The release of the Australian Government's Human Rights and Anti-Discrimination Bill 2012 (Bill) proposes important changes to Commonwealth anti-discrimination laws that, once enacted, will make that jurisdiction more attractive for claimants and require employers to positively exercise due diligence to avoid liability.
The draft Bill is designed to consolidate existing anti-discrimination laws in relation to sex, race, disability and age discrimination, and the operation of the Australian Human Rights Commission (Commission) (which are currently dealt with under separate pieces of legislation), into one single Act, which the Government says will provide greater clarity on anti-discrimination laws and ensure consistency in both application and enforcement.
In practice, the change will maintain the existing 'dual system' whereby claimants can forum shop between state and federal jurisdictions. Given the proposed 'reverse onus', and changes to the way in which an employer may avoid liability for the conduct of their employees, employers need to be prepared both for an increase in discrimination claims and to adapting decision-making to guard against claims.
The most significant changes proposed to current laws are as follows:
- Companies, employers and principals will be liable for the conduct of their directors, employees and agents that is connected with their duties or employment. However, there will be an exception where the company, employer or principal takes reasonable precautions and exercises due diligence to avoid the conduct. This provision appears to make it easier for employers to be liable for the conduct of their employees. In practice, employers will need to at least continue to make and enforce workplace policies prohibiting unlawful conduct, and frequently train staff on their responsibilities. However, exercising 'due diligence' suggests that the steps an employer must take to avoid liability impose a more onerous obligation in some respects than is the case currently.
- A shifting burden of proof ('reverse onus') will be introduced, which means that once an individual has demonstrated a case, the onus will fall on the employer to establish that its actions were not discriminatory. The rationale behind this rule is that the employer is best-placed to know the reason for the alleged discriminatory action and to have access to relevant evidence. However, this requirement is likely to prove onerous for employers, who will need to ensure that sufficient evidence is available to support their actions in the event that a complaint is made. If the employer fails to produce evidence to counter the individual's claim, the discriminatory conduct is presumed to have occurred.
- A single test for discrimination will apply to all attributes. The test for discrimination will be by reference to unfavourable treatment rather than requiring a comparison of treatment between the complainant and another individual without the attribute, which is the current test.
- The definition of 'unfavourable treatment' is broad and includes harassment and other conduct that offends, humiliates, insults or intimidates the other person. Although this test is intended to be simpler, it appears to broaden the current test and includes language generally associated with allegations of workplace harassment (bullying). Also, where harassment (other than sexual harassment) is alleged, it is not necessary that a reasonable person would have considered the conduct to be harassment, rather it appears sufficient for the complainant to simply state they 'felt' harassed. The practical effect is likely to be that it will be more difficult for employers to defend themselves against allegations of unfavourable treatment, especially where the alleged harassment could not have been reasonably contemplated.
- It will be unlawful to discriminate against individuals in the area of work in relation to industrial history, medical history and nationality or citizenship. These attributes are currently dealt with separately under equal opportunity in employment provisions, and discrimination on the basis of these attributes is not unlawful. Relevantly, the attribute of criminal record will no longer be a ground of discrimination, which is a plus for employers.
- There will be new exceptions for justifiable conduct (which is conduct undertaken in good faith for a legitimate aim, and in a manner proportionate to that aim) and inherent requirements for work. The inherent requirements exception will cover discrimination in all work and work-related activities, including offering or terminating employment, and determining or applying terms and conditions of employment. The introduction of these exceptions will assist employers to defend claims of discriminatory behaviour.
- There will be methods to encourage voluntary compliance with the new law, including certification or review by the Commission of compliance codes and policies or practices for compliance. However, compliance with the recommendations of the Commission following review will not amount to a total defence to a complaint.
- The Commission will accept complaints regarding discrimination on the basis of a combination of attributes, eg age and sex, which means that an individual may be able to demonstrate unfavourable treatment because of individual attributes or as a result of a combination of attributes. This means that employers may need to be prepared to respond to claims of discrimination based on a number of attributes, as an alternative to claims involving one or more attribute (dealt with individually), as is currently the case.
- There will be an extension of the meaning of 'protected attribute' by prohibiting discrimination against an associate of a person who has an attribute and a person or an associate who had an attribute in the past, may have an attribute in the future, or who is assumed to have an attribute. This broadens the scope for discriminatory conduct and may present evidentiary issues for employers in the course of defending claims, particularly in relation to the assumptions of attributes.
- Each party will be required to bear its own costs in proceedings, but the Commission will retain the discretion to award costs in limited circumstances. Currently, costs follow the event, that is, usually the unsuccessful party pays the costs of the successful party. Importantly, this means that an employer's ability to recover costs in the event of a successful defence is significantly curtailed.
The proposed law will not affect the operation of state anti-discrimination laws and is intended to operate concurrently. Currently, there are variations between federal and state anti-discrimination laws in the scope and overall statutory approach taken by different jurisdictions. However, based on the changes outlined in the Bill, it is apparent that the federal law will differ markedly in some respects once enacted. In particular, the 'reverse onus' will require employers to consider how decision-making should occur in any situation that could give rise to a claim of unlawful discrimination.
The changes are likely to make it more attractive for claimants to choose the federal jurisdiction as opposed to state jurisdictions to take advantage of the reverse onus, simplified test for discrimination and the option of making a combination complaint.
Employers should be alert to the proposed changes and consider how they will go about taking reasonable precautions and exercising due diligence to avoid unlawful conduct. At a minimum, these steps should include considering whether their anti-discrimination policies and complaint handling procedures, and related training programs, are sufficient to address the law once enacted. We will continue to monitor the passage of the Bill and provide further updates upon the passing of the legislation.
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