Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Legal and Constitutional Affairs Legislation Committee
24/01/2013
Human Rights and Anti-Discrimination Bill 2012

CODY, Associate Professor Anna, Director, Kingsford Legal Centre, appearing on behalf of the National Association of Community Legal Centres

COHEN, Ms Michelle Marie, Senior Solicitor, Public Interest Advocacy Centre

LEE, Ms Frieda, Project and Policy Officer, National Association of Community Legal Centres

PANDOLFINI, Ms Camilla, Senior Solicitor, Public Interest Advocacy Centre

SANTOW, Mr Edward, Chief Executive Officer, Public Interest Advocacy Centre

SHULMAN, Ms Joanna, Chief Executive Officer, Redfern Legal Centre, appearing on behalf of the National Association of Community Legal Centres

[09:52]

CHAIR: I now welcome representatives of the Public Interest Advocacy Centre and the National Association of Community Legal Centres. We have submissions from the two organisations—421 and 334 respectively. I ask you both to make a brief opening statement, and then we will come to questions.

Prof. Cody : We have discussed our presentation with the Public Interest Advocacy Centre and coordinated our evidence, and we support each other's submissions. In the interests of time, we will focus on slightly different areas of the proposed law.

CHAIR: Sure.

Prof. Cody : The National Association of Community Legal Centres is the peak body of around 200 community legal centres in Australia. We represent the most disadvantaged in our community, giving legal advice, doing casework, educating the community about legal rights and engaging in law reform and policy work, frequently working with the government to improve law and the legal system. Kingsford Legal Centre and Redfern Legal Centre have a particular focus on discrimination law and are based in Sydney, and we have an expertise in the area of discrimination law. The submission of the national association and Kingsford Legal Centre is based on the substantial number of clients that we see who face discrimination in their lives and on our practice in this area for over 30 years.

We welcome the consolidation of the existing law into one new comprehensive human rights and anti-discrimination law. We believe that it simplifies existing legislation and will make it easier for our clients for our clients, for employers and for the community.

We also welcome the new unified definition of discrimination, combining direct and indirect discrimination, and particularly the recognition of complex and compound forms of discrimination based on multiple grounds. Our clients currently find it difficult to bring complaints of discrimination because of the heavy onus on them to prove how they have been discriminated against. They have to prove why their employer, for example, has done something and show that it is because of a protective attribute, but that evidence is held by the respondent. So we support the shared burden of proof in which a complainant must make out a prima facie case and a respondent must then provide evidence of legitimate reasons for their actions.

We also acknowledge the concerns with section 19(2)(b), including the words 'offends, insults or intimidates', and make clear that we think that that needs to be adjusted and deleted to emphasise that the discrimination definition should be 'unfavourable treatment, including harassment'. We also welcome that, generally in the proposed draft, each party should bear their own costs and recommend that complainants, who are generally more disadvantaged, should only have costs awarded against them for frivolous, vexatious complaints or those lacking in substance.

Ms Shulman : I want to say a few words about the concepts of systemic discrimination and reasonable adjustment. Systemic discrimination affects many people, not just individuals. However, in Australia it is only an individual who can pursue a complaint of discrimination. Our system, unlike that of other developed countries, requires already disadvantaged individuals to carry the burden of litigating against those whose discriminatory policies and practices affect many. Often this is at great financial and emotional cost. These personal costs mean that most discrimination matters settle. These settlements provide an individual remedy but do not change discriminatory practices, particularly because respondents insist on settlements being confidential.

The solution is simple. We need to share the burden of ensuring that policies and practices are fairer and more accessible. Advocacy organisations connected with the discriminatory conduct should be able to complain if it is systemic discrimination, and human rights commissioners should have the power to initiate complaints into systemic discrimination. Complainants should also be other go straight to court and to bypass conciliation.

Reasonable adjustment is another issue that we address in our submission. The provision of reasonable adjustments is a core element of disability discrimination law in Australia and also internationally and, as stated in the objects of the bill, it is necessary to achieve substantive equality. However, the bill removes the requirement to make reasonable adjustments from the definition of discrimination as it appears in the Disability Discrimination Act and moves it to a defence, thereby reducing its impact and it is effect. The requirement should be reinserted into the substantive provisions and should explicitly apply to all other attributes. Implicitly it is already there. The current formulation of indirect discrimination requires that all neutral conditions and requirements are reasonable.

Ms Lee : We strongly support the inclusion of sexual orientation and gender identity as protected attributes and also welcomed the intention of the bill to protect intersex people. To achieve this goal intersex people should be defined and listed separately from gender identity. We recommend drawing on the definitions in Tasmania's Anti-Discrimination Amendment Bill 2012. We support the position of the organisation Intersex International that intersex be included as a separate protective attribute in the bill to ensure that people in Australia with physical, hormonal or genetic differences do not suffer stigmatisation and discrimination because of the way they are born.

Community legal centres see many clients who experience discrimination because they are victims or survivors of domestic violence. While some progress has been made towards combating domestic and family violence discrimination in workplaces through leave provisions in enterprise agreements and awards, these measures do not address the negative attitudes that lead to discrimination or help those who are not permit workers or those who experience discrimination in other areas of their lives such as in their studies or in looking for a place to live. This lack of access to redress compounds the harm to victims and survivors. For these reasons, status as a victim or survivor of domestic or family violence should be included in the list of protected attributes. This is consistent with our human rights obligations and the National Plan to Reduce Violence against Women and their Children.

CHAIR: Thank you. Mr Santow, I invite you to make a statement and then we will go to questions.

Mr Santow : Thank you, Chair. PIAC is an independent, non-profit law and policy organisation with extensive experience representing people who have suffered discrimination, especially because of disability. My evidence will be based on PIAC's casework and experience in this area.

The bill makes some incremental changes that would improve Australian anti-discrimination law but, clearly, the bill is not yet perfect. We see this as an important opportunity to refine it so that our law in this area properly accommodates core Australian values like, on the one hand, equality and a fair go and, on the other hand, free speech.

The bill includes social origin as a protected attribute. While that term is not defined, this seems aimed at protecting people from being discriminated against because of their poverty or their other social status. For that reason we submit that the term should be replaced with 'social status' and should specifically include housing status. PIAC has a particular interest in homelessness because we run the Homeless Persons' Legal Service, which is a cooperative organisation that brings together 350 lawyers to provide free legal help to people who are homeless. We see daily that discrimination on the basis of homelessness is a serious problem. A recent Victorian survey found, for example, that 69 per cent of homeless people reported discrimination in seeking accommodation alone. PIAC's submission provides examples of people who have been treated unfairly when their homelessness has become apparent and shows how, in turn, this can trap people in a cycle of poverty.

A related issue is discrimination because of a person's irrelevant criminal record. Given Australia's convict history, this unfairness should be imprinted on our national DNA. PIAC's work with homeless people shows how even a minor conviction can severely hamper a person's chance to get a job or otherwise participate in community life. I note in passing that discrimination for an irrelevant criminal record is prohibited by the relevant ILO convention. It is also a protected attribute that has been at least partially incorporated in the Fair Work Act and in some state and territory legislation.

The next issue I wish to raise is access to justice. All major parties support making the legal system more accessible for ordinary people, so I would like to comment on two aspects of the bill that are relevant here. The bill would make discrimination a no-costs jurisdiction, and we endorse that reform. We have found that the risk of an adverse costs order has discouraged a number of our clients who have a strong case from pursuing and vindicating their right not to be discriminated against. Fundamentally, there is not a lot of money at stake if a complainant wins a discrimination case in court—and, frankly, nor should there be. But when a claimant is up against a much more wealthy opponent, the risk that they face in bringing their case can be far too great. Making this a no-costs jurisdiction also brings this area into line with, again, the Fair Work Act and some state and territory laws.

A related issue on access to justice is standing. The bill allows a strange situation. For example, a disability organisation could bring a complaint to the Human Rights Commission on behalf of an individual or group claiming discrimination; however, if the complaint does not settle, the organisation cannot then take the matter on to court, only an individual can do so. That is a very strange anomaly, but it is also more than that: it puts an enormous burden on already vulnerable people to assert their rights in this way. Many of PIAC's clients have brought cases not just for themselves but also to protect others in a similar situation.

We all know that litigation is always stressful, it is always costly and it is always difficult. We ask whether it is really fair always to ask individuals to make this sacrifice. We believe the bill should provide more liberal standing rules, as in New South Wales and Western Australia. At the very least, we urge that the bill be amended to include a provision, like the provision that has been around for decades now in section 27 of the AAT Act, which allows an organisation to bring an action where the complaint relates to its objects and purposes.

There are two final issues which I will mention briefly. One issue which has received attention only recently is clause 39, which permits discrimination in insurance. Insurers are permitted to consider a person's disability say in deciding whether to provide insurance. That clause simply requires insurers to be more transparent in this process, so that it is clearer whether they are operating within the limits of the law. We broadly endorse that approach. There could be some refinements to the law and we are happy to answer questions on that later.

Finally, much has been said about the bill's impact on freedom of religion. To be clear, we strongly endorse freedom of religion. The question is how best to accommodate that right with some competing human rights. At the very least, we call for greater transparency in how religious organisations avail themselves of exceptions from the discriminator law and, again, will be happy to answer any questions about that later.

CHAIR: Thank you.

Senator HUMPHRIES: Can I clarify what you said, Professor Cody, about section 19(2). Did you say it should be 'adjusted or deleted' or 'adjusted and deleted'?

Prof. Cody : The particular words which were 'offend, insult or intimidate' deleted but the definition of discrimination being clearly unfavourable treatment and that also harassment would be included within the unlawful conduct.

Senator BRANDIS: Professor Cody, would you extend that observation to section 51(2)—the definition of 'racial vilification' also uses those words?

Prof. Cody : No, because it is a different situation. Racial vilification is a particular circumstance. In fact, we are submitting that vilification should extend to all of the grounds covered, rather than just race, and that because vilification is in the public arena and there are other protections in there—whether it be forever to stick purpose and also—

Senator BRANDIS: I do not think you need to go on. I just wanted to know whether your recommendation that 'offend and insult' should be dropped from section 19(2) also by parity of reasoning meant that it should be dropped from 51(2) and your answer is no.

Prof. Cody : That is correct.

Senator BRANDIS: Thank you.

Senator HUMPHRIES: The other question I have is that under the heading 'Exceptions related to religion' you say:

PIAC endorses the recommendation of the Senate SDA Inquiry to:

… remove the exemption on the grounds of sex and pregnancy.

Are you saying that it is appropriate to remove the exemption in relation to religious organisations on the ground of sex and, if so, what does that do with respect to churches being able to refuse to ordain women?

Mr Santow : Our primary position is that there is a general limitations clause which should operate across the board and there will be certain situations in which religious organisations will seek to avail themselves of that general limitations clause, just as any other organisation might choose to do so. I do not have a particular PIAC position in respect of the ordination of women but that seems to me to be an instance on which a religious organisation might say, 'This is fundamental to the way in which we express our religious faith and so discrimination law needs to accommodate that.' It is not a situation, which I think is quite distinct, where a religious organisation is providing a service.

Senator HUMPHRIES: Under the Sex Discrimination Act now and have that exemption built into the legislation. Are you suggesting that it should not be built into this legislation, that the church should have to argue it the case, prove the case in front of the Human Rights Commission?

Mr Santow : It is very important that where an organisation, be it religious or otherwise, wishes to depart from what might be described as the default position, which is that one should not be able to discriminate on the basis of in this case of sex, that they should do so in an open and transparent manner. I think if the organisation in question is confident of their position, has a strong case and in the kind of situation you are referring to the arguments have played out extensively in other jurisdictions, then they may have no difficulty doing so, but transparency is very important.

Senator HUMPHRIES: There is the alternative view that this is an exemption which has been acknowledged and effected in the laws of this land and other lands for millennia and to put them to the test of demonstrating that they should retain that privilege, if you want to put it in those terms, would put churches to the expense—because someone is going to make the challenge at some point—and would put the issue at question in a way which, with great respect, does not need to be questioned. Is anyone seriously suggesting that we should be reopening that question?

Mr Santow : Again, with the greatest of respect, religious organisations themselves even within the Christian denominations have evolving views of this.

Senator HUMPHRIES: That is their business if they have those evolving views. If they wish to discard those traditions, that is fine but to require them to prove that they are entitled to be exclusive about who they ordain for religious or traditional reasons is I think a great imposition and I can see no reason—and I am making a statement here rather than asking a question—to put them to that expense and to make that issue a public issue when it has not been, as I said, for millennia.

You welcomed the exemption in section 33(3) of the draft for the application of ordinary discrimination principles with respect to religious organisations supplying aged care. Do you think that is the only area in which such an exemption should ultimately be granted?

Mr Santow : I think that there is a strong case with respect to aged care and you could make that case equally strongly perhaps in respect of other areas of public life.

Senator HUMPHRIES: What sorts of areas?

Mr Santow : Specifically in other services as well. Education and health are important examples of that. I think that it would be very important to get the balance right. Fundamentally what antidiscrimination law should do is strike an appropriate balance between rights that sometimes come into competition—so on the one hand freedom of religion and on the other hand the right to be treated equally, the right to health care and so on. To try to give an answer on the fly on that would I think be invidious, but those are the key principles that should apply.

Senator HUMPHRIES: But it would be fair to say, wouldn't it, that the line is going to keep moving under this process further and further into those areas of church activity which presently are allowed under our law to discriminate?

Mr Santow : I would not want to make a prediction about that. I think reform in relation to antidiscrimination law in Australia has happened quite slowly. I think it could equally be the case that that does not occur.

Senator HUMPHRIES: You would not predict it, but you would argue it was a good thing if that happened, wouldn't you, given that you have just argued that we should be revisiting the question of even whether churches should be able to ordain only men?

Mr Santow : I think this is the opportunity to consider very closely where the line should be drawn and I think that if the line is being drawn at aged care then I think this committee needs to consider whether there are other areas of service that should also not be subject to discrimination or should not be subject to discrimination by way of some blanket exemption. Bear in mind that the bill contains a general limitations clause that allows discrimination to occur on a case-by-case basis. That allows a greater sense of transparency so that the public at large have a greater understanding of why discrimination is occurring and there is probably then greater acceptance of the lines that are drawn.

Senator HUMPHRIES: Which is, with respect, code for pushing the line back over time. It is about opening up new fronts. It is about attacking some of these exemptions over time because they are not in the views of organisations like yours justified.

Mr Santow : With respect, our organisation does not have a review about this. Our clients are very clear that they do not want to be discriminated against. So that is the view that we are putting on behalf of the disadvantaged people that we are funded to represent.

Senator HUMPHRIES: You say that the draft should be amended to ensure that the religious exception will not apply to a religious organisation in receipt of public funds. What religious organisation would you point to that is not in receipt of public funds, directly or indirectly?

Mr Santow : I do not think I can answer that question off the top of my head.

Senator HUMPHRIES: I put it to you that, effectively, all religious organisations are in receipt of public funds.

Mr Santow : But they are not in receipt of public funds in respect of all of their activities.

Senator HUMPHRIES: Give me an example of where they are not in receipt of public funds.

Mr Santow : The Catholic church, for example, is in receipt of public funds in respect of its education—

Senator HUMPHRIES: Schools, hospitals, age care facilities.

Mr Santow : Yes, but in respect of providing mass, for example, on a Sunday, it is not receiving public funds.

Senator HUMPHRIES: Really?

Senator RYAN: It is all tax exempt.

Mr Santow : That is a different question, with respect.

Senator RYAN: Property of a church is exempt; in America it is not. So that is some form of public funds.

Mr Santow : But those are not public services; that is—

Senator RYAN: But it is receiving public funds, indirectly, from a subsidy.

Mr Santow : That is not how we would define this.

Senator HUMPHRIES: That makes a difference, does it—getting a dollar as opposed to getting a tax concession? There is a difference in that, is there?

Mr Santow : Absolutely. Any charitable organisation experiences that difference every day of the week.

Senator HUMPHRIES: For the principle we are talking about here, is there any difference? You are getting a public benefit—a benefit from the public purse.

Mr Santow : There is a measurable difference in both the quantity and the quality of that public benefit.

Senator HUMPHRIES: Some of those tax exemptions are worth millions of dollars to churches based in different parts of the country.

Mr Santow : We accept that.

Senator BRANDIS: I suppose the assumption is that receiving public funds reflects, at least to some degree, a policy choice on the government to encourage a certain form of service provision, whereas tax exemption for property holdings is merely a generic benefit, for no prescribed or directed policy purpose, that all charities and religious organisations enjoy.

Mr Santow : Thank you, Senator Brandis. I endorse that.

Senator WRIGHT: I would like to follow up on that question. In a sense I think we want to understand the position that PIAC is putting—particularly the position that you are putting about contracted services. I am imagining, for instance, an organisation that receives services to help with employment for unemployed people and so on. Because of your experience of cases that you deal with I am interested in the practical implications of allowing the religious exceptions to continue, particularly as they are foreshadowed in this draft bill. We have had quite a lot of discussion about schools. I am thinking particularly about choice, and the argument has been put today that people can vote with their feet: they do not have to go to that school; they can go to another school. And I am thinking particularly about rural, regional and remote areas, where there is often limited choice. Do you have any experience of dealing with people in those areas? I imagine that if there are limited accommodation providers, employment providers or whatever, the predominant one in a country town might be a religious organisation. Do you have any experience of those sorts of cases?

Mr Santow : I might take that question on notice, if I may.

Ms Shulman : Perhaps I could answer that by saying that certainly there are issues in rural areas but there are also issues with this in Sydney. Our clients are the most vulnerable in society. If you are homeless, you have suffered domestic violence or you have an alcohol abuse issue, you are not going to be in a situation where you are able to pick and choose where you sleep at night. If we are asking these contracted services to offer these people shelter through government funds and saying to them at the same time, 'You are allowed to choose whether or not you let these people in,' I do not think that is appropriate.

Senator WRIGHT: So the idea of choice is perhaps a little academic in a lot of practical situations.

Ms Shulman : Exactly; particularly for the most vulnerable and most disadvantaged clients that we see.

Senator WRIGHT: Thank you. That was just something I was following up on from that discussion.

I wanted to ask you about the change to a no-cost jurisdiction. I noted that in the submission from Maurice Blackburn lawyers they raised a concern about that. I was just going to ask you to comment on that. They were concerned that the removal of the cost jurisdiction may be disadvantageous for people. If a person felt they had a meritorious case it may deter them from taking that case if they felt that they could not recoup their costs after the event. Are you familiar with the concerns that they raised in the Maurice Blackburn submission? Would you like to address those? I am interested in teasing that out.

Mr Santow : I am familiar with the general point. I think it is a balance. Certainly, for law firms that operate on a for-profit basis and take on cases on a contingency basis, you can see a disincentive for those organisations taking on those matters. Our submission, in fact, goes a little bit further than suggesting that it simply be a no-cost jurisdiction and urges the committee to consider the Australian Law Reform Commission's report from 1995 on litigation costs. Perhaps Australia might take a slightly more sophisticated approach, especially in cases that are deemed to be public interest cases, so that a cost order may be awarded in that cases if certain criteria are met. That Australian Law Reform Commission report has been referred to by many Senate committees in the past, and this would be an important opportunity for the committee to revisit it.

Prof. Cody : Can I add that the national association concurs with that position that the cost jurisdiction is a substantial disincentive for clients bringing cases beyond the conciliation stage. Often, respondents will use that as one of their tactics, and our submission refers to specific case studies where clients have stopped their quite strongly meritorious claims, which would have improved society as a whole, because of that risk of costs. This is why we also advocate for each party bearing their own costs and being awarded against complainants only if the complaints are frivolous, vexatious or lacking in substance.

Senator WRIGHT: Could you expand a little more on the relevant criminal record issue as a projected attribute that you have raised? Again, I am interested in the practical effects on the ground of people experiencing discrimination on the basis of that. It was discussed slightly yesterday. I had particular concerns raised with me from Indigenous people about a criminal record and how it interferes with people's ability to get employment.

Prof. Cody : The criminal record is definitely an issue that our clients face, particularly if they have had some minor offence many years ago and are now seeking employment; they are asked to disclose their criminal record and then do not get the job because of it. It is particularly an issue for Aboriginal clients because of the overrepresentation and overpolicing issues raised in locations around Aboriginal communities. It is a substantial bar for people being able to participate—which, obviously, we as a community would benefit from within the workforce. It is both within employment, as the largest area, but also in other areas.

Mr Santow : Through the Homeless Persons Legal Service we have been conducting some research on this, and we have found that a large number of people who are homeless have a criminal record. Often it is a series of very small, minor convictions that should have no bearing on the vast majority of applications they may make for housing or employment. We find that is a significant barrier for them in obtaining housing and employment, so that is why, at the start of my comments, I described this as something that can keep people in the cycle of poverty.

Senator WRIGHT: Yesterday we heard a submission from beyondblue and the Mental Health Council of Australia relating to the insurance provisions of the proposed section in the draft bill. Mr Santow, you mentioned that in passing. I am interested: is PIAC essentially supporting the submission that has been made by beyondblue and the Mental Health Council? Is there anything more you would want to expand on in relation to that?

Ms Cohen : We are supporting the submission that has been made by beyondblue and the Mental Health Council in relation to the exemption in proposed section 39. To expand on that a little bit further, we believe that it is entirely appropriate that there is an exemption for insurers in the bill, for a variety of reasons.

But we would like to, I think, reiterate two points. The first would be that, where an insurer indicates that they are discriminating against somebody on the basis of their disability, they should be brought to account or should justify why they are discriminating against that person on the basis of the disability and at least take into account what information they have considered when doing that. So we would support including that part of the exposure draft that is currently provided for in proposed section 39(5), which requires insurers to provide data when a person has been declined insurance or access to a benefit of insurance so that they are aware of why that has occurred.

The other key part of our submission would be that where an insurer does not have any data that it says it is reasonable to rely on—so where the data, for example, is old or not current and it is not able to rely on the data for a variety of reasons—the bill appropriately allows it to consider other relevant factors, but to date there is no actual requirement for it to set out what those other relevant factors are. So people are being denied insurance or the benefit of insurance without understanding what factors the insurers are taking into account when they are making that decision. So we support the proposals in the Mental Health Council of Australia and beyondblue submission to clarify what 'other relevant factors' means and also to require insurers to set out to people that have been denied insurance what those other relevant factors are.

Senator WRIGHT: Thank you.

Senator FURNER: I have some questions of PIAC about your recommendation 15 on positive duty. We heard yesterday from the SDA about a similar proposition in terms of this aspect, which I personally support. However, it appears to be different to your proposition, where you seem to be reliant on the public sector organisations. You reflect on the UK Equality Act 2010. Surely you would have clients you represent who come from the private sector and who, if your proposition were successful, would be excluded from that arrangement.

Mr Santow : That is the case. We have sought to formulate our recommendation in this regard on the basis of the overwhelming majority of our clients, and also we have sought to take what is described in human rights law as a proportionate approach so that it imposes no greater obligation on the private sector than is absolutely necessary. That is why we have proposed a positive duty in respect of public sector organisations. But, to be clear, we have also included within the rubric of 'public sector organisations' private sector organisations that are performing a public function, which is a formulation that is very well known in human rights legislation, especially in Victoria and the ACT, but is also used in the UK and elsewhere.

Senator FURNER: The position of the SDA yesterday—they are the largest trade union in this country and they represent, I think, over 220,000 members—was that they have an issue with section 106 of the Sex Discrimination Act where employers are noncompliant with that particular area—not an educative position of explaining to employees the issues associated with sexual harassment or discrimination in the workplace. So I assume you would support that framework or that proposal, identical to the one in their proposition.

Mr Santow : I have a personal view on this, but I have to keep to our casework experience on this question, so I would simply express a neutral view on that. But perhaps my colleagues have a view on that.

Prof. Cody : We do believe—and this was one of our recommendations in the submission, at page 20—that there should be a positive duty on both public and private organisations and that the Human Rights Commission should also have power to investigate and to deal with any potential breaches of that. The reason is the issues of systemic discrimination that our community faces and the fact that our system until now has been very much based on individual complaints and that this would be one way to remedy that and to improve the participation of all within society. Some examples of things that would meet that duty are things such as a health services, introduction of an outreach program for people with disability, or a transport company ensuring that young people are consulted about a new ticketing policy. So there would be concrete things that could be done to actually meet that positive duty. Also, note that this has been introduced in international jurisdictions without any concerns.

Senator BRANDIS: Mr Santow, I asked Professor Cody about section 51. I note that in recommendation 3 you also say that the words in 19(2) should be removed. I am just looking at what you say on page 26 of your submission about anti-vilification law. Just to make it clear: do you think there should be an equivalent amendment to section 51?

Mr Santow : It is not an area where we have extensive case work experience, so we have not made the submission either way.

Senator BRANDIS: So you do not put forward a view on that?

Mr Santow : No.

Senator BRANDIS: Okay; that is fine. Perhaps I could just explore something with you. There is one issue that has been rather perplexing me. If you go to section 17, on the protected attributes, there are 18 of them; 11 of them are defined, and seven are not. Surprisingly, of the seven that are undefined, two seem to be the most vague of the 18—that is, (k) political opinion and (r) social origin. I want to focus on political opinion. We do not really have any guidance about what the draftsman intends that to mean, apart from its common speech meaning. But would you agree with me that it must mean all political opinions? You cannot have a protected attribute generically for political opinions unless all political opinions are equally protected. Is that how you would read the provision?

Mr Santow : We have very extensive jurisprudence on the meaning of 'political opinion'. That derives, as you would be aware, from the constitutional case law on this issue. So, in a sense, yes—all political opinion. But not all opinion that may touch on politics is necessarily within the scope of the term 'political opinion'.

Senator BRANDIS: Okay; that is fine. I understand that there will be issues at the margin as to what is or is not political opinion.

Mr Santow : And opinion could be simultaneously characterised as a political opinion but also characterised, for example, as hate speech.

Senator BRANDIS: Well, that is where I am going to. Let us take Pauline Hanson, for argument's sake. The opinions she expressed about Asian immigration nearly 20 years ago were, arguably, opinions that promoted racial discrimination—in fact, probably more than arguably they were opinions that promoted racial discrimination. She was a member of parliament, and she was campaigning on this issue when she was a parliamentary candidate. It would be, in my view, impossible to say that those opinions she expressed were not political opinions. My concern with the mechanism of this legislation is that if all political opinions are protected—and I myself think they ought to be, by the way; you may disagree with me—then that means that opinions about religion, which might attack freedom of religion, are protected; opinions about race, which might be of a racist character, are protected; and opinions about immigration, which might be, again, of a racist character, are protected.

By putting this provision into clause 17 in the bill, doesn't the act potentially contradict itself? If a person in a workplace environment expresses a political opinion, they cannot be subject to unfavourable treatment—can they?

Mr Santow : If your proposition were correct then you would have to accept that the bill is designed to provide an absolute protection for political opinion, and that is clearly not the case. There is a general—

Senator BRANDIS: Hang on a second, Mr Santow—pausing there. I am not saying that. But given that there is a lack of differentiation in the treatment of the 18 different categories in clause 17, one would at least have to say that each of those 18 categories is treated as having equivalent weight in the statute to each other, surely? Not an absolute, but an equivalent.

Mr Santow : I think that the way to read this provision probably goes back to the way that we should read any legislative provision, which is in the context of the legislation as a whole. There is a general limitations provision that engages with this provision, 17(1)(k) of the bill, and so allows for limitations on that particular right that are appropriate in the circumstances and allows other rights to be engaged.

Clearly, free speech is engaged in antidiscrimination laws. The question really should be how that right should best be accommodated with the other rights and interests that impliedly you are saying perhaps may not be accommodated properly.

Senator BRANDIS: I think you are right when you say that is probably the way a court would approach this. But this is a virgin bill. This is a brand-new bill; it is not even an act of parliament yet. One would think that in interpreting the bill one would not have to fall back on context or implications or so on. If the draughtsman is having a first go at this, you would think that the bill would be drafted in such a way as to make that unnecessary—that its meaning it would be clear.

You only fall back on implications and context and all those other devices of statutory construction where there is an obscurity or an ambiguity. But in a brand-new bill you would expect that the draughtsman would have been able to avoid obscurity and ambiguity. So although what you say is right—and it is the best response that I suspect anyone could give—it is also an inadequate response because it does not meet my core assertion that the protection of political opinion equivalently with the protection of each of the other attributes in the various situations set out in clause 22 and the prohibition of unfavourable treatment arising from any of those attributes, including (k), in any of the circumstances set out in clause 22, means that this bill, perversely perhaps, gives a protection to the very conduct which it seeks elsewhere to prohibit.

Mr Santow : The very last point that you made, which is that clause 17 interacts with clause 22, I think goes to prove my point, which is that no one provision in a piece of legislation should be read in isolation.

Senator BRANDIS: No, no—that is not an answer, Mr Santow. You can do better than that. Clause 22 merely tells you the circumstances in which the attributes are operative. That does not lend to the construction of clause 17. It merely says, 'Well, clause 17 applies in each of the specified places or environments of clause 22'. It adumbrates.

Mr Santow : It does give clarity as to the ambit of the operation of clause 17. What I would simply say is that if there is any lack of clarity as to the meaning of subclause (k), then this is an ideal opportunity for the government or this committee to propose an amendment that clarifies the provision, and so clarifies the extent to which there is any impingement on other rights.

Senator BRANDIS: I do not think there is any lack of clarity at all. On the contrary, I think there is a very clear direction in the bill that if political opinion is to be protected and if that legislative injunction is to be given effect to, there is actually an inherent contradiction within the bill. It is not a lack of clarity; it is a lack of workability.

Mr Santow : But our Constitution does exactly the same thing. Nevertheless, the constitutional protection for political expression, political communication, is subject to essentially a proportionality limitation, which is precisely what this bill seeks to do. So, if you were to read that provision in isolation, I think your criticism would be absolutely valid. But, if you were to read it in its full context, then we would have no more problem with this provision than we would with the constitutional protection of political communication.

Senator BRANDIS: Can I ask one question to tie this off. Let us give this some more flesh and blood. Andrew Bolt, in his workplace, makes some statements about white-skinned Aborigines and whether or not they should be entitled to the same social benefits as those for Aborigines in general. Somebody pursues him, as we know happened a couple of years ago in Eatock and Bolt. Why couldn't he say now, under this bill: 'Well, I was expressing a political opinion. Plainly it's a political opinion. It's a question about the availability of a particular social security measure and its appropriateness in a specified case, and I did that in my workplace. I can't be subject to unfavourable treatment.' Why couldn't he argue that?

Mr Santow : He certainly could argue that. This is a situation that arises every day in every court in Australia of conflicting rights at play. We have many decades of human rights jurisprudence at the international level, at the domestic level and in other jurisdictions that shows a way of reconciling and accommodating conflicting rights. Free speech is not an absolute right and nor has it ever been in Australian law. Many of our laws allow impingement on free speech: defamation, privacy, intellectual property—just to name three.

Senator BRANDIS: What you say is right, but Mr Santow—

CHAIR: Senator Brandis, I do have to finish there.

Senator BRANDIS: Madam Chair, let me utter one sentence. What you say to the court is right, Mr Santow, but the way this is structured there is no express qualification on 17(1)(k), nor is it said to be read subject to the other 17 protected attributes. So you have to engage in some creative statutory interpretation to arrive at the result. 17(1)(k) seems to give an unqualified right.

CHAIR: Senator Pratt, we will go to you.

Senator PRATT: Thank you very much, Chair. I will ask a brief question. Some of you have mentioned the various ways in which exemptions should be handled. Can I ask you, from the point of view of a consumer, the best way to make the act responsive to the need of consumers to judge which organisations they are interacting with that might retain the right to discriminate?

Ms Shulman : Can you repeat that question; I am sorry.

Senator PRATT: Noting that you all work with consumers, can I ask you which way the act should be structured so that a consumer who is prospectively using a service will know which of those services may have access to an exemption that allows it to retain the right to discriminate?

Prof. Cody : I think one of the recommendations in both the Discrimination Law Experts Group submission and the PIAC submission was referring to the need to have a public notice and that it be clearly told, for example, to prospective students at a school or to other agencies that are subject to an exemption that they are covered by that exemption, and also that there be a specific period. There are quite a lot of recommendations around how that exemption process should work: it should be a temporary process and it should be a clearly limited time.

Senator PRATT: In your experience, clearly there must be some organisations that have the right to discriminate but do not and would not necessarily want to retain the rights that they currently have under the act.

Mr Santow : The Uniting Church is a good example of an organisation that has made just that submission in this process.

Senator PRATT: Thank you.

Prof. Cody : Could we make one last point in relation to the questions that Senator Brandis was asking and refer to the Discrimination Law Experts Group submission around political opinion that it does actually make a submission around clarifying what the meaning of that is, and refer him to that.

Ms Shulman : I guess it cites state acts that also define political opinion in a certain way.

CHAIR: Senator Ryan, if you have got one question that will be okay. We do need to finish.

Senator RYAN: I want to turn to the issue of what you assert to be irrelevant criminal records. It is at the moment the capacity of anyone to determine whether a criminal record is relevant or irrelevant, for example to an employment opportunity or to an accommodation opportunity. That is currently a choice that a service provider or an accommodation offerer or an employer can make. What you are proposing here, isn't it, is to interpose the judgement of a third party as to what is an irrelevant criminal record.

Prof. Cody : At the moment it would be a diminution of the law and the protections existing within the law because someone can make a complaint to the Human Rights Commission around a criminal record being taken into account. So the proposed law would in fact diminish the protections that are there. Yes, they can, but someone can make a complaint about it. An employer cannot take into account a criminal record in relation to someone's ability to be employed in an organisation.

Ms Shulman : To add to that, we are suggesting that it, like all of the provisions in the act, be subject to the general limitations clause.

Senator RYAN: The problem I have with that is small organisations. Woolworths can do this and a little IGA in a suburban street cannot. They do not have the policies, they do not have the mechanisms and they do not have the experience. This law does not provide a great deal of guidance unless you expect them to go off and read judgements or templates that might be put up on the HREOC website. Have you taken into account the fact that there is a profoundly different burden on smaller organisations that might be family businesses or voluntary clubs as opposed to large corporates? That goes as far as compliance, the burden of going to a compulsory mediation, the fact that you might be required to seek advice if it goes on to further action. Is that something that even remotely concerns you?

Prof. Cody : Are you making that point across all areas of the law or just particularly criminal record?

Senator RYAN: This is the sort of thing where in a family run business someone may have a slightly more conservative approach than your good selves in terms of who they want working with their kids.

Ms Shulman : That burden is already there in the law in that complaints currently can be made to the Human Rights Commission about criminal record.

Senator RYAN: Yes, but this law changes a lot of things around post that. After the conciliation there is a greater burden on the defendant not a lawyer by training and the lack of a better way to provide information to justify their behaviour than there is now. So I predict that we will see an increase in this because no-cost jurisdiction, what you would probably call shared burden and I would call reversal of burden, will lead to an increase in actions taken, which I assume is one of your objectives from this exposure draft.

Ms Shulman : Our objective is to improve access to justice for everyone. In relation to your concerns, I guess there are two things. Firstly, the state acts in this area do contain some carve-outs in some areas for small organisations and that may be something that if you are concerned about you might look at. Secondly, we would advocate that if the Human Rights Commission is adequately resourced they can do some of this work in terms of advising and educating both larger corporations and smaller corporations about their obligations.

CHAIR: You are going to have to wind up, Senator Ryan.

Senator RYAN: Sure. You can do all the briefing notes and templates and information sheets on the HREOC website you want. The person who runs the retailer on the high street barely has enough time to comply with their serious legal obligations like tax and occupational health and safety. I think you fail to understand the cost to them in time of this compliance, let alone what a compulsory conciliation would mean to a family run business where they do not have a professional staff to deal with it.

Prof. Cody : But I think this is about fair treatment, it is not just about compliance mechanisms. Most small businesses and organisations understand what treating people fairly means. I have that faith in our community. I do not think that is in fact the heavy burden that you are outlining. Small businesses manage quite effectively with their OH&S obligations and similarly currently with their discrimination obligations.

Senator RYAN: You need to speak to a few small businesses.

Ms Shulman : They certainly manage more effectively than many of our clients do in trying to protect their rights under this legislation.

CHAIR: Thank you very much for the very extensive submissions that you have both provided to us. They were very helpful and extremely comprehensive. I acknowledge that a lot of work went into those. The committee recognises that and, as chair, I recognise that. Thank you very much for making yourself available today.