Proposed Harmonisation of Federal Anti-Discrimination Laws

The Federal Government has released exposure draft legislation consolidating the five existing Commonwealth anti-discrimination acts into one piece of legislation. The proposed legislation, the Human Rights and Anti-Discrimination Bill 2012 (‘the Bill’), is promoted by the Federal Government as providing consistent protections and compliance rules across the areas of sex, race, disability and age discrimination in the federal jurisdiction. Despite introducing significant change, the Bill is described as not proposing “significant changes to existing laws or protections but is intended to simplify and clarify the existing anti-discrimination legislative framework”.

This is plainly not correct as the Bill introduces new and complex issues into an already complex area of regulation and substantially expands the opportunity for claims and litigation. As with the Federal Government’s “harmonisation” of work health and safety laws, a new raft of regulation is being created with new obligations and risks for employers and other duty holders. The Bill achieves “consistency” across the current federal legislative framework by lifting the different levels of protection to the highest current standard and introducing new protections.

By moving to the highest standards and significantly expanding the coverage and reach of federal discrimination laws, the Bill increases the potential liability of employers beyond current legal obligations. Key changes such as a subjective test for discrimination, expanded grounds and a reverse onus of proof  mean that employers will face an increased compliance burden and the increased likelihood of having to defend claims. 

There is no intention to harmonise or repeal existing state and territory anti-discrimination legislation. Significant overlaps and inconsistencies remain with these laws and with the Fair Work Act 2009. Employers face significant uncertainty ahead if the Bill becomes law as they confront the new federal provisions and their, as yet unknown, effect on differing anti discrimination law in each jurisdiction.

Employers are to be liable for the discriminatory behaviour or actions of their agents (including their employees, contractors and volunteers) on expanded grounds of discrimination which include industrial and medical history. While employers have been vicariously liable for the actions of workers in the past, the practical compliance implications of this expansion in the legislation are daunting and will not reduce compliance costs for business.

Further, once a claim is made, the onus of proving any actions were not discriminatory will fall to the employer with the Government taking the convenient view that the employer is in the best position to know the reason for the alleged discriminatory action and to have access to the relevant evidence. In practice reverse onus is intended to, and does, advantage claimants.

AFEI has made a submission to the Senate Inquiry into the Bill which is currently underway. The Inquiry is due to make its report on 18 February 2013 and it is expected the proposed legislation will be before the Parliament in the Autumn session.