December 17, 2012
I thank the Australian Human Rights Commission, and particularly its President, Gillian Triggs, for this opportunity to participate in the recognition of so many fine Australians for their contribution to the protection of the rights of their fellow Australians, and of others. I am invited to deliver an “Oration", which may be a somewhat grandiloquent title in view of the 10 minute time limit which I have been given.
Of course, length is not a criterion of quality or of impact. One of the most memorable of all speeches is Lincoln’s Gettysburg Address–note the title, “address" not “oration". Lincoln spoke in a minor role at the Consecration of the National Cemetery at Gettysburg on 19 November 1863–the sesquicentenary of which next year will be quite an event. The principal speaker for the occasion was Edward Everett, who delivered what was called “the Oration”. Lincoln spoke for just over two minutes and uttered about 267 words (depending on the version of the speech), some of which are amongst the most memorable words of the English language. Everett spoke for over two hours, and uttered 13,607 words, not one of which anyone remembers.
The Gettysburg Address is one of the most eloquent statements in support of the theme which the Commission has chosen for this year's Human Rights Day: “Inclusion and the right to participate in public life". Consistent with the Commission’s theme, I wish to discuss the boundary between hate speech, a significant factor in social inclusion, and free speech, perhaps the most fundamental human right underpinning participation in public life.
Human rights discourse, which has always been comfortable with privileging a right over an interest, has never successfully dealt with situations in which rights conflict. This is a context bedevilled by a conflict of metaphors: from “rights as trumps" to “balancing". As Benjamin Cardozo warned us: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it".
“Balancing" is often a fraught process, particularly in the usual context where the conflicting values are simply incommensurable. As one United States Supreme Court Justice put it, the process is often like asking “whether a particular line is longer than a particular rock is heavy". In the present context, the issue requires determination of how much weight is to be given to the right to freedom of speech. For many, albeit not all, that right is usually entitled to determinative weight when it conflicts with other rights, relevantly, those protected by anti-discrimination statutes.
This issue has been controversial in Australia in recent years, in the context of the racial vilification provision in section 18 C of the Racial Discrimination Act, 1975, which is proposed to be re-enacted as section 51 of the new omnibus legislation, the Human Rights and Anti-Discrimination Bill, 2012. The Bill was recently released for comment, an invitation I will take up in this address.
There may now have elapsed sufficient time for us to debate the issue dispassionately, and not on the basis of whether or not you like Andrew Bolt. The focus of that debate was not on the existence of a racial vilification provision, but on the breadth of the conduct to which section 18 C extends, namely, conduct “reasonably likely … to offend, insult, humiliate or intimidate another person". The key criticism was directed to the fact that the section made speech which merely “offends" unlawful. A similar, but less powerful objection, can be made to the reference to “insult". The critique did not, generally, extend to the words “humiliate or intimidate".
These matters have long concerned me, but my thoughts have crystallized after reading a book, published earlier this year, which contains an insightful treatment of the principles involved in regulating hate speech. It was written by Jeremy Waldron, one of the foremost jurisprudential scholars of our time, with joint appointments to Oxford University and New York University Law School. I have drawn on his writing over several decades.
His recent book, The Harm in Hate Speech, is primarily directed to an American audience. The strength of US First Amendment jurisprudence is such that hate speech is not regulated at all. In order to explain why he believes the scope of the First Amendment can properly permit regulation of hate speech, Professor Waldron has sought to identify with precision the rights that the regulation of hate speech seeks to protect. Essentially, he approaches this from two perspectives: first, in terms of society’s interest and, secondly, in terms of individual rights.
From the perspective of society, Waldron emphasizes inclusiveness as a public good, providing an assurance and sense of security to all members of the society that they can live their lives without facing hostility, violence, discrimination or exclusion. This assurance affirms each person’s status as “a member of society in good standing”.
From the other perspective, of those who are meant to benefit from this assurance, the fundamental human right that is affirmed is the right to dignity. Hate speech undermines the sense of assurance and denies the dignity of individuals.
In his 2009 Berkeley Tanner Lectures, also published this year, Waldron considered the philosophical traditions on the concept of human dignity. He sought to reconcile the treatment of human dignity as the conceptual basis for human rights and as providing the content of some recognized rights. These lectures provide a philosophical underpinning for the focus on human dignity in the hate speech debate. I believe this focus is correct.
The section of Professor Waldron’s hate speech book, which is of particular significance for our debate, is the chapter he devotes to establishing the proposition that protection of dignity does NOT require protection from being offended. As he puts it:
“Laws restricting hate speech should aim to protect people's dignity against assault. I am referring to their status as anyone’s equal in the community they inhabit, to their entitlement to basic justice, and to the fundamentals of their reputation. Dignity in that sense may need protection against attack, particularly against group-directed attacks … It understands dignity as a status sustained by law in society in the form of a public good.
However, I do not believe that it should be the aim of these laws to prevent people from being offended. Protecting people's feelings against offence is not an appropriate objective for the law.
[T]o protect people from offence or from being offended is to protect them from a certain sort of effect on their feelings. And that is different from protecting their dignity and the assurance of their decent treatment in society.” 
I agree with Professor Waldron. His detailed analysis supports the proposition that declaring conduct, relevantly speech, to be unlawful, because it causes offence, goes too far. The freedom to offend is an integral component of freedom of speech. There is no right not to be offended.
I am not aware of any international human rights instrument, or national anti-discrimination statute in another liberal democracy, that extends to conduct which is merely offensive. I have not conducted a detailed review of the international position in this respect. However, so far as I have been able to determine, we would be pretty much on our own in declaring conduct which does no more than offend, to be unlawful. In a context where human rights protection draws on a global jurisprudence, this should give us pause when we re-enact s 18C and before we extend such protection to other contexts.
Section 19(2)(b) of the proposed Human Rights and Anti-Discrimination Bill 2012, introduces “offending” into the definition of discrimination for all purposes, not just for racial vilification. None of the other pre-existing Commonwealth Acts – covering sex, disability and age discrimination –extends the concept of discrimination to conduct which only offends.
The new s19 defines, for the first time, discrimination by unfavourable treatment to include “conduct that offends, insults or intimidates" another person. As has always been the case with s 18C, the relevant conduct must occur “because the other person has a particular protected attribute”. Significantly, unlike existing s 18C (or its replacement by the new s 51), there is no element of objectivity, as presently found in the words “reasonably likely to offend”. It appears to me the new Bill contains a subjective test of being offended.
There are 18 separate “protected attributes” set out in section 17 of the draft Bill, seven of which apply only in the employment context. These are wide ranging and, in a number of respects, novel. One such attribute is “race”. This is not just redundant. It extends the protection of proposed s 51 because of the absence of an objective element.
The inclusion of “religion” as a “protected attribute” in the workplace, appears to me, in effect, to make blasphemy unlawful at work, but not elsewhere. The controversial Danish cartoons could be published, but not taken to work. Similar anomalies could arise with other workplace protected attributes, eg. “political opinion”, “social origin”, “nationality”.
Further, each of the four existing Commonwealth anti-discrimination Acts proscribe publication of an advertisement or notice which indicates an intention to engage in discriminatory conduct. Section 53 of the new omnibus Bill goes further into freedom of speech territory, by extending this proscription beyond advertisements to any publication.
The new Bill proposes a significant redrawing of the line between permissible and unlawful speech. This is so, notwithstanding the ability to establish that relevant conduct falls within a statutory exception. A freedom that is contingent on proving, after the event, that it was exercised reasonably or on some other exculpatory basis, is a much reduced freedom. Further, as is well known, the chilling effect of the mere possibility of legal processes will prevent speech that could have satisfied an exception.
When rights conflict, drawing the line too far in favour of one, degrades the other right. Words such as “offend” and “insult”, impinge on freedom of speech in a way that words such as “humiliate”, “denigrate,” “intimidate”, “incite hostility” or “hatred” or “contempt”, do not. To go beyond language of the latter character, in my opinion, goes too far.
None of Australia’s international treaty obligations require us to protect any person or group from being offended. We are, however, obliged to protect freedom of speech. We should take care not to put ourselves in a position where others could reasonably assert that we are in breach of our international treaty obligations to protect freedom of speech.
James Spigelman's Human Rights Day Oration "Hate Speech and Free Speech: Drawing the Line" was delivered before the Australian Human Rights Commission in Sydney on December 10, 2012
 See Jeremy Waldron “Security and Liberty: The Imagery of Balance”(2003) 11 Journal of Political Philosophy 191, especially at 198-199
 See Berkey v Third Avenue Railway Company 244 NY 84 at 94-5 (1926)
 I have discussed these issues in James Spigelman “The Forgotten Freedom: Freedom from Fear” (2010) 59 International and Comparative Law Quarterly 1 at pp 22-28
 Bendix Autolite Corp v Midwesco Enterprises Inc 486 US 888 at 897 (1987)
 Jeremy Waldron The Harm in Hate Speech Harvard University Press, Cambridge, Massachusetts, 2012. Waldron develops the analysis he presented in his 2009 Holmes Lectures “Dignity and Defamation: The Visibility of Hate” (2010) 123 Harvard Law Review 1596.
 See Meir Dan-Cohen (ed), Jeremy Waldron Dignity Rank & Rights Oxford Uni. Press, 2012.
 Ibid pp 105-107
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