AN EVALUATION OF THE MECHANISMS DESIGNED TO PROMOTE SUBSTANTIVE EQUALITY IN THE EQUAL OPPORTUNITY ACT 2010 (VIC).

• Date: 01 December 2020
• Author: Allen, Dominique

CONTENTS I Introduction II Conceptual Underpinnings A Formal Equality B Deviating from Equal Treatment C Substantive Equality D Special Measures E Reasonable Adjustments F Formal or Substantive Equality? III Victoria's Anti-Discrimination Laws A The Problems with Anti-Discrimination Laws B Victoria's Anti-Discrimination Laws IV An Assessment of the Impact of the Novel Mechanisms in the EOA 2010 A Research Methodology B The Act's Objects C Defining Discrimination 1 Direct Discrimination 2 Indirect Discrimination D Reasonable Adjustments E Special Measures F Duty Not to Engage in Discrimination, Sexual Harassment or Victimisation V Taking Stock VI Conclusion I INTRODUCTION

There is no doubt that anti-discrimination laws have had a significant impact on how we behave in workplaces and schools and in how goods and services are delivered. Blatant examples of discrimination are uncommon. Today, an employer is unlikely to proclaim that a woman cannot train to be a pilot because she might become pregnant, (1) and a bartender cannot refuse to serve women. (2) Yet discrimination still exists as recent reports by the Australian Human Rights Commission ('AHRC') on pregnancy discrimination and sexual harassment show, (3) and various forms of discrimination are still hotly contested, as recent debates about the Religious Discrimination Bill 2019 (Cth) revealed. (4)

One explanation for why anti-discrimination laws have failed to address ongoing, systemic discrimination is that they contain few mechanisms designed to proactively address inequality. Anti-discrimination laws deal with discrimination after the fact rather than requiring employers or service providers to anticipate the discriminatory effect of their behaviour and do something about it. Despite these shortcomings, anti-discrimination laws have remained much the same since they were introduced (5) with some occasional tinkering to prohibit new grounds of discrimination, (6) permit exceptions, (7) change enforcement procedures, (8) and in response to unfavourable court decisions. (9)

In April 2010, following extensive community consultation and inquiry, new anti-discrimination legislation was enacted in Victoria. It remains the only jurisdiction to have overhauled its anti-discrimination laws in the last two decades. (10) The Equal Opportunity Act 2010 (Vic) ('EOA 2010') features a number of dynamic provisions which are not replicated elsewhere in the country. They were included in an attempt to address systemic discrimination and promote substantive, rather than formal, equality. (11) Introducing the Equal Opportunity Bill 2010 (Vic), Attorney-General Rob Hulls said:

As much as we may champion the equal opportunity reforms of 30 years ago, our understanding of the way discrimination operates has changed. We now understand that we cannot satisfy the fair go by merely reacting to discrimination once it has occurred--that we must instead be positive and proactive about tackling it in all its various forms. (12) The purpose of this article is to assess the impact of the novel mechanisms in the EOA 2010 that were designed to promote substantive equality and target systemic discrimination: the Act's objects, which include: substantive equality; the definitions of direct and indirect discrimination; the obligation to make reasonable adjustments; (13) the definition of special measures; and the duty to eliminate discrimination, sexual harassment and victimisation. (14)

Part II explains the theoretical concepts which underpin the discussion of the EOA 2010: formal equality, substantive equality, reasonable adjustments and special measures. Part III outlines the framework of anti-discrimination laws and identifies the problems with these laws. It contains a brief history of the evolution of Victoria's anti-discrimination law, including the circumstances which led to the enactment of the EOA 2010. Part IV examines how well the novel mechanisms in the EOA 2010 have achieved the government's stated aims, drawing on interviews with lawyers practising in Victoria and staff at the Victorian Equal Opportunity and Human Rights Commission ('VEOHRC'), and case analysis. Part V shows that the revised definitions of discrimination have made it simpler to establish direct and indirect discrimination, and that courts have used the objects clause to interpret the Act beneficially. However, there is a general lack of awareness and understanding about the proactive aspects of the Act. Reasonable adjustments, while seen as a positive feature, are difficult to apply in practice, as are special measures, despite the Victorian Civil and Administrative Tribunal ('VCAT') having set out how they are to be applied. The duty to eliminate discrimination, sexual harassment and victimisation has not had any impact because it is not enforceable but, as Part VI sets out, that could be improved by giving the VEOHRC the power to enforce this provision.

II CONCEPTUAL UNDERPINNINGS

Equality is a fundamental idea of modern liberal democratic theory that traces its origins to early Greek philosophers, such as Aristotle. (15) Equality formed the foundation of new orders, such as the United States where it was enshrined in the United States Declaration of Independence. More recently, it was seen as fundamental to establishing democracy in South Africa. (16) Equality is included in international human rights documents, such as the Universal Declaration of Human Rights, (17) the International Covenant on Civil and Political Rights, (18) and the European Union's Charter of Fundamental Rights. (19) National bills of rights often contain an equality guarantee. (20)

There is a wealth of literature on the idea of equality and what it requires of judges, policymakers and society. (21) The following discussion has a modest aim. It defines the concepts of formal and substantive equality and locates four fundamental ideas of anti-discrimination law--direct discrimination, indirect discrimination, affirmative action and reasonable adjustments--within those definitions. This provides a context for the ensuing examination of the EOA 2010 in Part III, particularly how it attempts to embrace substantive equality and avoid the conceptual problems which have plagued Australia's anti-discrimination laws.

A Formal Equality

In its simplest form, equality is the idea postulated by Aristotle--that everyone is equal and likes must be treated alike. (22) It follows that any act which attempts to distinguish between two like people is prohibited. Legislative definitions of direct discrimination encapsulate this approach by prohibiting less favourable treatment of a person based on certain attributes. (23) Direct discrimination occurs when likes are not treated alike. As a concept, formal equality has the advantage of being simple (24) and widely applicable, so it can be extended to other attributes as necessary. For instance, Victoria's anti-discrimination law originally prohibited discrimination based on two attributes: sex and marital status. (25) It now applies to 18 attributes. (26)

Formal equality encourages neutrality and assumes that individuals can be divested of their attributes. (27) This requires conformity which, in the past, has meant conformity with the Anglo-Celtic, able-bodied, heterosexual, Christian, male norm. (28) Formal equality insists that a person should be judged on merit alone, not by irrelevant characteristics related to their group membership, such as their race or sex. For this reason, formal equality is described as equal treatment, or a gender-neutral or colourblind approach. (29) However, this approach is limited because it requires conformity and consistency; it assumes that differences are always irrelevant. Moreover, if formal equality means likes must be treated alike, then the following, difficult, question must be: alike in what way? What does formal equality mean for people who are not alike; who start the race from different points? Consider, for example, a person with a disability compared with someone without. In this instance, same treatment will not necessarily enable the disabled person to participate fully and equally in society.

B Deviating from Equal Treatment

One way to overcome the limits of formal equality is to decide that strict adherence to equal treatment is not always required. Professor Hugh Collins identifies three instances where it is permissible to deviate from equal treatment. (30) The first is affirmative action or special measures, as discussed below. (31) The second is where the comparators are not actually alike, such as the disabled person in the example above. Collins provides the example of a pregnant woman compared with a man as another example of permissible deviation. (32) Finally, Collins says, equal treatment is not permissible when it disproportionately disadvantages one group compared with another: so-called indirect discrimination. (33)

Indirect discrimination occurs when a policy or practice which is facially neutral has an unequal effect on members of marginalised groups compared to non-members and is not reasonable. Indirect discrimination moves beyond equality of opportunity by looking at the outcome or impact of a seemingly neutral policy or practice on group members. (34) Professor Bob Hepple describes indirect discrimination as a 'half-way idea between "equality of opportunity" and the narrower usage of "discrimination"'. (35) He says that the adverse impact of the seemingly neutral requirement on the individual relates to equality of opportunity, while the defence of 'reasonableness' turns the inquiry to the '"merit" principle'. (36) Reasonableness means that the respondent must take account of the disadvantaged group's needs but only to the extent that it would not harm the respondent, such as, Hepple suggests, by hiring unqualified staff. (37) Professor Paul Gewirtz argues that indirect discrimination is limited in addressing inequality...