It's shocking to think that this proposed legislation even made it to the drafting stage. Who could possibly put their name to this abomination? As usual, the Gillard Government proposes to exclude itself from the effects of its rabid laws, but as Victoria's Attorney General Robert Clark points out, everyone else will be subject to what amounts to thought control. And thanks to The Australian newspaper for its vigourous pursuit of this issue and our right to free speech.
Labor's dangerous discrimination draft should be shown the door
- BY:ROBERT CLARK
- From:The Australian
- January 28, 2013 12:00AM
Instead, the proposed law would impose sweeping restrictions on freedom of speech and on people's conduct in their workplaces, shops, schools and clubs. It would also impede the ability of state police and state governments to protect the community.
The draft law proposes dramatically to extend the definition of discrimination to include conduct that "offends" or "insults" another person, based on 18 specified attributes including age, gender, political opinion and "social origin".
If this becomes law, merely expressing a view that others find objectionable because they (or their friends) have such an attribute could constitute an act of "discrimination" for which the person expressing the view may be liable to pay compensation.
The prohibition would not even be based on what a reasonable person might consider insulting, but on whether the person complaining felt offended or insulted.
The prohibition would apply not only to statements made in public debate, but to private conversations in places such as workplaces, schools and clubs.
Not only does this threaten long-standing freedoms under Australian law, it is also contrary to the right of freedom of expression set out in the International Covenant on Civil and Political Rights, which is one of the key international treaties on which the Gillard government claims its new law is based.
The draft law also proposes sweeping extensions to where discrimination is prohibited. Current law regulates specific groups that might discriminate, such as providers of employment, education, goods and services, clubs, and sporting associations.
However, the draft new law covers the conduct of any person "connected with any area of public life". This means the law will regulate the conduct of any employee of a business, any student at a school, any customer in a shop, any volunteer in a community organisation, any blogger - and so forth.
The draft law could also dramatically affect the ability of state governments to serve and protect their communities.
It appears to apply, for example, to responsibilities of police and other law enforcement authorities such as the pursuit, arrest, transport and detention of suspects, transport and accommodation of prisoners and exercise of discretion by prosecutors.
If the Gillard government's proposal becomes law, police and prison authorities could be hamstrung in their work of protecting the community by a barrage of anti-discrimination claims brought by suspects, offenders and prisoners.
The Gillard government proposes to exempt all its own activities authorised under commonwealth law from the application of its new law.
However, it proposes no such general exemption for activities authorised under state laws, even though a vast range of state government roles affected by the new law are crucial for safeguarding the community.
The draft law will also create a greatly expanded layer of regulation in addition to the existing state anti-discrimination laws, with different rules and exemptions for the same types of conduct, producing uncertainty both for those who have been discriminated against and for those who are trying to comply with the law.
In addition, the proposed law gives the Australian Human Rights Commission a power to issue "compliance codes" that could exceed the standards in the draft law and would operate to override state anti-discrimination law.
All of this involves a massive increase in red tape, not only for businesses but for voluntary community organisations, with directors and office-holders facing liability for these sweeping new forms of "discrimination" by their employees and volunteers, and also facing a reverse onus requiring them to prove that they or their staff or volunteers did not act for a discriminatory reason.
The hardest hit will be small and medium-sized businesses and small volunteer-run community organisations.
To add to the uncertainties, there are also doubts about the constitutional validity of the proposed new law itself.
The government relies on its power to implement international treaties to justify much of the proposed law. However, as former NSW chief justice James Spigelman has said "none of Australia's international treaty obligations require us to protect any person or group from being offended".
The law's attempt to restrict state governments in areas such as law enforcement and management of prisoners also seems to be beyond the commonwealth's powers.
This flawed and dangerous proposal needs a lot more scrutiny and debate before it gets anywhere near the statute book.
Robert Clark is Attorney-General of Victoria.