Rights laws lose touch with mainstream

11 March 2013

The federal government's Human Rights and Anti-Discrimination Bill looks as if it is now dead in the water, writes Professor Patrick Parkinson.

A draft bill was released for public consultation when we were all busy with our Christmas shopping. Anyone who wanted to make a submission had to do so in their spare moments between going to office parties, end of school year concerts and basting the turkey. Yet, despite it being the worst possible time of the year for consultation, there were more than 590 submissions concerning this draft bill, many of them making very detailed critiques. It also became a subject of major controversy in the media.

Although the government sought to reassure the public that this was merely a "consolidation" of existing laws, it was quickly apparent that it involved a massive expansion in the reach of anti-discrimination law. There were many criticisms of the bill, and on some points, the government was criticised from opposite directions. But there were three major problems.

First, duplication. The proposed law contained 18 different grounds on which someone could complain of discrimination and sue in court if mediation failed. In addition, the Fair Work Act 2008 provides that an employer must not take adverse action against an employee or prospective employee "because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin". The states and territories have comprehensive anti-discrimination laws as well. Tasmania has 20 different grounds on which you can sue for discrimination.

No one in government seems to have asked whether we actually need all these laws and why the federal parliament and the states have to compete in demonstrating who is more committed to "equality". The government's bill would have run counter to micro-economic reform objectives to reduce inefficient regulation and duplication.

Second, overreach. Hitherto, federal anti-discrimination laws mainly prohibited discrimination by persons possessing responsibility, authority or power in areas such as employment and education. The draft bill indicated a shift to a position where anyone can be sued for "discriminating" against anyone else.

Furthermore, the proposed law did not just apply to the normal domains of paid employment, education and the provision of goods and services but to membership of and the activities of clubs and associations. That even included informal groups gathering for social and literary purposes. Sensible exceptions applied, so it would still have been lawful to have a women's book club; but why regulate such groups in the first place?

The bill also applied to "participation in sporting activities (including umpiring, coaching and administration)" and to voluntary and unpaid work. Neighbours who help one another are volunteers. Stay-at-home mothers do unpaid work.

Third, freedom of speech. Notoriously, the bill would have made it unlawful to offend someone on the basis of a "protected attribute". This was widely criticised. The bill would even have made it unlawful to offend someone based on their political opinions. No government should introduce a law that many MPs, on both sides of the political divide, would break regularly if it applied to debates in parliament.

The greatly increased scope of the proposed law would no doubt be seen as an advance by those who see law as a means of enforcing tolerance. However, such laws have their downsides in terms of nuisance claims or misconceived complaints. The threat of litigation also has a chilling effect which may well impair sensible decision-making, especially when it is not clear what the law prohibits in a given situation.

Clearly, the government had not expected the breadth of criticism of its proposed reforms. The draft bill might have seemed to it to be relatively mainstream, based on the advice of the expert commentariat; but therein lies the problem. Anti-discrimination law experts and human rights organisations, including the Australian Human Rights Commission, seem committed to an ever greater expansion of these laws, more grounds of "discrimination", fewer exceptions and more areas of our lives regulated by law. The government's bill seemed to represent an agenda that had largely been uninfluenced by moderate voices.

Most people are opposed to discrimination and support sensible laws about this. However, anti-discrimination law in Australia has now become an area of division rather than consensus. "Equality rights" need to be balanced with freedom of speech, association and religion and even just freedom from regulation. It is time for a major rethink about what laws we really need on discrimination, and how many.