AP

Guilty till Innocent under Anti-Discrimination Proposals

There is a little-known bill that the Federal Government is trying to sneak through under the cover of Christmas and the New Year. The second reading of this Bill was completed on 7 December 2023, and public submissions closed on 9 January 2024. The Attorney General, Mark Dreyfus, is trying to amend our anti-discrimination laws so that in the future legal costs will be allocated ‘asymmetrically’. 

What does this mean? 

It means that if the bill is passed, any person or organisation accused of discrimination within the framework of the Australian Human Rights Council (AHRC) will have to pay all the legal costs of the complainant. This will hold true except in a very small number of cases, and only when the respondent is able to successfully rebut every charge.

That’s right. You get to pay all the legal costs! The complainant pays for none. And the new law will direct judges so that they have no freedom to change the settings in individual cases. Given that the Government is expected to legislate a Religious Discrimination Bill in 2024, we are in big trouble!

I can sense the anticipatory glee of activist litigators who are poised to bring a raft of anti-Christian test cases just as soon at the Religious Discrimination Bill passes. In this nightmare scenario, we will see bankruptcies and business closures foisted on Christians of conscience. Below is my submission against the bill:

Committee Secretary

Legal and Constitutional Affairs Committee

PO Box 6100

Parliament House

Canberra ACT 2600

via email: legcon.sen@aph.gov.au

Australian Human Rights Commission Amendment (Costs Protection) Bill 2023

Dear Committee members,

I am a minister of the Presbyterian Church of Australia in the State of NSW. Thank you for the opportunity to make a submission in relation to the AHRC Amendment (Costs Protection) Bill 2023.

I am writing to express my strong opposition to the Bill in its current form. In the short time since I’ve become aware of the contents of the Bill, I’ve become increasingly alarmed by the potential harm it will do to innocent people if it is enacted.

The Cost Protection model it seeks to implement is far more radical and far-reaching than it appears. This is because the legislation will apply not only to sexual harassment claims, but to all areas of anti-discrimination for which the Commonwealth is responsible—including, I must assume, cases of religious discrimination once a Religious Discrimination Bill is enacted.

Yet many groups in our community are not aware of the existence of this Bill at all. I note that only 15 submissions have been published by the Committee so far (9 January, the closing date for submissions). That’s not good. I urge the Committee to consult on a far wider basis with impacted community groups before proceeding with this Bill.

Positively, I commend those who are trying to make it less costly for individuals to bring genuine cases to trial. The ANU’s submission clearly shows that our current system is not working well.[1]

And as Anne Stanley MP said in her speech to the second reading of the Bill (7 Dec 2023):

‘Sometimes legal proceedings are a matter of David versus Goliath—that is, the respondent is well resourced, and there is a significant power disparity between the respondent and the applicant. Such a disparity and imbalance can have the effect of deterring applicants from initiating legal proceedings because they are fearful that, if they do lose, they will face huge and often crippling costs against them.’[2]

I don’t doubt that this is true. But it is also true that activist-minded complainants can make life hell for individual respondents. What we need is a system of Cost Protection for genuine applicants, not a ‘Costs Protection Racket’ for the benefit of vexatious claimants and their lawyers.

For at least three reasons, the Bill in its current form should not be enacted:

1. The amendment far exceeds its remit. The stated aim of the Bill is merely to implement Recommendation 25 of the Respect@Work Report by inserting a cost protection provision consistent with section 570 of the Fair Work Act 2009 (Cth). On this basis, the Bill ought to be restricted to cases of sexual harassment in the workplace. But these amendments will encompass all forms of discrimination under the jurisdiction of the AHRC. Such a major change in law should not be countenanced without a proper public debate on the matter.
2. The asymmetrical cost model is inherently unfair. Tipping the scales of justice against a Respondent based on a Cultural Marxist theory of hegemonic power advantage is a terrible idea, and a recipe for creating a bad law. The asymmetrical cost model merely shifts the problem, rather than solving it equitably. I think it was Stalin who said, ‘Show me the man, and I’ll show you the crime.’ That’s fundamentally what is happening here. The law is framed in such a way that the Respondent is being prejudged as prima facie guilty. Except in a very small number of cases, the Respondent will be deemed to be deserving of the punishment of paying the costs of even the most frivolous claims. I note the irony of the Attorney General’s concluding comments in his speech on 15^th November: ‘This bill would strengthen Australia’s antidiscrimination framework and help achieve its core objective of eliminating all forms of discrimination.’[3] Strange—I would have thought that an asymmetrical cost model is by definition unfair and discriminatory.
3. Vague definitions will encourage lawfare. The vague definitions in this Amendment will make it almost impossible for Respondents to overcome the standard of proof. What exactly is ‘a significant power advantage’? And who decides the threshold of ‘significant’ financial or other resources? Paul Fletcher MP says, ‘This bill is a litigator’s dream. It is a class-action lawyer’s meal ticket.’[4]  Bernard Gaynor’s submission proves that this kind of legal abuse is already occurring in Australia, and will only be made worse by this Bill:

‘Defending myself against these claims has cost me over half a million dollars in legal fees. I was forced to sell my house to fund my defence. Now my wife and I have combined assets of less than $50,000 and we have given up hope of ever owning a home again.’[5]

Please don’t lend your support to an amendment that will only make a bad situation worse. The Bill needs to be rejected.

– David Maher.

[1] Australian National University, Submission 14.1 to this Committee.

[2] Speech by Anne Stanley MP, 7 Dec 2023.

[3] Speech by Mark Dreyfus MP, 15 Nov 2023.

[4] Speech by Paul Fletcher MP, 28 Nov 2023.

[5] Bernard Gaynor, Submission 15 to this Committee, 2.