The introduction of the Fair Work Act 2009
(Cth) has been all consuming. The capacity to make discrimination
claims under the General Protection provisions is a major new
development that we have considered previously (see also our
Workplace Guide to General Protections). It is now time to take
stock and make sure that other changes and developments in
workplace law don't slip by unnoticed.
This article looks at some significant changes made to federal
discrimination legislation by the Disability Discrimination and
Other Human Rights Legislation Amendment Act 2009 (Cth) (the
Act) as well as some proposals for change in the Standing Committee
on Legal and Constitutional Affairs report on the Sex
Discrimination Act 1984 (Cth) (the Report).
Discrimination law is incredibly complex, frequently
misunderstood and poorly communicated. The interaction of federal
and state legislation, the difficult concepts of direct and
indirect discrimination and their different construction under
different pieces of legislation as well as the establishment of
comparators can leave even the most experienced discrimination
lawyer confused at times. While the changes under the Act and the
Report may go some way to simplifying the law in this area, the
Report also proposes a significant widening of some concepts which
are potentially radical and of incredible significance to the way
employers are required to manage workplaces.
The Act was read for the first time in December 2008, the second
reading speech was delivered on 12 February 2009 and the Senate
inquiry tabled its report on 26 February 2009. The Act received
Royal Assent on 8 July 2009, and a number of keys changes came into
effect 28 days after the date of Royal Assent (on 5 August
The Act makes substantive changes to the Disability
Discrimination Act 1992 (Cth) and the Age Discrimination
Act 2004 (Cth), and makes some technical amendments to the
Racial Discrimination Act 1975 (Cth) and Sex
Discrimination Act 1984 (Cth). The changes largely reflect
recommendations from the 2004 Productivity Commission review of the
Disability Discrimination Act 1992 (Cth).
The Act also makes one significant change to the Age
Discrimination Act 2004 (Cth), namely, the removal of the
'dominant reason' test. Unlike other federal discrimination
legislation, discrimination could only occur under the Age
Discrimination Act 2004 (Cth), where age was the dominant reason
the decision or action which was allegedly discriminatory occurred.
The Act removes this requirement and replacing it with a new
requirement that age need only be 'one of the reasons' for
the decision or action not the dominant reason.
The Act also amends 24 other Acts to reflect the name change of
the 'Human Rights and Equal Opportunity Commission' to the
'Australian Human Rights Commission'.
'The Sex Discrimination Act matters. It matters as a
tool for driving systemic and cultural change which is needed if we
are to live in a country where men and women enjoy true gender
equality in their daily lives. The Act has been in operation for
nearly 25 years. Like most law, it is time to renew it to ensure
that it continues to be an effective platform for progressing
gender equality.1 '
On 26 June 2008, the Senate referred an inquiry into the
operation of the Sex Discrimination Act 1984 (Cth) (the SDA) to the
Standing Committee on Legal and Constitutional Affairs. The
Committee received 81 submissions about the operation of the SDA
and on 12 December 2008 tabled a report with 43 recommendations for
changes to be made to the SDA. This article summarises come of the
key recommendations. It is worth noting that these recommendations
are not yet formalised and no Bill has yet been draft to effect
The recommendations of most significance in the Report suggest
changing the tests for direct and indirect discrimination and
changing the definition and onus of proof in relation to sexual
harassment. These recommendations create assumptions that will
automatically work against employers and it is critical that
employers keep abreast of these developments in order to
effectively manage their workplaces in this time of significant
1. Sex Discrimination Commissioner - Elizabeth Broderick,
Committee Hansard, 9 September 2008, p. 4.
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This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
Specialist legal advice should always be sought in relation to any
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