Uniform test for discrimination
The Bill creates one uniform test to determine what conduct constitutes unlawful discrimination in relation to all protected attributes. Discrimination may arise where either:
- a person treats another person unfavourably because the other person has particular protected attribute(s); or
- people with particular attribute(s) are disadvantaged by a policy. The policy itself may be apparently neutral.
New Protected attributes
The Bill adds several new protected attributes, including: sexual orientation, gender identity, industrial history or political opinion. It also extends the protections against relationship discrimination to same-sex couples, who have not previously been given equivalent recognition in Federal law.
The Bill also recognises discrimination on the basis of a combination of attributes, such as age and sex (dual discrimination).
“No costs jurisdiction”
At present, the default position under Commonwealth Anti-Discrimination Legislation is that an unsuccessful party to a Court proceeding is required to pay the other party’s costs. The Bill proposes to change this so that each party is to bear its own costs.
To date, the risk of having to pay another party’s costs has probably deterred applicants from pursuing discrimination claims through the courts unless the claim has a reasonable prospect of success. This change means that the likelihood of an applicant being required to pay the respondent’s costs in the event that his or her claim is unsuccessful is significantly reduced, although under the Bill, the Court will still have the discretion to make orders as to costs in some circumstances.
Reverse onus of proof
The Bill proposes to reverse the onus of proof in relation to discrimination. This reverse onus is consistent with that required for an adverse action claim under the anti-discrimination provisions set out in the Fair Work Act 2009 (Cth). The onus will be on the complainant to demonstrate that:
- he or she has a protected attribute,
- he or she has been discriminated against, and
- evidence exists upon which a court could decide, in the absence of any other explanation, that the alleged reason is the reason the respondent engaged in the conduct.
Once a complainant has established this, the reason for the conduct will be presumed unless proven otherwise by the respondent.
Concern has been expressed by employers that the reversal of the onus of proof would increase the numbers of complaints of discrimination and increase the likelihood that the claims will succeed.
Exception for “justifiable” conduct
The Bill creates a new exemption for conduct which is “justifiable,” which means conduct done in good faith for a legitimate aim, in a manner proportionate to that aim. The Bill lists a number of factors which must be taken into account in determining whether conduct is “justifiable,” including whether alternative conduct could have achieved the same aim without the discriminatory impact. Conduct will not be justifiable if, with reasonable adjustments, it would not have been discriminatory.
Proposed Voluntary Compliance regime
The Bill proposes a number of voluntary compliance measures which will assist employers to comply with the legislation, and in some instances to avoid liability.
An important key proposed change is the introduction of compliance codes which will, once in place, allow a business a complete defence to vicarious liability for the actions of a rogue employee, so long as the code is followed. The Bill also provides for compliance codes to be developed at an industry level.
Greater power for the Australian Human Rights Commission to dismiss claims
The Bill gives the Australian Human Rights Commission greater power to dismiss clearly unmeritorious or vexatious complaints. The Bill also bars complaints which have been dismissed by the Australian Human Rights Commission on this basis from proceeding to the Federal Court or Federal Magistrates Court without the leave of the court.