Fair and equal in the world of work: Two significant federal developments in Australian discrimination law

Abstract

Two recent discrimination law reforms serve to strengthen human rights protection in Australia, particularly for persons with disability, bringing the right to equality in from the cold and more squarely into the industrial realm where workplace terms and conditions are determined and regulated. The Fair Work Act 2009 (Cth), introduces new discrimination provisions that may expand anti-discrimination rights and, at the very least, bring the Fair Work Ombudsman’s powers and resources to the enforcement of anti-discrimination rights in work. This reflects a significant regulatory shift that has both symbolic and instrumental potential to promote equality as an employment right not merely a moral claim. The Disability Discrimination and Other Human Rights Legislation Act 2009 (Cth) amended the Disability Discrimination Act 1992 (Cth) (DDA) and other Acts. Most fundamentally, the DDA changes make express that employers (and other duty holders) have an obligation to provide 'reasonable adjustments' to enable the equal economic and social participation of persons with disability. After briefly identifying regulatory weaknesses of Australian anti-discrimination laws to date, I outline the new provisions and analyse how they might operate. These changes provide new rights and enforcement means for victims of discrimination but with some outstanding questions and issues.