Thursday, January 24, 2013

Committee examines discrimination bill - The Australian



QUEENSLAND sex worker Jodine reckons new federal legislation must outlaw the discrimination she experiences every day.



"I have been evicted from my leased accommodation, physically locked out of my car park, my gate codes changed so I couldn't get in. I have had money stolen by real estate agents withholding part of my rent for no reason other than I am a sex worker," she says in a submission to a Senate committee.


On the other side of the spectrum, an unnamed person says society is already over-regulated and there's a perfectly good manual for human behaviour - the Bible.


"These (draft discrimination) bills if they become laws will not help but hinder society that is alread (sic) in moral decline," their submission says.


Almost 600 submissions have been made to the senate committee on legal and constitutional affairs, which is considering one of the more controversial pieces of legislation to come before federal parliament.


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That's Labor's proposal to reform federal anti-discrimination laws, consolidating the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975, Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986 into a single statute.


The reform stems from a promise made before the 2010 election to roll age, disability, race, sex and other forms of discrimination, including sexual orientation and gender identity, into one law.


The draft bill was released late last year for public comment.


It defines discrimination as "unfavourable treatment" and has a simple defence of justification. Discrimination would be lawful when done for a legitimate reason proportionate to the aim.


There would be religious exemptions, except in relation to commonwealth-funded aged-care providers.


Revealing the draft legislation last year, Attorney-General Nicola Roxon cited the ridiculous example of an African woman who needed to make separate complaints of sex and race discrimination.


"Now she can make a single complaint, recognising the discrimination was because she was both a woman and African," she said last year.


Ms Roxon acknowledged some may think the government hasn't gone far enough in proscribing certain forms of discrimination. The Greens, for instance, say discrimination on grounds of social status or irrelevant criminal record should also be outlawed.


"I believe we have actually chosen a very sensible middle course," Ms Roxon said.


The submissions, and evidence to the committee in public hearings, show there's no shortage of diverse opinions.


Some say the government needs to go much further, and others say it goes way too far.


The opposition has objected loudly, as have groups such as the conservative Institute of Public Affairs, which wants the Australian Human Rights Commission abolished on the grounds it selectively defends a human rights agenda determined entirely by the left.


Two issues in particular have attracted broad criticism.


One is the so-called reversal of the onus of proof, slammed by shadow attorney-general George Brandis as a violation of the fundamental principle upon which Australia's justice system has always operated.


In its best understood form, in a criminal trial, the onus of proof means the prosecution has to prove a defendant committed a particular crime. There's no requirement on the defendant to prove he or she didn't.


"If you make an allegation against someone, it's for you to demonstrate that they have done the wrong thing, not for them to prove that they have done the right thing," Senator Brandis said.


President of the Human Rights Commission Gillian Triggs defended this proposed change as a sensible refinement.


The complainant must still provide evidence of discrimination and the commission will gain an enhanced power to dismiss clearly unmeritorious complaints.


Once it's satisfied discrimination actually occurred, only then is the respondent, typically an employer, expected to respond, justifying the discriminatory conduct or admitting wrongdoing.


"It is common sense. The obligation to produce evidence is placed with the person in the better position to produce it. Consumer protection laws already do this," Professor Triggs said in an opinion piece in The Australian newspaper this week.


Many submissions object to measures seen as likely to stifle free speech.


The controversy around this follows the case of News Limited columnist Andrew Bolt, found last year to have breached the Racial Discrimination Act in columns published in 2009 and headlined "It's so hip to be black" and "White fellas in the black".


Federal Court Justice Mordy Bromberg was satisfied that fair-skinned Aboriginal people were reasonably likely to have been "offended, insulted, humiliated or intimidated" by these articles.


Bolt's articles collided with the Racial Discrimination Act which defines racial vilification as "conduct reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people".


The new legislation maintains that provision and extends it beyond racial vilification to other areas of discrimination, a move which former NSW Supreme Court chief justice and now ABC chairman Jim Spigelman says is going too far.


He said a freedom contingent on proving, after the event, that it was exercised reasonably was a much reduced freedom.


"The freedom to offend is an integral component of freedom of speech. There is no right not to be offended," he said in the Human Rights Day Oration in December.


Prof Triggs said there were loud calls for these provisions to be deleted.


"... indeed it might be wise to amend the bill so far as it applies to acts that offend or insult, if only to preserve the valuable reforms that the rest of the bill will provide," she said.


Prime Minister Julia Gillard said the exposure draft was released so people could have their say, and that was occurring.


"We would not have gone down an exposure draft route if we didn't want people's feedback, so we will get the feedback and consider it," she told reporters in Canberra.


The committee has one more public hearing, in Canberra, on February 1.


Then members will have to review the submissions and evidence to the hearings, draft a report and get it back to the government by February 18.



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