Again of­fence pre­vails over free speech

The Bulletin - - Editorial -

ANTI-dis­crim­i­na­tion laws were es­tab­lished in Aus­tralia to pro­tect the vul­ner­a­ble, but have the po­ten­tial – as we have seen in the past – to mit­i­gate ba­sic free­doms, in­clud­ing free­dom of speech.

It oc­curred in 2011 when the Fed­eral Court found colum­nist An­drew Bolt guilty of a breach of the Racial Dis­crim­i­na­tion Act by caus­ing of­fence to a group of in­dige­nous Aus­tralians in a column pub­lished by News Corp Aus­tralia.

Now a de­ci­sion by Tasmania’s Anti-Dis­crim­i­na­tion Com­mis­sion to up­hold a com­plaint against the Catholic Church poses a sim­i­lar threat, with dire na­tional im­pli­ca­tions. It has the po­ten­tial to not only fur­ther re­strict free­dom of speech but un­der­mine re­li­gious free­doms, with ram­i­fi­ca­tions for jour­nal­ists and pub­lish­ers.

The case be­gan ear­lier this year when the Tas­ma­nian Anti-Dis­crim­i­na­tion Com­mis­sion ac­cepted a com­plaint over a pam­phlet dis­trib­uted by the Catholic Church in sup­port of tra­di­tional mar­riage.

The com­plaint was is­sued by an ac­tivist Greens can­di­date, Mar­tine De­laney, who was of­fended and hu­mil­i­ated by the con­tents of the pam­phlet, ti­tled “Don’t Mess with Mar­riage”. Ms De­laney be­lieves the pam­phlet was dis­re­spect­ful and sent out neg­a­tive mes­sages about same-sex cou­ples.

Un­der the im­plied right of po­lit­i­cal free­dom of ex­pres­sion in the Aus­tralian Con­sti­tu­tion, the Catholic Church – or any or­gan­i­sa­tion or in­di­vid­ual in the com­mu­nity – should be able to ex­press a view on an is­sue that will be put to a na­tional plebiscite next year, with­out the threat of le­gal ac­tion.

How­ever, the Tas­ma­nian Anti-Dis­crim­i­na­tion Com­mis­sion has shown it be­lieves oth­er­wise in find­ing the Aus­tralian Catholic Bish­ops Con­fer­ence –which dis­trib­uted the pam­phlet na­tion­ally to par­ents of chil­dren at Catholic schools – had a case to an­swer un­der the state Act.

In no­ti­fi­ca­tion of its de­ci­sion, the com­mis­sion said there was a pos­si­ble breach through “con­duct that is of­fen­sive, in­tim­i­dat­ing, in­sult­ing or ridi­cul­ing of Ms De­laney and the class of same-sex at­tracted peo­ple”. Ms De­laney is a trans­gen­der former male now liv­ing in a same-sex re­la­tion­ship with a woman in Ho­bart.

As suc­cess­ful con­cil­i­a­tion be­tween the two par­ties is un­likely, Tasmania’s Anti-Dis­crim­i­na­tion Com­mis­sioner Robin Banks in­di­cated the com­mis­sion would run a na­tional test case be­cause of “is­sues of pub­lic im­por­tance”. The Catholic bish­ops were given 21 days to re­spond.

The ram­i­fi­ca­tions from this ac­tion, if it is al­lowed to run its course, are pro­found. It can ef­fec­tively deny churches the right to ad­vo­cate their be­liefs, and fur­ther di­min­ish free­dom of speech and our democ­racy.

News­pa­pers, even if pub­lish­ing in the pub­lic in­ter­est, also are in the cross-hairs. Legally, pub­lish­ers are ex­posed to sim­i­lar com­plaints from of­fended groups if ed­i­tors choose to print these views. The right to pub­lish could be de­fended through the courts, but at a sub­stan­tial fi­nan­cial im­post to the pub­lisher in mount­ing a case.

Anti-dis­crim­i­na­tion law is a fer­tile ground for ac­tivists be­cause of loosely-framed leg­is­la­tion across the states – and even fed­er­ally – that can be eas­ily abused. It is an af­front that laws to pro­tect in­di­vid­ual rights can be used in this man­ner. Per­sonal of­fence should not be grounds for re­strict­ing the rights of oth­ers to free­dom of ex­pres­sion. Dare we say, the of­fended party has the right to put a con­trary view in a democ­racy, in­stead of seek­ing le­gal re­dress that can emas­cu­late demo­cratic prin­ci­ples.

Com­mon sense says the com­mis­sion find­ing against the Catholic bish­ops should be tested in a proper court be­cause of its Con­sti­tu­tional over­tones, in­stead of a tri­bunal of such lim­ited ju­ris­dic­tion. How­ever, to mount a case again would come at a cost to the plain­tiff prior to any de­ter­mi­na­tion by a court.

Politi­cians, as al­ways, have been re­luc­tant to step up to the plate. Former prime min­is­ter Tony Ab­bott vowed prior to the fed­eral elec­tion in 2013 to amend sec­tion 18C of the Racial Dis­crim­i­na­tion Act, in the light of the Bolt de­ci­sion.

Mr Ab­bott ar­gued the de­ci­sion se­verely lim­ited free speech, but later re­neged be­cause of con­cerns by vo­cal eth­nic groups prior to the re­lease of na­tional se­cu­rity leg­is­la­tion – it­self with the ca­pac­ity to limit the abil­ity of me­dia to pub­lish in the pub­lic in­ter­est.

His suc­ces­sor, Malcolm Turn­bull also is re­luc­tant to make any changes. Fam­ily First sen­a­tor Bob Day has pro­posed a pri­vate bill to re­move the words “of­fend” and “in­sult” from 18C, which he be­lieves would strengthen free­dom of speech with­out weak­en­ing its racial vil­i­fi­ca­tion pro­tec­tions. De­spite sup­port among Coali­tion ranks, the pro­posed amend­ment is un­likely to be put any time soon.

Mean­while, there has not been one word as yet from any­one in Can­berra over the di­rect threat to im­plied rights un­der the Con­sti­tu­tion from the Tas­ma­nian ac­tion.

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