Straw Men in the Religious Discrimination debate

An article in the Sydney Morning Herald (“Religious discrimination bill gives Australians ‘right to be a bigot'”, J Ireland, SMH 30 Jan 2020) sets up a number of “straw man” arguments so that it can knock them down and claim that the proposed Religious Discrimination Bill is harmful. I disagree.

The first paragraph offers some examples of things that the Bill “could make it legal” to say:

a boss [may] tell a gay worker “being gay is a form of brokenness”, or a childcare provider [may] tell a single mother “God will judge you harshly for taking away the child’s right to have a father”.

There is one preliminary problem- neither of the suggested statements are unlawful at the moment, except in one Australian jurisdiction under a much-criticised and idiosyncratic provision. So to say that the Bill will somehow make these thing legal to say is wrong- they are already legal.

Let me hasten to add that the fact that something is legal to say, does not mean it morally should be said! I would not support saying either of the things set out in the article’s first paragraph, in the context suggested. But the reality is that, to allow free speech in a community, we all have to put up with things being said that we don’t approve of. That I don’t approve of these comments, does not mean that they should be illegal.

The Tasmanian anomaly

First, however, what Australian law might make these things unlawful? Section 17 of the Tasmanian Anti-Discrimination Act 1998 (“ADA 1998”) makes it unlawful to “offend, humiliate, intimidate, insult or ridicule another person on the basis of” certain protected attributes, one of which is “sexual orientation” and another of which is “marital status”. This, of course, is a very low bar to cross. We can all say things which “offend” or upset others, often without meaning to. But this Tasmanian law gives what we might call (adopting the pattern of the SMH headline) “a right not to be offended”.

Courts all over the common law world have said that rights of free speech and religious freedom, along with other recognised constitutional principles, lead to the view that in fact there should be no such right. To take an example from the High Court of Australia, in Monis v The Queen [2013] HCA 4 (27 February 2013) Hayne J commented that “eliminating the giving of offence, even serious offence, is not a legitimate object or end” (at [222]), and that: “The common law has never recognised any general right or interest not to be offended” (at [223]).

While in that case the High Court was evenly divided on whether a criminal penalty could be attached to the causing of “offence”, even those members of the Court who thought it could, would have restricted its operation to “serious offence”. The logic of that decision, and of other cases dealing with free speech here and overseas, suggests that it is entirely possible that the current s 17 of the ADA 1998 is constitutionally invalid.

In any event, this is the only provision in Australia that makes it unlawful to merely “offend” someone on the basis of their sexual orientation or marital status. It is indeed explicitly over-ridden by clause 42(1)(b) of the Second Exposure Draft of the Religious Discrimination Bill (“RDB2”). (For my formal submission on RDB2 see my previous post here.)

Outside Tasmania, these remarks are already lawful

But outside Tasmania, no current Australian law would currently make the comments invented by the SMH unlawful. So that the Bill allows such comments to continue to be made is not surprising. To suggest otherwise (as the article does, not limiting its critique to the Bill’s impact on Tasmanian law) is misleading.

The suggested remarks are unlikely

There are other problems with the article’s critique. These comments might be made, but there seems no evidence that they are at all likely. After all, to take the second one, why would a childcare worker who wants to retain customers be so rude to one? The examples seem particularly unlikely. The example offered later in the article: “a receptionist in a medical practice telling a person with a disability “they have been given their disability by God so they can learn important lessons” ” suffers the same problems. First, it is not unlawful anywhere outside Tasmania. Second, it is completely unrealistic and unlikely that something like that would be said.

The Bill does not authorise all religiously motived acts

There are other statements in the article that seem incorrect. We are told that

the bill’s wide definition of “statements of belief” [mean] current unlawful acts of discrimination would “likely become lawful if based on religious belief”.

This is not at all what the draft Bill says. Clause 42(1) says that “a statement of belief, in and of itself” does not amount to discrimination. The phrase “in and of itself” (which for the lawyers out there seems to be intended to translate the more usual phrase per se) means that the provision operates only on the statement itself, considered in isolation from any accompanying actions. So it is just not true to say that any action “based on” a religious belief would be exempted from discrimination laws.

In fact, there are very few examples of situations where a statement alone (“in and of itself”) would amount to suffiently “detrimental treatment” to amount to discrimination, although there are some broad comments made by courts in the past which might allow this. (See for example Qantas Airways v Gama (2008) 157 FCR 537, at [78], though this was not a case of religious discrimination.) Clause 42(1)(a) is useful, even as it stands, to deal with those rare but possible cases. But the statement that it would of its own force justify religiously-motivated acts of discrimination is just not correct.

The right to be a bigot?

We are also told:

the practical effect of the right to make statements of belief was to establish “the right to be a bigot” … there was still room for statements that insulted, offended, ridiculed or humiliated others… the proposed bill ruled out only “serious” intimidation.

The controversial phrase “right to be a bigot”, of course, picks up a comment made by former Attorney-General George Brandis. The Bill here has no such effect; it does not establish such a right. The “right” to make bigoted and offensive remarks, is a right which already exists as part of our long tradition of protecting free speech, even speech which we don’t like and which upsets people. That is why we need a right to free speech- none of us are tempted to censor speech we agree with!

The Bill does not create such a right, then; it operates against the background of these rights. It is true that it over-rides the draconian Tasmanian law which penalises the causing of offence, etc, noted above. But in doing so it operates to remove the “chilling effect” of speech restrictions which impair the right of members of the community to have important discussions about significant issues.

The most prominent example of the attempted application of s 17 of the ADA, of course, was the attempt to sue the Roman Catholic Archbishop of Hobart, Julian Porteous, for distributing comments about the teaching of the Roman Catholic church on marriage, to Roman Catholic schools. When a law allows that type of action to be commenced it is clear that it has gone too far. Proposed clause 42 of the new Bill will provide a sensible balance to such over-reach. It does not (outside Tasmania) make the statements invented in the SMH article legal- they are already legal. The way to combat silly and offensive remarks is for other members of the community to call out such comments (if they are made).

Fundamentally this SMH piece is an argument against free speech, and for authoritarianism. But good speech does not come from adding more laws, but rather from improving culture and the human heart. The law is needed to protect only against the worst sort of speech, and such speech is excluded from the protection given by cl 42 in sub-clause 42(2): speech that is malicious or “that would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons”, or amounts to a serious criminal offence, is not protected. These seem to be sensible limits which will protect freedom of speech, and not leave us all worried about an Orwellian “speech monitor” shutting down important debates. 

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