Australia is involved in a debate about whether same sex marriage should be introduced. The question is being put to the electors in the form of a voluntary postal survey, the question in which is simply: “Should the law be changed to allow same sex couples to marry?”
The original intention of the current Government had been to put this question to the people of Australia in a compulsory plebiscite. This option being defeated twice in Parliament, the postal survey has been designed to be run without explicit authorising legislation. However, once it was decided that the survey would proceed, concerns were expressed that the debate might contain misleading and deceptive advertising, which would usually have been dealt with under the electoral laws (but since the survey was not being run under those laws, no such protections applied for the survey.) In addition, concerns were expressed about hateful and harmful speech on both side of the debate.
In response to these concerns, the Commonwealth Parliament today (in a rare example of swift bipartisan action) saw the introduction and enactment of the Marriage Law Survey (Additional Safeguards) Act 2017 (which has now received the Royal Assent, and become Act No 96 of 2017). The Act will come into operation on Thursday 14 September, 2017 (tomorrow, as I write.)
I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.
In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns  NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.
While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.
The second development I want to briefly note today is a decision of the Victorian Civil and Administrative Tribunal, Sisalem v The Herald & Weekly Times Ltd  VCAT 1197 (19 July 2016). This is an important and helpful decision, in my opinion, supporting free speech on religiously related issues.
Two recent news items raised interesting issues of free speech about religion and its legal consequences. One was a comment by Mr Peter FitzSimons; the other a report about an “anti-Muslim” banner being flown at a football game.
1. Peter FitzSimons
Peter FitzSimons, sports and general social commentator, is well known in Australia for his opposition to religion generally. In two articles this week he commented on the decision of a Mormon rugby league footballer, Will Hopoate, not to play or train on Sundays on the basis of his religious convictions about observing the Sabbath: see “Join me on a walk through the minefield of Will Hopoate’s decision not to play NRL on Sundays” (Sydney Morning Herald, 30 March 2016); and “The questions thrown up by Will Hopoate’s decision not to play in the NRL on Sundays” (SMH, 2 April 2016).
A recent decision in Northern Ireland, where an evangelical preacher was acquitted after being criminally charged in relation to a sermon attacking Islam, raises a number of important issues about free speech in a religious setting.
On a day when French police are still hunting for the killers who murdered journalists at the Paris office of a satirical magazine, probably because of the magazine’s publication of material mocking Islam and Muhammad, is there anything that can be said about law and religion issues for Australia?
The support expressed for freedom of speech in the wake of this terrible event is real and important. But there are of course important questions about the limits of free speech.
“Freedom of speech”, like any other human right, is never and has never been absolute. We restrict speech where it causes physical harm to people (such as an incorrect health warning on medication, or the classic example of someone who shouts “fire” in a crowded theatre and causes death and injury in the resulting stampede.) We also make some speech unlawful where it incites direct violence against others, or falsely destroys someone’s reputation ( through the law of defamation.)
Here the speech of the magazine in mocking sacred Islamic topics will have led, and foreseeably so, to distress and offence among some Muslim people. Indeed, when the original Danish cartoons were published, there may well have been some who were physically injured in subsequent riots, which again were reasonable predictable. Does that mean we should pass laws making it illegal to cause such offence on the ground of religion? It may be that once the current outrage has subsided to some extent, there will be calls for such laws to be enacted or enforced more vigorously.
In my view, this would be a bad idea. I think that there is some limited scope for so-called “religious anti-vilification” laws, provided however that those laws are carefully crafted to only catch speech which incites hatred or violence against persons of a particular faith. But the law should not prohibit the mere causing of “offence”, nor should it restrict robust debate about the truth or falsehood, or good or bad effects, of religions. I make the case for this in a paper which can be downloaded here.
Those who commit violence in the name of offence should be caught and dealt with according to law. It may never be possible to prevent such actions altogether. But we should not restrict freedom of speech in discussing religion because of a fear of such response.