Tasmania: Definition of offence in hate speech laws gags freedom of expression

LAST year I sent out a teaching document, prepared by the Australian Catholic Bishops, on the nature of marriage to the Catholic community in Tasmania. For this I was cited by the Anti-Discrimination Commissioner for a possible breach of the Anti-Discrimination Act.

I was simply doing my job of ensuring those in the Catholic community understood the Church’s position on marriage and its importance for our society.

Christians have been presenting the essentials of this teaching since the very beginnings of the Church. Yet after 2000 years such teaching is now considered by some to be offensive, in such a serious way as to require an agency of the Tasmanian Government to seek to suppress it.

I welcome the recent announcement from the Attorney-General that the Government is to amend the Anti-Discrimination Act, in particular to give greater protection for freedom of religion. This will be a significant change.

Freedom of speech ... should only be limited for the most serious of reasons, specifically when speech is used to promote hatred or violence towards others.

It is not clear how the Government will do this, but I want to make it clear we do not support any exemption for “religious purposes” from hate speech. The Government will need to draft the amendment in a way to ensure this does not happen. Promotion of hate speech is not acceptable.

It is important to make clear this is not just an issue of freedom of religion, but an issue of freedom of speech, respectful speech. While the proposed change will protect those acting for religious purposes, presumably those acting in a formal capacity for a particular religious community, it will not protect the more basic freedom of speech of those who do not act in this capacity or indeed those who are not religious.

The individual wanting to express a position on marriage, say to a work colleague or someone they just met, remains unprotected from potential action through the Anti-Discrimination Commission under section 17 of the Act, which refers to actions or speech that “offends, humiliates, ridicules or intimidates”. The problem with section 17(1) is the use of subjective terminology, in particular the concept of offence. Offence is a vague notion that refers to a feeling, a subjective emotional state where one is “annoyed or upset” by something that has been said or done. While the inclusion of the word offence was motivated by good intentions to ensure fair treatment of all, it has set an unreasonable standard by which to limit speech.

Author Salman Rushdie has commented: “The idea that any kind of free society can be constructed in which people will never be offended or insulted is absurd. So too is the notion that people should have the right to call on the law to defend them against being offended or insulted. A fundamental decision needs to be made: do we want to live in a free society or not? Democracy is not a tea party where people sit around making polite conversation. In democracies people get extremely upset with each other. They argue vehemently against each other’s positions.”

Freedom of speech, respectful speech, is essential for the health and vitality of democratic societies. It should only be limited for the most serious of reasons, specifically when speech is used to promote hatred or violence towards others.

What is important, as many point out, is that section 19 of the Anti-Discrimination Act prohibits speech or actions that promote hatred to an individual or group. Amending section 17 to remove subjective terminology such as “offends” will in no way lessen the protection against hate speech.

While the inclusion of the word offence was motivated by good intentions to ensure fair treatment of all, it has set an unreasonable standard by which to limit speech.

As I visit communities in Tasmania, the people I speak to cannot understand how the teaching I distributed could be deemed offensive. They are fearful that if I could be cited for expressing a long-held position on marriage, which is actually currently the law in Australia, so could they.

With the likely prospect of a national plebiscite on marriage in the next six to eight months, it is vitally important that all in Tasmania are able to engage in robust and respectful debate and discussion without the threat of being reported to the Anti-discrimination Commission. Unless section 17(1) is amended Tasmanians will not feel able to express their deeply held beliefs on the nature of marriage in good faith in a respectful way, as I did, for fear of being sanctioned by the Anti-Discrimination Commissioner.

We must end this fear so that all can engage in respectful debate on the most important issues facing our society.

Julian Porteous is the Catholic Archbishop of Tasmania.