Business reacts to new anti-discrimination laws

by Stephanie Zillman22 Nov 2012

Announced yesterday by Attorney General Nicola Roxon, the burden of proof in discrimination cases is set to be reversed. It will now be up to the defendant to prove their innocence once a prima facie case has been established, and that’s exactly what’s got business leaders hot under the collar.

Today many industry figures have criticised the announcement, fearing the new national discrimination laws could saddle them with huge costs, lead to disgruntled employees fishing for a huge payout, and make it difficult for organisations to comply with the new rules.

Opposition legal affairs spokesman, Senator George Brandis, was among the first to condemn the changes. He said the coalition was highly concerned about the reversal of the onus of proof. "It violates the whole principle on which our justice system has always operated,” Brandis told Sky News. He added that while discrimination complainants were often less powerful than those they were taking on, there are two sides to every story.

"If you make a complaint against another citizen saying they have broken the law, that they have done the wrong thing, they shouldn't have to prove their innocence merely because a complaint has been made against them,'' Brandis said, adding that another possible effect is that it will lead to a greater number of claims than are currently made.

Australian Chamber of Commerce and Industry (ACCI) director of workplace policy, Daniel Mammone, told The Australian that many of its members claimed they had serious concerns about the changes. "We have some concerns that the proposals will mean that an individual will continue to be able to shop for a legal remedy either under the consolidated legislation, the Fair Work Act's 'adverse action' provisions or under state and territory anti-discrimination laws," he said. "These have different tests, compensation thresholds and legal jurisprudence, which makes it difficult for employers to effectively comply with multiple and overlapping sets of laws,” Mammone added.

Another business leader warned the changes mean that business will be saddled with the legal costs of defending actions, even in cases when the claims were completely unjustified. “Some cases will be unfairly difficult to prove the reverse onus of proof and this adds a whole level of complexity and red tape," Australian Institute of Company Directors' CEO, John Colvin, said.

Yet not all leaders were scathing of the changes. ACCI's chief executive Peter Anderson said while there were "unresolved issues from a business perspective", the government's intention was sound given the multiplicity of discrimination laws affecting the private sector.

Roxon said it will be easier for business groups to navigate the laws, because instead of having to comply with five different laws at the Commonwealth level, there will be only one.


  • by Wayne Harbor 23/11/2012 11:44:11 AM

    I too am concerned about this development. What safe guard will be place for vexatious claims? As the old saying goes: "throw enough mud and some will stick."

    This has similar ideology as adverse action under Fair Work Act.

  • by Sebastian Harvey 23/11/2012 1:09:55 PM

    Reverse burden of proof is certainly problematic where the burden of proof is 'beyond reasonable doubt' (as for criminal law). However, the burden of proof for discrimination law is 'balance of probabilities'. In cases of discrimination a court has to establish 'is it more likely than not that discrimination has occurred'. In this context, reverse burden of proof is quite appropriate, especially when the prosecution has already had to estalish their bona fides in order to get it to court in the first place. In practical terms it should not change, in any significant way, the defence that an employer would have to mount against a complaint of discrimination under the current process. Also, given the complainant has to establish a prima facie case before it goes to court, the chances of vexatious complaints is actually reduced.

    We hope that people like George Brandis would understand these matters. If so, he is playing on the ignorance of the majority to gain political points. I would hope discrimination issues warrant a bipartisan approach.

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