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.
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.
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.
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.
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.
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.
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