The Federal Government recently released an exposure draft of
the Human Rights & Anti-Discrimination Bill which
harmonises existing Commonwealth anti-discrimination legislation
into one statute. Current Commonwealth discrimination legislation
includes the Racial Discrimination Act 1975, Sex
Discrimination Act 1984, Disability Discrimination Act
1992, Age Discrimination Act 2004, and the
Australian Human Rights Commission Act 1986.
Key changes to be made by the Bill include:
A reversal of the onus of proof for direct discrimination. Once
an employee has established a prima facie case, employers
will have to prove the reason for the action was not
The Australian Human Rights Commission publishing guidelines to
assist employers to comply with the Act.
Employers developing action plans to assist them in complying
with their obligations under the Act.
Requiring parties to legal proceedings to bear their own legal
costs, with Courts having a discretion to award costs in the
interests of justice.
Introducing discrimination on the basis of sexual orientation
and gender identity for the first time in the Commonwealth
Introducing a ground of discrimination on the basis of medical
Unfavourable conduct (on the basis of protected attribute) will
be defined to include harassing another person.
Streamlining exemptions, including a broad new exemption for
"justifiable conduct" which is done in good faith for the
purposes of achieving a "legitimate" aim.
The reversal of the onus of proof for direct discrimination is
similar to the onus of proof provisions for adverse action claims
under the Fair Work Act. A rationale for the change is
that employers are best placed to know the reason for an action and
have access to the relevant evidence, which an employee does not.
However, some commentators have suggested that this change could
result in the Commonwealth taking over the State discrimination
laws by stealth, as complainants may "forum shop" and
select the Commonwealth jurisdiction because of the evidentiary
advantage offered by it.
The Government has asked the Senate Legal & Constitutional
Affairs Committee to enquire into the Bill, which will include
further public consultation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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