THE legislative overreach and nanny-state interference of the planned overhaul of federal anti-discrimination laws betray an activist tendency that is a core weakness of the Gillard government. Rather than improving productivity, restructuring the budget or securing our borders, the government occupies itself with so-called progressive reform to fix an unidentified problem. We use the term “so-called” advisedly because the proposed legislation is actually a retrograde step that will inhibit personal liberty rather than enhance it. No less a jurist than the recently retired chief justice of NSW (now ABC chairman) Jim Spigelman has belled the cat on this ill-considered plan.
Blissfully unselfconscious about any overtones of the nanny state or big brother, Attorney-General Nicola Roxon claims the new laws will “help everyone understand what behaviour is expected”. The Australian and our readers are left to wonder how we would ever cope without such benevolent guidance from our government masters. The consolidation of anti-discrimination laws from five acts into one will remove complexity and difficulties, we are told. In order to explain this need, the Attorney-General provides what she calls the “ridiculous” example of an African woman who might need to make separate complaints about sex and race discrimination. “Now she can make a single complaint recognising the discrimination was because she was both a woman and African.” It would seem that Ms Roxon, who, like Julia Gillard, is a former industrial lawyer, expects this legislation to be part of her reformist legacy.
Yet, as Mr Spigelman has eloquently explained, the consolidation will do far more than simplify the law. It will lift the anti-discrimination provisions of all the existing acts to the unnecessary and unwise threshold of the Racial Discrimination Act, which makes it unlawful to “offend” people. This was the test that saw News Limited columnist Andrew Bolt convicted of vilification and meant some of his columns were retrospectively banned because they might offend “fair-skinned Aboriginal people”. Rather than remove this legislative overreach, Ms Roxon aims to extend the provision across the full range of discrimination law. Mr Spigelman suggested this would impinge on freedom of speech in a way not seen in any other liberal democracy. “The freedom to offend is an integral component of freedom of speech,” he said. “There is no right not to be offended.”
The proposed laws also reverse the burden of proof, demanding that once a complainant has established a prima facie case, the respondent must justify their conduct. The combined impact of these proposed changes can only have a chilling effect on free expression. This is an example of government expanding beyond its remit in our free society and, given the pressing practical problems confronting the nation, a case of unwise political distraction. Ms Roxon should seek to rectify her mistakes quickly.
As Mr Spigelman has demonstrated, Australia is not bound by any international treaties to prevent any person or group from taking offence at the words of others. But Australia is obliged to protect freedom of speech. Our national character and strength of our democracy depend on it.