First they came for the Catholics…

The proposed action for sexual orientation vilification against a Roman Catholic bishop for teaching what the Roman Catholic church believes about marriage, which I noted at an early stage in a previous post, is now becoming broader.

I have an opinion piece today on the issues in the online version of Eternity, “Tasmanian Anti-Discrimination Commission finds all Catholic Bishops might have a “case to answer”” (Nov 13, 2015). I had originally prepared these comments based on previous reports that the anti-discrimination claim was being made simply against Archbishop Julian Porteus, from Hobart, but I have now added a few additional remarks by way of introduction about the announcement today that the action is apparently now being taken against other Roman Catholic bishops around Australia. I encourage readers to click on the link to the Eternity article before reading the rest of this blog post.

For those who are interested in the legal background to whether a discrimination claim under one Australian State’s law can be enforced against people in another State, see Burns v Gaynor [2015] NSWCATAD 211 (14 Oct 2015), a case which raised related issues (in that it dealt with alleged “homosexual vilification” of a person who had not been named but was making a claim simply as someone of a homosexual orientation). There the NSW Civil and Administrative Tribunal held that a person who posted material on a computer in Queensland could not be held liable for a “public act” under NSW discrimination law. Similar logic would suggest that the Tasmanian law is intended to refer to conduct engaged in, in Tasmania, rather than outside that jurisdiction.

By way of some legal supplement to the Eternity piece, I just note the following extra points:

  • In a recent important decision, McCloy v New South Wales [2015] HCA 34 (7 October 2015), the majority of the High Court of Australia, while upholding the validity of the relevant State laws prohibiting donations by property developers, clarified the approach to be adopted in testing laws against this implied freedom. This detailed approach would no doubt be applied should the validity of a law such as s 17 of the Tasmanian legislation be tested in the courts.
  • It is arguable that where State legislation is very broadly worded and there is room to doubt the extent of its operation, the interpretative “principle of legality” applies in interpretation of that law, one aspect of which is that it should not be assumed that the Parliament intended to interfere with fundamental human rights without explicitly saying so. As the Steel article (cited in Eternity) itself notes, article 18 of the International Covenant on Civil and Political Rights, a treaty to which Australia is bound, provides strong protection for religious freedom, and “freedom, either individually or in community with others and in public or private, to manifest… religion or belief in worship, observance, practice and teaching”.
  • I have noted in a previous paper (at pp 13-14) that this “principle of legality” applying both freedom of speech and freedom of religion considerations was applied by the Full Court of the Federal Court of Australia in Evans v NSW [2008] FCAFC 130 to strike down provisions enacted by the NSW Government prohibiting the “annoying” of Roman Catholics participating in World Youth Day celebrations in 2008. There would seem to be a powerful argument that, just as religious believers cannot be immunized from hearing matters that “annoy” them, nor can those who oppose religious beliefs on the morality of homosexual behavior be immunized from the “offence” of hearing those views put forward.
  • Unfortunately the consideration of s 55 in the recent Durston case I mention in the opinion piece was cursory, to say the least. Having described the contents of the pamphlet concerned, the Tribunal at [38] noted that the respondent (who, as mentioned previously, was not legally represented) had not made any submissions on the defence, and then briefly dismissed the defence in the following terms: “[T]he Tribunal is satisfied that the defence does not apply, especially in the light of the requirement that the public act be done for a purpose in the public interest, which must be objectively assessed.”
  • With respect to the Tribunal, this is fairly unsatisfactory. The implication seems to be that the Tribunal has formed its own view on the policy questions discussed in the pamphlet, and decided that they are not “in the public interest”. This cannot be the way that the provision is to be read. What about the “public interest” in free speech and open discussion of controversial issues? Of course the Tribunal need not agree with the views expressed in the pamphlet, but if they are put forward to further general discussion of the issues, and not “targeted” at a specific individual, then surely the “purpose” of the activity was a matter of public interest.

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