ANTIDISCRIMINATION UPDATE – NOVEMBER 2012
Following the discussion paper released in September 2011, the Commonwealth Government today released the exposure draft of the Human Rights and Antidiscrimination Bill 2012.
Changes to the current law
The structure of the Bill is significantly different from the current legislation. The most significant changes are in the definition of discrimination and the exemption regime.
In addition, the Bill adds sexual orientation and gender identity to the existing protected attributes such as age and race, and removes the religious exemption for federally funded aged care organisations in relation to sexual orientation and gender identity.
Under s 19 of the draft Bill, discrimination is now defined as ‘unfavourable treatment’ because of a ‘protected attribute’. The test no longer involves a comparison with how a person without the protected attribute would have been treated, thus removing the meaning of the word ‘discrimination’. ‘Unfavourable treatment’ includes harassment and conduct which offends, insults or intimidates a person.
In addition, the exemption regime has been modified to include an overarching justification of acts done in good faith in the pursuit of a ‘legitimate aim’ that a reasonable person would consider to advance that ‘legitimate aim’.
It must be noted that ‘legitimate aim’ is not given a clear definition, and the manner of drafting provides a broad scope for judicial interpretation of the reasonableness of an individual’s conduct.
How this may affect you
Currently, the Bill is still in exposure draft stage, and has not been introduced into Parliament. There may be significant amendments made during the Committee and parliamentary consideration stages.
Organisations should keep up to date with developments in this legislation. You will need to review your policies in this area and ensure that they are adequate for the new provisions.
There are a number of features in the Bill which will be difficult to apply correctly until it passes into law and is interpreted by the courts.
In preparing for a possible introduction of new requirements, organisations should be mindful of the possibility that their interpretation may not be correct, and plan risk assessments accordingly.
The Legal and Constitutional Affairs Senate Committee will be taking submissions from stakeholders in the near future. Details will be published at:
Disclaimer: This update provides an overview only of the exposure draft, and is not all inclusive. It should not be considered to be legal advice. You should obtain legal advice for your specific circumstances before relying on general information.