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Proposed Bill Could Silence Christians

by | Tue, Mar 5 2024

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The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 which is set to be debated in Federal Parliament shortly, is intended to assist financially-strapped claimants in sexual harassment legal proceedings. It seeks to introduce an “equal access” model in which most applicants in anti-discrimination court proceedings would be protected from adverse costs orders when unsuccessful.

The Australian Christian Lobby (ACL) has uncovered in the small print of the draft that it could also be used to silence Christians from making potentially discriminatory remarks under law, especially on socially sensitive issues. That could be about sex, sexuality and gender. It could even be just a Bible quote which a complainant considered offensive.

ACL Chief Executive Michelle Pearse told Vision Radio: “It seems like every week there’s another threat and we have to arrange another campaign, another response and think very strategically in terms of how we’re going to approach each and every issue, to try to make a difference and to activate Christians as well.”

“You wouldn’t think anything of this bill until you looked closer. What we see is that if an activist makes a claim against a Christian for discrimination — which new laws will allow them to do more of that — if a Christian is found guilty on even one small aspect of an anti-discrimination law, they will have to pay all the costs of the claimant,” she explained.

“They could be accused of a whole range of issues. but if they’re just found guilty of one small thing, they will not only have to pay their own costs, but they will have to pay all of the costs of the claimant. And so we see this as another avenue of ways that Christians can be silenced.”

“Christians don’t want to be in any situation where they’re accused of anti-discrimination, which means the silencing of our beliefs. It has a chilling effect. Christians don’t want to be taken to the courts. So they would rather not say anything. But that’s very dangerous because we risk losing our distinctiveness as Christians, if we allow those sorts of things to chill us into silence,” Ms. Pearse asserted.

The landmark Respect At Work report found cost orders where one party pays their own and the other’s legal bill, if unsuccessful in court – were often a disincentive for those wishing to pursue sexual harassment matters.

The peak legal body, the Law Council, and the Attorney-General’s Department showed little support for a ‘no-costs model’ to be adopted under federal anti-discrimination law, because it would severely limit the ability to secure legal representation.

The Law Council argued in its submission to the Senate Legal and Constitutional Affairs Legislation Committee that the proposed Costs Protection bill was “too heavily tilted towards those accusing sexual harassment and placed the burden of financial risk on those being accused. Notwithstanding the bill’s provisions regarding vexatious or unreasonable proceedings, this may result in large numbers of applicants bringing unmeritorious and protracted litigation without sufficient incentives to ensure efficiency within the justice system.”

“Its implementation in matters brought under federal discrimination law could interfere with the courts’ discretion to award costs in the interests of justice, as well as with the efficient management (including settlement) of such cases, and departs from the generally applicable common law presumption that “costs follow the event.” That would compensate the person in whose favour the judgement is made without having a punitive effect, the Council submitted.

It said that while it was “sympathetic” to arguments for an ‘asymmetrical costs model’, noting applicants were often in more vulnerable positions than the accused respondents, it did not agree it was the appropriate model, amid concerns “it moved the financial risk and disincentive for unmeritorious claims to the respondents.”