McCullough Robertson laywer, Peta Shanahan
By AAA’s guest authors and legal experts, Peta Shanahan and Tim Longwill
Last week, the federal government released an exposure draft of the proposed Human Rights and Anti-Discrimination Bill 2012.
The Commonwealth has acknowledged that the proposed consolidation of anti-discrimination laws into one Commonwealth piece of legislation will attract compliance costs of up to $25,000 for businesses, even before the cost of responding to claims is considered (see the federal government’s Regulation Impact Statement).
Employers and other stakeholders are now trying to come to grips with the nature of the proposed changes and what they mean in practical terms.
The most obvious significant change in the proposed bill is the effective reversal of the onus of proof in unlawful discrimination cases. That is, the strength of a claimant’s evidence in a discrimination claim will not form part of the court’s assessment.
The court will presume that the impugned conduct is taken for an unlawful reason if any evidence can be adduced by the claimant, regardless of its strength, unless the defendant is able to prove the contrary.
The rationale behind this change is that a respondent will almost always be in a better position to be able to prove the true reason why a certain course of action was taken.
However, the government acknowledges that this reversal of the onus could increase the number of complaints and that organisations may face significantly increased costs as a result.
The new regime may provide some relief for organisations by way of the proposed compliance codes, which are to be developed by the Australian Human Rights Commission.
The bill provides that conduct that is in accordance with the published compliance codes will not be unlawful.
Organisations may also develop, and provide to the commission, action plans to assist them and their employees, officers, members or agents in complying with the new provisions.
These action plans may assist compliance but will not provide a defence to any unlawful conduct (even if it is consistent with the action plan).
Another significant change is an amendment to the test for when discrimination occurs. Instead of the current distinction between ‘direct’ and ‘indirect’ discrimination, it is proposed to introduce a new test, which refers to both ‘unfavourable treatment’ and ‘disadvantageous effects’ as discrimination.
A large number of the current exceptions and defences are also proposed to be streamlined or eliminated.
In the short-term, this is likely to result in some uncertainty as to the extent of the prohibition on discriminatory conduct, however this uncertainty will resolve itself over time as the courts consider and decide individual cases.
In addition, the concepts are largely similar to some state-based legislation and organisations may therefore turn to cases decided under these similar provisions to divine some guidance as to the application of the changes.
Some aged care providers will also be affected by a new limitation imposed on religious organisations in the provision of aged care services.
Previously, the relevant provisions entitled religious providers of services to discriminate against individuals if the discrimination was necessary to avoid injury to the ‘religious sensibilities’ of its adherents.
This exception continues to apply, but is now limited to prevent discrimination against individuals – on the basis of their gender identity, relationship status, pregnancy, religion or sexual orientation – by an organisation which provides Commonwealth-funded aged care services.
It is likely that, at least in the short-term, these changes will lead to a significant increase in claims of discrimination in the federal courts and tribunals.
However this may coincide with an equivalent decrease in claims under the various state acts, particularly as the legislation does not allow concurrent claims in both jurisdictions.
In fact, a move towards greater centralisation of power in the federal government may be one of the underlying policy reasons for the changes now foreshadowed and may signal the beginning of a slide away from continuing state intervention in these matters.
Peta Shanahan and Tim Longwill are both lawyers from the legal firm, McCullough Robertson.