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Anti-discrimination bill is (probably) constitutional, but should be reined in regardless

Attorney-General Nicola Roxon should amend the Anti-Discrimination Bill. AAP/Alan Porrit

Australia lacks a national bill of rights and the many attempts over the years to adopt one have failed. But Australia already has a raft of human rights laws, including many anti-discrimination acts.

The Gillard government has now turned to these acts, proposing their consolidation into a single Human Rights and Anti-Discrimination Bill. The stated aim is to harmonise and simplify the law, and to facilitate compliance. But the bill goes further than this. No one should be surprised that it is already deeply controversial. Many of the hundreds of submissions on the bill’s “exposure draft” received by the Senate Legal and Constitutional Affairs Committee have raised objections, including about the bill’s constitutional validity.

Every commonwealth act must rest on a constitutional power. The current anti-discrimination acts rely on the constitution’s “external affairs” power, which permits the parliament to incorporate Australia’s international treaty or convention obligations into legislation. The bill makes it clear that this is the “main constitutional basis”. (It names several supplementary powers, but these are unlikely to be controversial.) Reciting constitutional powers, however, does not make an act constitutionally valid.

Law professors Nicholas Aroney and Patrick Parkinson believe the bill gives the commonwealth powers that exceed what the constitution grants. Their submission outlines their concerns. These include the fact that the bill’s provisions extend to people in non-official roles (including volunteers) and even in informal settings, under the broad heading of “public life”. Discrimination can be claimed because a person, in public life, feels insulted or offended. They suggest that school yard bullies, rude customers, gossipping employees, abusive sporting spectators may become liable. But as they know, this is not a constitutional argument.

They add that the bill goes beyond the terms of the human rights conventions upon which the parliament relies. Those conventions target particular conduct: that of employers, providers of services, people in positions of power. They do not require, or authorise, the regulation of “public life”. Aroney and Parkinson also argue that the bill “cherry-picks” obligations, protecting certain rights over others, whereas the conventions require implementation of all rights. The bill, it is suggested, also breaches the constitution’s implied freedom of political communication, by making offence or insult (in a work context) on the ground of political opinion a basis for alleging discrimination. Additionally, the bill gives excessive power to the commonwealth, depriving the states of their constitutionally protected sphere of power.

So are Aroney and Parkinson right? Is the bill unconstitutional?

The High Court has accepted a significant expansion of the external affairs power over the years. Few limitations now surround what the parliament can do with this power, so long as the law in question concerns a geographically external matter. International conventions are unquestionably “external”. But adherence to a convention must be bona fides; that is, not merely an excuse for expanding commonwealth power. It is almost impossible to demonstrate this, and no act has been struck down under that test.

And although the High Court has questioned the validity of laws that rely on vague, open-ended international aspirations, it has rejected claims that all of a convention’s obligations must be included in an Australian act or that the act must precisely reflect the convention’s terms. Still, an act must be reasonably proportionate to, or conform with, the convention upon which it relies. The court has been fairly deferential to the parliament in identifying conformity.

The current case law is not very encouraging for the Aroney and Parkinson argument. On the other hand, no constitutional power is entirely open-ended. The argument that a law that gives effect to a convention cannot stray too far from the convention’s terms has a reasonable chance of success (the federalism argument is probably weaker). In the past, after decades of expansion in other constitutional powers, the court has drawn a line. The external affairs power may be ripe for line-drawing this time around.

The freedom of political communication argument is relatively strong, since the court has previously ruled against laws that inhibited political speech, even if the latter was intentionally offensive. But this would only result in the removal of the political opinion offence section from the bill. Unless the external affairs argument succeeded, the rest would remain.

The current court is difficult to predict. In the recent past, it has expanded the constitution’s rights provisions. In the 2012 schools chaplains case, it reined in commonwealth executive power. But, in the same year, in the tobacco plain packaging case, it rejected the expansion of property rights and the consequent restriction of commonwealth power.

Constitutional challenges are uncertain, time-consuming, and costly. Aroney and Parkinson make the valid point that many claims of discrimination are best handled outside the law.

The same should apply to this bill. It clearly goes too far in subjecting non-coercive human conduct to the courts (or the alternative dispute resolution table). Even the Australian Human Rights Commission questions the “offend or insult” discrimination ground. Attorney-General Nicola Roxon should take note of public opinion, amend the bill, and not wait for a legal challenge. Political common sense should prevail.

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