Australia: Consolidation of Commonwealth Anti-Discrimination Legislation

Last Updated: 21 March 2013
Article by Ben Urry

The Government has released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012 (the draft Bill).

The draft Bill consolidates the five existing Commonwealth anti-discrimination acts into a single comprehensive law, with the following objectives in mind:

  • a reduction in complexity and inconsistency in regulation to make it easier for individuals and business to understand rights and obligations under the legislation;
  • no reduction in existing protections in federal anti-discrimination legislation;
  • ensuring simple, cost-effective mechanisms for resolving complaints of discrimination; and
  • clarifying and enhancing protections where appropriate.

Existing Commonwealth Anti-discrimination legislation

Commonwealth anti-discrimination law is currently found in four separate pieces of legislation:

  • Racial Discrimination Act 1975;
  • Sex Discrimination Act 1984;
  • Disability Discrimination Act 1992;
  • Age Discrimination Act 2004.

In addition, the Australian Human Rights Commission Act 1986 establishes the Australian Human Rights Commission (the Commission) and regulates the processes for making and resolving complaints under the other four Acts. The Fair Work Act 2009 (FW Act) includes provisions relating to discrimination in employment.

Proposed Reform

The legislative consolidation was prompted by the need to resolve differences in the coverage of protections under each Act, ranging from definitional inconsistencies to more significant issues such as different approaches to the tests for discrimination and vicarious liability. Clearer and more consistent anti-discrimination legislation will make it easier for both individuals and business to understand rights and obligations under the legislation.

Protected attributes

The draft Bill congregates protected attributes in one piece of legislation and applies common concepts, tests and approaches to those attributes. Two new protected attributes have been introduced, sexual orientation and gender identity, and relationship discrimination will now extend to same-sex relationships. Discrimination on the basis of industrial history, medical history, and nationality or citizenship will become unlawful in the workplace.

The meaning of discrimination

The draft Bill simplifies the definition of discrimination by proposing to make it the same for all protected attributes. A person will discriminate against another person if they are treated unfavourably because they have a protected attribute, or a policy is imposed that disadvantages them. There will be no discrimination if the conduct was a special measure (ie affirmative action) to achieve equality.

Discrimination will now be considered unlawful if it is connected with any area of public life. This includes in employment, education and training, and the provision of goods and services.


The draft Bill introduces a defence of justification. This is a general defence that the relevant conduct is justifiable if the conduct was engaged in good faith and for the purpose of achieving a particular aim, as long as:

  • that aim is a legitimate aim;
  • the employer considered, and a reasonable person in its circumstances would have considered, that engaging in the conduct would achieve that aim; and
  • the conduct is a proportionate means of achieving that aim.

It will remain lawful to discriminate against a person in the workplace if the person cannot meet the inherent requirements of a job, unless the employer could have made a reasonable adjustment for that disability that would allow the person to carry out the inherent requirements of the job.

Concurrent claims

While the draft Bill states that a discrimination claim cannot be brought if a complaint has already been made under the FW Act in relation to the conduct, a claim may still proceed in the Commission if it is satisfied that there are "exceptional circumstances that warrant permitting the person to make the complaint". This makes it possible for there to be concurrent claims in Fair Work Australia and the Commission.

Reverse onus of proof

Under existing anti-discrimination legislation, a complainant must show the respondent treated him or her less favourably because of a protected attribute. This burden of proof has been considered too onerous for complainants. Many complaints currently fail because the complainant requires information that only the employer is privy to.

The draft Bill proposes a reverse onus of proof, whereby a complainant merely needs to produce prima facie evidence of being disadvantaged, and that the reason or purpose of that disadvantage was related to a protected attribute (such as sex, race or disability). The onus then shifts to the respondent to disprove the case. The reverse onus reflects that currently existing under the FW Act.

Vexatious claims

The draft also proposes to give the Commission the power to close a complaint if it is satisfied that the complaint is frivolous, vexatious, misconceived or lacking in substance. This may balance out a potential increase in claims arising out of the ease with which an application may be made and "proved" under the reverse onus of proof.

In addition, the draft Bill proposes that parties should bear their own costs for litigation as a default position, with the court retaining discretion to award costs in the interests of justice. This would allow vexatious claims not only to be dismissed, but costs potentially awarded against the unsuccessful applicant.

Aiding Compliance

The draft Bill contains measures aimed at assisting compliance with the consolidated laws, including:

  • Commission issued guidelines;
  • review by the Commission of whether particular policies give rise to unlawful conduct;
  • voluntary action plans, which may evidence compliance with legislation but will not serve as a complete defence;
  • determinations by the Commission that a policy or conduct is a special measure to achieve equality (complete defence);
  • temporary exemptions issued by the Commission;
  • compliance codes made by the Commission, providing that specified conduct will not be unlawful discrimination when carried out by the persons to whom the code applies; and
  • mandatory disability standards.

The Senate referred the exposure draft of the Bill to the Senate Legal and Constitutional Affairs Committee for inquiry and report on 21 November 2012. The Committee released its inquiry report on 21 February 2013. The Government is considering the report, including recommendations and is expected to release a full response shortly.

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.

Kemp Strang has received acknowledgements for the quality of our work in the most recent editions of Chambers & Partners, Best Lawyers and IFLR1000.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Ben Urry
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.