Workplace banter could soon be a thing of the past if draft legislation currently before a senate inquiry is passed – and the proposal has sparked outrage among Australia’s top legal minds.
According to the Law Council of Australia, under the Labor government’s proposed overhaul of discrimination laws workplace banter, if perceived by a bystander as offensive, insulting and intimidatory, could spark costly lawsuits for employers.
The Law Council formally submitted to the inquiry that the bill goes too far, and has the potential to unduly curtail free speech. The peak body of lawyers said the new bill “… means, for example, that an informal verbal exchange between co-workers that involves a derogatory comment about a person's sex could fall within the definition of discrimination, if one of the parties to the exchange or anyone who hears the exchange and shares that (sexual) attribute, is offended or insulted by the comment,” its submission reads.
If taken before a court, the arbitrator would then apply “a subjective test based on the feelings or reaction of the person aggrieved”. “The application of this test may result in liability for conduct that falls outside the scope of conduct that has previously been considered as the appropriate domain of discrimination law.”
Off-limits topics of conversation could include age, sexual orientation, immigrant status, marital or relationship status, nationality or citizenship, political opinion, pregnancy, religion and social origin.
The bill has been criticised by high-profile thought leaders including former NSW chief judge Jim Spigelman, who said such a law would set Australia apart from other liberal democracies. “The freedom to offend is an integral component of freedom of speech. There is no right not to be offended,” Spigelman told The Australian.
The Law Council recommends the government delete the provision or replace it with more lenient language used in state and territory laws.
Attorney-General Nicola Roxon has not publicly commented on individual submissions, but a spokeswoman said: “The main objective of this project is to simplify and consolidate many laws into one. If the Senate inquiry identifies the drafting goes well beyond this, the government will closely consider the recommendations.”