NEWS | Neil Foster
Friday 13 November 2015
A news story in The Australian this morning indicates that the Tasmanian Anti-Discrimination Commission has found a preliminary “case to answer” in relation to a claim of sexual orientation discrimination against not only the Archbishop of Hobart, Julian Porteous, but also “all Australia’s Catholic bishops.”
We have known for some time that Greens political candidate Martine Delaney had made a complaint against Archbishop Porteous, but the additional feature of the decision of the Anti-Discrimination Commission is the inclusion of other Catholic Bishops from all around Australia.
The booklet distributed to parents of students at Roman Catholic schools by Archbishop Porteous is entitled, “Don’t Mess with Marriage,” and was produced by the Australian Catholic Bishops Conference.
The booklet eschews all forms of “unjust discrimination,” and goes on to say, “some suggest that it is unjustly discriminatory not to allow people with same-sex attraction to marry someone of the same sex. Others believe that marriage is an institution uniting a man and a woman. We wish by this pastoral letter to engage with this debate, present the Church’s teaching to the faithful, and explain the position of the Catholic faithful to the wider community.”
It continues: “the traditional view of marriage, which the Church has always supported, is different. It sees marriage as about connecting the values and people in our lives which otherwise have a tendency to get fragmented: sex and love, male and female, sex and babies, parents and children. This view has long influenced our law, literature, art, philosophy, religion and social practices. On this view, marriage includes an emotional union, but it goes further than that. It involves a substantial bodily and spiritual union of a man and a woman.
“Redefining marriage to include same-sex relationships will have far reaching consequences for all of us. The world around us influences the communities in which we live. Cultural and legal norms shape our idea of what the world is like, what’s valuable, and what are appropriate standards of conduct. And this in turn shapes individual choices. That’s one of the main purposes of marriage law: to enable and encourage individuals to form and keep commitments of a certain kind. But if the civil definition of marriage were changed to include ‘same-sex marriage’ then our law and culture would teach that marriage is merely about emotional union of any two (or more?) people.”
The legal status of the Australian Catholic Bishops Conference, and whether it claims to represent, for example, the views of every Roman Catholic Bishop in Australia, is unclear. But it must also be said that it would be somewhat odd if a Tasmanian tribunal were legally able to exercise authority over Bishops who operate in other states of Australia.
The more important issue, of course, is whether the law will continue to protect the religious freedom of churches and believers to maintain and teach within their own communities the historical views of Christianity about marriage and sexuality.
These issues are brought sharply into focus when some of those supporting “marriage equality” consider this sort of attempted widespread suppression of speech and religious freedom a reasonable policy stance.
The comments below were drafted in response to earlier reports of action against Archbishop Porteous alone, and they remain relevant to this new and expanded, claim.
OPINION | Neil Foster
Eternity November 2015
The online journal News Weekly carried a recent article, “Appeal to freedoms will not avail for Archbishop”, commenting on a claim under Tasmania’s Anti-Discrimination Act, made against the Catholic Archbishop of Hobart, the Most Reverend Julian Porteous.
The author of the article, Robin Speed, President of the Rule of Law Institute of Australia, suggested in his opening paragraph: “The Archbishop of Hobart, Julian Porteous, is about to find out that in Tasmania there is no right to freedom of religious belief or freedom of speech.”
I agree that there is much to be concerned about in the claim being made against Archbishop Porteous. Indeed, I think Christians of all types, Protestants and Roman Catholics alike, ought to be active in expressing their support for the Archbishop, for what he is facing is legal action for simply defending traditional Christian values that have been the basis of Western society for two millennia.
However, I have to say that the situation is not quite as bad as this otherwise useful piece portrays.
The facts of the case are that Archbishop Porteous circulated to parents of children enrolled in Roman Catholic schools in his Archdiocese, a defence of classical Christian marriage, the exclusive union between a man and a woman voluntarily entered into for life.
The booklet is a response, of course, to calls to introduce same-sex marriage into Australia. “Don’t Mess with Marriage” is clear but also very respectful, and condemns upfront any ill-treatment of those with a same-sex sexual orientation.
However, a complaint has been made that by circulating this booklet, the Archbishop was in breach of the Tasmanian legislation, which forbids engaging “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.”
In s 16, paragraph (c) says that “sexual orientation” is a “protected attribute”. It is claimed that a booklet that defends marriage as only between a man and a woman (which is, of course, the current law of Australia) has somehow “offended” or “humiliated” or “insulted” the homosexually oriented complainant “on the basis of” that orientation, where a reasonable person should have known that the complainant would have one or more of these reactions.
I have discussed a number of features of this legislation, and why it might be regarded as constitutionally invalid, in a previous article. But the recent article from News Weekly raises other important issues, which are worthy of comment.
There are many areas where I agree with Robin Speed’s article. It points out correctly that there is no express protection for freedom of speech in s 17; that in a recent decision of the Tasmanian Anti-Discrimination Tribunal, Williams v Threewisemonkeys and Durston  TASADT 4 (30 June 2015), a religious freedom defence was rejected by the tribunal. That tribunal also rejected the application of the important “defence” provision in s 55.
The article also notes, correctly, that the most natural reading of s 17 is not that a “reasonable person” would be offended but simply that the complainant was subjectively offended (a fact that is, of course, almost impossible to dispute). And as Speed notes, the question then is whether a “reasonable person” would have anticipated that “the other person” would be offended, etc.
However, I would like to note that the situation might not be quite so bad as the article suggests.
It may be noted, first, that the final clause of s 17 may provide more leeway than at first appears. Surely if the Archbishop did not know the complainant, it is difficult to argue that he, as a reasonable person, could possibly have anticipated that the complainant personally would be offended.
One possible interpretation of this clause is that the provision is really intended to operate only where the alleged respondent is personally acquainted in some way with the specific complainant.
Next, on the freedom of speech issue, while there is no explicit protection of free speech under the law of Tasmania or the commonwealth Constitution, the High Court of Australia has identified an implied freedom of political communication that will in some circumstances override state laws restricting freedom of speech on public issues.
In recent years the High Court has not hesitated to find state legislation invalid when it has breached this implied freedom.
For example, in Unions NSW v New South Wales  HCA, 58 provisions of NSW law prohibiting electoral donations by organisations were struck down as invalid.
There may be more to be said for protection of religious freedom than the article suggests. It is important to put the case referred to, Williams v Threewisemonkeys and Durston  TASADT 4 (30 June 2015), in proper context.
The case involved a complaint by a homosexual person that a document circulated in Tasmania giving statistics and information about homosexuality was offensive. The decision at para  describes the document in this way:
“This pamphlet stated that ‘homosexuality should not be tolerated’ and that ‘Scripture rejects homosexuality as utterly abominable’ and set out alleged statistics on lifespan expectations and causes of death for gay men and lesbians compared to heterosexual men and women.”
Unfortunately, for whatever reason, the respondent in this case, Mr Durston, was not legally represented and chose to make no submissions in his defence other than referring to s 116 of the Constitution (see para  of the decision.)
As previously discussed, the tribunal was justified in noting that s 116 does not directly bind state parliaments. However, a number of matters could have been put on Mr Durston’s behalf, which the tribunal did not consider.
Also, the Tasmanian Constitution Act 1934 contains a provision, s 46, that “guarantees” every citizen: “freedom of conscience and the free profession and practice of religion … subject to public order and morality.”
The tribunal, sitting in Tasmania and deciding a question of Tasmanian law, ought to have at least commented on the effect of this provision.
In addition, it is arguable that where state legislation is very broadly worded and there is room to doubt the extent of its operation, the “principle of legality” applies in the interpretation of that law.
One aspect of this is that it should not be assumed the parliament intended to interfere with fundamental human rights without explicitly saying so.
To return to the Durston case, the tribunal commented at : “the tribunal finds no basis for the respondent’s reliance on a right to freedom of religion by way of response or defence to this complaint.”
For the reasons noted above, this finding, while arguably technically correct on the simple ground that s 116 is not applicable to Tasmanian law, should not have concluded the issue of consideration of religious freedom.
While it is true that comments have been made by the High Court that s 116 is “not, in form, a constitutional guarantee of the rights of individuals” (quoted at para  of the tribunal’s reasons), there seems no doubt that those whose exercise of religious freedom had been unduly infringed would have standing to challenge the validity of such legislation. In doing so they would indirectly assert a “right” to religious freedom.
It is also worth noting that, in the Australian legal system, the decision of a tribunal that is not a superior court is not “binding” authority. Hence other tribunals, and of course courts, are able to depart from the rulings of the tribunal in Durston.
Finally, is it a foregone conclusion that the defence under s 55 of the Tasmanian Act would fail? Section 55 relevantly provides that:
55. Public purpose
The provisions of section 17(1) … do not apply if the person’s conduct is – …
(c) a public act done in good faith for –
(i) academic, artistic, scientific or research purposes; or
(ii) any purpose in the public interest.
One could argue that it was surely in the public interest for the Roman Catholic Archbishop of Hobart to tell parents of children attending Roman Catholic schools in his diocese what the views of the church on marriage are, and what their children will be taught in those schools.
Even if one is in favour of recognition of same-sex marriage, surely it would be better that parents know what their children are being taught so that they can decide whether or not the issue is so important that they should withdraw their children from the schools?
In any event, it seems strongly arguable that the Archbishop’s actions were done in good faith with the public interest purpose noted above, and should fall within the s 55 definition (especially since the “public interest” should also involve consideration of the values of free speech and freedom of religion discussed previously.)
To sum up, the article by Speed is an important contribution to the discussion of this case, and functions as a wake-up call to those who may have assumed that mainstream Christian positions would be left alone. I am somewhat more optimistic than the author that this case might not succeed. But there are many uncertainties.
Even if it were not the right thing to do anyway, purely pragmatic considerations alone ought to spur those who are committed to the Christian faith, or even simply to freedom of speech, to be concerned about this litigation.
Martin Niemöller, the German pastor who regretted his failure in the beginning of the Holocaust activities to speak up for the Jews, famously noted that by the time the authorities came to the Christians, there was no one left to speak up.
Christians around Australia ought to now be standing with Archbishop Porteous, and praying for change in the sort of law penalising mere “offence”, which seems to allow statements of this sort to be the subject of legal action.
Neil Foster is Associate Professor in Law, Newcastle Law School.