Hate laws may encourage lawsuits

Many argue that the language used in the government's draft Human Rights and Anti-Discrimination Bill could spark more lawsuits. Picture: Thinkstock/Comstock Images Source: Supplied

AUSTRALIA'S discrimination watchdog wants the federal government to water down its new hate laws to avoid litigation over workers' water-cooler chats.

Discrimination has been redefined as "conduct that offends or insults" in the government's draft Human Rights and Anti-Discrimination Bill.

But Australian Human Rights Commission president Gillian Triggs thinks the broad definition will spark too many lawsuits.

She said the words offend and insult "have to go".

"There is no need to set the threshold so low," she said.

"I would suggest the government consider taking the words 'offensive' and 'insulting' out (of the legislation).

"It does raise a risk of increased litigation".

Professor Triggs said discrimination cases should be based on the higher test of "intimidation, vilification or humiliation".

The Gillard government has drafted the new law to combine and update five sets of legislation banning discrimination on the grounds of race, sex, age or disability.

Professor Triggs said the words offend and insult had been "buried" in Section 198 of the Racial Discrimination Act, which will be replaced by the new legislation.

"Now it (the new legislation) extends that attribute to all areas (of discrimination)," she said.

"Probably what we'll see is an amendment to the exposure bill, taking out offensive and insulting."

The draft law says a person has been discriminated against if someone treats them "unfavorably" on the grounds of "protected attributes" that range from gender to race, disability, age, religion or sexual orientation.

It defines "unfavorable treatment" as harassing someone or "other conduct that offends, insults or intimidates the other person".

A Senate committee inquiring into the draft bill has already received 587 submissions from organisations including churches, employers, unions, mental health agencies, disability groups and state governments.

A spokeswoman for acting federal Attorney-General Jason Clare yesterday refused to say if the wording would be changed.

"The main objective of this project is to simplify and consolidate many laws into one," she said.

"If the Senate inquiry identifies the drafting goes well beyond this, the Government will closely consider those recommendations."

Queensland Attorney-General Jarrod Bleijie has told the Senate inquiry the the new laws could damage freedom of speech.

"The use of subjective language such as 'insult' and 'offend' in the statutory definition of 'unfavourable treatment" may be interpreted to set a low threshold test for discrimination," he said.

"(This) will result in unmeritous complaints and lack of alignment with international human rights benchmarks that focus on the need for equality, rather than merely on the social value of being polite".

Queensland's Anti Discrimination Commission also wants the legislation be rewritten, so a "reasonable person" would have to find the conduct insulting or offensive.

Tasmania's Anti-Discrimination Commission, however, wants to keep the words "insult and offend" and add others as well.

"To provide greater certainty, this clause could also include the words humiliate, denigrate, ridicule or degrade to describe some of the specific types of behaviour that constitute unfavourable treatment," it told the inquiry.

The NSW Government has told the Senate inquiry the broader definition of discrimination "places unreasonable restrictions on freedom of speech".

"The words 'offend' and 'insult', in particular incorporate a very low threshold of unfavorable treatment," its submission says.

Victorian Attorney-General Robert Clark warned that people could be accused of discrimination over what they say in private conversations held in a public place, such as a club or office.

"Many people may be subjectively offended or insulted by the simple expression or manifestation of views different to their own," he told the inquiry.

"To make such expressions of views in workplaces, schools, clubs and sports prima facie unfavourable treatment and hence discrimination ... appears to substantially erode freedom of expression."

The Law Society of South Australia told the Senate inquiry it "condemned" the new definition.

"The robust expression of opinions, short of incitement to hatred, is a strength of our social and legal system," its submission states.

"It should not be curtailed to protect subjective offence that individuals may feel when their beliefs or attitudes are criticised."
 

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