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Anti-freedom overturned


Cite as: March 2013 87 (3) LIJ, p.10

The Law Council of Australia (LCA) has welcomed, on behalf of the Australian legal community, including the LIV, a federal government announcement that the exposure draft Human Rights and Anti-Discrimination Bill 2012 would be re-drafted.

The new draft will be missing the controversial s19(2)(b) which had caused considerable debate among the legal community, human rights lobbyists, the media and judges about its potential to restrict freedom of speech.

On 27 January, former High Court judge Ian Callinan called for community opposition to the reforms in The Australian newspaper, labelling the reforms “outrageous” and a threat to community cohesion.

“The dangers of . . . the introduction of a new law to criminalise speech which might cause offence to anyone should not be underestimated,” he said.

On 31 January, then Attorney-General Nicola Roxon announced that paragraph 19(2)(b), or as it became known, the “insults and offends” provision, would be removed.

Ms Roxon ordered the rewrite after the Senate legal and constitutional affairs committee received over 500 submissions on the draft.

The exposure draft of the Human Rights and Anti-Discrimination Bill was released on 14 November 2012.

The Bill consolidates five existing commonwealth anti-discrimination Acts into a single piece of legislation.

On 21 November 2012 the Senate referred the exposure draft of the Bill to the Senate committee for inquiry and report.

LCA president Joseph Catanzariti said the legal profession was generally supportive of the consolidation of the Acts.

“The proposed legislation will improve the law’s capacity to provide protection for the many individuals and groups within the Australian community who continue to experience discrimination, and for whom the notion of substantive equality remains out of reach,” he said.

The LCA and LIV considered the draft Bill to be a significant step towards realising those goals – however the LCA in its submissions ( to the federal government regarding the draft Bill highlighted two areas it believed required further attention.

These areas were in particular the test of discrimination in sub-clause 19(2) and the justifiable conduct exception in clause 23 of the draft Bill.

“The Law Council supports the general rationale behind both of these provisions, however, these provisions have been drafted in a way that gives rise to uncertainty about their potential scope and the extent to which subjective factors will be considered when determining whether particular conduct is discriminatory and if so whether it falls within the ‘justifiable conduct’ defence,” the submission said.

“This has in turn given rise to concerns about whether the protections against discrimination in the draft Bill unduly infringe upon other human rights such as freedom of expression.”


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