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The draft Bill that can’t be cured

Attorney-General Nicola Roxon’s back down is a welcome development in the debate over the government’s anti-discrimination proposal. But it falls well short of what is needed – the complete abandonment of this ill-conceived consolidation project.

Roxon has announced that the phrase “offends, insults or intimidates” may be removed from the definition of discrimination under the exposure draft Human Rights and Anti-Discrimination Bill 2012.

But these changes don’t come close to going far enough. Merely taking out a few words from a fundamentally flawed proposal will not cure the deep deficiencies contained in the draft Bill.

It’s worth noting is that no changes have been proposed regarding the reverse burden of proof under the draft Bill. In practical terms, a complainant need only make out the barest case – a prima facie case. This is the test courts usually employ to determine whether a claim should be dismissed before it is even heard. But under the draft Bill, the prima facie test is all the complainant needs to prove. The burden is then placed on the defendant to show that he is innocent of wrongdoing.

Certain members of the human rights lobby object that the term “innocent until proven guilty” simply doesn’t apply outside the realm of criminal law. This is true in a technical legal sense but it ignores the fact that it is also a logical presumption to say that someone is innocent of something until it is proven otherwise. One possible alternative to this common sense starting position is that we’re all presumed guilty of every possible illegal and unlawful activity until, on a rolling basis, we prove otherwise.

The Attorney-General and others have tried to justify the reverse burden of proof as an attempt to rebalance an apparently imbalanced regime. Their argument is that the defendant has better access to information regarding whether they have discriminated against the complainant. Of course, this is true of murderers and paedophiles too but no one is calling for a rebalancing of the system there.

If you ask these ‘rebalancers’ what they really mean you’ll probably hear something like this: discrimination complainants do not have the investigative powers that the police have in criminal matters, so the burden of proof should be shared between complainant and defendant. But this ignores the fact that there is already a mechanism built into the system to deal with this issue: the standard of proof.

In criminal cases, the person bringing the claim (the state) needs to prove the case ‘beyond a reasonable doubt.’ In civil litigation, the court decides cases ‘on the balance of probabilities.’ These differing standards are appropriate and help to create a just legal system – no further rebalancing is required.

Even if the “offends, insults or intimidates” clause is removed, the definition of discrimination would still include the word “harassing,” which is ambiguous enough to allow judicial interpretations that would infringe free speech. And harassment is an entirely different concept from discrimination, as Chris Berg explains here.

The proposed amendments would also do nothing to address the subjective nature of the test under the draft Bill and the complaint-friendly costs regime the draft Bill proposes, not to mention the threats to other human rights, such as freedom of religion and association. The list really does go on and on.

Until now, Roxon has dutifully defended her proposal – including the reversal of the burden of proof. She has tried to maintain that consolidation would make the law fairer and simpler. Two weeks ago, Roxon even assured us that her proposal would not infringe freedom of speech. Obviously this claim is completely untrue – her back down today is an admission of that fact.

The truth is that if the draft Bill was to become law, Australia’s anti-discrimination regime would be more of a legal minefield than ever before. This is why the IPA thinks the draft Bill should be rejected outright.

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