KEY PROVISIONS OF THE BILL
The Draft Bill comprises seven chapters as follows:
- Chapter 1 – Introduction;
- Chapter 2 – Unlawful conduct and equality before the law;
- Chapter 3 – Measures to assist compliance;
Chapter 4 – Complaints;
- Chapter 5 – Inquiries;
- Chapter 6 – Australian Human Rights Commission; and
- Chapter 7 – Miscellaneous.
The evidence received by the committee focussed on Chapters 2, 3, 4
and 6 of the Draft Bill; for that reason, this chapter of the report will
briefly describe the key provisions in those Chapters only.
Chapter 2 – Unlawful conduct and equality before the law
Chapter 2 of the Draft Bill deals with unlawful conduct and equality
before the law. It contains proposed provisions in relation to:
'protected attributes', including the new attributes of gender
identity and sexual orientation (clause 17);
- unlawful discrimination (clauses 18 to 47);
- other kinds of unlawful conduct, including sexual harassment, racial
vilification and victimisation (clauses 48 to 54);
- extensions of liability for unlawful conduct (clauses 55 to 58);
- equality before the law (clauses 59 and 60).
Clause 17 lists the protected attributes to be covered under the Draft
Bill. Ten of these attributes are currently covered by the existing
Commonwealth anti‑discrimination Acts, six are attributes currently
covered under the 'equal opportunity in employment' (EOE) complaints scheme in
the AHRC Act, and two are entirely new protected attributes.
Attributes covered under existing
Commonwealth anti-discrimination laws
The ten attributes currently covered by the existing four Commonwealth
anti‑discrimination Acts are: age; breastfeeding; disability; family
responsibilities; immigration status; marital status; potential pregnancy;
pregnancy; race; and sex. The attribute of 'marital status', currently found in
the Sex Discrimination Act, has been expanded in the Draft Bill to cover
'marital or relationship status'.
'Equal opportunity in employment'
complaints scheme attributes
Under the EOE scheme in Division 4 of Part II of the AHRC Act, the AHRC
is able to conciliate complaints of discrimination in work-related areas on the
basis of protected attributes, including:
- medical record (incorporated in the Draft Bill as 'medical
- nationality (incorporated in the Draft Bill as 'nationality or
- trade union activity (incorporated in the Draft Bill as
- political opinion;
social origin; and
- criminal record.
Discrimination on the basis of these attributes under the EOE complaints
scheme is not declared unlawful, and complaints are not able to proceed to the
Federal Court of Australia (Federal Court) or the Federal Magistrates Court.
The Draft Bill introduces six of these attributes to the list of
protected attributes in clause 17,
meaning that discrimination on the basis of these attributes will be unlawful
for the first time in Commonwealth legislation.
The Department has argued that the separate EOE complaints scheme has
created confusion and led to significant regulatory overlap.
According to the Explanatory Notes, including the EOE complaints scheme
attributes (with the exception of 'criminal record') as protected attributes in
clause 17 of the Draft Bill will provide clear legal remedies and will allow
individuals to take binding action if they consider they have been
The six attributes from the EOE complaints scheme will be covered under
the Draft Bill only in relation to work-related discrimination, and will not be
covered in other areas of public life.
New protected attributes
The two new attributes introduced in the Draft Bill, 'sexual
orientation' and 'gender identity', are defined in clause 6. 'Sexual
orientation' is defined as a person's sexual orientation towards persons of the
same sex, the opposite sex or either sex. 'Gender identity' is defined as
gender identity means:
identification, on a genuine basis, by a person of one sex as a member of the
other sex (whether or not the person is recognised as such):
(i) by assuming characteristics of
the other sex, whether by means of medical intervention, style of dressing or
(ii) by living, or seeking to
live, as a member of the other sex; or
identification, on a genuine basis, by a person of indeterminate sex as a
member of a particular sex (whether or not the person is recognised as such):
(i) by assuming characteristics of
that sex, whether by means of medical intervention, style of dressing or
(ii) by living, or seeking to
live, as a member of that sex.
Definition of unlawful
Clause 19 sets out the key definition of 'discrimination' for the
purposes of the Draft Bill:
Discrimination by unfavourable treatment
(1) A person (the first person) discriminates against another
person if the first person treats, or proposes to treat, the other person unfavourably
because the other person has a particular protected attribute, or a particular
combination of 2 or more protected attributes.
Note: This subsection has effect subject to section 21 [which
exempts special measures to achieve equality].
(2) To avoid doubt, unfavourable treatment of the other
person includes (but is not limited to) the following:
(a) harassing the other person;
(b) other conduct that offends,
insults or intimidates the other person.
Discrimination by imposition of policies
(3) A person (the first person) discriminates against another
(a) the first person imposes, or
proposes to impose, a policy; and
(b) the policy has, or is likely
to have, the effect of disadvantaging people who have a particular protected
attribute, or a particular combination of 2 or more protected attributes; and
(c) the other person has that
attribute or combination of attributes.
Note: This subsection has effect
subject to section 21.
The Explanatory Notes state that the proposed new definition of
'discrimination' is not intended to change the underlying policy in existing Commonwealth
[T]he existing definitions of discrimination are
inconsistent, difficult to understand and apply, and have been widely
criticised. The Bill introduces a simplified and streamlined definition of
discrimination to make it as easy as possible for duty holders to understand
what is required to comply with the Bill.
Areas of public life covered
Discrimination will be unlawful if it occurs in connection with any
'area of public life' (as defined in subclause 22(2)), as well as in relation
to a number of attributes in the area of work only (subclause 22(3)).
According to the Explanatory Notes:
The Bill will simplify the approach to specifying when
discrimination is unlawful by prohibiting any discrimination that is connected
with any area of public life. This will lead to some expansion of the coverage
anti-discrimination protections. However, there are expected to be relatively
few areas of public life that are not already covered, primarily areas such as
small partnerships and volunteer work. To balance any unintended consequences
for the broader coverage, the Bill includes a general exception for any conduct
that is justified.
Exceptions to unlawful
A wide range of streamlined exceptions are set out in Division 4 of
Part 2-2 of Chapter 2, including:
- a new general exception for 'justifiable conduct' (clause 23);
- an exception for the inherent requirements of particular work (clause
- the preservation of exceptions related to religion (clauses 32
Exceptions for religious
The exceptions for religious organisations relate to:
the appointment of priests, ministers or members of religious
orders (clause 32);
- conduct engaged in in good faith by religious bodies and
educational institutions, that: conforms to the doctrines, tenets or beliefs of
a religion; or is necessary to avoid injury to the religious sensitivities of
adherents of that religion (clause 33).
The Explanatory Notes state that 'given the importance of freedom of
religion, it is important to maintain explicit religious exemptions,
particularly for matters fundamental to the practice of the religion'.
Further, the exception provided in clause 32 is a narrow exception, while
the exception for religious bodies and educational institutions in clause 33
relates to a broader range of conduct, with the only limitation being in
respect of Commonwealth-funded aged care.
The exceptions in clauses 32 and 33 apply in relation to different
protected attributes. The exceptions in clause 32 apply to the new attributes
of sexual orientation, gender identity and religion, in addition to the
attributes previously covered by the Age Discrimination Act and the Sex
Discrimination Act (that is, age, breastfeeding, family responsibilities,
marital or relationship status, pregnancy or potential pregnancy, and sex).
The exception in clause 33, however, which relates to religious bodies
and religious educational institutions applies to a more limited range of
attributes, namely: gender identity; marital or relationship status; potential
pregnancy; pregnancy; religion; and sexual orientation.
Review of exceptions
Clause 47 requires all the exceptions in the Draft Bill to be reviewed
by the Minister, with the review to begin within three years of commencement of
the legislation. The Explanatory Notes state that this review is to be
conducted 'to enable consideration of whether these exceptions are necessary,
taking into account the operation of the new justifiable conduct exception'.
Chapter 3 – Measures to assist compliance
Chapter 3 of the Draft Bill deals with measures to assist people to
comply with the consolidated laws, including proposed provisions in relation
- guidelines which the AHRC may make to assist people to avoid
engaging in conduct which is unlawful or is contrary to human rights (clauses
62 and 63);
review of a person's or body's policies or programs by the AHRC,
on application, to determine whether they constitute, or may give rise to,
unlawful conduct, or conduct engaged in by the Commonwealth that is contrary to
human rights (clauses 64 to 66);
- voluntary development and implementation of action plans by
persons or bodies, to assist them and their employees to avoid engaging in unlawful
conduct (clauses 67 to 69);
- binding disability standards which the Minister may make (clauses
70 to 74);
- compliance codes which the AHRC may make in order to provide
additional certainty for specific industries in relation to their obligations
(clauses 75 to 78);
special measure determinations which the AHRC may make (clauses
79 to 82); and
- temporary exemptions which the AHRC may grant (clauses 83 to 86).
Chapter 4 – Complaints
Chapter 4 deals with complaints to the AHRC, and contains proposed provisions
which deal with:
- making complaints about unlawful conduct, or Commonwealth conduct
that is contrary to human rights (clauses 87 to 99);
- how the AHRC deals with complaints, including the circumstances
in which a complaint can be closed (clauses 100 to 117); and
- when an application may be made to the Federal Court or the
Federal Magistrates Court in relation to unlawful conduct (clauses 118 to 133).
The Explanatory Notes state that the Draft Bill will enable improvements
to be made to the complaints process, with the aim of enhancing access to
These aims will be achieved through streamlining the complaints process in
Clause 117 provides a streamlined process for the closing of complaints.
It sets out the circumstances in which the AHRC is able to close a
complaint and the AHRC's obligations to provide written notice in such
Clause 117 is generally consistent with the current complaints policy
and, in those instances where a complaint is closed pursuant to subclause 117(2),
an application that the conduct was discriminatory can be made to the Federal
Court or the Federal Magistrates Court. It is important to note, however, that
an application can only be made to the Federal Court or the Federal Magistrates
Court if the court has granted leave to the applicant where a complaint was
closed by the AHRC in the following circumstances:
- where the AHRC is satisfied that the conduct is not unlawful or
is not conduct by the Commonwealth that is contrary to human rights;
- the complaint was made more than 12 months after the alleged
- the AHRC is satisfied that the complaint is frivolous, vexatious,
misconceived or lacking in substance;
- if some other more appropriate remedy has been sought in relation
to the subject matter of the complaint and the AHRC is satisfied the subject
matter of the complaint has been adequately dealt with;
- the AHRC is satisfied that some other more appropriate remedy is
The Explanatory Notes explain:
The rationale for limiting access to the courts is to provide
the [AHRC] with an increased ability to dismiss clearly unmeritorious
complaints and to focus resources on meritorious complaints; this in turn should
limit the number of unmeritorious complaints being brought before the courts. With
the early dismissal of unmeritorious complaints comes the potential
deregulatory benefit of only involving respondents in the matter when there is
an arguable matter to be dealt with.
Burden of proof
Clause 124 provides for a shifting burden of proof in relation to the
reason for, or purpose of, the alleged unlawful conduct.
Under existing Commonwealth anti-discrimination legislation, the burden
of proof for claims of direct discrimination falls on the applicant – that is,
it is the applicant who is required to prove that the respondent treated them
In contrast, the burden of proof for claims of indirect discrimination requires
that the applicant establish the discriminatory impact of a condition,
requirement or practice and, once this is established, it is then for the
respondent to prove that the condition, requirement or practice was reasonable.
The proposed shifting of the burden of proof applies after the core
elements of unlawful conduct have been established by the applicant – it will
only be after the applicant has established a prima facie case that unlawful
discrimination has occurred that the burden will shift to the respondent. The
respondent will then be required to explain the reasons for the treatment or
justify their conduct.
The Explanatory Notes state that an applicant will still be required to
prove the core elements of each form of alleged unlawful conduct:
In practice, this will require the applicant to first
establish a prima facie case that the unlawful discrimination occurred before
the burden shifts to the respondent to demonstrate a non-discriminatory reason
for the action, that the conduct is justifiable or that another exception
applies. The applicant will not be required to disprove the application of
defences and exceptions. The policy rationale behind this is that the respondent
is in the best position to know the reason for the discriminatory action and to
have access to the relevant evidence.
The Department illustrated the proposed changes as follows:
Which party has
the burden of proof?
Elements of discrimination
Current position in
Proposed position in
Area of public
facie case, then
Clause 133 is a costs provision, whereby each party will be required to
bear their own costs in relation to complaints proceedings, subject to the
court's discretion to award costs, or security for costs, in justifiable
circumstances. The effect of clause 133 is that costs will not follow the
event, as is the case currently.
Chapter 6 – Australian Human Rights Commission
Chapter 6 sets out proposed provisions relating to the AHRC, including
providing for its continuation following the repeal of the AHRC Act (clause
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