Last year the federal Labor Party announced an ambitious plan to consolidate existing anti-discrimination laws in to one law. On the surface, it would seem like a sensible idea to try and simplify laws, but this was not just a “consolidation” by any known definition of the word; this was a massive expansion and redefinition of the laws.
Early on in the piece, the Institute of Public Affairs read the proposed draft legislation and noticed that “discrimination” was being redefined as anything which caused offence. The legislation would have made it illegal to offend someone with a political comment, among other things.
This set off alarm bells, and yet it was quite strange that for some months the Institute of Public Affairs was almost the sole voice of opposition to the draft legislation. In the end, their efforts paid off and almost certainly claimed the scalp of (now former) Attorney General Nicola Roxon, and led to the Coalition vowing to repeal the legislation if it ever becomes law. Right now, it’s unlikely to become law, but it’s still a possibility.
Simon Breheny, Chris Berg, Tim Wilson and John Roskam from the Institute of Public Affairs were largely responsible for the organisation’s work to expose the dangers of this draft legislation, and are owed a debt of gratitude by the entire country in my opinion.
Simon Breheny, Director of the Legal Rights Project at the Institute of Public Affairs, was one of the people to give evidence to the Senate committee looking in to this draft legislation. His opening remarks summed up the problems  with the draft legislation very well.
The exposure draft Human Rights and Anti-Discrimination Bill 2012 is an attack on our fundamental freedoms.
The draft Bill is not simply a consolidation of existing Commonwealth Acts as the government has claimed. It is a radical overhaul of anti-discrimination law.
There are many problems with the draft Bill.
The most concerning aspect of the draft Bill is the significant threat it poses to freedom of speech. The definition of discrimination has been expanded to include conduct that offends or insults.
Given this new definition of discrimination, the inclusion of “political opinion” as a ground on which a claim can be made is absurd and dangerous. Under the draft Bill, you could be taken to court for saying something that offended someone because of a political opinion they hold.
The freedom to express political opinions in all areas of public life – even those that offend and insult others – is central to the functioning of our system of government as the High Court has found. By undermining freedom of speech the draft Bill poses a grave threat to the health of Australian democracy.
It is wrong to say that the draft Bill could be amended to a point where it is acceptable. Simply removing the words “offend” and “insult” from the new definition of discrimination will not save the draft Bill. The real problem is the whole project itself.
The draft Bill is not about anti-discrimination. Instead, the consolidation project has resulted in a draft Bill that undermines liberty and places the state at the centre of our interpersonal relationships. Rather than making the law clearer and simpler, the draft Bill adds significant complexity to this area of law.
The draft Bill also reverses the burden of proof for claims of discrimination. This is completely unacceptable. The person bringing a legal claim should always bear the burden of proving their case. This principle – the idea that a person is innocent until proven guilty – is the centrepiece of a just legal system. Reversing the burden of proof would create an unjust system.
The draft Bill will erode civil society by encouraging reliance on apparatus of the state for the resolution of private disputes. It threatens to lead Australia towards a US-style culture of litigation.
The constant erosion of our freedoms must end. This draft Bill is a disturbing example of the ever-increasing power of the state. It shows that it is now time to swing the pendulum back towards liberty rather than away from it, and to take back control of our own lives.
The draft Bill is a threat to freedom of speech, freedom of association and freedom of religion. The Institute of Public Affairs calls on the committee to recommend the outright rejection of this dangerous draft Bill.
Simon, along with Chris Berg, made a formal written submission to the Senate committee which goes in to much more detail about the problems with the draft legislation. That submission can be found on the IPA’s website . I read the whole thing last night and, although it is too long to re-publish here, I highly recommend it to anyone who is interested in being able to have an opinion.
It was also interesting to see the Australian Human Rights Commission come down on the side of restricting speech. Apparently freedom of speech is not as important to them as the supposed right to not be offended or insulted. You have to listen carefully, but the Commission’s President Gillian Triggs admitted it on Weekend Sunrise when she noted that it is only public opinion which is preventing her from getting her way at this time.
My sincere thanks to the IPA for all of their hard work.