Response to the
ACT Law Reform Advisory Council’s Community Consultation Paper
Review of the Discrimination Act 1991 (ACT)

Women With Disabilities ACT 

May 2014

Women With Disabilities Australian Capital Territory
Women with Disabilities ACT (WWDACT) is a systemic advocacy and peer support organisation for women with disabilities in the ACT.  WWDACT follows a human rights philosophy, based on the Convention on the Rights of Persons with Disabilities and the Convention on the Elimination of Discrimination against Women. WWDACT supports and encourages women with disabilities in the ACT to fully partake in every aspect of community life.  WWDACT envisages a day when barriers for women with disabilities no longer exist.  

This document was prepared by:
Emilia Della Torre  BA(Hons) LLM (Syd)
WWDACT Policy/Project Officer

Enquiries on this response should be directed to:
Emilia Della Torre
Women With Disabilities ACT
Women’s Centre for Health Matters
PO Box 385, Mawson, ACT, 2607
Phone (02) 6290 2166
Facsimile (02) 6286 4742
admin@whcm.org.au 
www.wchm.org.au 

© Women With Disabilities ACT (WWDACT) May 2014

Introduction
This response to the ACT Law Reform Advisory Council’s ‘Community Consultation Paper
Review of the Discrimination Act 1991 (ACT)’ (Consultation Paper) focuses on the primary issue to impact on the lives of women with disabilities: multiple discrimination. It is exclusively a response to Consultation Paper Question 3: “Should the definition of discrimination be amended to include conduct on the basis of more than one attribute?” 

Women With Disabilities ACT (WWDACT) has adopted the term ‘multiple’ discrimination’ in order to conform with Article 6(1) of the United Nations Convention on the Rights of Persons with Disabilities (CRDP) that states:
1. States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.

WWDACT believes that the express proscription of multiple discrimination within the Discrimination Act (ACT) (1991) (The Act) will have a positive impact and result in a sustainable overall increase in wellbeing in the Territory.

Background
WWDACT views the Review as 
•	a means of incorporating Australia’s international human rights obligations into our domestic legislation; 
•	an opportunity to enhance the clarity and certainty of the operation ACT anti-discrimination laws and policies; 
•	the codification of legislative guidelines that shape the conduct of all stakeholders in a free and fair Australian society; and
•	an invitation to assess the impact the legislative proscription of multiple discrimination will have on our economic and non-economic wellbeing.

The legislative recognition of multiple discrimination cannot operate effectively if a simple “add attributes and stir” approach is taken to The Act. Instead, multiple discrimination must be contextualised and coherently integrated into the operational details of any proposed new consolidated anti-discrimination legislation.
For this reason, WWDACT is generally supportive of the responses made by other organisations representing the interests of people with disabilities to this review including:

•	eliminating the formal distinction between direct and indirect unlawful discrimination
•	removing the comparator test 
•	introducing a shifting burden of proof in discrimination claims 
•	clarifying that special measures aim to achieve substantive equality 
•	extending the duty to make ‘reasonable adjustment’ to any actor with any attribute(s) 
•	making the positive duty to achieve substantive equality express
•	including a non-exhaustive list of attributes upon which unlawful discrimination is prohibited
•	adopting a general limitations clause
•	establishing a no costs jurisdiction in discrimination law matters with the exception of vexatious complaints 
•	enabling courts to award systemic remedies as necessary and appropriate in successfully litigated matters 
•	providing for representative complaints 
•	continuing to allocate current responsibilities for an attribute to a specialist Commissioner 
•	enabling the Commissioners to conduct an inquiry into systemic discrimination on receipt of reliable information that appears to contain well-founded indications that unlawful discrimination is being practiced 
•	mandating a public authority to collect statistical and other relevant data in order to monitor, implement and influence substantive equality outcomes. 
WWDACT’s special focus on multiple discrimination is complimentary to all these approaches taken collectively. 

Legislative Approach 
As well as the legislative provisions referred to in the “Background” above, WWDACT makes the following specific suggestions in relation to the proposed legislative recognition of multiple discrimination in  The Act :

WWDACT suggests that a definition of unlawful discrimination should read:

Unlawful discrimination is the treatment of an individual or group of individuals to their detriment. The treatment must take place on the basis of an attribute or a combination of attributes possessed by the individual or group of individuals. The treatment may be either intentional or unintentional. Treatment includes a proposal to treat an individual or group of individuals in a particular manner.

We suggest that that The Act should include a non-exhaustive list of protected attributes on the basis of which a claim of unlawful discrimination lies.  This might be expressed in the following terms:  

1. 	Reference to an attribute includes an attribute of the kind such as age, race, colour, sex, disability, language, religion, political or other opinion, national or social origin, property, birth or other status.

2a.	An individual or group of individuals making a claim in an anti-discrimination matter is known as an applicant.
2b.	Discrimination on the basis of an attribute or on the basis of a combination of attributes includes discrimination on the basis 
(i) 	an applicant has the attribute or a combination of attributes or had it in the past;
(ii) 	of a characteristic that an applicant with that attribute or a combination of attributes generally has or is generally imputed to a person with that attribute; and
(iii) 	an applicant is presumed to have an attribute or a combination of attributes or to have had it/them at any time.
2c.	Treatment for the purposes of unlawful discrimination applies to the treatment of a person who is an associate of person with a disability in the same way as it applies in relation to an applicant with a disability. An associate, includes a spouse of the person with disability; another person who is living with the person with disability on a genuine domestic basis; a relative of the person with disability; (d) a carer of the person with disability; and (e) another person who is in a business, sporting or recreational relationship with the person with disability.

3.	For the purpose of unlawful discrimination, an applicant must show that (a) an attribute was the basis of their treatment or (b) a combination of attributes was materially relevant to their treatment. 

The test ‘materially relevant’ is a civil law test. In general, to say evidence is ‘materially relevant’ means that the evidence is admissible in the absence of a rule of exclusion. The ‘materially relevant’ test would operate, in effect, as a rebuttable presumption.

We endorse the inclusion of a limitations clause in a consolidated Act. For example: 

Discrimination is not unlawful if the treatment of an individual or group of individuals is a lawful and proportionate means of achieving a legitimate aim.

A limitations clause is the necessary recognition that rights and responsibilities are not unlimited.
…  the treatment … is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.  

For example: In the case of Bilka-Kaufhaus GmbH v. Weber Von Hartz sixty-five part-time employees, who were excluded from the occupational pension scheme of Bilka (a department store in the United Kingdom), complained that this constituted indirect discrimination against women, since they made up the vast majority of part-time workers. The European Court of Justice found that this would amount to indirect discrimination, unless the difference in employment could be justified. In order to be justified, it would need to be shown that: ‘the … measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end’. Bilka argued that the aim behind the difference in treatment was to discourage part-time work and incentivise full-time work, since part-time workers tended to be reluctant to work evenings or on Saturdays, making it more difficult to maintain adequate staffing. The Court found that this could constitute a legitimate aim. However, it did not answer the question of whether excluding part-time workers from the pension scheme was necessary and proportionate to achieving this aim. It was left to the national court of the United Kingdom to apply the law to the facts of the case. The European Court of Justice stated:
It is for the national court, which has sole jurisdiction to make findings of fact, to determine whether and to what extent the grounds put forward by an employer to explain the adoption of a pay practice which applies independently of a worker’s sex but in fact affects more women than men may be regarded as objectively justified on economic grounds. If the national court finds that the measures chosen by Bilka correspond to a real need on the part of the undertaking, are appropriate with a view to achieving the objectives pursued, and are necessary to that end, the fact that the measures affect a far greater number of women than men is not sufficient to show that they constitute an infringement of [non-discrimination on the basis of sex].

The decision in Patrick’s Case is a relatively recent Australian indication of how a limitations clause might operate in a consolidated Act.

Multiple Discrimination
4.1	Express recognition and inclusion of multiple discrimination
WWDACT fully support the express recognition and inclusion of multiple discrimination in The Act. To this end, the definition of discrimination should include the words “treatment on the basis of an attribute or a combination of attributes”.
While the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) focuses specifically on distinctions grounded in sex, and the CRPD highlights distinctions grounded in ability, recent debates have identified the limitation of a single factor analysis of discrimination. These recent debates are encapsulated in the terms of Article 6 of the CRPD which states:
1. States Parties recognize that women and girls with disabilities are subject to multiple discrimination, and in this regard shall take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms.
2. States Parties shall take all appropriate measures to ensure the full development, advancement and empowerment of women [with disabilities], for the purpose of guaranteeing them the exercise and enjoyment of the human rights and fundamental freedoms set out in the present Convention.
The term ‘multiple discrimination’ recognises that some individuals experience discrimination on the basis of more than one aspect of their identity. Multiple discrimination reveals ‘both the structural and dynamic consequences of the interaction between two or more forms of discrimination or systems of subordination’.  It has an exponential impact on the lives of individuals and actively creates a dynamic of disempowerment.

The United Nations Committee to Eliminate Discrimination against Women (CEDAW) has also recognised the importance of a multiple analysis in a general recommendation on temporary special measures:
... certain groups of women, in addition to suffering from discrimination directed against them as women, may also suffer from multiple forms of discrimination based on additional grounds such as race, ethnic or religious identity, disability, age, class, caste or other factors. Such discrimination may affect these groups of women primarily, or to a different degree or in different ways than men. States parties may need to take specific temporary special measures to eliminate such multiple forms of discrimination against women and its compound negative impact on them.

4.2	The comparator test should not be adopted under The Act.
It is uncontroversial that the High Court of Australia has not been able to helpfully apply the comparator test in anti-discrimination cases. Moreover, in a specific situation – a workplace or a school or a club, for example - often there is no other employee/student/customer with the same combination of attributes with whom a woman with a disability may be able to be compared. The comparator test would, therefore, provide an impossible evidentiary burden on a woman with a disability - let alone a woman with a disability from an indigenous background; or a Muslim woman with a disability or a lesbian with a disability - to make out even a prima facie case that unlawful discrimination had taken place under the comparator test. In our view, this is a strong – indeed conclusive – argument against the inclusion of the comparator test in all discrimination legislation. A comparator might be an indicator of unlawful discrimination but it is neither necessary nor decisive.
The U.S.A. jurisprudence is helpful in this regard. For example, see Olmstaed v. L.C. ex rel Zimring 527 U.S. 581, 598 (1999) which rejected outright the need for a comparator in reaching the conclusion that segregation of disabled children was discrimination in the context; Vasequez v. County of L.A. 349 F.3d 634, 653-55 (9th Cir. 2003) regarding a comment about the plaintiff having a ‘typical Hispanic macho attitude’ in the workplace; 

Anthony v. County of Sacrimento 898 F. Supp. 1435, 1445 (E.D. Cal. 1995) stating that ‘the epithet “black bitch” cannot be designated exclusively as either racist or sexist’; Jeffries v. Harris Cnty Comty Action Association 615 F.2d 1025, 1032 (5th Cir. 1980) which is authority for the proposition that an employer should not escape from liability for discrimination against black females by showing that it does not discriminate against blacks and that it does not 

discriminate against females; and Rogers v. American Airlines 527 F. Supp. 229 (S.D.N.Y. 1981) in which a federal court rejected a claim that the airline’s prohibition of cornrows amounted to race discrimination.

4.3	Evidentiary burden of proof: Is it materially relevant?
In a case of alleged multiple discrimination, WWDACT recommends that the evidentiary burden of proof to make out a claim of unlawful discrimination should be proportionately lowered to reflect the exponential impact that unlawful multiple discrimination has on an individual. We suggest the test to be adopted in instances of multiple discrimination might be expressed as: whether the combination of attributes was ‘materially relevant’ to the treatment under consideration. “This [approach] reflects a well established common law principle that evidence should be weighed according to the capacity of the party to produce it”.

The Act must recognise that multiple discrimination has an exponential impact on an individual. In the words of Iyiola Solanke: “Intersectional claims based on race and gender are qualitatively different because these two ‘isms’ compound each other in specific, complex ways.  The bigotry is not only doubled but deepened because it rests upon assumptions so embedded and tenacious that they are barely visible.’  Again:
It is not enough to describe gender inequality of women with disabilities as simply a problem within the disability community. The ‘disability’ intersects with gender inequality and therefore produces severe forms of discrimination against women with disabilities. It is a totally different, harder to fight discrimination that only women with disabilities can experience.
To require a woman with a disability to prove she was unlawfully discriminated against as a woman and additionally to also require that same person to prove she was unlawfully discriminated against on the basis of her disability would be to more than double the evidentiary hurdle she must overcome to make out unlawful discrimination has occurred in a particular case. To require this level of proof would be to discriminate against this individual in a manner diametrically opposed to the purpose of anti-discrimination legislation. Moreover, it would most likely fail to capture the real dynamics of her particular situation.
For example:  Bahar is 35 years of age, married with three children. She has a disability. She was the client of a private Job Network Agency. This agency sent Bahar to a pre-employment course. However, Bahar failed to complete the course. In accordance with the agency’s requirements, Bahar’s Job Capacity Assessment Provider has deemed that Bahar is not fit for employment because she failed the pre-employment course. As a consequence, Bahar is removed from the agency’s disability employment program.
How is this unlawful multiple discrimination? Bahar’s Job Capacity Assessment Provider did not take into account Bahar’s cultural values and home life. Women do not work or study outside the home in the part of Turkey from which Bahar and her family come. Each time Bahar came home from the pre-employment course she had to attend she was ridiculed and belittled and ostracised by her family. Discouraged and depressed, isolated from extended family back in Turkey and without friends in Australia, Bahar began feeling so distressed she that she was unable to think clearly. This was why Bahar was not able to complete her pre-

employment course. She now feels she has shamed her family in two ways: by attempting to find work and by failing to do so.
For gender-specific cultural reasons, Bahar cannot discuss these issues directly with her Provider. In other words, because Bahar is a woman from a particular cultural background she has faced specific pre-employment cultural barriers. These gendered cultural barriers have in turn excluded Bahar from accessing services to which she is otherwise eligible on account of her disability. In the absence of provisions that recognise multiple discrimination, Bahar cannot rely on race or gender or disability discrimination alone to successfully redress her situation. The provision of multiple discrimination in a consolidated Act would place a positive obligation on the service provider to take all Bahar’s circumstances into account. 
We can assume that her Job Capacity Assessment Provider has excelled at making all reasonable allowances for Bahar’s disability. Yet this alone does not help her stay on this program. It is on account of the intersection of Bahar’s gender and race that (through her family circumstances) Bahar has not met the requirement to complete her pre-employment course. If the Job Capacity Assessment Provider had had an obligation to consider the multiple discrimination experienced by Bahar, it is likely that Bahar’s family circumstances would have come to light; her capacity to complete her pre-employment course facilitated in a more culturally sensitive and gender specific manner; and her opportunity to benefit from a disability-specific employment program realised. In this example, it is not only Bahar but also broader society that misses out on the encouragement and advancement of a productive member of the community.

Recommendation
WWDACT believes that the express inclusion of multiple discrimination in The Act will impact positively on the overall wellbeing of the Australian people.  WWDACT acknowledge that the implementation of such a legislative provision will incur costs. However, we believe the overall benefits on the life-expectancy, income, consumption, productivity, education levels, unemployment levels, health and social capital of all stakeholders in Australian society will far outweigh these costs.

We urge the ACT Law reform Advisory Council to recommend to the Attorney-General expressly include provision for multiple discrimination in the Discrimination Act 1991 (ACT). 

To this end, we urge government to take into account the following issues: 
•	How would the express inclusion of multiple discrimination in The Act impact on the relative financial security of women with disabilities and others?
•	Will women with disabilities and others have an increased capacity to obtain goods and services to satisfy their needs and wants?
•	Will the impact of horizontal equity result in a greater overall benefit because the re-distribution of economic wellbeing for women with disabilities and others in Australian society will have mutually enhanced outcomes?
•	Will the impact of vertical equity result in a greater overall benefit because the re-distribution of economic wellbeing for women with disabilities and others in our society will have mutually enhanced outcomes?

Emilia DELLA TORRE BA(Hons) LLM (Syd)
Principal Policy Officer
Women With Disabilities ACT
Canberra
22 May 2014