DISSENTING REPORT BY
COALITION SENATORS
1.1
Coalition senators oppose the proposed Human Rights and
Anti-Discrimination Bill. We do so for four main reasons:
- The provisions of the bill violate fundamental human rights;
- The scope of the bill is impossibly wide and dangerously vague;
- The bill is internally inconsistent and liable to produce
unintended consequences;
- The bill would damage Australia's social fabric by encouraging a
"culture of complaint".
1.2
We had considered the possibility of recommending a series of amendments
to the Bill, in order to repair the serious flaws which we have identified.
However, in our view the Bill is riddled with so many fundamental errors, of
both a technical and substantive kind, that we have concluded that it would be
better to abandon it altogether. As well, the Bill has become, in the
relatively short time since its release last November, almost synonymous in the
public mind with legislative over-reach and intrusive government – as the very
strong reaction of so many commentators,
opinion-leaders and ordinary citizens demonstrates.
1.3
In this Dissenting Report, we focus upon the main reasons why, in the
view of Coalition senators, the Bill is, as a matter of principle, totally
unacceptable in its current form. Nevertheless, we cannot refrain from
observing that the "selling" of the Bill by the government, and in
particular by the former Attorney-General, Ms Roxon, has been a master-class in
political incompetence. Nothing could have been more calculated to destroy the
prospects of reforming Australia's anti-discrimination laws than the
high-handed, patronizing, politically correct approach of the former
Attorney-General.
1.4
That is a shame, for we accept that Australia's existing suite of
anti-discrimination laws – which have largely enjoyed bipartisan support – are
imperfect and capable of improvement. In our recommendations, we identify one
area in particular – discrimination on the grounds of sexuality – which is an
obvious gap in the existing legislative scheme. However, that matter can be
addressed by a simple amendment to the Sex Discrimination Act, rather
than by the sweeping and intrusive changes to existing law which the Bill
attempts.
The provisions of the bill violate fundamental human rights
1.5
Despite its misleading title, the draft bill is not a human rights bill
at all, if by "human rights", we mean the principles declared, in
particular, in Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. Rather, important provisions of the Bill
violate fundamental human rights recognized by those instruments. In
particular:
- The definition of "unfavourable treatment" in cl. 19(2)
of the Bill, by including "conduct that offends [or] insults",
constitutes an impermissible limitation upon freedom of speech, freedom of
expression and freedom of the press, protected by Article 19 of the Universal
Declaration and Article 19 of the Covenant.
- The reversal of the burden of proof provided for by cl. 124 of
the Bill, which casts the burden of proof upon a person against whom a
complaint is made to establish that they did not act for an unlawful reason or
purpose, is arguably inconsistent with the presumption of innocence provided
for by Article 11 of the Universal Declaration and Article 14 (2) of the Covenant.
Freedom of expression
1.6
Article 19 of the Universal Declaration provides:
Everyone has the right to freedom of opinion and expression;
this right includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless of
frontiers.
1.7
Article 19 of the Covenant provides:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression;
this right shall include the freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in
print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of
this Article carries with it special duties and responsibilities. It may therefore
be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a)for respect of the rights of
reputations of others;
(b)for the protection of national
security or of public order (ordre public), or of public health or
morals.
1.8
In a society in which respect for freedom of speech and expression is a
fundamental value – and, in the view of coalition senators, Australia must
always be such a society – the Parliament must be vigilant to ensure that those
freedoms are not impinged upon by new laws – however well-meaning their
purpose. If freedom of speech means anything, then that freedom cannot depend
upon the popularity of those views. Indeed, it is the unpopular, unfashionable
or eccentric view which is in most need of protection. We are in complete
agreement with the wise observation of John Stuart Mill:
If all mankind minus one were of one opinion, and only one
person were of the contrary opinion, mankind would be no more justified in
silencing that one person, than he, if he had the power, would be justified in
silencing mankind.[1]
1.9
To categorize conduct (including speech) as "unlawful" because
it might cause offence or insult to another person would impose a massive
limitation of freedom of expression. Literally any controversial opinion would
potentially be caught. It is difficult to imagine a measure more inimical to
free public discussion than cl. 19(2) of this Bill. Not only would the proposal
threaten Australia's proud tradition of free and robust political discussion,
it would also, in the view of coalition senators, be a violation of Australia's
obligations under Universal Declaration and the Charter, set out above.
1.10
Although, late in the day during the course of the last hearing on the
Bill, the Secretary of the Attorney-General's Department indicated that the
Government was likely to resile from the inclusion of "offends [or]
insults" in the definition of unfavourable treatment, neither the previous
Attorney-General, Ms Roxon, nor the new Attorney-General, Mr Dreyfus, have
committed the government to that course. In any event, there is no indication
that the similar words in cl. 51, taken from s. 18C of the existing Racial
Discrimination Act, will be withdrawn.
Reversal of the burden of proof
1.11
Cl. 124 of the Bill creates a statutory presumption that a person
against whom unlawful conduct is alleged that:
the alleged reason or purpose is the reason or purpose (or
one of the reasons or purposes) why or for which the other person engaged, or
proposed to engage, in the conduct, unless the contrary is proved.
1.12
Article 11 of the Universal Declaration and Article 14 (2) of the Covenant
recognize the presumption of innocence as a fundamental human right. While it
is true that Arts. 11 and 14(2) deal specifically with criminal offences, they
nevertheless give expression to a more general principle of procedural
fairness: that a person accused of unlawful conduct should not have to prove
their innocence. Cl. 124 violates that principle.
1.13
It is not to the point that an applicant must initially show a prima
facie case before the burden shifts. That is merely a statement of the
commonplace fact that the complainant, as the party seeking redress, must come
to the court and put before it material on which it may act. In an ordinary
civil case, the complainant will have the burden of proving each element of his
cause of action on the balance of probabilities. Because of cl. 124, a
complainant is doubly advantaged, because:
- he is only required to establish a prima facie case, not
discharge the burden of proof on the higher standard (balance of
probabilities); and
- on the critical issue in the case – the state of mind of the
respondent – the burden of proof is reversed.
1.14
As well, a complainant is given a further significant forensic advantage
as a result of cl. 8 of the Bill. This provides that a court may conclude that
a person engaged in unlawful conduct for a reason or purpose if that reason or
purpose "is one of the reasons [or] purposes" for the conduct. There
is no requirement that it be the predominant reason or purpose, or even a
significant reason or purpose. By contrast, other statutes which make
culpability depend upon conduct being engaged in for an unlawful purpose or
reason, usually require that the purpose or reason be a "substantial"
purpose or reason.[2]
So a complainant, while enjoying the significant forensic advantage of a reverse
onus of proof, is given the additional (and unusual) advantage of being free of
the "substantial purpose" requirement. No explanation is offered for
the absence of a requirement of substantial purpose.[3]
1.15
A yet further consideration which illustrates how dangerous the reverse
onus of proof would be is the fact that most commonly, complaints of unlawful
discrimination are based on "indirect" discrimination rather than
overt discrimination. Where indirect discrimination is alleged, the conclusion that
the respondent has engaged in unlawful conduct is largely based on inferential
evidence only. Conclusions based on inferential evidence are much harder to
rebut, and even more so where the party against whom the complaint is brought
has the burden of proof.
1.16
The effect of these four considerations, taken together, would be to
make complaints almost impossible to defend.
1.17
Unlike cl. 19(2), the government has shown no inclination whatever to
withdraw the reverse onus of proof provision in cl. 124.
The scope of the bill is impossibly wide and dangerously vague
1.18
The violations of traditional rights and freedoms embodied in the Bill
are not, however, our only serious concern. The entire approach of the Bill is
to expand the categories of discriminatory conduct so widely as to make almost
any grievance which one citizen might have against another capable of being
brought within one or more of its categories. This is, in particular, to be
seen in the extension of the number of "protected attributes" (cl. 17
of the Bill) to new attributes of almost limitless meaning. Two, in particular,
which concern Coalition senators are "political opinion" and
"social origin".[4]
To make matters worse, no attempt is made in the Bill to define these two very
wide categories.
1.19
In evidence from the Attorney-General's Department, it was indicated
that the terms had their genesis in International Labour Organization
Convention No. 111, which is one of the "ILO instruments" identified
by the Bill.[5]
This instrument does not, itself, define the terms, however the Departmental
witness pointed to guidelines issued by the International Labour Organizations
which suggest the meaning of the terms:
Senator BRANDIS: Well, I am focusing on clause 17.
What about social origins, Mr Wilkins? What does that mean? Mr Manning?
Mr Manning: The International Labour Organization has
put out some guidance in relation to the concept.
Senator BRANDIS: Pausing there, Mr Manning, the International
Labour Organization has given guidance to that term but not to the term 'political
opinions', right?
Mr Manning: It has also in relation to political
opinion.
Senator BRANDIS: It has?
Mr Manning: They are not defined in the treaty, but to
assist member states the ILO has put out its views about what they mean.
Senator BRANDIS: Has that become part of the
jurisprudence?
Mr Manning: I do not think it is jurisprudence in the
sense that it is just the body under the auspices of which the
treaties have been developed to put them out.
Senator BRANDIS: Would it be regarded as part of the
opinio juris?
Mr Manning: I think they would be, yes. It is guidance
material. It would be influence, I would have thought, without necessarily
being binding.
...
Senator BRANDIS: Why don't you just read them to us,
please?
Mr Manning: The ILO has suggested social origin is
intended to include an individual's membership in a class, caste or
socio-occupational category. That comes from its General Survey on Equality in
Employment and Occupation of 1996 and the General Survey on Equality in
Employment and Occupation of 1988.
...
Senator BRANDIS: What about political opinion? Can you
read that out to us, please?
Mr Manning: This is taken from the ILO's systems for
Business on International Labour Standards which talks about political opinion.
I am not quoting but it includes membership in a political party, express
political, sociopolitical or moral attitudes, or civic commitment. Workers
should be protected against discrimination in employment based on activities
expressing their political views. This protection does not extend to politically
motivated acts of violence.[6]
1.20
Coalition senators record their deep concern at a proposal to introduce
such fundamental changes to Australian law, which may have such a profound
effect upon the way in which Australians deal with one another, on the basis of
terms so vague that the only definitions to which the government can point are
guidelines issued by the ILO.
1.21
The breadth of these two new categories illustrates the dangerous
over-reach of the Bill. Although they are, in each case, limited to "work
and work-related areas,"[7]
they nevertheless extend what is ordinarily thought to be the scope of
anti-discrimination law. In doing so, they remove the focus of such laws from
where, in the opinion of Coalition senators, it ought to be: on members of
social groups who, because of a personal attribute, are vulnerable to unfair
treatment. These are not necessarily statistical minorities (women, for
instance, have always been one of the social categories protected by
anti-discrimination law), although they usually are. What they have in common
is that, because of the identified attribute, they belong to a group of persons
at risk of conduct which unfairly denies them equality of opportunity in
certain key areas – such as the workplace, education, access to public facilities
or everyday amenities. But this Bill goes much further, by seeking to
assimilate any form of unfavourable treatment, alleged by virtually any member
of society, within the reach of anti-discrimination law.
1.22
Indeed, the key to grasping the philosophy of the Bill lies in its
treatment of unlawful discrimination in terms of unfavourable treatment
rather than unfair treatment. The concept of "unfavourable" treatment
is much wider than "unfair" treatment. When the prohibited conduct is
expressed in terms so wide, and then applied to categories to which every
member of society belongs – for instance, everyone has a "social
origin" – the reach of the legislation has, in our view, gone well beyond
where anti-discrimination law should be. The effect of this Bill would be to
replace the proper protection of vulnerable groups from unfair treatment, with
an
all-purpose grievance-settling machinery, in which the State arrogates to
itself the role of settling the day-to-day differences between citizens, and,
in doing so, defining the norms of everyday social behaviour. This is a
nightmarish dystopia which only Kafka could have imagined.
1.23
It is for this reason that Coalition senators believe that this Bill is
not, in truth, an anti-discrimination law at all. It is an attempt to use the
guise of anti-discrimination to advance a much more ambitious and intrusive
social agenda, in which the role of the state as the arbiter not just of
legality, but of the norms of everyday conduct, would be massively expanded. Not
only is this a horrendous result in itself; it also diverts attention away from
the vulnerable Australians whom it ought to be the core purpose of
anti-discrimination law to protect.
1.24
Lastly, Coalition senators point out that the expansion of the
"protected attributes" is not the only dangerously vague area of the
Bill. Clause 3 of the Bill includes among its objects:
to promote recognition and respect within the community
for...the principle of equality (including both formal and substantive
equality)...[8]
No definition of the term "substantive equality"
is offered. However the use of the adjective "substantive" does not
suggest that the draftsman had in mind merely the notion of equality of
opportunity.
1.25
Coalition senators do not support the adoption of language at once so
treacherously vague and so ideologically-charged. Nor are we of the view that
its presence in the objects clause is appropriate, or necessary for the efficacy
of anti-discrimination law. We do not see any point in attempting a statutory
definition of "equality". It is at least theoretically possible that
the wisdom of the Gillard Government is so great that it is able to solve a
profound problem that it has eluded philosophers since the time of Socrates. However,
on recent performance, we think it unlikely.
The bill is internally inconsistent and liable to produce unintended
consequences
1.26
The inclusion of "political opinion" among the "protected
attributes" gives rise to an unintended consequence. Clause 17 lists 18
such attributes, in alphabetical order, without distinction or preference
between them. Hence, the Bill is as much about protecting political opinions as
it is about protecting any other attribute. As no definition of "political
opinion" is contained in the Bill, cl. 17(1)(k) can only be understood as
an intended reference to all political opinions. This produces an internal
inconsistency. The Bill protects people from forms of behaviour which is, for
instance, racist or homophobic. Simultaneously, it protects racist or homophobic
political opinions. The Secretary of the Attorney-General's Department, Mr
Roger Wilkins, acknowledged that this was a problem, which he thought could be
corrected by a drafting change.[9]
Professor Simon Rice of the Australian National University, Chair of the
Anti-Discrimination Law Experts Group, agreed that the Bill appeared to contain
an "inconsistency" in this respect.[10]
1.27
Coalition senators do not regard this issue as merely a drafting error. It
goes to a central aspect of the Bill. If "political opinion" is a
protected attribute, then it cannot be confined to one type of political
opinion only. Once that is accepted, then the inclusion of the attribute
inevitably protects opinions which are hostile to the other purposes of the
Bill. This is yet another example of the consequences of over-reach.
The bill would damage Australia's social fabric by encouraging a
"culture of complaint"
1.28
As we observed in paragraph 20, the scope of the Bill goes well beyond
protecting vulnerable people from unfair treatment, but seeks to create a
comprehensive mechanism for the arbitration and settlement of virtually all
social differences, wherein one citizen might feel aggrieved by his treatment
at the hands of another. It is not the role of the state to do so; if it were,
the intrusion of the state into the everyday lives of citizens would be almost
without limit.
1.29
One consequence of such a significant realignment of the relationship
between the citizen and the state is that, were it to occur, it would encourage
the development of a more litigious society, dominated by what Robert Hughes
once described, in a critique of contemporary America, as a "culture of
complaint".[11]
Both the current and former Attorneys-General regarded the ease with which
access might be had to the Bill's dispute-settlement mechanisms as one of its
virtues.[12]
Coalition senators are of a contrary view.
1.30
By introducing a quasi-litigious model for the settlement of disputes
which are, today, resolved informally between citizens without the state's
intervention, not only is the role of government massively expanded; resort to
such governmental mechanisms, rather than informal resolution, will
increasingly become the norm. That is not a characteristic of a healthy
society; it is a description of a sick one. The Bill positively encourages
this, by making the complaints procedure cost-free,[13]
reversing the burden of proof,[14]
and relieving complainants of the requirement of proof in accordance with the
normal rules of evidence.[15]
1.31
Of course, each of those features of the Bill is also likely to have the
effect of encouraging opportunistic complaints which it is not worth an
employer's while to defend, and which he is more likely to pay off to go away.
An area for reform
1.32
For all of the foregoing reasons, Coalition senators are of the view
that the Bill is so fundamentally flawed, in both conception and design, that
it should proceed no further. Perhaps it may find a home in a cultural museum
of the future, as an exhibit of how close Australians, in the Year of Our Lord
2013, came to being captured by "the Nanny State". But it has no
place in a healthy liberal democracy. Nor would its enactment advance desirable
reform of the existing suite of anti-discrimination laws.
1.33
Nevertheless, Coalition senators were impressed with one part of the
evidence before the inquiry – that from the GLBTI community,[16]
who pointed out that none of the Commonwealth Acts which deal with anti-discrimination
law extend to
sexuality-based discrimination. This is, in our view, an obvious gap, which
should be addressed. People in that category are no doubt vulnerable to unfair
discrimination. Discrimination against members of that community is unacceptable
by modern community standards, and is reflected in the removal in 2008 – on a
bipartisan basis – of all discriminatory treatment from Commonwealth
legislation. It is also consistent with the policy which the Coalition took to
the 2010 election. A simple amendment to the Sex Discrimination Act,
which includes sexuality (or, for completeness, identity as a gay, lesbian,
bisexual, transgender or intersex person) as a protected attribute, would
overcome that lacuna.
Recommendation 1
1.34
Coalition Senators recommend that the Bill not be passed.
Recommendation 2
1.35
Coalition Senators recommend that Part II of the Sex Discrimination
Act 1984 be amended to include identity as a gay, lesbian, bisexual,
transgender or intersex person as a protected attribute to which the Act
extends.
Senator
Gary Humphries
Deputy Chair |
Senator Sue
Boyce |
| |
|
| Senator
the Hon George Brandis SC |
|
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