Amendments don’t fix the real problem

Dealing with the wasps while ignoring the nest will not fix the real problem. This is how we view the government’s proposed amendments to the Anti-discrimination Act.

As long as it continues to be an offence in Tasmania to hurt someone else’s feelings, people will continue to be unfairly ‘stung’ by the law and free speech will be constrained.

Free speech is fundamental to a healthy society. The United National Human Rights Council has stated: “The exercise to the right of freedom of opinion and expression is one of the essential foundations of a democratic society”. ACL appreciates the government’s intentions to address the unfortunate case of Archbishop Julian Porteous. The Archbishop had to endure a lengthy investigation for distributing a supposedly ‘offensive’ pastoral booklet on the church’s views on marriage.

However, the amendments don’t achieve the stated goal – to better protect freedom of speech for all Tasmanians. And yes this holds true with or without a plebiscite on marriage. Section 17(1) of the Act (the section under which the Archbishop was accused) is the real culprit. Yet the government has chosen to leave it untouched. This section prohibits “conduct which offends, humiliates, intimidates, insults or ridicules another person” on the basis of 20+ attributes. These words are very subjective as former Human Rights Commissioner Tim Wilson explains, “…the Tasmanian Anti-Discrimination Act sets a low bar for restricting free speech by defining limits based on vague tests such as ‘offend’ and ‘insult’.”

What offends one may not offend another. Such a ‘vague’ test puts the onus on the Anti-Discrimination commissioner’s interpretation of these words.

Data obtained from Equal Opportunities Tasmania highlights this with 126 complaints made under Section 17(1) in the past financial year. When compared to complaints made relating to hate speech in Section 19, which sets the bar much higher, there were significantly less complaints made – 54 complaints.

Even if all those 126 claims were dismissed or rejected the process of being told you may have broken the law injects fear into the community. For each case there are likely 10 people who know about it and may now feel more reluctant to speak up about controversial issues.

ACL supports those like Tim Wilson who are calling for Section 17(1) to be removed from the Act – bringing it into line with other states’ legislation. What has the government proposed instead? To give some Tasmanians like the Archbishop a defence – but only if their conduct was for a ‘religious purpose’. Many people don’t have a religious basis for their objections to contentious issues like same-sex marriage. They will not be covered by these changes.

Atheist commentator Brendan O’Neill, who was recently in Australia speaking against same sex marriage, stated, “Everywhere gay marriage has been introduced it has battered freedom, not boosted it. Debate has been chilled, dissenters harried, critics tear-gassed. Love and marriage might go together like horse and carriage, but freedom and gay marriage certainly do not."

Were Brendan to have made those comments in Tasmania he could well have been in breach of the law. Free speech is a fundamental freedom vital for sustaining a healthy society. Without it robust debate on important issues affecting the community will be hampered. This democratic freedom must be available to all – not just those with a religious motive.

  • Mark Brown is the Australian Christian Lobby Tasmanian director.