Subject: Anti-discrimination Bill
STEVE AUSTIN: You heard it on AM this morning. The federal government is consolidating five federal laws or five acts of federal parliament to bring about a sort of a new, improved Anti‑Discrimination Act. This Act is quite controversial, as you heard on this program yesterday with Queensland Senator George Brandis. There've been some five hundred submissions from around Australia on planned changes to the laws. In just a moment, Mark Dreyfus.
Mark is the federal Government's Cabinet Secretary and a QC himself. We will be asking him for the Government's response to Senator Brandis' comments on this program yesterday. Let me just set the scene. If you didn't hear what Senator George Brandis had to say for the LNP, here's what you missed.
GEORGE BRANDIS: But what I think we see in this bill is a very deliberate and ideological attempt by Nicola Roxon who is the ultimate nanny state politician to impose a code of conduct on Australians made legally enforceable which goes way beyond where anti-discrimination law ever went before. And I know this is an overused adjective, Steve, but it is Orwellian. If you say something that somebody else might say, well that offends me because of my social origins, you can be taken to court and you ‑ the burden of proof is then on you to show that you didn't break the law.
STEVE AUSTIN: Mark Dreyfus, good morning to you.
MARK DREYFUS: Morning, Steve.
STEVE AUSTIN: First of all, why is the Government consolidating these five acts into one piece of legislation?
MARK DREYFUS: Well we've had some four decades of legislation in this area. We've got the Age Discrimination Act, the Disability Discrimination Act, the Racial Discrimination Act, the Sex Discrimination Act and the Human Rights Commission Act itself. It's absolutely appropriate that if you've got that sort of situation over about three or four decades that governments bring together, consolidate, different pieces of legislation that deal with the same subject matter so that the law can be made simpler so that the community can understand it; it's good for business because people who are regulated by these anti-discrimination laws need to be able to find them, it's good that they can go to one place and just say, that's the law that affects me. So it's a consolidation process, and I'd add, it's not the intention of the Government to achieve some major change, as has been falsely presented to you yesterday by George Brandis.
STEVE AUSTIN: There have been a number of commentators who observe that the law does appear to go beyond what was in the five separate pieces of legislation. It does appear to have ‑ I don't know what you could it ‑ potential for legislation creep or bracket creep or something. Does it? Does it go beyond what the original legislations say?
MARK DREYFUS: No, it does not. We've made it clear ‑ and I think what I'd be inviting anyone that's at all interested in this area to do is to go to the Attorney‑General's website ‑ it's ag.gov.au ‑ and look at the explanatory memorandum. Look at the bill itself and see what's intended with this consolidation. There's been no change in the racial vilification area, and I'll come back to that, because it seems that what the Liberal Party are wanting to do is to actually repeal existing law. It's been a very useful part of Australian law in that case since 1994.
It prohibits hate speech. But the area that there's been commentary about is in the area of discrimination in the form of harassment, and it's not ‑ and I'll just make this as clear as I can, Steve ‑ it is not the Government's intention to regulate the type of language that's used privately between friends or to prohibit people from engaging in discussion on religious or political or other topical matters. Rather, we need to make clear that discrimination, which has been outlawed in Australia on a whole range of grounds for many years, can include harassment. And the reason that these sorts of bills are the subject of discussion papers and released for public comment is so that we can get the precise words right. If you're into this...
STEVE AUSTIN: You're a QC, Mark Dreyfus. You know that laws often have ‑ regularly have unintended consequences. This brings about great public debate. Let me just pick up one section that George Brandis observed yesterday and get you to respond directly to that. It's Section 18C, which in the new legislation is the provision which says it's unlawful to say something which insults, offends or intimidates ‑ let me just play you what Senator Brandis had to say.
GEORGE BRANDIS: There is a provision in the Racial Discrimination Act, one of the five acts, Section 18C, that's the provision under which Andrew Bolt was ‑ the year before last got into trouble ‑ which says that it is unlawful to say something which insults, offends, humiliates or intimidates someone on racial grounds. Now, I think it's fair enough that people shouldn't be intimidated on racial grounds, but I think there is ‑ as the Bolt case showed, there was a very lively community debate about whether or not to say something which merely offends somebody's political opinions or sensibilities should be against the law. Now, that provision has now been extended in this consolidated draft bill.
STEVE AUSTIN: That's George Brandis. Do you want to respond, please, Mark Dreyfus?
MARK DREYFUS: Well, I do, and that's where I'm saying that people should not take these kinds of false statements that George Brandis is making about the bill. They should go and have a look at what the Government's actually published here in the form of the bill. He's misquoted the existing law, Section 18C of the Racial Discrimination Act. We know from something that Tony Abbott and George Brandis have said last year and in response to the decision on Andrew Bolt that they want to repeal these long‑standing provisions in the Racial Discrimination Act. He's misquoted what's actually the law. What the law actually says at the moment is that you engage in racial vilification if you engage in conduct that's reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people. The law goes on to provide...
STEVE AUSTIN: That's ‑ the problem word is reasonably, isn't it? There's great debate over what that is.
MARK DREYFUS: Of course, and you'll always get that kind of debate, but importantly, the law protects artistic, academic, scientific purposes, it protects fair reporting on matters of public interest and it protects fair comment on matters of public interest, and why Andrew Bolt was found to have contravened the Racial Discrimination Act was because he failed to establish the defence that protects reasonable comment.
STEVE AUSTIN: You may remember last year it was that Larissa Behrendt, when watching a Q&A program on ABC TV made statements on Twitter that equated - you can bloody quote her. She said, I watched Q&A where a guy had sex with a horse and I'm sure it was less offensive than Bess Price. You know the case, it blew up around Australia. Bess Price in a Northern Territory Aboriginal woman. Now, Larissa Behrendt apparently would not trigger any section of the Anti‑Discrimination Act, even though her remarks were clearly offensive and she apologised for them later on amid outcry.
MARK DREYFUS: And that tells you something, Steve. It says that we've drawn the line in a way that protects what I think most people would see as pretty robust political speech where that comment that undoubtedly would give offence to Bess Price and certainly would give offence to many listeners was not suggested to be in breach of the existing law. There's nothing in the bill that the Government has put forward that would change that, and what's important is that it be understood that this is largely a consolidation of existing law which is the product of years and years of debate, public debate about where we should draw the line. We think that the line...
STEVE AUSTIN: And comedians would be exempted? So people like comedians don't have any issue of concern?
MARK DREYFUS: No, artistic...
STEVE AUSTIN: Much comedy is deliberately offensive, isn't it Mark?
MARK DREYFUS: Too right. There's an existing exemption in the Racial Discrimination Act, the one that the Liberal Party wants to repeal, that protects artistic performances. That would continue in this bill, this consolidating bill that the Government has put forward.
STEVE AUSTIN: I'm mindful of the time. Let me play you another comment that George Brandis made yesterday. Senator Brandis said the consolidation reverses many of the onus of proof in many of the old acts.
GEORGE BRANDIS: Under the existing five acts, in some cases there was a reverse onus of proof but in most there wasn't. Under the new Act, there's always a reverse onus of proof. And you know, paradoxically, this is a bill called the Human Rights and Anti‑Discrimination Bill. I thought one of the fundamental human rights was the right to be innocent until proven guilty.
STEVE AUSTIN: Mark Dreyfus?
MARK DREYFUS: Well, that's a misrepresentation of what this bill does. I'd repeat again that this is a consolidation of existing law. I'm not quite sure what George Brandis is saying there. Is he saying that people should be able to discriminate against old people in our community? Is he saying we should be able to discriminate against women?
STEVE AUSTIN: No, he's saying that certain ‑ certain of the acts do make it ‑ do reverse the onus of proof, but now under the consolidated bill, all of the onus of proof is reversed.
MARK DREYFUS: Well, I don't accept that is a proper technical description of what this bill is doing. Of course, people are free to put forward their submissions, George is free to put forward his point as well, the Government will be taking all of that into account when we present the final bill to Parliament, and of course that'll be another opportunity for public debate this time in the Parliament.
The Senate Committee is looking at the bill at the moment ‑ that's the bill that's been exposed for public comment ‑ it'll be reporting in mid‑February. It's quite possible that when the final form of the legislation is put to the Parliament, a House committee will also look at it. I don't think on any view it could be suggested that the Government has not given the maximum possible opportunity for comment, and because of the importance of this kind of legislation, it's totally appropriate that we do give that opportunity.
STEVE AUSTIN: Senator Brandis went on to say that the bill makes potential litigants of everyone who says they've been offended.
MARK DREYFUS: Well, that's just false. There's no suggestion in this bill that comments made by one Australian to another or discussions between one Australian and another that might give offence should give rise to litigation. So again, I'd invite people not to listen to George Brandis' false descriptions of this legislation which are being made to stir up a political point, to run some kind of mini campaign here at the start of the political year, but rather...
STEVE AUSTIN: But Mark Dreyfus, the bill is there ‑ the bill is there that if someone says, I feel offended by that statement, the very reason why we have the Act or the laws that you're looking at is so they can say, yeah, I'm offended, I don't like that, and I'm going to go and use this piece of legislation to take such and such to court to go them basically. It's ‑ otherwise you wouldn't need the Act. Of course ‑ everyone has access to that Act and everyone's a potential litigant.
MARK DREYFUS: On the contrary. The bill very clearly is a consolidation of a whole range of existing anti‑discrimination laws. It's to stop people in Australia being discriminated against in their workplaces, it's to stop people being discriminated against when they go to rent a house, it will in future stop people from being discriminated against when they take the ‑ take up aged care services in an aged care provider's facility. The Government is not seeking to regulate the type of language that's used privately between friends. This bill, if it becomes law, won't be an opportunity for people to say, I'm going to go and take up litigation with you because of what you've just said. It's not a prohibition in engaging in political or religious or any other discussion about matters of current affairs, and I'd very much resist, Steve, any suggestion ‑ which is apparently being put forward there by Senator Brandis ‑ that that's what this legislation seeks to do.
STEVE AUSTIN: Mark Dreyfus, thanks for your time.
MARK DREYFUS: Thanks very much, Steve.
STEVE AUSTIN: Mark Dreyfus is Cabinet Secretary in the federal Government. He's also the ‑ he's also a QC, I'm sorry.