ANTI-DISCRIMINATION AMENDMENT BILL 2001 Second Reading Speech

Northern Territory Second Reading Speeches

ANTI-DISCRIMINATION AMENDMENT BILL 2001

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill be now read a second time.

The purpose of this bill is to amend the Anti-Discrimination Act to define and limit the vicarious liability of employers and principles for the acts of their workers and agents. The bill limits vicarious liability through the inclusion of some clearly-defined defences to a claim of vicarious liability. It is unclear whether the Anti-Discrimination Act, as it currently stands, encompasses the notion of vicarious liability of employers and principles. Over the almost 10 years of the operation of the Anti-Discrimination Act, it has generally been accepted by government and private employers that the act does incorporate this notion. However, recent litigation in the Supreme Court has called this assumption into doubt.

This bill seeks to eliminate this doubt by clearly defining the notion of vicarious liability as it applies in the act. The bill also establishes clear defences for employers and principles to a claim of vicarious liability. The bill is not retrospective. With respect to complaints of discriminatory conduct occurring before the amendment comes into effect, whatever the Supreme Court finds is the position under the act as it currently stands, will be the law that applies to those complaints.

All Australian jurisdictions, in their anti-discrimination laws, include a specific vicarious liability provision. Generally, that provision is similar to subsection (1) of the new section 104A the bill would introduce. That subsection clearly defines vicarious liability under the act. The inclusion of this provision ensures consistency between the Territory Anti-Discrimination Act and the Commonwealth race, sex and disability discrimination legislation, which operates concurrently with the Territory act. This ensures that the Territory employers have the benefit of clear and consistent approach to anti-discrimination matters.

Other Australian anti-discrimination legislation also creates a defence to a claim of vicarious liability where an employer has ‘taken all reasonable steps’ to prevent their workers from engaging in discriminatory practices. That defence is incorporated in subsection (2) of the proposed new section 104A. However, this bill would improve on the standard anti-discrimination vicarious liability clauses in two significant respects. Subsection (3) of the proposed new section 104A clearly sets out the mattes that may be included when the Anti-Discrimination Commissioner is considering whether an employer has taken all reasonable steps. These mattes include actions such as the provision of anti-discrimination training, and equal opportunity management plans. The proposed new subsection recognises that not all employers have the same resources. The subsection also provides that the commissioner may consider the size and financial positions of an employer when considering whether they have taken all reasonable steps.

The other significant feature in this bill, when compared to other Australian anti-discrimination legislation, is contained in subsection (4) of the proposed new section 104A. This provides that when the commissioner, after a hearing, is making an award of compensation in a case that involves vicarious liability, he may consider what steps were taken by the employer to prevent the discrimination in deciding the apportionment of damages. In the event the commissioner finds that the employer has not taken all reasonable steps so as to constitute a complete defence to a claim of discrimination involving vicarious liability, it is still open to consider what steps the employer did take in determining how much compensation should be paid by each party.

The bill will make the Anti-Discrimination Act a more workable piece of legislation. By encouraging employers to engage in anti-discrimination training, the bill serves to further the objects of the Anti-Discrimination Act. The bill illustrates this government’s strong commitment to ensuring a fair and just community that ensures dignity and respect for all Territorians. I commend the bill to members.

Debate adjourned.

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