Legal Update: Discrimination Law to Protect Refugees in the ACT

As a practicing lawyer, I heard refugees and asylum-seeker clients describe discrimination and harassment as common. They were often unaware that it was unlawful and not something they just needed to ‘put up with’, even though most of the treatment they described had a clear racial element, and as such ,fell within the Commonwealth Racial Discrimination Act and/or State/Territory discrimination legislation.

However, legal protection is less clear when the alleged discrimination relates more to visa or immigration status than to nationality or ethnicity – for instance when a real estate agent requires non-citizens to provide a copy of their visa and then declines the rental applications of those with protection visas, or when an employer implements a policy of not hiring asylum-seekers on bridging visas, regardless of how well qualified they are. These practices have a very tangible and damaging impact on asylum-seekers and refugees, and remain both under-researched and under-addressed legislatively.

It is therefore a positive step taken by the ACT Parliament, becoming the first Australian jurisdiction to add ‘immigration status’ to the list of attributes protected by discrimination legislation. In amendments to the Discrimination Act 1991 that come into force on 3 April 2017, the Act will make it unlawful to treat a person unfavourably because of their immigration status, or to unreasonably impose a condition that is likely to disadvantage a person because of their immigration status. ‘Immigration status here includes: (1) being an immigrant; (2) being a refugee or an asylum seeker; or (3) ‘holding any kind of visa’.

There is an exception for immigration status discrimination that is ‘reasonable, having regard to any relevant factors’. We don’t yet know how this will be interpreted. It is difficult to imagine any scenario where it would be reasonable to deny housing or employment to a permanent protection or humanitarian visa holder. On the other hand, it might allow employers to take temporary or bridging visa status into account in hiring decisions if they can demonstrate a particular need to retain the staff member – for instance if they are to receive significant on-the-job training. If the work is not highly skilled and the position is casual, it may well be unreasonable for employers to favour permanent visa holders over people with temporary visas.

The point of discrimination law is said to be the reduction of significant disadvantage gaps between groups that have been historically disadvantaged, and their cognate groups (Khaitan, 2015). If Australian discrimination law is to pay attention to this principle then more jurisdictions need to follow the lead of the ACT and make immigration status discrimination unlawful. The value in doing so lies not just in the capacity of asylum-seekers or refugees to enforce breaches of discrimination law but in the educative and cultural implications of making it unlawful to act in this way. While immigration status remains lawful in most parts of Australia, there is a real risk that refugee deterrence policies and rhetoric will be seen by the community as authorizing their discrimination and harassment.