Constitutional issues

Commonwealth constitutional powers

9.8 The federal Parliament’s power to legislate is set out in, and limited by, the Commonwealth Constitution. The relevant provisions do not expressly refer to ‘human rights’ or ‘discrimination’ and the Commonwealth’s legislation in this area is based on a suite of powers, including the ‘external affairs’ power in s 51(xxix). The High Court has interpreted this provision to mean that the Commonwealth may enact laws to implement its international legal obligations,[6] subject to certain implied and express constitutional limitations, and provided the laws are reasonably appropriate and adapted to implement the obligations.[7]

9.9 In addition, the DDA and the SDA expressly identify a number of other heads of constitutional power that support the legislation. The intention of these provisions is to extend the reach of the legislation as far as possible, given the absence of an express power to enact laws with respect to discrimination. For example, under s 12 of the DDA, the Act extends to:

    • matters covered by specified international conventions;

    • matters external to Australia or of international concern;[8]

    • discrimination by foreign, trading or financial corporations;

    • discrimination in the course of carrying on the business of insurance or banking;

    • discrimination in the course of interstate or international trade and commerce; and

    • discrimination against Commonwealth employees in connection with their employment.

State and territory laws

9.10 The States and Territories do not have such constitutional limitations. Each jurisdiction has enacted anti-discrimination legislation and, while the Acts are not identical, there are considerable similarities between them. In many situations involving claims of discrimination, state and territory anti-discrimination legislation overlaps with federal laws. Where this occurs, an individual may have a choice of legislation under which to seek redress.

9.11 Under s 109 of the Constitution, in the event of an inconsistency between federal and state laws, the federal law prevails and the state law is inoperative to the extent of the inconsistency.[9] This caused problems in the early days of anti-discrimination legislation in Australia. All federal anti-discrimination Acts now contain provisions expressly indicating that the federal Act is not to be taken to exclude or limit the operation of any state or territory law capable of operating concurrently with the federal Act. Some problems of articulation between federal and state laws still remain, for example in the field of insurance.[10]

[1] A Niccol, GATTACA (1997), Columbia Pictures.

[6] Commonwealth v Tasmania (1983) 158 CLR 1 (The Tasmanian Dam Case).

[7] Richardson v Forestry Commission (1988) 164 CLR 261.

[8] See Soulitopoulos v LaTrobe University Liberal Club [2002] FCA 1316; O’Connor v Ross (No 1) [2002] FMCA 210, confirming that the prohibition of disability discrimination is a matter of international concern.

[9]Dao v Australian Postal Commission (1987) 162 CLR 317.

[10] The High Court has held that provisions of the Life Insurance Act 1945 (Cth) (allowing life insurers to classify risks according to actuarial evidence) are inconsistent with provisions of the Anti-Discrimination Act 1977 (NSW) (precluding insurers from discriminating against insurance applicants in respect of disability). See Australian Mutual Provident Society v Goulden (1986) 160 CLR 330.