Free speech and the plebiscite (part 2)

An article in today’s press, “Call to suspend hate laws ‘disgraceful’: Gillian Triggs” reports comments of the Australian Human Rights Commission President Gillian Triggs on proposals to protect free speech in the same sex marriage plebiscite, which I commented on yesterday. As a number of the points made in today’s article were not dealt with in yesterday’s blog, I thought it might be helpful to provide a response. Readers should of course read the previous post first, to get the proper context.There are a number of comments that Professor Triggs made which seem to me to be somewhat doubtful. She fails to mention one of the Australian laws which prohibits inciting hatred on the grounds of sexual orientation; she refers (at least as reported) in a puzzling way to protection of religious freedom under the Constitution; and I must say I have to disagree with her statement that the law on sexual orientation “vilification” always sets a “very, very high threshold”. I have the greatest of respect for Professor Triggs, but on these points I think she is mistaken.

Australian laws forbidding “hate speech” based on sexual orientation

Professor Triggs is quoted as saying that “only Queensland, NSW and the ACT made it unlawful to incite hatred on the basis of sexual orientation”. She fails to mention s 19 of the Tasmanian Anti-Discrimination Act 1998. This section relevantly provides:

Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of – …


(c) the sexual orientation or lawful sexual activity of the person or any member of the group…

Hence there at least 4 Australian jurisdictions which contain what might be called “hate speech” provisions, outlawing speech which incites hatred etc on the basis of sexual orientation. This Tasmanian provision is not the same as s 17 of the Act, discussed in my previous post, which is what I called there an “offensive speech” provision. Section 19 is a separate and additional clause.

Professor Triggs is then quoted as follows:

While Tasmania takes a broader approach, Professor Triggs said there was no rush of findings against free speech in the state.

Presumably she is referring to s 17 by noting the “broader approach”. While there may not be a “rush” of findings against free speech, there is indeed a case which may operate as a “straw in the wind” foreshadowing a coming hurricane. In a previous post I referred to a note on the decision of the Tasmanian Anti-Discrimination Tribunal in Williams v Threewisemonkeys and Durston [2015] TASADT 4 (30 June 2015). In that case there was a complaint by a homosexual person that a document circulated in Tasmania giving statistics and information about homosexuality was offensive. The decision at para [1] describes the document in this way:

“This pamphlet stated that ‘homosexuality should not be tolerated’ and that ‘Scripture rejects homosexuality as utterly abominable’ and set out alleged statistics on lifespan expectations and causes of death for gay men and lesbians compared to heterosexual men and women.”

The Tribunal found a breach of both sections 17 and 19. On s 17 it commented at [28]:

The Tribunal accepts the submission of the complainant that the conduct of the respondent in publishing and distributing the Homosexuality Stats pamphlet contravened s17 on the basis of targeting the sexual orientation of homosexuals. This seems to be the very purpose of the pamphlet which begins with the statement: ‘It is warned that homosexuality should not be tolerated, and this will benefit both the individual and society’ and then sets out statistics which clearly cannot be substantiated. The Tribunal is satisfied on the evidence that the complainant and others were offended by this material and that it was conduct which humiliated, insulted and ridiculed homosexuals on the basis of their sexual orientation and that in the circumstances of this case a reasonable person would have anticipated that the persons in the situation of the complainant would be offended, humiliated, insulted or ridiculed. Thus, the Tribunal finds that this particular category of prohibited conduct is made out.

It seems clear that this approach, applied to an argument against same sex marriage, might also result in a finding of breach.

Constitutional protection of religious freedom

Professor Triggs is reported as saying:

the right to freedom of religious views was one of the best-protected rights in Australia because it was entrenched in the Constitution

This is true to some extent; section 116 of the Constitution prevents Federal law from unduly impairing religious freedom. (See my  paper giving an overview of the area.) But it is clear that s 116, at least as currently interpreted, provides no barrier to State law which does this. So even if, as seems to be implied, those who may oppose same sex marriage on religious grounds might receive some additional protection from s 116 if sued under Federal law, the provision will not assist in relation to State law.

However, although not mentioned, it may be worth noting that, ironically, there is in fact some Constitutional protection for religious freedom in Tasmania itself. The little-known s 46 of the Tasmanian Constitution Act 1934 provides:

Religious freedom

(1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

(2) No person shall be subject to any disability, or be required to take any oath on account of his religion or religious belief and no religious test shall be imposed in respect of the appointment to or holding of any public office.

While the effect of ordinary legislation breaching the Tasmanian Constitution Act is not entirely clear, it seems at least plausible to suggest that it should be presumed that an ordinary Act of the Tasmanian Parliament is not to contradict the State Constitution unless it does so with clarity. A provision that penalizes mere “offence”, if linked with “sexual orientation” as a protected ground, may be used to try to “shut down” religious speech that presents the traditional view of a number of major religious groups, that homosexuality is not part of God’s plan for humanity, and that sexual intercourse ought to only take place between the parties to a heterosexual marriage. (The prime example here, of course, is the action initiated under s 17 against the Roman Catholic Archbishop of Hobart, previously noted.)

Hence it is possible that s 17 may either be invalid in its operation in respect of religious speech, or else need to be “read down” so as not to interfere with that area. In either case the argument for its repeal is strong. However, even if it should prove to be invalid (either under State law or by virtue of its breaching the implied Constitutional right of free political speech), such a determination by a superior court is likely to take some considerable time and expense. Hence the sensible suggestion by the ACL that a provision of the Commonwealth law establishing a plebiscite make it clear up front that s 17 will not prevent free and polite discussion of the issues.

In the Durston case noted above, the Tasmanian Tribunal rejected any religious freedom defence.

Is the bar already “high”?

Professor Triggs is reported as saying that:

“It is a very, very high threshold,” she said, countering the ACL argument that current laws would make the “no” camp vulnerable to “the constant threat of quasi and full-blown legal action” during the plebiscite.

Hopefully enough has been said above to cast some serious doubt on this in relation to s 17. But let us apply the comment to the true “hate speech” provisions which require incitement of others to hatred, etc. Is it clear that a simple argument against same sex marriage could never be plausibly said to be “hate speech”? No, it is not true, as demonstrated by the Durston case noted already. As well as a finding of s 17 “offensive speech”, the Tribunal found that the relevant pamphlets were a breach of s 19, the “hate speech” provision. At para [35] the Tribunal said:

The Tribunal accepts the submissions of the complainant that the conduct of the respondent in publishing and distributing the Homosexuality Stats pamphlet contravened s19. The distribution of the pamphlet to over 3000 households satisfies the requirement of a ‘public act’ within the meaning of the section. The content of the pamphlet is likely to incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of homosexuality (meeting the ground of s19(c) which refers to ‘sexual orientation or lawful sexual activity of the person or any member of the group’). Indeed, the very wording of the pamphlet indicates the intention to warn people away from homosexuality which the pamphlet states is rejected by the Scriptures as ‘utterly abominable’.

It should be no surprise that some may read the “hate speech” provisions so broadly. After all, as noted in part 1 of this comment yesterday, the United Kingdom Parliament when it introduced same sex marriage, felt it necessary to introduce an explicit provision proving a defence against “hate speech” laws in relation to discussion of sexuality and marriage issues.

It is worth repeating comments made by the ACL in today’s press report on these points:

“None of our arguments vilify or hate and neither should they. The arguments are not the problem. The laws are the problem. In particular, the abuse of the laws and legal processes by activists,” managing director Lyle Shelton said.

“State-based human rights commissions are often weaponised by activists against those with different views.”

Concluding conclusion

To sum up the position that has been presented in these two posts, I would like to make 6 points.

  1. I reject, and all decent commentators reject, any use of speech designed to incited hatred or contempt for persons based on their sexual orientation. “Hate speech” in this sense is wrong and should never be used.
  2. However, “hate speech” laws have been used in the past, wrongly, to attempt to shut down debate of controversial ideas or criticism of particular sexual behaviour. The laws should not be used in this way.
  3. Because there is a danger of this happening, as can be seen from the two recent Tasmanian cases (the Durston decision and proceedings pending against Archbishop Porteous and others), it would make sense for the Commonwealth Parliament, when authorising a plebiscite on same sex marriage, to explicitly provide clarification that use of State “hate speech” laws for purposes for which they were not designed, will not be possible.
  4. While I also reject the use of speech simply designed to “offend” or “ridicule” others on the basis of their sexual orientation, laws which operate to punish such offence etc are far too restrictive of free speech.
  5. Arguable such “offensive speech” laws may in fact be constitutionally invalid. But showing this to be the case may be time consuming and expensive.
  6. Hence it would also be sensible for the Commonwealth Parliament to provide that any such State laws cannot be used in this way to shut down the plebiscite debate.

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