Feb 17, 2016

‘Weaponised’ anti-discrimination laws go to the dogs (and cats)

The Australian Christian Lobby's case that anti-discrimination laws need to be suspended is based entirely on one case that is still being investigated.

Josh Taylor — Journalist

Josh Taylor


Ahead of the mooted plebiscite on same-sex marriage, expected to be held within months of the election, Australian Christian Lobby managing director Lyle Shelton has suggested suspending state-based anti-discrimination laws so the ACL can express its arguments against same-sex marriage as part of the "no" campaign on the plebiscite. Shelton has confirmed that the ACL has been in discussion with the government about running the "no" campaign. In a debate on Sky News, Shelton argued that anti-discrimination laws should be suspended during the plebiscite to allow free and open debate on the issue of same-sex marriage, without his side of the debate being subject to anti-discrimination complaints for comments they intend to make about same-sex couples. The basis for this is a case brought against the Australian Catholic Bishops Conference in September last year by Greens candidate Martine Delaney for what Shelton describes as a "gentle little book" distributed to students in Catholic schools arguing against same-sex marriage. The Don't Mess with Marriage booklet (still available online) says that those "who experience same-sex attraction" should be treated with "respect, sensitivity, and love", but then goes on to elevate the status of heterosexual relationships above homosexual relationships, and claim that if "same-sex friendships" are treated the same it "does a grave injustice" and ignores the "particular values real marriages serve". The booklet also claims that marriage equality would be "pretending" to treat same-sex relationships as marriages. Tasmanian Anti-Discrimination Commissioner Robin Banks assessed the case and found that there were grounds for investigating potential discrimination within the booklet, but this was not a finding against the bishops. Section 64 of Tasmanian anti-discrimination law gives very few grounds on which to reject a complaint, except if the commissioner finds that it is trivial, vexatious, misconceived, or lacking in substance. For example, one of the most commonly rejected anti-discrimination complaints concern apartment residents who discover they are allowed to have a cat as a pet in the building but not a dog, and claim that is discriminatory. Shelton has said the book has nothing to do with hatred, but it is likely the commission will investigate whether the booklet "offends, humiliates, intimidates, insults or ridicules another person" on the basis of their sexuality, under section 17 of the Tasmanian Anti-Discrimination Act. Shelton today claimed that state-based human rights commissions are "often weaponised by activists", though the assertion rests on the one case. And far from being "in trouble with the law", as Shelton claims, the bishops are currently in conciliation with Delaney, meaning the two sides are looking to resolve the matter without any finding needing to be made. Indeed, in a press release in December, Banks said that the two sides were in "positive" discussion "in good fair, and in a way which was open and respectful of each other's views". The process is analogous to someone making a complaint to ACMA or the Press Council about a broadcast or news report. Just because a complaint is being investigated, that doesn't mean an adverse finding has been or will be made. The length of time the conciliation process has taken so far -- with the Catholic Bishops Conference still free to distribute the pamphlet in the meantime -- indicates that any investigation of alleged discrimination would be unlikely to be resolved in the time it would take for a plebiscite to be held. Reports suggest Prime Minister Malcolm Turnbull would seek to hold the plebiscite within months of an election victory. The Tasmanian law is considered to be broader than anti-discrimination laws in other states because it includes the "offends" clause, but in the last financial year, of the 141 complaints received alleging discrimination, just 11 were related to sexual orientation. The majority (72) were complaints about discrimination based on disability. It is a similar story in New South Wales, where the New South Wales Anti-Discrimination Board's conciliation service for the last financial year shows 3.4% of complaints about discrimination on the basis of homosexual vilification and 2.5% for discrimination on the basis of sexuality, or 36 and 26 complaints out of 1058, respectively. There is no federal law against vilifying people on the basis of their sexuality. In the last financial year, there were also no complaints made to the Australian Human Rights Commission under the AHRC Act of discrimination on the grounds of sexual preference, compared to 16 complaints (out of 628) of discrimination on the basis on religion. Anna Brown, director of advocacy at the Human Rights Law Centre, told Crikey that the Australian Christian Lobby was "completely misguided" in calling for laws to be suspended. "There are only limited legal protections against vilification for lesbian, gay, bisexual, transgender or intersex people in Australia and the protections that do exist have high thresholds and broad exemptions that will enable a properly informed and robust political debate to take place." Brown said the ACL had been "actively engaged" in debate on same-sex marriage for years without the need for suspending anti-discrimination laws, and "unless they need to resort to hatred and bigotry" in the plebsicite debate, there will be no need to suspend the laws. "Suspending them would give free rein for hatred and bigotry and send completely the wrong message." Brown said that regardless of whether the laws were suspended, the plebiscite would likely create significant stress for same-sex couples and their families, and she urged the Parliament to pass marriage equality into law without undertaking a plebiscite. Australian Human Rights Commission president Gillian Triggs was unavailable for comment before deadline, but she has told Fairfax that Shelton's proposition to suspend anti-discrimination laws is "outrageous and highly misguided". Shadow attorney-general Mark Dreyfus also spoke against the proposal, stating that if the ACL needed to offend people in order to make their case against same-sex marriage, then "you've already lost".

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12 thoughts on “‘Weaponised’ anti-discrimination laws go to the dogs (and cats)

  1. Norman Hanscombe

    Wouldn’t it be a pleasant change, Joshua, if someone at Crikey (hopefully not feeling the need to write quite so many words of course) could prepare suggestions re what form any plebiscite should take, and why it should be supported.
    Not, of course, that any objective observer would expect that to happen.

  2. David Hand

    This article is a classic example of Orwellian doublespeak at work. The Catholics publish a pamphlet against gay marriage and someone complains under anti-discrimination laws. Then the ACL argues for suspending anti-discrimination laws to support free and open debate about the plebiscite and the usual suspects argue that it will unleash bigotry.

    So we are left with the argument that anyone who votes against same sex marriage is bigoted and must be silenced because their views are bigoted.

    Dreyfus expresses a perfect example. “If you must offend people you’ve already lost. By the way I’m offended by your views”

  3. Venise Alstergren

    That’s easy Norman. All people who claim a passion for religion should be excluded from voting. Let the people who live in the present vote for the present-and the future.

  4. Chris

    Norman: If you needed to offend people in order to make your case, then you’ve already lost.

  5. Norman Hanscombe

    Venise, you forget that people who claim they don’t have a passion for religion can be among the most religious in their thinking. Look at Chris in Post $3 who genuinely didn’t understand what had actually been said in Post $1.

  6. David Hand

    This is so absurd it’s almost funny. We can shut other people up and destroy free speech merely by being offended. The cancer of 18C continues to spread.

  7. Norman Hanscombe

    Don’t be too harsh, David. After all, far brighter people than Joshua have struggled with even less demanding philosophical questions than this one.
    Blame the Crikey Censorship Policies which prevent rational arguments to be available for as long as possible.

  8. Nicholas Fisher

    18C includes protection for ‘good faith contributions to debate’ which, although the term ‘good faith’ is vague enough to be abused, in practice has been a fairly robust protection for free speech. If you’d actually read the article you’d note that the -one- complaint which is being investigated is unlikely to result in a sanction and is actually being worked out amongst the parties. Investigated does not equal censored. Or did that escape you apparently esteemed thinkers who are able to look into the deep philosophical questions you claim would bamboozle Josh?

    Debates about ‘censorship by the PC crowd’ inherently work to favour the privileged at the expense of the oppressed – it’s not some kind of rule-free freedom which thus places everybody on an equal foundation and is fair.

    The privileged (white, male, straight, cisgendered, etc) are, by the weight of their speech alone, able to effectively censor the speech of the oppressed. However, because it does so through speech alone in the absence of any overt rules, it falls deceptively into the realm of the ‘free exchange of ideas’ or whatever the whole free speech thing is supposed to protect. Meanwhile, because of this power imbalance, any attempt to control oppressive (and thus censorial) speech and protect the voice of the oppressed requires rules, usually legislative and thus government mandated rules, and thus has the more overt appearance of censorship.

    Thus, while the debate about free speech is superficially about removing censorship, at a deeper level it merely protects one form of censorship – the one which benefits the powerful.

    There’s this idea about ‘freedom’ going around at the moment which I call ‘the negative definition of freedom’, i.e. that freedom is an -absence of rules-. But this definition is hopelessly naive as it fails to take into account the influence of social power. What we need is a positive definition of freedom, which is about maximising people’s ability to do what they want without interference. That doesn’t seem too different from the ‘absence of rules’ definition, but it takes into account the effects of power by aiming at the ultimate end of ‘doing what you want’ rather than just the means of ‘removing rules’. It also includes the fact that we’re -maximising- and not aiming at some absolute, because freedoms will always have to be traded off against each other, and because social power again plays a part in how much restrictions of one freedom will balance out against improvements in another.

  9. Dubious Virtue

    Venise: by that you do mean /all/ religions don’t you? Not just Christians?

  10. David Hand

    Well Nicholas,
    You may well see issues of free speech in the 21st century as focused on reducing the power of, how did you put it, “white male straight cisgendered” people and of course 18C is delivering in spades for you.

    We’ve had Bolt convicted of offended indigenous people because he got some facts wrong in an article that still has merit – that scholarships set up to benefit disadvantaged indigenous people are being captured by people who are clearly not disadvantaged.

    We have the complaint about the Catholic pamphlet unlikely, as you say to end in sanction because it is such a misuse of the process.

    We’ve got white kids in Queensland having to front 5 grand each to get a clearly mischievous lawsuit under 18C to go away.

    Finally, we have thought police in the Human Rights Commission with their array of weaponry ready to persecute anyone who expresses an opinion that they disagree with and face it, the HRC has not bathed itself in glory with its pro-asylum seeker campaign.

    What you are actually saying is that white men occupy such a dominant position in our society that their views don’t count when it comes free speech. They can be persecuted.

    But you don’t acknowledge where such a view leads and what we are seeing in the way 18C is being deployed by activists.

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