Though Nicola Roxon has resigned as Attorney-General presumably her Anti-Discrimination Bill 2012 will continue to be pursued by her successor Mark Dreyfus.

The Coalition is opposed to the bill, some independents are also opposed and it has caused deep concern inside the ALP.

In the media, opposition is coming from three main sectors; industry, the media itself; and churches and faith groups.

Industry’s main concerns are about over-regulation, meaning compliance would be onerous in terms of time and money for businesses; “forum shopping” resulting from concurrent federal and state regulation and complainants being able to choose which jurisdiction is likely to give them the best outcome; and the reversal of the onus of proof with no objective test to measure if “unlawful discrimination” has occurred, which increases the likelihood of a rise in vexatious cases being pursued.

The media’s main concern is with the restriction of free speech if merely offending someone could amount to “unlawful discrimination.” Included here is the arts/entertainment sector. Playwrite Louis Nowra wrote of the effect it would have on free expression and creativity for it to be “unlawful discrimination” to offend someone. Dramatic devices such as satire and the iconic Australian sense of humour (“taking the Mickey”) would be effectively “outlawed” by such a definition of unlawful discrimination.

The main concerns for churches and faith groups are the failure to protect the fundamental right to freedom of thought, conscience, religion and belief which is guaranteed by international instruments such as the International Declaration of Human Rights and the International Covenant on Civil and Political Rights; and the introduction of the new “protected attributes” of sexual orientation and gender identity which raise issues for those who have sincerely and deeply held beliefs or values about the nature of sexual identity and expression .

There are three main areas of human rights that are actually undermined by the proposed bill – freedom of speech, freedom of association and freedom of thought, conscience, religion and belief. Further, in reversing the onus of proof it also undermines the right we have to date enjoyed to be treated as innocent until proven guilty.

The proposed provisions which are of most concern are:

1. Discrimination is defined to simply mean “unfavourable treatment” of a person because he/she has a “protected attribute” (S.19(1)). The definition of “unfavourable treatment” includes “conduct that offends, insults or intimidates” (S.19(2)). This is a very low threshold to constitute “unlawful conduct” that can be grounds for complaint and legal action.

2. The proposed definition of “discrimination” includes “conduct that offends, insults or intimidates”. This would seriously undermine freedom of speech in all areas of public life, including in publications (proposed Section 53). Subject to the limits of the law of defamation and the prohibition on inciting violence, freedom to offend or insult is, as ABC chairman Jim Spigelman says, integral to freedom of speech.

On the other hand there is no recognised legal right not to be offended or insulted. The proposed bill would make it unlawful to offend. Freedom of speech is a fundamental right guaranteed by Australian law and by the International Covenant on Civil and Political Rights. Australia’s obligations to uphold the rights guaranteed by the Convention could be called into question if the right to freedom of speech is not protected.

This is the provision that has caused the most opposition. Even the president of the Australian Human Rights Commission, Gillian Triggs, wrote in an article in The Australian on 22 January, 2013 it is understandable that calls to delete this provision are loud and said “…indeed, it might be wise to amend the bill, so far as it applies to acts that offend or insult, if only to preserve the valuable reforms that the rest of the bill will provide.”

President Triggs did not advocate repeal of the provision but amendment, to require that the conduct would have to be “reasonably likely” to cause offense. This is currently the provision in the federal Racial Discrimination Act under which columnist Andrew Bolt was sued. But that is the very problem. It is the Racial Discrimination Act provision that should be amended not reproduced across the board in a new consolidated anti-discrimination law. Even if an objective test of “reasonably likely” to cause offense was introduced, causing offense is too low a threshold to found a complaint of unlawful conduct and is a denial of freedom of speech. It could still prohibit clear and vigorous statements of opinion which would have a chilling effect on free speech.

Further, the reason she thought it might be wise to amend the provision was not concern about the effect it could have on the fundamental right to freedom of speech but to preserve the rest of the bill. But amendment or even repeal of this provision will not answer concerns with other aspects of the bill, including those listed here.

3. Proposed Section 124 is seriously oppressive in that it would reverse the onus of proof – ie. the complainant only has to allege that another person’s conduct has offended, insulted or intimidated him/her and how is the accused to prove that it did not? There is no objective basis on which to judge whether the complainant was offended or insulted. The proposed bill only requires a complainant to make out a prima facie case and then the onus is on the defendant to prove his/her conduct was not “unlawful discrimination”. This is not a mere “streamlined complaints system”. It would be a reversal and complete undermining of a fundamental principle of our legal system, derived from 800 years of common law, that an accused is innocent until proven guilty. The onus of proof should remain on the party making a complaint to prove that the conduct amounts to “unlawful discrimination”.

4. The new “protected attributes” of “sexual orientation” and “gender identity” introduced by S.17, raise issues about discrimination against citizens or organisations/institutions with sincerely and deeply held beliefs or values in relation to the nature of sexual identity and expression. The currently protected attributes of disability, age, race and sex (as in marital, parental and breast-feeding status) do not raise such issues.

5. The right to freedom of thought, conscience, religion and belief is guaranteed by the International Covenant, on Civil and Political Rights to which Australia is a signatory. To meet Australia’s obligations under the Covenant the proposed bill should have the object of protecting those rights and should not adopt a concept of discrimination that would make the exercise of those rights unlawful discrimination. Merely making a concession to those rights for very restrictive “religious purposes” (as proposed by Sections 32 and 33) or under the general “justifiable conduct” defence (proposed Section 24) is a grudging and inadequate protection of those rights that Australia is obligated to protect under the ICCPR.

6. In particular proposed Section 33(3) excludes Commonwealth funded aged care facilities run by a religious body from the exception provided by Section 33 (2). This would force aged care service providers to accommodate non-married couples, heterosexual and same-sex, in shared accommodation on the same basis as married couples. An aged care facility run by a religious body should be able to make decisions in relation to these matters to preserve the religious and cultural ethos of the facility, keeping in mind that many residents would have chosen the facility because they are adherents of that religion and/or share its religious and cultural sensitivities.

7. Exceptions are to be reviewed in three years (Section 47) and all exemptions are only temporary (Section 85). This is inadequate protection of rights guaranteed under the ICCPR which Australia as a signatory has an obligation to protect.

In the Senate Inquiry into the 2012 Marriage Equality Bill seven Labor senators gave a dissenting opinion in opposition to the proposed bill. In relation to the promised exemptions for the churches not to have to celebrate same-sex marriages they said “The re-assurance ….is hollow and tactical in nature rather than a matter of substance.” http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=legcon_ctte/completed_inquiries/2010-13/marriage_equality_2012/report/d03.htm.

The same can be said of the reviewable exceptions and the temporary exemptions proposed under the anti-discrimination bill.

8. The proposed bill extends the reach of anti-discrimination law further into the social and cultural life of citizens. Clubs and member-based associations and competitive sporting activities are restricted to the exceptions proposed by Sections 35 and 36. This seriously undermines the right to freedom of association Australians have long enjoyed and which is guaranteed by the ICCPR.

9. The new Attorney-General has been appointed only 7 months out from an election and should not put such a controversial piece of legislation to the parliament in such a short period before there may be a change of government.

We need to write to all federal MPs and all Senators to oppose the proposed bill. That it is not a mere consolidation of present anti-discrimination laws but an unwarranted expansion of the law that would seriously undermine the rights of Australians to freedom of speech, association, thought, conscience, belief and religion.