I wish to discuss the boundary between hate speech, a significant factor in social inclusion, and free speech, perhaps the most fundamental human right underpinning participation in public life.
Human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict. This is a context bedevilled by a conflict of metaphors: from “rights as trumps" to “balancing". As Benjamin Cardozo warned us: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it".
“Balancing" is often a fraught process, particularly in the usual context where the conflicting values are simply incommensurable. As one United States Supreme Court Justice put it, the process is often like asking “whether a particular line is longer than a particular rock is heavy". In the present context, the issue requires determination of how much weight is to be given to the right to freedom of speech. For many, albeit not all, that right is usually entitled to determinative weight when it conflicts with other rights, relevantly, those protected by anti-discrimination statutes.
This issue has been controversial in Australia in recent years, in the context of the racial vilification provision in section 18 C of the Racial Discrimination Act 1975, which is proposed to be re-enacted as section 51 of the new omnibus legislation, the Human Rights and Anti- Discrimination Bill 2012. The Bill was recently released for comment, an invitation I will take up in this address.
There may now have elapsed sufficient time for us to debate the issue dispassionately, and not on the basis of whether or not you like Andrew Bolt. The focus of that debate was not on the existence of a racial vilification provision, but on the breadth of the conduct to which section 18 C extends, namely, conduct “reasonably likely … to offend, insult, humiliate or intimidate another person".
The key criticism was directed to the fact that the section made speech which merely “offends" unlawful. A similar, but less powerful objection, can be made to the reference to “insult". The critique did not, generally, extend to the words “humiliate or intimidate". ...Spigelman goes on to comment that
I agree with Professor Waldron. His detailed analysis supports the proposition that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.
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. I have not conducted a detailed review of the international position in this respect. However, so far as I have been able to determine, we would be pretty much on our own in declaring conduct which does no more than offend, to be unlawful. In a context where human rights protection draws on a global jurisprudence, this should give us pause when we re-enact s 18C and before we extend such protection to other contexts.
Section 19(2)(b) of the proposed Human Rights and Anti- Discrimination Bill 2012, introduces “offending” into the definition of discrimination for all purposes, not just for racial vilification. None of the other pre-existing Commonwealth Acts – covering sex, disability and age discrimination –extends the concept of discrimination to conduct which only offends.
The new s19 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”. 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.
There are 18 separate “protected attributes” set out in section 17 of the draft Bill, seven of which apply only in the employment context. These are wide ranging and, in a number of respects, novel. One such attribute is “race”. This is not just redundant. It extends the protection of proposed s 51 because of the absence of an objective element.
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, eg. “political opinion”, “social origin”, “nationality”.
Further, each of the four existing Commonwealth anti- discrimination Acts proscribe publication of an advertisement or notice which indicates an intention to engage in discriminatory conduct. Section 53 of the new omnibus Bill goes further into freedom of speech territory, by extending this proscription beyond advertisements to any publication.
The new Bill proposes a significant redrawing of the line between permissible and unlawful speech. This is so, notwithstanding the ability to establish that relevant conduct falls within a statutory exception. A freedom that is contingent on proving, after the event, that it was exercised reasonably or on some other exculpatory basis, is a much reduced freedom. Further, as is well known, the chilling effect of the mere possibility of legal processes will prevent speech that could have satisfied an exception.
When rights conflict, drawing the line too far in favour of one, degrades the other right. 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” or “contempt”, do not. To go beyond language of the latter character, in my opinion, goes too far.
None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech. 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.