Australia: Federal anti-discrimination law changes to increase employer obligations

• On 20 November, the Federal Attorney General and the Minister for Finance and Deregulation released exposure draft legislation to consolidate anti-discrimination law at the Federal level.
• From an employer perspective, the most concerning aspect of the Human Rights and Anti-Discrimination Bill 2012 (Draft Bill) is the proposed change to the onus of proof. In future, respondents will need to prove that they did not engage in conduct for a discriminatory reason or purpose (similar to the adverse action provisions of the Fair Work Act 2009 (Cth)).
• In addition, parties will ordinarily bear their own costs, which removes a key disincentive for complainants with weak or vexatious complaints. However, there is a more robust process for dismissing unmeritorious complaints.
• Another key change is the expansion of the range of attributes protected under Commonwealth anti-discrimination legislation. This may increase some employers’ obligations in some States and Territories.   
• Employers may also be required to satisfy Compliance Codes and Disability Standards in order to ensure they are able to defend some discrimination complaints under the legislation.
• Although the Draft Bill will consolidate five pieces of Commonwealth anti-discrimination legislation into one act, employers will still need to comply with State and Territory legislation (where applicable) and the adverse action provisions of the Fair Work Act.
• The Senate has referred the Draft Bill to the Senate Legal and Constitutional Affairs Committee for an inquiry. Written submissions by interested stakeholders are due by 21 December 2012, with the Committee required to provide its report to the Senate by 18 February 2013.

New Protected Attributes

Under the Draft Bill, the following attributes will be protected for the first time at the Federal level: gender identity, same sex relationships and sexual orientation. In addition, it will be unlawful to discriminate against an employee because of their industrial history², medical history, nationality or citizenship, political opinion, religion and social origin.³ The introduction of new protected attributes at the Federal level may increase some employers’ obligations, depending on the States and Territories in which they operate.

Multiple grounds

Under the Draft Bill, an employee will be able to allege discrimination on the basis of multiple attributes, rather than just one attribute. Under the current Commonwealth legislation, an employee must choose to bring their complaint under the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth) or the Age Discrimination Act 2004 (Cth).  

Discrimination

While the Draft Bill does not retain references to ‘direct’ and ‘indirect’ discrimination,⁴ it provides that discrimination can take two different forms and both are ‘discrimination’.

The first form of discrimination, ‘unfavourable treatment’, includes harassment or other conduct that offends, insults or intimidates the other person. This test replaces the traditional ‘comparator test’ that defined discrimination as less favourable treatment on the basis of an attribute than someone without the attribute or with a different attribute. The second form of discrimination involves the imposition of a ‘policy’ (defined to include the imposition of a condition, requirement or practice) likely to have the effect of disadvantaging employees with particular protected attributes.

The Draft Bill also prohibits an employer from requiring or requesting information for the purpose of engaging in unlawful discrimination or deciding whether to engage in such conduct.

Onus of proof

Once an employee has established a prima facie case of discrimination (by proving that the employee was treated less favourably because of a protected attribute), the burden will shift to the employer to demonstrate:

• a non-discriminatory reason for the action,
• that the conduct was justifiable, or
• that another exception applies (discussed below).  

This reverse onus is similar to the reverse onus imposed on employers under the General Protections provisions of the Fair Work Act (which include a provision prohibiting adverse action on discriminatory grounds – section 351).

Exemptions

One of the key exemptions in the Draft Bill is the defence of ‘justifiable’ conduct. An employer will be exempt if the conduct is:

1. taken in good faith for the purpose of achieving a particular aim,
2. the aim is a legitimate aim,
3. the duty holder considered that the conduct would achieve the aim,
4. a reasonable person considered that the conduct would achieve the aim, and
5. the conduct is a proportionate means of achieving the aim.

This exemption will not apply in relation to a disability if the employer could have made a ‘reasonable adjustment’⁵ which, if made, would have lessened the discriminatory effect or would have resulted in the employer engaging in other conduct with lesser discriminatory effect.

Another key exemption–the inherent requirements exemption–will be maintained. It will not apply in relation to a disability if the employer could have made a ‘reasonable adjustment’ enabling the employee to carry out the inherent requirement.  

Industries will be able to apply to the Australian Human Rights Commission (AHRC) and request that the AHRC issue a Compliance Code relating to their industry. Following a Compliance Code will be a defence to a discrimination claim. The Explanatory Memorandum states that Compliance Codes may also provide employers with clarity regarding what constitutes ‘reasonable precautions’ and ‘due diligence’ (the new proposed defence to vicarious liability claims).⁶

Under the Draft Bill, Disability Standards will be issued by the Minister setting out standards employers must comply with in relation to particular disabilities. Compliance by an employer with a Disability Standard will be a defence to a discrimination claim.

The Draft Bill also proposes that an employer may submit its policies, programs or facilities for review by the AHRC. If the AHRC conducts the review, the review report will not be binding, but a court or commission may have regard to the report in dealing with a complaint (if considered appropriate).  

Terminating Complaints

The AHRC will be required to specify the grounds on which it is terminating a complaint and leave will be required to continue matters in the Federal Magistrates Court or Federal Court if the complaint is terminated for reasons that do not relate to the merit of the complaint. The Explanatory Memorandum states that the ‘rationale for limiting access to the courts is to provide the Commission with an increased ability to dismiss clearly unmeritorious complaints and to focus resources on meritorious complaints’. This is an additional deterrent to vexatious claims, however, the application for leave may be dealt with by the court without a hearing, so employers may not have an opportunity to oppose the application.  

Other notable provisions

The Draft Bill also contains the following notable new provisions:

1. unions will be able to bring discrimination complaints on behalf of employees,
2. there will be a presumption against legal representation in conciliation conferences (if a party is to be legally represented in a conciliation conference, the conciliator’s consent will be required),
3. the Federal Magistrates Court and Federal Court will be given the power to issue injunctions in relation to discrimination applications, and
4. parties are to bear their own costs in proceedings before the Federal Magistrates Court or Federal Court, although the court may make an award of costs after taking into account (amongst other things) the financial circumstances of the parties.

Making submissions

Written submissions are due by 21 December 2012. If you would like to provide a submission to the Senate Legal and Constitutional Affairs Committee, please contact us and we will provide you with a more detailed briefing on the Draft Bill. The Explanatory Memorandum and other material is available on the Attorney-General’s Department’s website.⁷   

This article was written by Helen Donovan, Senior Associate, Brisbane and Kate Jenkins, Partner, Melbourne.

Endnotes

1. The Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
2. “Industrial history” is defined to reflect the definition of “engages in industrial activity” under the Fair Work Act 2009 (Cth).
3. These attributes were previously part of the ‘equal opportunity in employment’ scheme of the Australian Human Rights Commission Act 1986 (Cth) and Regulations, but that legislation did not make discrimination on those grounds unlawful – the AHRC only had the power to investigate and conciliation complaints in relation to those attributes.
4. The Explanatory Memorandum says that this is “to remove the perception that the two concepts are mutually exclusive”.
5. A “reasonable adjustment” is defined as an adjustment that could have been made without causing unjustifiable hardship to the person making it.
6. Under the Draft Bill, companies, employers and principles will be liable for the conduct of their directors, employees and agents that is “connected with” their duties or employment.
7. Attorney-General’s Department’s website. 

More information

For information regarding possible implications for your business, contact a member of our Employment, Pensions and Incentive team.