Nicola Roxon's discrimination laws draw flak from media

[Thu Thu Train]

http://www.theaustralian.com.au/media/nicola-roxons-discrimination-laws-draw-flak-from-media/story-e6frg996-1226549911052

It might be behind a paywall: full article

THE nation's media giants have slammed Labor's plans to make it unlawful to offend or insult people under the proposed overhaul of discrimination law, warning it could encourage audiences to be unnecessarily thin-skinned and outlets to restrict contentious or complex material.

In a rare united submission, the media companies say that with the exception of the section of the Racial Discrimination Act used against newspaper columnist Andrew Bolt, no existing federal law deems conduct that is simply insulting or offensive to be discrimination.

They argue that satirical material, political commentary and informative programming on matters of historical or religious sensitivity might be offensive or insulting to some but are part of the national conversation that is "essential for fostering robust social and political debate, and therefore to ensuring a healthy democracy".

"Whilst these and similar topics may be offensive or insulting to some viewers, this does not make them discriminatory," the joint submission says. "No other liberal democracy has a human rights or anti-discrimination statute proscribing conduct which merely offends or insults."

The Gillard government is proposing to consolidate five commonwealth anti-discrimination laws into one act to meet an election promise.

The Senate inquiry into the draft Human Rights and Anti-Discrimination Bill, put forward by Attorney-General Nicola Roxon, has received more than 500 submissions, with criticism from a range of corners.

Business groups fear they will face high costs to defend claims, while some of the nation's top legal minds and human rights bodies believe it could set the bar for discrimination too low, potentially undermining free speech.

The conservative state governments of Victoria, NSW and Queensland warn the law will overlap and create conflict with state anti-discrimination laws.

The ACTU has said the laws do not go far enough and should allow punitive damages to be awarded, as they can be in discrimination cases in the US, while the Shop Distributive and Allied Employees Association has said that exemptions in the laws for "inherent requirements for work" could lead to pregnant workers being forced to stand for a 12-hour shift or climb ladders

Church groups have warned the plan could lead to lawsuits over religious freedom, while charity groups fear being exposed to discrimination claims by unpaid volunteers.

Media companies say in their submission they support the overall objectives of the plan to simplify anti-discrimination legislation, but parts of the exposure draft provide cause for significant concern, including because in defining discrimination the bill appears to use a subjective test of whether someone feels offended or insulted by published and broadcast content.

While SBS was able to successfully defend a 2006 claim under the Racial Discrimination Act that a documentary on the Armenian genocide in the early years of the 20th century was offensive to Turkish people, under the proposed new anti-discrimination laws the outcome would have been "dramatically different".

SBS had demonstrated that academic and historical experts believe the former Ottoman Empire was engaged in genocide.

But under the proposed new law, such matters would hinge on the subjective reaction of the viewer making the complaint, irrespective of its historical accuracy or academic merit. "Such a conclusion would have been both unjust and to the detriment of Australia's commitment to free speech," the submission says.

The submission is another sign of tension between Labor and the media.

ABC chairman and former NSW chief justice Jim Spigelman has already criticised the proposed law. But the new joint media submission is the first public criticism of the government's anti-discrimination plan by other companies, including News Limited (publisher of The Australian), Fairfax Media, SBS, West Australian Newspapers and AAP, as well as radio and television groups.

Media executives have meanwhile also campaigned against the recommendations of the Finkelstein inquiry and the Convergence Review, which have ranged from a new government-funded regulatory body to adjudicate on press behaviour to a new public interest test that could block major media ownership changes.

Late last year, Mr Spigelman warned that the section of the proposed law defining discrimination contained a subjective test of being offended. The new media submission says if this is the case, it could "produce a legal climate in which would-be complainants are encouraged to be unnecessarily thin-skinned and sensitive to offence".

"The introduction of a subjective test could create significant uncertainty for media organisations conducting prepublication review of material," it says.

"The inability of organisations to foresee what standard will be set is likely to have a chilling effect on the publication or broadcast of potentially contentious material. This will most directly affect consumers, whose access to the range of content they are able to read, hear and see may be limited."

On top of this, the proposed law could require media groups "to defend their innocence each time a member of their audience felt insulted or offended" because it put the onus on defendants to prove their innocence. The bill applies a single, simplified test of "unfavourable treatment" for unlawful discrimination; this is defined to include conduct that "offends, humiliates, insults or intimidates". The submission says the words "offends" and "insults" should be cut from the definition of unfavourable conduct.

It also says the general definition of discrimination should have an objective test and specific exceptions for content that is reasonable and in good faith in artistic performances, academic debate, fair and accurate reporting and commentary on matters of public interest. Such measures are in the racial vilification provisions of the Racial Discrimination Act, and in the racial vilification part of the proposed law.

The Sex Discrimination Act includes the term "offended".

[brenden]

Seems pretty stupid to me.

[slothpomba]

As a fascist this post hurts my feelings. I demand you remove it.

[Special At Specialist]

Freedom of speech! All insults and criticism should be acceptable. As Winston Churchill puts it:
"Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body. It calls attention to an unhealthy state of things."

[thushan]

Freedom of speech! All insults and criticism should be acceptable. As Winston Churchill puts it:
"Criticism may not be agreeable, but it is necessary. It fulfils the same function as pain in the human body. It calls attention to an unhealthy state of things."

What if it is neurogenic pain? I.e. pain due to your nerves being f**ked up rather than anything else being f**ked up? That's analogous to the critics being the "unhealthy state of things". Example: Hate speech.

[Special At Specialist]

What if it is neurogenic pain? I.e. pain due to your nerves being f**ked up rather than anything else being f**ked up? That's analogous to the critics being the "unhealthy state of things". Example: Hate speech.

Well, I suppose we need to identify the cause of the pain before we can start to administer medication. If the pain is clearly an irrational response, then certain parts of the brain can be altered to relieve the body of such distress, but a universal immunity to pain is never the answer.

Translation: if the hate speech is unfounded and unjustified, then a request can be made for this person to be silenced regarding that matter, but we should never prevent him/her or others from expressing their views on other matters, even if they choose to do so in very politically incorrect ways.

[thushan]

Haha I agree with you there - just taking the piss out of your analogy

[Special At Specialist]

Haha I agree with you there - just taking the piss out of your analogy

Every analogy has a counter-analogy, which is why I love philosophy so much

[Professor Polonsky]

Consolidating the Federal Anti Discrimination laws is a good idea. I'm sure the final product will be a good one - there are always issues with initial drafts of bills.