In Australia, all public and private organisations are bound to adhere to various anti-discrimination laws. These include the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, the Sex Discrimination 1984, and the Age Discrimination Act 2004.
In the ACT, these are supplemented by the Human Rights Act 2004, which amongst other things states that “Everyone is equal before the law and is entitled to the equal protection of the law without discrimination.”
These Acts all rest upon the same broad principle: that all Australians have the same rights to participate in society and be treated fairly, regardless of their background and inherent characteristics.
An organisation’s constitution and policies should prescribe a clear and consistent regime for the resolution of allegations of discrimination. Whilst every organization is different and has different objectives, we suggest that there are some bedrock characteristics that should always be incorporated into any effective anti-discrimination policy:
The policy should guarantee procedural fairness
An organisation’s Constitution and policies should set out a clear procedure for the investigation of any allegation of discrimination and/or discriminatory practices. Any employee or officeholder who is the subject of such an investigation should be afforded ‘procedural fairness’.
This means that they are entitled to be fully apprised of each and every allegation relating to them, and to provide any relevant evidence and comment in reply.
The policy should be clear about any exceptions.
- It is permissible under the Acts for certain groups to be given preference in very specific and limited circumstances.
- For example, the Disability Discrimination Act 1992 allows for an employer to decline to offer a position or a specific type of work in circumstances where, because of the inherent requirements of the position, the person would not be able to carry out the role, even if reasonable adjustments were made for them.
- Similarly, it is not unlawful under the Racial Discrimination Act 1975 for an organization to implement “special measures” which seek to assist groups which have historically suffered disadvantage. For example, an indigenous cadetship program would be a permissible ‘special measure’.
- It is helpful and advisable for an organisation’s Constitution to acknowledge the circumstances where it is envisaged that people may be treated differently due to their inherent characteristics, and to state that any relevant policies will be tailored to be consistent with permitted exceptions under Discrimination law.
The policy should reinforce the aims and values of the organisation
An effective anti-discrimination policy should be a tool to bolster the organisation’s mission and values.
That is, drafting the policy should not just be a cut and paste from other sources, but should be an opportunity for reflection on what the organisation wants to achieve, how it wants to achieve it, and the workforce it needs to make that happen.
How can we help?
Snedden Hall & Gallop is available to assist in drafting anti-discrimination policies, undertaking investigations and helping resolve allegations of discriminations.
Contact the Snedden Hall & Gallop team on 02 6285 8000 or by email.
Dominic Cookman is the current chair of the ACT Law Society Inclusion and Diversity Committee. The views expressed in this article are his own.