LEGAL AFFAIRS: by Terri M. KelleherNews Weekly
Inquiry to identify threats to rights and freedoms
, February 1, 2014
The Abbott Coalition government’s Attorney-General, George Brandis, recently asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that “unreasonably encroach upon traditional rights, freedoms and privileges”.
Under the previous Labor government, former Attorney-General Nicola Roxon sought to consolidate all federal anti-discrimination laws. It was proposed to reverse the burden of proof when an allegation of discrimination was made. In other words, a defendant would no longer be deemed innocent until proven guilty but would have to prove he was not guilty.
It was also proposed to define discrimination to include “offending” another person. So a complainant would only have to allege that he felt offended by some remark or action, and the defendant would have to prove the complainant was not so offended or would be deemed guilty of discrimination.
Ms Roxon also envisaged restricting the special exemptions from anti-discrimination law that had previously been enjoyed by religious organisations, so that they could adhere to their ethos.
The consolidation plan would have severely inhibited freedom of speech and of religious expression in Australia.
On the eve of last September’s federal election, which saw Labor swept from power, Ms Roxon’s successor, Mark Dreyfus, amended the federal Sex Discrimination Act 1984 to make it illegal for federally-funded, church-based aged-care facilities to discriminate against people on the basis of their sexuality.
Many churches and church-based groups feared at the time that Labor’s removal of religious exemptions for aged-care facilities established a precedent for the removal of other religious exemptions, in particular in relation to church- or religious-run schools and hospitals.
Attorney-General Brandis announced that the forthcoming review of Commonwealth laws would be one of the most comprehensive and important ever undertaken by the ALRC.
He said: “This is a major instalment towards the commitment I made to restore the balance around the issue of human rights in Australia.… For too long we have seen freedoms of the individual diminish and become devalued. The Coalition government will strive to protect and restore them.”
For the purposes of the review, “laws that encroach upon traditional rights, freedoms and privileges” have been defined as including laws which reverse or shift the burden of proof, and which interfere with freedom of speech, freedom of religion and freedom of association.
In undertaking the review the ALRC is to consult relevant stakeholders, including key non-government stakeholders, which presents an opportunity for religious organisations and pro-family groups to put forward their case for protecting religious freedom.
The whole area of religious exemptions under Australia’s anti-discrimination laws leaves much to be desired. Religious freedom needs to be positively protected rather than granted grudging exemptions which can be restricted or removed.
Since same-sex marriage has been legalised in Canada and parts of the United States and Europe, many business operators with religious objections to such relationships have faced lawsuits and fines. Businesses affected have included wedding celebrants, wedding photographers, florists, venue operators, wedding cake and wedding supplies providers and bed-and-breakfast owners.
Similarly, parents have been deprived of the right to withdraw their children from classes that introduce pupils to controversial homosexual and gender issues. In Lexington, Massachusetts, David Parker, the father of a six-year-old was handcuffed and jailed over objections to the homosexual content of the curriculum in his son’s kindergarten class.
Freedom of speech also deserves to be given the widest protection while balanced against incitement to hatred or violence and against damaging another’s reputation by what is said.
The ALRC is due to deliver its report by December 1, 2014.
Terri M. Kelleher is Victorian president of the Australian Family Association.