MARK COLVIN: A former chief justice of New South Wales says the Federal Government's proposed Human Rights and Anti Discrimination Bill is a threat to free speech.

James Spigelman is now the ABC chairman, but it was his legal knowledge he brought to bear at the Human Rights Commission Awards ceremony today. He says the bill tries to preserve the idea that no one should be offended by hate speech.

In particular he told Tim Palmer, that he was worried that causing offence could be enough to break the law when it comes to talking about not just race but a whole raft of protected areas, including age, gender and even political opinion.

JAMES SPIGELMAN: I don't believe that there's any other country with which we would compare ourselves that makes offending conduct unlawful.

TIM PALMER: As things stand, or as the bill would extend things?

JAMES SPIGELMAN: Well in both cases. At the moment the racial vilification provision of the existing Racial Discrimination Act goes beyond insulting or intimidating, you know, words of that force, to extend to conduct that only offends people.

We've long had legislation, separate legislation for discrimination on the basis of age, disability or gender. That legislation never extended as far as the Racial Discrimination Act did to encompass offending conduct. And the proposal in the bill that's been set out for discussion would do that.

If all it does is offend someone then I think it goes too far in terms of cutting down freedom of speech.

TIM PALMER: All of these things though depend on subjectivity don't they? I mean you draw a distinction here somehow between humiliate and offend. So how is that distinction drawn?

JAMES SPIGELMAN: I think humiliate is an objective standard. When it comes to conflicting rights, whether there is a right to human dignity on one hand, which hate speech legislation is directed to protect, or freedom of speech on other words, well it's always difficult to draw the balance. In my view, words like humiliate incite hatred, contempt. They are reasonable restrictions on freedom of speech. There are many such restrictions, freedom of speech is not an absolute.

But the question is whether it goes too far when it goes to merely offending conduct. My view is that it does. I think that the right to offend is inherent in the right to free speech. That doesn't mean that it's always tasteful or measured, but one can't sit back and judge all exercisers of free speech and make sure they are sufficient for polite conversation - free speech goes beyond polite conversation.

TIM PALMER: I think you refer to dignity as a public good, presumably on that basis, hurt feelings aren't a public good. Is that what you're saying?

JAMES SPIGELMAN: I mean it is a good, a public good, but the question is whether the law should make conduct that affects feelings unlawful, in circumstances where the relevant conduct is speech.

This is something on which reasonable minds can differ as to where to draw the line. My view is that drawing the line beyond the language of the character that I've mentioned - hatred, contempt, humiliation; such language - goes too far.

TIM PALMER: You raise one particular example, because it's not going to be this omnibus legislation a person might be able to publish, for example, the Danish cartoons offending the prophet, but not not bring those into the workplace.

JAMES SPIGELMAN: When you have omnibus legislation of this character it can bring up anomalies of that kind. The workplace-prohibited characteristics include not only religion but also political opinion, industrial history, medical history. They don't apply outside the workplace.

TIM PALMER: Social origin would be protected, what does that mean?

JAMES SPIGELMAN: I don't know, I don't know what that means. In the old days it would have been were you descended from convicts? In Australia I think that's now no longer something you discriminate against, it's something you triumph and trumpet.

TIM PALMER: Possibly nowadays that would make unlawful to call someone a bogan at work for example, possibly?

JAMES SPIGELMAN: I'm not sure if that's a social origin, it seems to be just a sort of term of abuse, but of its own character. But look, I don't know is the answer what that - It no doubt has a history in workplace legislation but I don't know what that history is.

TIM PALMER: Can I ask, your overwhelming impression then from this, if you say no other liberal democracy would go close to us in having a law that enshrines the preservation of your good feelings, that you shouldn't be offended on a whole range of grounds; has Australia become a very thin-skinned society do you think? Or is government developing for us the ability to be thin-skinned?

JAMES SPIGELMAN: The racial vilifications provisions have a very strong history. It goes back to the Holocaust in World War II, it was one of the earliest of the international human rights treaties; it is reflected in strong legislation throughout the world. I don't know anywhere that uses language like offend as part of the declaration of unlawfulness, even in that context.

MARK COLVIN: The ABC chairman and former New South Wales chief justice James Spigelman talking to Tim Palmer.