Senate inquiry on human rights improvements
Posted by Dave Bath on 2008-12-21
Hmmm, were the very philosophical musings in the explanatory memoranda to a bill sent to committee (and now the subject of an open parliamentary inquiry) a festive season gift to raise a smile in boring types like me who read such documents?
The Inquiry into the Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 is now open for submissions (send them to
email@example.com) until 2009-01-12, so if you are interested in human rights provisions, don’t get too zonked over the festive season.
The philosophical bit in the explanatory memoranda that caught my eye is in section 87:
87. There may be difficulties associated with requiring a person to prove a negative. However, the provision does not impose an unduly onerous burden requiring that the defendant totally eliminate the possibility that they may have had a purpose of unlawful discrimination. Rather, they are required to provide evidence that is within their knowledge and that evidence is taken to be probative of their purpose unless rebutted. They are not given the task of actually proving the proposition that they did not have any unlawful purpose. They are required to bring evidence of a purpose that is not unlawful discrimination. This is taken to be the purpose unless the complainant can bring evidence of an unlawful purpose or cast sufficient doubt on the credibility of the evidence put forward, such that the evidence of the respondent is rebutted.
(You’ll be needing the explanatory memoranda because it’s one of the amendment bills that seems like a whole lot of “In clause 2.a.2.a.2.a replace the word ‘some’ with ‘any'”. I’d kill for a side by side diff like you get comparing versions of wikipedia pages!)
Some of the key points to the bill (paraphrased from this) include:
- The Human Rights and Equal Opportunity Commission gets rebadged as Human Rights Commission. (Fair enough, the "Equal Opportunity" is redundant, although hree-ok is two syllables versus H-R-C’s three, and I’ll have to untrain myself from typing hreoc.gov.au).
- There are clarifications and better systems for legal recognition of animals (like seeing-eye dogs), carers and associated equipment.
- There will now be 60 days, not 28, to take a terminated complaint to the Federal or Federal Magistrates Courts.
The following dot points are quoted directly from the "information about the inquiry" page:
- make explicit that refusal to make reasonable adjustments for people with disability may also amount to discrimination;
- make the defence of unjustifiable hardship available in relation to all unlawful discrimination on the ground of disability, except harassment and victimization;
- clarify matters to be considered when determining unjustifiable hardship;
- clarify that the onus of proving unjustifiable hardship falls on the person claiming it;
- make clear that the definition of disability includes genetic predisposition to a disability and behaviour that is a symptom or manifestation of a disability;
- replace the ‘proportionality test’ in the definition of indirect discrimination with the requirement to prove that the condition or requirement imposed has the effect of disadvantaging people with the disability of the aggrieved person;
- shift the onus of proving the reasonableness of a requirement or condition in the context of indirect discrimination from the person with disability to the respondent, and
- extend the power to make standards under the Act.
It all looks pretty good so far. The power to make standards is very welcome, because the lack of standards creates uncertainty (apart from the certainty of expensive court proceedings that try to determine standards rather than mere see if a standard is met) for everyone. Without associated measurable and enforceable standards, the bill would merely be sweet nothings in the ear.
It looks like the amendments (among other things) are trying to provide certainty to businesses about what is needed, making business planning easier, while ruling out the validity of the "it’s just too hard for me to help this person" when the assertion cannot be backed up with evidence.
For "nice" capitalists, this will create efficiencies, but some stone-hearted captains of industry will no doubt be complaining that their legal loopholes are being tightened up!
I’ve only had a quick look through, but I’ll definitely be writing in a note supporting the bill. Nice one McClelland!
By the way… metadata in the bill, the explanatory memorandum, whether supplied in M$-Word, PDF or HTML forms? Title, keywords, jurisdictions…. anything? EMPTY EMPTY EMPTY! See my most recent whining post about this: "The major inhibitor of open government and commercial efficiencies?" (2008-12-07).