The Federal Government recently released an exposure draft of the Human Rights & Anti-Discrimination Bill which harmonises existing Commonwealth anti-discrimination legislation into one statute. Current Commonwealth discrimination legislation includes the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992, Age Discrimination Act 2004, and the Australian Human Rights Commission Act 1986.
Key changes to be made by the Bill include:
- A reversal of the onus of proof for direct discrimination. Once an employee has established a prima facie case, employers will have to prove the reason for the action was not prohibited.
- The Australian Human Rights Commission publishing guidelines to assist employers to comply with the Act.
- Employers developing action plans to assist them in complying with their obligations under the Act.
- Requiring parties to legal proceedings to bear their own legal costs, with Courts having a discretion to award costs in the interests of justice.
- Introducing discrimination on the basis of sexual orientation and gender identity for the first time in the Commonwealth sphere.
- Introducing a ground of discrimination on the basis of medical history.
- Unfavourable conduct (on the basis of protected attribute) will be defined to include harassing another person.
- Streamlining exemptions, including a broad new exemption for "justifiable conduct" which is done in good faith for the purposes of achieving a "legitimate" aim.
The reversal of the onus of proof for direct discrimination is similar to the onus of proof provisions for adverse action claims under the Fair Work Act. A rationale for the change is that employers are best placed to know the reason for an action and have access to the relevant evidence, which an employee does not. However, some commentators have suggested that this change could result in the Commonwealth taking over the State discrimination laws by stealth, as complainants may "forum shop" and select the Commonwealth jurisdiction because of the evidentiary advantage offered by it.
The Government has asked the Senate Legal & Constitutional Affairs Committee to enquire into the Bill, which will include further public consultation.
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