Summary

  • In recent weeks, the media has widely publicised a number of criticisms of the new draft Federal anti-discrimination legislation (the Exposure Draft). These criticisms have focused on concerns relating to the erosion of the right to freedom of speech, the breadth of the exemption for religious bodies and the shift of the onus of proof.
  • The recent media attention has arisen out of public hearings conducted by a Senate Committee as part of its inquiry into the Exposure Draft. The committee has received close to 600 submissions and heard evidence from a number of key stakeholders including public interest organisations, religious associations, media groups, and employer and employee representative bodies regarding the Exposure Draft’s content, scope and likely consequences.
  • In this newsletter, we examine three key issues of concern identified by stakeholders who have made formal submissions to the Senate Committee, and comment on what these proposed changes will mean for employers.

Issue 1: The Exposure Draft makes conduct which merely ‘offends’ or ‘insults’ a person unlawful

What are the criticisms?

The Exposure Draft defines ‘discrimination’ to include ‘conduct that offends, insults or intimidates’. Unlike the prohibition on racial vilification which incorporates an objective ‘reasonably likely’ standard, the general definition of discrimination contains a subjective test. This subjective test has been widely criticised on the basis that:

  • The test effectively creates a new right not to be offended, which is open to abuse and may lead to a significant increase in the number of discrimination claims. Some submissions also point to the broad reach of the definition’s application to:
    • ‘any area of public life’ (including, for example, in a social context) in respect of certain attributes; and
    • the expansion of the existing prohibition in federal legislation on publication of advertisements or notices which indicate an intention to unlawfully discriminate to any ‘material’.
  • The subjective standard is inadequate from a public policy perspective, as a high bar should apply to any limits imposed on freedom of expression.
  • From a practical perspective, the perceived increased likelihood of facing a discrimination suit may deter comments or expressions that would have been capable of satisfying an exception.

The Attorney-General announced on 31 January 2013 that, in light of the above concerns, officials from the Attorney-General’s department will present a ‘series of options’ to the Senate Committee including removal of the reference to ‘offend, insults or intimidates’ from the definition of discrimination.1

Should employers be concerned about the proposed change?

The proposed definition of ‘discrimination’ could potentially capture a broader range of behaviour than under current state and federal legislation. This in turn increases employers’ exposure to claims under the legislation and would require employers to take additional steps to ensure that a broad range of behaviour does not occur in the workplace. However, amending the definition of ‘discrimination’ as proposed by the Attorney General may mitigate these concerns.   

Issue 2: The ‘shift’ of the burden of proof from the claimant to both the claimant and respondent is contrary to the rule of law

What are the criticisms?

The Exposure Draft provides, in effect, that once the applicant has established a prima facie case that he or she has been the subject of discriminatory conduct, the burden of proof ‘shifts’ to the respondent, who must then show that the conduct in question was not unlawful. This provision has been criticised by some stakeholders on the grounds that:

  • It violates the principle that a person is innocent until proven guilty, because the party who has been accused of unlawful conduct must adduce evidence to justify their conduct (rather than simply disproving the case put by the applicant).
  • Given that discrimination on certain bases is unlawful in ‘any area of public life’, the accused party may not be in a better position than the applicant to adduce evidence as to his or her conduct. That is, if the accused party is a person interacting with the claimant in a social (rather than employment) context, he or she may not have kept records of the incident, or have access to witnesses, and may therefore not be better positioned than the applicant to adduce evidence to justify his or her conduct. In this context, the rationale for the shift in the onus of proof falls away.

Should employers be concerned about the proposed change?

Yes. The proposed changes reflect the current position in other jurisdictions, such as the adverse action provisions of the Fair Work Act 2009 (Cth). While the level of criticism from employer groups in relation to this proposed amendment has been substantial, we consider it unlikely that the government will resile from its position that the legislation should place the obligation to adduce evidence regarding the relevant conduct on the party best able to produce that evidence.

As such, this emphasises the importance of maintaining documentary evidence regarding any employment decision (including, for example, records of interviews with job applicants, human resources files and employee complaints).

In addition, a broader consequence of introducing the shifting burden into the consolidated anti-discrimination legislation is that it may result in a rise in the number of discrimination claims brought under the new federal provisions (as opposed to under applicable state or territory laws). Whether or not there will be a rise in this type of litigation overall remains to be seen.

Issue 3: Religious organisations may seek exemptions from the discrimination legislation in relation to employment and service provision

What are the criticisms?

The Exposure Draft sets out exceptions relating to religion (for the appointment of priests/ministers and religious bodies/educational institutions, respectively). These clauses have been criticised on the basis that religious organisations or schools in receipt of public funds should not be entitled to discriminate in a manner contrary to public standards of behaviour.

Should employers be concerned about the proposed change?

The exemptions under the Exposure Draft generally continue the approach under existing federal and state legislation. However, given the large number of submissions on this point seeking change, it will be important for any organisation seeking to rely on this exemption to carefully review the provisions ultimately incorporated into the new legislation.

Next steps

The Senate Committee is due to publish its final report by 18 February 2013, and it is anticipated that the new Federal anti-discrimination legislation will be introduced into the Parliament in its final form in the first half of 2013.

It is likely that the draft legislation will be subject to further amendment and debate and we will provide further updates at key points of this process.