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Legal and Constitutional Affairs Legislation Committee
24/01/2013
Human Rights and Anti-Discrimination Bill 2012

COWDERY, Mr Nicholas, QC, Human Rights Adviser, Law Council of Australia

DICKSON, Dr Elizabeth, Senior Lecturer, Queensland University of Technology, Discrimination Law Experts Group

MOULDS, Ms Sarah, Senior Policy Lawyer, Law Council of Australia

RICE, Professor Simon, OAM, Chair of Law Reform and Social Justice, Australian National University, Discrimination Law Experts Group

SMITH, Dr Belinda, Senior Lecturer, University of Sydney, Discrimination Law Experts Group

[15:01]

CHAIR: Welcome. We have received submissions from the Law Council of Australia and the Discrimination Law Experts Group, which we have numbered 435 and 207 respectively. I now invite you to speak to those submissions before we go to questions.

Prof. Rice : I think it is implicit in our submission that we support the idea of the federal government legislating a single discrimination act rather than requiring people to read across five different acts. So we support the aim and, as it happens, we largely support the way in which this has been done. The first point we would make relates specifically to section 19(2)(b) of the act. In our view it is highly problematic. We think it is a mistake. We are confident that it will be removed and we think that, if it were removed, a great deal of the apprehension about the act would go with it—and no doubt that will be canvassed when we speak. We understand by reading the explanatory notes, which use the term 'for the avoidance of doubt', the intention was to particularise what constitutes harassment. It was supposed to be a particularisation of 19(2)(a). Clearly it is very badly drafted for that purpose. It has caused a great deal of consternation and, in our view, it should be removed—and we understand that it will be. When it is, as I said, we expect a great deal of the apprehension to go with it. In our view it should be removed, and we understand that it will be.

The question of the burden of proof has been raised. You will see from our submission that shifting the burden of proof has a history of over 100 years in industrial law in Australia; it is unremarkable, and it reflects international practice. Perhaps most importantly, if I could say so as a practitioner of discrimination law for 24 years and a tribunal member in New South Wales for 15, the proposition that the person who acts is the best person to tell you why they acted is in my experience a very sound proposition. On being satisfied of a prima facie case, to then turn to the person against whom the allegation is made and say, 'Explain why you did it,' in my experience makes sense in the shifting burden of proof. As I say, borrowing from industrial law simply goes down that path and we do not think it is accurate or constructive to refer to it as a presumption of guilt as some commentators have done.

The religious exceptions have attracted comment. Our view is that, even though the exceptions are now tighter, there is no logical argument for privileging religious institutions. They are as able as any other—and will probably be successful more often than any other—to make a claim for justification under clause 23, which is there to provide an out from the act to a religious or any other institution.

There has been discussion about the breadth of the act to encompass public life. It has been put in terms of extending the act horizontally as well as vertically and that certainly seems to be the case. In our view, that is as remarkable as criminal law applying to all areas of life, and I mean all—public and private and not simply selected areas of life—or tort law applying to all areas of life and not selected areas of life. If discrimination law is supposed to represent values in Australia then we support a move that does not privilege some areas of life and exclude other areas of life, but extends to all. There is a related question of what that does in terms of the demand or use under the act, and our view is that a great deal of the debate fails to look at the way in which this jurisdiction works, with fewer than five per cent of cases becoming litigated. The mandatory investigation and conciliation process in all jurisdictions is unique to discrimination law and, uniquely, keeps matters almost exclusively out of the courts.

I have two more points briefly. The justification defence which we rely on is an integral part of what is an interrelated act. We will just draw your attention to the submission we have made, which stated that the reference to a legitimate aim is problematic and it really ought to be tied to the act. We say that because we know that you have had other submissions—and you will hear from the Law Council—that a reasonableness test ought to be used, and we, as experienced practitioners, strongly oppose a reasonableness test. What is 'reasonable' has been defined extensively by judges so far and we think it is inappropriate to borrow from the old jurisprudence and to bring in to this new act other people's ideas of reasonableness. To tie a justification to the aims of the act is to define—and give us all a comfort as to—the scope of the operation of the act.

Finally, the inherent requirements provision is problematic, as it risks undermining the justification provision and we would rather see the inherent requirements provision go. The justification provision is enough. What we have tried to do is anticipate what we are aware is the subject of public comment at the moment and leave our submission to speak for itself.

CHAIR: Senator Brandis has put to me a request that perhaps what we should do, Mr Cowdery, is have some questions for this group and then in 15 or 20 minutes have a statement from you, and then we will go to questions for you. So, if you are happy with that and members of the committee are happy with that, we might do that.

Senator BRANDIS: Not in a way that constrains the witnesses from commenting on questions put to others. It seems to me that—

CHAIR: That is what I am wondering about—if we should get an opening statement over and done with and then we can do that.

Senator BRANDIS: It just seems to me that these are the witnesses who, of all the witnesses we have had, if I may be permitted to say so, have the most detailed knowledge of the legal issues. They are both substantial blocks of evidence.

Prof. Rice : If it helps, we have actually compared opening statements—they are complementary.

CHAIR: Let us proceed, then. Mr Cowdery, we will have your opening statement, and I am sure we could spend the time we need asking questions.

Mr Cowdery : I am aware of the injunction to keep it short, so I will try to do that. On behalf of the Law Council I thank the committee for the opportunity to make submissions in relation to the bill. The Law Council commends the Commonwealth government for providing a number of opportunities for the council to make its views known on behalf of the legal profession in Australia. There have been a number of submissions that, no doubt, you will be aware of in addition to the submission of 24 December 2012.

There is a great deal of what Professor Rice has said with which the Law Council agrees. I do not want to cover that same ground, but I will point out one area of distinction as I go. The Law Council supports the consolidation of the five existing Commonwealth acts into a single act in a way that will make antidiscrimination law easier to access, to understand and to apply. It will bring greater consistency, in our submission, to the application of that area of law.

The council generally supports the draft bill, with some qualifications and some comments. There are two areas in particular that we highlight in the submission that has been made. First is subclause 19(2) in relation to which we agree with what Professor Rice has said. The basis for the Law Council's objection to that subclause as presently framed is that it imports a subjective standard in the response of the person against whom it is alleged the discrimination has been made. The Law Council is very strongly in favour of an objective standard being applied.

The second aspect is the provision of clause 23, where the Law Council would wish to see a quality of reasonableness imported into the issue of what conduct is justified. Again, in our submission, as it is presently framed it imports subjective tests, this time to be judged by the conduct of the alleged discriminator. Again, the Law Council would wish to see objective tests introduced. I know that is a point on which we differ with the experts group, but apart from that we are on substantially similar ground.

The Law Council supports the shifting burden of proof, the issues relating to cost and, so far as other matters are concerned, such as the exceptions relating to religion, the Law Council submits that these are matters that could be incorporated in a review of the legislation if a wider review than presently contemplated could be made within the three-year term. That summarises the issues that are set out in much greater detail in our submission.

Senator BRANDIS: Professor Rice, perhaps it was just a throwaway remark in your opening statement, but you said that you felt quite sure that proposed subparagraph 19(2)(b) of the bill would be removed. Why do you say that?

Prof. Rice : Pardon my ignorance: has the department appeared before you yet?

CHAIR: No.

Prof. Rice : That is something you could ask the department.

Senator BRANDIS: You know something we do not know, do you?

Prof. Rice : I would not presume to say that.

CHAIR: You are talking about 19(2)(b)?

Prof. Rice : Yes.

Senator BRANDIS: But it is a serious point because the Attorney-General and Mr Dreyfus QC, who is the senior lawyer within the government, have both this week insisted that they were sticking by this draft, including what was alleged to be the controversial section 19(2), the insult and offence provision. You understand something different.

Prof. Rice : In general discussion in the relevant community I do understand something different, but it is not authoritative and I am sure you can make that inquiry to someone with authority that I do not have. Can I say about the provision that if the provision were to remain in the act, and you have heard me say I think that is unlikely, if for no other reason than because of the controversy it attracted, but if it were to remain in the act it would surprise me if, despite what Mr Spigelman said in his role as chair of the ABC, if a judge was to interpret it as broadly as some commentators have. A judicial interpretation of the provision could narrow it significantly. That is the only comfort I can give people for a provision that otherwise we agree with you is highly problematic and should not be in the act.

Senator BRANDIS: It seems to me, contrary to what you say, that if one can track down a source of those words 'offends and insults' one goes to what still is section 18C of the Racial Discrimination Act, which uses the same words and which is transported into clause 51 of this bill. That brings me to my next question: do you say if the offends and insults test were to be removed from clause 19(2)(b), the same words should be removed from clause 51?

Prof. Rice : No, they are separate issues. We have not commented that all on the test for vilification that is elsewhere in the act. If anything, some people might have been expecting the draft to come out with a different test but it has come out with that test with which we are familiar. All we are doing is looking at the way it qualifies the definition of unfavourable treatment in section 19.

Dr Smith : Which is the single definition to cover all grounds, and that is why it is so significant.

Senator BRANDIS: Except that you read it as qualifying (2)(a).

Prof. Rice : Read with the explanatory notes, yes, it says—

Senator BRANDIS: Do not worry about the explanatory notes. The explanatory notes are written by people who ultimately will interpret the legislation, shall we say. (a) and (b) seem to be capable of an independent operation. (b) is not merely a gloss on (a).

Prof. Rice : I agree. That is precisely the point we agree on. Because it is capable of doing that it is problematic and should be removed.

Senator BRANDIS: All right. But your broader point is that unfavourable treatment should have a different and a higher test to satisfy than vilification.

Prof. Rice : I do not follow, Senator. We do not have anything to say about the use of the term 'unfavourable treatment'. It is used in legislation generally. Section 19 but for 19(2)(b) is not problematic, in our view.

Senator BRANDIS: And you are not proposing alternative words. Okay. So you would leave it at harassing and intimidating, or you take out intimidating.

Prof. Rice : I am reading 19(2)(b) and we have said that 19(2)(b) ought be removed, which would leave you with 19(2)(a), which is, in light of the case law, absolutely unremarkable. Case law for 30 years has defined discrimination to include harassment.

Senator BRANDIS: And intimidation?

Prof. Rice : But intimidation comes out with (2)(b).

Senator BRANDIS: I follow that, but it seems to me that intimidation is quite a different thing from offence and insult and that there is a case to be made for having intimidation in.

Prof. Rice : We are not making that case.

Senator BRANDIS: Can I come to you, Mr Cowdery. By the way, you say that you represent the Law Council and the Law Council represents the legal profession. I am always a little sceptical, with all due respect, of claims by the Law Council to represent the legal profession on these values-based issues, because I wonder how many members of the legal profession have actually been consulted.

CHAIR: I thought you were going to say 'how many actually have values'!

Senator BRANDIS: Good question! Good point, Senator Crossin! I notice you recite on page 3 that there are nine of your constituent bodies who assisted in the preparation of the submission, though in the appendix you list 17. Are we to take it that the other eight of the constituent bodies had nothing to do with the submission?

Mr Cowdery : Perhaps I could defer to Ms Moulds. She was very much involved in this process behind the development of the submission, so she would be able to answer those sorts of questions.

Ms Moulds : Thank you. The Law Council has directors from each of the constituent bodies that are listed in the appendix, who sit on our board. Our board approved a policy statement that gave us the basis for these submissions. Then, on each occasion of the discussion paper and this draft bill, we requested feedback from each of those bodies, who referred this bill and the discussion paper to their particular committees, which ranged from business law committees to Indigenous Australian committees. Then we had processes for them to provide feedback both orally and in writing. We worked with those representative groups to come up with a consensus view, in terms of both our submission to the discussion paper and our submission to this bill. Of course, there are individual lawyers who differ in their views. Our organisation's members are the law societies and bar associations, so it is up to them to determine their particular view, and they represent that to us.

Senator BRANDIS: Because the time is limited, I do not want to detain you with this, but I just want to make the point that, even on your own document, only about half of your constituent members had any participation in the preparation of this document. You say that yourself.

Ms Moulds : I think that might be misleading in the sense that, in the drafting of this submission to the bill, those organisations made significant drafting contributions. But we had a policy approved by our board which went through a consultation process where all of the directors from these organisations approved that at the time of the discussion paper. Then each of the submissions to the discussion paper lists the particular bodies that contributed to those submissions in drafting.

Senator BRANDIS: When was that, by the way?

Ms Moulds : The policy position?

Senator BRANDIS: Yes, when was the policy position?

Ms Moulds : That was developed in anticipation of the discussion paper being released—I think in 2010. It is available on our website.

Senator BRANDIS: You see, this is my point. I really do think that it is quite wrong to say, as you do in paragraph 6 in the executive summary, 'The Law Council supports the draft bill as the basis for legislation to be introduced into parliament,' and then represent that is the view of the Law Council having gone through the processes that you have discussed when you have now told us that the policy was adopted before the discussion paper was even released and the exposure draft of the bill was released in November 2012. In reliance on a policy adopted in 2010—before either the exposure draft or even the discussion paper—you now say, 'Therefore we support the bill.'

Ms Moulds : I am sorry if I have misled you at all, Senator. I mean to say that we could anticipate a consolidation effort was about to happen. We wanted to get a broad sense of whether the constituent bodies would agree with the proposition of a consolidation and some of the key principles we think should be reflected. That is what we did prior to the discussion paper. Once the discussion paper was released, we sent out the discussion paper, along with a detailed set of questions for consideration, to all of those constituent bodies, who then went to their own committees and got back to us with a view. That is how we prepared two detailed submissions to the discussion paper. When the bill came out, we did the same thing to give each of those bodies the opportunity to see the detailed provisions of the bill and our proposed position based on our past policy so they had another opportunity to consider those provisions.

Senator BRANDIS: And that was all done between the release of the exposure draft in November 2012 and the preparation of this long document that was published on 24 December.

Ms Moulds : Yes, that is right. We have had significant consultations in writing, we have had teleconferences and a number of meetings, as well as used our executive and director meetings to update progress.

Senator BRANDIS: I hear what you say, Ms Moulds, but I do think it is a stretch to say that this is the view of the legal profession. It might be the view of a few people in the legal profession and senior officer positions in the professional association, but as Professor Rice put it perfectly before, this is about values.

Ms Moulds : There are, of course, individual lawyers who have different views. We do not shy away from that.

Senator BRANDIS: I suspect most.

CHAIR: Let us get back to business.

Senator BRANDIS: I want to ask you, Mr Cowdery, your thoughts about an issue that has troubled me throughout this. If I can take you to clause 17, the protected attributes, of which there are 18, most of which have are defined but some of which are not, it seems to me that the 18 listed attributes are plainly not listed in any particular order of priority. There is no internal reason within the draft bill to say that one is afforded a higher priority or importance than another.

Mr Cowdery : They do seem to be listed alphabetically.

Senator BRANDIS: Indeed. If you go to (k), 'political opinion' presumably must mean all political opinion. Would you agree?

Mr Cowdery : Yes. It is expressed generally, broadly.

Senator BRANDIS: Right—all or any political opinion. So what if a person expressed a political opinion which was of a racist or a homophobic character, in other words was of a nature which would violate another of the protected attributes, given that there is no hierarchy—as you point out, they are alphabetical—among the 18 special attributes, does the bill protect the person expressing the homophobic opinion because that is a special attribute or does the bill protect the gay person who claims to be harassed by the expression of the homophobic opinion, or does the bill protect both, which, depending on how you look at it, it arguably does? And how are we to choose between the two, when the same set of facts enable one person, that is the person expressing the homophobic political opinion, to invoke (k) and the gay person claiming to be harassed by the expression of that opinion to invoke (q), the sexual orientation protected attribute?

Prof. Rice : I have turned my mind to that, Senator.

Mr Cowdery : Perhaps Professor Rice could step in because I have not turned my mind to that.

Senator BRANDIS: Mr Cowdery, if you would like to turn your mind to that, and, Professor Rice, yes please.

Prof. Rice : It is an interesting point, Senator. I think it is answered by looking at the conduct that the act is intended to address. For these purposes I am going to put (2)(b) to one side because it is highly problematic. So if 19(2)(b) is out of the equation and the act is concerned with discrimination—Dr Smith is very good at illustrating things by example. That is what she teaches, so I am going to give it a quick go and then see if she can follow—and by the by, political opinion is not remarkable; it exists in state and territory legislation. If a person—and your point is a good one, Senator—expresses as a political opinion a view which is racist—

Senator BRANDIS: Let us stick to homophobic. I am going to give you an example from this morning's newspaper, in fact. So let us stick to homophobic.

Prof. Rice : Is this the tweet?

Senator BRANDIS: This is the remarks of a lady in Victoria, Ms Tess Corbett, from Bob Katter's Australian Party, who thinks very poorly of gay people.

Prof. Rice : That is what enabled me to turn my mind to it beforehand. Senators, what you need to ask yourselves when you look at this act is: how does this play out? How does it work? Who is aggrieved and what complaint do they make? If a person expresses what they say is a political opinion then nothing happens until they are treated unfavourably because of that, when they may have a complaint of having been treated unfavourably because of their political opinion. Whether their political opinion is homophobic or not is not the point for them. They have, for example, been disciplined, they have been demoted, they have dealt with—and they would say 'discrimination'. It is only about the fact that they have expressed a political opinion. The content of it, homophobia, is not relevant.

Senator BRANDIS: That is my very point, Professor. It is content free—(k) is content free, because as long as it is a political opinion it does not matter what sort of a political opinion it is. And if they are a hierarchy within clause—

Senator PRATT: And if you heard it or not. It is the difference between vilification and—

Prof. Rice : Precisely, and I wanted to draw that distinction, between vilification and discrimination.

Senator BRANDIS: No, with respect, that is not right, because the general provisions of the bill apply without differentiation to each of the special attributes.

Prof. Rice : For discrimination.

Senator BRANDIS: For discrimination purposes. So the gay person who feels harassed by the expression of Ms Corbett's views might say, 'Well, I have a case'—

Prof. Rice : That is the second part of my answer, Senator.

Senator BRANDIS: but Ms Corbett might equally say, 'Well, I'm being harassed by the gay person because I expressed a political opinion.'

Prof. Rice : The second part of the answer is the act does not prohibit gay vilification.

Senator BRANDIS: Correct.

Prof. Rice : So this person does not have a vilification complaint and that conduct does not amount to harassment. You do not get harassed by somebody sending a tweet saying they do not like gays. That is not legally harassment.

Senator BRANDIS: What if it happens in the workplace? What if Ms Corbett said in the workplace what she is reported in this morning's Australian as having said and one of her co-workers was a lesbian? Then the act is invoked because it is workplace related conduct. Once again, you have the protection that the act affords the lesbian woman under 17(q), because sexuality is a protected attribute—

Prof. Rice : If she has been discriminated against.

Senator BRANDIS: That is right—but that is no higher or lower in terms of the protections the act affords than Ms Corbett's right to complain that she is being harassed by the lesbian lady by being constrained from expressing her views, which is also protected by 17(k). So the act, it seems to me, contains potentially, at it is very heart, an inconsistency.

Dr Smith : But you are casting it as if they are competing with each other.

Senator BRANDIS: Potentially they could be.

Dr Smith : So, in any particular workplace environment, if I was being harassed I would have a claim against my harasser, whatever the protected ground is. We would have to work out whether it was harassment. Harassment is not usually a one-off tweet or a one-off comment generally about lesbians or a one-off comment about things; it would have to constitute harassment under previous or growing jurisprudence to say, probably, repeated, serious, maybe intimidating.

Senator BRANDIS: Whatever it may be, whatever the particular acts which, taken in aggregate, constitute harassment, my point is that the same conduct that might constitute harassment of the gay person could also constitute harassment of the person expressing the homophobic political opinion.

Dr Smith : How could one person harassing me about being lesbian—but, okay, putting aside all those elements, how could expressing those views constitute harassment of that person in their views?

Senator BRANDIS: If the views were expressed repeatedly and aggressively.

Dr Smith : So me repeatedly going back to that person and harassing them about their political opinion?

Senator BRANDIS: Yes.

Dr Smith : We then have two competing claims.

Prof. Rice : They are both harassing each other.

Dr Smith : So maybe I could sue this person, they could sue me and the employer might have to do something about this behaviour in the workplace.

Senator BRANDIS: Sure.

Dr Smith : Is there a problem?

Senator BRANDIS: At which point, by the example you have given, the act shows itself to be completely ineffective in protecting the lesbian woman.

Dr Smith : Why?

Senator BRANDIS: Because it protects her harasser.

Dr Smith : No. It tells her harasser to stop harassing.

Dr Dickson : That is why there is a regime of exemptions.

Senator BRANDIS: But it could also tell her—

Dr Smith : To stop harassing. Both parties would be required by the law to stop harassing if the law was enforced.

Prof. Rice : That happens now. The Sex Discrimination Act tells everybody not harass each other—

Dr Smith : Not to harass.

Prof. Rice : and, if six people harass each other, they are all in trouble.

Senator BRANDIS: What if the person who expresses the homophobic political opinion is the more timid of the two, so the person expressing the homophobic political opinion is being harassed by the gay person, but the gay person is not being harassed by the person expressing the homophobic political opinion.

Dr Smith : Then we have an enforcement problem and maybe we need the Human Rights Commission to step in.

Senator BRANDIS: It seems to me that to talk about political opinions and to identify them as an attribute is of an entirely different kind than to talk about race, gender, sexuality or ethnicity and that, by the presence of clause 17(1)(k), you get a situation in which the very conduct that one would ordinarily have thought discrimination law was there to prohibit or to discourage will in fact be protected.

Prof. Rice : Political opinion—and there are different ways of describing it: political opinion, political views, political beliefs—

Senator BRANDIS: This says 'political opinion', and we are all agreed that means any political opinion.

Prof. Rice : is a protected attribute in state and territory legislation. There are reported cases.

Senator BRANDIS: But so what?

Prof. Rice : I am making the point that it does work. Yes, we can come up with hypotheticals where it may be problematic, but the first point I am making is that it is an unremarkable ground already. I thought, Senator, you were going to make a different argument, and that is that the person who expresses, as a political view, an anti-homosexual view themselves, is protected in their anti-homosexual view because they can claim that it is a protected political view.

Senator BRANDIS: I was trying to make essentially that point but by reference to this case in this morning's papers. I am sorry, Madam Chair, but let me finish on this. You did predict I would mention Andrew Bolt. Mr Bolt got found to be in breach of the Racial Discrimination Act in Eatock and Bolt because, in a workplace—that is, in his broadcasting studio and in the editorial office where he writes his column—he expressed certain political opinions. Why would that not be protected? Why would his conduct, under this draft, not be protected conduct?

Prof. Rice : It did not happen, but if as a result he had been treated unfavourably because he had done it, if his employer had said, 'You're suspended for a week because you've expressed that view,' yes, he could then say, 'I am expressing a political view,' and it would be a matter of judgement as to whether what he said constituted a political opinion, and, if it did, it would be protected.

Senator BRANDIS: Well, it would be protected, whereas, under the Racial Discrimination Act, it was not.

Prof. Rice : It would be vilification under the Racial Discrimination Act.

Senator BRANDIS: But conduct that might be the expression of political opinion might be protected conduct here but racial vilification otherwise.

Prof. Rice : This is where 10 or 15 minutes ago I thought you were making your point.

CHAIR: Let's move on to other questions.

Senator BRANDIS: Sorry; what is your answer?

Prof. Rice : I agree that, if one can characterise an opinion as political opinion but at the same time as racist then, yes, on its face there is an inconsistency.

Senator BRANDIS: That is where I was trying to get to.

Dr Dickson : Isn't part of the answer too that there is a regime of exemptions to address these kinds of rights conflicts, so that there might be a situation—

Senator BRANDIS: Not that applies to the examples I have given you.

Dr Dickson : You could argue that it was justified perhaps to discriminate on the basis of that political expression because of the content of what was said, because you were raising a rights clash with somebody else's protected attribute. If you can point to the protected attribute, you are not automatically protected. There will be situations where—

Senator BRANDIS: I do not think that is right, with respect, Dr Dickson. You say you are the expert, and I am not the expert, but that is not what the statute says. As Mr Cowdery points out, it sets outs, alphabetically and without graduation or hierarchy, 18 protected attributes, and there is absolutely no reason to believe from the statute that one of the 18 attributes is privileged above the other 17 of the attributes.

If the expression of a political opinion occurs which might, of itself, be at variance or in conflict with one of the other protected attributes then the person can say: 'I rely on paragraph 17(1)k. If you want to rely on paragraph 17(1)(q) and say you shouldn't be exposed to my homophobia then I shouldn't, under 17(1)(k), be exposed to your attempts to prohibit me from expressing these homophobic opinions.' As Professor Rice says, there is an inconsistency.

Dr Dickson : I do not know that the legislation necessarily protects the expression of a political opinion.

Senator BRANDIS: Oh? How else are political opinions to be protected?

Dr Dickson : It may be that it protects the holding of a political opinion.

Senator BRANDIS: No.

CHAIR: We seriously need to move on to another senator now.

Senator PRATT: To kick off, I wanted to clarify something in the Discrimination Law Experts Group submission relating to preferred definitions of sexual orientation and gender identity, noting that some new definitions have emerged. I am keen to hear your position.

Prof. Rice : We came prepared to tell the senators our position on that. First of all, the submission we made was made in a context where we understood from the government that it had announced that it would introduce a new ground—sexual orientation—but no other new grounds. Accepting that, we did not then promote intersex as a separate ground. Our view is that intersex could and should be a ground on its own, and the position we took there, just so you understand, was in the context of what we thought the policy framework was.

Senator PRATT: So the Tasmanian definition would be okay?

Prof. Rice : We are fine with it.

Senator PRATT: And sexual orientation similarly?

Prof. Rice : We have taken a position in our submission, but the labelling is debateable and there are more expert people than we on that point, so we do not press that.

Senator PRATT: As a tangible example of why expression of political opinion is an important attribute to be protected, say a workplace that has five gay people working in a non-political area, where one of those gay people just happens to be a member of the IPA, and the rest of the office harass them sustainably because they say the IPA is a right-wing, homophobic organisation and you cannot possibly justify your membership of it. There have to be good reasons that it is important to balance what might at times and under some circumstances be competing values.

Dr Dickson : Can I continue the point I was making about differentiating between holding a political opinion and expressing a political opinion?

Senator PRATT: Yes.

Dr Dickson : We do not in Australia have unfettered freedom of speech, and so there are aspects of this legislation which recognise that we do not have unfettered freedom of speech.

Senator BRANDIS: We have unfettered freedom of opinion.

Dr Dickson : Yes, but we do not have unfettered freedom to express that opinion in a context where it may cause offence to others—

Senator PRATT: or constitute harassment.

Dr Dickson : or cause harm to others. For example, it might be unlawful to refuse to employ somebody because they hold a particular set of political opinions, but once that person starts promulgating those opinions to the detriment of others in an employment context then you have a different kettle of fish altogether. You are raising, then—

Senator BRANDIS: Are you saying this legislation might justify sacking people for expressing their political opinions? It's worse than I thought!

Dr Dickson : No, I am not—only if it is going to generate some kind of rights clash such as Senator Pratt has indicated. The tribunals and courts—

Senator BRANDIS: Let me get this straight, Dr Dickson. You are saying this legislation might mean that it justifies sacking somebody from a workplace because they express a political opinion in that workplace?

Prof. Rice : No, because they are engaging harassment.

Dr Dickson : No, because their expression of that political opinion amounts to harassment of the other person.

Senator BRANDIS: You said 'offence' before.

Senator PRATT: The example I gave was indeed an example of harassment of someone who held a particular political—

Dr Smith : Single expression of an opinion would not constitute harassment, even under existing legislation.

Senator BRANDIS: What about the repeated expression of it?

Prof. Rice : As you know, Senator, there is extensive jurisprudence on what constitutes harassment. In my view, it is limited; it is very specific. Harassment complaints will fail, more often than not, for not actually reaching the threshold of conduct that constitutes harassment.

Senator RYAN: What about a repeated argument in the lunchroom of a workplace every day, because there is an issue on the front page of the newspaper?

Senator BRANDIS: Or during an election campaign?

Prof. Rice : Part of the law on harassment involves unwelcome conduct. So, if somebody says, 'Please don't do that to me at lunch tomorrow', and says that four or five times, and the person persists, then—

Senator RYAN: It could be five people, with one person sitting there—

Prof. Rice : It does not matter how many. One of the elements is that if a person has said, 'Please don't do that', and they keep doing it, then you are one step towards what legally would constitute harassment. If I kept giving you a hard time and you eventually said, 'Simon, back off', and I kept doing it, then you would be one step closer to being able to say legally that I am harassing you.

Senator RYAN: But free speech is robust, and there is a huge spectrum of what constitutes robust speech versus what some people consider to be harassment. If you go into an election campaign, which Senator Brandis referred to, some workplaces will be different to others. The line here has been moving over the 20 years I have seen this debate happen. So we have a rule-of-law issue and a certainty issue and, from everything you have told me, a person would need to engage dozens of lawyers to find out the appropriate thing to do in their workplace.

Prof. Rice : Not in my experience, Senator.

Senator BRANDIS: But let us say, to use Senator Ryan's example of the lunchroom, there is an election campaign going on, as there will be in Australia, and all the people in the lunchroom have their opinions about the election campaign, and they are different sets of opinions. One person says to another person, 'I think that Julia Gillard is a shocking liar because of what she said about the carbon tax, and I think she's a frightful bully because of what she did to that nice Senator Trish Crossin.' And a third party, overhearing this, says, 'Don't say that in front of me.' And then the next day, the person expressing that opinion about Ms Gillard says it again to his friend, and the third party says, 'I told you I did not want to hear that.'

Prof. Rice : That fails the test for harassment; you know that yourself. There is no harassment of the person who is making the complaint.

Senator BRANDIS: At what point does the repeated expression of an unwelcome political opinion constitute harassment?

Dr Dickson : Where it is about causing an unfavourable outcome for the person—

Senator BRANDIS: You yourself used the word 'unwelcome'.

CHAIR: Senator Brandis, there are about 10 minutes left here. I think we need to make sure other senators get a go.

Senator WRIGHT: At the risk of drawing this out, it strikes me that first of all there has to be the protected attribute that is the basis of the unfavourable treatment, and in that scenario I have not heard what that is being identified. Secondly, it seems to me that we are talking about behaviour among human beings in workplaces that has gone on forever. Conduct that amounts to bullying or harassment in other contexts, irrespective of anti-discrimination laws, would also be something that an employer would have a duty, indeed, to deal with. Whether it is about political views or whether it is about the colour of someone's hair, which is not a protected attribute, if it constitutes behavioural conduct that objectively could be seen as being a deliberate means of trying to bully or humiliate, or for some psychopathic reason perhaps really hurt someone, then that also would be, ultimately subject to restraint. Even though we have the right to make comments about the colour of people's hair, in another context that would be considered to be, I imagine, conduct that could be subject to restraint or some kind of action by the employer.

So I think, with respect—and this is kind of my opinion, I suppose, because you are really the experts on this type of law—that we are setting up a straw persons here, which we are then trying to knock down with great gusto. I think balancing of rights is required, but I think that we have always had to do that. We do that with defamation, we do it with confidentiality, we do it with privacy and we do it with intellectual property, in terms of free speech. And courts are quite capable of doing that, it seems to me. I do not know if you want to agree or disagree or have a view on that.

Prof. Rice : In the very, very large and I think commendable project that this exercise is, this is a small and important point. It is a matter for the committee what it does with 17(k). I agree with you, Senator. You have summarised what discrimination law tries to do.

Senator BRANDIS: That is not what Dr Dickson said before. Dr Dickson was the one who started this when she said in certain circumstances the unwelcome expression of a political opinion in a workplace could constitute harassment.

Prof. Rice : I think she is right, Senator.

Dr Smith : Yes, that is right. If it is on a particular attribute towards someone, repeated and so on.

Member of the committee interjecting—

Dr Smith : Can we help the committee with any other questions?

Senator PRATT: The example I gave could be one such example.

Prof. Rice : Yes, I agree, Senator.

CHAIR: Senator Ryan or Senator Furner, do you have any questions?

Senator FURNER: I have one in relation to the burden of proof, which both the submitters appearing before us have put in. Throughout the last couple of days, some people have indicated that it is going to create an enormous impost on employers and organisations to handle, in their view, a shift. Are they misleading us? Are they trying to inflame this issue as being something extraordinary or beyond what is well accepted in the FWA?

Mr Cowdery : I think they might be somewhat alarmist. If this were a proposal in relation to a criminal statute then we would probably have a different view about things. But there is well-established practice in this area of shifting burdens of proof. As Professor Rice said earlier, the person who conducts themselves in a particular way is in the best position to explain why that was done. It is quite an unexceptional provision that is being proposed.

Prof. Rice : May I illustrate it very briefly, Senator. As a tribunal member sitting where the inquiry secretary is sitting now and with Mr Cowdery at the bar table there—keeping in mind the cases which come into that forum are, as I say, fewer than five per cent of the cases that have been resolved in a round table discussion—when we get to the question of proof, I have presided over a case where for at least a day, sometimes two days or at worst three days, a complainant has tried to lead evidence to prove what was in the other person's mind when they treated them as they did. They draw inferences, they give evidence of circumstances, they subpoena personnel records and they cross-examine foremen and so on. I sit there thinking: 'In the back of the courtroom over there is the person who made the decision. The sooner I get them in the witness-box to tell me why they did it, the better.' Then we get to day three or four, the person gets in the witnesses box and says: 'In the situation, this is what went through my mind.' They get cross-examined. They hold their line. I say: 'Thank heavens! Now we know why it happened.' If, instead, the person was able to be in the witness-box for the morning—and this is a bit artificial because it would have been resolved in the commission beforehand—if it only went to court, they could give ostensible evidence: 'Look, I'm gay, I'm black, I lost my job and'—

Dr Smith : And there is something to suggest that it was for this reason. That is the difference between the FWA—

Prof. Rice : Precisely.

Dr Smith : and this proposal. It is not enough simply to say, 'I am in this category' and make an allegation. There has to be evidence of—

Prof. Rice : 'I had this conversation with the foreman. There was this memo.' Then I would say: 'Okay. I've heard enough to make me ask for an explanation. Employer, hop in the box and tell me why you did as you did.' It would all be over in a day. That is 15 years of experience in the tribunal, watching time and money wasted. I do not know what you have heard, but employer groups agree: employers would much rather be given the opportunity to save time and money to tender their evidence and knock this ridiculous claim out than to sit there and wait on their hands until the ridiculous claim gets answered.

Senator FURNER: Professor Rice, you have explained the scenario of a court hearing and the final stage of the process. In your experience of 15 years before the tribunal, how many cases would be resolved through conciliation?

Prof. Rice : Can I say that before that and since I represent people in their complaints. We go into the commission conciliation process, where there is no before or after or who goes first or who goes next; it is a matter of: 'Sit down. Okay, let us all tell our story.' The burden of proof is relevant to a tiny and late part of the process where things become formal. Ninety-six per cent of these matters are resolved without anybody going first or second, with the conciliation officer getting to the bottom of it. My experience representing people there is that you get to the bottom of it. So then you are talking about how you then formalise the remaining matters that go into a dispute and that is when shifting it will get to the bottom of it just a bit more quickly.

Senator RYAN: I have heard this argument over and over again over the last two days as to custom and past practice. We have this approach, particularly about the shifting burden of proof or reversal of the onus of proof—I am not a lawyer by training so I might get the odd word wrong. But custom and past practice are not a sufficient argument. They have been used to justify abominable laws in the past. Creating momentum merely by getting one or two jurisdictions to start doing something so that people can come before committees and say, 'It is happening in Tasmania and New South Wales,' or in New Zealand, or due to some international instrument, is not the measure by which we should access our law. So could we just push that to one side for a second.

With respect to the shifting of the burden—the reversal of the onus of proof—will that not lead to an increase in claims? The reason I say that is that, for the very reason, Professor Rice, you outlined the disincentive, because of the cost and the trouble of those three days of hearings where you thought, 'I would just like to speak to that guy who did it'—that this person is having trouble proving their case—

Prof. Rice : For the tiny percentage who get that far—

Senator RYAN: I am concerned about the tiny percentage because, for the guy or the girl who runs the store which employs three or four people, or the voluntary organisation, this is a massive burden upon them. It is not insignificant to be called to compulsory conciliation and, potentially, an action.

Dr Smith : It is only a massive burden if they do not resolve it. If somebody makes a claim and says, 'I think you've discriminated,' and they say, 'Actually, the reason you didn't get the job was because you were not qualified enough,' you have got a reason. And it does not go—

Senator RYAN: Well, hang on—

Dr Smith : It may not go further.

Senator RYAN: It may not—exactly. This is the whole point—the 'may'. So this will lead to an increase in claims—will it not?—because it is easier for a claimant, because I know that if I make a claim, if the conciliation process fails, I no longer have to be able to prove it and be confident that I can.

Dr Smith : You do have to.

Prof. Rice : Yes, you do, and this is the point that Dr Smith made about the Fair Work Act where the threshold in fact is not as high. The discrimination act is asking more of complainants. You cannot turn up and say, 'Lost my job—discrimination'.

Senator RYAN: No, I am not trying to say that. My point is that—

Dr Smith : Ultimately there is a balance of probabilities proof—

Prof. Rice : That is not how the provision reads, Senator.

Senator RYAN: I know that you, as a tribunal member, can say to the person down the back, 'Come up here and tell them your story.' My expertise is in economics. You are reducing the price of action here because, prior to that, I knew that I had to be able to prove it and you could not make that person come up.

Prof. Rice : I agree that is a very effective way of looking at it. The price of the action remains very much the same. You lodge a complaint, you wait for the commission to investigate your complaint, you sit down at the conciliation and you thrash it out. None of that has changed. So, for a very significant majority of the market, what is on offer remains exactly the same. At the time that you suffer the unfavourable treatment, if your calculation involves taking account of the possibility, in three years time, of being in a magistrates court—I agree, you could counsel them, but for people who suffer unfavourable treatment the calculation of the cost of doing anything about it is, 'What letter do I have to write, what phone call do I make, what process am I going to get, to get me back in my job soon?' The Fair Work Act, I have to say, is a much more attractive jurisdiction for people in employment because it happens quickly. Discrimination is incredibly slow.

Senator RYAN: I appreciate that.

Prof. Rice : So the cost of it is unchanged in this regime. The act does not alter the complaints process a bit.

Senator RYAN: But it alters—could I call it the second half or the post-complaint process? That is because I know that you are going to call that person up and they are going to have a duty to explain themselves, which is a substantial shift in that I no longer have to establish it. I actually think it should be hard to establish claims. That is why we have all the burden being upon that person.

Prof. Rice : But if you are speaking to the other side, as I said, the provider—the accommodation provider, the service provider—would say, 'Quite frankly, we'd rather get him in and tell our story quickly and cheaply.'

Senator RYAN: Well, they can. The point is: they could conciliate now.

Prof. Rice : And they do—

Senator RYAN: So the point is: all that is available to them now. You mentioned before that employer organisations think this is a good idea. Of course they do—guaranteed clientele. They are going to have a service to sell employers. It is like the old IR club. You are giving them a job to do. We are creating transaction costs on the economy because the guy that runs the supermarket, the independent, will need some help to do this, so he will go and pay for a service from an employer organisation. That is not a compelling argument. So the little store, as they might do for industrial relations, has to go to an employer organisation for help with a modern award or to represent them in the tribunal, just like a union member would go to a union to represent them.

Prof. Rice : I think that happens now.

Senator RYAN: But you put the view that employer organisations think this is a good idea. I am putting to you that that is not necessarily representative of employers.

Senator BRANDIS: Following on from what Senator Ryan says, you have conducted these cases for many years, you say. I have run these cases as counsel, so we both know that it is very common in cases of this kind for ultimately the tribunal to be decided by inference.

Prof. Rice : Yes, I agree, that is very common.

Senator BRANDIS: We also know that if the person who is the operative decision maker, the person whose state of mind is an issue, is available but does not go into the witness box, then an adverse inference may be drawn.

Prof. Rice : May be drawn, but it certainly does not decide the cases.

Senator BRANDIS: It might.

Prof. Rice : I agree, it could do, if they chose to, precisely, which is why I rarely see it happen. I cannot think of a discriminator declining to get in the box to explain themselves.

Senator BRANDIS: My very point, Professor. If a complainant put before the tribunal or the courts all of the relevant matters—I sought the job, I did not get the job, this is my CV, I had this interview, this is what was said to me, but the one missing piece in the evidentiary jigsaw puzzle, that is the motive or purpose of the decision maker, remains in issue. Then one of two things will happen: the decision maker will go into the witness box, which, as you rightly say, almost always happens, or he will not. If it goes into the witness box, he can be cross-examined on the issue; if he does not go into the witness box, an adverse inference can be drawn against him from his failure to do so.

Prof. Rice : As you know specifically, the Jones and Dunkel inference is only that his evidence would not have been helpful.

Senator BRANDIS: Yes.

Prof. Rice : He cannot lose a case because of it, but we are getting into very technical—

Senator BRANDIS: I do not think it is very technical.

Prof. Rice : I could not, as a judicial officer, draw an adverse inference that would decide a case for a complainant simply because the alleged discriminator did not give evidence. It is unsustainable.

Senator BRANDIS: There is a body of precedents, which I have read, in which the decision makers have done that, both here and in the United Kingdom.

CHAIR: Thank you very much for your submissions and for your time today. It has been very helpful and very useful.