Proposed law would 'end workplace banter'

  • feed
  • Google+
by |

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.”

  • Disgusted on 8/01/2013 2:38:32 PM

    The continued attack on our freedom and democracy continues..this is no longer the lucky country, and it is certainly no longer a democracy....We live in a socialist dictatorship and its only going to get worse. I weep for our children inheriting this ridiculous PC nonsense.

  • Sue Hanley on 8/01/2013 3:53:52 PM

    I think this head line is misleading. There is no proposal to ban workplace banter. There is a proposal to review and make recommendations on a series of anti-discrimination measures. Women in particular have fought long and hard for equality and dignity in the work place. Personally, I believe we do have a right to work in an environment free of offensive remarks. The conversation should be about how this can be achieved.

  • Denis Hitchens on 8/01/2013 4:10:42 PM

    And of course that catches professional footballers and cricketers (not in that order necessarily and include other proessional 'sports'people)since it is within their workplace

    What would Warney be up for after his most recent 'dust-up'

  • Princess ?? on 10/01/2013 7:32:39 AM

    If people believe they have a right to not be offended or not listen to what they believe is "offensive", then I think they are acting like a Princess. As Spigelman said, "There is no right not to be offended.” If we don't accept that, then women need to cover up totally so not as to offend Muslim men.

    I am an atheist so I don't want to hear someone thanking their imaginary friend, does that mean that no one should be allowed to say, "Thank God"?

    What happens if someone finds the concept of Santa Claws offensive? Should that mean that only Christian decorations should be allowed at Christmas so as not to offend them?

  • Bernie Althofer on 10/01/2013 12:02:07 PM

    Workplace banter has been always will be part of life. However, people irrespective of gender or beliefs should be treated with respect and dignity, and not subjected to remarks or comments that are offensive, degrading, or intimidatory, irrespective of whether they are present or not.

    As I understand there have already be decisions regarding offensive comments targeting individuals who are not present to defend themselves. It has only been because someone has taken a stand against such comments or behaviours that workplace standards have been maintained.

    The downhill started when people started believing that they had some perceived right to use offensive, intimidating, threatening language in the workplace thinking that this is how we should live.

    When one looks at work done in relation to the use of racially, sexually driven language, one will see the links to deviant conduct and corruption. Turning a blind eye only gives consent that the use of such language or behaviours is acceptable.

    Perhaps there needs to be a better understanding about the difference between welcome or unwelcome comments.

  • Bernie Althofer on 10/01/2013 4:58:26 PM

    Workplace banter has been always will be part of life. However, people irrespective of gender or beliefs should be treated with respect and dignity, and not subjected to remarks or comments that are offensive, degrading, or intimidatory, irrespective of whether they are present or not.

    As I understand there have already be decisions regarding offensive comments targeting individuals who are not present to defend themselves. It has only been because someone has taken a stand against such comments or behaviours that workplace standards have been maintained.

    The downhill started when people started believing that they had some perceived right to use offensive, intimidating, threatening language in the workplace thinking that this is how we should live.

    When one looks at work done in relation to the use of racially, sexually driven language, one will see the links to deviant conduct. Turning a blind eye only gives consent that the use of such language or behaviours is acceptable.

    Perhaps some of the discussion could focus on what people understand to be unwelcome conduct, and whether or not the workplace culture of an organisation tolerates offensive, insulting, intimidating to the point where it becomes acceptable. It might be the case that considerable work has to be undertaken in changing workplace cultures.

  • Kirsten on 23/01/2013 2:25:46 PM

    How about we start encouraging employees to act like adults and, if you overhear something you don't like, either speak directly and calmly about your concerns to the person who said it or alternatively - just stop listening.

  • Jess on 24/01/2013 3:16:55 PM

    Why do people always talk about how things will restrict freedom of speech when Australia doesn't have a bill of rights? We have no legislated 'freedom of speech'. In fact, we have laws like defamation and contempt of court designed to curtail speech. And when speech offends someone, it is never ok. It is never your 'right' to be offensive or discriminatory.

  • Ed on 8/02/2013 5:26:41 PM

    spare me please. All co-workers and myself would be fired twice a week. This country is becoming so tied up in it's own nonsense that we're all offending ourselves!
    The problem with over legislating anything is that people lose common sense and make worse decisions when they're not regulated.

    "Kirsten on 23 Jan 2013 02:25 PM " - Yes, you are correct.

Human capital forum is the place for positive industry interaction and welcomes your professional and informed opinion.

Name (required)
Comment (required)
By submitting, I agree to the Terms & Conditions