Archive for January 25, 2013

EYE-BALL’s Herman on – Anti-Discrimination …

January 25, 2013 4 comments
Links to Previous ‘Herman’ Posts:

– 17th Jan 2013 – Atheism

– 12th Nov – Hegemony

– 2nd Nov – A March early Federal election

– 25th Oct – Energy Debate – CPI Shocks the analysts – Rod Sims finally arrives like a Knight in Shining armour

– 22nd Oct – 2012 Overture – Halloween – Glass half full

– 3rd Oct – 2012 Overture: Twiggy – a metaphor for wafer thin margins … RBA further stimulates economy surprising the stock market!

– 2nd Oct – The All Ordinaries is a totally misleading index and Australia’s lack of domestic Savings!

– 18th Sept – A Microcosm of Our Democracy – Auburn City Council elections.

– 28th Aug – – 2012 Overture – The Northern Fall (Autumn) –

– 17th Aug: – A Political Alternative – Australian Community Party –

– 6th Aug: – Shang Yang’s good governance – or is it good faith?

21st July: – Micro Economics – Thoughts and opinions on the Energy Debate!!!

To see more EYE-BALL ‘Herman’ posts:

click here …

– Anti-Discrimination –
| Author: EYE-BALL’s Herman O’Hermitage | 25th Jan 2013 |

uch of my summer break has been spent on elements of social exclusion and discrimination.

Christmas can be a terrifying time for many decent people and as a society it is only in recent times, 3 odd decades, has so much debate arisen as to why suicide factors increase over the summer holiday season. A very all encompassing response is depression, but what circumstances causes this epidemic?

Since Sept 2011 the Commonwealth Department of the Attorney General has been considering a unified approach to the varying Federal and State legislations, tribunals and remedies available to address discrimination in its varying forms.

The following is an adequate definition of discrimination as supplied to the Attorney General’s Department – Consolidation of Commonwealth Anti-Discrimination Laws: Submission by Discrimination Law Experts’ Group on December 13, 2011. See link here

1. Unlawful discrimination

Discrimination is unlawful in public life unless it is justified within the scope and objects of this Act.

2. Definition of discrimination

Discrimination includes:

(a) treating a person unfavourably on the basis of a protected attribute;

(b) imposing a condition, requirement or practice that has the effect of disadvantaging persons of the same protected attribute as the aggrieved person; or

(c) failing to make reasonable adjustments if the effect is that the aggrieved person experiences unfavourable treatment under (a) or is disadvantaged under (b).

The conduct described in 2(a) and (b) is not mutually exclusive.

If further reading is required you might try;

  • Attorney-General’s Department (Cth), Consolidation of Commonwealth Anti-Discrimination Laws, Discussion Paper (September 2011).
  • Australian Human Rights Commission, Consolidation of Commonwealth Discrimination law: Submission to the Attorney-General’s Department (6 December 2011).
  • Equality Rights Alliance, Submission to the Attorney-General’s Consolidation of Commonwealth Anti-Discrimination Laws Discussion Paper (19 December 2011).

From those readings my suggested test of prohibited discrimination might be;

‘any attitude, practice or action or process that excludes any claimant, be that in the political, economic, social, cultural or any other field of public life’.

Lord Brown Wilkinson in the judgement in  Glasgow City Council v Zafar stated:

“[Discrimination claims] present special problems of proof for complainants since those who discriminate on the grounds of race or gender do not in general advertise their prejudices: indeed they may not even be aware of them.”

In a broader sense this is critical to the issue in the matter that has bothered me recently. A very senior civil servant, whose career has been built within various bureaucracy in human resource recruitment and capability, who has learnt a biased  Australian Public Service merit based interpretation on the job, unknown qualifications but unable to understand or apply the intents and purposes of anti-discrimination laws. From his perspective the morality of the matter is secondary to the myopic drive for cost containment. The lack of understanding of economic cost casts a dark shadow over all Public Service, including policy, and policy makers.

This attitude is then antecedent to all human resource practice throughout all industry.

Most sadly the Australian Public Service interpretation of merit based appointment, is heavily skewed towards incumbent public servants and their self-preservation and self-interest. It is widely entrenched by group think, and prohibits re-evaluation by more efficacious and productive thought, outsiders.

The following is but a small sample of Commonwealth Guidelines, Legislation and State Government Acts that cover discrimination. [The Universal Declaration of Human Rights was 1948 and there are other forerunners like Magna Carta 1215 or 19th century philosophers including William Henry Thoreau amongst others.]

United Nations


  • Racial Discrimination Act 1975
  • Sex Discrimination Act 1984
  • Australian Human Rights Commission Act 1986
  • Disability Discrimination Act 1992
  • Age Discrimination Act 2004
  • Fair Work Act 2009


  • Equal Opportunity Act 2010


  • Anti-Discrimination Act 1991

Australian Capital Territory

  • Discrimination Act 1991

Western Australia

  • Equal Opportunity Act 1984
  • Gender Reassignment Act 2000


  • Anti-Discrimination Act 1998

The oldest Australian legislation listed is 1975 and that supports my argument that this is relatively new developments in Human Rights and equity or equality.

The Federal Court has now developed a body of adequate jurists in these matters, however too often access is denied to the most vulnerable through cost eg the disabled, the Indigenous, the unemployed or long-term unemployed amongst others. So Legal Aid and other conciliation forums too must meet a more exacting standard.

The United States and Canada have both adopted consolidated Acts. One Canadian section states; “For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds”.

This is somewhat addressed in the definition of discrimination above 2. Far too often all legal jurisdictions rely upon claims under a statutory legal provision or precedent. When the claim is dismissed under that provision is an adequate and cost-effective appeal process available?

An excellent example might include discrimination on the basis of an irrelevant criminal record, not only in employment, but in accommodation and goods and services (etc), prevents former offenders from participating in the community and results in further social exclusion. Another excellent case study example I came across in the earlier listed submissions was an indigenous genetically disabled woman where her disability was an affliction that caused lack of balance in walking. She was constantly arrested as being intoxicated. Would she seek relief under Sex Discrimination Act, Racial Discrimination Act or Disability Discrimination Act, when the matter of intoxication is bought before a Local Court Magistrate? A genetically induced Disability…..charged with being drunk.

I can only support the consolidation initiative. It is trite that it has required other Western Countries to lead the way!

Even when the Australian Legislation is enacted problems will remain. Will Australian government abide by their own policies and procedures? Will they democratically support the independence and transparency of the judicial process? How do we keep it is cost effective?

Last year the Federal Attorney General’s behaviour was questioned several times particularly relating to the matter of James Ashby v Commonwealth and Federal Member of Parliament Peter Slipper. The bi-partisan nature of the Judge was called into question when the case was dismissed ruling the claims were politically motivated. Sexual harassment is abhorrent. This is not an issue of discrimination but an example of government acting out of self-interest. The text messages caused Slipper to resign the parliamentary speakership. That whole affair is so sordid. The independence and transparency of the judiciary is paramount.

For me the biggest unanswered question in the Peter Slipper hearing remains why was the judgement of the matter reserved for a couple of months. It was ultimately given only after parliament was in recess.

How many less sensational but apparent abuses of judicial process are not reported and subject to the same level of public scrutiny.

In the discrimination issues I have been pondering if I need to be careful of subjudice and undertakings to not discuss process.  A basic Human Right is freedom of thought and freedom of expression. To achieve Human Rights at the anti-discrimination level, Human Rights are breached regarding freedom of speech.

Believing in Sanity is itself Insanity.

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Have your say where it counts: – contact your Local Federal Representative via the links below and let them know how you feel about this, or any other topic that you feel strongly about – or you can just post a comment below and let off some steam.

Links to Australian Parliamentary Website – MP’s

EYE-BALL’s ‘Herman’ …

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