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Domestic violence discrimination and the consolidation of Commonwealth anti-discrimination laws

Discrimination Sex Discrimination

Domestic violence discrimination and the consolidation
of Commonwealth anti-discrimination laws

Andrea
Durbach
Deputy Sex Discrimination Commissioner

Safe at Home, Safe at Work Conference
Panel 3: Family Violence
and Commonwealth Employment Law Reform
Queen Victoria Women’s
Centre, 210 Lonsdale St, Melbourne
5 December 2011


Thank you to the Australian Domestic & Family Violence Clearinghouse and
URCOT for the invitation to speak at today’s conference. The work of the
Clearinghouse across critical areas of policy has been extraordinary and we hope
you will be able to continue to do your pioneering research.

It is with respect and gratitude that I acknowledge the Wurundjeri people of
the land on which we gather, and pay my respects to their elders, past and
present.

And thank you, Amanda, for your insights. The work undertaken by you and the
Australian Law Reform Commission (ALRC) in regard to the recent inquiry
into domestic and family violence has been comprehensive and valuable. We look
forward with great interest and anticipation to seeing some positive outcomes
following the recent submission of the final report.

The ALRC inquiry was one of a number of factors that combined to focus the
attention of the Australian Human Rights Commission
(Commission)—and, more particularly, the work of the Sex
Discrimination Unit—on considering the impact of domestic and family
violence on women, especially in the workforce.  It was also one of several
factors that compelled the Commission to explore options to expand and
strengthen protection against the discrimination women endure as a result of
being victims and survivors of domestic and family violence.

Significant work continues to be undertaken by many of you and your
organisations on this issue.  Much of this vital work has been developed in
the context of employment legislation and other mechanisms, such as
incorporating relevant clauses within Enterprise Agreements, for example,
flexible leave provisions.

The Commission's focus has been to supplement these employment mechanisms by
canvassing the prospect of developing a new ground within the
anti-discrimination law framework that will:

  • offer victims and survivors of domestic and family violence an additional
    legal remedy;
  • ensure accountability; and
  • educate employers and service providers about the indicators and impacts of
    domestic and family violence.

A further factor that has facilitated
our work in this regard has been the Government’s project to:

  • consolidate Commonwealth anti-discrimination laws into a single piece of
    legislation;
  • analyse the gaps or deficiencies that currently exist in federal
    anti-discrimination laws; and
  • assess a demonstrated need for potentially expanding the grounds of
    discrimination.

One of the key principles underlying the Federal
Government-initiated consolidation project, as it is known, is to clarify and
enhance protections, where appropriate. The project presents a timely law reform
opportunity to evaluate the rationale and evidence to substantiate such an
enhanced protection by way of a possible and, in our view, appropriate new
ground of discrimination related to domestic and family violence.

Indeed, in its discussion paper on the consolidation of Commonwealth
discrimination legislation, released in September this year, the Government
identified early support for the introduction of protections against
discrimination related to domestic and family violence.

The evidence to support this work, has been—and continues to
be—convincingly demonstrated.

Prevalence, health and economic costs

I doubt there is anyone in the room today who isn’t aware of the
prevalence data about domestic violence. An estimated 1.2 million women in
Australia over the age of 15 have experienced domestic or family violence,
usually at the hands of a male partner. 

What is less well known, however—and this is brought to light by the
work of the Clearinghouse—is that almost two-thirds of women affected by
domestic and family violence in this country are in some form of paid
employment.  This equates to around 800,000 women in the workplace, who are
experiencing domestic or family violence.

Add to this figure the number of male victims and survivors and the many
individuals who do not report domestic or family violence, who are also in paid
employment. 

The health and economic costs of failing to properly address the immediate
and long-term consequences of domestic and family violence—consequences
that often manifest in the workplace, including related to
discrimination—are of critical social importance.

Research undertaken by VicHealth shows that domestic and family violence is
the leading contributor to death, disability and illness in women aged 15 to 44
years. It is responsible for more of the disease burden in women than many
well-known risk factors, such as smoking and
obesity.[1]

Academics at the University of New South Wales have also recently
demonstrated the enduring mental health problems that affect survivors of
domestic and family violence.[2]

In addition to the health costs associated with domestic and family violence,
there are also the costs to the Australian economy and to Australian businesses.
Many of you will be aware that violence against women and children will cost the
Australian economy $15.6 billion by 2021-2022 unless effective action is taken
to prevent this violence.[3]  And
the cost of productivity losses is expected to rise to $609 million by
2021-2022.[4] These losses or
financial costs can result from ‘absenteeism and turnover, illness and
accidents, disability or even death ... [and] decreased functionality and
performance, quality of work and timely
production’[5].

Domestic violence and discrimination in the workplace

Victims and survivors of domestic or family violence can face a number of
challenges in the workplace. One such challenge is discrimination which, when
experienced, can compound the harm of the original acts of violence. 

Although discrimination takes many forms, research suggests that it is common
for victims and survivors of domestic and family violence to:

  • be denied leave or flexible work arrangements to attend to violence-related
    matters, such as attending court or moving into a shelter;
  • have their employment terminated for violence-related reasons, including a
    drop in performance or attendance occasioned by domestic or family
    violence;
  • be transferred or demoted for reasons related to violence.

It
is not just in the workplace that victims and survivors experience
discrimination, but also in other areas of life, such as in the provision of
services and access to housing.

Victims and survivors may be denied access to housing where it is known that
they are in a violent situation, or they may be evicted from housing because of
the abusive and threatening behaviour of their partner.

Existing discrimination provisions are inadequate

One of the arguments against including a new ground of discrimination based
on domestic violence, is that existing grounds within current discrimination
legislation provide victims and survivors with some protection. Often, however,
the apparent ground of protection available would not support a claim of
discrimination based on domestic violence.

Take, for example, federal and state protections against disability
discrimination.  Whilst this ground of discrimination may provide useful
protection in cases where a disability has been sustained as a result of
domestic or family violence, there may be times where victims and survivors
experience discrimination that is unrelated to a disability.  Consider, for
example, a victim or survivor who is denied access to flexible work arrangements
to attend counseling or a medical appointment or leave to attend court.

Protections against family responsibilities discrimination are also
inadequate in the area of domestic and family violence.  Although this
ground may be useful in cases where a victim or survivor has caring
responsibilities, as in the case of disability, this ground may fail to fully
accommodate the range or form(s) of discrimination victims and survivors of
domestic violence might experience.

So, while victims and survivors might be able to access certain protection
against discrimination under existing laws, that protection is far from
comprehensive or appropriate.

Australian Human Rights Commission Roundtable

Against the backdrop of the ALRC’s inquiry and the consolidation of
laws project, the Australian Human Rights Commission convened a roundtable in
November this year, to discuss the possible inclusion of domestic and family
violence as a separate ground of discrimination. 

The roundtable examined

  • the specific ways victims and survivors experience discrimination;
  • the rationale and evidence for a separate ground of discrimination;
  • the strengths and weaknesses of international models;
  • current reform opportunities in Australia; and
  • key issues that would need to be addressed in formulating a ground of
    discrimination.    

The roundtable brought
together representative experts working in the area from the health sector,
trade unions, discrimination and employment academics, domestic violence
researchers, women’s organisations and the ALRC. What the roundtable did
was identify and substantiate some cogent reasons for proposing, through the
consolidation project, a separate ground of discrimination related to domestic
and family violence.

Justifications for a separate ground of discrimination

(1) Existing discrimination provisions are inadequate

The first reason, which I mentioned earlier, is that the current legislative
framework in Australia provides victims and survivors of domestic and family
violence with inadequate protection against discrimination.

Victims and survivors of domestic and family violence need to be supported in
the workplace, in their endeavours to find safe and suitable housing, and in all
other areas of their lives.  Rather than supporting victims and survivors,
however, the current legislative framework leaves them vulnerable to
discrimination and, in some circumstances, may even leave them with little
choice but to remain in violent situations. 

Yet, more and more, federal and state governments are acknowledging the need
to address domestic and family violence through mechanisms other than workplace
policies and procedures.  We saw evidence of this just two weeks ago,
during the International Day for the Elimination of Violence against Women where
government, employers and business came out strongly in favour of addressing the
prevalence of domestic violence through prevention and education strategies,
workplace mechanisms and protection and redress for victims and survivors.

(2) Educative function

A second reason for prohibiting discrimination on the ground of domestic and
family violence is that it would serve an educative function. 

A law prohibiting such discrimination would help to raise community and
business awareness about the impact of domestic and family violence.  This
may, in turn, facilitate the adoption of policies and procedures to support
victims and survivors of domestic violence and aid in establishing workplace and
other environments that are generally more supportive of victims and
survivors.

A law that sent a clear message that such discrimination is unacceptable
would also encourage victims and survivors to disclose their situation of
violence without fear of repercussion or reprisal, particularly where the
possibility of redress exists.

(3) Complement other strategies

Another reason for introducing domestic and family violence as a separate
ground of discrimination is that it would complement emerging strategies for
addressing the workplace implications of domestic and family violence (e.g.,
leave provisions in enterprise bargaining agreements), especially in situations
where workplace entitlements have been exhausted.

Domestic and family violence is, regrettably, fast becoming a crisis in this
country. If we are to succeed in addressing this crisis, we need to tackle it
from every angle and involve individuals and institutions from all sectors of
society in offering victims and survivors appropriate mechanisms of prevention
and redress. A new ground of discrimination potentially provides another rung
on the ladder of protection that will further enable us to address domestic and
family violence effectively.

Conclusion

I’d like to conclude by saying a few words about the significance of
‘naming’ in the context of discrimination related to domestic and
family violence.

While many victims and survivors do and may disclose their violent domestic
situation to their employers, we know from anecdotal evidence that many do not
disclose for fear of the consequences that might flow from disclosure.

This failure to disclose may result in discriminatory treatment because of an
employer’s lack of understanding about the causes of their apparent
decline in work performance. A failure to name the experience for fear of
consequence, may mean that the victim internalises the conduct they are forced
to endure and this process can, in turn, lead to the experience becoming
normalised. Without naming the experience and having the protective framework
for doing so, victims and survivors of domestic and family violence may
inadvertently also become victims of discrimination, without being able to take
any effective steps for the prevention of both the violence and the subsequent
discriminatory treatment.

Introducing domestic and family violence as a separate ground of
discrimination—giving this insidious form of violence a place within
Australia’s legal framework—will enable us to take the first step of
naming the problem and explaining how it undermines individual rights and
community wellbeing. 

Much like a doctor first needs to diagnose a medical condition before she or
he can treat it effectively, discrimination related to domestic and family
violence must be identified and acknowledged as a wrong in need of legal and
other forms of redress and subsequent
prevention.[6]

When a medical condition or wrong, like discrimination, is not disclosed, a
culture of silence develops where victims remain voiceless and powerless. 
This undermines individual and community wellbeing and perpetuates further
abuses of the rights of victims and survivors of domestic and family
violence.  

Consider the broader example of gender-based violence against women. 
For too long, gender-based violence went unrecognised as a human rights
violation.  Today, however, it is widely recognised as a critical concern
for women in all parts of the world.  It is prohibited in a wide variety of
legal instruments, and is frequently named and condemned by international,
regional and domestic courts and treaty bodies. 

Naming gender-based violence against women as a human rights concern made the
adoption of legal and other measures possible.  The former UN
Secretary-General, Kofi Annan, has explained that,

[a]s women sought to gain equality and recognition of their rights in many
areas, they drew attention to the fact that violence against women was not the
result of random, individual acts of misconduct, but was deeply rooted in the
structural relationships of inequality between women and men...  In calling
for action and redress for these violations ... women exposed the role of
violence against women as a form of discrimination and a mechanism to perpetuate
it.  This process led to the identification of many different forms and
manifestations of violence against women ... drawing them out of the private
domain to public attention and the arena of State (and public sector)
accountability.[7]

Law ‘is an effective tool for naming precisely because it can publicly
and authoritatively proclaim and transform an unacknowledged harmful experience
into an experience or wrong that is recognized at law as harmful and requiring
legal redress’[8]

Of course, naming is never easy, especially where the underlying social ill
and its causes have become normalised, an accepted part of society. 

Introducing domestic and family violence as a separate ground of
discrimination—itself an act of naming—will facilitate the broader
acknowledgment of domestic and family violence-related discrimination and offer
victims and survivors the choice to disclose their violent situations to
employers without fear of repercussion. Importantly, the existence of such a
protection will also serve to reduce the ‘detrimental impact (of violence)
on a women’s access to paid work ... and, as a consequence, on her income
and on society as a whole’[9].
The mental and physical consequences of abuse undoubtedly affect the performance
and effective workplace participation of productive
employees.[10] And their
performance is potentially exacerbated when they face discriminatory treatment
from employers.

In an ILO report on Gender-based Violence in the World of Work, the
authors argue that ‘economic growth, competitiveness, development and
efficiency can only be achieved where barriers to productive and quality
employment opportunities are eliminated for both men and
women’[11]. Making
discrimination related to domestic and family violence unlawful in the workplace
(and in the provision of services, or housing) will be a critical and positive
contributor to achieving workplace equality and wellbeing and, accordingly,
enhancing workplace productivity.


[1] VicHealth, The Health Costs
of Violence: Measuring the burden of disease caused by intimate partner violence
(2004), 8.

[2] See Susan Rees et al.,
‘Lifetime Prevalence of Gender-Based Violence in Women and the
Relationship with Mental Disorders and Psychological Function’ (2011)
306(5) JAMA 513, at 513.

[3] National Council to Reduce
Violence against Women and their Children, The Cost of Violence Against Women
and Their Children
(March 2009), 4.

[4] Above, at 45.

[5] Adrienne Cruz and Sabine
Klinger, Gender-Based Violence in the World of Work: Overview and Selected
Bibliography
, International Labour Office, Working Paper 3/2011
(2011), 13.

[6] Rebecca J. Cook and Simone
Cusack, Gender Stereotyping: Transnational Legal Perspectives (2010), at
3, 40.

[7] UN Secretary-General, In-Depth Study on All Forms of Violence against Women, UN Doc
A/61/122/Add.1 (2006), [23]. 

[8] Cook and Cusack, note 6, at
38.

[9] Cruz and Klinger, note 5, at
15.

[10] Above.

[11] Above, at 73.

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