The media is offended by the new discrimination bill

The Media is Offended by the new Discrimination Bill

By Sarah Joseph, Monash University

The media is right to be up in arms about proposed new laws. AAP Image/Alan Porritt

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).

Sarah Joseph does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

The Conversation

This article was originally published at The Conversation.
Read the original article.

12 responses to “The media is offended by the new discrimination bill”

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  2. I’m always up for a gripe about a poorly drafted law, and no doubt s19(2)(b) will be redrafted. But the public debate seems to treat it as more than a drafting issue, and I’m not sure it’s that.

    Is 19(2)(b) necessary? Probably not. But it does serve a couple of potentially salutary ends.

    First, it generalises current protections relating to race and sex to the other discrimination grounds. I think that’s a good thing, or at least that there’s quite a burden to show that enhanced protections on some grounds is justified (especially given the right to equal protection from discrimination.) Of course, another way to generalise would be to get rid of the particular protections regarding racial vilification and sexual harassment, but I can well understand why the government (and, for the latter, you) won’t go there. As Roxon said in her Oz piece, those issues aren’t part of the brief for this Bill, which is consolidation and generalisation, not comprehensive reform.

    Second, while you’re right that harassment covers a lot of the same ground as offence, insult, humiliate, etc, I’m not convinced that harassment is a better word than these other ones. It’s not clear to me that it is any less susceptible to bad judges than the rest of them. I suspect that, if the current law referred to offence and insult and Roxon proposed to add ‘harass’, there’d be a big hoo haa about that. The various words don’t strike me as all that different from one another. You might say: all the more reason not to add more. But having multiple words can be a good thing to stop silly judges from fixating on a particular one. What’s the latin again? Avada Kedavra?

    I do take your point about overdependence on judges and the need for lawyers and all that. But the Bill has more mechanisms in place for that sort of problem than most laws, notably the Commission’s role. Importantly, the Bill doesn’t give massive discretionary powers to low level functionaries, unlike many other pieces of dodgily drafted legislation, so I struggle to get so bothered by this one. (You’re right that s23 doesn’t offer much, though. I guess my point is just that the Bill is a complex beast – it isn’t just a one-liner banning discrimination.) Actually, these sorts of arguments could be deployed against most parts of discrimination law (not to mention most of human rights law.) Surely, that’s where The Australian’s agenda comes from in part (with the rest just its usual politics.)

    I had no idea you were in the building! (It’s that kind of place.) I’ll try to drop by (though I’m not in much myself this month.)

    • Personally I think “harass” is a “worse” form of harm than “offend” or “insult”.

      In writing this (originally for The Conversation) I started to move into the ideological opposition point, but the words didn’t come before deadline. It just started to sound too much like a rant against The Australian. I reserve that my for my Twitter account.

      I’m largely around til mid-Feb, around 3 days a week.

  3. Hi Sarah, I’m pretty much a freedom of speech absolutist myself. However, I think you’ve overstated the criticism a bit here. Or, at least, you’ve left out some important context.

    As you know (and say), the Bill only regulates offence or insult (or anything else) if it is done because of a discrimination ground. So, I don’t think it’s helpful to say that ‘there’s no right not to be offended or insulted’. As you say, there is a right not to be discriminated against. The issue is the extent of that right and the balance to be struck with the right to freedom of expression.

    Also, the Bill’s prohibition against discrimination is limited to conduct connected to an area of public life: work, education, goods and services, clubs, etc. While that’s a big part of life, it isn’t all of life. For instance, it doesn’t seem to cover, say, the contents of a newspaper or TV show (other than a Commonwealth-owned media company, hence Spigelman’s concerns I suppose.) Also, some of the grounds are limited to work-related conduct, notably religion. (For what it’s worth, there are also defences, such as justifiable conduct, that might apply in some instances of inadvertent offence or insult.) I think these things are worth mentioning (though the Australian doesn’t seem to think so!)

    (By way of contrast, Victoria – as well as most other states and territories in Australia – already makes it a criminal offence to behave in an offensive manner or use insulting words in any public place, without any requirement of discrimination or connection with public life. Unlike the Bill, breaching that can put you in jail for 2 months, not to mention lead to nasty encounters with a cop. Of course, such laws are bad things, but they do put claims that the proposed Bill is a big change to the law in perspective, I think.)

    The big question is what 19(2)(b) adds to the Bill. I think there are reasons to doubt that a court would interpret it as a big change to the existing law. The language seems to be lifted from definitions of sexual harassment and racial vilification in existing statutes – you mention vilification, but it’s not clear to me whether or not you also oppose the sexual harassment definition too. Anyway, the effect of 19(2)(b) seems to generalise those concepts to other discrimination attributes, which seems a fair enough idea (and may already be implicit in the whole notion of discrimination, hence the ‘avoidance of doubt’ language.) You suggest that the test for offence and insult may be subjective. While I can see some basis for that in the Bill’s wording, it’s not overwhelming and, as far as I know, no other discrimination law is interpreted in such a way (nor are criminal offences concerning offensiveness.). So, how likely is it that a court would interpret those words in that way? Wouldn’t they read the Bill purposefully (and in light of the principle of legality and, where relevant, the constitutional right to political expression) and read the words as requiring some sort of objective, non-trivial threshold of offence or insult?

    There’s some doubt about this, I concede, but chances are, all 19(2)(b) does is to remove the need to specifically show that the discriminatory conduct amounted to harassment or treatment. That might be important, say, if someone puts up porn all over a common work space or repeatedly tells racist jokes or leers at someone who’s breast-feeding or keeps referring to a disabled person as a ‘cripple’. I’m not convinced that it should be necessary to prove that this conduct ‘harassed’ or ‘humiliated’ or otherwise victimised a particular person to get the kind of relief the Bill offers (which, as you know, is primarily mediation and conciliation, though there are avenues for other relief, including damages.) Doubtless, some of these matters come close to the line, or even go over it, when it comes to freedom of speech, but such balancing issues are common throughout discrimination law and certainly aren’t limited to 19(2)(b). The case for or against 19(2)(b) is not especially overwhelming either way, I reckon.

    I don’t want to be negative, as this is certainly an issue worth discussing and highlighting. But this blog is usually a good source of balanced, contextual analysis and I think this post is a little lacking in that regard. Cheers, Jeremy

    • Thanks Jeremy.

      I would argue there’s no right not to be offended on a racial basis, or religious basis, etc if that helps. I simply do not think that the harm there is sufficient to amount to racial or religious discrimination.

      I take the point about public order laws. It won’t surprise you I find many if those provisions undesirable, though their worst effects could be alleviated by Coleman v Power (if one can afford a lawyer arguing that).

      You may be right about how a court would interpret. But I personally see no reason whatsoever to extend the law to “offence” & “insults”. No other discrimination law actually does that to my knowledge, except those to which I refer to below. And, regardless of the sensible interpretations that may arise, the law as written could have a significant chilling impact.

      Your explanation is different to that of Roxon: she seems to conflate it all with harassment. And the examples you use I think could easily be claimed as harassment or at least unfavourable treatment without any need for 19(2)(b) – 19(2) isn’t exhaustive.

      As for sexual harassment law, I deliberately steered clear as I have no knowledge of that caselaw, unlike racial vilification. It could be that the issues arising from SH are distinct enough to justify inclusion of the word. I have doubts, but prefer not to venture to where I truly know nothing.

      No one yet has given me any argument to necessitate the inclusion of those words, yet I believe the words are dangerous & overly dependent on sensible judges.

    • Sorry for double post but the app I’m using necessitated it.

      I think a law that is overly reliant on sensible tempered judicial interpretation is a badly drafted law. And my point remains – what is the point of or at least necessity for (b), leaving aside intimidation?

      Anyway, do come see me in Room 931 – George Paton room. I’m with you guys for the first few weeks of my sabbatical – ie now (or weekdays).

    • Oh. Final point. The s23 defenses don’t seem to me to be particularly well crafted to insulting & offensive stuff, unlike, eg, s18D of current RDA.

      Yes it might apply to inadvertent offence. But I also apply my argument to advertent offensive, insulting treatment too. I can’t see how s23 helps there – it’s not de minimis.

      If I’m right & such words are normally missing beyond the discrete areas of racial vilification (where I also think it goes too far) & sexual harassment (where I reserve judgment), I think the potential impact is quite unpredictable. And unnecessarily so.


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