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#################### Geoff Seidner
Labor is considering a secret plan to extend the reach of litigation based on section 18C of the Racial Discrimination Act to include people claiming they have been offended or insulted because of their sexual orientation, disabilities or age.
A video, obtained by The Australian, shows Labor legal affairs spokesman Mark Dreyfus last week explaining the proposal, which would lead to the Australian Human Rights Commission and the courts facing a new wave of complaints.
Because Bill Shorten has rejected changes to 18C, there is a risk that Labor’s plan to consolidate all federal anti-discrimination laws will lead to litigation by the disabled and the LGBTI community that would be determined using the same procedures that apply under section 18C.
The Australian can reveal that the amount of compensation paid as a result of race discrimination complaints to the Human Rights Commission has soared, with companies and governments handing over almost $1 million since 2010 to avoid going to court.
Mr Dreyfus has confirmed that if Labor is elected to government he will be considering imposing a general standard for speech that infringes anti-discrimination law.
Under Labor’s proposal, advocates of same-sex marriage would be empowered, for example, to take legal action under 18C-style laws if they felt offended or insulted by those who publicly defended the traditional definition of marriage. Those at risk would include priests, rabbis, imams and other religious leaders who publicly oppose same-sex marriage.
Labor’s proposal also opens the prospect that debate over the cost of the National Disability Insurance Scheme could be truncated because of the risk of litigation by those who might feel offended or insulted.
Mr Dreyfus outlined Labor’s thinking during a panel discussion on Wednesday last week with Liberal backbencher Tim Wilson, hosted by the Jewish Community Council of Victoria.
In the video of the event, Mr Dreyfus said a Labor government hoped to consolidate all federal anti-discrimination legislation and would consider whether there should be a general standard for the type of speech that would attract liability under that law. At the moment, separate federal laws make it unlawful to discriminate against people because of their race, age, sex and sexual orientation, disability and indigeneity.
When Mr Dreyfus was asked by an audience member if section 18C should be extended to cover gender and disability, he said Mr Wilson had reminded him of the “failed project which I hope to return to of consolidating the five anti-discrimination statutes when we are next in government”.
“One of the things we’ll be looking at is this very point of whether or not we should set a standard about speech generally,” Mr Dreyfus said.
“I want to have standards set in a community which respect the dignity of every Australian. I think it’s very important and something to be fought for.”
When asked yesterday about his remarks, Mr Dreyfus said Labor would never support changes to section 18C of the Racial Discrimination Act.
“The consolidation of discrimination law was a policy of the Gillard Labor government,” he said. “My discussion of this issue last week was clearly hypothetical, and is not relevant to the current proposed changes to section 18C which will do nothing but weaken protections against racial hate speech in this country.”
Labor’s proposal has come to light at a time when the Australian Human Rights Commission is dealing with a surge in complaints by those claiming to have been offended and insulted under section 18C. Section 18C makes it unlawful to do anything that causes people to feel offended, insulted, humiliated or intimidated because of their race, colour or national or ethnic background.
Under a plan unveiled by Malcolm Turnbull and Attorney-General George Brandis this would be changed to eliminate what they have described as an unnecessary restriction on freedom of speech.
The proposed changes would impose liability only on those who intimidated or harassed others because of their race, colour or national or ethnic background. The government’s plan would also abandon the test for liability and require all disputes to be decided based on the standards of reasonable members of the community.
This would overturn the current arrangement in which judges are required to adopt the perspective of reasonable representatives of those who complain.