Amendments to the Discrimination Act (commencing April 2024)
From 11 April 2024, recent amendments to the ACT Discrimination Act commence.
These include some important changes you need to be aware of if you are an employer, service provider, government agency or community organisation that provides services or employs people, or if you are covered by the provisions of the ACT Discrimination Act either as a community member or duty holder under the Act.
From 11 April 2024:
- A positive duty to make reasonable adjustments to accommodate a person’s particular need across all protected attributes under the legislation will apply
- A new provision making it unlawful for a public authority to discriminate against a person when administering a territory law or an ACT government program or policy (with some exceptions relating to the Legislative Assembly, courts, some decisions regarding education, and if the complaint relates to proceedings before a court regarding a care and protection matter)
- Introduces a new test for some exceptions based on whether the discrimination is reasonable, proportionate and justifiable in the circumstances
- New provisions covering organised sporting activities and competitions, introducing a new exception permitting discrimination in formally organised competitions on the ground of age
- Narrowed exceptions for competitive formally organised sporting activities to require that discrimination on the basis of sex and disability also be reasonable, proportionate and justifiable in the circumstances, and limits the exception on the basis of sex to apply only to individuals aged 12 years and older
- Updated definition of clubs to include both licensed and non-licensed clubs, and combines the exceptions for clubs and voluntary bodies
- Narrowed exception for insurance and superannuation services to only permit discrimination if it is based on statistical or actuarial data or other relevant documents, and it is reasonable to rely on the data, and the discrimination is reasonable, proportionate and justifiable in the circumstances
- Refines the exception for discrimination in employment on the basis of the inherent requirements of a position to apply to all protected attributes and only where a person, because of their protected attribute and despite any reasonable adjustments, is unable to carry out the inherent requirements of a position
- Refines the exceptions for religious bodies
You can find the Discrimination Amendment Act here: Discrimination Amendment Act 2023
You can find the Act Discrimination Act here: Discrimination Act 1991
Further amendments will commence in coming years which will:
- Introduce a positive duty for ACT public authorities to take reasonable and proportionate steps to eliminate discrimination, sexual harassment and vilification from April 2025
- Introduce a positive duty for organisations, businesses, and persons with organisational management responsibility to eliminate discrimination, sexual harassment and vilification from April 2026
- Allow the ACT Human Rights Commission and the ACT Civil and Administrative Tribunal to consider whether a duty holder has met their positive duty to eliminate discrimination, sexual harassment and unlawful vilification when considering a discrimination complaint.
What does ‘reasonable, proportionate and justifiable in the circumstances’ mean?
In some areas of life covered by the Discrimination Act, the legislation provides that there may be exceptions to discrimination prohibitions where the discrimination is reasonable, proportionate and justified. This test aligns with the Human Rights Act 2004 by acknowledging that sometimes rights will need to be limited and balanced against other public interests.
The test simplifies existing exceptions by assessing whether a discriminatory measure serves a legitimate aim or objective, is supported by evidence, is appropriately targeted to meeting the aim, and is consistent with the values of our free and democratic society.
- A measure is reasonable if it is objectively designed to meet a legitimate and important aim, based in logic and supported by evidence
- A measure is proportionate if it is necessary, suitable, appropriate and adapted to achieving the aim, and is the least restrictive way possible to achieve the aim
- The measure is justifiable if it is proportionate, applied in good faith, in line with the values of equality and human rights, meets community expectations and is lawful.
For example, a sports code can be divided into separate competitions based on sex, where the strength, stamina, and physique of competitors is relevant and where it is clear that separating men and women serves an aim, such as preventing unreasonable risk of injury. The test will require consideration of whether there is evidence that men and women competing together might raise risk of injury, and an assessment of other alternatives to enable safe and fair mixed competition.
A domestic violence crisis centre can discriminate in the selection of workers in a centre, by employing only women, if that is a genuine occupational qualification and the discrimination is reasonable, proportionate and justifiable. This might be because of an evidence base that most clients of the centre are women, and that lived experience as a woman enables employees to engage more successfully in supporting those clients.
What does a positive duty to make reasonable adjustments mean?
A person has a ‘particular need’ if due to their protected attribute, the person requires specific services, facilities, or other adjustments to facilitate their inclusion and participation in an area of public life. For example, reasonable adjustments to accommodate a person’s particular need because of their protected attribute may include:
- providing a student with a uniform that corresponds with their gender identity
- providing an Aboriginal and Torres Strait Islander employee with time off work for Sorry Business
- providing a student with a disability with access to materials through assistive technologies such as screen readers
- providing flexible working hours for employees with parental or caring responsibilities.
What does the duty to eliminate discrimination, sexual harassment and unlawful vilification include?
An organisation or business, and any individual with organisational management responsibility is required not to engage in discrimination, sexual harassment or unlawful vilification.
The organisation, business or individual must take reasonable and proportionate steps to eliminate discrimination, sexual harassment and unlawful vilification.
In determining whether steps are reasonable and proportionate, all the circumstances must be considered, including the following:
(a) the nature and size of the organisation or business;
(b) the resources of the organisation, business or individual;
(c) the business or operational priorities of the organisation, business or individual;
(d) practicability and cost of the steps.
These measures allow for the duty to be scaled depending on the size, resources and priorities of the entity and practicability of the proposed steps. It is intended that larger organisations would have a greater duty and be expected to undertake more extensive actions than smaller organisations.
The steps taken by a duty holder could include:
- assessing current practices to identify areas of non-compliance
- reviewing policies and procedures to ensure processes are compliant with obligations under the Discrimination Act
- preparing and implementing an action plan to address a particular concern
- conducting targeted training on a particular topic.