Consolidation of anti-discrimination laws progressing

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Consolidation of anti-discrimination laws progressing

The Federal Government has announced that the consolidation of Australia’s discrimination laws is progressing to a ‘critical stage’ with the release yesterday of exposure draft legislation. In related news, the expanded Workplace Gender Equality legislation passed through Parliament today.

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The Federal Government has announced that the consolidation of Australia’s discrimination laws is progressing to a ‘critical stage’ with the release yesterday of exposure draft legislation for ‘better protections’ under a ‘clearer, simpler and stronger’ regime for business, organisations and individuals. In related news, the expanded Workplace Gender Equality legislation passed through Parliament today.
 

Human Rights and Anti-Discrimination Bill
 
In releasing the exposure draft of the Human Rights and Anti-Discrimination Bill 2012, Attorney-General Nicola Roxon and Minister for Finance and Deregulation Penny Wong explained that Australia’s anti-discrimination laws currently span five different Acts, with different standards, definitions and rules making the system unnecessarily complex and difficult to navigate.

Roxon said that making protections and obligations clearer for individuals and organisations will help people understand what behaviour is expected and will provide certainty for all users of the system. She also said there will be no reduction in existing protections and the highest current standards will be consistently applied and enforced across the full range of discriminatory practices.

‘It’s ridiculous that at the moment an African woman for example, who has been discriminated against needs to separately make complaints of sex and race discrimination — now she can make a single complaint recognising the discrimination was because she was both a woman and African,’ the Attorney-General said.

‘It will be easier for individuals to seek redress when they’ve been discriminated against but simpler provisions enabling a single “justification” defence for such behaviour and the ability of the Commission to dismiss unmeritorious complaints will give business and service providers certainty as well.’

‘This project also fulfils our election commitment to introduce sexual orientation and gender identity as protected grounds of discrimination, heralding a significant and overdue reform in this area.’

Individuals and businesses will benefit
 
Minister Wong said the consolidated legislation will make it easier for individuals to seek redress when they’ve been discriminated against, and will provide the Commission with the ability to dismiss unmeritorious complaints, providing business with certainty.

‘Consolidating anti-discrimination laws will make compliance easier, reduce costs and shift the focus from redressing wrongs to preventing discrimination from occurring in the first place — this is particularly good news for small business,’ she said.

‘Business will also benefit from the ability of the Australian Human Rights Commission to certify codes or standards that will act as a full defence to claims of discrimination.’

‘The complaints process will be streamlined with the adoption of a cost free jurisdiction and shifting burden of proof where the respondent is required to justify the conduct once the complainant has established a prima facie case.’

Minister Wong explained religious exemptions will continue as under the current scheme, except in relation to aged care; whereby, Commonwealth funded aged-care providers will no longer be permitted to discriminate on the grounds of sexual orientation and gender identity.

‘This change is consistent with the introduction of protection against sexual orientation and gender identity discrimination and in recognition that aged-care services become a person’s home,’ she said.

Key changes
 
According to the Federal Government, the key changes under the draft legislation:
  • lift differing levels of protections to highest current standard to resolve gaps and inconsistencies
  • provide a single, simple definition of discrimination as ‘unfavourable treatment’ and a simple ‘defence’ of justification, meaning discrimination is lawful when done for legitimate aim and proportionate to aim
  • replace many existing exceptions with single concept of ‘justification’, meaning discrimination is not unlawful when it is done for a legitimate aim and proportionate to that aim
  • provide new protected grounds of sexual orientation and gender identity
  • assist business to better understand their obligations, reduce unnecessary complaint and compliance costs and shift the focus from redressing wrongs to preventing discrimination. (This includes allowing certification of a Code or standard by the AHRC that provides a defence to a claim of discrimination — if the Code is complied with.)
  • streamlines the complaints process and other functions of the Commission, such as shifting the burden of proof to the respondent to justify the conduct, once the complainant has established a prima facie case and making this a cost-free jurisdiction.
The release of the exposure draft legislation follows a public consultation process that commenced in 2011, and will now be the subject of an inquiry conducted by the Senate Legal and Constitutional Affairs Committee, allowing community feedback prior to legislation being introduced into the Parliament.
 


Workplace Gender Equality Act
 
The Equal Opportunity for Women in the Workplace Amendment Bill passed through Parliament today. The Bill changes equal employment opportunity reporting requirements for some employers and will also introduce new gender equality indicators and minimum standards.
The Australian Human Rights Commission and the Sex Discrimination Commissioner, Elizabeth Broderick, welcomed the passing, saying it is a strong step towards both improving women’s workforce participation and closing the gender gap in Australia’s workforce.
 
‘This is an important piece of legislation that will provide a solid foundation for improving gender equality in employment and in the workplace,’ Commissioner Broderick said.
 
‘It applies to both men and women in the workplace.’
 
To reflect its expanded scope, the Equal Opportunity for Women in the Workplace Act 1999 has been renamed the Workplace Gender Equality Act 2012.
 
Commissioner Broderick said the principal objectives of the Act have been amended to promote and improve workplace gender equality, with specific recognition that equal remuneration and family and caring responsibilities are central to improving the workforce participation of women.
 
‘Recognition in the Act of equal remuneration strengthens capacity for closing the gender pay gap,’ said Commissioner Broderick.

‘Enabling greater participation of women in the workforce will also make a significant contribution to strengthening Australia’s productivity.’
 
Commissioner Broderick said there were other important elements that significantly improved the legislation, including:
  • ‘… the development of gender equality indicators and related industry-based benchmarks;
  • a new reporting framework requiring relevant employers to report against gender equality indicators;
  • improvements to the transparency associated with compliance and the consequences of non-compliance; and
  • an extension of the agency’s advice and education function to all employers.’

 

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