Three great articles on free speech

The Australian today has three important pieces on the Gillard government’s anti-discrimination laws and their implications for free speech.

The chief justice of the Family Court has slammed the government’s plan to undermine the presumption of innocence ($). Note many so-called human rights advocates have attempted to paper over or justify watering-down this fundamental legal principle:

Chief Justice Diana Bryant of the Family Court says the government’s rationale for reversing the onus of proof in federal discrimination law is “tenuous”.

Her criticism of the policy rationale, outlined in an extensive submission to the Senate inquiry into the government’s draft bill, is the latest in a series of rebuffs for the government’s plans from leading figures in the law.

Her submission, dated December 21, has come to light after similar concerns were expressed by the nation’s peak business group, the Business Council of Australia, and the Institute of Public Affairs.

“There are processes by which relevant evidence can be elicited without disturbing the principle that a person making allegations, of discrimination or otherwise, bears the burden of proving those to the requisite standard. This proposal represents a significant departure from the current approach of applying the full burden of proof to the complainant and I observe it is not consistent with the approach taken in state and territory anti-discrimination legislation,” Chief Justice Bryant writes.

Chris Merritt, The Australian‘s legal affairs editor, has an excellent piece ($) on the unintended consequences of the draft Bill, for example, preventing employers from discriminating against employees with racist views because those views could constitute a “political opinion” (which is protected under the draft legislation). The article also features Simon Breheny’s analysis of the proposed amendments to the Bill:

After referring to the racist politics of Hitler, Senator Brandis said he challenged the proposition that racism or discrimination on other grounds was not capable of being regarded as a political opinion.

Mr Wilkins replied that “I am prepared to concede that it can be a political opinion”, but this could be solved relatively simply during the drafting process.

The significance of Mr Wilkins’ concession is that it implies that legal proceedings under the current version of the draft bill could be launched by those who are treated unfavourably at work because of political opinions based on racism, homophobia or other forms of discrimination.

Mr Wilkins told Liberal senator Scott Ryan “you might be right” after the senator raised the possibility that a Vietnamese community organisation could fall foul of the law for refusing to employ an organiser who was a candidate for the One Nation party and supported restrictions on Asian immigration. “You might be right,” Mr Wilkins said.

“We will look at that case.”

Simon Breheny, director of the legal rights project at the Institute of Public Affairs, said the proposal to remove the clause banning conduct and speech that offends, insults and intimidates was a good step “but it doesn’t go anywhere near far enough”.

“The draft bill is fundamentally flawed. Superficial amendments cannot save this deeply flawed proposal,” Mr Breheny said.

“Even if one of the proposed amendments is made, the draft bill still reverses the onus of proof. This would make the law unjust and encourage an explosion of litigation.

“Discrimination and harassment are two very different concepts.

“If the courts have merged these distinct ideas, it is for parliament to correct this mistake and ensure that only unfair discrimination is caught by anti-discrimination laws.”

Finally, Michael Sexton makes the good point that defenders of these laws don’t feel the need to justify their attacks on our liberties ($):

But where is the response from those in favour of these laws? There hasn’t been one. Yet we know that there is no shortage of persons in influential positions who do favour these kinds of laws. The fact that there is such legislation on the statute books at the federal level and in most states and territories indicates that they were pushed through the parliamentary process by powerful lobby groups.

It is a measure of the muted discussion in Australia of so many political questions that proponents of these laws feel they do not have to answer any criticisms of them. Partly, of course, this comes from the sense of moral certainty held by many groups that are confidently prepared to decide what is best for the community. But there is also the quasi-religious belief in some quarters that any opponents are intrinsically evil and do not deserve a response.


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