Memo to government: having an opinion is not a crime

Bookmark and Share Freedom of Speech and Legal Rights Project | Chris Berg
The Age 23rd December, 2012

By now we ought to have learnt this lesson: don't let lawyers write law. At first glance, the Gillard government's proposed changes to federal anti-discrimination law seem pretty benign. The expressed goal is to merge a bunch of acts into one omnibus act, reducing red tape and duplication. But this impression lasts for exactly as long as it takes to read the draft Human Rights and Anti-Discrimination Bill 2012. Then it becomes clear the goal is something else entirely - to politicise civil society and tangle our interpersonal relationships in litigation.

It is an extraordinarily broad, excessive, vague and dangerous piece of legislation. To take one of the bill's most revolutionary provisions: it would become unlawful to offend someone in a work or any work-related environment because of their political opinion. Yes, the bill actually says ''political opinion''. If it became law, our beliefs would become sacrosanct. It would be against the law to insult them. The idea is absurd. Politics - the winner-take-all contest for power - is always going to be offensive to someone.

''Work-related area'' could mean almost anything as well. The government says it intends to take a broad view of what counts as work-related. Even volunteering would be covered.

So, did a colleague say something disparaging against the Greens? Sue them. Not amused by a cartoon on a co-worker's Facebook wall? Sue them. Didn't get invited back to the bake sale after you called the Prime Minister ''Juliar''? Probably discrimination - sue them all. Don't be shy. If you disagree with someone's politics, you can just take them to court.

Has the government really not thought this all through? Or do they genuinely want to bury society in an avalanche of lawsuits and legal threats?

Let's give them the benefit of the doubt. Sure, oppositions are sometimes pressed for time, but governments bother to read their own legislation. It seems there are lawyers within the Attorney-General's Department who believe Australians should be encouraged to take each other to court for trivial slights.

Australia's political classes have long made a hobby of suing each other. Now the government wants the hoi polloi to share the fun.

The draft bill even reverses the burden of proof in favour of the persons saying they were offended, and ensures that they won't be penalised if they lose. These provisions are all designed to make the process easier; to ensure more lawsuits are launched.

On Wednesday, the president of the Australian Human Rights Commission, Professor Gillian Triggs, conceded the bill perhaps goes too far. ''Maybe there's wisdom,'' she said, in raising the threshold for legal action above offence.

Wisdom, yes, but wisdom her organisation does not share. The Human Rights Commission's official recommendation to government was not to ease back but to double down - to make it unlawful to politically offend anybody in any area of ''public life''. This would include ''access to public places''.

Still, that argument has a perverse logic. If the government thinks of workplaces as part of public life (that's what the draft bill says) why should the ban against political offence be limited to the office or factory?

But it's hard to think of anything more undemocratic than the exclusion of controversial political opinion from public life. Free debate is a pillar of liberal democracy. We should be resolving our political disagreements in public, not through lawyers.

The Australian Human Rights Commission has a brief to promote and protect human rights. And it's been pushing for these changes for years. There's no surprise there. The commission faces a specific set of incentives. Discrimination complaints go to the commission for ''conciliation'' before they head to court. And the more human rights problems there are, the more human rights problems the commission will be asked to conciliate.

In a 2009 paper, one Human Rights Commissioner even said the government should ''moderate'' the expression of religion in public. In his view, religions needed to be tamed by ''the hand of government, even if gentle and gloved''.

Freedom of religion and expression are our oldest liberties. Yet in the mind of the government's chief human rights body they ought to take a back seat to new rights such as the right not to be offended.

The commission talks about trade-offs between competing rights. These trade-offs seem very one-sided. Inevitably, the government ends up with more power and civil society ends up subject to more legal control. This bill goes to a Senate committee over the Christmas holidays. It needs to die a quick death.