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 thinksthe draft Bill should be rejected outright.
Cross posted from Freedom Watch.nbsp;
Nicola Roxon “offends, insults or intimidates” me and I demand compensation. She is guilty and I expect her to pay all of my legal fees.
stackja
31 Jan 13 at 10:16 pm
This has always had the whiff of trickery around it.
Propose something outlandish, magnanimously withdraw the most contentious innovation and then leave the whole, still malodorous, package of totalitarian manure standing in a pile. Then sell the shit-heap as a ‘compromise’ and the middle way that only an extremist could find wanting or objectionable.
It’s good for West and Liberal luvvies like O’Farrell and Brandis too because they’ll claim they fought the good fight and left us with the good old laws of yore – and what could be more Liberal than that?
The Liberals are not serious aout changing this country for the better.
C.L.
31 Jan 13 at 10:17 pm
West = Wets
C.L.
31 Jan 13 at 10:18 pm
“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.”
The human rights lobby has become a part of the politically biased grievance industry. So it takes positions in relation to human rights that are like the position of the Deep Greens in relation to sensible conservation.
There is no clean end to this turd of a Bill.
Rafe
31 Jan 13 at 10:52 pm
we need to change the role of attorney general to upholding laws only, not coming up with these bullcrap ‘improvements’. a department of people to come up with more laws? no. thats the job of our representitives.
mundi
31 Jan 13 at 11:29 pm
That is SOP, CL, Standard Operating Procedure. They do it with pretty much everything, but especially when they think the majority won’t pay much attention, like with the water and land grabs. propose a total shutdown of pretty much everything west of the Dividing Range, then modify it to merely decimating a couple of cities. Compromise!
wreckage
31 Jan 13 at 11:36 pm
I think it is a trap for unwary players. They had always intended to drop that provision, but now think they can sneak through some other draconian provisions that have escaped scrutiny.
Samuel J
1 Feb 13 at 12:18 am
What gets me, Samuel, is the way our loyal Opposition lets that go through. They have the option of taking a position of “we are totally against hatred in all forms but the draconian provisions in this legislation prove that it is wholly concerned with restricting basic liberties”.
Send the whole thing back.
wreckage
1 Feb 13 at 3:01 am
Agree. And it was shameful how she got onto radio yesterday morning and pretended that it had all been a kosher exercise in “consultation”.
Blogstrop
1 Feb 13 at 6:17 am
A classic electricity supplier move from NZ.
You want to increase power prices by 5% , you announce a 9% increase, you wear the storm of protest on talkback and tabloid tv for 7 days……you then ‘backdown’ and announce public pressure has forced a rethink of the increase to 5%. Talkback and tabloid tv trumpets victory for the common man and without a further whimper you get your 5% from now grateful customers.
Easy peecy.
Alfonso
1 Feb 13 at 7:48 am
This derives from the undelying philosophy of law in use.
My terminology may be a bit loose here, so please excuse it in favour of simple communication.
If we are using a Code system (eg. Napoleonic or other European form) then the assumption is that “Nothing is permitted unless the Code states it so”. The alternative assumption of a Common Law (Roman, British, Judeo-Christian background) system is that “All is permitted unless specifically prohibited or punished by the law”.
The Common Law assumption begins with and provides for greater personal freedom than the Code system.
I am fairly sure that our legal system has been shifting assumptions for a long time – away from common law and towards a code approach.
John A
1 Feb 13 at 7:59 am
I support the bill as originally drafted. As a fat elderly chap I am liable to be discriminated against in pick up joints. I could take the birds to court and get an order to prevent this.
This bill also would help mitigate the greatest social problem of our time, namely pockets of poverty in the legal profession.
Rodney
1 Feb 13 at 8:37 am
Such a bill, dependent on the reversal of the onus of proof, is open to abuse more than the apprehended violence order system we have now.
It is a dog of a proposed law but Roxon doesn’t care because she has totalitarian tendencies.
She literally thinks being AG gives her discretion over speech.
She can shove it up her fat, pudgy arse.
.
1 Feb 13 at 9:26 am
Furthermore, it is part of my belief system that free speech is inviolable, inalienable and sacred.
Anyone who finds my deeds actionable automatically finds themselves with actionable behaviour themselves.
.
1 Feb 13 at 9:28 am
Ricola Noxious, fresh from “losing” every bit of incriminating evidence her Department held about the various dodgy doings of assorted A.L.P. crooks, is now starting to “lose” bits of her own proposed legislation.
Could it be that she too, swallowed a set of contact lenses in the glass of water at Juliar’s bedside, just like Craig Emerson did?
Since ‘Emo’ guzzled Juliar’s contacts, he has been blundering about bumping into things all over the place.
Juliar seems to have lost faith in contact lenses which have passed through the digestive systems of her various Cabinet colleagues. She is now doing Michelle Grattan impersonations.
Up The Workers!
1 Feb 13 at 10:03 am
I hope who “lost” the legal papers, either court officers, judicial officer, public servants or politicians suffer the full legal consequences of their dishonesty.
ALP judges, Ministers, MPs, union reps, quasi judicial VPs…Senators…the whole bloody lot deserves to go down into a fuming shitheap of fail.
.
1 Feb 13 at 10:10 am
I don’t know why anyone is crediting this idiots with being cunning. They’ve no form for anything but stupid actions followed by blinking incomprehension of the consequences.
You find this on both sides, but at the moment the left seems positively saturated with people who are so intellectually ossified that there are incapable of rationally considering anything.
Pedro
1 Feb 13 at 12:39 pm