by Terri M. Kelleher
Tasmanian Senator Claire Chandler is the latest public figure to fall foul of vilification provisions in anti-discrimination laws (that is vilification laws). She had a complaint laid against her to the Tasmanian Human Rights Commission for comments in an article she wrote about women’s sport being for biological women.
The complaint against Senator Chandler was made under Section 17 of the Tasmanian Anti-Discrimination Act, which provides: “A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute … (in this case ‘gender identity’) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.”
Much has been written about the wide operation and the subjective basis for making a complaint under this Section of the Act. It is the same provision under which Tasmanian Catholic Archbishop Julian Porteous had a complaint laid against him during the marriage debate for stating the Catholic Church’s teaching on marriage.
It is also in very similar terms to Section 18C of the federal Racial Discrimination Act under which Queensland University of Technology (QUT) students were prosecuted for comments they made after several of them were ejected from a computer lab reserved for indigenous students only. Section 18C makes it an offence to do an act if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another on the basis of their race, colour, national or ethnic origin.
In 2013, then Labor Attorney-General Nicola Roxon attempted to consolidate all the federal anti-discrimination laws, which would have extended provisions with similar wording to Section 18C to the whole range of attributes covered by those laws – age, race, disability, sexual orientation and gender identity.
VAGUE AND SUBJECTIVE
Vilification or “hate speech” provisions are included in some state or territory anti-discrimination or equal opportunity laws. However, none of those provisions in any of the other state or territory laws are as vague and subjective and with such a low threshold needed to establish a complaint as the federal Section 18C or the Tasmanian Section 17.
Victoria, NSW, Queensland and the ACT all have vilification or “hate speech” provisions but the threshold for complaint is higher and is directed to “incit[ing] hatred towards, serious contempt for or severe ridicule of” another person. This wording is closer to hate speech laws in other countries, such as: “incitement likely to lead to a breach of the peace” (Canada); “excite hostility against or bring into contempt” (New Zealand); and “cause… harassment, alarm or distress” (Britain).
In 2010, it was recommended to the Review of Identity Motivated Hate Crime undertaken by Justice Geoffrey Eames AM QC (the Eames Review) that the Victorian Equal Opportunity Act (EOA) be amended to include broad anti-harassment provisions to target “conduct that offends, humiliates, intimidates, insults or ridicules another person” based on protected attributes. “Harassment” was to be defined in almost identical terms to the federal and Tasmanian provisions. No such amendment was made to the EOA.
Victorian Reason Party (formerly Sex Party) MP Fiona Patten introduced her Racial and Religious Tolerance Act (RRTA) Amendment Bill into the Parliament in 2019. The Bill proposes similar wording to the “hate speech” provisions described above but modifies it with the insertion of the word “likely”. That is, it seeks to prohibit conduct that is “likely” to incite hatred etc; not conduct that does incite hatred etc.
The Bill has gone to a committee of inquiry and the report is due on March 1, 2021. It also seeks to expand the grounds on which a vilification complaint can be made from race and religion to include gender, sexual orientation, gender identity and sex characteristics. If the bar is too low, it will inhibit the free exchange of views that should be allowed in a free democracy.
Acts or speech inciting violence or stirring up hatred against another person or group of persons, for whatever reason, are crimes and every reasonable person would strongly condemn such behaviour.
But there are already laws against inciting hatred or violence against others, and laws against damaging the reputation of another (libel and slander). These laws protect all people from such offences. They require a case to be made out by a complainant and evidence brought to make out the complaint.
Penalties can be very serious in terms of damages awarded or fines or terms of imprisonment. Accordingly, the offence must be proportionately serious to warrant the penalty. The conduct or speech must have serious consequences for or cause real harm or injury to the complainant.
Are those laws more appropriate to deal with such behaviour than vilification or “hate speech” complaint mechanisms in anti-discrimination laws, which are brought before tribunals without investigative powers or expertise to test whether a complaint has substance? What is achieved?
No matter the outcome, it costs the person against whom a complaint is made in terms of time, stress and costs. The process is the punishment.
In a free democracy, should we have to risk complaints of vilification or “hate speech” to exercise our right to freedom of speech?
We will explore these questions in a series of articles in News Weekly on the anti-discrimination and vilification laws in Australia, what they were designed to achieve and how they affect our human rights.
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