Big picture lost in debate over anti - discrimination laws

This article was first appeared on the ABC's The Drum The idea that an Indian family could be refused service at a restaurant because of their race or a worker denied a promotion because she is a woman is simply unacceptable to most Australians. In 2013, the social and economic benefits of equality are clear, as is the place for laws that provide redress for unfair treatment.

Judged on the recent commentary and at times hysterical debate about the Federal Government's proposed anti-discrimination law, one could be forgiven for thinking the draft bill departs markedly from this consensus. It does not. The Human Rights and Anti-Discrimination Bill is a consolidation and modest improvement of five separate Commonwealth laws covering discrimination on the basis of race, sex, disability and age.

The bill does add welcome new protections from discrimination on the grounds of sexual orientation and gender identity, and strengthens protections against workplace discrimination on the basis of religious belief and other areas. But it is by no means an overhaul or reworking of Australia's largely reactive discrimination laws.

Balancing the competing interests of free speech, freedom of religion, and freedom from discrimination is an inevitable site of fierce ideological contest. Misinformation and exaggerated claims, often for the ease of a media sound bite, have added fuel to the fire. These include the ridiculous estimate of increased operating costs of $3.2 billion from the building industry and grim predictions of a totalitarian future by Cardinal George Pell.

Leading the charge against more effective anti-discrimination law is the Institute of Public Affairs, which astonishingly seemed to suggest during the Senate hearing about the bill that a pub should be legally able to refuse to serve Aboriginal people!

The modernisation of our anti-discrimination and equality laws should be guided by people with experience and expertise in the field, not extremists who would have us wind back the clock to a time when people could be refused service because of the colour of their skin, their gender, sexuality or political beliefs.

That's not to say that the bill is perfect. It's a good bill, but it could be better with some simple amendments.

The focus of opposition to the bill are the words 'offends' and 'insults', and like a number of organisations from across the ideological spectrum, the Human Rights Law Centre has recommended that these words be removed to avoid confusion.

But let's not throw the baby out with the bathwater because of two words. What has been lost in the current debate are the numerous benefits of the proposed law and the level of consensus over most aspects of the bill.

Our first national law prohibiting racial discrimination is now over 40 years old. Since then, various discrimination laws have been passed and amended over decades, and states and territories have enacted their own laws, leaving the regulatory landscape a maze of inconsistent, overlapping protections and duties.

The complex technicalities and design flaws of our current laws represent a significant barrier for victims of discrimination. Parties to a dispute can be tied up in costly litigation that focuses on technical arguments rather than getting to the bottom of what happened and why. The status quo doesn't serve anyone's interests - complainants or respondents.

The bill's simplified definitions, shared (not reversed) burden of proof, and aspects that require parties to pay their own costs are significant improvements that go some way to addressing the failings in the current set-up.

The missed opportunities of the consolidation process have included the decision not to place an emphasis on reducing and preventing discrimination from occurring in the first place, and the retention of broad carve outs for religious organisations. The exceptions allow religious bodies, even those receiving taxpayer dollars to deliver services, to discriminate on the basis of sexual orientation, gender identity, marital status, pregnancy and even potential pregnancy.

However, it is important to remember that like any draft law, there will be areas where the Government got it right, as well as room for improvement. The consultation process is designed to identify and flush out any problems in the wording of the bill before it is presented to Parliament.

As the public debate continues, we cannot lose sight of the end goal. We've seen the damage caused by discrimination. We know that more equal societies are happier, healthier, safer and more prosperous.

Amid the hyperbole and the inevitable cut and thrust of political point scoring, the fundamental imperative remains to ensure that ordinary people, and especially the vulnerable, are protected from being treated badly simply based on who they are. After all, is this not what the 'fair go' is all about?

Anna Brown is the Director of Strategic Litigation at the Human Rights Law Centre. Anna is on Twitter @AnnaHRLC