Free speech and vilification in the marriage law postal survey

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 have previously expressed grave concerns about religious vilification legislation in general, and its implementation in some Australian jurisdictions in particular- see here and here. This legislation has some features which avoid some of those problems- in particular, it has a very tight “sunset” clause in s 27, which repeals it immediately on expiration of a “limitation period” which is defined in s 5 as ending either on 15 November 2017 (the day the Government has ordered the ABS to report the result of the survey) or an earlier date if the result is reported earlier.

However, it seems like a worthwhile exercise to spell out (for those like me, who will be commenting on the issues raised by the survey) what the implications of the Act are, and some of the (perhaps unexpected) consequences.

Overview

The Parliament has provided a helpful overview of the legislation in s 3:

As a result of the Census and Statistics (Statistical Information) Direction 2017, the Statistician is to conduct a survey to collect statistical information about the views of enrolled persons on whether the law should be changed to allow same-sex couples to marry.

This Act requires certain paid advertisements, printed material, and material intended to affect whether a person provides a response to the survey or the content of the response, to be clearly authorised. (Matter that is published or printed by the Statistician is not required to be authorised.) Under Division 1 of Part 2, the person who approves the communication is responsible for including particulars relating to the authorisation.

Separate obligations are imposed on broadcasters under Division 2 of Part 2, and Part 3. These obligations are similar to the obligations imposed by the Broadcasting Services Act 1992, and by the Commercial Television Industry Code of Practice during an election period. Broadcasters are also required to provide reasonable opportunities to representatives of organisations that hold opposing views in relation to the marriage law survey question to broadcast their views.

This Act also creates specific offences and civil penalties in relation to the survey. For example, it is an offence:

(a) for a person to receive a bribe on the understanding that the person’s decision as to whether to respond to the survey, or the content of the person’s response, will be influenced or affected; or

(b) to bribe a person, or to make a threat to a person, for the purposes of influencing or affecting whether the person responds to the survey, or the content of the person’s response to the survey.

A person may, for example, be liable to a civil penalty if the person vilifies, intimidates or threatens to cause harm to another person or persons because of:

(a) views expressed or held, or believed to be held, by the other person or persons in relation to the marriage law survey question; or

(b) the religious conviction, sexual orientation, gender identity or intersex status of the person or persons.

Television and radio broadcasters are required to try and provide “equal time” to different sides of the debate- which will be an interesting exercise. However, for current purposes I will put this to one side and focus on the two main provisions which I think may cause some problems and confusion: the “authorisation” of published material, and the “vilification” prohibition.

Authorisation

The general principle of the authorisation provisions is reasonably clear and familiar to most Australians from election advertising: that the public ought to know who has authorised a particular statement. But given that the issue here is not electing specific individuals, but rather the views that may be put forward in a survey, there are some complexities.

A key concept is the definition of “marriage law survey matter” in s 5:

marriage law survey matter means matter of any of the following kinds:

(a) matter commenting on same-sex marriage, the marriage law survey process or the marriage law survey question (other than matter printed or published by the Statistician);

(b) matter stating or indicating the marriage law survey question (other than matter printed or published by the Statistician);

(c) matter referring to a meeting held or to be held in connection with same-sex marriage, the marriage law survey process or the marriage law survey question.

Note: For example, paragraph (a) would cover matter encouraging an enrolled person to provide, or not provide, a marriage law survey response to the Statistician (except matter printed or published by the Statistician). 

Comments on the process of the survey or the question of course seem clearly to be relevant. But what is interesting to me is that this term covers “matter commenting on same-sex marriage”. This is very broad. It seems that any time anyone comments in public on the question of same-sex marriage (whether in support or opposition to the idea), then they are engaged in communicating “marriage law survey matter”, even if they don’t mention the survey at all. This will include organising a meeting to discuss the issues.

What are the limits and restrictions on such comment? Section 6 contains a number of key rules requiring “authorisation” of such comment to be made clear in the context of the comment. Section 6(1)(a) applies to what may be called “paid advertisements”, s 6(1)(b) to
“printed matter”, and s 6(1)(c) applies broadly to any such “marriage survey law matter” communicated by any person, where the matter “is intended to affect whether another person provides a marriage law survey response to the Statistician, or the content of such a response“. In other words, anyone making a communication on the topic of same sex marriage, where it might be argued that they intended to encourage someone to vote “Yes” or “No”, is covered. Presumably this will apply even if there is no direct comment on the “vote”, but the content of the communication urges support for, or opposition to, same sex marriage.

I will mainly focus on this broad “private person” provision, which seems to have the potential to be very wide. Under s 6(1)(c) a person communicating on this topic is said to be a “notifying entity”. Under s 6(5) it is required that, at the end of the communication, the “notifying entry” must include certain “required particulars”. For a communication authorised by an individual, the particulars to be included are: (4) “the name of the individual” and “the town or city in which the individual lives”.

There are exceptions to the requirements of s 6(5). Clothing as a mode of communication is exempted, under s 6(3)! (This may or may not see a spike in sales of political T-shirts!) More generally, in relation to matter that is not a paid advertisement, s 6(4) provides:

(4) This section also does not apply in relation to marriage law survey matter referred to in paragraph (1)(b) or (c) if the matter forms part of:

(a) the reporting of news, the presenting of current affairs or any editorial content in news media; or

(b) a communication communicated solely for genuine satirical, academic or artistic purposes; or

(c) an opinion poll or research relating to intentions of enrolled persons; or

(d) a communication communicated for personal purposes; or

(e) an internal communication of a notifying entity; or

(f) a communication at a meeting of 2 or more persons if the identity of the person (the speaker) communicating at the meeting, and any entity on whose behalf the speaker is communicating, can reasonably be identified by the person or persons to whom the speaker is speaking; or

(g) a live communication of a meeting covered by paragraph (f), but not any later communication of that meeting; or

(h) a communication communicated solely for the purpose of announcing a meeting.

It is a bit hard to see the logic behind some of these exceptions, and also the reason why others were not included. In particular it is worthy of note that communications for “satirical” and “artistic” purposes are exempted, but there is no explicit mention of “religious” purposes. However, if a church presented a sermon on same sex marriage or a seminar on the postal survey, presumably there would be protection provided by s 6(4)(f) for a “meeting” where the speaker would be likely to be known to the persons attending (and even, under s 6(4)(g), for a “live stream” of such a meeting over the internet, though later downloads or viewing would need to contain authorisation details.)

A question that interests me in particular is, do these provisions cover comments on a blog or on Facebook? The meaning of “personal purposes” in s 6(4)(d) is unclear; it may cover comments on a personal Facebook feed. But I will be including an authorisation notice on my blogs on this topic in future! (Actually, as this particular blog does not really express a view on same -sex marriage, it might not be thought necessary. But it is in fact probably required, since I “comment” on the “marriage law survey question” by quoting it above.)

Vilification, etc

The other major provision of the Act I want to comment on here is s 15(1), which reads as follows:

15 Vilification etc. as a result of expressing views etc. in relation to the marriage law survey question 

(1) After this section commences, a person (the first person) must not vilify, intimidate or threaten to cause harm to another person or persons if the first person engaged in the conduct that vilified, intimidated or threatened the other person or persons because of any of the following:

(a) the other person or persons have expressed or hold a view in relation to the marriage law survey question;

(b) the first person believes that the other person or persons hold a view in relation to the marriage law survey question;

(c) the religious conviction, sexual orientation, gender identity or intersex status of the other person or persons.

The prohibition is at least based on quite serious behaviour: to “vilify, intimidate or threaten to cause harm” to someone is fairly specific behaviour which I would agree is bad and should be discouraged. (It is certainly a higher bar than that set by, for example, the current Tasmanian Anti-Discrimination Act 1998, s 17, which makes it unlawful to cause mere “offence”.)

But as with all such laws, the difficulty lies not in the “core” behaviour which is forbidden, but in the uncertainty created by the edges of the concepts, and doubts as to how the law will be interpreted by the courts. Any such law will create a “chilling” effect on speech. And the question is whether the harm to be avoided by the law, is serious enough to risk the suppression of comments by people of good will who are concerned about being taken to court.

In addition, it has to be said that s 15(1)(c) sits slightly oddly with the rest of the Act, and creates what I hope is not going to be a precedent for future legislation. This provision is, on a surface reading of the words, completely unrelated to the same sex marriage debate. If one reads from the introductory words straight to para (c) (and all the paragraphs are independently actionable), then the Parliament has created stand-alone prohibitions on vilification based on religion and sexual orientation. This is a massive step and ought not to be replicated in the future without a great deal of careful debate. It may be that a court would read the provision as somehow related to the same sex marriage survey (although it has to be said that the drafter has been very careful to separate this provision from the other issues.) It might also be that the provision, if it stood outside the context of the postal survey, would be invalid as contrary to the implied prohibition on the impairment of freedom of political speech under the Constitution.

Importantly, there are some limits on s 15(1). Under s 15(2) the main provision is not breached by a person “by reason only of the expression of his or her views about the marriage law survey question“. Note that this last phrase is defined in s 5 to mean “the question whether the law should be changed to allow same-sex couples to marry”. So one cannot breach s 15(1) by offering one’s own opinion for or against a Yes or No vote. But there is an issue as to whether an expression of opinion on other matters relating to homosexuality would be covered.

There are other defences under s 15(3):

(3) Subsection (1) does not apply if the conduct is done reasonably and in good faith and is:

(a) the reporting of news, the presenting of current affairs or any editorial content in news media; or

(b) the communication of matter solely for genuine satirical, academic or artistic purposes; or

(c) the communication, distribution or dissemination of any matter consisting of a publication that is subject to a defence of absolute privilege in proceedings for defamation.

Again, notably expression of religiously based views is not an exception here.

How would this provision operate? This is where the uncertainty arises. Consider the following scenarios, which may or may not be covered.

• Is it a breach of s 15(1) for an activist to claim that a politician who does not support same sex marriage ought to be sexually assaulted? (Incredibly, such a view was recently reported.) It does look as though this would be contrary to s 15(1), if said after the Act commenced. This looks like a threat to cause harm because of expression of views on the “marriage law survey question”. But could the author avoid liability claiming it was “satire”? There are serious questions about how this matter might be approached. What to one person may seem to be satirical, may to someone else appear to be a genuine threat.
• Is it a breach of s 15(1) for a Christian to argue that homosexual behaviour is “sinful”, in accordance with the Bible’s teaching? Would that amount to vilification, intimidation or a threat to cause harm to someone based on their “sexual orientation”? Here I think the answer is clearer- it should not, on the usual meaning of all these words. But there may be those who might argue that it does. The meaning of the word “vilify” is here the issue. It is not defined in the Act, nor does it have a generally agreed meaning in other contexts. In the current social context, to say that homosexual behaviour is sinful may be seen to demean or insult homosexual persons, and it is only a small move from that to calling it “vilification”. I would argue that the word “vilification” ought to be reserved for much more serious and harmful speech. But there is uncertainty.

One feature of s 15 that may possibly serve to mitigate the dangers (and especially the danger of a series of court actions that might serve to deter people from even speaking up at all in the debate), is the fact that under s 19(3) the Attorney-General’s consent is necessary for any action to be taken under s 15. However, it will be interesting to see which cases in this highly charged political atmosphere the Attorney will approve.

This comment has not covered all aspects of the new Act which are of some interest. There is an interesting provision in s 16(2) which forbids discrimination against someone on the  basis that, for example, they donated funds to an organisation supporting one side or the other. (This may be designed to deal with the situation which arose a few years ago in the US, where a high profile company executive was hounded out of a company because he had donated money towards a proposal in favour of classical, heterosexual, marriage.) There is also the interesting s 17, which forbids distribution of “misleading and deceptive” matter “in relation to the provision of a marriage law survey response”. This seems to be narrowly crafted to deal with deceptions about the actual voting process, rather than any claimed “misleading” data, say, on the well-being of children in same sex families.

But hopefully there is enough here to equip people to continue the debate on this important matter, in compliance with the new law.

In accordance with s 6(5) of the Marriage Law Survey (Additional Safeguards) Act 2017, this communication was authorised by Neil Foster, of Newcastle, NSW.

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