The Federal Government has released its exposure draft of the Human Rights and Anti-Discrimination Draft Bill 2012 (Draft Bill) for public consultation. The Draft Bill is intended to replace the five separate pieces of Federal legislation which currently regulate anti-discrimination law in Australia. It is intended that State anti-discrimination legislation will continue to operate concurrently with the proposed federal legislation, although the Government has noted that the new “consolidated Act could serve as a platform for renewing the previous exercise to harmonise Commonwealth, State and Territoryanti-discrimination law”. In the writer’s view, this would go asignificant way to simplifying the current system and minimising duplication.

The Government says the Draft Bill is intended to comply with the following principles:

  • Protections are to be lifted to the highest current standard in order to resolve gaps and inconsistencies without diminishing protections;
  • The Draft Bill is intended to simplify the current anti-discrimination regime by providing clearer and more efficient laws with greater flexibility in their operation;
  • Protections are to be enhanced where the benefits outweigh any regulatory impact; 
  • Voluntary measures that business can take to assist understand their obligations and reduce occurrences of discrimination are to be introduced; and
  • A streamlined complaints process is to be introduced to make it more efficient to resolve disputes.

If the Draft Bill becomes law, discrimination, sexual harassment, racial vilification and victimisation will continue to be unlawful and complaints will continue to be dealt with by the Australian Human Rights Commission (AHRC) in the first instance. Complaints that are not resolved by the AHRC will continue to be heard by the Federal Court or the Federal Magistrate’s Court if the complainant elects to proceed. Notwithstanding, the Draft Bill contains a number of significant differences when compared to the current regime, including:

  • A single test for discrimination will apply with respect to all grounds of discrimination (for example, race, age, gender etc) in order to simplify the law. This test focuses on unfavourable treatment rather than less favourable treatment, making it broader than the current test. If the Draft Bill becomes law, discrimination will occur where a person treats, or proposes to treat another person unfavourably because that person has a protected attribute, or a combination of protected attributes. Unfavourable treatment will include harassing that person and conduct that offends, insults or intimidates that person. Discrimination may also occur where a policy is imposed that has, or will likely have, the effect of disadvantaging people with a protected attribute, or a combination of protected attributes. This replaces the concept of indirect discrimination;
  • New grounds of discrimination will be introduced to reflect State anti-discrimination law and to harmonise with protections contained in the Fair Work Act. These will include protections against discrimination on the grounds of sexual orientation, gender identity and the extension of martial status to include same sex relationships;
  • New types of prohibited conduct will be introduced including requesting or requiring information for a discriminatory purpose, publishing an intention to engage in unlawful conduct and breaching a disability standard. A disability standard is a new type of Ministerial instrument that will set out requirements to be complied with in relation to a disability. Conduct in accordance with a disability standard will not be unlawful;
  • Duty holders under the proposed legislation may be held personally liable where they cause, instruct or aid another person to engage in unlawful conduct. Importantly for employers, an employer may be held liable for the unlawful conduct of its directors, employees and agents unless it has taken reasonable precautions and exercised due diligence to avoid the conduct;
  • A ‘streamlined approach’ to what will amount to an exception from unlawful conduct will be introduced. There will be a new defence to discrimination based on ‘justifiable conduct’ taken in good faith for a legitimate aim, which is intended to be developed through case law. In addition, a common exception will apply to all grounds of discrimination based on the inherent requirements of the job;
  • New measures will be introduced to assist businesses comply with their obligations under the proposed legislation. Importantly, businesses will be able to invite the AHRC to audit their practices and policies for a fee. The AHRC will provide a report and a court may have regard to that report where appropriate when considering discrimination complaints. It is also intended that compliance codes and industry codes will be introduced. A compliance code will be a legislative instrument and steps or measures taken in accordance with a code will not be unlawful; 
  • The complaints process is to be streamlined and simplified. This will include giving the AHRC increased scope to dismiss unmeritorious claims. Claims dismissed in this way may only proceed to a hearing with leave of the relevant court. There will be a shifting burden of proof so that the complainant bears the onus of establishing the alleged discriminatory facts and once that burden is discharged, the conduct will be presumed to be unlawful unless the respondent proves otherwise. A new rule will be introduced requiring that each party to litigation must bear their own costs unless the Court orders otherwise in the interests of justice; and
  • Courts hearing discrimination complaints based on any of the recognised grounds of discrimination will have a broad range of remedies available to it, including awarding damages, ordering reinstatement and/or ordering a respondent to do any reasonable act or engage in a course of conduct aimed at ensuring that the respondent does not engage in the same or similar unlawful conduct.  

We will keep you informed of the progress of the Draft Bill. If passed, employers should ensure that existing policies are reviewed and updated to reflect the new obligations.