The Reason Party is proposing two key changes to the Act. First, the bill would add five additional attributes to the Act’s coverage: disability, sexual orientation, gender identity and sex characteristics. While it can certainly be argued that these attributes, which enjoy similar protection to race and religion in other legislation, should be protected under this Act, it’s not hard to see a spike in litigation as a result.
Secondly, the bill proposes to lower the threshold for criminal culpability and civil liability so that it includes conduct that is likely to incite, rather than just incite. It would also cover reckless conduct in serious cases of vilification.
In other circumstances such changes might be palatable, but when you are engaged in a subject that involves delicate balances between long-established but competing human rights, you have to be exceedingly careful about how you establish levels of liability and guilt.
I’m not alone in having concerns. Among groups that have expressed concerns is Parliament’s Scrutiny of Acts and Regulations Committee, which has raised concerns about the extension of liability and guilt to cases where conduct is likely to incite, rather than just incite.
Recently, the government decided to refer the issues the bill has raised to the Legislative Assembly’s Legal and Social Issues Committee. The committee is due to report by September next year.
The committee’s terms of reference are quite broad so anything could happen by the time it reports. It would not even be surprising if there were at least one minority report given what will obviously be some divergence on the committee about competing rights.
Watching the committee’s work will not be the only imperative here.
It will be instructive to observe how the Victorian Equal Opportunity and Human Rights Commission interacts with the committee. Victoria’s Human Rights Commissioner recently told ABC radio that she believes the threshold for claims under the Racial and Religious Tolerance Act is too high and needs to be lowered. It’s a big call for the commission to make.
I suspect it could set off quite a controversial debate, if for no other reason, because of the grounds the commissioner appeared to give for wanting a lower threshold. Opening the Act right up because there have been too few cases and concerns about online trolling is unconvincing.
Certainly, the commission’s recent reports do not reveal an eruption in claims under the Act. In any event, the answer is not revealed by looking at how many claims are being brought and how much traffic is coming in through the door.
To be fair, these factors are not irrelevant, but the ultimate resolution of this tension lies in what Parliament has enacted to mediate between legitimate interests.
Last week, I sat on a panel at the University of Melbourne to participate in a forum held by the Australian Intercultural Society on press freedom. During the interactive session, an audience member asked a question essentially complaining about the ability of people to attract media attention to express doubts about the science behind climate change.
I thought it a most peculiar question at a forum on press freedom and yet the issue being raised was how to shut down a contrary viewpoint. I say this not because I am in any doubt that humankind has contributed to climate change and that we should take reasonable measures to deal with this as a matter of great importance.
Over recent months it’s felt as though we’re in the grip of an epic competition over who can best gerrymander human rights. In public discourse, we seem to have gone from not wanting to agree, to not wanting to listen to not wanting to even allow.
We all need the discipline and forbearance to remember that the debate around our individual freedoms is not enriched by using the law to ringfence our own views, for they must either resonate or falter in the public square. Rather, our collective goal must be to ensure that the public square is fairly available to all.
John Pesutto was Victoria’s shadow attorney general from 2014 to 2018 and is a senior fellow at the School of Government at Melbourne University.