With the harmonisation of Commonwealth anti-discrimination laws finally drawing to a close, Joydeep Hor and Margaret Chan outline what's in store for employers.
Moves towards harmonisation of Commonwealth anti-discrimination laws began close to three years ago, with the 2009 launch of the National Anti-Discrimination Law Information Gateway by the Standing Committee of Attorney-Generals. The latest development in this process occurred on 20 November 2012, when the exposure draft of the Human Rights and Anti-Discrimination Bill 2012 (Cth) (“the Bill”) was finally released.
Key changes under the Bill
One major change is, of course, the harmonisation and amalgamation of the five statutes which currently regulate this sphere into one piece of legislation. For employers, this change will have the benefit of simplifying the myriad of statutes that they are currently expected to comply with, namely:
the Age Discrimination Act 2004 (Cth);
the Disability Discrimination Act 1992 (Cth);
the Racial Discrimination Act 1975 (Cth);
the Sex Discrimination Act 1984 (Cth); and
the Australian Human Rights Commission Act 1986 (Cth).
Another change is the streamlining of exceptions and exemptions, and the introduction of a general exemption for “justifiable” conduct (that is, conduct done in good faith for a legitimate aim, in a manner proportionate to that aim). The practical effects of this additional exemption on employers remain to be seen.
Changes to the complaint process
What is likely to be the most contentious change proposed by the Bill is the move to streamline the complaint process by:
shifting the burden of proof from the complainant to the respondent – similar to the onus borne by employers in general protections claims under the Fair Work Act; and
changing the default costs position, requiring each party to a court dispute to bear its own costs (although the court will still retain the discretion to award costs).
Under current anti-discrimination law, the burden of proof for direct discrimination complaints before a Court lies with the complainant. Under clause 124 of the Bill, the onus of proof will shift once the complainant has established a prima facie case. It will be the respondent who is required to establish a non-discriminatory reason for the action, to show that the conduct is justifiable or that another exception applies to them.
What is also notable is that the complainant will not be required to disprove the application of any defences or exceptions. The result is that in the absence of an adequate explanation by the respondent, if a complainant has provided facts from which the Court could conclude that discrimination has occurred, then that complaint must be upheld.
Implications for employers
Although change to the default costs position may encourage individuals who have genuinely been discriminated against to come forwards, with each party now bearing their own costs of litigation rather than the current practice of costs following the event, employers may be left out of pocket in terms of time and money if they are required to defend a discrimination claim in court.
The Federal Government has also acknowledged that employers are likely to incur additional costs associated with reviewing and updating their current workplace policies to ensure legal compliance, as well as costs of training employees on the changes.
Concerns have also been expressed that the reverse onus of proof combined with the change in the default costs position for litigants may see an increase in the number of out of court settlements and payment of “go away” money by employers to avoid the costs of litigation, since it is likely that they may no longer be able to recoup their costs even if they “win” the case.
With the Bill being referred to the Senate Committee on 21 November 2012, it is likely that consultation on the Bill will occur between now and early 2013. A report from the Senate Committee can likely be expected in mid-February 2013.
About the authors
Joydeep Hor is managing principlal of People + Culture Strategies. For further information phone 02 8094 3101 or email: firstname.lastname@example.org. Margaret Chan is a principal at People + Culture Strategies - phone 8094 3116 or email: email@example.com