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Australia – Exposure Draft Of Consolidated Commonwealth Anti-Discrimination Legislation Released.

25 November, 2012

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

The Federal Government has released an Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 which proposes to consolidate the five existing Commonwealth anti-discrimination statutes. The proposed legislation retains much of the existing prohibitions, but introduces some significant changes, including a reverse onus of proof, which should be carefully considered by employers. This alert summarises the key proposed changes to the existing laws.

 

Issues for employers

 

  1. The Draft Bill proposes to adopt a reverse onus of proof, similar to the adverse action provisions in the Fair Work Act 2009. This is a significant departure from existing Commonwealth, and State and Territory, anti-discrimination laws.
  2. The proposed laws introduce a new general exception for justifiable conduct which builds on the concept of reasonableness, but starts from a position where conduct is assumed to be unlawful unless justifiable.
  3. Another key proposal is that parties will bear their own costs, removing one barrier for applicants to commence litigation, even for cases with little merit.
  4. The Draft Bill introduces some voluntary mechanisms to assist compliance, including the ability to have the Australian Human Rights Commission certify industry-specific compliance codes. Conduct in accordance with such certified codes cannot then amount to unlawful discrimination.
  5. Employers should carefully review the Draft Bill and consider making submissions to the responsible Senate Committee to address any aspects of the proposed laws which fail to balance the policy of enhancing protections and adopting the highest current standards against undue compliance and regulatory burden on Australian businesses.

 

Overview

 

The Federal Government has released an Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (Draft Bill) and Explanatory Notes published by the Attorney-General’s department. The release of this Draft Bill follows an announcement of a review of the anti-discrimination laws in 2010, the publication of a discussion paper in 2011 and 240 submissions on the issues raised in the discussion paper at the start of this year.

 

The Draft Bill proposes to consolidate the following five existing Commonwealth statutes:

 

  • Racial Discrimination Act 1975;
  • Sex Discrimination Act 1984;
  • Disability Discrimination Act 1992;
  • Age Discrimination Act 2004; and
  • Australian Human Rights Commission Act 1986.

 

The key proposed changes to the existing Commonwealth anti-discrimination laws are set out as follows.

 

Definition of discrimination

 

The Draft Bill proposes a single definition of discrimination which includes where:

 

  • a) a person is treated unfavourably because he or she has a particular protected attribute or attributes (discrimination by unfavourable treatment). Unfavourable treatment includes harassment or other conduct that offends, insults or humiliates; and
  • b) people with a particular attribute or attributes are disadvantaged by a policy, condition, requirement or practice (discrimination by imposition of policies).

 

While similar in concept, the terms direct and indirect discrimination have not been used. The Explanatory Notes say that this is intended to remove any perception that the two concepts are mutually exclusive.

 

In relation to what is commonly referred to as direct discrimination, the Draft Bill removes the comparator test which requires an assessment against another person, without the attribute, in order to determine whether the treatment is unfavourable. It is proposed that discrimination will be demonstrated simply where treatment is detrimental to the complainant. However, the Explanatory Notes provide that it is intended that a comparator test may nevertheless be useful to determine unfavourable treatment because of a protected attribute.

 

In relation to what is commonly known as indirect discrimination, the proposed laws do not include a requirement that a complainant is not able to comply with the policy, condition, requirement or practice.

 

This reflects the position in some of the existing legislation. However, the definition also removes the exception that indirect discrimination will not arise where the policy is reasonable.

 

The Explanatory Notes say that this is now intended to be covered by the new general exception that the conduct was justifiable. We explain this further below. The Explanatory Notes also make it clear that the inclusion of harassment in the definition does not require that the harassment itself is in relation to a protected attribute. It will be sufficient if offensive conduct is targeted at a person because of his or her protected attribute.

 

Protected attributes

 

The Draft Bill provides that it is unlawful to discriminate against a person on the basis of a number of protected attributes. Most of the listed protected attributes are grounds covered by the existing Commonwealth anti-discrimination laws. However, the following new grounds have also been included:

 

  • a) sexual orientation, gender identity and an extension of marital or relationship status to include same-sex relationships; and 
  • b) industrial history, medical history, nationality or citizenship, political opinion, religion and social origin. Each of these protected attributes are currently covered by the equal opportunity in employment scheme under regulations, and are now proposed to be protected attributes only in relation to work and work-related areas.

 

Another important expansion is to the meaning of having a protected attribute. The proposed laws prohibit discrimination where a person or an associate has, is assumed to have, had in the past or may in the future have, a protected attribute. Importantly, the laws also propose protection against discrimination based on a combination of two or more attributes, intended to recognise that people with multiple attributes may face compounded discrimination. The example provided in the Explanatory Notes is of an Asian woman who may not be able to demonstrate unfavourable treatment of either Asians or women generally, but could demonstrate that unfavourable treatment in her case was based on her being both Asian and a woman.

 

Shifting the burden of proof

 

The Draft Bill introduces a reverse onus of proof. The proposed laws provide that while the complainant continues to bear the burden of establishing the primary elements of discrimination, once this has been discharged, the unlawful reason for the conduct will be presumed unless the respondent can prove otherwise. Accordingly, the respondent will be required to demonstrate a non-discriminatory reason or purpose for the action, or that an exception applies.

 

Exceptions, exemptions and compliance codes

 

The Draft Bill proposes to move to a general approach that would replace some current specific exceptions. These changes to the exceptions are proposed to be subject to a review after three years.

 

Significantly, a new exception for justifiable conduct is introduced which builds on the concept of reasonableness, but starts from a position where conduct is assumed to be unlawful unless justifiable. Under this exception to the anti-discrimination provisions, conduct will be justifiable if:

 

  • a) it is engaged in good faith and for the purpose of achieving a particular aim;
  • b) that aim is a legitimate aim;
  • c) the person engaging in the conduct considered, and a reasonable person in his or her circumstances would have considered, that engaging in the conduct would achieve that aim; and
  • d) the conduct is a proportionate means of achieving that aim, taking into account the objects of the legislation, the nature and extent of the discriminatory effect, whether alternative conduct was available, and the cost and feasibility of engaging in that other conduct.

 

While a number of other general exceptions are removed, the Draft Bill retains the inherent requirements exception, to be considered in relation to discrimination arising in work or work-related areas. As is currently case, inherent requirement is not defined. The Explanatory Notes refer to the Qantas v Christie High Court decision as the authority on the meaning – in summary, that an inherent requirement is something essential or an essential element of a particular position.  The Draft Bill provides some guiding factors for employers to determine whether a person can carry out the inherent requirements of the particular work including considering a person’s past training, qualifications and experience, and previous performance.

 

It is worth noting that the inherent requirements or justifiable conduct exceptions are expressed not to apply to discrimination on the basis of disability if a reasonable adjustment could be made. This is a move away from the current Disability Discrimination Act which contains a positive duty to make reasonable adjustments.

 

The Draft Bill also introduces a new special measures determination. This addresses the current situation where a temporary exemption will not be granted where conduct would otherwise fall within the special measures exception. Under these provisions, the Australian Human Rights Commission (AHRC) will be able to certify that certain conduct is a special measure to achieve equality, providing certainty to companies that propose to implement such measures.

 

It is also proposed that the AHRC will have a new power to make, amend or revoke industry based compliance codes, on application. If made, the compliance codes would be legislative instruments and compliance with such a code would be a complete defence against discrimination. The Explanatory Notes provide that this power is intended to be used to certify other regulatory schemes as being consistent with the anti-discrimination provisions. It is not proposed that a failure to comply with a certified compliance code would itself be unlawful conduct.

 

Finally, it is proposed that temporary exemptions will be available across all the protected attributes. These are not currently available under the Race Discrimination Act. However, temporary exemptions granted under the proposed laws will be a legislative instrument, and subject to legislative scrutiny.

 

Complaint resolution and costs

 

There are a number of changes to the existing complaint resolution laws. The Draft Bill also introduces some voluntary mechanisms to assist compliance.

 

The Draft Bill proposes to give the AHRC power to close a complaint if it can be satisfied that:

 

  • a) the complaint does not relate to unlawful conduct;
  • b) the complaint was made more than 12 months after the alleged conduct occurred;
  • c) the complaint is frivolous, vexatious, misconceived or lacking in substance; d) if some other remedy has been sought, the subject matter of the complaint has been adequately dealt with; or
  • e) if some other more appropriate remedy is reasonably available.

 

A complaint which has been closed by the AHRC for one of these reasons cannot be referred to the Federal Magistrates Court or the Federal Court of Australia without leave of the court, although the ease or otherwise with which leave would be granted by a court is uncertain.

 

Finally, the Draft Bill proposes, as a default position, that each party is to bear their own costs. This is a departure from the current position where costs follow the event and an unsuccessful party must pay the costs of the successful one. The Draft Bill also empowers the court to make such orders as to costs as the court considers appropriate taking into account matters such as conduct of the parties, whether a party has been wholly unsuccessful and the terms of any written offer to settle the proceedings. In practical terms, such orders are unlikely to be granted in light of the proposed default position. Given that some types of costs orders can operate as a deterrent to unmeritorious claims this seems odd, and is inconsistent with proposed changes to the Fair Work Act (currently before the Parliament) for a lower threshold for costs orders to be made in respect of unfair dismissals as a way of discouraging unmeritorious claims.

 

Other key changes

 

The Draft Bill provides that discrimination is unlawful where it is connected with any area of public life. One such area is if it is work or work-related. In this context, the definition of “employment” is proposed to be expanded to include work other than under a contract of employment, including unpaid voluntary work.

 

Criminal liability for victimisation is proposed to be removed and replaced with a civil liability, enabling it to be enforced through the AHRC complaint process. However, protection from victimisation will not extend to situations where a person has made a false allegation or complaint, or is otherwise not acting in good faith.

The current vicarious liability provisions are also proposed to be amended, with the introduction of the concept of being connected with duties or employment. Under the proposed laws, a company would be vicariously liable for conduct by an employee in connection with his or her duties. However, exceptions are proposed to be available where the company took reasonable precautions and exercised due diligence to avoid the conduct. This is similar to the current Age and Disability Discrimination legislation. What’s next? We understand that the Government has asked the Senate Legal and Constitutional Affairs Committee to conduct an inquiry into the Draft Bill, and that stakeholder submissions will be sought as a part of this process. The referral to the Committee was made on 20 November 2012, for inquiry and report by 18 February 2013. Further information on the public consultation and submission process or the timeline is not yet available.

 

 

For further information, please contact:

 
Steven Amendola, Partner, Ashurst

 

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