Article: Nicola Roxon defends laws on offence

Annabel Hepworth
The Australian , 10 January 2013
The architect of Labor's draft national anti-discrimination laws has declared the debate about the proposed reforms has spawned a "vicious" campaign aimed at rolling back existing protections.

As the Coalition sharpens its stance to describe the laws as "some sort of ideological crusade to control what people can say", Attorney-General Nicola Roxon insisted that the government was not trying to stop people talking about religious, political or other "topical" issues.

The exposure draft of the law has been criticised by media companies and retired NSW chief judge and ABC chairman Jim Spigelman on free speech grounds, as it would allow a discrimination claim over conduct that insulted or offended a person in relation to "protected attributes" including political opinion and religion.

An interfaith group likened the bill to a "a secular version of the Spanish inquisition".

Writing in The Australian today, Ms Roxon says the exposure draft has prompted some "some very useful feedback, which the government will consider".

"But others have used our call for feedback to launch a vicious campaign to roll back existing discrimination protections and to misrepresent the reach of current laws," she says.

Ms Roxon says it is not the case that any conduct that a person finds offensive will be unlawful. "What should be clear is that the government is not seeking to regulate the type of language used privately between friends," Ms Roxon says.

"It is not seeking to change vilification laws, nor will it seek to prohibit people engaging in a discussion on political, religious or other topical matters. No democratic government ever should."

Ms Roxon makes clear that the racial vilification provisions - used against newspaper columnist Andrew Bolt - are not being changed under the government's plan to consolidate five federal laws into one act, and if the draft does this inadvertently, there is plenty of time to fix that.

"If others want to revisit the existing law, this particular consolidation project probably isn't the place to do it," she says.

The comments are Ms Roxon's first public comments on the debate about the anti-discrimination overhaul and come as the Coalition's legal affairs spokesman, George Brandis, takes a more assertive position on the bill.

Senator Brandis told 2GB that while the Senate was controlled by Labor and the Greens, there was a "better chance" of stopping the bill in the lower house if Tony Windsor and Rob Oakeshott "do the right thing".

He said the legislation was against freedom of speech and could lead to self-censorship in the media. "That is the purpose of laws like this: to change people's behaviour so they are afraid to say something that is not politically correct," Senator Brandis said.

The government has drafted the law after campaigning in the 2010 election on a promise of giving a new ground of protection for sexuality.

The Human Rights and Anti-Discrimination Bill is now before a Senate inquiry, which has received more than 525 submissions. The bill defines discrimination as including conduct that "offends, insults or intimidates another person in relation to 18 different protected attributes, of which seven - including political opinion and religion - apply only in work-related areas.

Critics say the bill applies a subjective test of this.

While the racial vilification and sex harassment sections in the new bill refer to a reasonableness test, such an objective test is absent from the general definition of discrimination in the bill.

The existing section of the Racial Discrimination Act used against Bolt, and now mirrored in the bill, refers to whether conduct is "reasonably likely" to offend.

Media outlets have warned that because the section of the proposed bill making discrimination unlawful includes "race" as a protected attribute, complainants could use this section to avoid the difficulties of meeting an objective test under the racial vilification section of the law.

Ms Roxon's opinion piece today does not address business concerns about the shift in the burden of proof in the bill, which employers say could leave them facing very high costs to defend claims.


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