Be careful what you defend to the death
Illustration: Simon Letch
Travelling on public transport can be traumatic. Particularly if you're the ABC newsreader Jeremy Fernandez with his young daughter on a Sydney bus, subjected to the racist rantings of an unhinged banshee. A French woman singing on a Melbourne bus was subjected to a similar tirade, but in that case it seemed to be more of a mob onslaught.
The law says people are not supposed to offend, insult, humiliate or intimidate because of someone's race, colour or ethnic origin - in public, of course; at home you can pretty much be as vile as you like.
The previous attorney-general, Nicola Roxon, had been howled down because she suggested in an ''exposure draft'' of a new anti-discrimination bill that those terms should apply across the board in all cases of discrimination by means of ''unfavourable treatment''.
Free-speech champion Tony Abbott has promised to repeal this part of the Racial Discrimination Act in its current form.
The new Attorney-General, Mark Dreyfus, says he'll be agonising over getting the balance right between free speech and ''protecting the community''.
The ABC chairman, James Spigelman, said in a speech in December to the Human Rights Commission that words such as ''offend'' and ''insult'' go too far, that they impinge on freedom of speech in ways that words like ''humiliate'' and ''intimidate'' do not.
Presumably he means the free speech protection goes a notch higher if the basic requirements of anti-discrimination protections are at the humiliation and intimidation end of the nastiness spectrum.
We're playing here with the English language and the distinctions are not always visible. In every case the line between insult and humiliation may not be clear.
But Spigelman is surely right when he says, ''there is no right not be offended''.
The long-serving Melbourne media lawyer Peter Bartlett recently said in an interview that ''the present anti-discrimination legislation we've got is a significant problem for the media''. He told the Gazette of Law & Journalism (interest disclosure: publisher is moi) that he's had to deal with discrimination complaints claiming that articles on paedophilia vilify all Catholics.
A newspaper report about a Turkish man's run-in with police has prompted a complaint that all Turks are vilified.
The Australian Financial Review had complaints from Italians in Melbourne over a drawing by Michael Fitzjames of the map of Italy which he called Berlusconia with the major cities given names like Necappi, Ponzi, Pestilenti, Spivi and so on.
It went on an on and cost the paper an enormous amount of time, energy and money. Interestingly, this case was brought under Victorian legislation, which deals with hatred and serious contempt - not offence or insult. Even at that higher standard, it still took ages to reach settlement.
Bartlett said: ''Some of these complaints are ludicrous. There are more and more of them. Regulatory authorities are not looking at them and saying 'This clearly has no merit and should be dismissed.' It is very frustrating.''
It's probably an unreasonable expectation that the number of ludicrous complaints will drop off if the law gets rid of ''offend and insult'' and just sticks with ''humiliate and intimidate''. Maybe, the Italians, Turks or Catholics will feel the humiliation rather than the offence.
While Abbott has pledged to get rid of ''offensive'' he, in his own defamation case with Peter Costello and their wives against Random House over the Bob Ellis's book Goodbye Jerusalem, was happy to be compensated for an even lower level of grief - ''hurt feelings''.
Hurt feelings are enough for Abbott to go running to the law but he won't allow anyone to seek a remedy for being offended or insulted.
In his free speech address last August he thought that the ancient common law offences of ''incitement and causing fear'' should be enough grounds for a racial vilification case.
It's not certain but he seemed to be saying that racial vilification should be left to common law, which means unelected judges. The usual tub-thumpers and guardians on the right have remained eerily silent.
Where will all this end up?
All this flag waving about free speech in Australia is nice but a bit weird. We've never been a free speechy sort of country. As the media knows, we've been an expensive speech country. Take free speech too much to the bosom and you end up like the US of A, where the First Amendment says it's OK to sell videos of small animals being crushed to death, or to strike down laws that restrict massively rich individuals and corporations buying elections.
There was a rather confusing segment about anti-discrimination laws on last Monday's Q and A.
The shadow attorney-general, George Brandis, said: ''I don't for a moment abate from my view that it's not the role of government to impose prohibitions on what people in a peaceful and orderly way are allowed to say and think.''
It sounds good but if the people of the buses were delivering their thoughts to Fernandez and the French woman in a peaceful and orderly way, as opposed to an intimidatory fashion, would it be all right?
The whole thing is fraught. Finding balances, lines in the sand and the right shades of grey will be a hard task for this raw-boned Parliament. In the meantime be careful on the buses.