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Captain Sand Dune 25th Nov 2012 19:24


SO, under this Labor government's proposed changes to anti-discrimination laws, the onus of proof is going to flip. No longer will the person complaining of some conduct have the burden of proving it did happen, the accused person will - in this proposed brave new world - have the burden of proving it didn't happen.

OK, the government says the accuser will first have to establish a prima facie case (a very low threshold), meaning that it's imaginable that there was discrimination. After that the accused will have to prove there was no discrimination, or that whatever happened was justified. If they can't, they will lose and the person alleging they are the victims will get money and possibly more.

Now all that may seem like lawyerly gobbledegook but it does matter. There is a big difference between something actually being the case and your being able to prove it in a court of law.

Consider defamation laws. Imagine that you say about Mr X that he likes to dress up in Nazi uniforms and romp around with call girls. He sues you for defamation. You can certainly rely on the defence that what you said was true. But you have to prove that. And that can be mighty difficult. It may well be factually accurate. But you'd better be able to assemble witnesses and hard evidence or you'll be paying a lot of money.

So there is what the Americans call a "chilling effect" on what people will be prepared to say. Depending on your view of the best way to balance free speech and protect reputations, that sort of self-censorship in the interests of not being bankrupted in court may be worth it. Or not.

But the point is that the burden of proof matters and it has real, tangible effects. It favours one side of the equation over the other. It is designed to.

Now consider the proposal to reverse the onus of proof in discrimination claims. If it goes through, it will become much easier to make these sorts of claims. Businesses will have to pay out more often, and sometimes will have to pay out even when there was no discrimination (just as newspapers often refuse to run stories that are true but hard to prove).

Bluntly, this proposal is pro-victim, or pro-anyone inclined to make a claim of discrimination. It's also a pro-lawyer proposal, as work in this area will go up, up, up. What it is not is a pro-business or pro-productivity proposal.

Now it may be that a few people out there think all accusers ought to be given the burden-of-proof advantage so that those on the receiving end of accusations have to prove they didn't do what is being alleged. But I doubt that this government falls into that camp. If that were the case then we'd also have proposals to change the law so that those making allegations of impropriety against Craig Thomson or Peter Slipper would have to make only a prima facie case (no big deal) and then both those men would have the burden of proving the allegations false.

Or, better still, should someone set down a list of five or six seemingly highly dubious actions by the Prime Minister, maybe 17 or 18 years ago, and these passed the prima facie threshold, then she would have the burden of proving she had not done anything wrong. Any readers think our Prime Minister or Attorney-General would endorse that sort of reform? No, I didn't think so.

This is not a principled "always support the person alleging the wrongdoing" reform. No, it is yet another anti-small business (since big ones have enough in-house human resources people to weather even awful laws) and anti-productivity change dressed up in politically correct verbiage that worships at the altar of those inclined to play the victim.

Or, as someone who has been watching this government these past few years might say, "Same old, same old".
This has been touched on in previous posts, however I reckon it is worth raising again in detail. Frankly, it worries me. The opposition really needs to be hammering this one in parliament as well.
Any Sussex Street Soldiers care to explain the benefits of this proposed legislation?

sisemen 26th Nov 2012 00:55


No longer will the person complaining of some conduct have the burden of proving it did happen, the accused person will - in this proposed brave new world - have the burden of proving it didn't happen.

Any Sussex Street Soldiers care to explain the benefits of this proposed legislation?
I'm certainly no Sussex Street Saddo but, just for a minute, consider the effects of.....


A former partner of law firm Slater & Gordon has accused Ms Gillard of misleading senior partners in 1995 over her part in the loan arranged through the firm.

But the Prime Minister on Friday told reporters in Melbourne she could not remember seeing a letter from the Commonwealth Bank of Australia which, it is claimed, shows that Ms Gillard knew S&G had provided the mortgage.
Oh, the delicious irony :E

Andu 26th Nov 2012 01:29

Gillard currently answering questions (!) at her press conference.

Question: did you witness a PoA with the client (Blewitt) not there?

NON Answer: "I've witnessed thousands of documents during my eight years as a lawyer." and then she launched into a long personal attack on Blewitt - and never answered the question.

And, OF COURSE, the journos let her get away with it with no follow up to get her to answer the question.

Those who think she'll be gone by the end of the week are dreaming. She'll tough it out so she can drift on through the Christmas break.

She's looking more than a little haggard though...

Andu 26th Nov 2012 01:34

Someone tried to follow up on the Blewitt PoA, and again, she ducked answering directly.

CoodaShooda 26th Nov 2012 02:41

She's made a career of not answering questions but I somehow think she will not be allowed to get away with it now.

The more she prevaricates on the key questions, the more the pressure that will be applied by sections of the media and the Opposition.

I wonder how close we are to declaring war on NZ? :E

Worrals in the wilds 26th Nov 2012 02:47


and then she launched into a long personal attack on Blewitt - and never answered the question.
Gillard 101. Has she ever answered a question about anything directly? Apart from the Carbon Tax one, of course. :E

Any Sussex Street Soldiers care to explain the benefits of this proposed legislation?
Dunno, keeps the huggies happy? They need all the friends they can get. Roxon's a born huggy so in her heart of hearts, she'd possibly like to reverse the onus of proof on all types of charges. All too often, 'someone accused you, so you must be guilty of something' is the Huggy Way. :uhoh: :hmm:

It probably is ridiculous to have five different discrimination Acts but they could tidy that up without reversing the onus of proof.

It will now be the subject of an inquiry conducted by the Senate legal and constitutional affairs committee allowing community feedback prior to legislation being introduced into the parliament.
Cookies must be enabled. | The Australian
I guess anyone who feels strongly should be putting pen to paper. TBQH I think this issue has largely slipped under the public radar, which may of course be the cunning plan. :suspect:

Croozin 26th Nov 2012 03:15

I see that 'The Australian' has also picked up on something I noted - Gillard will not repeat in Parliament what she said in the press conference, instead, replying with "I've just answered that question in my press conference", thereby avoiding a possible later charge of misleading Parliament.

You've got to give the woman 10/10 for one thing - shiftiness. She's a class act at that.

sisemen 26th Nov 2012 06:14

Got there before me Croozin. This is exactly the same trick that she pulled in August.

I think her aim is:

a. Avoid making a statement in Parliament where, as I said previously, to be caught out in a lie is a much more serious undertaking.

b. Get the gullible Joe Blow public thinking that poor old Jools is being hounded by that nasty Abbott and the Murdoch press.

However, I don't think that her tactics (or those of McTernan?) will stand up to the pressure this time and I think that she'll be forced into a corner if not by the Opposition then by her own backbenchers.

Andu 26th Nov 2012 07:05

I wish I could share your certainty, sisemen. However, I think she's pulled it off yet again, at least with the ever compliant MSM. Watch Peter van Alsoran along with Lenore, Laurie and all the rest of them , including the handbag hit squad tell Joe Public that Julia has yet again answered every question put to her and all the Opposition has to offer is smear, smear, smear ("AbbottAbbottAbbott").

I fear that, unless one of those files magically appears or there's a further development on another front, she's bought enough time to make it to the Christmas break, and she knows the attention span of the public is way too short to carry any rage into January.

She's won, even if the majority of those who are following this know she's won by employing lies, sleight of hand and obfuscation.

SOPS 26th Nov 2012 09:02

How come Gillard can get up today and call Tony Abbott (amongst other things), illiterate, and get away with it, but if anyone dare criticise her she roles out the "sexist" line? IMO..she is nothing more that a nasty, school yard bully.

As far as the AWU scandal, I dont think it will go away, Christmas break or no Christmas break. It has been bubbling along for too long....it is not going away, at least thats what I think.

Clare Prop 26th Nov 2012 10:08

A Rhodes scholar illiterate? Would she say the same about Bob'Awke, Kim Beazley, Geoff Gallop etc?

At least they would probably know how to construct and pronounce a sentence in English. Probably a knowledge of greek too, (my grandad taught himself latin and greek to get the scholarship) words like "misogyny" and "Hyperbole" spring to mind.

They all had a better idea of how to be a decent politician too and I'm not a big fan of Labor.

Croozin 26th Nov 2012 21:08

Like every other Labor policy announcement, once the grand gesture has been made and the headline captured, the devil in the details reveals a mush of... well, just about nothing. After his stern, steely-eyed announcement on how tough Labor was going to be on all those coiuntry shoppers it was releasing into the community, in fact, they're not going to be quite so tough afterall, but mealy-mouthed and weak as p-1-ss as usual.

Cookies must be enabled. | The Australian


Labor may soften refugee work controls, Chris Bowen has signalled
BY: LAUREN WILSON From: The Australian November 26, 2012 11:53AM

IMMIGRATION Minister Chris Bowen has signalled some refugees could be granted future work rights whilst living in the community under Labor's no advantage principle.

Mr Bowen has defended the government's controversial decision to place thousands of people who have arrived by boat since August 13 into the community on bridging visas, with limited financial assistance and no works rights, ahead of what is expected to be a lively caucus debate tomorrow.
Is anyone even remotely surprised?


----

If Julia Gillard's defence in not directly answering the question: "Did you witness Ralph Blewitt's signature in the PoA on Dec 5th?" is "I witnessed thousands of documents over my eight years as a lawyer, you can't expect me to remember the details of one.", the obvious next question for Julie Bishop to ask is: "Over that eight year period, how many signatures did you "witness" with the signatory not present?"

As predicted, the ALPBC this morning is saying that Julia Gillard endured another "marathon press conference, taking on all questions", blithely ignoring the fact that, as usual for Gillard, she did not answer any one of those questions directly.

Dark Knight 26th Nov 2012 23:47

Interesting that PM Julia Gillard can slag Blewitt for apparently using prostitutes however, Labor party member Thompson (suspended for allegedly rorting Union funds using said funds for prostitutes???) "has her full support"

sisemen 26th Nov 2012 23:54

One would have thought, if she was a squeakily clean as she avers, that she would have been keen to make a statement in Parliament to clear the air and refute the repeated questions by the opposition.

Of course, she may not be squeakily clean :eek:

BenThere 27th Nov 2012 00:00

Enjoying the assessments of Gillard's administration. But I have a caution, as an American. We had pretty much the same thing, and we re-elected him.

Woe is me.

Andu 27th Nov 2012 00:30

Yes BenThere, come election day, the dead will almost certainly rise here, just as I'm told they did in the US.

How many 112 year olds was it who voted in South Carolina? Almost 6000, I heard.

Saltie 27th Nov 2012 03:07

Gillard and company will use every dirty trick in the book to stay in power and get reelected, as we're seeing with the lengths she's going to not to answer any questions about her "young and naive" years now, especially in parliament, where there are penalties for giving misleading answers. As some have said on other sites, if she answers Julie Bishop's questions in parlaiment with "Read what I said at the press conference.", isn't that the same as her replying that what she said in the press conference can be taken as her answer to the parliament? I wonder if Julie Bishop was to read out her (Gillard's) reply as given at that press conference into Hansard, would that put Gillard at risk of misleading parliament?

It's becoming clear why the Labor Party rejected her first attempts for preselection - there were people in the party around at the time who knew there was something in Gillard's recent past that wouldn't stand close scrutiny.

I wonder what Gillard would answer if some journalist asked her what was her favourite colour? The woman's incapable of giving a straight answer to any question, so can we assume the answer would be "plaid"? :)

500N 27th Nov 2012 03:14

"However, I think she's pulled it off yet again,"

I have to agree with Andu, I think she has got away with it
and I think she will continue to do so.

I also think the Libs switching to the Deputy leader to lead the attack,
although good can be seen to be a change of tactic due to
the original tactic not working !

I also feel that the general public really couldn't GAF about this issue
and just see it as the Libs using it to get at Gillard.

Andu 27th Nov 2012 04:41

Currently watching Julie Bishop being GRILLED by a very hostile press pack (which she is handling with some aplomb and grace) and couldn't help but comment on how differently the press behave towards a member of the Opposition to the way they stand in apparent reverent, almost adoring respect to "their" (as opposed to "our") Prime Minister.

The MSM should be ashamed of themselves - but of course, in their world, they could never see that. The shrillness of some of the females in that press pack approaches that of their heroine, Julia Gillard.

Takan Inchovit 27th Nov 2012 09:40


It's becoming clear why the Labor Party rejected her first attempts for preselection - there were people in the party around at the time who knew there was something in Gillard's recent past that wouldn't stand close scrutiny.
... and if any of my ex's stood up for me I'd have to say they were lying.


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