Last night, the Honourable James Spigelman AC QC delivered the Human Rights Day Oration to the Australian Human Rights Commission. His topic is one of great interest to FreedomWatchers: ‘Where do we draw the line between hate speech and free speech?’
Spigelman used his speech to strongly criticise the Gillard government’s planned anti-discrimination laws. In particular, he sided with us in condemning the proposed definition of discrimination for including the same words that were used to silence Andrew Bolt last year – “offend” and “insult:”
The new s 19 defines, for the first time, discrimination by unfavourable treatment to include “conduct that offends, insults or intimidates” another person. As has always been the case with s 18C, the relevant conduct must occur “because the other person has a particular protected attribute”.
As some of you will have seen, I made an important point about how political speech is threatened by the new laws in this 50-second video. Spigelman raises a similar issue by pointing out that the proposed legislation reintroduces blasphemy into Australian law:
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. The controversial Danish cartoons could be published, but not taken to work. Similar anomalies could arise with other workplace protected attributes, e.g. “political opinion”, “social origin”, “nationality”.
Spigelman went on to make a good point about the subjective nature of the proposed new test:
Significantly, unlike existing s 18C (or its replacement by the new s 51), there is no element of objectivity, as presently found in the words “reasonably likely to offend”. It appears to me the new Bill contains a subjective test of being offended.
The former judge also noted that the proposed legislation reverses the burden of proof – an aspect we strongly criticised when the Bill was first released.
We’re glad the former NSW chief justice endorses our views on this terrible Bill. But the speech wasn’t all good. Spigelman doesn’t quite grasp how bad even the words “humiliate” and “intimidate” can be when left in the hands of judges who have their own ideas about how discrimination laws should operate.
He also said “Laws restricting hate speech should aim to protect people’s dignity against assault. However, I do not believe that it should be the aim of these laws to prevent people from being offended … The freedom to offend is an integral component of freedom of speech.” But no such “right to dignity” exists. The term is completely meaningless.
Despite these imperfections, Spigelman should be commended for agreeing with what the IPA has been arguing for a very long time: “There is no right not to be offended.”