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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 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

    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.
    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:

    and on the well established body of sexual harassment law

  11. Marrickville Mauler

    PS, Warren # 5 – perhaps you might reflect on the length of your own reply to my short post and consider again your comment about time wasting? Just a thought

  12. James Butler

    I’m glad this is happening, Australia is 60 years late with proper Anti Discrimination laws, the way people of color are treated in this country is despicable, shameful and disgusting. The fact people like Pauline Hanson are celebrities and received millions of vote proves that Racism is part of Australia’s culture. Americans and Brits are SHOCKED when they come to live in Australia and hear Australians talk negatively of other cultures so openly at the work place or otherwise. I hope the laws are passed in their strictest form, but that’s not enough, the media machine should also change.

  13. Warren Joffe

    MM your deficiencies now extend it seems to have trouble with the simple device of Copying and Pasting to put many words into a text.

    Of course there is not better way than the brief and provocatively incorrect or illogical statement of the troll, such as both of yours, to ensure that other people may actually waste their time.

  14. Warren Joffe

    Please enlarge on your surprising post James Butler.

    1. If Australia is 60 years late that seems to imply that state of the art civilised liberal countries had “proper” Anti-Discrimination laws 60 years ago. When taking an active part in creating and extending our own anti-discrimination (equal opportunity etc.) laws from the 70s to the 90s I don’t recall anyone referring to foreign precedent of even UN or other treaties.

    2.Is Pauline Hanson a celebrity? It is true that she and her party won a number of seats in Queensland as a very temporary phenomenon in the late 90s but… now??? As for anything about her proving that “Racism is part of Australia’s culture” [i.e. in some sense in which it is not a part of almost every country’s – with the Japanese it goes without saying, the Indonesians aren’t very nice to Melanesians, and even the sainted Norwegians and other Scandinavians, as well as the Dutch, are not upholding the ideals we used to have for them. And that’s without going into the applause for Herr Sarazin [family was obvously Saracen, i.e. Muslim] in oh-so-PC modern Germany.

    3. I wonder what you actually know of Britain and the US and of Brits and Americans. Not much I suspect, but please show us you have an opinion based on serious experience which will be worth giving weight to. You do realise, I trust, that your American friends who are so SHOCKED (sic) have constitutional protection for people saying what they like, how they like, about Ni***rs, and that there are many US publications like American Renaissance, VDare, The Occidentalist (that’s from memory, may not be precisely correct) to name only journals with some intellectual respectability which, presumably, would make your hair stand on end. And why do you think there is so much Affirmative Action to get African-Americans, mostly, but also Hispanics, into good universities and government jobs and contracts, 48 years on from Johnson’s major civil rights legislation? Perhaps you should read Ron Unz’s article on “The Myth of American Meritocracy – How Corrupt are Ivy League Admissions” in December’s The American Conservative and the follow-up blog discussion in the New York Times. Those ignorant of American reality should start with “http://www.theamericanconservative.com/articles/the-myth-of-american-meritocracy/” is it is not too much for those whose intellectual stamina is only up to short tweets to a Crikey blog. Apart from Caltech (and perhaps Stanford which is not cited) America’s leading private universities (including, most notably, the Ivies in the supposedly liberal NE) discriminate heavily against Asian-Americans (and, in a great reversal of the post 1925 situation, in favour of Jews which is the big surprise in the article).

    And Earl Butz may be dead (he was the Secretary of Agriculture in the 70s who lost his job because of an outrageously anti-black joke) but the www will show you that there is still current and popular “What do {such and such chain shoe store) and Fedex have in common? They both are full up with 120,000 black loafers”.

    As to your Brits well you can no doubt find some who come to this country hoping to find something better than the racist and class attitudes they would know so well at home and maybe they are shocked to find ….. well, what? Do you mean by “black people” the dark Aborigines of northern Australia? If so, they may well have heard the odd tourist bus driver make some pretty dreadful jokes which are, regrettably, based on the reality of Aboriginal communities where wide spread drunkenness from early in the day is the rule. Shocking indeed, but it is the reality which is truly shocking.

  15. Warren Joffe

    MM – you really must be the despair of the non-time-serving Marrickville Magistrates. I would have expected in your “yes, actually,I am an expert” post something truly responsive to what I had said and quoted from the bill and memoranda. It would have been a logical response to say that the explanatory memoranda are misleading and that there really is no great change proposed to current policy and practice – which, because I am not all that interested in the matter, I would probably have been inclined to leave without further remark given that I don’t underestimate the likelihood of journalists, IPA and others getting things a bit distorted.

    As it is I am not too hung up on nitpicking over what truly fits the description “reverse onus”. But I do see a problem with creating quasi-criminal offences which impose a big costs and time burden on the defendant because they have to prove most of the substance of the matters disputed. Discovery and interrogatories (and how about oral interrogatories common in the US?) are far from entirely satisfactory except for lawyers’ incomes but it would be possible to keep the onus on the “prosecution” if the “prosecution” was entitled to interrogate at an early stage. Come to think of it – and getting away from what you may say about the way the government has itself presented the onus of proof issues – that might be a useful innovation, might it not? The complainant would be required to make a prima facie case after having received sworn answers to questions about the justification for the actions complained about. Comment on this not deeply thought out idea?

  16. Warren Joffe

    And thank you for the link MM. I am deeply unimpressed with the guidance a football league can give to the conduct of the state in imposing rules of behaviour and speech. I suppose it is a good thing that football administrators recognise that they are dealing with immature people and need to be stern about bad manners as one might have hoped a achool would be in disciplining one’s children.

  17. Warren Joffe

    I’ve just found this in my Inbox and don’t have the time to check its truth

    ” In simple terms, the legislation would make it unlawful to offend or insult someone on the basis of their ‘political opinion’ or ‘social origin’. This is a dangerous and unprecedented attack on freedom of speech and thought in Australia and it would give judges and bureaucrats enormous power over our daily lives. ”

    Shocking if one can’t insult someone as a “rich Tory trustafarian of dubious but profitable ancestry”….

  18. Marrickville Mauler

    I’ve just found this in my Inbox and don’t have the time to check its truth

    Says it all, Warren.

  19. Warren Joffe

    We already know you have enough IQ points MM to be able to prepare for a Year 8 debate with glib catchphrase but what about showing you can do some joined up thinking, if not exactly analysis. What does it say MM?

    Now that I have Googled for “social origin” and “political opinion” I have of course found confirmation of the essential assertion of fact that I quoted. Moreover objection comes from interesting sources. Without bothering about the problems with “political opinion” which, being a state of mind which isn’t directly examinable, must be inferred to name only the most obvious difficulty, here is something from the Sydney Morning Herald:

    Rick Feneley

    The Sydney Morning Herald, 13 December 2012

    THE planned extension of anti-discrimination laws to cover ”social origin” could give legal weight to a class system and threaten Australia’s egalitarian spirit, the chairman of the NSW Community Relations Commission warns.

    Stepan Kerkyasharian has joined a chorus of concerns about the federal bill and its potential to curb freedom of speech by making it unlawful to ”offend” or ”insult” – not only on racial grounds etc…..”

    Despite your claim to expert status I am not sure whether readers would regard your opinion as interesting. Still, you might care to give your views on the desirability of people being able to take up court time over others saying things about their social origins or (necessarily expressed or clearly to and overtly implicit) political opinions which they say have offended them. You don’t think by any chance that Nicola Roxon and accomplices are of the simple minded negotiating school which thinks that ambit claims are always a good start so you can appear to the even dimmer or less attentive to be reasonable?


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