On 20 November 2012, the Attorney-General Nicola Roxon and Minister for Finance and Deregulation Penny Wong released exposure draft legislation to consolidate the five current anti-discrimination acts into a single act. The consolidation project was established as a Better Regulation Ministerial Partnership between the Attorney-General and the Minister for Finance and Deregulation. The main changes will be:
- adoption of the highest current standard of protection where protections in each act differ;
- clearer and more efficient operation of anti-discrimination law;
- introduction of new grounds for discrimination based on gender identity and sexual orientation;
- measures to assist businesses in understanding their obligations; and
- a reformed complaints process.
Current arrangements are inefficient, with coverage varying across both Commonwealth and State and Territory legislation, resulting in uncertainty for businesses and individuals as to their rights and responsibilities. These changes, while still leaving an overlap with State and Territory regimes and the Fair Work Act, will significantly reduce the current overlap problem. The inclusion of sexual orientation and gender identity as new grounds for discrimination will increase coverage at the Commonwealth level. Protection will also be provided against discrimination in work, based on religion, political opinion, industrial activity, social origin, nationality and medical record. The new changes will also ensure that no provider of aged care services with Commonwealth funding can discriminate. The reformed complaints process will also shift the burden of proving facts from the individual making the complaint of discrimination to the respondent, once sufficient facts have been established pointing to unlawful discrimination having occurred (prima facie). This could increase the number of complaints within the anti-discrimination regime. However, the burden of proof will only apply if a complaint is taken to court and the Australian Human Rights Commission has the ability to dismiss unmeritorious complaints at an early stage and prevent them going to court. There will be costs to businesses to comply with the new obligations which would include updating policies and training staff. Ongoing direct costs will be relatively low because of existing State and Territory requirements, with the exception of changes to business administrative practices arising from the burden of proof reform. Benefits will arise from simplification of obligations, additional protections and an assistance package for business. A Regulation Impact Statement was prepared by the Attorney-General’s Department and assessed as adequate by the Office of Best Practice Regulation.
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