Australian Discrimination Law Reform Abandoned by Government

by | Mar 21, 2013

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

By Dominique Allen –

Late last year, I wrote about the proposed changes to modernise Australia’s ageing anti-discrimination laws which, unlike most of their overseas equivalents, have stagnated since they commenced operation.

Today, it appears that these reforms, while not dead, are certainly comatose.

The Human Rights and Anti-Discrimination Bill 2012 (Cth) was the result of two years of consultation and subject to a public inquiry by the Senate Committee on Legal and Constitutional Affairs which reported in February 2013. Controlled by government Senators, the Committee unsurprisingly supported the Bill. In contrast, the Opposition Senators only supported the proposal to prohibit sexuality discrimination, describing the Bill as “fundamentally flawed” and “riddled with… errors” in their dissenting report.

So why did the Attorney-General announce that the Bill would be shelved for the time being?

Certainly the Bill had its critics. The shifting burden of proof took the first punches. It was attacked for imposing a “reverse burden of proof” which would require employers to prove their innocence and lead to a “flood” of unmeritorious claims. These criticisms were quickly addressed through submissions to the Senate Committee’s inquiry and through expert testimony before the Committee.

When former judge James Spigelman identified a clause which potentially limited the right to free speech in December, the Bill was rightly subjected to a new round of criticism from which it never recovered.

Clause 19(2)(b) said discrimination can include conduct that “offends, insults or intimidates” another person because of a protected attribute, such as race or sex. The potential effect of such a clause would be to limit freedom of speech.

Facing universal criticism of the clause, the then Attorney-General Nicole Roxon asked her Department to redraft the clause but the damage was done. The media,  the Opposition, and conservative lobby groups took this opportunity to savage the Bill and take aim at the national human rights institution for failing to protect free speech.

By the time the Senate Committee released its report, the Attorney-General had resigned (ostensibly for family reasons but the bungling of the Bill was said to have played a part) and her replacement did not respond immediately to the Committee’s report.

Without clause 19(2)(b), the Bill is no longer controversial; it is simply a consolidation exercise of blending five Acts into one. So why abandon it?

The politics surrounding the Bill must be seen in light of a government facing defeat at the election in September 2013 with the latest two-party preferred at 44% for the government and 56% for the Opposition. The government ended its alliance with a minor party last month, it is having trouble maintaining the support of the Independents which it relies on in the hung parliament, and it is presently having great difficulty getting laws to regulate the media off the ground.

So a government which is desperately trying to hang onto power and popularity has given up the fight to protect human rights and prohibit discrimination.

This is extremely disappointing from the same government that conducted (though principally under the previous Prime Minister, Kevin Rudd) the first parliamentary inquiry into the effectiveness of the Sex Discrimination Act, removed discrimination against same-sex couples from federal laws, ratified the Convention on the Rights of Persons with Disabilities and the Optional Protocol, signed the Optional Protocol to the Convention Against Torture, held a nationwide inquiry into protecting human rights, implemented a national human rights framework, conducted a major inquiry into the Constitutional recognition of Indigenous people and committed the parliament to hold a referendum into the matter.

At this stage, the polls suggest the government won’t be returned to power, so it is unfortunate that it didn’t use the Bill as an opportunity to make a final grand gesture towards improving human rights and eradicating discrimination.

Should a new government decide to take the first step and modernise Australia’s anti-discrimination laws, there is a Bill eagerly awaiting enactment.

Dominique Allen is a Senior Lecturer at Deakin University, Melbourne, Australia and teaches and researches on anti-discrimination law.

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  1. Sandy

    This post risks being read as a little one-eyed.

    For starters, is there any basis whatsoever for the use of the word “ostensibly” when discussing Roxon’s resignation? Isn’t there a lot of reason to take Roxon at her word? For another, the new Attorney clearly said that he would be introducing a new Bill addressing LGTBI discrimination (with Opposition support). Was this mentioned above?

    The post also suggests that Roxon “asked her Department to redraft the clause” and yet the article that is linked to clearly says that the Attorney’s Department was simply drafting new “options”: ”Officials from the Attorney-General’s Department will present these options to the committee at their next hearing for consideration,”.

    But it’s also mysterious how the author says “These criticisms were quickly addressed through submissions to the Senate Committee’s inquiry and through expert testimony before the Committee”. How does the author regard the criticisms as having been addressed? The Attorney clearly said that his department would need to look at all these submissions and continue drafting work — isn’t that better done in the Attorney’s department rather than on the floor of the Senate? Isn’t it encouraging that the Attorney explicitly identified the need to balance free speech and freedom from discrimination?

    There should be concern about good drafting as well as good intentions.

  2. Laura.Hilly

    Readers of this post might also be interested in an excellent opinion piece by Prof Simon Rice, ANU College of Law, published in the Canberra Times, Friday 22 March 2013:

    “The government has announced discrimination protection for sexual orientation, gender identity and intersex status. But the reform is a hollow one, and will only disappoint. It gives nothing of real substance to the LGBTIQ (Lesbian, Gay, Bisexual, Transgender, Intersex and Questioning) community, and fails to deliver on a long-standing promise to simplify Australia’s ramshackle discrimination laws.”

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