Principio de Subsidiariedad e Intervención Humanitaria

limitations on religious exemptions

See Section Six for further analysis. 4) Measures to assist business

To assist to address any uncertainty that may follow from the use of high level, principles- based provisions, the Act would support a range of sub-legislative measures to give guidance and provide certainty where appropriate. A range of measures which could be included in this context are set out in the description of the option in Section Four above. The Commission is already empowered to issue guidelines. This option would involve greater emphasis on these guidelines as a means to assist business and other organisations to understand and comply with their responsibilities under the Act. In particular, they could be used to provide further detail on some of the new concepts in the Act. They could also be designed in way to ensure they could be used as ‘off-the-shelf’ policies for smaller

91 _{See p25.}

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organisations. Compliance with these guidelines would not be mandatory, but it would be evidence of compliance with the Act.

All other measures proposed would remain entirely voluntary. These are:

o building on measures in the existing Acts, such as voluntary action plans and Commission-issued guidelines

o empowering the Commission to, on request, conduct a review of an organisation’s policies and practices

o empowering the Commission to, on application, certify conduct as constituting a special measure to achieve equality, and

o introducing a co-regulatory scheme, empowering the Commission to certify industry codes or other standards, to apply the principles in the Act to specific circumstances.

They would be legally unnecessary due to the general limitation for conduct which is justifiable or which constitutes a special measure to achieve equality. Businesses would neither be expected nor encouraged to use any of the measures.

During consultation on this project, the Business Council of Australia, ACCI and the Australian Industry Group (Ai Group) were supportive of the development of a range of mechanisms to assist with greater certainty and compliance. Recognising that there are a number of measures that could be utilised to assist with compliance, the Ai Group stated in its submission that:

Ai Group would welcome the development of further voluntary guidance material to assist duty holders to comply with their obligations under Commonwealth anti- discrimination law.

…

If the Government decides to allow for co-regulation in the consolidation bill, it must be voluntary and non-binding on duty holders.

…

An option to obtain certification of special measures by the Commission would be a useful tool for employers who are uncertain of the lawfulness of the special measures implemented at their workplace. Certification should not be mandatory.93

More specifically, in its submission on the project, ACCI believe[d]:

that models such as co-regulation do have merit within the framework of anti- discrimination laws. Moreover, there should be consideration of how standards (internally developed or industry developed) can be utilised to enhance compliance.94

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The Australian Industry Group’s submission, ‘Consolidation of Commonwealth Anti-Discrimination Laws Attorney-General’s Department Discussion Paper’, 1 Feb 2012, pp 20-22..

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Further to this, the Business Council of Australia submitted that it:

supports full consideration of the Productivity Commission’s recommendation that co- regulation be used to improve certainty for business (paragraph 179). Allowing flexible mechanisms, like co-regulation, has the potential to reduce compliance costs while still achieving stated policy objectives. By harnessing industry-specific

knowledge, such an approach can reduce the risk of one-size-fits-all rule-making.95

Costs

The Act would enable the Commission to recover its costs associated with those measures which benefit individual organisations and/or industries, such as certification of special measures to achieve equality or industry codes or reviews of organisational policies and practices. A Cost Recovery Impact Statement would be developed as part of the process to establish appropriate fees.

In relation to the introduction of a co-regulatory scheme, whereby the Commission could certify industry codes or other standards, variance in the type, scope and complexity of different industries makes it difficult to provide an estimate of the costs in preparing such a proposal. It is anticipated there would be only a modest uptake of this mechanism by those industries which judge a certified code or standard to be in their best interests in order to provide greater certainty, having regard to the cost of preparing such a code. There will be costs for those industries that do choose to utilise the voluntary co-regulatory mechanism, likely to range from $20,000 to over $100,000, depending on a range of potential variables. These variables include:

• the degree of technical detail included in the code (for example, setting a particular gradient for a wheelchair accessible ramp)

• the application of the code (such as whether it applies to one business or a whole industry, or whether it applies to a limited geographical area or any organisation operating in Australia), and

• whether the elements of the code are new or simply adopt existing standards prescribed elsewhere (for example, matters already provided for in an Australian Standard).

Benefits

These measures are voluntary but available for organisations which choose to take

advantage of them to seek further clarity or guidance. During consultation, business groups raised concerns that obligations are difficult to identify as they are located throughout the legislation. An upfront clear statement of obligations that are contained in the Act will not impose any new regulatory burden but will assist in providing clarity and is consistent with Clearer Laws principles.

Some of the measures, such as a certification of special measures to achieve equality or certification of an industry code, could operate as a complete defence to a discrimination

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complaint made under any Commonwealth, State or Territory law, providing more certainty to organisations than currently exists. Other measures, such as a review of organisational policies and practices and voluntary action plans, would not operate as a complete defence but would be evidence of compliance with the Act.

As outlined in Section Two, organisations that value and capitalise on employee diversity have productive and fulfilling workplaces which help them attract and retain employees. Taking advantage of these measures to meet obligations and promote diversity will benefit relevant businesses and service providers.