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Hate-crimes law expansion up for debate

By Nick Adams

SYDNEY, Australia – In a move familiar to Americans who witnessed President Obama’s signing of a hate crimes bill in late 2009 and the expansion of federal intervention in related areas, the Australian government is implementing the most radical overhaul of discrimination legislation since the country’s federation.

At the heart of the proposed changes is a reversal of the burden of proof in discrimination claims, forcing defendants to justify their conduct. The reform, the government claims, is an effort to consolidate Australia’ discrimination laws from five acts down to one.

Opponents say it will encourage audiences to be unnecessarily thin-skinned and outlets to restrict contentious or complex material. In Australia, anti-discrimination legislation exists both in state and federal jurisdictions, supported by several federal and state anti-discrimination agencies.

The Institute of Public Affairs blasted the bill, calling it an “extremely serious curtailment of freedom of speech”

“The Gillard government’s changes to anti-discrimination laws undermine fundamental legal rights like the presumption of innocence,” IPA Legal Rights Director Simon Brenehy said in a statement. “The entire complaints process has been skewed towards the person making an allegation of discrimination, and fails to respect the rights of defendants. The decision to reverse the onus of proof in this case shows the willingness of this government to ignore basic legal rights.

“The onus of proof should be on the person making the accusation because it is often very difficult to prove innocence,” said Breheny. “Giving complainants an unfair level of power under the legislation raises the threat of dubious claims being made and makes a mockery of Australia’s legal system.”

He said the draft legislation “includes the availability of just one defense, which further skews the process in favor of the person bringing the claim.”

Along with the shifting of the burden of proof to those being sued, discrimination cases will be easier to launch and less costly to run, with the awarding of costs provision for judges and magistrates to be removed. In the past, if a complaint or lawsuit was considered vexatious or frivolous by the ruling judge, he could order the complainant or plaintiff to pay the legal costs of the defense. If the legislation passes unamended, that will no longer be possible.

The legislation, still in draft form, substantially expands the grounds on which individuals can claim discrimination. For the first time, discrimination on the basis of “political opinions” will be unlawful. In addition, the bill defines discrimination to be any “conduct that offends, insults or intimidates” another person. That means expressing an opinion that offends someone else’s political opinions is now grounds for discrimination if it occurs in certain contexts, such as in the workplace.

The federal opposition has in recent days accused the government of “some sort of ideological crusade to control what people can say.”

”If you make an allegation against someone, it’s for you to demonstrate that they have done the wrong thing, not for them to prove that they have done the right thing,” the opposition’s legal affairs spokesman Sen. George Brandis said.

”Do we want many, many more complaints tying up the courts, particularly when the onus of proof is thrown on people to prove their innocence? I don’t think so,” he said.

Further significant change is an amendment to the test for when discrimination occurs. Instead of the current distinction between “direct” and “indirect” discrimination, it is proposed to introduce a new test, which refers to both “unfavorable treatment” and “disadvantageous effects” as discrimination. A large number of the current exceptions and defenses are also proposed to be streamlined or eliminated.

Australian media organizations have also made a joint submission to the parliament and suggested that content could be affected.

Adding fuel to fire, the “conservative” state government of New South Wales indicated Sunday its intent to strengthen hate laws to make it easier to convict people for serious racial vilification.

The changes have the trademarks of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act passed in October 2009, which expanded the 1969 United States federal hate-crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability. The new laws also placed greater penalties on crimes committed based on race, ethnicity and religion.

As WND has reported, in the last several years Americans have been subjected to hate crime laws that seek to police thought and “discrimination” complaints on university campuses that stifle opinion and perspective.

Often forgotten was former President George W. Bush’s tough stance and refusal to extend federal hate crimes law in the wake of substantial “gay” rights activism, citing his concern such legislation could be used to prosecute religious groups asserting the immorality in homosexuality.

In Australia, religious organizations will be affected by the proposed reform, including providers of aged-care services. Under the current system, religious providers of services are able to discriminate to protect religious sensibilities.