The Federal Government has acknowledged that businesses will incur additional costs to comply with its proposed harmonisation of national anti-discrimination laws.
The Government today released its exposure draft Human Rights and Anti-Discrimination Bill, which proposes to harmonise, into a single statute, the Commonwealth's existing anti-discrimination legislation: the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004, and the Australian Human Rights Commission Act 1986.
But the Government estimates that businesses will need to pay out between $1000 and $5000 to update their workplace policies, and between $2000 and $20,000 to adapt staff training (depending on the complexity of changes required) to ensure compliance with the new laws.
Bill to introduce reverse onus of proof
A key proposed change in the draft bill is to reverse the onus of proof for direct discrimination.
Once an employee has established their prima facie case, employers will be obliged to prove that the reason for the action was not prohibited (for example, the conduct wasn't a response to an employee's protected attribute).
This is consistent with existing obligations under the Fair Work Act's adverse action provisions and anti-discrimination legislation in other jurisdictions including the UK, the European Union and Canada.
The draft bill's explanatory notes say that the reversal recognises that employers are "best placed to know the reason for an action and to have access to relevant evidence".
But speaking on ABC's Radio National today, Attorney-General Nicola Roxon played down concerns about the reverse onus, arguing the bill actually offered a "shift in the way the evidence works", and denied that this was "a full reversal".
Certified compliance codes to provide "complete defence" against claims
The bill also offers businesses voluntary methods to assist with compliance, including certification by the Human Rights Commission of compliance codes, which would provide a complete defence against discrimination claims. In their submissions in response to the government's discussion paper, the Business Council, ACCI and Ai Group supported the inclusion of such voluntary measures.
The consolidation project was established as a Better Regulation Ministerial Partnership between Roxon and Finance Minister Penny Wong, who told journalists today that the draft bill would provide certainty to claimants and enhanced mechanisms for the Australian Human Rights Commission to dismiss unmeritorious complaints.
"Consolidating anti-discrimination laws will make compliance easier, reduce costs and shift the focus from redressing wrongs to preventing discrimination from occurring in the first place – this is particularly good news for small business.
"Business will also benefit from the ability of the Australian Human Rights Commission to certify codes or standards that will act as a full defence to claims of discrimination," Senator Wong said.
"The complaints process will be streamlined with the adoption of a cost free jurisdiction and shifting burden of proof where the respondent is required to justify the conduct once the complainant has established a prima facie case," Roxon said.
The key amendments proposed by the draft model legislation include:
- simplifying the test for discrimination applying to all attributes;
- expanding protected attributes to include discrimination on the grounds of:
- sexual orientation and gender identity, and extends protections against relationship discrimination to same-sex couples in any area of public life;
- industrial history, including by organising or promoting a lawful activity for, or on behalf of, an industrial association;
- a person's highly sensitive medical information that does not constitute a disability (eg: relationship counselling); and
- changing the definition of "race" to include colour, descent or national or ethnic origin (these were previously separate grounds under the Racial Discrimination Act);
- streamlining exemptions, including a new exemption for justifiable conduct, and an exception for the inherent requirements of the job, applying to all attributes;
- offering employers voluntary compliance with the bill, including certification by the Human Rights Commission of compliance codes, constituting a complete defence against discrimination claims;
- enhancing the Commission's power to dismiss clearly unmeritorious complaints, and bars dismissed matters from proceeding to the courts without leave of the court;
- requiring parties to bear their own costs, with court discretion to award costs.
The task of harmonising anti-discrimination laws has been at least three years in the making.
The Standing Committee of Attorneys-General in 2009 launched the National Anti-Discrimination Law Information Gateway, which was billed as the first stage towards harmonising national anti-discrimination laws.
Former Attorney-General Robert McClelland announced in 2010 a review of federal anti-discrimination laws to consider the viability of rationalising them into a single piece of legislation (see Related Article).
Roxon and Senator Wong launched public consultation the following year, receiving over 230 submissions from advocacy groups, religious leaders, employer groups and unions, largely in support of the Government's proposal.
The Government will ask the Senate Legal and Constitutional Affairs Committee to inquire into the draft bill.
Stakeholders will be invited to provide submissions and can keep track of developments via a dedicated web page.
In welcoming the draft exposure bill, Human Rights Commission President Professor Gillian Triggs said today the reverse onus provisions were a "common sense" step.
But ACCI chief executive Peter Anderson said the draft bill contained some "unresolved issues", and failed to address the risk of individuals continuing to "forum shop" for a remedy to their complaint.
Maurice Blackburn principal Terri Butler said reversing the onus of proof on employers was in keeping with adverse action provisions, which had not resulted in an "avalanche of unmeritorious cases".
"Some have suggested that the changes to discrimination laws would give complainants an unfair advantage over businesses, but I don't believe that.
"The reverse onus will merely address an otherwise existing disadvantage. That is because discrimination claims are about the reasons why a decision maker took action. The decision maker is at an obvious advantage over the complainant, in a contest about their reasons for taking action. The reverse onus removes that advantage," Butler said.
Meanwhile, Roxon today appointed the current Chief Justice of the Federal Court, Patrick Keane, as Australia's newest Justice of the High Court of Australia, following the retirement of Justice Dyson Heydon on March 1. James Allsop will be the next Chief Justice of the Federal Court.
Exposure Draft, Human Rights and Anti-Discrimination Bill 2012