Clayton Utz Insights
13 October 2011
By Joe Catanzariti and Millen Lo.
The discussion paper signals a number of potentially significant changes to the existing Federal framework which all employers should be aware of.
The Federal Government has formally begun the process of consolidating Federal anti-discrimination legislation by releasing a discussion paper to seek the views and input of the community.
Anti-discrimination legislation has developed at the federal level over the last four decades through the enactment of legislation directed at particular attributes.
At present, five pieces of legislation (apart from the Fair Work Act 2009) regulate anti-discrimination law at the Federal level:
- the Racial Discrimination Act 1975;
- the Sex Discrimination Act 1984;
- the Australian Human Rights Commission Act 1986;
- the Disability Discrimination Act 1992; and
- the Age Discrimination Act 2004.
As a result, inconsistencies and overlap have arisen.
By amalgamating these laws into a single comprehensive law, the Government hopes to reduce complexity, clarify protections, and ensure businesses have adequate assistance in understanding and implementing their obligations.
The key issues for business arising from the discussion paper are highlighted below.
New definitions of discrimination
The discussion paper observes that the definitions of direct and indirect discrimination currently used in Federal anti-discrimination laws have been criticised as being inconsistent, complex and uncertain.
Given so, as part of the consolidation process the Government asks whether the current tests to establish direct and indirect discrimination should continue to be separate concepts or be replaced with a unified test for unlawful discrimination.
Alternatively, if a unified test would not assist in making obligations under anti-discrimination laws any clearer, the discussion paper asks whether clarity and consistency can otherwise be achieved by improving on the existing definitions of discrimination.
For example, the discussion paper asks whether the "comparator" test which forms an element of direct discrimination and which requires a court to compare the treatment of the complainant to another person who does not have the protected attribute, should be abandoned in favour of a "detriment" test, which only requires the court to consider whether a person is treated unfavourably because of their protected attribute.
Shifting the burden of proof
Under the existing framework, a complainant has the burden of proof when seeking to establish a complaint of direct discrimination.
Importantly, the Government asks whether the burden of proof should be modified so that a respondent would be required to demonstrate that there was no discriminatory reason for their actions once the complainant has made out the other elements of direct or indirect discrimination.
In doing so, the discussion paper observes that allowing the burden of proving causation particularly in the case of direct discrimination requires the complainant to prove matters going to the state of mind of the respondent which may be difficult to do for a complainant.
Broader duty to make reasonable adjustments
The Government is also canvassing expanding the duty to make "reasonable adjustments" so that it is an explicit standalone duty that applies to all protected attributes (not just disability). In this way, a failure to make reasonable adjustment would be a separate type of discrimination.
A new positive duty to act
There already exists a positive duty in Victoria in the Equal Opportunity Act 2010 (Vic), under which a duty-holder now must take "reasonable and proportionate measures" to eliminate unlawful discrimination, sexual harassment and victimisation as far as possible.
While not going so far as to apply to the private sector, the discussion paper asks whether public sector organisations should have positive duties to eliminate discrimination and harassment.
Expanding protected attributes
The Government's consolidation process will seek to include sexual orientation and gender identity as additional protected attributes in the consolidation bill.
The discussion paper also asks whether the protected attributes should be extended so that it is unlawful to discriminate on the grounds of religion, political opinion, industrial activity, nationality, criminal record and medical record.
Clarifying vicarious liability
The discussion paper observes that under the existing federal anti-discrimination statutes, each contain a defence of reasonable preventative action or otherwise referred to as the "vicarious liability" defence.
Interestingly, while noting that the reasonable preventative action defence encourages organisations to develop policies which articulate what is acceptable and unacceptable conduct and to actively address unlawful conduct to avoid vicarious liability, the discussion paper also notes that there has been little judicial consideration of the defence in the anti-discrimination law context.
The Government's consolidation process asks whether the vicarious liability provisions can be clarified in the consolidation bill.
Introduction of a unitary exemption
At present, the current laws contain a variety of exemptions to discrimination including, for example, where the "inherent requirements" of a position mean that a person with a disability cannot perform that position.
The discussion paper canvasses an approach to replace the various exemptions with a single "general limitation" clause. Under such a clause, a court would consider whether the discriminatory conduct in question is undertaken to achieve a legitimate objective and is a proportionate means of achieving that objective.
Changes to complaint handling
The Government's consolidation process also entails consideration of the complaint handling process in relation to anti-discrimination claims.
The key issues highlighted in the discussion paper are whether the process should be changed so that:
- there is in place a voluntary conciliation process which would allow parties to proceed directly to the courts without going through a compulsory conciliation conference;
- an alternative path for resolution of complaints via voluntary consent-based arbitration;
- the provision of a mediation stream whereby the mediator has no advisory or determinative role in relation to the dispute or its resolution and mediation would supplement the Australian Human Rights Commission (AHRC) conciliation.
More effective compliance framework
The discussion paper observes that there has been criticisms that current anti-discrimination laws do not provide business with adequate assistance in complying with their obligations as duty-holders.
To remedy this, the discussion paper outlines a number of mechanisms that could provide guidance and assistance to business:
- extending the ability for a duty holder to submit voluntary and non-binding action plans to the AHRC with a view to enabling businesses to improve their policies and procedures;
- introducing a scheme of co-regulation whereby industry bodies develop industry specific codes or mechanisms which supplement the anti-discrimination laws and that would be binding and regulated by the AHRC;
- extending the Attorney-General's power to develop enforceable standards in relation to some or all protected attributes; and
- implementing a certification process in relation to the use of special measures to provide greater certainty for businesses wishing to adopt equal opportunity measures.
The way forward
The release of the Government's discussion paper is only the start of the consolidation process.
Nonetheless, the discussion paper signals a number of potentially significant changes to the existing Federal framework which all employers should be aware of.
While the Government has signalled that the intention of the consolidation process is not to result in any reduction in existing protections in the Federal anti-discrimination laws, a key issue for employers will be the net effect on any increase in compliance costs.
The Government has called for any public submissions in response to the discussion paper up until 1 February 2012. It has also indicated that it anticipates that exposure draft legislation will be release for public consultation in early 2012.
Thanks to Leigh Howard for his help in writing this article
This article was written when Joe was a partner at Clayton Utz and does not necessarily reflect his views as Vice-President of the Fair Work Commission.
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