The federal Attorney General has put forward a proposed new draft anti-discrimination bill. An enquiry into the Bill by the Senate Legal and Constitutional Affairs Committee has attracted over 500 submissions. Submission 484 is from “Joint Media Organisations”, unusually a joint submission by the major media providers in Australia; it is very critical of the Bill.
So what is this new bill for? It is designed to consolidate and simplify existing federal anti-discrimination laws, which currently cover the grounds of race, sex, disability and age. It will roll them up into “one great big new law”. It also adds new protected grounds of discrimination (known as “protected attributes”), such as religion, sexual orientation and nationality (see draft s. 17).
The most controversial aspect of the proposed new law is that “discrimination” in draft section 19 is defined as the “unfavourable treatment” of someone because of their protected attribute. Unfavourable treatment is further defined in s 19(2)(a) as including “harassing” of “the other person” and, in 19(2)(b), “other conduct that offends, insults or intimidates” a person. It is s 19(2)(b) which has the media up in arms. And rightly so.
As pointed out by the new ABC Chair and former NSW Supreme Court Chief Justice Jim Spigelman in his Human Rights Day Oration in December, s 19(2)(b) sets the bar too low. It is certainly unpleasant to be offended or insulted because of one’s race, gender or age (for example). However, the “harm” caused in such instances is too trivial to warrant the consequence of unlawfulness. If such behaviour escalates beyond the trivial, then we reach the realm of “harassment” which is already (rightly) covered in s 19(2)(a).
Today Nicola Roxon has issued a press release purporting to justify s 19(2)(b). She states:
Despite what some reports may have said, it is not the case that any conduct that a person finds offensive will be unlawful. The draft bill only seeks to clarify what courts have already found - that racial, age, sex and disability discrimination can include harassment on that basis.
Similar reasoning is contained at para 107 of the government’s Explanatory Notes. I beg to differ from Roxon’s reasoning. If the subsection is simply meant to make clear that offence and insults can in some circumstances amount to “harassment”, it seems to me that that matter is adequately covered by s19(2)(a). Indeed, the separation of 19(2)(a) from 19(2)(b), and the latter’s reference to “offence and insults” as “other conduct”, indicates that they are different to “harassment”.
A prohibition of offending or insulting behaviour or “treatment”, even if it is motivated by prejudice, interferes too much with the internationally recognized human right to free expression (or “free speech”). Certainly, that right is not unlimited, and there is also a human right to be free from discrimination. However, there is no human right not to be offended or insulted. And indeed, historically much important speech has offended somebody. The closest such right is the right to be free from vilification which incites hatred: that is a long way from behavior which merely “offends” or “insults”. Indeed, the racial vilification provisions in the new Bill (s 51(2)), and in the current Racial Discrimination Act (s. 18C), also go too far by including behavior which simply “offends” and “insults” another because of that person’s race.
A final point about the draft provisions is that the test of whether something offends or insults appears to be subjective. If so, it could open up people to liability because they happen to be dealing with someone who is very easily upset.
So what does this all mean for the new Bill? Actually, not much. I predict that s 19(2)(b) will not make it into the final legislation in its current form (the prohibition on “intimidation” may remain); the Bill hangs together well without the problematic offends/insults standard. There is certainly no reason to chuck the baby out with the bathwater, no matter how much The Australian (which has published story after story after story on the issue) might be hyperventilating. And the Bill itself has many worthwhile and important provisions, designed to ensure that people are indeed free from discrimination on irrelevant grounds in crucial areas of life, a very important human right, particularly for the vulnerable (for more info, check submission 249 from the Castan Centre for Human Rights Law).