Proponents of the government’s proposed changes to anti-discrimination law have tried to use a number of arguments to convince the public that the changes are a good thing. One of the so-called benefits of the exposure draft Human Rights and Anti-Discrimination Bill 2012 is that it gives more power to bureaucrats at the Australian Human Rights Commission to decide what is and what is not a claim that deserves to be heard.
Last month, president of the Commission, Gillian Triggs, argued this point ($) in The Australian:
The bill proposes strengthening the power of the Australian Human Rights Commission to terminate unsubstantiated or misconceived claims, thereby ensuring swifter resolution of complaints. This will obviously be better and more efficient for business. It will also mean our courts will not be clogged up with unmeritorious matters.
That might sound like a good idea but giving more power to bureaucrats won’t lead to better outcomes.
The Gazette of Law & Journalism recently interviewed a media law expert and partner at law firm Minter Ellison, Peter Bartlett, on threats to freedom of speech. Bartlett was scathing of media regulators for failing to dismiss cases that clearly have no merit:
PB: The present anti-discrimination legislation we’ve got is a significant problem for the media, in that we’ve had articles on paedophilia and we get a discrimination complaint saying that it vilifies all Roman Catholics; we get one about a Turkish guy who’s had a run-in with the police, and we get a complaint saying it vilifies all Turkish people. They go too far some of these complaints and the problem with the regulatory authorities, whether it’s the Commonwealth or the State, they will not make a finding that a complaint has little merit. They will drag you in and you have to respond to these complaints in writing and then you need to go to a mediation and you spend so much time at these mediations and then if you don’t resolve the complaint at mediation the complainant can go to (in Victoria) VCA – to court and it’s very costly. Some of these complaints are ludicrous.
GLJ: And you are getting more of them?
PB: There are more and more of them. Regulatory authorities are not looking at them and saying this clearly has no merit and should be dismissed. It is very frustrating. [My emphasis.]
This raises significant concerns in the context of proposed changes to anti-discrimination law because the draft Bill reverses the burden of proof. So if an unmeritorious discrimination claim is brought against you, you can’t rely on the Commission to throw the case out and you somehow have to prove that you’re not guilty!
And here’s the bigger issue: who trusts the Australian Human Rights Commission to make these kinds of decisions?