Free speech is being restricted by ill-defined anti-discrimination law that has taken the carefully targeted definition of workplace sexual harassment and applied it to public speech.
The Tasmanian case against Catholic bishops over a booklet that argues against marriage for same-sex couples has highlighted the problem of how anti-discrimination law can restrict free speech. Keeping the Tasmanian law intact in the lead-up to a plebiscite on the definition of marriage risks chilling debate so long as the law seeks to stop expressions that may “offend”, “insult” or “ridicule”.
The impact would be nationwide. With a national media market it is possible a statement could be made in any state and then replayed in Tasmania and fall foul of the law.
The intention of the offending section 17 of the Tasmanian Anti-Discrimination Act is to stop people being bullied or harassed. But that isn’t achieved by its current wording.
Its wording sets a test for restricting speech based on subjective and loose terms, particularly when we are talking about matters of personal morality.
We can’t be free to debate important public policy issues when restrictions on free speech are so heavy-handed. The law needs to change.
The problem with Section 17 of the Tasmanian Anti-Discrimination Act has arisen because it was modelled on Section 28A of the Federal Sex Discrimination Act.
This should prompt the question: why is the Sex Discrimination Act uncontroversial, but not the Tasmanian law? The answer is straightforward.
Despite including the threshold of “offended, humiliated or intimidated”, section 28A of the Sex Discrimination Act is designed to address workplace conduct. It wasn’t designed to cover general expressions of opinion in public.
In her speech supporting the introduction of the Sex Discrimination Act, then senator and current Age and Disability Discrimination Commissioner Susan Ryan argued: “The Bill does not attempt to deal with all forms of sexual harassment which can be characterised as discriminatory in nature.” Instead, “it is linked to a belief that rejection of an unwelcome sexual advance, and unwelcome request for sexual favours or other unwelcome sexual conduct would disadvantage the person in relation to employment or educational studies”.
The Tasmanian general anti-discrimination law took this test for workplace sexual harassment — a specific sort of prohibited conduct — and then applied it to all expressions in the public square.
On introducing the act, the then Tasmanian attorney-general, Judith Jackson, said: “Sexual harassment is prohibited under clause 17 … incorporat(ing) the definition of sexual harassment in the Sex Discrimination Act 1994.”
Like the federal Act, the law at the time was designed to focus on sexual harassment that may lead to “loss of employment, loss of income or loss of accommodation” on the basis of issues predominantly around gender. But in 2012 it was expanded to include many identity groups and went beyond predominantly workplace issues to deal with public expressions.
That is where the problem has arisen.
The same problem was also replicated with the design of section 18C of the Racial Discrimination Act. On introducing the Bill to include 18C, the then attorney-general, Michael Lavarch, said the requirement that “the behaviour complained about should ‘offend, insult, humiliate or intimidate’ is the same as that used to establish sexual harassment in the Sex Discrimination Act”.
And like the Tasmanian law, it wrongly adapted a test for workplace harassment for public harassment. Workplace harassment and public speech are not the same thing, and should not have the same test.
In assessing the consequences of an expression, context always matters. Workplace harassment is different in nature because of the clear power relationships between employers, management and employees, and the degree that people feel compelled to stay silent or accept behaviour.
Workplace harassment isn’t just sexual harassment. It can also include conduct that seriously humiliates or denigrates.
The same does not equally apply in the public square.
Progressing sensible reform necessitates an alternative proposal that addresses the concerns of those who want freer speech and others who want to enjoy the protection of the law to stop unjustified harassment.
A term like “hate speech” might rhetorically sound clever, but it means little. One person’s hate speech can easily be another’s deeply held moral or religious belief.
The solution is to redraft the laws to define harassment to more carefully reflect the very different sorts of conduct they are intended to capture.
Workplace harassment should focus on seriously humiliating, seriously denigrating or intimidating behaviour. Public harassment should focus on two explicit types of acts.
First is conduct that intimidates. That captures conduct to make people feel unsafe and stop them exercising their freedom, such as deliberate abuse on public transport. Second is expressions designed to deny another person’s humanity. That captures conduct designed to justify denying rights and freedoms to others because they are deemed less than human. This is a particular concern of the Jewish community after the experience of the Holocaust.
Because the definition of public harassment would be clear, it would not need to be accompanied with complementary exemptions of the type of speech that can be permitted, such as occurs under Section 55 of the Tasmanian Act, or 18D of the Racial Discrimination Act.
More importantly, these definitions would leave Australians free to debate important issues and ideas that may offend, insult or ridicule, but stop the unjustified harassment we all despise and is not consistent with free speech.
This article appeared in the Weekend Australian on 26/12/2015 and can be found here.