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Dec 21, 2012

New anti-discrimination laws: ‘more work for lawyers’

Draft anti-discrimination legislation is a difficult pill to swallow for lawyers, who question the reasoning. But they’re welcoming the inevitable flow of new work, legal affairs reporter Kate Gibbs writes.

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.

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19 comments

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19 thoughts on “New anti-discrimination laws: ‘more work for lawyers’

  1. Warren Joffe

    The worst thing about Nicola Roxon’s latest folly is the reverse onus of proof. Imagine what she would have been told by one of the old style ALP union officials – the kind who coined the expression “In any horse race where Self Interest is running, put your shirt on it”. But it is worse than blithely ignoring human nature, both raw and in its current cultural context, because the practical reality is also ignored. That is the hopelessness of the large business, yes the large this time rather than the small, when required to muster a positive defence against some opportunistic former employee who decides to have a go by alleging some form of currently fashionable and therefore perhaps readily believable “discrimination”. Of course a solitary opportunist might raise enough indignation in his/her former peers to have them rally to the corporate defence but it is an invitation to a little clique to get together to have a try on. With the assistance of union officials egging them on as part of a campaign (abusing process in a way which would make James Ashby gasp) against tome employer there may not be many contested cases which succeed but there will be plenty of costly aggro caused to employers (in particular, though the churches and other non-commercial bodies can expect legal harassment too).

    Presumably offending people will not become a sufficient criterion after Jim Spigelman’s speech but he didn’t go far enough. Attempting to humiliate someone shouldn’t always be regarded as the state’s business. Let alone saying things which someone might choose to find humiliating. America’s First Amendment may have some undesirable by-products but, outside the field of comment prejudicial to court cases we should surely emulate its encouragement of free speech.

  2. Kevin Bonham

    Changes to the laws may also increase the numbers of people who have their time wasted defending themselves against unsuccessful prosecutions or investigations that lead nowhere. If you greatly broaden the wording, you increase the number of cases people might think the law applies to, even if they are wrong. That the courts know the score (supposedly) is no comfort to anyone who has to spend months of their life getting their name cleared.

    The proposed federal changes, however, are chickenfeed compared to those that passed the Tasmanian Lower House and go before the state’s Upper House in the new year.

    I’ve written about these at length at: http://kevinbonham.blogspot.com.au/2012/11/anti-discrimination-change-requires.html
    and
    http://kevinbonham.blogspot.com.au/2012/11/an-open-letter-to-brian-wightman.html

    Although a lot of noise on this issue is coming from the right this should not be seen as a right-left issue; the laws could affect many who are not on the right at all.

    Andrew Leigh recently made an argument for Labor to be seen as now the home of small-l liberalism. While Labor governments push for increases in unnecessary restrictions on free speech, or in laws that may create inconvenience for the outspoken, there is no chance of that and Australian politics is one bunch of illiberals against another, with the alternatives being even more illiberal (on certain issues) fringe parties.

  3. sparky

    All laws give lawyers more work, they have a purpose you know.

  4. Marrickville Mauler

    Just a hint from someone who actually knows what they are talking about and has read the Bill, EM, RIS and every submission published so far rather than just a couple of media reports and Spiggsy’s usual superficial stuff: Lawyers including community legal centres in particular are whingeing because they suspect (rightly) that this legislation would lead to LESS work for lawyers.

    Warren Joffe, please learn to read before you emit / pontificate any further sententious crap. The Bill does NOT contain a reverse onus. Go back to first year and report back when you have passed.

  5. Warren Joffe

    Oh what a clever boy you are M M: you implicitly claim some legal expertise and say you have read the “Bill” (described in the article, no doubt accurately, as an “exposure draft” so, at most, a “draft bill”). What a pity you didn’t take notice of the article which said/says
    “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.”

    Is there some distinction (a distinction without a difference on the face of it)you woulld like to assert and rely on as material between this description of what the draft bill would do and a reverse onus?

    Or do you say that the author of the article is wrong in what I have quoted – and accepted because it is what a lot of other people are saying and you are the first person I have found to deny the truth of it?

    If so is your attention to a statement in a blog comment rather than the same point in the main article an indication of the sense of relevance you would display in your advocacy for clients? The Magistrates in Marrickville must be tearing their hair out at the time wasting.

    For those not entirely convinced that the ipse dixit of MM is enough warrant for belief it may be worth quoting from the Explanatory Notes accompanying the draft bill, to wit:
    Under the heading “Major [sic] changes in the Bill”

    “improvements to the complaints process to improve access to justice, including:
    a shifting burden of proof once an applicant has established a prime facie case, to recognise that the respondent is best placed to know the reason for an action and to have access to relevant evidence (clause 124)”.

    Then you can read below:
    “Clause 124—Burden of proof in proceedings under section 120 etc.
    Overview
    458.Clause 124(1) provides for a shifting burden of proof for the reason or purpose for conduct when unlawful conduct is alleged.”

    While there are some words to be found which suggest that the critical section, Cl./Sec. 124, only embodies existing principles of policy, this is hard to reconcile with the words “Major Changes in the Bill” and reference to Cl./Sec.124 in that connection which reads:
    “124 Burden of proof in proceedings under section 120 etc.
    Burden of proof for reason or purpose for conduct
    (1) If, in proceedings against a person under section 120, the applicant:
    (a) alleges that another person engaged, or proposed to engage,
    in conduct for a particular reason or purpose (the alleged
    reason or purpose); and
    (b) adduces evidence from which the court could decide, in the
    absence of any other explanation, that the alleged reason or
    purpose is the reason or purpose (or one of the reasons or
    purposes) why or for which the other person engaged, or
    proposed to engage, in the conduct;
    it is to be presumed in the proceedings that the alleged reason or
    purpose is the reason or purpose (or one of the reasons or purposes)
    why or for which the other person engaged, or proposed to engage,
    in the conduct, unless the contrary is proved.”

    Considering that such cases are quasi-criminal I am surprised to find that MM, if he is a real rather than bush lawyer, is so insouciant about the burden being placed on the respondent who will be required to spend a lot of time and money preparing a defence if a complainant just says, on oath, a few well-practised words which can’t be immediately shown to be lies or deluded. Moreover the complainant can have two shots at harassing the respondent because, after not getting satisfaction from a complaint at the Human Rights etc Commission he/she can take the matter to the Federal Court or Federal Magistrates Court. Prima facie he/she can do that at no cost because (even assuming he or she had assets which could be used to pay the costs of the respondent, he/she can get the case off the ground with a little assistance from experienced or even learned friends as a litigant in person – often treated with great solicitude by courts – while the respondent is inevitably (at least if an employer of any kind) going to be lumbered with huge costs both legal and in terms of costs to the organisation.

    Of course there may be a few put-up jobs which cost the complainant a lot because a court takes a dim view of the case (a la Ashby perhaps) and if that becomes known early on we may not have to send too many people to Nauru…..

  6. Warren Joffe

    The last par. was referring to the theoretical possibility of costs being awarded against a complainant. (Don’t hold your breath however).

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  8. Christopher Nagle

    The human rights movement grew out of the gross abuses of civil populations as a result of totalitarian governance and war aggression during the thirties and forties of the last century. From this significant but basic bottom line, this ideological organism has grown through our culture like Wandering Jew.

    OMG! Look at that disgustingly prejudiced, stereotyping, racist, discriminatory and judgmental vilification of our Caulfield neighbors. I know it is only plant, but such language is now forbidden. I didn’t mean it. Some of my best friends are Jews……..Arggghhhhh!!!!

  9. Warren Joffe

    Dr Bonham, I haven’t had time to read and digest your links but am glad you are on the case with attention to fact and detailed argument.

    I am old and independent enough to relish the thought of joining a little oddly assorted group like Phillip Adams, Andrew Bolt plus…. well you get the picture and set up some provocations to show up the efforts of our legislators not to mention our worthy appointees to quite well paid sinecures which licence their personal opinions. Better still contempt of the Federal (Magistrates) Court for declining to apologise or whatever. Absent capital or corporal punishment there is b****er all that can be done to enforce respect for such laws in our country.

    Naive enthusiasts – sometimes till their dying days at age 90 or so (maybe Nugget Cooombs should come to mind) – rarely see all the complexities and ignore most of human nature. “Unintended consequences” and “unknown unknowns” are just a couple of the linguistic reminders that pop up. It is only with the greatest stretch of the imagination that I can sympathise with and get near to understanding the feelings, and the genesis of those feelings, of someone humiliated or intimidated or personally (not as a matter of taste or good manners, or altruistically) offended. And that is the sort of effort required of a typical former barrister on the bench so how can one possibly have confidence in the length of the Chancellor’s Foot being a good measure in these kinds of cases. (I am reminded of the best efforts of a fine Jewish lawyer arguing a case for anti-free speech measures on the ground that Muslims needed them. I am sure he was genuine even though it was swastikas on synagogues which undoubtedly prompted his legal and ethnic brethren to treat the legislative proposals as desirable contrary to their normal free speech principles. In short, the issue was so far from being susceptible of decision by the strict legalism which he/they were really good at that they were willing to set up the kind of irreconcilable and unconvincing stand offs over values that has long beset the US Supreme Court because of the Bill or Rights – which is, after all, much more settled in our culture and the interpretation of its concepts than contemporary legislative concessions to multiculturalism).

  10. Marrickville Mauler

    Warren # 5 – yes, actually I am an expert, and you should be old and independent enough to know you shouldnt believe everything (if anything) you read in the News Ltd or other papers.

    The Fair Work Act contains a reverse onus. This does not.

    The difference is, onus regarding establishing whether something happened at all once alleged (FWA) vs what were the reasons for conduct (exposure draft Bill)

    Those following Spiggsy’s sententious “no right not to be offended” might care to reflect on this:
    http://news.smh.com.au/breaking-news-sport/aleague-fan-outed-over-ifill-racist-abuse-20121223-2btc7.html

    and on the well established body of sexual harassment law