IPA FACTSHEET (h/t Allan I)
21 December 2012
The Human Rights and Anti-Discrimination Bill 2012
An unprecedented threat to freedom of speech and thought
On 20 November 2012, the Commonwealth Attorney-General made public an Exposure Draft of the Human Rights and Anti-Discrimination Bill 2012 (‘the Bill’). The Bill was referred to an inquiry of the Senate Legal and Constitutional Affairs Committee. Submissions to the inquiry close on 21 December 2012, with its report due by 18 February 2013.
The Human Rights and Anti-Discrimination Bill 2012 makes a number of significant changes to anti- discrimination law in Australia, including:
• broadening the definition of discrimination to include conduct that ‘offends’ and ‘insults’ (clause 19-2)
• making it easier for a person to claim they were discriminated against, by requiring them to establish only that they were personally offended, not that a reasonable person would have been offended (cl 19-2)
• expanding the range of personal characteristics against which it is unlawful to discriminate, to include not only matters such as disability, race, and religion, but also ‘political opinion’ and ‘social origin’ (cl 17-1)
• reducing the legal protection of a person accused of discrimination, by: declaring them guilty unless they prove their innocence, i.e. the ‘onus of proof’ is reversed (cl 124-1) restricting their right to legal representation (cl 110-4) requiring them to pay all the costs of their own defence even if they are found to be innocent (cl 133)
If passed into law, the intended consequences of such a draconian Bill are far-reaching.
Impact on freedom of speech and thought
• Almost any comment about anything has the potential to offend someone under the Bill. There would be a chilling effect on freedom of speech and thought if someone could claim the expression of a political viewpoint insulted them and was therefore discriminatory.
• The consequences of the Bill go beyond restricting speech. Flying the Australian flag would be unlawful if a person felt such an action insulted them on the basis of their political opinion.
Impact on freedom of religion
• The Bill would make it unlawful for a person to publicly express their religious belief (for example, by wearing a crucifix) if another person was offended because of that other person’s religion. (How about wearing a burqa or headbag?)
• The Bill would also make it unlawful to debate religion and religious practices if another person was offended because of their religion.
Government officials gain enormous power
• Both the potential grounds of discrimination in the Bill—such as a person’s political opinion or their social origin—and the defences against claims of discrimination—such as the conduct being ‘in good faith’ and having a ‘legitimate aim’ (cl 23-3)—are unclear and vague. These ambiguous terms give bureaucrats and judges broad discretionary power to determine the boundaries of lawful behaviour.
• Discrimination on the grounds of political opinion and social origin is unlawful if it is in connection with ‘work and work-related areas’ (cl 22-3). These terms are so broad as to potentially apply to spheres of activity well beyond the workplace. Furthermore, the government intends to take a ‘broad’ interpretation of what constitutes ‘work- related areas.’
Process and penalties
• An accusation of unlawful discrimination starts a legal process that could last years. Complaints are heard by the Australian Human Rights Commission, the Federal Magistrates Court, or the Federal Court of Australia. Penalties for unlawful discrimination range from a forced apology, to the payment of monetary damages, to court-ordered censorship (cl 125).