Principal federal legislation

Sex Discrimination Act

9.33 The SDA prohibits discrimination on the basis of sex. The Act also extends to discrimination on the basis of a characteristic that generally relates to people of a particular sex or that is generally imputed to people of a particular sex.^[19] The Act also prohibits discrimination on the ground of marital status, pregnancy or potential pregnancy and, in the area of employment, family responsibilities.

9.34 In certain circumstances, discrimination on the basis of genetic status may amount to sex discrimination. For example, refusing to employ people with a genetic predisposition to prostate cancer or a family history of breast cancer may give grounds for a complaint of indirect discrimination under the SDA. This is because apparently neutral requirements such as these may have an unreasonable adverse impact on men, in the first case, and on women, in the second case. Such practices may also amount to direct disability discrimination.

Racial Discrimination Act

9.35 The RDA prohibits discrimination based on race, colour, descent or national or ethnic origin. Discrimination on the basis of genetic status may, in some circumstances, amount to racial discrimination because some disorders are known to be more prevalent in particular races and communities. For example, Tay Sachs disease is prevalent in some Jewish populations and sickle cell disease is prevalent in certain African populations. Refusing to provide goods and services to people with Tay Sachs disease or sickle cell anaemia may give grounds for a complaint of indirect racial discrimination under the RDA.

9.36 Refusing to employ people from a particular racial group because that racial group is more likely to have a genetic predisposition to a particular disorder may also give grounds for complaint of direct discrimination under the RDA. Another possibility is that the ‘descent’ element of the definition of race might be relied on to ground a claim of discrimination based on genetic status.

Disability Discrimination Act

9.37 The DDA is the most relevant piece of anti-discrimination legislation in this area. The DDA prohibits discrimination on the basis of disability. The definition of ‘disability’, and whether it is wide enough to cover discrimination on the basis of genetic status, is discussed in detail below.

9.38 The DDA covers a disability which a person:

• has now;

• had in the past (for example, a past episode of mental illness);

• may have in the future (for example, a late onset genetic disorder); or

• is imputed to have (for example, a genetic disorder that a person is assumed to have on the basis of that person’s family medical history).

9.39 Discrimination is prohibited in employment, education, access to premises used by the public, provision of goods, services and facilities, accommodation, buying land, activities of clubs and associations, sport and the administration of Commonwealth government laws and programs. Discrimination on the ground of genetic status may, potentially, arise in many of these contexts. Consistently with the emphasis in the Inquiry’s Terms of Reference, and with the level of concern expressed in submissions, this Report focuses on discrimination in employment and insurance. These areas are considered in detail in Chapters 26, 27, 30 and 31. The Report also considers the use of genetic information in sport in Chapter 38.

9.40 Under s 31 of the DDA, the Attorney-General may formulate Disability Standards which, once tabled in Parliament for a certain period, gain the force of law. Such standards are intended to provide greater detail and more certainty in relation to rights and responsibilities under the Act. Standards can be made in the areas of employment, education, public transport services, access to premises, accommodation and the administration of Commonwealth laws and programs. The first Disability Standards for Accessible Public Transport were tabled in Parliament for the required period and took effect on 23 October 2002.

9.41 In addition, HREOC may issue guidelines under the DDA to assist persons and organisations with responsibilities under the legislation to avoid discrimination and comply with their responsibilities. HREOC has, for example, issued Guidelines for Providers of Insurance and Superannuation.^[20] Unlike standards, these guidelines are not legally binding.

9.42 Part 3 of the DDA also provides for the development and implementation of Action Plans by those who provide goods, services or facilities. Action Plans are intended to set out the policies and programs a service provider has put in place to achieve the objects of the DDA. In developing Action Plans, service providers must review their practices to identify and attempt to eliminate discriminatory practices. Action Plans are one of the factors that HREOC is required to consider in attempting to conciliate complaints of disability discrimination against service providers. Although an Action Plan does not constitute a defence to a complaint, if it establishes the respondent’s commitment to do everything possible to eliminate discrimination within a reasonable period of time, and if the respondent is actively implementing the Action Plan, it is possible for HREOC to find that it would impose unjustifiable hardship to require the respondent to do more.^[21]

9.43 Finally, s 30 of the DDA makes it unlawful to request or require information in connection with, or for the purposes of doing, an act of discrimination. The meaning and scope of this provision is not entirely clear. This provision is discussed in detail in Chapter 31.

9.44 In February 2003, the federal government announced a review of the DDA by the Productivity Commission. The Commission has been asked to undertake a cost–benefit analysis of the legislation and, in particular, of any restrictions on competition in the Act. The Commission is expected to report by February 2004.

Human Rights and Equal Opportunity Commission Act

9.45 The HREOC Act establishes HREOC and enables it to handle complaints under the SDA, the RDA and the DDA. HREOC may accept complaints under these three Acts, inquire into them, and attempt to settle them by conciliation. Where this is not possible, a complainant may choose to apply to the Federal Court or the Federal Magistrates Court to seek a binding determination.

9.46 In addition, HREOC may inquire into any act or practice, including any systemic practice, which impairs equal opportunity in employment on a wide range of grounds that might be relevant to genetic information. These include race, colour, sex, national extraction, social origin, age, medical record, sexual preference, impairment, physical, mental, intellectual or psychiatric disability. The definition of disability for the purposes of such an inquiry differs from the definition of disability used in the DDA. HREOC has used these powers to inquire into systemic age discrimination practices in employment.

9.47 The HREOC Act also provides HREOC with the power to inquire into alleged breaches of human rights by or on behalf of the Commonwealth, for example, by a government department.

9.48 In contrast to complaints under the SDA, RDA and DDA, individual complaints of discrimination brought under these provisions of the HREOC Act cannot be dealt with by a court or tribunal and therefore cannot lead to an enforceable remedy. For this reason, complaints tend to be lodged under one of the other Acts where an enforceable remedy is available.