Winding back the clock on Human Rights: the Human Rights and Anti-Discrimination Bill 2012
The Federal Government recently released a draft exposure Bill titled Human Rights and Anti-Discrimination Bill 2012. This Draft Bill amalgamates the existing anti-discrimination legislation into one omnibus piece of legislation and to provide reform to the areas and attributes to which anti-discrimination law applies.
One of the major reforms proposed in the Bill is to abolish the current “comparator test”, which is used in direct discrimination cases.
Instead of this test, which is infamous for being more convoluted and difficult to apply than the Income Tax Assessment Act, the Draft Bill introduces a simpler test that establishes the likelihood of a person being treated unfavourably.
As well as proposing laws on the protection of directly discriminated victims, the Draft Bill also simplifies the test for indirect discrimination.
The Government is also reforming the attributes that this Bill will aim to protect, and has expanded the lists in the current legislation with the following:
- Gender identity,
- Immigrant status,
- Industrial history,
- Marital or relationship status,
- Medical history,
- Nationality or citizenship,
- Political opinion,
- Sexual orientation
- Social origin.
This year’s Human Rights Day’s oration was given on 10 December 2012 by the Honourable James Spiegelman, the former Chief Justice of New South Wales.
Mr Spiegelman noted that “human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict”.
Drawing on the works of Professor Whaldron, the speech acknowledges that the fundamental human right is the right to dignity. As the former Chief Justice noted, Anti-Discrimination legislation “should not have the main purpose of preventing people from being offended.
Protecting people’s feelings against offence is not an appropriate objective for the law.”
The oration concluded by warning the Government that the new omnibus legislation risked putting Australia in breach of our human rights obligations under the very treaties the current legislation was introduced to satisfy.
This is a warning which the Federal Government had best take to heart.