Australian Human Rights Commission President Gillian Triggs has a piece in The Australian today, elaborating on her press comments from yesterday. In this piece, we get yet another concession that the bill has serious problems:
The controversial aspect of the exposure bill is that it retains the present provision on racial vilification while adding a new provision that unlawful discrimination can include conduct that offends and insults on a number of other grounds, including industrial activity, pregnancy and sexual orientation. This new and enlarged provision is not subject to the objective test of reasonableness, fuelling fears that it will have a chilling effect on the fundamental right to freedom of speech.
We agree. As Simon Breheny and I wrote in our submission to the Senate inquiry concerning the bill:
The draft Bill [omits] the words “reasonably likely to,” which appear in the Racial Discrimination Act immediately before the words “offend, insult, humiliate, or intimidate”. … The original formulation requires the court to make an objective assessment of the relevant conduct. Removing those words changes the test in a radical way – without them the test becomes entirely subjective. The court is no longer required to assess whether conduct is likely to offend but whether it in fact offended the complainant.
But once again, this objection appears nowhere in the Commission’s formal comments about the bill.
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