Joydeep Hor, Managing Principal

Moves towards harmonisation of Commonwealth anti- discrimination laws began close to three years ago, with the 2009 launch of National Anti-Discrimination Law Information Gateway by the Standing Committee of Attorney-Generals. In 2010, Robert McClelland (the then Attorney-General) announced that a review would begin to assess the viability of consolidating current anti- discrimination laws into one single piece of legislation.

Steps towards harmonisation began in earnest in September 2011, when Attorney-General Nichola Roxon and Finance Minister Penny Wong released a Discussion Paper by the Commonwealth Attorney-General’s Department, inviting submissions over the following 6 months from interested parties.

On 20 November 2012, the exposure draft of the Human Rights and Anti-Discrimination Bill 2012 (Cth) (“the Bill”) was finally released – representing another step towards the potential harmonisation of Anti- Discrimination at a Federal level.

Key changes under the Bill

One major change is, of course, the harmonisation and amalgamation of the five statutes which currently regulate this sphere, into one piece of legislation. For employers, this change will have the benfit of simplifying the myriad of statutes that they are currently expected to comply with, namely:

• the Age Discrimination Act 2004 (Cth);
• the Disability Discrimination Act 1992 (Cth);
• the Racial Discrimination Act 1975 (Cth);
• the Sex Discrimination Act 1984 (Cth); and
• the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”).

As part of the harmonisation process, grounds previously only available under the AHRC Act concerning discrimination in employment (for example: religion, political opinion, industrial activity and social origin), will also be incorporated into the unlawful discrimination regime. However, despite Australia’s International Labour Organisation obligations, discrimination on the ground of criminal record will not be included in the unlawful discrimination regime. Instead, consideration will be given to whether there are more appropriate models to deal with this ground, with amendments to privacy and/or spent conviction schemes flagged as possible alternatives.

In addition to this, the Bill seeks to align protection against discrimination to the highest current standard found in the Racial Discrimination Act 1975 (Cth) – namely that discrimination will be unlawful in connection with any area of public life. This has the advantage of ensuring that there is consistency regardless of the type of discrimination being alleged.

Another change aimed at simplifying the current anti-discrimination regime, is the streamlining of exceptions and exemptions, and the introduction of a general exemption for “justifiable” conduct (that is, conduct done in good faith for a legitimate aim, in a manner proportionate to that aim). The effects of this additional exemption on employers remain to be seen; however, it will no doubt be interesting to watch the case law developing around this new exemption if the bill is successfully passed in its current form.

One further change has been to the default position of the parties as regards to the costs of litigating anti-discrimination matters. Under the Bill, each party will bear their own costs rather than the current practice of costs following the event. Although this may have the effect of encouraging individuals who have genuinely been discriminated against to come forward and take action, it may result in employers being left out of pocket in terms of time and money if they are required to defend a discrimination claim in court.

It should be noted the Bill does not propose any changes to the interaction between the Fair Work Act 2009 (Cth) (“FW Act”) and anti-discrimination legislation, so individuals will still be able to commence actions under either regime. There are also no proposed changes to time limits for making complaints to the Commission (12 months of alleged conduct) or making applications to the Court (within 60 days of receipt of closure of their complaint by the Commission).

Changes to the complaint process

What is likely to be the most contentious change proposed by the Bill is the move to streamline the complaint process by:

• shifting the burden of proof from the complainant to the respondent – similar to the onus borne by employers in general protections claims under the FW Act; and
• changing the default costs position, requiring each party to a court dispute to bear its own costs (although the court will still retain the discretion to award costs).

Under current anti-discrimination law, the burden of proof for direct discrimination complaints before a Court lies with the complainant. Under clause 124 of the Bill, the onus of proof will shift once the complainant has established a prima facie case. It will be the respondent who is required to establish a non-discriminatory reason for the action, to show that the conduct is justifiable or that another exception applies to them.

What is also notable is that the complainant will not be required to disprove the application of any defences or exceptions. The rationale for this proposed change is that the respondent will generally be the party best placed to know, and have access to evidence to prove, the reason for the alleged discriminatory conduct. The result is that in the absence of an adequate explanation by the respondent, if a complainant has provided facts from which the Court could conclude that discrimination has occurred, then that complaint must be upheld.

Implications for employers

In light of these proposed shifts in the legislative regime, the Federal Government has acknowledged that employers are likely to incur additional costs associated with reviewing and updating their current workplace policies to ensure legal compliance, as well as costs incurred in training employees on the changes.

Concerns have also been expressed that the reverse onus of proof combined with the change in the default costs position for litigants may see an increase in the number of out of court settlements and payment of “go away” money by employers, so as to avoid the costs of litigation since it is likely that they may no longer be able to recoup their costs even if they “win” the case.

Going forward

With the Bill having now been referred to the Senate Committee on 21 November 2012, it is likely that consultation on the Bill will occur during between now and early 2013. A report from the Senate Committee can likely be expected in mid-February 2013.

PCS recognises that these proposed changes will be of considerable importance to our clients and given our expertise in this area welcomes you to contact us if you require assistance in compiling a submission in response to the exposure draft. If you are interested in participating in this process please contact us at peopleculture.com.au.