The Federal Government of Australia has released a draft Human Rights and Anti-Discrimination Bill which will consolidate anti-discrimination law at the Federal level.
Under the new bill:
• Workers will be protected under federal law from discrimination based on gender identity, sexual orientation and same sex relationships.
• It will also be unlawful to discriminate because of a workers union status or activities relating to lawful industrial dispute, medical history, nationality or citizenship, political opinion, religion or social origin.
• The definition of discrimination will be broadened to include harassment or other conduct that offends, insults or intimidates a worker.
• The definition of discrimination will also be broadened from "unfavourable" treatment to "less favourable" treatment (i.e. no requirement for comparison to another individual).
• It will be unlawful for employers to require or request information with the intent to engage in unlawful discrimination or deciding whether to engage in such conduct.
• Duty holders may be held personally liable where they cause, instruct or aid another person to engage in unlawful conduct. Importantly for employers, an employer may be held liable for the unlawful conduct of its directors, employees and agents unless it has taken reasonable precautions and exercised due diligence to avoid the conduct.
• Employers will be exempt from discrimination if the conduct is taken in good faith for the purpose of achieving a particular aim unless it relates to a disability that the employer could of made a reasonable adjustment for to lessen the discriminatory effect. In addition, a common exception can be applied based on the inherent requirements of the job.
• Industries will be able to apply to the Australian Human Rights Commission (AHRC) to request a Compliance Code, which can be used as a defence to a discrimination claim.
• Employers may submit its policies and programs to the AHRC for review for a fee and the outcome of the review can be taken into account as part of any proceedings.
• Unions will be able to lodge discrimination complaints on behalf of employees.
• The AHRC will be able to terminate a discrimination complaint if they find the complaint has no merit.
• Once a worker establishes a case that an employer treated them less favourably because of a protected attribute, the burden on proving that discrimination did not occur will be shifted to the employer (known as 'reverse onus of proof').
• Parties are to bear their own costs in proceedings before a Federal court and the court may award these costs to a particular party.
• Employers will also be required to satisfy local State and Territory anti-discrimination legislation.
The Bill has been referred to the Senate Legal and Constitutional Affairs Committee to report to the Senate by 18 February 2013.