The ACT discrimination law could cover all areas of public life, and eliminating discrimination will be a positive duty, if a government law reform goes ahead. The ACT Government says this will promote equal opportunity, respect for diversity, and social inclusion.

A Discussion Paper on the proposed reforms of the Discrimination Act 1991 has been released for public consultation, and the ACT Government is seeking feedback from the community.

The Discrimination Law Reform Discussion Paper and online survey can be found on the ACT Government’s YourSay page.

The ACT Government proposes to adopt the ACT Law Reform Advisory Council (LRAC)’s recommendation to amend the Discrimination Act to prohibit discrimination generally (in all areas of public life) with an exception for private conduct.

This would remove six listed areas from the Discrimination Act, and mean that a person would only have to show that the conduct they are complaining about occurred in public life.

Currently, the Discussion Paper states, discrimination law only applies to some types of activities, and a wide range of exemptions from the law allow some bodies to discriminate in some situations, including organised sport, government functions, and the conduct of competitions.

The Discrimination Act would be also amended to make eliminating discrimination a positive duty, as the Human Rights Act sets out.

Currently, the Discussion Paper notes, the laws are “negative”; they require persons and organisations to refrain from discriminating conduct. According to LRAC, the current complaints-based system is reactive, and requires a person to complain of discrimination before any action is taken.

“The complaints process itself can be a barrier to vulnerable persons and a positive duty to eliminate discrimination would ‘lessen the burden on individual complainants’.”

Discrimination law does not apply to private activities – for example, things said or done between friends and family outside public life. There is no proposal to change this.

“This review of the Discrimination Act is the next step on the path to modernising this important law,” said Tara Cheyne, ACT Minister for Human Rights.

“It was foreshadowed in the Parliamentary and Governing Agreement as part of the ACT Government’s implementation of the Capital of Equality Strategy 2019–2023, and follows reforms to the Discrimination Act made in 2016, 2018, and last year.”

Feedback from the community is sought on:

• A proposal to extend coverage of the Act, potentially to all areas of public life;
• The merits of placing a positive duty on public authorities and businesses to eliminate discrimination; and
• The best approach to exceptions in the Act, including whether those exceptions should be refined or, alternatively, replaced with a single ‘justification defence’.

Consultations will feed into the development of a Discrimination Amendment Bill for introduction into the ACT Legislative Assembly next year.

“I urge all Canberrans as well as interested groups to provide feedback on the proposed reforms to ensure the ACT continues to lead the way in promoting equal opportunity, respect for diversity, and social inclusion in our community,” Ms Cheyne said.

Public comments on the Discussion Paper close at midnight on Tuesday, 4 January 2022.