Consolidation of Commonwealth Anti-Discrimination Laws
The Commonwealth Government recently released a discussion paper regarding the possibility of consolidating and simplifying the five current anti-discrimination laws into one.
Amongst the suggestions is an option to consider reversing the burden of proof in such claims from the accuser to the accused, provided that a prima facie claim for discrimination had been made out. This would mean that once a complainant had alleged that a person took an action for a particular discriminatory reason, that would be presumed to be the reason unless the respondent proved otherwise. The accused would then be obliged to justify its conduct. If introduced, this would bring all discrimination claims (age, race, disability, sex, sexual orientation or gender identity) into line with the Fair Work Australia model.
Another suggestion is that the complainant should not have to pay the accused party's costs even if their claim fails, presumably on the basis that to do otherwise would discourage the presentation of discrimination claims contrary to public policy. It has to be said that many other jurisdictions already operate 'no costs' regimes (save for unusual cases) e.g. WorkCover WA, some Magistrates' Court claims and the State Administrative Tribunal.
There is of course no doubt that anti-discrimination laws play an important part in modern society. However, there may be concerns from employers and others that the introduction of such changes would lead to an unacceptable rise in claims and accordingly an increased cost burden on those exposed to them.
The proposed changes can be viewed here
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