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‘Options’ won’t fix anti-discrimination mess

The Attorney-General’s Department has tabled a document with the Senate committee inquiry into the government’s anti-discrimination draft Bill. The document outlines a list of ‘options’ for amending the draft Bill in response to the wave of criticism that has recently engulfed the proposal. I’ve written a detailed analysis of the options paper for the benefit of FreedomWatch readers.

The options relate to the definition of discrimination under clause 19 of the draft Bill which currently reads:

Discrimination by unfavourable treatment
(1) A person (the first person) discriminates against another person if the first person treats, or proposes to treat, the other person unfavourably because the other person has a particular protected attribute, or a particular combination of 2 or more protected attributes.
Note: This subsection has effect subject to section 21.
(2) To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:
(a) harassing the other person;
(b) other conduct that offends, insults or intimidates the other person.

The tabled document lists four options:

  1. Remove paragraph 19(2)(b)
  2. Remove subclause 19(2)
  3. Use alternative words in paragraph 19(2)(b)
  4. Clarify that the test is objective

1. Remove paragraph 19(2)(b)

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.” And as Chris Berg has outlined, there are important conceptual differences between discrimination and harassment. Not to mention that we already deal with harassment in existing state law (see Victoria, for example).

2. Remove subclause 19(2)

The better option is to remove subclause 19(2) altogether. The Attorney-General’s Department seems to indicate that they don’t like this option, however, because “courts have found that discrimination can include harassment.” This argument highlights a major problem with the consolidation process. One commentator has said that there are at least ten different definitions of discrimination under existing anti-discrimination law. Attempts to merge them all into a single definition under the draft Bill has resulted in a complete mess. For each definition of discrimination there is a body of judicial interpretation that has built up over time. Merging these bodies of law is no simple process, but the Attorney-General’s Department seems to want to have its cake and eat it too. Either the various existing laws are being merged into one and the proposal radically changes the law or the definitions remain distinct and the law doesn’t change much at all (and then what’s the point of consolidation). It can’t be both. Add to this that the government has committed to a lowest common threshold approach and you get a proposal that is begging for an explosion of litigation. All good news for the Australian Human Rights Commission, which hears all complaints of discrimination.

And there’s a broader point here too. Lawmakers should never allow themselves to be dictated to by the decisions of unelected judges. Where the law has been misinterpreted, it is for our democratically elected representatives in parliament to step in and correct the mistakes. Instead, this process has resulted in a draft Bill that fails to respond to the clear problem of trying to define discrimination by reference to harassment, or conduct that offends, insults or intimidates.

3. Use alternative words in paragraph 19(2)(b)

The options paper makes a number of suggestions for words that could replace “offends” and “insults” in the definition of discrimination. These include words just as ambiguous as those already in the draft Bill: “degrade,” “denigrate,” “humiliate” and “intimidate.” This option is a farce and should be rejected.

4. Clarify that the test is objective

Extraordinarily, the test for conduct that “offends, insults or intimidates” is entirely subjective under the draft Bill. The originally proposed test is whether the person making the complaint is actually offended, for instance, as opposed to whether a reasonable person would be offended by the conduct complained of. Such a test gives a huge legal advantage to the most hypersensitive members of the community and makes the law impossible to comply with. The draft Bill should have had an objective test from the beginning, not just after months of sustained criticism.

The idea that minor amendments can save the draft Bill is becoming a very bad joke. The reality is that this proposal is fundamentally flawed. As I explained last week, the draft Bill simply cannot be cured. None of the options presented by the Attorney-General’s Department would restore the reversed burden of proof under the draft Bill, fix the costs structure that would encourage frivolous litigation or overcome the fact that this draft Bill threatens, rather than protects, human rights. Mark Dreyfus should take advantage of the opportunity he has been presented with as the new Attorney-General and abandon the anti-discrimination consolidation project altogether.

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