Harmonisation of state and territory law

9.113 As noted above, federal, state and territory anti-discrimination legislation, while based on the same paradigm or framework, differs in significant ways including in relation to the way that ‘disability’ or ‘impairment’ is defined, and in relation to discrimination on the basis of association.

Submissions and consultations

9.114 Submissions received by the Inquiry generally expressed strong support for uniformity or greater harmonisation of federal, state and territory laws concerning discrimination in relation to human genetic information.^[79] The Disability Discrimination Legal Service sounded a note of caution, however, in relation to maintaining the ability of States and Territories to act independently^[80] and the Queensland Government expressed concern that standards were not raised or lowered contrary to the policy of particular jurisdictions.^[81]

9.115 On the other hand, the Human Genetics Society of Australasia noted that family members affected by genetic disorders may live in a number of States and Territories.^[82] The Australian Society for Medical Research expressed the view that greater national uniformity would benefit the public as well as the scientific community.^[83] The Australian Institute of Actuaries noted that companies often operate across state borders and that it was confusing for such companies to be subject to different regimes in each jurisdiction.^[84] The Inquiry considers that such inconsistencies may provide a disincentive for organisations to develop policies and programs that comply with anti-discrimination legislation because the applicable rules are unclear and may differ from one jurisdiction to another.

9.116 The Anti-Discrimination Board of NSW summarised the issue as follows:

Uniformity or, at a minimum, greater harmonisation of federal, State and Territory anti-discrimination legislation is crucial to an effective legislative regime to provide protection against genetic discrimination. It would ensure that people are afforded equal protection under the Australian law, regardless of which State or Territory people reside [in] and where the conduct occurs within Australia. Uniformity would reduce the complexity of jurisdictional decisions about whether to proceed under State/Territory or federal legislation for the would-be complainants. It also supports greater certainty about people’s rights and responsibilities under anti-discrimination law, rather than such understanding being undermined by uncertainty which arises when there are inconsistencies between different federal, State and Territory laws. Uniformity of anti-discrimination legislation would enhance certainty by increasing the likelihood that case law from one jurisdiction is applicable in another and for precedent to be applied.^[85]

9.117 In addition, the acting Disability Discrimination Commissioner stated that:

In this area and more generally, HREOC supports Federal and State anti-discrimination laws taking a consistent approach wherever possible. For State laws to provide more restricted coverage than the DDA can serve only to mislead or confuse employers, service providers and others covered by the legislation regarding the extent of their obligations, since responsibilities under the DDA will apply in any case; and may cause procedural problems for complainants if they choose the wrong jurisdiction. Most States and Territories have in fact moved to harmonise their legislation with the DDA. This process should continue, through action by individual jurisdictions and preferably also through co-ordinated action through relevant Ministerial councils.^[86]

9.118 In consultation, HREOC noted that the heads of the various anti-discrimination bodies in Australia meet regularly to discuss issues such as harmonisation and that this was one mechanism through which this goal could be pursued.^[87]

Inquiry’s views

9.119 The Inquiry is of the view that greater harmonisation across jurisdictions, for example, in relation to the definition of disability or impairment and the coverage of discrimination on the ground of association would be beneficial. Harmonisation is not intended to stifle the role of the States and Territories in innovation and experimentation, but to ensure that similar approaches are adopted where similar goals exist.