Recent Precedent 2013 - Issue 1

Posted on 26 February 2013

Proposed Changes to Anti Discrimination Law

In 2012, the Federal Government introduced the Human Rights and Anti Discrimination Bill. In essence, the Bill attempts to modernise and consolidate all federal anti discrimination laws in an attempt to ensure that the laws are easier to understand and comply with.

There are 5 key principles the proposed legislation intends to achieve:

• Lift differing levels of protections to the highest current standard, to resolve gaps and inconsistencies without diminishing protections;

• Provide clearer and more efficient laws and greater flexibility in their operation, with no substantial change in practical outcome;

• Enhance protections where the benefits outweigh any regulatory impact;

• Allowing voluntary measures for businesses to assist their understanding of obligations and reduce occurrences of discrimination;

• Streamlining the complaints process to make it more efficient to resolve disputes.

Compliance with the New Laws

The Government is proposing to introduce new voluntary business assistance measures to help business understand and meet their obligations. This will include the provision of more guidance in the form of commission issued guidelines; voluntary action plans; and Commission reviews of policies and practices.

It is envisaged that the certification process may operate like the Small Business Fair Dismissal Code (which provides that if small employers strictly follow the checklist, a dismissal will be deemed fair), and that it will be a positive for employers. While voluntary to take up, compliance with any of these measures, when certified by the Commission, will constitute a complete defence against discrimination law enabling greater certainty is provided in regard to specific circumstances.

Potential Affect of New Laws on Business

Industry and business leaders have levelled heavy criticism at the Federal Government in relation to the Exposure Draft of the Bill.

While it is encouraging to hear that the Government is actively trying to make compliance as easy as possible for the business sector, it remains to be seen exactly how the Draft Bill would achieve its key principles when enacted. Further undermining the new legislation is whether new Attorney General, Mark Dreyfus MP will fully endorse the new laws and whether it they will be enacted by Parliament prior to the election on 14 September 2013.