Proposed law a further attack on free speech

Bookmark and Share Freedom of Speech and Legal Rights Project | Simon Breheny
The Australian 23rd November, 2012

The law that was used to silence Andrew Bolt has been supercharged by the Gillard government's proposed changes to anti-discrimination laws.

Bolt was found to have breached section 18C of the Racial Discrimination Act, which says it is unlawful to offend or insult someone on the basis of racial or ethnic characteristics in a public space.

But Attorney-General Nicola Roxon's proposed changes massively expand the list of characteristics people can be offended by, expanding the jurisdiction into shops, workplaces and sporting clubs.

The regime will provide a new weapon in the war on free speech by even including "political opinion" as a ground on which people can be discriminated against.

This extraordinary change makes even innocuous political expressions subject to the law - a person need only be offended or insulted in order to make out a claim. Shop owners displaying signs in support of a political candidate may now be legally discriminating against employees who want the other guy to win.

By now we're used to politicians undermining our legal rights. But rarely is it as blatant as the Gillard government's changes to anti-discrimination laws.

Not only do the changes represent an extraordinary attack on freedom of speech, they also undermine fundamental legal principles derived from 800 years of common law. They would reverse the onus of proof, forcing employers to prove that they are innocent of discrimination.

English lawyer William Garrow coined the term "innocent until proven guilty" in 1791. That statement has become one of the most famous and enduring terms in the legal sphere. Garrow was referring to one of the most important principles of our legal system in the context of legal proceedings, a person is entitled to a presumption of innocence.

Central to this principle is the idea that the burden of proof rests with the person bringing the legal claim to the court. This ought to be the norm in all cases: whether it is the state attempting to prosecute an individual for alleged criminal activity or an individual suing another in civil proceedings. Placing the onus of proof on the prosecution or plaintiff is the hallmark of a mature and just legal system.

The rationale behind this principle is simple: it is difficult, even impossible, to produce evidence of a thing that does not exist. In a free society, it is a principle of utmost importance that we protect the innocent even if it makes it harder to punish the guilty.

A reversal of the onus of proof tends to result in absurd and unjust outcomes. And this is precisely what the Gillard government's proposed changes will achieve. Section 124 of the draft legislation reverses the onus of proof in the case of a plaintiff providing some evidence that discrimination could perhaps have occurred. After jumping this small hurdle, it is then up to the defendant to prove otherwise.

For some reason the Gillard government doesn't see this as a reversal of the burden of proof, but a "shift". It at least gets points for creativity.

Discrimination claims will also cost the complainant nothing even if they lose. The laws have been designed to create a no-cost regime (at least for those who allege discrimination).

This is not how civil cases are usually run. Sure, free lawsuits may sound appealing but generally the losing party must pay all legal costs, which helps discourage any frivolous claims from making it to court. Instead, the already struggling court system will be burdened with a flood of new litigation from people who no longer have to take any financial risk.

Indeed, the new law creates a regime that skews so heavily towards plaintiffs that it actually encourages false allegations. Most employers, faced with potentially substantial costs in terms of time and money, will settle even spurious claims out of court. Smart lawyers already know how to squeeze "go away" money out of employers.

Transferring the lessons learned under the present industrial relations regime to a new anti-discrimination regime is a recipe for huge problems.

Current definitions of discrimination vary among the five pieces of commonwealth legislation that govern this area of law, including the Racial Discrimination Act 1975. The new anti-discrimination law will have just one definition: "unfavourable treatment".

Harmonisation of all the various laws aimed at reducing discrimination is a good idea in principle but the method used by the government in this case is to draft a definition of discrimination that is broad in the extreme.

Unfavourable treatment could cover almost anything, and simply ensures an increase in the number of discrimination claims being made.

The proposed legislation also makes just one defence available to employers. The defence of "justification" is an important one in the context of discrimination law, and it is right that it has been included, but there are a range of defences that should be available. Mistake, duress and a range of other defences also could have been included in the legislation.

The reversal of the onus of proof only increases the importance of having a robust defence framework if claims can be made out so easily; the legislation should at least allow employers and others accused of discrimination a number of grounds on which to defend themselves.

We've already seen the consequences of the Racial Discrimination Act for freedom of speech. If you thought that was a miscarriages of justice, just wait until you see the extraordinary wave of free speech litigation Roxon's new laws will unleash.