A new federal anti-discrimination Bill is expected to be introduced in the House of Representatives soon, following last week’s reporting date to the Senate by the Senate Legal and Constitutional Affairs Committee, in relation to the draft Human Rights and Anti-Discrimination Bill 2012 (Draft Bill).
The Draft Bill proposes to consolidate the five current federal anti-discrimination Acts into a single Act, lifting all protections at the federal level to the highest current standard.
Key changes under the Draft Bill
– A shifting burden of proof – complainants will only need to make a prima facie case that the alleged conduct was for a particular reason or purpose; respondents will then need to prove that the alleged conduct was not for a discriminatory reason or purpose, or that a defence applies;
– New protected attributes – discrimination on the grounds of sexual orientation and gender identity will become unlawful, and, specifically in the work context, discrimination on the following grounds will become unlawful: industrial history; religion; political opinion; social origin; medical history; and nationality or citizenship;
– Fewer costs orders against unsuccessful parties – parties will generally bear their own costs of litigation, with costs orders only available in limited circumstances;
– Enhanced powers of the Australian Human Rights Commission to dismiss clearly unmeritorious complaints – where frivolous or vexatious complaints are dismissed, complainants will only be able to proceed to court by leave of the court;
– Removal of the concepts of ‘direct’ and ‘indirect’ discrimination – the relevant concepts will be ‘discrimination by unfavourable treatment’ and ‘discrimination by imposition of policies’; and
– Consolidation of defences – there will be a new general exception for ‘justifiable’ conduct, and the exception for inherent requirements of work will be available in respect of all protected attributes.
Lessons for Businesses
Employers will still need to comply with their existing obligations under state and/or territory anti-discrimination legislation and the general protection provisions of the Fair Work Act because the new federal Act will not consolidate these other laws.
Generally, employers can expect compliance to become more burdensome as a result of the changes outlined above.
Individual employers will need to seek advice as to the impacts of these changes on their existing anti-discrimination obligations, and existing employment policies will need to be updated.
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