The Australian Government has released draft exposure legislation which proposes to consolidate the five existing Commonwealth anti-discrimination laws into a single comprehensive Act. The aim of the proposed legislation is to streamline human rights protections law, and provide greater clarity and consistency of the Commonwealth's anti-discrimination laws.
The Bill has been referred to the Senate Legal and Constitutional Affairs Committee to report to the Senate by 18 February 2013.
Partner Andrew Tobin, associate Troy Wild, solicitor Dominique Lamb and law clerk Lauren Crome explain what the proposed changes will mean for employers.
The key changes proposed
The changes proposed in the Human Rights and Anti-Discrimination Bill 2012 include:
- a single, and simplified, definition of discrimination;
- a reversed burden of proof;
- a streamlined complaints process with the adoption of a 'no costs' jurisdiction;
- expanding protected attributes;
- an ability to allege discrimination on the basis of multiple grounds; and
- an option of voluntary compliance for employers, including adoption of compliance codes certified by the Australian Human Rights Commission (AHRC), which will constitute a complete defence against discrimination claims.
Key considerations for employers
Employers will need to consider a number of important steps if the reforms as currently proposed become law:
- Employers will need to review their workplace policies to ensure ongoing compliance.
- Employers will be able to voluntarily submit their policies, programs or facilities to the AHRC for review. Although not binding, a court or commission may consider the AHRC's review in dealing with a complaint.
- Employers and other interest groups will be able to request that the AHRC make compliance codes relating to their industry. Adoption of an AHRC certified compliance code will constitute a defence to a discrimination claim. Such codes may also provide employers with clarity regarding what constitutes 'reasonable precautions' and 'due diligence' under the proposed legislation.
- Employers will be able to familiarise themselves with disability standards issued by the Minister (currently the Attorney-General is responsible for human rights matters), which will specify the standards employers must comply with in relation to disabilities in one or more areas of public life. Compliance with a disability standard will operate as a defence to a discrimination claim.
- While the complaint process for complainants will be streamlined - including through a wider definition of discrimination, a reverse onus of proof and a 'no costs' anti-discrimination jurisdiction - the AHRC's ability to dismiss unmeritorious complaints will also be enhanced.
One definition of discrimination
The Bill introduces a consistent and simplified definition of discrimination as 'unfavourable treatment', replacing the traditional 'comparator test', which requires the identification of a person in the same circumstances as the complainant, except for the protected attribute. This person is almost always hypothetical. The complainant's treatment is then compared against the treatment of the comparator to determine whether discrimination has occurred. The complexity and uncertainty of this exercise has led to inconsistent and difficult case law.
The proposed change broadens the discrimination test and brings it in line with the definition of 'adverse action' in the Fair Work Act 2009 (Cth). While the Bill defines discrimination by reference to unfavourable treatment only, rather than requiring the construction of a comparator, from a practical view, a comparative analysis will likely remain useful to determine whether the unfavourable treatment was because of the protected attribute.
Onus of proof and a 'no costs' jurisdiction
The Bill proposes to reverse the burden of proof. Under current anti-discrimination law, the burden of proof lies with the complainant. The Bill, however, shifts the onus of proof to the respondent once the complainant has established a prima facie case, to recognise that the respondent is best placed to know the reason for an action and to have access to relevant evidence. This means that the respondent will need to establish a non-discriminatory reason for the action to show that the conduct is justifiable or that an exception applies. This approach is consistent with the general protections provisions under the Fair Work Act.
The Bill also proposes that the anti-discrimination jurisdiction be a 'no costs' jurisdiction. Under the Bill, each party will bear their own costs of litigating, as opposed to the current practice of costs following the event. A court, however, will still retain discretion to award costs "in the interests of justice".
Although the idea of a 'no costs' jurisdiction may appear to remove a key disincentive for complainants with weak or vexatious complaints, the Bill also proposes to establish a more robust process for dismissing unmeritorious complaints.
Expanded protected attributes
The proposed protected attributes under the Bill will extend to sexual orientation and gender identity. The attributes will also be extended to include protections for same-sex couples against relationship discrimination in any area of public life.
In addition, it will be unlawful under the Bill to discriminate against an employee because of their industrial history, medical history, nationality or citizenship, political opinion, religion and social origin.
Under the current Commonwealth legislation, complainants must choose to bring their claim under the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) or the Australian Human Rights Commission Act 1986 (Cth).
Under the Bill, a complainant can allege discrimination, and bring one action, on the basis of multiple attributes.
The Bill provides for additional measures to assist and promote voluntary compliance with the proposed legislation, including:
- certification by the AHRC of compliance codes, including codes developed by industry. Compliance with a certified code will constitute a complete defence against discrimination claims;
- review by the AHRC of an organisation's practices (ie policies, programs or facilities) for compliance if voluntarily requested by that organisation (but not otherwise). Although a review by the AHRC will not be binding, the Bill provides that a court or commission may consider any such review in relevant proceedings; and
- the provision of disability standards issued by the responsible Minister (currently the Attorney-General), which will specify the standards employers must comply with in relation to particular areas of public life. Compliance with a disability standard will operate as a defence to a discrimination claim.
In an attempt to simplify the current anti-discrimination regime, the Bill adopts a streamlined approach to exceptions to discrimination, including:
- a new general exception for 'justifiable conduct', being conduct that is undertaken in good faith for a legitimate aim, and in a manner proportionate to that aim;
- an exception for the inherent requirements of a job, which applies to all attributes - except where the discrimination is on the basis of disability where a reasonable adjustment could have been made;
- preservation of religious exceptions to support religious freedom, with some limitations where Commonwealth-funded aged care services are provided by religious organisations; and
- a new general exception for compliance with Commonwealth laws, reflecting the role of Parliament in determining the best approach to public policy issues.
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