The Federal Government recently released a draft exposure Bill (entitled “Human Rights and Anti-Discrimination Bill 2012”) (Draft Bill) that would consolidate a number of existing anti-discrimination laws into one piece of legislation.
At present, employers must comply with four anti-discrimination laws, which each deal separately with discrimination on the grounds of age, sex, disability and race. Complaints under those laws are dealt with by a separate piece of legislation. In so doing, the Federal Government intends to reduce the compliance costs of anti-discrimination laws — the existing laws are complex and are not consistent on fundamental issues, such as the meaning of discrimination.
If enacted, the Draft Bill would introduce a number of important reforms to anti-discrimination laws. The changes do not constitute a radical departure from existing laws, although they do involve a progressive rationalisation and development of anti-discrimination laws.
The main changes that the Draft Bill would introduce that affect employers are as follows:
- Meaning of direct discrimination: the Draft Bill proposes to abolish the current “comparator test” that is used in determining whether a person has been directly discriminated against. The comparator test, which is applied under the Age Discrimination Act, the Disability Discrimination Act and the Sex Discrimination Act is widely regarded as being confusing and difficult to apply. Instead, the Draft Bill will introduce a simpler “detriment test” which is used in Victoria and the Australian Capital Territory. This involves establishing that a person has been treated unfavourably because of a protected attribute (there is no need to consider how a person with the attribute would have been treated in the same or similar circumstances)
- Meaning of indirect discrimination: the Draft Bill also proposes a simpler test for indirect discrimination. In order to be satisfied, the test requires that an employer to impose a condition, practice or requirement that would have the effect of disadvantaging an employee with a protected attribute.
Protected attributes: the Draft Bill proposes to introduce a number of attributes that will be protected for the first time at the Federal level:
- gender identity;
- immigrant status;
- industrial history;
- marital or relationship status (including protections for couples in same-sex relationships);
- medical history;
- nationality or citizenship;
- political opinion;
- sexual orientation; and
- social origin.
- Exceptions and exemptions: the Draft Bill would introduce a new exception to otherwise unlawful discrimination that applies generally. Under the exception, an employer has a defence to a claim if its conduct is undertaken in good faith for a legitimate aim that is proportionate.
Voluntary compliance: the Draft Bill would also give the Australian Human Rights Commission (Commission) additional powers to assist employers to take measures that would reduce their exposure to discrimination claims. These measures include providing the Commission with powers to:
- make guidelines to help employers comply with their obligations;
- review policies and programs to ensure compliance with anti-discrimination laws;
- produce disability standards and compliance codes — compliance with which would ensure compliance with anti-discrimination laws;
- receive action plans developed by employers to ensure compliance with anti-discrimination laws — such plans could assist an employer in defending claims that it should be held to vicariously liable.
- Onus of proof: the Draft Bill would see employers bearing the onus of proof to establish that they have not discriminated against employees. This is consistent with other legislation, eg., the general protections provisions under the Fair Work Act.
- Costs: if enacted the Draft Bill would require parties in a claim of discrimination bear their own costs. This is consistent with the rule under the Fair Work Act but it is different to the usual rule of costs in Australia where the losing party must pay at least a proportion of the costs of the winnings side.
What do you need to do to prepare for the introduction of the reforms?
While it is not clear when the legislation may be passed and its precise terms, the extent to which you need to change your practices will depend in large part on what States/Territories that you employ employees. This is because your business may already recognise the new protected attributes because of your current compliance with State or Territory anti-discrimination laws (eg., gender identity is currently a protected attribute in the ACT, NSW, Victoria, Queensland, South Australia and Tasmania but only to a limited extent in Western Australia and the Northern Territory). However, in advance of the legislation being enacted a prudent employer should review its equal opportunity policies to ensure that they comply with the new laws. That is, the policies should be drafted to meet obligations under applicable State/Territory laws and the new Commonwealth laws. Where there is a difference, an employer would need to adopt the higher standard of protection for employees.