Some insights into federal anti-discrimination legislation


Some insights into federal anti-discrimination legislation

Roger Wilkins, Secretary, Attorney-General’s Department has this week informed the Senate Committee about the background and intention behind the Human Rights and Anti-Discrimination Bill 2012.


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Roger Wilkins, Secretary, Attorney-General’s Department has this week informed the Senate Committee about the background and intention behind the of the Human Rights and Anti-Discrimination Bill 2012.

Wilkins covered the legislation in some detail and made a number of noteworthy points including:
‘In particular, I want to address (1) the scope of the project to consolidate the five existing Commonwealth anti-discrimination statutes and the background of the draft bill and (2) some of the key issues raised in public submissions and in the committee’s hearings.

[Government’s intention]
Firstly, much has been said about the scope of this project. It is probably useful to clarify the government’s intention, which is primarily to consolidate the five existing and, at points, different and inconsistent and complex laws that represent the anti-discrimination laws.

The project was established with four key aims in mind: firstly, reduction in complexity and inconsistency in regulation to make it easier for individuals and businesses to understand rights and obligations under the legislation; secondly, no reduction in the existing protections in federal antidiscrimination legislation; thirdly, ensuring simple, cost-effective mechanisms for resolving complaints of discrimination; and, finally, clarifying and enhancing protections where appropriate. It was not the government’s intention to significantly expand the protected attributes under Commonwealth antidiscrimination law or revisit longstanding principles underpinning these laws. The government has been open and clear that this is an opportunity to make some improvements to the efficacy of the system.

The draft bill simplifies the current anti-discrimination regime and makes it more flexible. This will make it easier for individuals to seek redress when they have been discriminated against and provide duty holders with greater clarity in understanding their obligations. In particular, the draft bill includes a range of voluntary measures to assist people to understand their obligations. These include the ability of the Australian Human Rights Commission to issue non-binding guidelines to aid understanding of the legislation, greater emphasis on the development of voluntary action plans, and other voluntary measures such as compliance codes and special measure determinations, which can provide certainty for duty holders, pre-eminently businesses …

[Sexual orientation and gender identity]
… The government does intend to introduce sexual orientation and gender identity as protected attributes for the first time at the federal level. This is a significant and overdue reform in this area …

[Justifiable conduct]
The government seeks to clarify protections through better operating exception provisions, including the introduction of an exception for justifiable conduct. 
Some comments and criticisms about the possible expansionary impact of the bill have been based on an interpretation of the draft bill that ignores these proposed changes. That said, the department welcomes the views of those many stakeholders who have constructively engaged in this process to highlight where the wording of the draft bill may not match the policy intentions ...

[Changes possible]
In response to the discussion paper released in September 2011, the department received 240 submissions from a wide range of stakeholders on the key issues and questions relating to the current anti-discrimination laws, and those submissions guided the development of the Human Rights and Anti-Discrimination Bill 2012. However, stakeholders were very keen to see the details of the proposals, and that is why the government released the exposure draft bill late last year and asked this committee to conduct public consultations on the details of the legislation.
And I just want to emphasise that it is a draft. While the government has certain policy intentions, it welcomes feedback from stakeholders, as well as this committee, as to any changes that should be made to the draft bill before its introduction into parliament to meet those intentions.

So I will just re-emphasise those two points … One is that the scope of this exercise is really to consolidate existing law. The second thing is that we are not going to be defensive about this. If people have better ideas about how it should be drafted, then they will be listened to and presumably properly considered in the processes down the track. Certainly the government will take away and have a look at anything this committee has to say.

[Policy issues]
I will now go to particular policy issues. I will address five areas in the draft bill that have been raised and that, as I understand it, have been quite central to submissions and discussions of this committee and the hearings before the committee — first of all, the inclusion of the words “offend” and “insult” in the meaning of discrimination in paragraph 19(2)(b); secondly, the religious exemptions; thirdly, the burden of proof; fourthly, the protection for new grounds in work, including including political opinion and religion; and finally, the impact on the states and territories. These are not the only issues, obviously, but they appear to have attracted the most attention and would probably most benefit from a short opening explanation from the department ...

[“offend” and “insult”]
On the meaning of discrimination and the inclusion of “offend” and “insult”: a lot has been said about the inclusion of “offend or insult” in clause 19(2)(b). The intention of the wording is to clarify what courts have already found — that racial, age, sex and disability discrimination can include harassment on those grounds. It is intended that clause 19(2)(b) be read together with clause 19(2)(a) — that is, that discrimination can include harassment or other conduct that offends, insults or humiliates another person. It was considered that an objective analysis of whether conduct offends or insults is inherent in this formulation.

The government’s intention was to clarify what constitutes harassment ... 
They are the four propositions. I guess the three major propositions there are: removing paragraph 19(2) in its entirety; removing paragraph 19(2)(b); or removing the words “offend” and “insult” and replacing them with stronger words. We are not all that prescriptive about which words; there is a range of words there. As I said at the outset, we are not defensive about this. If the committee or anyone else has some better idea about how to deal with this issue, we are open to suggestions. We can certainly talk through some of the things in the paper, which I have just tabled, but I will forbear from reading it out in great detail …

[Religious exemption]
I might move onto religious exemptions … Commentary on religious exemptions in the draft bill has covered a broad spectrum of views. Some groups argued that the exemptions are too narrow and should be expanded or recast in terms of religious freedom. Other groups have argued that the exemptions are too broad and should be further restricted or removed The burden of proof. The government’s preliminary submission to the committee, No. 130, sought to address some of the misunderstandings about the provision to shift the burden of proof. As a preliminary point the draft bill only imposes civil and not criminal liability. Statements that the draft bill removes the presumption of innocence, which only apply to the criminal rather than the civil context, are probably a little misleading. It should also be clarified that the burden only shifts in relation to establishing the reason for the conduct. It is not correct to say that a person must prove a negative or prove that something did not happen. The burden will not shift until a complainant has established that unlawful treatment actually occurred and that he or she has a relevant attribute ...’
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