Lawyers have rebuffed claims the wording of the federal government’s proposed anti-discrimination law could pose a threat to free speech. But while they scratch their heads about the reason for the overhaul, they’re preparing for an onslaught of new work if the laws pass.

The exposure draft of the Human Rights and Anti-Discrimination Bill, released last month by Attorney-General Nicola Roxon and Finance and Deregulation Minister Penny Wong, consolidates anti-discrimination laws relating to race, s-x, disability and age. If it passes Parliament early next year it will replace five acts relating to discrimination. The Government argues it will remedy the “complex and inconsistent” Commonwealth anti-discrimination laws that currently exists.

Submissions to comment on the draft close today. Some high-profile legal and political experts have publicly weighed in.

It’s the addition of the definition that refers to racial discrimination as treatment that “offends” that has former NSW chief justice James Spigelman waving a red flag. Spigelman said in a speech the words “offend” and “insult” impinge on freedom of speech — and a new subjective test essentially means offending people would amount to unlawful discrimination.

But a workplace relations partner at Allens, Simon Dewberry, told Crikey courts already deal with subjectivity in the wording of laws and it’s the job of judges and barristers to decipher those laws according to the case. “It won’t change the underlying legal tests. This is something courts have to grapple with now,” he said.

Dewberry says the kinds of provisions introduced in the legislation, and the way they are tested, are not new. “With the broad nature of the test they propose, it will be similar to what it is now,” he said. But while the tests will be similar, one lawyer labeled the rejig “a bit bizarre”.

“This will lead to an increase in cases,” said Alice DeBoos, partner and head of the workplace relations group at law firm Middletons. “I understand the desire and policy objective in simplifying five acts into one, but I don’t understand why there is a need to change the current definition of discrimination. It’s a reasonable definition.”

The proposed laws also reverse the onus of proof, which has lawyers readying themselves for more defense work and more cases. The bill’s explanatory notes state that under this “shift” the complainant must provide evidence, and from this the court could decide the alleged reason for the complaint is the reason the respondent engaged in the conduct. This basically means the court will assume the conduct occurred unless it is proven otherwise. This is a case of guilty until proven innocent.

Under the new definition, once a claimant establishes a claim they’ve been discriminated against it is up to the respondent to prove the discrimination didn’t occur. “This change will tilt the balance in favour of complainants, encourage more claims and a reliance on courts to solve human resources issues,” Dewberry said.

He said the change will “encourage claims”: “The risk with a test like this is that you have to rely on the courts to interpret what the test means. It encourages people to test their position, and you have to arrive at court to work that out.”

Deboos agrees. “It make it easier to run a case and more difficult to defend a case … But it’s not hard to make a discrimination claim as the law currently stands. It’s a relatively efficient process as it is. When there is not pressure to change a particular policy it is confusing as to why they shake it up.

“From a legal perspective that’s a difficult pill to swallow given that the basic principle is that if you bring a case you establish that case.”

One lawyer, who spoke anonymously to Crikey, joked: “Yes, unhappily, all this will give lawyers much more work.”

If the legislation passes it will also see discrimination cases move from the state tribunals into the federal and magistrate courts. In the federal system there are unlimited damages available, so more people will move to run their cases in those courts.

“It will sideline the state tribunals to a greater extent. Because it will be easier to prove their cases, and because those cases will be easier to run, people will try them in the federal courts where they may see more damages,” DeBoos said.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey