Anti-discrimination law shake-up doesn’t cut burden on employers: Employer group

Business groups have warned that a discussion paper on consolidating the four pieces of legislation covering anti-discrimination into one does not reduce burdens on employers.

“Anti-discrimination law is overregulated and is becoming increasingly burdensome for employers,” the Australian Industry Group has told the Government in response to a discussion paper on the consolidation released late last year.

“A consolidation of the Commonwealth anti-discrimination laws, in the manner contemplated by the Discussion Paper, will not address this problem in any meaningful way and appears set to make the problem worse.”

The Government released a discussion paper on consolidating the anti-discrimination laws in September 2011, with submission due by February 1 this year. It plans to release draft legislation, informed by the submission, for the new laws early this year.

The concerns centre on plans for the laws to not overrule existing state and territory discrimination laws but rather sit alongside them, as well as concerns it will extend regulatory burdens or potential for litigation.

“For industry to retain confidence in the integrity of the anti-discrimination laws it is vital that consolidation of the federal anti-discrimination laws is not used opportunistically or inadvertently raise the risk of litigation or the regulatory burden,” Australian Chamber of Commerce and Industry chief executive Peter Anderson says.

At the moment, anti-discrimination law is covered by the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004. The Human Rights Commission was formed in the mid-80s.

The Government also intends to introduce new prohibitions on discrimination on the basis of sexual orientation and gender identity, and consider the recommendations of a Senate inquiry into the effectiveness of the Sex Discrimination Act.

The discussion paper notes criticism that businesses do not have sufficient certainty regarding their obligations under anti-discrimination laws or adequate support in meeting those obligations.

Seamus Burke, Middletons partner, says given there is some overlap between the federal and state laws, there shouldn’t be significant political opposition to the Federal Government’s push to consolidate them.

Burke says although the business bodies’ concern about reducing the red-tape burden for employers is a legitimate one, these laws are designed to regulate the 5% of employers who do the wrong thing, but must be followed by all.

AIG says it’s important any change:

• Doesn’t extend beyond existing acts covering age, disability, race and sex discrimination.
• Over-rules existing state and territory legislation to avoid further red tape on businesses.
• Does not result in the “levelling up” of obligations on duty holders in areas such as the definition of discrimination and the burden of proof.