By Jenni Priestley, Partner and employment law specialist, based in Clyde’s Sydney office.
In November 2012, the Australian Government released the Human Rights and Anti- Discrimination Bill 2012 (the Bill) for public consideration. The draft legislation proposes significant changes to anti-discrimination laws in Australia which, if enacted, will make it easier for claimants to bring claims and place increased obligations on employers.
Framework for anti-discrimination law in Australia
At the national level, anti-discrimination law in Australia is presently characterised by a raft of statutes pertaining to specific categories of discrimination (race, sex, disability and age).
States and Territories in Australia have their own anti-discrimination laws which operate concurrently with the Commonwealth national legislation. The laws overlap in many instances, often enabling claimants to forum shop to take advantage of procedural and substantive difference.
The draft legislation consolidates the national legislation into a single Act. While consolidation is a change welcomed by many, some of the other changes proposed by the Bill are more controversial.
The following proposed changes are of particular significance to employers.
Reversal of onus of proof
Perhaps the most controversial aspect of the proposed legislation is the shifting of the onus of proof from claimant to employer.
Under the Bill, where an individual is able to demonstrate a prima-facie case, there will be a presumption that the actions of the employer were discriminatory. The burden then shifts to the employer to establish that its actions were not discriminatory or that the conduct was justifiable.
In practice this change in the legislative position may mean that Australian employers will need to invest greater time and energy in defending claims of discrimination as it will be for them to prove that discrimination did not occur.
Uniform test for discrimination
The Bill proposes a uniform test for discrimination based on unfavourable treatment.
The concept of unfavourable treatment includes actual and proposed harassment and (controversially) conduct that offends, insults or intimidates the other person. The proposed extension of the scope of the legislation to conduct that offends or insults has been the subject of considerable negative publicity in Australia and it now appears that the Australian government ma back down on the inclusion of this aspect of the legislation.
Expansion of grounds of discrimination
In addition to expanding the scope of conduct that may constitute discrimination, the Bill proposes additional grounds or protected attributes on which someone may be discriminated.
Industrial history, medical history, nationality and citizenship are sought to be included as protected attributes in addition to the existing grounds of age, sex, race and disability.
In most circumstances each party will be required to bear its own costs of representation in proceedings. This change is significant as the possibility of an adverse costs order has previously been something of a deterrent for applicants particularly in relation to spurious claims.
The Bill departs from the existing regime of specific exceptions applying to different categories of discrimination and introduces a new defence of justifiable conduct in response to all discrimination claims.
Conduct will be considered justifiable if it was undertaken in good faith and for the purpose of achieving a particular aim. Australian employers responding to discrimination claims will be required to demonstrate that the aim is was legitimate, that a reasonable person would consider that engaging in the conduct would achieve that aim and that the conduct engaged in was proportionate to the aim.
Where to from here
The proposed changes to anti-discrimination are likely to make the Commonwealth jurisdiction the forum of choice for claimants.
The draft legislation was referred to the Senate Legal and Constitutional Affairs Committee for review and to take public comment. The controversial nature of the changes proposed is evidence by the fact that the Committee received over 3000 submissions (many from employers and employer groups) in response to the draft legislation.
On 21 February 2013, the Committee issued its final report. The Committee is generally supportive of the Bill, however it has made some important recommendations including:
Removing conduct that offends, insults or intimidates from the definition of unfavourable treatment
Extending protection to discrimination on the grounds of intersex status, irrelevant criminal record and domestic and family violence
Extending the definition of justifiable conduct to include conduct that was ‘reasonable in the circumstances’
While the final form of the legislation may differ somewhat from the draft released, it is likely that the majority of the changes referred to above will be incorporated.
Australian employers should be alert to the proposed changes. In particular, consideration should be given as to whether existing corporate systems and policies satisfy the requirements to take reasonable precautions and exercise due diligence in respect to the conduct of their directors, employees and agents.
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.