Older Posts

Reaction to Roxon’s “Debasing of Human Rights & Anti-Free-Speech Bill 2012?

It is worth reading in full the typically pithy article by barrister Janet Albrechtsen in the Aus yesterday: “Nanny Roxon won’t let you spit the dummy” (plus the cartoon above):

EXCERPT… Throwing even less caution to the wind, the Gillard government has also drafted a new anti-discrimination bill. We now enter truly uncharted and unfree territory. Attorney-General Nicola Roxon may look demure but she is a social engineer on legal steroids. She appears intent on Australia breaking new illiberal ground.

Roxon’s Human Rights and Anti-discrimination Bill 2012 will not only extend the range of conduct deemed unlawful from matters of race to matters of religion, social origin, nationality and political opinions. Her bill also removes any notion of objectivity. It is enough that conduct by one person “offends, insults or intimidates” another person. This completes the legal slide from words that incite violence to those that merely insult. Sensible gradations of offence have been lost.

As James Spigelman, the chairman of the ABC and former chief justice of the NSW Supreme Court, said recently, this “significant redrawing of the line between permissible and unlawful speech” goes beyond “any international human rights instrument or national anti-discrimination statute in another liberal democracy.”

Trading freedoms for feelings comes at a cost. The right to speak freely, if it means anything, must include the right to offend.

Yet this fundamental right is being replaced with a new right not to be offended. The marketplace of outrage, best described by author Monica Ali, is about to get one heck of a legislative boost. New categories of insulted people will scurry to court, vying for the title of victim, each claiming their feelings have been hurt more than others.

How many of us realise we are witnessing the Freedom Wars? On the one side are the command-and-controllers, people such as Roxon who sincerely believe in central control more than individual freedom. Ideology has trumped principles. They insist laws are necessary to “to help everyone understand what behaviour is expected.”

This is the anodyne yet terrifying language of the freedom-loathers whose new paternalism is slowly chipping away at our right to speak freely…


And today, an article in the Aus by the new Campion president, Ryan Messmore, giving a cautionary word based on the US experience: “With law on their side, everyone’s a victim”.

… To discriminate used to mean to make a distinction among things. Making sound distinctions is necessary when it comes to making sound decisions.

But “discrimination” has ceased to carry this sense and instead become a bad word. The US seems to have lost the ability to distinguish between acts based in relevant distinctions and those based in hate or ignorance, that is, genuine discrimination from genuine bigotry.

As discrimination has become synonymous with evil, it has ceased to help us think better about making moral judgments. Instead, it has become a legal trump card…


… and a brief letter from me in the same Opinion section:

A SELF-GOVERNING society depends on the freedom of citizens to argue their case, even if they get angry and get rude and offend each other. It is not the role of government to teach us good manners.

Attorney-General Nicola Roxon disagrees, and with chilling condescension says we need her new Human Rights and Anti-Discrimination Bill 2012 to help everyone understand what behaviour is expected.

As the editorial notes, the bill trespasses on fundamental human rights of free speech, of conscience and of religious practice while promoting the new “right” not to be offended.

Roxon’s patronising piece of legislation would further impose the Left’s preferred social attitudes with the force of law.


… referring to the excellent editorial in the Aus yesterday: “New discrimination laws undermine civil society”

EXCERPT… This latest backlash follows a stream of other complaints. Business groups are critical because the proposed laws could expose businesses to compliance costs and increase their liability to claims. Former NSW Supreme Court chief justice Jim Spigelman has cautioned that new laws which make it illegal to offend someone could imperil freedom of speech. Mr Spigelman, an eminent jurist and public servant, said: “The freedom to offend is an integral component of freedom of speech.”

This sweeping legislative overhaul would combine five separate acts into one omnibus law. Once a complainant has established a prima facie case, the burden of proof shifts to the respondent. Discrimination is being redefined as “unfavourable treatment”. It represents a vexatious litigant’s charter with fresh areas for victimhood. It would be possible to allege discrimination on the grounds of gender identity or sexual orientation, in addition to existing areas of discrimination in law such as race, sex, age or disability…


UPDATE Jan 1st 2013

And the best of the lot today – Prof James Allan from UQ Law points out that you can’t be half-pregnant on free-speech; that if Spigelman said it was OK to offend, but not OK to “humiliate”, then what does that really achieve? This is a must-read:

Free speech in sorry and humiliating condition

FRIEND, foe, men, women. I come to query James Spigelman, not to praise him.

The former Chief Justice of the NSW Supreme Court,has been praised or pilloried for his Human Rights Day Oration in which he lambasted this Gillard government’s proposals for further inroads into free speech in this country.

As a strong free speech proponent myself, that is wholly to be welcomed. But we need to be very clear that the Spigelman defence of free speech is pretty enervated and should be made of sterner stuff.

I think Spigelman was a very fine judge. Indeed I wish this Labor government had appointed him Chief Justice of the High Court back when that position was last open.

But that said, no one reading his oration can really say it was a wholehearted defence of free speech in the tradition, say, of John Stuart Mill. In fact had he made that speech in the US it would by some have been classed as an anti-free speech talk.

Such is the sorry state of free speech in this country, alas, that an address such as Spigelman’s is taken to be a rousing defence of free speech when in north America – even in Canada of late – it would be seen by some in quite the opposite terms.

For example, in the excerpt that appeared in The Australian (December 12) he claimed that “Words such as ‘offend’ and ‘insult’ impinge on freedom of speech in a way that words such as ‘humiliate’, ‘denigrate’, ‘intimidate’, ‘incite hostility’ or ‘hatred’ do not.”

Is there anything to that claim? As talented a legal mind as Spigelman has, I don’t think even he can elaborate on the difference between “to offend” and “to humiliate” in any real-life scenario so that speech could be allowed to cross the line on the first criterion but not on the second.

For instance, get rid of the “offend” test in the Bolt case and almost certainly, given the current hate speech legislation and the judge in that case, Bolt would still lose under the “humiliate” test.

In fact I can’t think of any way in which a legal test, objective or subjective, could be made to work such that all of us would be free to offend others, but not to humiliate them, with the result that we’d actually be left with more that we could say.

The Spigelman line would leave us almost exactly where we are now. It would do nothing to expand the scope of free speech or to fight off further inroads.

Trying to distinguish the two is an exercise in scholasticism. And pretending that freeing up the former (yep, you can now offend) but not the latter (sorry, you still can’t humiliate) is some sort of wonderful free speech advance is, in my view, baloney (to put it in the kindest terms possible).

And the same goes for “denigrate”, which Spigelman seems happy enough to keep, meaning that he endorses prohibiting the denigration of others.

OK. But in Canada, until the elected legislature recently moved to repeal their awful hate speech laws, a stand-up comic was brought before a hate speech tribunal and fined five figures for mocking lesbians in the audience who had heckled him.

So tell me Spigelman, is that comic’s response fine? Offensive? Humiliating? Denigrating? And who gets to say, them or us? And even if it is a reasonable person in the community test, if we can’t denigrate and we can’t humiliate, there isn’t much offending left to do, is there. And we haven’t got much free speech left.

Or at least that’s my view until Spigelman can give us plaus- ible examples of how much offending we can do that won’t still count as humiliating and denigrating, and without the chilling effect of fearing that some unelected judge will classify what we said as humiliating and denigrating. In my view the sort of fine distinction that Spigelman is trying to construct is a prime example of wanting to have your cake and eat it too.

Sure, it’s wonderful that a former top judge has come out and said something against the many awful inroads made and being made into free speech in this country. And as a man with former ties to the Labor Party it’s better still.

But a real, meaningful defence of free speech, would demand that we get rid of all of these two-bit restrictions on what we can say, which is precisely how things are in the US.

Spigelman also mentions a book by Jeremy Waldronthat influenced him. As it happens I have been asked to review it for a top US law review journal. And here’s the thing. In American terms Waldron’s book is not seen as a ringing endorsement of free speech. Indeed, it can be understood as making a theoretical case for supporting hate speech laws that do not exist in the US.

So citing Waldron, however honourable a man, is hardly a comfort to those of us who believe that real free speech in a democracy means citizens having to grow a thick skin and just suck it up when others say things they don’t like.

Sure, all societies need to stop incitement of violence. But the “I feel worse about myself having heard what you said” tests must be shunned.

And it hardly helps to point to the UN, where a concerted effort has been under way for years to bring back blasphemy laws. Frankly, I don’t give a toss what the UN thinks. Its record on free speech isn’t nearly as good even as ours. Ours used to be great. Today, it is only so-so. And with the government’s proposals, it could become God awful.

These proposals, not to mention some existing legislation, need to be buried, not praised. And it would be nice if the Coalition started taking an even stronger stand on this most crucial of all issues facing the voters.

James Allan is Garrick Professor of Law, University of Queensland.


Comments are closed.

Older Articles
Click HERE for more articles from ~ 1995...
Some Videos