Jekyll and Hyde: the poor man’s Anti-Discrimination Bill

If ever there were a piece of contradictory legislation, this is it. The draft legislation for the Human Rights and Anti-Discrimination Bill 2012 entices the reader with a smorgasbord of overdue changes, including new provisions for sexual orientation and gender identity . . . then promptly consigns half of it to the bin.

Areas of concern include:

• an increase to limitations of free speech, and to the extent that certain of those limitations could be unconstitutional;
• reinforcement of the notion that religious freedom implies the right to discriminate according to the tenets of that faith;
• failure to protect the rights of Australians who do not adhere to any religious belief.

In short, the draft legislation entrenches and introduces policies that do not hold up well within a liberal framework of human rights.

A bit of background is in order. The purpose of the proposed legislation is to consolidate and simplify analogous federal anti-discrimination laws, including the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Age Discrimination Act 2004 and the regulating Australian Human Rights Commission Act 1986. Provisions in the Fair Work Act 2009 are also taken into account.

One important change in the legislation is the new emphasis given to 'unfavourable', as opposed to 'less favourable', treatment of members of protected groups, a subtle but significant shift in meaning:

To avoid doubt, unfavourable treatment of the other person includes (but is not limited to) the following:
(a) harassing the other person;
(b) other conduct that offends, insults or intimidates the other person.

As James Spigelman notes, the definition is a carry-over from section 18C of the Racial Discrimination Act, prohibiting conduct that is 'reasonably likely… to offend, insult, humiliate or intimidate another person'. As if that were not more than sufficient, the new legislation removes the qualification that conduct must be 'reasonably likely' to offend or insult; now the claimant need only feel offended or insulted, whether or not anyone else would find such feelings reasonable!

Free speech and the prohibition of offence are essentially incompatible. This is of particular concern given the restriction now applies to an array of attributes, not just racial discrimination. Quite simply, free speech is allabout offence, and is a fundamental requirement for a liberal, democratic society. We would not enjoy the freedoms we do today were it not for the fact that abolitionists, suffragettes, civil rights activists and GLBTI activists were prepared to offend the proponents of the status quo, and in some cases to pay a heavy price, to win those rights we now all take for granted. For this reason, free speech is considered sacrosanct in liberal democracies, and is a freedom that Spigelman claims we have an international obligation to protect: 'We would be pretty much on our own in declaring conduct which does no more than offend to be unlawful. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.'

There is certainly no right not to be offended, and this is where things get tricky - both political opinion and religion are two attributes that are protected specifically for the workplace. Now, it seems likely these were originally introduced to prevent employers from refusing employment or otherwise discriminating on the basis of a person's religious or political persuasion. However, given the aforementioned proscriptions on offending and insulting, we now have an interesting situation in which it becomes risky to discuss politics around the coffee machine, for fear of causing offence to co-workers and being hauled off to the Commission. If some columnists are getting upset about this, they are probably on to something; it could be that the proposed legislation is unconstitutional and could fail to withstand scrutiny by the courts.

Religion, meanwhile, has ensconced itself into the Australian political system. To gag the criticism of religion is synonymous with the smothering of open political debate. Workplace blasphemy laws could well be unconstitutional too.

Since religion is and will continue to be a protected workplace attribute, one might assume that the religious are expected to return the favour, so that every other protected attribute is protected within the realm of religion. To some extent, the draft legislation treads that path. It is with great relief that we learn that religious providers of aged care will no longer be permitted to discriminate against their elderly residents, including persons of alternative sexual identities and sexual orientation. The fact that, currently, such providers can still deny the aged GLBTI community basic fairness and decency is a disgrace.