ANTI-DISCRIMINATION LAW REFORM: WHAT DOES THIS MEAN FOR COUNCILS?
The Federal Government has taken a step towards harmonising and consolidating federal antidiscrimination law in Australia. The Exposure Draft of the Human Rights and Anti-Discrimination Bill
2012 (Bill) unifies five existing statutes, which cover age, disability, race, sex and other forms of
discrimination, into a single piece of legislation. The main proposed changes of which Councils should
be aware are set out below:

the removal of references to 'direct' and 'indirect' discrimination;

the reversal of the onus of proof for direct discrimination;

the expansion of protected attributes (although many of the attributes now covered in the Bill
were and are already protected attributes in Victoria under the Equal Opportunity Act 2010
(Vic)); and

the revision of defences to discrimination.
There are other proposed changes that may affect Councils, as discussed below.
Discrimination
The Bill does not preserve the terms 'direct and 'indirect' discrimination currently used in state and
federal anti-discrimination legislation.
Instead, the Bill establishes two key forms of discrimination:

'Unfavourable treatment': Circumstances where a person treats or proposes to treat another
person unfavourably (i.e. to their detriment) because the other person has a protected
attribute or attributes. 'Unfavourable treatment' includes conduct that harasses, offends,
insults or intimidates another person.

'Imposition of Policies': Circumstances where a person imposes or proposes to impose a
policy that is likely to have the effect, or does have the effect, of disadvantaging a person with
a protected attribute or attributes. Policies here are defined to include a condition, requirement
or practice.
If the Bill is passed, Councils will need to update their workplace policies to provide for the recasting of
the definition of discrimination, at least for the purposes of compliance with Federal law.
Reversal of the onus of proof
Councils will need to be able to demonstrate that there is a non-discriminatory reason for taking action
against an employee, and to ensure its reasons are supported by evidence capable of being
admissible in court, as the Bill provides for a shift in the burden of proof once an applicant has
established a prima facie case.
The rationale behind this shift is, according to the Federal Government, to recognise that an employer
is best placed to know the reason for an action and to have access to relevant evidence.
What this means is that an employee will bear the burden of establishing the primary elements of
discrimination (for example, to demonstrate the presence of a protected attribute or attributes and to
demonstrate that they have been subject to unfavourable treatment or a policy which disadvantages
people with their attribute).
Once the employee has discharged this burden, the reason for the conduct will be presumed unless
proven otherwise by the employer. Councils will therefore have to demonstrate:

the reason for the action was not discriminatory; or

that the conduct was justifiable; or

that another defence applies.
If the Bill is passed, Councils will need to ensure they are diligent and carefully consider and record
the reasons for making any decision that could result in alleged discriminatory action.
Protected Attributes
Although many of the protected attributes introduced by the Bill already form protected attributes
under Equal Opportunity Act 2010 (Vic), Councils should be mindful that protections against 'marital
status' will be extended to encompass 'marital or relationship status', in order to include same-sex
couples.
The Bill provides for a number of proposed protected attributes in circumstances of employment, with
the intention of aligning the protections in the Fair Work Act 2009 (Cth), and other state antidiscrimination laws. These attributes include discrimination on the basis of industrial history, medical
history, nationality, citizenship and immigrant status.
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Defences
Importantly, Councils should be aware of the defences available to them under the Bill if passed.
The broad defence of 'justifiable conduct' is proposed, defined as conduct undertaken in good faith
and for a legitimate aim, in a manner proportionate to that aim. The drafting of this defence aims to
achieve a balance with the broad definition of 'discrimination'.
The Bill retains the long-standing and well-understood exception, contained in the federal sex, age
and disability discrimination legislation that discrimination against a person during the course of their
employment is not unlawful if the person cannot meet the 'inherent requirements' of a job.
An additional amendment to the Bill is that it will be a defence to conduct that is otherwise
discriminatory if a Council receives certification by the Australian Human Rights Commission
(Commission) of compliance codes, including codes developed by industry. What this means is that
industries will be able to apply to the Commission and request that it issue a particular 'Compliance
Code' relevant to that industry. If a Council can show that they were following a Compliance Code
relevant to their industry, this will be a defence to a discrimination claim under the Bill.
A further defence will arise where the Council seeks certification by the Commission that proposed
conduct is a special measure to achieve equality. Disability standards will also be issued under the Bill
setting out standards that Councils will need to comply with in respect of employees with certain
disabilities. Compliance with the disability standards will also be a defence to a discrimination claim.
Councils will bear the burden of establishing defences (that is, by demonstrating that conduct is
justifiable, is a special measure to achieve equality, or that a compliance code or a disability standard
applies or the conduct is covered by another exception or exemption).
Other provisions

The Commission will have the ability to issue temporary exemptions;

The Commission will be able to review a Council’s practices for compliance with the Bill if
voluntarily requested by the Council (but not otherwise);

The Commission's power will be broadened to include the power to dismiss clearly
unmeritorious complaints;

Parties will be required to bear their own costs in proceedings before the Federal Magistrates
Court or the Federal Court, although a court may make an award of costs, taking into account,
for example, the financial circumstances of the parties; and
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
Unions will be able to bring discrimination complaints on behalf of employees.
Implications for Councils
It is important to note that at this stage, the Bill is still in draft form, and consists of proposals only.
Councils should be mindful of these potential changes to federal anti-discrimination law and monitor
the progression of the Bill as it develops and is the subject of further submission and review.
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