Late yesterday afternoon, the Senate Legal and Constitutional Affairs Legislation Committee released its final report following its inquiry into the exposure draft Human Rights and Anti-Discrimination Bill 2012.
The majority report recommends the removal of clause 19(2)(b), which defines discrimination to include conduct that “offends” and “insults”. We’ve written extensively about the dangerous impact this provision would have on freedom of speech.
This is a welcome recommendation but it only addresses one of many problems of the draft bill, including the reversal of the burden of proof, a costs structure that benefits complainants and the inclusion of vague terms, such as ‘social origin’.
The committee has also recommended further expansion of the law from that which is already contained in the draft bill. They want to see the inclusion of new protected attributes ‘intersex status’, ‘domestic violence’ and ‘irrelevant criminal record’. As News Ltd reports:
Its report says employers should not be allowed to discriminate against workers with a criminal conviction that is “not directly relevant to the situation in which the discrimination arises”.
If the recommendations of the committee report are followed, religious liberty would also be further undermined ($):
As well as recommending the removal of exceptions allowing religious organisations to discriminate against individuals in the provision of services, the committee has called for changes that could require such organisations to make publicly available a document outlining their plans to use a clause that provides an exception for conduct that conforms to the doctrine of a religion or is needed to avoid injury to the religious sensitivities of adherents of the religion.
As I’ve argued in the past, no amendments can fix this deeply flawed bill. Indeed, removing the words “offend, insult or intimidate” doesn’t even fully deal with the bill’s threat to free speech:
Removing paragraph 19(2)(b) would be a step in the right direction but it wouldn’t go far enough. One concern is that it would still leave harassment as part of the definition of discrimination. The problem is that the word “harassing” could be interpreted by judges to include a very broad range of conduct. In the end, there is a real risk that such interpretations could threaten freedom of speech almost as much as the words “offends, insults or intimidates.”
Encouragingly, the Coalition members of the committee have written an excellent dissenting report, which rightly argues that the whole bill should be scrapped:
We had considered the possibility of recommending a series of amendments to the Bill, in order to repair the serious flaws which we have identified. However, in our view the Bill is riddled with so many fundamental errors, of both a technical and substantive kind, that we have concluded that it would be better to abandon it altogether.
The failure of Labor and Greens Senators on the committee – who have written the majority report – to recognise the deep flaws of the bill is disappointing. But the Coalition at least has seen the light.
UPDATE: Tim Andrews shares his views on the committee report at Free Speech Australia.