proposes intersex as being within the definition of gender identity, which is a misunderstanding about what intersex is. Gender identity is how people identity in terms of gender whereas intersex is about having different sex characteristics, so people who are intersex are born with sex characteristics that are neither wholly male or wholly female. We’ve said the Federal Bill should have two separate attributes, gender identity and intersex or to redefine gender to include the full spectrum of characteristics.
It’s been a long time coming getting sexual orientation protection into Federal law; every other state and territory’s had it for some time now. It’s at least 15 years overdue.
In the Federal Bill there are some attributes that are only protected in relation to employment, whereas under the Tasmanian Act we have a broader scope of attributes protected than even the new Federal law will have, and the protections will, if the current Tasmanian Bill is passed, also generally apply. There’s not really a good argument for providing protection against discrimination in some areas and not in others. It would have be good to see a broadened approach.
Another ones that I’m interested in here in Tasmania that we don’t have but I think we should consider protecting is the concept of social origin.
I quite often hear from people in Tasmania about the impact of your postcode on how you’re treated and the impact on attitudes to people who are dependant on welfare. I hear a lot that indicates that there are high levels of discrimination being experienced.
There’s an issue in Tasmania and Australia about how we treat people who are socially and economically disadvantaged. – and that economic disadvantage we haven’t dealt with in discrimination law before. It’s a tricky one but if we’re genuinely going to address inequality and social exclusion, we need to deal with it.
THE other one that’s not in the legislation but relates to this is homelessness. There’s been some work done in Victoria. From my previous work I know that homeless people experience all the trademark elements of discrimination – they are excluded, are treated in ways that don’t respect their humanity, they often get blanked – or completely ignored. That’s what discrimination law’s all about – challenging those attitudes and behaviours.
Another one that’s relevant to some of the work the unions’ have been doing is domestic violence, and how people experiencing this are discriminated against in work, particularly.
Recently the Premier’s announced a new State Service approach to make sure people’s employment is protected if they’re experiencing domestic violence. The logical next step is to provide protection in discrimination law. The reason why it’s not included in Federal Bill, as I understand it, is that like social origin and homelessness, it’s an entirely new attribute and there hasn’t been widespread consultation.
But one of the benefits of a consolidated law is that it’s arguably easier to add attributes.
ANOTHER attribute to consider in relation to the State Act is physical features. It’s a tricky one – does it mean innate physical characteristics like the colour of your hair… or is it the way you choose to appear, such as tattoos and piercings… Some people automatically leap to “people choose to have tattoos or piercings”. That might be true, but people choose to have political beliefs and be engaged in industrial activity or have religious beliefs, we don’t exclude those protections from discrimination law. What we hear is that people are treated as different and bad because they’ve got visible tattoos. This is where we ask people to look at people as human beings and take them on their merit.
- What would it mean, if anything, for a public sector worker in Tasmania?
IT’S important for public sector workers to realise that if there are changes federally they will have a wide impact. The law applies across the country, so we’re all bound by it. However, I think public sectors, Federal and State have an obligation to lead the way in implementing positive social outcomes and remedial legislation of this sort. So understanding both the Federal and State laws and how they apply in your work environment, in how you provide services to the community if you’re in a front line job or any kind of service provision role is critical to both doing the best we can as public servants for the people who we’re here to serve, and also modelling what’s best for private business.
There is sometimes an unfortunate perception that it’s okay for discrimination law to apply to the public sector but it shouldn’t interfere with private business. But that’s not how the law works, it clearly binds everyone. If it only applied to the public sector we’d have a two-tiered system.
Public sectors shouldn’t be judging the people we provide services to. Our role is to provide the services without fear or favour.
- There are also possible changes to Tasmanian legislation – do you know what these might mean for a person going through the complaints process?
REALLY the core purpose of the changes to the State Act is to improve the complaints process, so most of the changes are procedural, looking to strengthening processes and improving them.
One of the most important of these, especially for the public sector, is that in that in the last year or so this office has implemented an early resolution process. It’s not currently a statutory process under the Act but it’s been really successful, we’ve seen an 18% increase in resolutions in the last year. So as soon as we get a complaint and it’s accepted we try and get the parties together to resolve the complaint. Under the Act there’s a conciliation process available, but that doesn’t happen until the end of the investigation, which could be 6-8 months down the track.
One of the changes in the Act is that we will be able to conduct statutory dispute resolution at any stage of the complaint – even before it’s formally accepted, which is very exciting.
Early resolution is a really very positive aspect of the changes as the earlier we are able to get parties together to try to resolve the complaint the more likely we are to be successful. Delays in resolution tend to make it more likely that the complaint will end up in the Tribunal’s more formal process. The only people who are really comfortable in the court process are lawyers. The earlier we can get people together, the more likely we are to get a resolution and reduce the harm.
THE other change is ensuring there’s a mechanism for ensuring positive resolution of complaints made on behalf of children and people with limited legal capacity. There will be an independent checking process to ensure that legal rights aren’t given away. I think that’s an important protection.
I can currently investigate a situation without a complaint, but this power hasn’t been used very much.
Currently I am conducting an investigation into insurance companies in relation to volunteers and discrimination on the basis of age. I didn’t receive a formal complaint about that but a number of volunteer organisations contacted me because they couldn’t get insurance for older volunteers. This situation clearly treated older volunteers differently. Under the current Act, at the end of the investigation process, I can make a report – but it’s not binding and the issue can’t go to the Tribunal.
One of the changes is to allow me to take such issues to the tribunal. Some people have suggested that it gives me too much power. But it still doesn’t give me the power to make a decision, the decision stays with the Tribunal.
I think it’s important because discrimination law too much relies on the person affected to always prosecute complaints, and they’re largely disadvantaged. We’re leaving it up to one or two people to fight discrimination for the rest of the community and run all the risks without much in the way of reward.
- How do Tasmania’s Anti-Discrimination laws stack up compared to other states?
THE Tasmanian Act is more extensive than the Federal Act, even after these changes. While it’s in the process of reform, it’s a very good piece of Anti-Discrimination law, in most regards better than every state and territory and the Federal coverage.
For me the next wave of anti-discrimination laws will be… a more proactive approach to help compliance be achieved and to make organisations’ obligations clearer: taking the focus off the individual complaints-driven process. We’ve got laws around family responsibilities in the workplace – what was the Equal Employment Opportunity in the Workplace legislation. It requires every organisation with over 100 employees has to report annually about what it’s doing to improve employment opportunities for women. I’ll continue to argue that we should broaden out that legislation to seek employment opportunity improvements for the key equality-seeking groups in Australia – gender, race, visible minorities, age and people with disability. In Canada, the equivalent legislation covers those areas and has done all along.
The Tasmanian law stacks up pretty well but we need more capacity to do proactive work. Prevention is always much better. Prevention is always harder to persuade governments to fund, because once you’ve prevented it, everyone thinks there wasn’t a problem in the first place.
- What kinds of discrimination do you hear about in Tasmanian workplaces?
THE biggest area of discrimination complaints by far is disability – there’s about twice as many complaints in that area than any other, across the spectrum – employment, service delivery and others. Last year service provision complaints were the highest area of complaint for the first time ever. And government wasn’t underrepresented in those complaints. So we need more awareness around what do accessible services look like.
The data about the level of people with a disability in the Tasmanian State Service is of concern – we don’t have high employment rates. People with disability have much higher unemployment rates than other groups because they’re overlooked: people make negative presumptions about capacity and costs.
Often people who don’t have visible disabilities and their disability becomes known are treated quite badly, as if they deliberately misled someone. But if their disability doesn’t impact on how they do a job, it’s nobody’s business but their own. If they can do the job, they can do the job.
THE second highest area of complaint was race, and a lot of these were employment complaints, which is new in Tasmania. It reflects we’ve got a changing society with many more people who are part of visible minorities. Racial diversity is up and that challenges people in workplaces. I suspect that with race discrimination in employment complaints, it really is the tip of the iceberg.
IN workplaces we also need to be sensitive to people at both ends of the age spectrum. In the State Service, young people coming into jobs is probably a big issue. The public sector in Tasmania has an interesting age profile, and I imagine it’s very hard to break into as a young person.
People will advertise jobs with a specified number of years’ experience. But what’s the skill set they’re really looking for? Someone could be working in an area for 20 years and not have the requisite skills. It’s a recruitment issue – how well do we describe what we need in a job and how open are we to the diversity of people out there.
At the other end of the spectrum, we shouldn’t dismiss what people can contribute because they’re older. There’s a tendency to say “they’re near retirement, what are they going to add?”
Age is not a measure of capacity.
ANOTHER area is the way in which criminal records plays out in employment, with a wide practice of requiring criminal record checks, and not really having good practices in place for dealing with what you find. A record check is serious – it almost automatically causes people to discriminate. The Act in Tasmania says that a person can’t be discriminated against on the basis of criminal record that is irrelevant in the circumstances. However if you go for a job as a driver and you have a string of driving offences – of course that’s relevant and can be taken into account without falling foul of discrimination law: it’s about merit.
We need to avoid the potential for people taking a salacious interest in people’s criminal records, if we genuinely want people to rehabilitate, we need to give them employment opportunities.
Of course this needs to be balanced with situations where people are working with vulnerable people – such as children.
I always advise for caution around criminal record checking; if you have it done, make sure the record is reviewed confidentially by someone who knows what they’re doing.
ALSO there’s an increasing interest of drug and alcohol testing in workplaces, which is an area on which unions have done a lot of good work.
I have no doubt that’s appropriate to do drug and alcohol testing for substances that impair capacity in safety sensitive jobs. Whether or not you need to test beyond this is a whole different matter. There are two questions – are the markers of drugs and alcohol in your system a measure of impairment, they are not always. Second, would the presence of drugs or alcohol in your system affect your ability to do your job?
There are workplaces in Tasmania that have proposed random drug and alcohol testing as a matter of course – they weren’t safety sensitive jobs. My question for them is for what purpose? If they say “we can’t have people acting drunkenly in the workplace”, well then deal with that – that’s the behaviour you’re worried about. IF they’re worried about a person’s ability to do the job, then deal with that – don’t try and test for it using a proxy. It’s about dealing with the issue – not using other characteristics as a proxy for inadequate performance or inappropriate workplace behaviour.
- What can employers do to make sure discrimination’s not happening in their workplace?
UNDER the Act there’s an obligation on all organisations to ensure that all staff, officer, employees agents, managers and directors are aware of their obligations under the state Act.
We don’t get as much take-up of our training by State Government as I would hope. These are workplaces that have policies in place but I’d say, what good employers do, and do regularly, is come to us and say “here’s our policy can you have a look at it”. They can make sure that they have a policy that’s actively used – that means regular reminders to staff – a really effective and fair complaints process, ensuring unions are aware of what the policy is and know how to support people through the complaints or grievance process, applying the policy fairly, and sure there’s good training in non-discriminatory recruitment and management of staff and decision making.
For example, refusing flexibility, just because you don’t want to – it’s old guard – but we still see that.
We don’t have significant diversity in Tasmania’s public sector – that’s problematic. All of the evidence across the world says the more diverse a workforce is the better the outcomes you get.
ANOTHER way is making better use of exemption laws. Where an organisation isn’t fully compliant with the Act but has a plan in place but needs some time to get there, I’d certainly entertain granting an exemption with some conditions. It’s a positive way of helping organisations comply, rather than them sticking their heads in the sand and saying “we can’t comply so we’re not going to and just hope we never get a complaint”. Too often what we’re dealing with is the latter.
- There’s some criticism of Federal legislation is that it limits free speech. What are your thoughts on this?
THE provision that’s being challenged is the one that includes within the meaning of discrimination engaging in conduct that offends, intimidates or insults a person. There is already a similar provision in the State Act, that makes it unlawful to engage in conduct that offends, intimidates, ridicules, humiliates or insults on the basis of a protected attribute. At the moment that’s restricted to that conduct on the basis of gender, marital status, parental status, pregnancy, family responsibilities, relationship status and breastfeeding. There’s never been an assertion that this infringed speech. It’s only now it’s proposed to apply to all the protected attributes.
So, at the state level we aren’t proposing to change the law – we’re proposing to change who’s protected by it.
We have a law in Tasmania at the moment that says it’s unlawful to humiliate a person because they’re a woman but it’s not unlawful to say something that humiliates a person because they’ve got a disability – it seems pretty starkly wrong to me.
The real nut of the problem is the word offend – because it’s a subjective word. The test in the State Act is not only: is a person offended? but also: would a reasonable person anticipate they’d be offended.
It’s always been strongly arguable that conduct that offends ridicules, humiliates, intimidates or insults is less favourable treatment – and less favourable treatment is unlawful discrimination under the Act in relation to all protected attributes, so it’s just seeking to make explicit a particular part of the coverage in a way that’s not been explicit before.
ON FREE speech, speech isn’t absolutely free. We have in Australia protection under the Australian Constitution of political speech and speech about government. Free speech under international human rights law doesn’t allow you to infringe the rights of others. It doesn’t give you the right to call hatred on others or undermine someone’s dignity. It’s not about being allowed to abuse people.
I think one reason is why people are worried is that the Tasmanian Act does protect against discrimination on the basis of political affiliation, belief and activity, industrial activity and religious belief, affiliation and activity. These are areas about which people have very strong views about what is and what isn’t offensive.
There’s an argument that if this proposed protection is passed, it will allow people to speak out because they know have protection from being attacked. It’s the difference between an attack on the person and an attack on their views, they are different things.