Page 4021 - Week 12 - Wednesday, 30 November 2022

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The bill achieves this through three key areas of reform: expanding the coverage of the Discrimination Act, refining the exceptions and introducing positive duties.

Firstly, the bill expands the areas of public life in which discrimination and sexual harassment are unlawful. Currently, it is against the law to discriminate against a person at work; in education; when allowing access to premises; when providing goods, services and facilities; when providing accommodation; or in the activities of clubs holding liquor licences. While this coverage is broad, it has been unclear whether sport competitions or even certain government functions are covered by the act. This bill will rectify this uncertainty and make it clear that discrimination and sexual harassment protections apply to formally organised sporting activities and competitions and the administration of territory laws or ACT government programs or policies. Our discrimination laws will protect people in more situations.

Secondly, the bill amends exceptions to unlawful discrimination to be clearer, more user friendly and human rights compatible. Exceptions to unlawful discrimination recognise that differential treatment may be justified in certain circumstances, such as promoting matters that are in the public interest or protecting another person’s human rights.

This means that when determining the boundaries of these exceptions—that is, the circumstances where it is permissible to discriminate—regard must be had to striking a balance between competing human rights. Balancing competing rights does not necessarily mean reaching an even compromise between the two. Rather, the goal of these reforms is to find an approach which accommodates and allows for both competing rights to be enjoyed as far as possible. Refinements have been made to the exceptions for domestic duties, insurance and superannuation, religious bodies, sport, clubs and voluntary bodies, and work. The bill also inserts a new exception for competitions.

Noting the extensive nature of these reforms, I will briefly outline how the bill will amend these exceptions. The reforms will strengthen protection for domestic workers. Domestic workers are among the most vulnerable employees. The exception has been narrowed to only permit discrimination when hiring someone to provide domestic duties if the discrimination is reasonable, proportionate and justifiable in the circumstances. It does not intend to prevent a person from preferencing an individual with a particular protected attribute if there is a genuine reason to do so.

The bill narrows the exception for all insurance and superannuation. An insurance or superannuation provider may only discriminate if the discrimination is based on statistical or actuarial data. If no data is available, they may rely on other relevant documents. This exception is further qualified to require that it must also be reasonable to rely on the data or documents and any discrimination must be reasonable, proportionate and justifiable. Consumers will be entitled to access either the data or documents themselves or receive a meaningful explanation of the data or documents that an insurance or superannuation provider has relied on.

Another area where we have tightened exceptions is competitive sport. The existing exception for discrimination on the grounds of sex in competitive sporting activities

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