Fed­er­al Anti Dis­crim­i­na­tion Leg­is­la­tion Harmonised

In Brief

The Fed­er­al Gov­ern­ment recent­ly released an expo­sure draft of its pro­posed Human Rights and Anti-Dis­crim­i­na­tion Bill 2012 (the Bill). The Bill har­monis­es the cur­rent five pieces of Fed­er­al anti dis­crim­i­na­tion leg­is­la­tion: Racial Dis­crim­i­na­tion Act 1975 (Cth), Sex Dis­crim­i­na­tion Act 1984 (Cth), Dis­abil­i­ty Dis­crim­i­na­tion Act 1992 (Cth), Age Dis­crim­i­na­tion Act 2004 (Cth) and Aus­tralian Human Rights Com­mis­sion Act 1986 (Cth) by con­sol­i­dat­ing them. This will help ensure the high­est stan­dards are con­sis­tent­ly applied and enforced.

The Bill intro­duces pro­tec­tion against dis­crim­i­na­tion on the grounds of sex­u­al ori­en­ta­tion and gen­der iden­ti­ty align­ing with the stan­dards in the States and Ter­ri­to­ries on this issue.

Pro­tect­ed Attributes

The Bill intro­duces broad­er pro­tec­tion against dis­crim­i­na­tion through a list of what are known as ​“pro­tect­ed attrib­ut­es”.

Discrimination

The Bill intro­duces a test for dis­crim­i­na­tion which is based on ​“unfavourable treat­ment” because a per­son has a par­tic­u­lar pro­tect­ed attribute (or attrib­ut­es). Unfavourable treat­ment includes harass­ment or offen­sive, insult­ing or intim­ida­to­ry behaviour.
Dis­crim­i­na­tion also includes the impo­si­tion of or propos­ing to impose a pol­i­cy which has the effect or like­ly effect of dis­ad­van­tag­ing peo­ple who have a par­tic­u­lar pro­tect­ed attribute (or attrib­ut­es). Inter­est­ing­ly the Bill makes it plain that propos­ing to treat anoth­er per­son unfavourably or propos­ing to impose a pol­i­cy will be treat­ed in the same way as if these things had occurred.

The Bill pro­vides that it is unlaw­ful to dis­crim­i­nate against anoth­er per­son if the dis­crim­i­na­tion is con­nect­ed with any ​“area of pub­lic life”. The Bill states that areas of pub­lic life include (but are not lim­it­ed to):

• work and work-relat­ed areas;
• edu­ca­tion or training;
• the pro­vi­sion of goods, ser­vices or facilities;
• access to pub­lic places;
• pro­vi­sion of accommodation;
• deal­ings in estates or inter­ests in land;
• mem­ber­ship and activ­i­ties of clubs or mem­ber-based associations;
• par­tic­i­pa­tion in sport­ing activities;
• the admin­is­tra­tion of Com­mon­wealth laws and Ter­ri­to­ry laws, and the admin­is­tra­tion or deliv­ery of Com­mon­wealth pro­grams and Ter­ri­to­ry programs.

There are var­i­ous excep­tions in the Bill where con­duct will not be unlaw­ful. There is a defence of ​“jus­ti­fi­able con­duct” which means that if the con­duct is under­tak­en in good faith to achieve a ​“legit­i­mate aim”, and a rea­son­able per­son would con­sid­er that the con­duct would achieve that aim by ​“pro­por­tion­ate means”, then it will not be unlaw­ful con­duct. If the con­duct con­cerns dis­crim­i­na­tion on the grounds of dis­abil­i­ty, con­duct is not jus­ti­fi­able where there is a rea­son­able adjust­ment that could have been made (which was­n’t) which could have less­ened or removed the dis­crim­i­na­to­ry effect. For an employ­er, the Bill also includes the defence of inher­ent require­ments of work, to ensure employ­ers can hire employ­ees who are able to under­take the required work.

The Bill con­tains pro­vi­sions mak­ing it unlaw­ful to sex­u­al­ly harass a per­son where rel­e­vant cir­cum­stances include a per­son­’s sex, age, mar­i­tal or rela­tion­ship sta­tus, sex­u­al ori­en­ta­tion, reli­gion, race or dis­abil­i­ty and the harass­ment is con­nect­ed with any area of pub­lic life. Racial vil­i­fi­ca­tion is unlawful.

It will also be unlaw­ful to request or require infor­ma­tion for the pur­pose of engag­ing in dis­crim­i­na­to­ry con­duct or decid­ing whether to enter into such conduct.

Reverse Onus of Proof

Impor­tant­ly, the Bill con­tains a reverse onus of proof, which means that if a claim of dis­crim­i­na­tion is unable to be con­cil­i­at­ed or oth­er­wise dis­posed of and comes before a court, and the appli­cant pro­vides evi­dence estab­lish­ing the exis­tence of dis­crim­i­na­to­ry con­duct, then it is up to the respon­dent to estab­lish that the con­duct was not unlaw­ful. It might be not­ed that there is a reverse onus of proof in adverse action claims under the Fair Work Act 2009 (Cth) (which includes claims based on dis­crim­i­na­tion in employment).

This change strength­ens pro­tec­tion for indi­vid­u­als and is jus­ti­fied by the Fed­er­al Gov­ern­ment on the basis the per­son mak­ing the deci­sion or under­tak­ing cer­tain con­duct is best equipped to know the rea­sons for their actions. 

The Aus­tralian Human Rights Commission

The Bill empow­ers the Com­mis­sion to pro­duce Guide­lines to assist peo­ple to avoid engag­ing in unlaw­ful con­duct or con­duct con­trary to human rights. These Guide­lines and any per­son­’s com­pli­ance with them may be tak­en into account in the event of a complaint.

The Bill pro­pos­es vol­un­tary com­pli­ance meth­ods where­by the Com­mis­sion can review poli­cies, pro­grams and ​“action plans”. Poli­cies, pro­grams and action plans can upon appli­ca­tion, be reviewed by the Com­mis­sion and any sub­se­quent report by the Com­mis­sion may be used in any sub­se­quent com­plaint pro­ceed­ings whether before the Com­mis­sion or the court.
The appar­ent inten­tion of the Bill is to encour­age proac­tive steps from per­sons and organ­i­sa­tions that may assist in com­pli­ance, and reduc­tion in expo­sure to future complaints. 

What does the Bill mean for Employers?

Under this Bill employ­ers may be held liable for the unlaw­ful con­duct of direc­tors, employ­ees and agents unless they have tak­en pre­cau­tions, and exer­cised due dili­gence to avoid the dis­crim­i­na­to­ry conduct.

Employ­ers would be well advised there­fore, to take pre­ven­ta­tive action and review or imple­ment poli­cies and pro­grams hav­ing regard to the pro­posed new leg­isla­tive frame­work and exist­ing laws.

Extreme care should be tak­en in devel­op­ing poli­cies and in indi­cat­ing the sta­tus of draft poli­cies bear­ing in mind that propos­ing to impose a pol­i­cy will be treat­ed in the same way as if it had actu­al­ly been adopted.

Employ­ers may also wish to make use of the Human Rights Com­mis­sion’s capac­i­ty to review pro­posed poli­cies and pro­grams espe­cial­ly where the issues are com­plex or like­ly to be controversial.

Employ­ment Seminars

Swaab employ­ment part­ners, Richard Ott­ley and War­wick Ryan will be hold­ing a free sem­i­nar in Feb­ru­ary 2013 on the recent changes to dis­crim­i­na­tion. Please reg­is­ter your inter­est at events@​swaab.​com.​au.