ABC chairman and former top jurist Jim Spigelman has warned that a planned overhaul of discrimination law will impose unprecedented restrictions on free speech, including making it unlawful to offend people, leaving the nation isolated from international norms.
The Gillard government’s planned consolidation of all federal discrimination laws would significantly redraw the line between permissible and unlawful speech and open the way for the banning of publications, said Mr Spigelman, the immediate past chief justice of NSW.
If the government’s draft bill were enacted, discrimination in all areas would be affected by provisions of the Racial Discrimination Act that were used last year against newspaper columnist Andrew Bolt so that merely offending people would amount to unlawful discrimination.
“I am not aware of any international human rights instrument or national anti-discrimination statute in another liberal democracy that extends to conduct which is merely offensive,” Mr Spigelman said.
“We would be pretty much on our own in declaring conduct which does no more than offend to be unlawful. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.”
Mr Spigelman’s warning, contained in a human rights day oration for the Australian Human Rights Commission, is in line with longstanding criticism from the federal opposition and civil libertarians that some of the provisions of the Racial Discrimination Act go too far by imposing liability for statements that merely offend and insult.
Bolt, who wrote a series of articles about fair-skinned Aborigines, was found to have engaged in racial vilification after the Federal Court applied section 18C of the act, which imposes liability for statements that offend, humiliate, insult or intimidate on the basis of race.
Mr Spigelman told an audience in Sydney yesterday that none of the nation’s treaty obligations required any person or group to be protected from being offended.
“We are, however, obliged to protect freedom of speech,” he said. “We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.”
The government’s proposed changes would mean that liability for speech that offended would be extended beyond the subject of race to cover statements about age, gender and disability.
The scheme would reverse the onus of proof so that those accused of discrimination would bear the onus of proving their innocence after their accusers provided prima facie evidence of wrongdoing.
Mr Spigelman said another aspect of the draft bill would have the effect of introducing a blasphemy law for the nation’s workplaces. This would occur because religion was among the “protected attributes” that would apply only in the context of employment.
“The inclusion of religion as a protected attribute in the workplace appears to me, in effect, to make blasphemy unlawful at work, but not elsewhere,” he said.
“The controversial Danish cartoons could be published, but not taken to work.”
Similar anomalies could arise with other workplace-protected attributes such as political opinion, social origin and nationality, Mr Spigelman said.
He also warned that the government’s scheme could lead to the banning of publications.
Each of the four commonwealth anti-discrimination acts proscribed publication of advertisements or notices that indicated an intention to engage in discriminatory conduct, but the proposed bill went “further into freedom of speech territory by extending the proscription beyond advertisements to any publication”.
He said enough time may have elapsed for the merits of section 18C of the Racial Discrimination Act to be discussed dispassionately “and not on the basis of whether or not you like Andrew Bolt”.
Opposition legal affairs spokesman George Brandis, who has previously expressed concern about the Racial Discrimination Act ban on speech that offends and insults, said the opposition agreed with Mr Spigelman’s address “in its entirety”.
A spokeswoman for Attorney-General Nicola Roxon said the government was committed to achieving the right balance of rights and freedoms in its bill.
“This consultation process is being conducted to receive important feedback like this, which will be closely considered before legislation is introduced into the parliament,” the spokeswoman said.
The government had no plans to change racial vilification laws, and the draft bill defined discrimination as “unfavourable treatment”, she said.
Legal academic Spencer Zifcak of the Australian Catholic University welcomed Mr Spigelman’s intervention in the debate.
“Spigelman has made an immensely valuable contribution to the current free speech debate,” Professor Zifcak said. “He rightly contends that speech that offends or insults, even on racial grounds, should not be unlawful.
“It is also of great concern that the draft legislation extends the definition of discrimination to include speech and action that merely offends – on grounds far beyond race and religion. This compounds the error initially made with respect to racially prejudicial speech alone and may have a chilling effect on free speech across the board.
“It is worth noting, as Spigelman does, that international law restricts free speech on racial grounds only where it advocates racial hatred, vilification or intimidation and even then only if it incites discrimination or violence.
“Legislation like this should be drafted carefully to ensure that only speech that is really wounding to members of minority groups or subjects them to hostility is caught by the law.”