Australia: Consolidation of Commonwealth Anti-Discrimination Legislation – Where is it up to and what does it mean for employers?

Introduction

The release of the Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (Bill) last year caused some controversy, including damning comments by former New South Wales Chief Justice Jim Spigelman, that the Bill will "impose unprecedented restrictions on free speech, including making it unlawful to offend people"¹. On Thursday 21 February 2013, the Senate Legal and Constitutional Affairs Committee tabled its report on its inquiry into the exposure draft of the Bill (Report). The Committee received 3,464 submissions and held three public hearings between 21 November 2012 and the Report release date.

What does the Bill mean for employers?

Employers need to be aware of the Bill because:

• changes proposed to costs and the onus of proof may give rise to an increase in discrimination claims;
• proposed changes will require employers to consider compliance issues, including updating existing EEO policies and procedures; and
• benefits and protections may arise for employers using the proposed voluntary compliance regime.

Why the proposed changes?

Federal anti-discrimination laws are currently set out in a number of separate pieces of legislation. Inconsistencies between these pieces of legislation have created a system that is complex and difficult to navigate. The Bill follows a 2011 Commonwealth discussion paper issued for public comment and implements many recommendations of the 2008 inquiry of the Senate Standing Committee on Legal and Constitutional Affairs into the Sex Discrimination Act 1984 (Cth).

What are the key proposed changes?

Uniform test for discrimination

The Bill creates one uniform test to determine what conduct constitutes unlawful discrimination in relation to all protected attributes. Discrimination may arise where either:

• a person treats another person unfavourably because the other person has particular protected attribute(s); or
• people with particular attribute(s) are disadvantaged by a policy. The policy itself may be apparently neutral.

New Protected attributes

The Bill adds several new protected attributes, including: sexual orientation, gender identity, industrial history or political opinion. It also extends the protections against relationship discrimination to same-sex couples, who have not previously been given equivalent recognition in Federal law.

The Bill also recognises discrimination on the basis of a combination of attributes, such as age and sex (dual discrimination).

"No costs jurisdiction"

At present, the default position under Commonwealth Anti-Discrimination Legislation is that an unsuccessful party to a Court proceeding is required to pay the other party's costs. The Bill proposes to change this so that each party is to bear its own costs.

To date, the risk of having to pay another party's costs has probably deterred applicants from pursuing discrimination claims through the courts unless the claim has a reasonable prospect of success. This change means that the likelihood of an applicant being required to pay the respondent's costs in the event that his or her claim is unsuccessful is significantly reduced, although under the Bill, the Court will still have the discretion to make orders as to costs in some circumstances.

Reverse onus of proof

The Bill proposes to reverse the onus of proof in relation to discrimination. This reverse onus is consistent with that required for an adverse action claim under the anti-discrimination provisions set out in the Fair Work Act 2009 (Cth). The onus will be on the complainant to demonstrate that:

• he or she has a protected attribute,
• he or she has been discriminated against, and
• evidence exists upon which a court could decide, in the absence of any other explanation, that the alleged reason is the reason the respondent engaged in the conduct.

Once a complainant has established this, the reason for the conduct will be presumed unless proven otherwise by the respondent.

Concern has been expressed by employers that the reversal of the onus of proof would increase the numbers of complaints of discrimination and increase the likelihood that the claims will succeed.

Exception for "justifiable" conduct

The Bill creates a new exemption for conduct which is "justifiable," which means conduct done in good faith for a legitimate aim, in a manner proportionate to that aim. The Bill lists a number of factors which must be taken into account in determining whether conduct is "justifiable," including whether alternative conduct could have achieved the same aim without the discriminatory impact. Conduct will not be justifiable if, with reasonable adjustments, it would not have been discriminatory.

Proposed Voluntary Compliance regime

The Bill proposes a number of voluntary compliance measures which will assist employers to comply with the legislation, and in some instances to avoid liability.

An important key proposed change is the introduction of compliance codes which will, once in place, allow a business a complete defence to vicarious liability for the actions of a rogue employee, so long as the code is followed. The Bill also provides for compliance codes to be developed at an industry level.

Greater power for the Australian Human Rights Commission to dismiss claims

The Bill gives the Australian Human Rights Commission greater power to dismiss clearly unmeritorious or vexatious complaints. The Bill also bars complaints which have been dismissed by the Australian Human Rights Commission on this basis from proceeding to the Federal Court or Federal Magistrates Court without the leave of the court.

The Report

The Senate Legal and Constitutional Affairs Committee's Report included the following key recommendations in relation to the Bill:

• to remove 'other conduct that offends, insults or intimidates' from the meaning of unfavourable treatment, which means that such conduct will not necessarily be included in the scope of 'discrimination.' The problem with the current wording in the Bill is said to be that 'offends' and 'insults' are subjective concepts, which risk interpretations contrary to the objects of the Bill. We note however that the definition of 'unfavourable treatment' remains an inclusive one so it would still be open to a Court to determine that conduct which offends, insults or intimidates could constitute discrimination if such treatment was 'unfavourable treatment';
• to remove the exception allowing religious institutions to discriminate against individuals in the provision of their services, using the mechanisms in place in the Tasmanian Anti-Discrimination Act 1998 as a model, under which religious exceptions are much narrower than those proposed in the Bill. Under the Tasmanian Act, the legislative exceptions for religious organisations extend only to the protected grounds of 'religious belief or affiliation' and 'religious activity', and not to other attributes such as 'sexual orientation' or 'gender identity';
• to require organisations seeking to rely on the exception for religious bodies and educational institutions to publish a statement setting out their intention to do so and provide that document to prospective employees and any members of the public who wish to see it;
• to amend the definition of 'gender identity' to broaden its scope and to add 'intersex status' as a protected attribute in its own right. This was in response to a number of submissions that while welcoming the introduction of new protected attributes of 'sexual orientation' and 'gender identity' expressed concern that the wording of the relevant provisions in the Bill does not go far enough to protect some sex- or gender-diverse individuals and groups against discrimination;
• to introduce a further protected attribute - 'domestic violence.' It was considered that protection for victims of domestic violence was particularly necessary in the area of employment;
• to introduce 'irrelevant criminal record' as a protected attribute, to be modelled on the Tasmanian Anti-Discrimination Act 1998;
• that 'voluntary or unpaid work' be added as a discrete area of public life, rather than falling within the definition of 'employment' as currently drafted, to better encompass the legal differences between employees and volunteers; and
• to amend the exception for 'justifiable conduct' so that 'a legitimate aim' is replaced with the more specific phrase 'an aim that is consistent with achieving the objects of the Act' or by amending the test for what constitutes 'justifiable conduct' to be a test based on reasonableness.

The Coalition Senators of the Committee published a dissenting report which opposes the Bill. They expressed concern that the Bill had become "almost synonymous in the public mind with legislative over-reach and intrusive government" and that the Bill was "riddled with so many fundamental errors, of both a technical and substantive kind" that they deemed it to be beyond saving. The dissenting Senators also expressed concern that the Bill would damage Australia's social fabric by encouraging a "culture of complaint."

The Australian Greens Senators of the Committee support the Bill, and while they consider that the recommendations in the Report for changes to the Bill could go further, they recommended that the Bill be prioritised for introduction and passage through the Parliament by the end of the June sitting this year.

What happens now?

The Senate will now consider the recommendations of the Committee and the Bill may be amended before the Senate votes on it.

If the Bill is passed, it likely that businesses will incur increased costs in relation to staff training and development of new policies and compliance codes. Anecdotal feedback suggests that updating policies could cost between $1,000 and $5,000 for employers, and staff training could cost between $2,000 and $20,000, depending on the complexity and extent of changes required. Assuming the Bill is passed, employers will need to review current policies and training documentation and deliver training to ensure businesses are ready for any resulting changes.

Footnotes

¹The Australian, 11 December 2012, 'ABC chairman Jim Spigelman slams ALP laws that make it illegal to be offensive'.

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.