Tweaking the draft bill could preserve core reforms

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Tweaking the draft bill could preserve core reforms

Author: By Professor Gillian Triggs, President of the Australian Human Rights Commission

Published in The Australian, Tuesday 22 January 2013

The proposed anti-discrimination law has critics, but it delivers a balanced package

If the release of the exposure draft of the Human Rights and Anti-Discrimination Bill 2012 was intended to stimulate public discussion about an important reform initiative, it has clearly done what it set out to do.

The chairman of the ABC has championed the right to freedom of speech and criticised the possibility that language that merely ``offends'' or ``insults'' could result in prosecution. George Brandis has objected to what he perceives to be a reversal of the onus of proof.

The media says the bill will lead to self-censorship and political correctness. Religious groups fear it does not fully respect the right to freedom of religion while others argue it should require faith-based institutions to abide by the same laws as others in the community.

In fact, the public response to the bill has been so wide-ranging that the Senate committee has received more than 550 submissions.

The storm of debate reflects a robust democracy and usefully exposes some weaknesses in the present form of the bill. While some aspects of the bill arguably go too far, we should not overlook the overwhelming strengths of this long overdue reform or the benefits of harmonisation of the present confusing proliferation of federal discrimination laws.

But let us step back a moment. In anti-discrimination law, most complaints are brought by a worker against their employer, the respondent. Presently, we have four different and often inconsistent pieces of legislation to protect against discrimination -- on the basis of age, race, sex and disability. We also have a separate regime for other forms of human rights violations in the workplace.

For example, now you can take legal action if you have a disability and are discriminated against by a state government in the course of employment. But not if the basis of the discrimination is gender.

The bill simplifies and makes consistent the current different suite of anti-discrimination laws. It will enable both citizens and the business community more readily to understand their obligations and to protect their rights, ensuring a more coherent regime for protection of rights.

Like Brandis, some commentators argue the proposed new provisions reverse the onus of proof of discrimination. This is incorrect. Rather, the bill proposes that the onus is shared: the obligation to produce evidence is to rest with the person who is best able to produce that evidence.

At present, complainants -- who are often people in vulnerable circumstances -- have to prove a range of matters about how they have been treated, even when the information is readily available to both them and the employer.

Under the proposed law, a complainant will still be required to provide evidence, not only that the alleged conduct happened, but also that it happened for a discriminatory reason. Only then, when the court is satisfied that the discrimination actually occurred, will the employer be expected to produce evidence explaining why this happened. It is common sense -- the obligation to produce evidence is placed with the person in the better position to produce it. Consumer protection laws already do this.

The bill proposes strengthening the power of the Australian Human Rights Commission to terminate unsubstantiated or misconceived claims, thereby ensuring swifter resolution of complaints. This will obviously be better and more efficient for business. It will also mean our courts will not be clogged up with unmeritorious matters.

The commission will also be required to work proactively and collaboratively with the business community to develop industry codes of practice to prevent prohibited discrimination in the first place.

Importantly, the bill provides exceptions whereby discrimination will not be unlawful if an employer can show the conduct was ``justified'' or that ``inherent requirements'' of the job made it necessary. For example, an employer might require that an airline pilot has perfect health or a teacher has no convictions for sexual offences.

This brings us to provisions that have attracted the most attention: the offence of ``offending or insulting'' a person on grounds such as age, medical history or race.

Last year, there was strong public objection to a racial vilification case brought against the journalist Andrew Bolt under the present Racial Discrimination Act on the grounds that his article was ``reasonably likely to offend, insult . . .'' another person and could not be justified as fair comment. Many people considered a test of ``offend or insult'' too low a threshold.

The controversial aspect of the exposure bill is that it retains the present provision on racial vilification while adding a new provision that unlawful discrimination can include conduct that offends and insults on a number of other grounds, including industrial activity, pregnancy and sexual orientation. This new and enlarged provision is not subject to the objective test of reasonableness, fuelling fears that it will have a chilling effect on the fundamental right to freedom of speech.

Understandably, calls for the Senate committee to delete this provision are loud and, indeed, it might be wise to amend the bill, so far as it applies to acts that offend or insult, if only to preserve the valuable reforms that the rest of the bill will provide.

Yes, the bill could have gone even further. Non-governmental organisations are disappointed it doesn't adopt new models of equality law based on overseas developments.

But I believe that, overall, the bill is a balanced package that achieves the objectives of delivering legislation that is more efficient, effective and easier to understand and comply with. Better for both employees and employers. Better and more efficient for business.

The bottom line is that achieving a coherent framework for protection against discrimination is an important step forward. It calls for robust public debate. Most importantly, it deserves our support.