Again offence prevails over free speech
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.