Rediscovering freedom in anti-discrimination law

The federal Government’s ill-fated Exposure Draft of the Human Rights and Anti-Discrimination Bill was criticised by a diverse range of organisations. While there were many criticisms of the Bill, in the main there were three major design flaws in the Bill: duplication, overreach and lack of respect for free speech.

The controversy about this Bill reflects a broader set of issues concerning the balance between ‘equality’ rights and other human rights and freedoms. It demonstrates also the need to consider more carefully the liberty impact cost of legal regulation.

That there was so much opposition to this Bill indicates perhaps how far the anti-discrimination and human rights lobby groups have become detached from the mainstream of community thought in Australia. This includes the Australian Human Rights Commission, which needs to become a more diverse and balanced organisation.

The Controversy About the Human Rights and Anti-Discrimination Bill

The federal government’s Human Rights and Anti-Discrimination Bill, proposing major reforms to federal anti-discrimination law, was released for public consultation at a time when we were all busy with our Christmas shopping. It seems clear enough that there had been a division within the Government about how to proceed with the Bill. The doves, urging political caution, had won the day, and the Bill was put out as an exposure draft. Nonetheless, there were hawks who wanted to proceed quickly with the Bill, no doubt in recognition of the conventional wisdom that governments should not introduce controversial legislation in an election year.

The result was a rushed timetable for consultation. Anyone who wanted to make a submission had to do so in their spare moments in between going to Christmas parties, end of school year concerts and basting the turkey. Yet, despite it being the worst possible time of the year for consultation, there were more than 590 submissions concerning this Exposure Draft, many of them making very detailed critiques and recommendations for amendment. In the main, the views were critical. Over December 2012 and January 2013, the Human Rights and Anti-Discrimination Bill became a major topic of conversation in the media.

The problems with the Bill

Although the Government sought to reassure the public that this was merely a ‘consolidation’ of existing laws which did not involve major change, it was quickly apparent to careful readers that this was not the case. Most surprisingly, there was a claim on the Senate Committee website that the Bill did not “propose significant changes to existing laws or protections” but was only “intended to simplify and clarify the existing anti-discrimination legislative framework”. How that statement came to be written is perhaps a matter that should be investigated by an independent inquiry. The community (and indeed Members of Parliament) have a reasonable expectation that all such explanations of proposed legislation, whether on an official website or in Explanatory Notes to the Bill, will be both accurate and truthful. The Exposure Draft proposed major changes to existing laws. That should have been made clear in all publicly available documents.

There were a great many criticisms of the Bill, and on some points, the Government was being criticised from opposite directions (which is often a sign of a reasonable compromise). However, when the wood is seen from the trees, and one focuses on broad design rather than minute detail, it may readily be seen that there were three major problems with the Bill:

  • • The duplication problem,
  • • The overreach problem, and
  • • The free speech problem.

The duplication problem

The proposed law gave the complainant a right to make a civil claim in the federal courts on the basis of eighteen different attributes, subject to first going through conciliation with the Australian Human Rights Commission. This is in addition to all the protections that currently exist under state laws, creating unnecessary duplication and running counter to micro-economic reform objectives that involve reducing inefficient regulation. The Government had long indicated its intention to extend the reach of federal law in this Bill to cover sexual orientation and gender identity, so the inclusion of these was expected, and indeed has bipartisan support.

What was not expected was that so many other protected attributes would give rise to claims for civil remedies in circumstances where that is not presently the case. The Government had engaged in a prior process of consultation based upon a discussion paper on the consolidation project, but this had been prepared under the management of the previous Attorney-General, Robert McClelland. The degree of change that eventually emerged in the Exposure Draft had not been appropriately flagged in the Discussion Paper.

The basis for the extent of the changes was that all the current protections in the law would be lifted to the “highest current standard” (with the consequence that wherever a choice between rules needed to be made the rule would be chosen that provided the greatest overall expansion in the scope of federal law and in the ease with which complaints could be successfully made). The Government also indicated its intent that protections would be enhanced “where the benefits outweigh any regulatory impact.”

Under the present law, a civil law claim of ‘unlawful discrimination’ is confined to claims under the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975, and the Sex Discrimination Act 1984.

It is true that almost all the other protected attributes listed in the Bill receive some form of protection in the Act or regulations accompanying the Australian Human Rights Commission Act 1986. However these other protected attributes do not give rise to a right to make a civil action in court. The powers of the Commission are limited to investigation, conciliation and reporting to the Minister in relation to those matters. It may make recommendations about compensation or remedial action and how to avoid repetition, but that is all. The process and remedies for these other protected attributes may be useful when complaints of discrimination are made against Commonwealth government entities (which can be expected to take seriously the findings and recommendations of the Australian Human Rights Commission), but the present law gives the complainant no grounds for a civil action. This is because the definition of ‘unlawful discrimination’ in the Australian Human Rights Commission Act is narrower than the definition of ‘discrimination’. Oddly, therefore, conduct may be ‘discrimination’ under the Act without it being ‘unlawful discrimination’.

Many of these other protected attributes also find mention in s351 of the Fair Work Act 2009. This vague section provides that an “employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.” However, this provision does not apply to action that was “not unlawful under any anti-discrimination law in force in the place where the action is taken.” In practice therefore this federal provision defers to state law on discrimination.

To say therefore that the Bill did not “propose significant changes to existing laws or protections” was very surprising. The Explanatory Notes to the Exposure Draft were more accurate in stating that the “Bill will make a number of reforms to Commonwealth anti-discrimination law”. The Explanatory Notes went on to describe a range of major changes, including an acknowledgement that the Bill would create ‘additional protections’ for a number of other attributes in the area of work only.

The massive expansion in the possibility of civil claims in federal law if the Bill were enacted would mean the possibility of problems of inconsistency between state and federal laws. The Explanatory Notes to the Bill tried to put a positive spin on this. The expansion of the protected attributes in relation to work would “harmonise with protections in the Fair Work Act 2009 and State and Territory anti-discrimination laws.” However, nothing in this Bill would have harmonised anything. There was no attempt to create one national uniform law on discrimination. All that the Bill offered was increased and unnecessary duplication with state laws. Indeed, even the Fair Work Act provision on discrimination was left intact. As the Australian Federation of Employers and Industries commented in its submission:

“Significantly, while “harmonisation” of federal anti-discrimination laws may be proposed there is no intention to harmonise or repeal existing state and territory anti-discrimination legislation. Significant overlaps and inconsistencies remain with these laws and with the Fair Work Act 2009. Employers face significant uncertainty ahead if the Bill becomes law as they confront the new federal provisions and their, as yet unknown, effect on differing anti-discrimination law in each jurisdiction”.

The overreach problem

There were also numerous ways in which the proposed law could become a source of liability for many more people than hitherto, and in aspects of their lives that they would justifiably regard as far outside discrimination law’s normal domains of paid employment, education and the provision of goods and services. The definition of discrimination in the Exposure Draft was as follows:

‘A person (the first person) discriminates against another person if the first person treats, or proposes to treat, the other person unfavourably because the other person has a particular protected attribute, or a particular combination of 2 or more protected attributes.’

Hitherto, federal anti-discrimination laws have mainly applied to vertical relationships, prohibiting discriminatory conduct by persons possessing responsibility, authority or power in particular areas such as employment and the provision of services. However, the Exposure Draft indicated a shift towards a position where anyone can ‘discriminate’ against anyone else.

This reflects trends in the anti-discrimination law of some other jurisdictions, with the scope of such laws moving beyond vertical relationships in education, employment and commerce, to seek to influence the conduct of everyone. As the former US federal appeals judge Michael McConnell, has written, the new approaches reflect the idea that “not only … the government should be neutral, tolerant and egalitarian, but so should all of us, and so should our private associations.” In this new manifestation, anti-discrimination law, and its cousin, anti-vilification law, are increasingly seen as means of enforcing tolerance through criminal offences and civil remedies, in a great many areas of economic and social interaction.

This new approach to anti-discrimination law is also based on the idea of legal regulation as a tool for promoting substantive equality in society. This is far from the origins of the movement which lie in the protection of historically disadvantaged groups which have been “subject to widespread denigrations and exclusion”. The new anti-discrimination law has much more ambitious goals. It seeks to protect any member of a group or any person with a characteristic that might lead others to treat them unfavourably. One consequence is that reformers seek to expand the protected attributes to an ever-increasing number of characteristics or personal histories, only some of which have in the past been the basis for widespread prejudicial treatment.

Such laws might be comprehensible in relation to paid employment if the boundaries between lawful and unlawful differentiation were clearly enough defined. However, the expansion in the categories of protected attributes is not just about equal opportunity in employment, for these ‘progressive’ anti-discrimination laws go far beyond the employment context.

The Exposure Draft did seek in principle to maintain some kind of differentiation between the public and private. The proposed laws would only apply to ‘public life’. However, the definition of that term was very wide and was not even limited to the various categories listed. The categories of ‘public life’ included not only employment, education and the provision of goods and services but also “membership and activities of clubs or member-based associations” and “participation in sporting activities (including umpiring, coaching and administration of sporting activities)”. The Bill even applied to voluntary and unpaid work. Unpaid work was not defined. The International Labour Organisation includes buying groceries for an elderly neighbour or driving a neighbour to a medical appointment within the definition of voluntary work. Stay-at-home mothers also arguably engage in ‘unpaid work’. The reach of the Bill was potentially vast, and its boundaries uncertain.

The application of the law to volunteers is an example of how the “highest current standard” approach led the government to introduce a Bill which extended the law so radically. The Senate Standing Committee on Legal and Constitutional Affairs, in its report on the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality had a very brief discussion of the need to protect volunteers from sexual discrimination and harassment. The Human Rights and Equal Opportunities Commission, as it was then known, gave the example of the woman who helps out once per week in the school tuckshop and who, it was submitted, ought to be protected under the Sex Discrimination Act without needing to show there is an employment relationship. The Explanatory Notes to the Exposure Draft record that the Government had accepted this recommendation and had included voluntary and unpaid work in the Bill. However, by adopting this recommendation in the context of the consolidation Bill, the recommendation of the Committee in relation to sex discrimination became applicable to eighteen different attributes.

None of this, it seems, had been thought through. It involved a massive extension of the level of regulation applicable to voluntary and unpaid work, with no recognition of how far the notion of unpaid work might extend, or the regulatory impact of creating remedies both for volunteers and unpaid workers, and against them.

It is highly doubtful in any event that the Commonwealth has any constitutional power to regulate volunteers in relation to most of the protected attributes in the Bill. This is because the main constitutional basis for the Commonwealth to pass laws on discrimination is the external affairs power. The Commonwealth can enact laws to give effect to treaties and international conventions. The major convention on which the Commonwealth needed to rely in relation to many of these protected attributes such as industrial history, political opinion or ‘social origin’ is Convention 111 of the International Labour Organisation. It is extremely doubtful that this Convention could be interpreted to apply to unpaid work such as helping one’s neighbour.

The free speech problem

Notoriously, the Bill would have also made it unlawful to offend someone on the basis of a protected attribute. This was widely criticised, notably in a speech by Jim Spigelman, the former Chief Justice of New South Wale. There seems to be a persistent lobby group which seeks to enact laws providing remedies to people who feel offended. In the Australian Capital Territory, conduct which is offensive to an intimate partner or former partner is ‘domestic violence’. Victoria’s Family Violence Protection Act 2008 is similar. It defines behaviour which is “offensive to the other person” as a form of emotional or psychological abuse, which is itself a form of ‘family violence’ if the other person is an intimate partner, or former partner. This stretches the definition of ‘family violence’ beyond all reasonable limits.

Anti-discrimination laws seem to be a particularly favoured context for such laws. For example, Tasmania’s anti-discrimination law provides that:

A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of [certain attributes] in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

A government Bill before the Tasmanian Parliament to amend this legislation provides that this offence of causing offence should now be extended to all twenty different attributes protected by the Act.

The provision in the Exposure Draft making it unlawful to offend or insult someone because of a protected attribute was not some accidental by-product of consolidating the laws. It seems to have been a quite deliberate policy decision. However, as Michael Sexton SC pointed out, when the provision was criticised, almost none of the individuals or organisations who presumably support such laws and have successfully lobbied for their enactment, came to its defence.

It was problems of this kind that led so many people to respond with concern about the federal government’s Bill.

The downside of anti-discrimination laws

The greatly increased scope of the law as proposed in the Exposure Draft would no doubt be seen as a benefit for those who see law and regulation as an effective strategy in making people behave better towards one another or be more tolerant. Conversely, the Bill was seen as a threat by organisations that could see the implications in terms of higher costs, and more nuisance claims or otherwise misconceived complaints. That includes organisations that involve volunteers and which could see an increased risk of very scarce resources having to be spent on legal compliance costs and defences to claims.

A particularly damning submission was received late in the consultative process from the Police Federation of Australia. It expressed concern that the Bill risked bringing policing to a standstill or making it unworkable as suspects, offenders and prisoners exercised their human rights.

Discrimination law has long played an important role in promoting equality of opportunity and treatment. As such the principle of non-discrimination attracts widespread public support. However, complaints sometimes arise in a context of great factual uncertainty. Was the complainant not selected for a post because of a particular attribute or because another person was deemed better qualified? Was a teenager expelled from school because of his proclaimed sexual orientation or because of his behaviour?

There are also numerous justifications for taking ‘protected attributes’ into account in making employment decisions. There is often uncertainty about the boundaries between lawful and unlawful differentiation. For example, the Bill sought to make it prima facie unlawful to discriminate on the basis of medical history. One might feel a great deal of sympathy for a person who has struggled and continues to struggle with mental illness, but it is likely to be a legitimate issue to consider in many employment decisions. So too is the character of someone who has a criminal record. Tasmanian law contains a protected attribute of “irrelevant criminal record” which is defined, inter alia, as situations where “the circumstances relating to the offence for which the person was convicted are not directly relevant to the situation in which the discrimination arises.” When is a criminal history ‘directly relevant’ and when is it not? Uncertainty about when differentiation is justified comes at a significant economic cost to the community.

Furthermore, litigation does not come cheaply for anyone. It is also very time-consuming. The Sydney Morning Herald put the case against the Bill pithily in an editorial, indicating its “aversion to using the law to regulate anything more than the most harmful of human behaviour”.

The future of the Bill

The criticisms of the Bill were so strong and from so many quarters that by the end of January 2013, it must have been seriously questioned in the Government whether it should proceed with the Bill at all. Eventually, with her legacy project in tatters, the Attorney-General, Nicola Roxon, resigned, perhaps sooner than she had originally planned to do, leaving the way open to her successor to kick the project into the long grass or to produce a substantially amended Bill.

At the time of writing, its fate remains unclear. The Senate Committee reported on February 21st 2013 and split on party lines. The Committee secretariat, under considerable time pressure, had done a fine job of capturing the different arguments on several major issues, but it seemed as if the Labor majority on the Committee had not heard the depth of concern.

Although, unsurprisingly, the Labor members of the Committee recommended that the clause about causing offence should be deleted, many of their recommendations were in the direction of further expanding regulation. They also recommended a diminution of the scope given for freedom of conscience in the provision of goods and services. They ignored the duplication problem and the difficulties that might arise from inconsistency with state laws. They wanted yet more protected attributes, and their model on certain issues was the most radical and interventionist of the state anti-discrimination laws, that in Tasmania. Their recommendation concerning volunteers failed to address the huge definitional problems in this area. The Greens wanted even further expansion of regulation. The Coalition, on the other hand, considered the Bill was so badly flawed that it would not even attempt to suggest amendments.

While making some recommendations, the Labor majority of the Committee noted that due to time limitations the Committee had not been able to deal with many of the issues raised in submissions. The Labor members recommended that the Attorney-General’s Department “actively and thoroughly consider all evidence presented to this inquiry during the formulation of the final version of the legislation”.

The Attorney-General issued a press release thanking the Committee, and promising that a “full response” would be made “shortly”. It seems difficult to imagine that the Attorney-General’s Department could complete all its work in reviewing the issues and come up with a revised draft likely to satisfy critics, in time for the legislation to pass in this Parliament. No doubt also there will be deep divisions within the Government along the fault lines between centrists and radicals that will make it more difficult to find any way forward from here. Having talked for years about consolidating anti-discrimination laws, the Government overreached in its Exposure Draft and has probably run out of time.

Reflections on the Controversy

Now the heat of debate has begun to die down about the text of this Bill, it is worth considering why it is that an area of law that reflects such widely shared community values has become so controversial.

The absence of critical voices in the expert commentariat

One of the problems in this area is that the experts in the field tend to have a homogeneity of viewpoint that is arguably far outside the mainstream. Just as environmental law experts are almost uniformly in favour of stricter laws to protect the environment, so anti-discrimination lawyers typically favour an extended reach for anti-discrimination law.

It was therefore little surprise that the academic experts and ‘human rights’ groups, in written submissions, argued for a yet more extensive reach for such laws. For example, the Bill gained strong in-principle support from the Discrimination Law Experts Group, a body of distinguished anti-discrimination law specialists. In a lengthy and detailed submission, they argued for further extensions to the reach of the law, and restrictions on exceptions. The Castan Centre for Human Rights Law at Monash expressed similar views. The Human Rights Law Centre submission not only applauded the Bill but wanted a further significant expansion in the number of protected attributes, including prohibition of discrimination on the basis of ‘other status’. The Australian Human Rights Commission also supported the Bill and argued for consideration to be given to the inclusion of discrimination on the ground of domestic violence. As these submissions indicate, the strong tendency is for experts on anti-discrimination law to be plaintiff-centred, hostile to exceptions, and intent on an expansion of the reach of existing laws.

The absence of critical voices about the reach of the law amongst experts was one of the factors that arguably left the Government so unprepared for the extent of community concern about this Bill.

The approach to law reform

There is also a need to consider more carefully the reasons for introducing legislation. The Government offered two reasons for introducing this Bill. The first was to give effect to an election promise to introduce protections in relation to sexual orientation and gender identity. The Government cannot be criticised for seeking to fulfil an election promise. What was missing, when that promise was first made, was any explanation for why there was a need to duplicate the existing protections in the state and territory laws dealing with these issues. If those laws are inadequate, in what way is this so and why is more federal legislation the solution?

The second reason for introducing the Bill was to consolidate and simplify the existing federal regime. There was a case for some reform, but not this kind of reform. Had the Government simply consolidated the main existing anti-discrimination laws (age, disability, race and sex), and added sexual orientation and gender identity as protected attributes, then it is doubtful that the law would have attracted much criticism at all. This could still be done. Rather than being locked into a position of choosing the ‘highest’ protection in such a consolidation, it would be better to choose the most appropriate rule in each case for the purposes of a consolidated law.

An alternative approach to law reform would have been to consider whether, and to what extent, any Commonwealth laws are needed at all. The Commonwealth has limited constitutional powers in this area because of its reliance on the external affairs power. Furthermore, other constitutional limitations mean that the Commission cannot make enforceable decisions. Such decisions have to be made by courts established under Chapter III of the Constitution or by state courts invested with federal jurisdiction. Arguably, therefore, it is better for state laws to regulate this area, preferably through some reasonably uniform provisions to ensure consistency of regulation across the country. State laws have come a long way since the first Commonwealth laws were enacted in the 1970s. To be sure, the reach of state anti-discrimination laws varies from one jurisdiction to another. However, there is a great deal of common ground in the core areas where protection from discrimination is widely accepted as necessary.

It is not a good enough reason for legislation that a Minister or Government wants to leave a legacy, fulfil an election promise, or demonstrate its commitment to a particular value. The public can legitimately ask why it is that reform of the law is needed. What is the identified problem or problems that need to be addressed? Is the proposed legislation the best way of responding to these problems? Are there other ways of achieving the desired outcomes apart from the use force (for this is, in part, what the law is). To the extent that a law impinges upon people’s liberties, do the benefits to be gained from regulation outweigh the costs of regulation, including what might be called the ‘liberty impact cost’?

The liberty impact cost

The liberty impact cost can be measured both in economic and social terms. The compliance cost is an impost on businesses, non-profit organisations and individuals. There is also a social cost when I am not free to do something that I was previously free to do. There has to be a balance between ‘equality’ rights and other human rights and freedoms.

There are difficult balances that must be found between competing and conflicting human rights. There is also a balance to be found between regulation and freedom from regulation, or put differently, between forced equality and liberty. The boundaries between equality and liberty – between regulation and freedom from regulation – are ever being renegotiated, but one must never be allowed to conquer the other. In the context of anti-discrimination law, it must be emphasised that the freedom that ought to be respected in terms of human liberty is not the freedom to discriminate. Rather it is freedom from regulation and from coercion. Respect for freedom may in some cases require that people are persuaded to be good rather than being forced to be so.

There also has to be a recognition of the inefficiency of law as a means of promoting civic virtue. Professor Wilfred McClay has identified the dark side of the massive expansion of state power in the name of promoting equality, which is the growth of “a stultifying and inefficient regime of unelected bureaucracies, agency heads, and judges”. It is no accident that it is lawyers who are most prominent in the expansion of the reach of anti-discrimination statutes, for lawyers are used to the idea of litigation as a tool for social change. However, law is only one source of norms and only one means of achieving conformity with socially desirable values. It is often not a cost-effective and efficient way of achieving outcomes, and because law is by definition the exertion of state power and coercion, it comes at a liberty cost which is not inconsequential.

The future of the Australian Human Rights Commission

Reform is particularly needed in the Australian Human Rights Commission if it is to be an organisation that will be seen as authoritative, politically unaligned and effective in championing human rights. This organisation does a great deal of important work, particularly around issues concerning gender, disability and indigenous rights. However, it has a structural problem. Although its title suggests that it has a broad mandate to promote observance of all human rights, its functions are largely related to discrimination, and the majority of the Commissioners have a discrimination focus. For that reason, its view of human rights tends to be dominated by equality and non-discrimination concerns. It has not been much of a champion of freedom (except for asylum seekers), and the attack on freedom of speech contained in the Exposure Draft passed without a word of critical comment in the Commission’s own submission to the Senate Committee. It also has a somewhat shocking recent history of disrespect for freedom of religion, despite the central importance of this freedom in the world’s major human rights covenants and conventions.

The Commission also has a diversity problem. Surprisingly, for an organisation with a mandate on discrimination, its staff is quite imbalanced in gender terms. In 2011-12, 73 per cent of staff were female. The imbalance is higher in senior roles. There were 47 women at Executive level 1 or above and only fourteen men in 2011-12. That is, 77 per cent of senior staff are female. This contrasts with the ratio between genders in the workforce generally. Rather fewer women than men participate in the paid workforce. In 2010-11, nearly 80 per cent of men were in the workforce compared with 65 per cent of women.

The issue of gender diversity is, however, much less important than the issue of diversity of opinion. The positions adopted by the Australian Human Rights Commission seem consistently to promote an expansion of regulation in this area and reflect the imbalance to be found in the views of anti-discrimination experts and lobby groups. Typically, the Australian Human Rights Commission can be expected to endorse ‘progressive’ political agendas. There is a perception that the policy positions of the Commission have a significant level of concordance with the policy positions of members of the Labor Left and the Greens. So for example, the Commission rushed to “strongly support” all twelve recommendations of the Labor members of the Senate Committee on Legal and Constitutional Affairs to amend the Human Rights and Anti-Discrimination Bill and ignored the serious concerns raised by the dissenting Coalition members and by many key stakeholders in their submissions.

The perception that the Commission is essentially aligned with the left-wing fringe of politics, and acts as a champion of whatever ‘progressive’ ideas happen to be fashionable at the time, may or may not be accurate, and no doubt the Commission would challenge it; but perceptions matter.

The shadow Attorney-General, Senator George Brandis SC, has already indicated that he sees the need for some significant reform of the Commission. No doubt that will come with a change of government. However, the Commission may find it is able better to shape its future destiny by engaging in serious self-examination and constructive reform prior to any change of government. Under the relatively new leadership of its eminent President, Professor Gillian Triggs, it has an opportunity to do so. The Commission needs to move from the fringes back into the centre, to promote all human rights and not just a few of them, and to find a balance between equality rights and liberty rights. It needs to become, in other words, what taxpayers legitimately expect it to be.

Conclusion

Despite proceeding with caution by releasing the Bill as an exposure draft, the government appeared startled by the extent of the criticism and by the diverse range of concerns. Clearly, the Government had not expected the breadth and depth of criticism of its anti-discrimination reforms. Its proposals might have seemed relatively mainstream to it, based upon the advice of the expert commentariat; but therein lies the problem. Those voices represent a very radical and expansionary view of anti-discrimination law which is not necessarily held by other stakeholders who support the principle of anti-discrimination laws.

Yes, the Government had certainly engaged in a process of consultation. However, one can consult without listening. The Exposure Draft seemed to represent an agenda that had largely been uninfluenced by moderate voices.

There are lessons here for the future, not only in relation to consolidation of anti-discrimination laws but in terms of the wider goal of promoting human rights. The language of human rights has become largely synonymous with the equality end of the equality-liberty spectrum in Australia. It has also become synonymous with increased regulation and diminished freedom. That the language of human rights tends to be identified with political positions on one fringe of the political spectrum, is a worrying trend. It is likely to lead to cynicism or scepticism about all ‘rights-talk’, to the detriment of those who may most need us to care about human rights. In the long-term, that will lead to the failure of the human rights project to be a unifying set of values for the Australian community and beyond. There is an urgent need in Australia to rescue the notion of human rights from its zealots.

It is in the interests of everyone that these lessons are heeded and that once again, anti-discrimination law can be an area of broad societal consensus.

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