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The positive duty and broader jurisdiction for systemic discrimination complaints in the Anti-Discrimination Amendment Bill 2022 (NT) highlights an employer’s ongoing obligations to educate and seek compliance.
Over the past two years, there have been a number of reform proposals relating to the anti-discrimination and harassment provisions contained in the main federal and state anti-discrimination statutes, namely the Australian Discrimination Commission Act 1986. Human Rights (Cth), Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth), Equal Opportunity Act 1984 (WA) and Anti-Discrimination Act 1991 (Qld).
In a similar vein, the Anti-Discrimination Act 1992 (NT) underwent a thorough review in 2017-18, followed by extensive consultation which culminated in the tabling of the Discrimination Bill. Anti-Discrimination Amendment 2022 (NT) in the Northern Territory Parliament on 13 October 2022.
The bill seeks to provide additional legislative protections in the form of expanding the scope of operations and removing prohibitive barriers to claims.
So what does the Anti-Discrimination Act 1992 (NT) currently cover?
Specifically, current NT law covers the following protected attributes:
- Pregnancy;
- Breastfeeding;
- Sex;
- Race;
- Trade union or employer activity;
- Age;
- Political opinion, affiliation or activity;
- Kinship ;
- Irrelevant medical record;
- Associated with a person who has or is believed to have a protected attribute;
- Religious belief or activity;
- Marital status;
- Irrelevant criminal record;
- deficiency; and
- Sexuality.
What does the Anti-Discrimination Amendment Bill 2022 (NT) propose to reform?
New attributes
In addition to the protected attributes above, some of the new protected attributes are:
- Caregiver responsibilities – i.e. whether or not the person is a relative or has the responsibility to care for a family member or close relative or kin or otherwise;
- Gender identity – meaning a person’s gender-related identity which may or may not match the person’s designated sex at birth, including personal sense of body (whether this involves medical intervention or not), and other expressions such as dress, mannerisms, names and personal references; and
- Sex characteristics – meaning the physical characteristics and development of a person related to sex, including:
- genitals, gonads and other sexual and reproductive parts of the person’s anatomy;
- sex-linked chromosomes, genes and hormones; and
- secondary physical traits appearing as a result of puberty.
positive duty
The introduction of a positive obligation to eliminate discrimination, sexual harassment and victimization. A person must take reasonable and proportionate measures that will take into account:
- the size of the person’s business or operations;
- the nature and circumstances of the person’s business or operations;
- the person’s resources;
- the individual’s business and operational priorities; and
- the practicability and cost of the measure.
The Anti-Discrimination Commissioner may investigate compliance with this obligation. The outcome of an investigation may result in the Anti-Discrimination Commissioner taking no further action, requiring binding undertakings with an individual, or providing a report to the Minister and publishing it.
Defamation
There will be a prohibition of acts of defamation based on protected attributes, which is modeled on section 18C of the Racial Discrimination Act 1978 (Cth), but is broader in that it will cover all attributes protected under the law (not just race).
The provision prohibits a public act which is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or group and which is done because of a protected attribute of the person or group. A public act can be applied to posting content online that offends, insults, humiliates or intimidates because of a protected attribute.
This is an objective test, requiring that the effect of the act in question be assessed from the perspective of an ordinary and reasonable member of the relevant group targeted.
Service animals
There will be a new definition of “service animal” which requires the animal to be trained or certified by a training organization or State or Territory agency prescribed by regulation, to assist, in a public place , a disabled person in relation to disability.
This clause expands the application of former section 21 by replacing the provision so that it applies to any service animal (not just a guide dog) used by a person with a disability (not just a visual, hearing or or motor).
The clause allows a person to ask a person with a disability to produce proof that an animal is a service animal, and the protection against discrimination will not apply if the person cannot produce proof that the animal is a service animal.
Religious education
The deletion of the provisions aims to ensure that teachers will not be discriminated against on the basis of their sexuality in religious institutions. Indeed, this clause omits Section 37A which currently provides an exemption for religious educational institutions in the field of work based on religious belief or activity and sexuality if done in good faith to avoid offend the religious sensibilities of people of the particular religion.
Representative Complaints Department
There will be a new representative complaints process directed to the Anti-Discrimination Commissioner who will examine systemic discrimination against groups of people resulting from the behavior, practice, policy or program of one or more organizations .
Key points for employers in the Northern Territory
With the advent of the proposed bill, it is essential that employers review their policies, training and procedures to prepare for the impact of any increased scope. There is no doubt that the positive duty and expanded jurisdiction for systemic discrimination complaints highlights an employer’s ongoing obligations to educate and obtain compliance from all levels of management and all employees. .
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