Harmonisation background

In late 2012 an Exposure Draft of proposed new federal anti-discrimination legislation was released by the government. The draft bill seeks to harmonise federal anti-discrimination legislation. Currently there are multiple different federal Acts[1] each of which deals with a different ground of discrimination. The proposal seeks to consolidate all these into one piece of legislation which will cover all the different grounds within one standard legal framework.

The draft bill is the culmination of three years of government momentum in this area and has included input from SCAG (the Standing Committee of Attorneys General), a review of current laws and public consultation.

How will harmonisation affect employers?

This process will entail a number of changes in this area of the law. Each piece of legislation differs, in varying degrees, as to what will constitute discrimination and where, for example, such behaviour is unlawful. Assuming this harmonisation process continues and the bill is passed as legislation, these changes will affect businesses and employers who will need to ensure they are familiar with the new laws and that workplace policies remain compliant.

Some of the changes are minor whilst others may be potentially more significant in their effect.

Broadly speaking the consolidation of these separate laws is a reasonable step to harmonise the principles and procedures across this field. It is important to note that the federal laws will still necessarily sit alongside any applicable state and territory laws and the Fair Work Act. For employers this means that employees will continue to be able to bring claims under either federal or state laws and may also be able to bring a FWA claim.

Additional grounds

All the existing grounds of discrimination will be included and referred to as ‘protected attributes’, with some additional grounds added. The additions include sexual orientation and gender identity. Of particular relevance to employment law, a number of grounds previously itemised as grounds of complaint under the AHRC Act have been added as protected attributes or grounds of discrimination.  In terms of coverage, protection from all grounds of discrimination is extended to any area of public life.

Onus of proof

There has been a significant amount of commentary around the changes to the onus of proof in the draft bill.  Any attempt at harmonisation of these laws will necessarily involve change. The burden of proof currently differs under the different Acts. The new unified standard will require that once an applicant has shown a prima facie case, the respondent must then show why they acted and that it wasn’t based on a discriminatory ground.  This will create a similar scenario to that currently utilised for adverse action claims under the FWA. Importantly,  however, the Commission will have greater discretion to dismiss unmeritorious claims, which in turn may balance the scales for employers.

Exceptions and defences

The exceptions and defences have similarly been streamlined. The two major exceptions are if the conduct is justified and secondly if the protected attribute(s) means the person is unable to carry out the inherent requirements of the job. For employers, it will be important to be able to clearly identify what are the inherent or essential aspects of each job. It will not be discrimination, for example, to not hire someone where that person cannot fulfil these requirements.

New defences to claims of discrimination will be introduced. These include a full defence for employers who have voluntarily sought and received certification of compliance from the Australian Human Rights Commission.

Where to from here?

Many public submissions on the draft bill were received and a senate committee report has just been released examining in greater detail those areas of controversy raised throughout the consultative process. Employers should continue to monitor progress in this area and consider the extent to which their current workplace discrimination policies and associated training may need to be updated if this bill is passed as legislation.

Sarah Waterhouse

Paralegal

BlandsLaw