TONY JONES, PRESENTER: This story is about the bigotry debate and the Abbott Government's proposed changes to the Racial Discrimination Act have drawn a wave of criticism from the Opposition and leading figures in the Indigenous, Jewish and other ethnic communities. Well the Prime Minister insists the changes will bolster free speech while adding strong provisions against racial vilification. The Human Rights Commission is tasked with receiving complaints about racial discrimination. The commission's president, Professor Gillian Triggs, joined us here in the studio just a short time ago.

Gillian Triggs, thanks for joining us.

GILLIAN TRIGGS, PRESIDENT, HUMAN RIGHTS COMMISSION: Thank you for having me.

TONY JONES: Now, George Brandis says people do have the right to be bigots. In a free country, people do have rights to say things that other people find offensive or insulting or bigoted. What would be the implications to public discourse if that concept is ultimately written into the law?

GILLIAN TRIGGS: Well it's a rather unfortunate remark to have made immediately before you've introduced legislation that dramatically alters our current law, but I think the point that's being missed by a broad statement that we've a right to be a bigot is that the key point about the racial vilification legislation is that it must be in public and it must be made because of race. Now, the Attorney may be right; we can be bigots at home or in a private context, but the key point about the current legislation is that you cannot be a bigot on racial matters in the public arena.

TONY JONES: But he seemed to be saying you can be - you should have the right to be bigoted in public. Is that correct?

GILLIAN TRIGGS: Well, that is certainly an interpretation one could make from this very broad statement that he's made.

TONY JONES: Well, I mean, I can only take him at his own word. Now, the Oxford definition of bigoted is, "... to be unreasonably prejudiced or intolerant". The Webster definition of bigot is, "A person who unreasonably hates or refuses to accept members of a particular group such as a racial or religious group". In fact most definitions of bigotry have race written into them. Isn't this a sort of racism?

GILLIAN TRIGGS: Well, that could very well be the implication, but I think we probably have to stick to the words at the moment that the Attorney has finally produced for his reform of a current law, and there, what he's done is to choose the notion of vilification on racial grounds.

TONY JONES: Yes. We'll come to that in more detail. You do have to look at the actual words of the proposed changes.

GILLIAN TRIGGS: That he's actually used.

TONY JONES: But when he talks about it, his intentions being that you ought to have the right to be bigoted, does that mean you ought to have the right to be racist?

GILLIAN TRIGGS: Well if we take the definitions that you've cited, and I think that's a pretty fair estimate of what the general meaning is, then it does seem to include the element of racism - most definitions include that.

TONY JONES: Let's take the case, for example, of the young woman in the AFL ground who yelled racist abuse at the Indigenous footy star Adam Goodes. Could a decent lawyer make a case with the legislation as it's now proposed that this is actually legal to do this?

GILLIAN TRIGGS: Under the current law I think you would say that this was - fell within that definition that we're all now so familiar with: insulting, offending, humiliating and intimidating. I think we could say it falls within that. But the next question that perhaps isn't understood as well as it might be is the various defences that apply. And if the defence - the claim or the words were used in good faith, fair comment, if they were accurate etc., you would have a defence. So the answer to your question is: to make that statement in the context in which she did probably would fall foul of the current legislation.

TONY JONES: But what about the legislation as it's proposed to be changed? Would it be a lot easier to make a case that that's OK to say that because you're just expressing your bigotry?

GILLIAN TRIGGS: It would and the reason is the proposed exposure draft specifically makes legal an act or comment as part of public discussion in a social context - is a paraphrasing of what is included. So, if the remark is made as a part of public discussion in a social, academic, artistic, political, religious, etc. circumstance, then that is OK, that's not prohibited. Or, to put it more positively, it's valid. So, to go back to your example of the abuse in a football match, it's entirely possible that a judge would say, "A football match is a social context. This is part of a social, public environment and it's a remark that would be protected by the new proposed legislation." Now of course I don't know how a judge is going to interpret it, but it's certainly a sort of an argument that a lawyer could make.

TONY JONES: Yeah. Senator Brandis says he does want to stop racist abuse and he says his amendments to the act will actually do that. Can you see how that would be the case?

GILLIAN TRIGGS: Well I think that the elimination of the exemptions that require the words, in this case, to be accurate, in good faith, fair comment or words of that kind, once those have been taken out - and they have been taken out - then it really means that it's fair game. You can say pretty much whatever you like on the basis that it's in a public context and it's public discussion about this range of issues, religious and otherwise.

TONY JONES: Well he says you can't because the new test, presumably for what constitutes racial abuse, is to be determined by applying the standards of an ordinary, reasonable member of the Australian community. Is there a fundamental problem with this given that the standards change from time to time?

GILLIAN TRIGGS: Well certainly and that means that a judge would always have to look at the matter from community standards as that judge believes them to be at that point of time. Now, English judges have used the notion of the "reasonable man on the Clapham omnibus"; for us, it might be the reasonable woman in the Pitt Street Mall. But the point is that judges always have to make these somewhat subjective judgments about what they think the community would think at any given point of time. Now, up to a point, all legal systems do this and judges have to grapple with that problem. But in the notorious Bolt case, the judge there felt that not only did you look at wide community expectations, but you also looked at the group that was being hurt. What would their responses be? - in this case, "fair-skinned" Aborigines or Aborigines generally, Australia's first nation's people. That is a way in which a judge can get a better sense of what community values are by looking at the victim group. This proposed amendment to the legislation would, I think, prevent that. It requires a much broader understanding of what the Australian community believes and it's of course a much more difficult test for a judge to give effect to.

TONY JONES: Going back to my earlier point, we had a period in Australia where community standards were very different on issues like this. We had something called the White Australia Policy, which was almost racism written into law. I mean, does that mean that in the future it will be OK to be outright racist because that's a community standard?

GILLIAN TRIGGS: Well, again, I think a judge would have to look at it in the context of the environment and the contemporary environment in which the matter is being decided. Community standards do change, and as you say, many decades ago we felt that White Australia Policy was more than acceptable. And that's of course changed and I must stress that. But nonetheless, I think your core point is: this is a somewhat subjective or movable feast in determining exactly what community values are and they do depend upon judges having a fair understanding of this.

TONY JONES: Now Senator Brandis says he's improving the act because before his proposed changes, there was nothing in federal law mentioning racial vilification. Is that the case and is this an improvement in any way?

GILLIAN TRIGGS: Well it is true that the legislation as it currently standards does not deal with racial vilification and I think one can say that it's not a bad thing to use a word that most Australians understand being a demeaning attack on a person's integrity or their opinions. So, to the extent that much of the debate has focused on the community's concern about the low level of the words "offend" and "insult". Now I'm not saying I necessarily agree with that view, but nonetheless it's one that the community has expressed and Senator Brandis has picked up. So it's not unreasonable for him to say, "Well, I want to find new words and one word is vilification," so, I can understand the process of logic.

TONY JONES: Actually the word vilification doesn't appear. The word vilify does appear and it's very interesting, the context. Under his bill it would be unlawful for a person to do an act, otherwise than in private, if the act is likely to vilify another person or group of persons." Further down it says, "For the purposes of this section, vilify means to incite hatred against a person or a group." Now, that's a very narrow definition of what vilify means, as you said earlier, to most people.

GILLIAN TRIGGS: That's right. I think it - but the other curious aspect of this definition is that it actually requires a third party. You've got the person making the vilifying remark or behaving in that way, you've got the victim, but you - to satisfy the definition you've also got to show that you've inspired or incited hatred in another person. So this is becoming a very complex but also very narrow definition which actually means that for practical purposes it's almost never going to be possible to prosecute.

TONY JONES: Could a way of fixing this, from your point of view - because obviously we're now in a period of negotiation - to change the definition of vilify in the proposed act to include what vilify actually means in dictionaries; that is, to demean someone, to put them down, defame them, to lower their estimation - the actual Latin meaning of it is to lower estimation?

GILLIAN TRIGGS: Well that's one of doing it. One of the great difficulties with the - with this exposure draft is that it's so - it so confines the definition of intimidation and vilification that it's highly unlikely you're going to be able to prosecute anybody at all. So one solution, if we're trying to find a middle compromise, is to open up that language in the way that you've described. Another is to reintroduce or retain the language requiring good faith or accuracy or fair comment. These are ways of improving the exposure draft that meets some of the concerns that the Attorney has in reflecting what he believes to be Australian attitudes, but avoids the difficulty of the polarised positions in which many commentators are today.

TONY JONES: Now what do your fellow commissioners think of this? You've got a new commissioner, Tim Wilson. He wanted changes to the act. Presumably he's had a chance to look at it. Presumably as group of commissioners you've been able to sit down and talk about this.

GILLIAN TRIGGS: Yes.

TONY JONES: Is he on the same page with you or is he on the same page with the Attorney-General?

GILLIAN TRIGGS: Well, despite all the concerns that were initially expressed about the appointment of Tim Wilson, he joined the six other commissioners and me as president yesterday and we went through the exposure draft and we agreed a quite extensive media release and we did it unanimously and we did it in the way we always do our business at the Human Rights Commission. And Tim's on board - Tim Wilson - and Tim Soutphommasane, who takes a rather different view, is also on board in terms of that general press release. Now I think what may very well happen in the coming weeks as we prepare a more detailed legal response to the exposure draft is it's entirely possible that one or other of the commissioners will take a separate opinion. But we're a human rights body. We welcome different points of view. If that happens, well and good. We'll cope with it.

TONY JONES: Do you all agree that the draft itself is insufficient, it is not what you actually need?

GILLIAN TRIGGS: Yes, I think that's a fair statement. It's agreed that it doesn't yet meet what we believe are appropriate legal standards and it requires considerable redrafting.

TONY JONES: Finally, if this new freedom of speech bill becomes law, will it actually be a post facto justification for what Andrew Bolt wrote in those notorious articles about those "light-skinned" Aboriginal people?

GILLIAN TRIGGS: Well I think that is probably the greatest defect with this exposure draft because it does seem to be a contrivance deliberately to ensure that a Bolt-like case would not emerge again. And one of the phrases one learns in Law school, as I did many decades ago, is bad cases make bad law. And I'm afraid that Mr Bolt was successfully prosecuted under civil law and he failed to meet the defences because of inaccuracy and lack of good faith. Now, that was the law, that is the law. To try to change the law to deal with that one case is probably, as a matter of legislative drafting and law reform, not a wise approach to law.

TONY JONES: And is that what you think has actually happened here, that it's so narrowly an attempt to post facto defend the Bolt case that it's actually failed as law?

GILLIAN TRIGGS: Well I think that's why we have an overreach. I think it's fair to say there's a genuine community concern that the words "offending" and insult" put the threshold at too low a level that. That was if you like a mischief to be addressed by reform legislation, but to go so far as to eliminate the defences of good faith and fair comment and accuracy is an overreach which I think needs to be brought back to a compromise when the Attorney finally produces a bill for Parliament to consider.

TONY JONES: Gillian Triggs, we thank very much for taking the time to come and talk to us tonight.

GILLIAN TRIGGS: That's a great pleasure. Thank you very much.