Tasmanian Anti-Discrimination Act sets a low bar for free speech, The Weekend Australian

Anti-discrimination legislation shouldn’t allow law to be used as a weapon in political debate.

Last week, the Tasmanian Anti-Discrimination Commission accepted a complaint against Catholic archbishops — including the Archbishop of Hobart, Julian­ Porteus — for publishing a booklet titled Don’t Mess with Marriage. The booklet states the Catholic doctrinal position on marriage, including that marriage should be a union between a man and a woman and that it is the best relationship for rearing children.

The views of the booklet also reflect Australia’s marriage­ law.

The complaint was made by a woman who argued that the booklet violated section 17 of the state’s Anti-Discrimination Act.

Section 17 prohibits “conduct which offends, humiliates, intim­id­ates, insults or ridicules another person on the basis of” several attributes including sexual orientation, gender identity and marital status, among many other­s. (Premier Will Hodgman this week announced a review of the act, acknowledging concerns that the looming test case could restrict debate in the lead-up to the same-sex plebiscite.) After initially accepting the complaint, the commission asked the parties to consider conciliation. That option has been accepted.

As a statutory officer, it would be inappropriate to comment on the case while it is in progress. It is also unnecessary.

If your concern is from a free speech and religious freedom perspective, the issue is not the complaint. The issue is whether the law should allow for the complaint to be made.

Like the federal Racial Discrimination Act, the Tasmanian Anti-Discrimination Act sets a low bar for restricting free speech by defining­ limits based on vague tests such as “offend” and “insult”, and also adds “ridicule”.

Unlike the federal law, the Tasmanian law has no exemption for expressions made reasonably and in good faith.

If it did, it would ameliorate the excesses of the law but would not fix the fundamental rights-violatin­g nature of the law. By setting a low bar and prescribing the lawful basis for exercising freedoms, the government has reversed a central pillar of liberal democracy and a free society: that all is legal unless specifically made illegal.

As a consequence, individuals cannot know how far they lawfully can exercise their freedoms without the risk of being hauled before a government tribunal or court to seek permission. It leaves them to face a simple choice: self-censor, or risk a complaint and then run the slow and potentially costly legal gauntlet to be cleared. The firm hand of censorship may not be imposed, but the soft hand is cast and chills speech, even if the expression is later found not to violate the law.

The damage caused by the overreach of the law is already done. In the past, courts have had to read down these type of laws because they’ve identified that a black-letter interpretation would silence speech that may cross the line of social acceptability but should be lawful.

Having courts read down laws is not a solution either.

If Australians need to complete a law degree to understand what opinions they can express then we have already surrendered too much of our freedom to exercise one of our most basic liberties. That scenario favours the wealthy and privileged who can afford legal advice.

The tragedy is that these laws can be refashioned to focus on the mischief that advocates claim they are necessary to target. The principal objective of these laws is to deal with issues of public harassment, such as people being abused on a train because of their race, or on the streets because­ of their sexual orient­ation.

Properly defined, public harassment is about diminishing another­’s capacity to freely exercise their rights through insistent, deliberate and targeted intimid­ation.

That’s not the same as expressions that merely “offend”, “insult­” or, in Tasmania’s case, “ridicule”.

Understandably, the direction of the Tasmanian case could have a significant impact on the extent of the public debate on marriage for same-sex couples in the lead-up to a plebiscite on the same issue.

Those who oppose change rooted in traditionalism or religion­ are concerned that they’ll be left vulnerable if the law could be used unfairly to target them exercising their freedom.

They should reflect on that feeling of injustice.

It’s also how gay and lesbian Australians feel about the law being used to stop their committed relationships being recognised as a marriage as enjoyed by their fellow citizens.

The solution to move our country forward from this debate has always been to find a way to use the law to enlarge the freedom of all, including allowing same-sex couples to access civil marriage and preserving religious freedom.

Whether that occurs is in the hands of religious communities. In reforming the law, those opposed­ should be participants in discussing the model to protect their rights. Simple opposition is adopting the same tactics to suppress the freedom of others in the same way that you’re complaining about now.

This article first appeared in the Weekend Australian on 21/11/2015 and can be found here.

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