Proposed changes to Anti Discrimination law – what they are and how they will impact on your business

Posted on 04 March 2013

In 2012, the Federal Government introduced the Human Rights and Anti Discrimination Bill. In essence, the Bill attempts to modernise and consolidate all anti discrimination laws by merging the Sex Discrimination, Racial Discrimination, Age Discrimination and Disability Discrimination Acts into one piece of legislation in an attempt to ensure that anti discrimination laws are easy to understand and comply with. The Government considers that enhanced protection of human rights and better outcomes for businesses should not be conflicting objectives in considering the development of a consolidated set of anti-discrimination laws.

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

The Bill attempts to simplify anti discrimination regime for business and make the law more flexible by providing a general exception for conduct which is deemed "justifiable". Justifiable conduct is defined to mean conduct done in good faith for a legitimate aim and in a manner which is proportionate to that aim. In addition, the bill introduces protections for people who face discrimination on the basis of sexual orientation and gender identity.

Compliance with new laws

To better equip businesses and employers to deal with anti discrimination law the Government is proposing that they will 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.

A goal of the new legislation is to ensure more certainty for businesses. This will include allowing organisations to seek Commission certification on the following measures:

  • Compliance codes;
  • Temporary exemptions; and
  • Special measure determinations.

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. Those sceptical of the consolidation of discrimination laws include Australian Industry Group, Australian Chamber of Commerce and the Business Council of Australia. Common themes in submissions have reiterated the following criticism:

  • that the proposed legislation does not simplify discrimination law;
  • that the creation of "new attributes" not to be discriminated against are undefined and are already covered under Fair Work Act 2009;
  • that it is unknown whether the test for discrimination is a subjective or objective one;
  • that the shifting of onus of proof on to the Respondent and allowing a no cost jurisdiction will open the floodgates to abuse and vexiatious litigation;
  • that vicarious liability will still apply even in circumstances where an employer can prove that an employee found guilty of discrimination acted outside the scope of their authority;
  • that relevant third parties (including advocacy groups) will be given standing to pursue actions through the courts on behalf of complainants will lead to a rise in costly misuse of the law; and
  • the role of the Human Rights Commission will duplicate the functions of the Fair Work Ombudsman.

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.