NATIONAL AFFAIRS: by Patrick J. ByrneNews Weekly
New anti-discrimination bill threatens religious freedom
, December 8, 2012
A new federal anti-discrimination bill will place the onus of proof on those accused of discrimination, restrict religious freedoms and may require political parties to employ people from opposing political camps.
The draft Human Rights and Anti-Discrimination Bill 2012 has just been released for comment. Submissions to an inquiry on the bill by the Senate legal and constitutional affairs committee are due by December 21, with the committee due to deliver its report by February 18, 2013.
First, Attorney-General Nicola Roxon has presented to parliament legislation that means that no longer will the person making a complaint about “discrimination” be required to prove that such discrimination occurred; rather, it will be up to the person accused to prove that it didn’t happen.
James Allan is the Garrick professor of law at Queensland University. Writing in The Australian (November 22, 2012), he said that, in contrast to the government’s new anti-discrimination law, defamation law cases require that newspapers must assemble witnesses and hard evidence to prove that their allegations about a person are factually accurate.
This is what the Americans call “a chilling effect” on what newspapers and commentators can say about people. The threat of a newspaper or commentator being bankrupted in court forces them to self-censor what they say. This balances free speech with the right of a person to have his or her reputation protected.
But in reversing the onus of proof in anti-discrimination law, a person alleging discrimination only has to make a prima facie allegation, and then the burden of proof will fall on the person accused. Unless the defendant can prove the allegation is false, businesses accused of discrimination will be forced to pay up. Many will simply pull out the cheque-book and settle with an accuser in order to avoid costly court proceedings.
Allan says: imagine if all accused people had to prove their innocence. Then, “those making allegations of impropriety against Craig Thomson or Peter Slipper would have to make only a prima facie case (no big deal) and then both those men would have the burden of proving the allegations false”.
Second, Roxon’s bill plans to turn “gender identity” and “sexual orientation” into “protected attributes”, along with age, religion, sex, relationships status and pregnancy among others.
Employers who are alleged to have discriminated in employment on any of these defined grounds will have to prove to the Australian Human Rights Commission (AHRC) that they did not discriminate against a person on those grounds.
If Roxon’s bill becomes law, freedom of religious practice – and of churches and faith-based agencies to employ people of their own religious beliefs – will be granted only by “exceptions” and “exemptions” in the law.
In selecting candidates for the ministry, churches are told that they can freely choose, but only because they will be allowed to “discriminate” on grounds of sex, age, relationship status, sexual orientation, etc.
However, when it comes to faith-based schools and other church agencies, the new law will only make an “exception” for discrimination that consists of conduct that “conforms to the doctrines, tenets or beliefs of that religion; or is necessary to avoid injury to the religious sensitivities of adherents of that religion”.
The mainstream churches may gain “exceptions” from the law, because their “doctrines, tenets or beliefs” have been refined and codified over centuries or millennia (S33(2)).
However, numerous independent Christian churches will find it hard to define their beliefs so clearly. They may well find themselves subject to the full force of this law.
Will an exception be granted to a church where some members of the congregation do not object to employing a person in a cohabiting relationship, or a “gay” relationship, while the minister and most of the congregation do find that this does cause “injury” to their “religious sensitivities”?
It will be up to the Australian Human Rights Commission to decide.
Of deep concern is that the Roxon bill says that the “exceptions” provisions are to be reviewed in three years. Hence, don’t expect that exceptions for churches, schools and church agencies will be permanent.
As this magazine warned (“Push for new laws to attack churches, schools”, News Weekly, May 26, 2012), the inquiry that led to this bill received over 30 submissions calling for no exceptions or exemptions for churches or church agencies, or for imposing draconian restrictions on religious freedom.
Roxon’s bill chisels away at Australians’ long-cherished right to religious freedom.
Curiously, it seems that even political parties may be subject to the new anti-discrimination law. It will be interesting to see what happens should a card-carrying Liberal Party member take a case to the AHRC claiming discrimination because he/she was refused employment on Nicola Roxon’s staff because of his/her political ideas.
If the attorney-general were to lose such a case, all will not be lost. She can appeal to the Federal Court or the Federal Magistrates Court.