Same-sex marriage and discrimination claims in Tasmania

ANALYSIS | Neil Foster

Tuesday 29 September 2015

A Tasmanian woman is taking the Catholic Archbishop of Hobart to the Anti-Discrimination Commission over the contents of a booklet sent to Catholics around Australia earlier this year about same-sex marriage. Here, Associate Professor of Law, Neil Foster examines the basis of the claim.

There are press reports (see also here) that the Roman Catholic Archbishop of Hobart is being sued under s 17 of Tasmania’s Anti-Discrimination Act 1998 for causing “offence” or “humiliation”. This was alleged to have been done by the Archbishop causing to be sent to Roman Catholic schools in his diocese, a booklet outlining the church views on marriage, and in particular expressing the well-known opposition of the church to the introduction of same sex marriage. A copy of the booklet, “Don’t Mess with Marriage”, can be downloaded here. It seems clear but also very respectful, and keen to condemn any ill-treatment of those with a same sex sexual orientation.

It seems hard to imagine that it was a surprise to parents sending their children to a Roman Catholic school that they would be receiving teaching on the church’s views on moral issues, especially on a matter of such great public interest in Australia at the moment. Nevertheless, a number of parental complaints were made when the booklets first came out. Complaints were made that the material was “discriminatory”. Yet, as the booklet itself points out:

Justice requires us to treat people fairly and therefore not to make arbitrary, groundless distinctions…if the union of a man and a woman is different from other unions – not the same as other unions – then justice demands that we treat that union accordingly. If marriage is an institution designed to support people of the opposite sex to be faithful to each other and to the children of their union it is not discrimination to reserve it to them.

The provision of the Tasmanian legislation being relied upon is essentially an “anti-vilification” law, presumably in its application to “sexual orientation” discrimination. It relevantly provides:

17 (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16..(c)… 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.

I have written a lengthy paper analysing Australia’s anti-vilification laws as they relate to religion, and many of the comments I make there relate also to what we may call “sexual orientation vilification laws” such as s 17, as it is being used here. In particular all such laws raise serious issues as to how they protect the important value of free speech, while balancing this with the right of persons in protected categories not to be the subject of “hate speech”. One of the cases I discussed in that paper was a decision from the Supreme Court of Canada, Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (27 Feb 2013), dealing with sexual orientation vilification. As I noted, in that decision the Supreme Court upheld a provincial law dealing with “hate speech”, but as part of its decision the Court struck down the sections of the law that targeted the mere causing of “offence”, as contrary to the Canadian Charter right of free speech. To be precise, the Court agreed that the prohibition on “exposing someone to hatred” was valid under the Canadian Charter of Rights and Freedoms, but ruled that the words “ridicules, belittles or otherwise affronts the dignity of” were invalid and should be struck out.

I also noted in that paper decisions of the High Court of Australia which also strongly upheld the value of free speech, and noted that a provision penalising “offence” could be contrary to the implied freedom of political speech under the Australian Constitution- see in particular the decision in Monis v The Queen [2013] HCA 4 (27 February 2013), where, while there was a division within the court over how the legislation in question should be read, all members agreed that the bar for “offence” should not be set too low.

To come to this Tasmanian case, it seems clearly arguable that s 17, in preventing the mere causing of “offence” or “insult”, goes too far in restricting free speech, certainly insofar as it relates to political issues. As Hayne J said in the Monis decision:

[222] The conclusion that eliminating the giving of offence, even serious offence, is not a legitimate object or end is supported by reference to the way in which the general law operates and has developed over time. The general law both operates and has developed recognising that human behaviour does not accommodate the regulation, let alone the prohibition, of conduct giving offence. Almost any human interaction carries with it the opportunity for and the risk of giving offence, sometimes serious offence, to another. Sometimes giving offence is deliberate. Often it is thoughtless. Sometimes it is wholly unintended. Any general attempt to preclude one person giving any offence to another would be doomed to fail and, by failing, bring the law into disrepute. Because giving and taking offence can happen in so many different ways and in so many different circumstances, it is not evident that any social advantage is gained by attempting to prevent the giving of offence by one person to another unless some other societal value, such as prevention of violence, is implicated.

There seems little doubt that comments on whether same sex marriage should be adopted, or not, are matters of a “political” nature in current Australian society. So even if the suggestion that the definition of marriage should not be changed, causes offence to some, it may be doubted that a law which prohibits such speech on that ground alone would be valid. The constitutional implied freedom of political communication, of course, applies both to State laws as well as to Commonwealth laws, as it is an implication arising from the general structure of the Constitution which establishes both the Commonwealth and the States.

One might have thought that the prohibition of speech on such matters as these by a church leader would also amount to a restriction of religious freedom. It is true that s 116 of the Commonwealth Constitution does not limit the power of State Parliaments (see my earlier post on the general structure of religious freedom protection in Australia for elaboration of this point.) Indeed, it is interesting that a recent decision of the Tasmanian Anti-Discrimination Tribunal, Williams v Threewisemonkeys and Durston [2015] TASADT 4 (30 June 2015), dealing precisely with a sexual orientation vilification claim under s 17, makes this point in response to a self-represented litigant’s claim of religious freedom.

However, unusually for Australian State Constitutions, the Tasmanian Constitution Act 1934 contains a religious freedom protection provision, in s 46

 (1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Sadly this provision is, so far as I am aware, untested in the courts. I am not even sure whether it should be read as over-riding “ordinary” Tasmanian legislation, as one would usually expect in a provision of a Constitution. However, it may provide another reason to suppose that the Tasmanian Parliament may not have intended, by enactment of s 17, to prohibit the free expression of the Roman Catholic Archbishop’s belief, which of course would be a part of his (or the church’s) “profession and practice of religion”.

If there is, as seems suggested at the moment, to be a plebiscite on the question of recognition of same sex marriage, it is to be hoped that respectful public debate can be carried out without a polite statement of one side of the case being “shut down” as offensive or insulting simply because it makes a case which some disagree with. In any event it seems likely that Australia’s Constitution protects robust political debate on these matters.

Neil Foster is an evangelical Christian, an Associate Professor in law at The University of Newcastle. He blogs at Law and Religion Australia, where this post was first published.

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