Wednesday, June 26, 2013

Nothing To See Here, Just The Future Of Free Speech In Tasmania

(Update 27 Sep: This has been resolved now, see updates at bottom of article)

Today, or at least in the next few days, the Legislative Council may determine the future of free speech in Tasmania when the Anti-Discrimination Amendment Bill 2012, passed on party lines by Labor and the Greens late last year, finally makes it to the top of the pile.

Of particular concern is the proposed amendment to Section 17.  This amendment, which ostensibly deters bullying and redresses inconsistent aspects of existing legislation, would make it an offence to ridicule, insult, offend or humiliate (as well as "intimidate", which I have no problems with) someone on the basis of their political or religious beliefs, affiliations or activities, assuming that the person doing the offending (etc) could have reasonably known their comments might offend (etc).  There is not even any caveat to protect comments of such a sort if they are public acts done in good faith for the public interest.

The bill as passed and as literally worded is a threat to political satire, public debate, political commentary, and art, and a monumental nuisance for people like editors and forum moderators who have to deal with publications law.  It is a law that fundamentally damages the fabric of free speech by codifying a nonexistent right to not be offended by others' evaluations of your opinions.  It is also a law that would assist the purveyors of debunked opinions by enabling them to say their piece, and to obstinately refuse to acknowledge opposing facts (or deliberately misrepresent the views of others) and then launch legal action against those who pointed out how ridiculous their views were. It's a potential trigger for vexatious proceedings to be imposed on people just for speaking their mind in a strong way, even if the cases in question prove unsound.  How a Tasmanian court might actually interpret it is impossible to say since it doesn't appear any truly similar law has existed in any western democracy any time recently.  And there's a very good reason for that.

In my previous articles Anti-Discrimination Change Requires More Scrutiny and An Open Letter To Brian Wightman I have covered my objections to this amendment, which I consider to be the worst and most dangerous piece of legislation to have passed the Tasmanian House of Assembly in my lifetime. It is to the Tasmanian left's shame and discredit that the left has let this amendment sail through the Lower House at threat to the artistic and political freedoms it supposedly values, and left the low-profile defence against it to the likes of the Liberal Party and the Australian Christian Lobby (neither normally friends of liberty), the IPA, the Hobart Community Legal Service and, er, me. 

Less extreme but similar legislation was withdrawn from federal parliament because it was too extreme for Senator Conroy to get the numbers to pass it.

While I often say things about the Legislative Council lacking a mandate for things it does, in this case it is notable that Leonie Hiscutt strongly opposed the Section 17 amendment in an Australian Christian Lobby questionnaire, and was elected.  Vanessa Goodwin was also elected after her party opposed the Section 17 amendment.  So for the two Liberal representatives, at least, there is a clear mandate to oppose these changes.

I'll be following the debate via webcast as it unfolds (if they ever actually start!) and will post updates below on anything of interest (not only re section 17 but the Act as a whole, which has several other points of interest) as it unfolds.   I think it's highly likely that this change will not survive in its current form and will be deleted in committee, amended or referred for further review.  With any luck, the whole thing will be a big fizzer.

Current status (12 pm): LegCo suspended for "briefings" on the Bill generally.

2:30 pm: Still not resumed.

2:40: Sitting has resumed, just going through questions etc now and debate on the Bill may start soon.

2:47 pm: Another suspension for briefing, unsure how long this will be.

4:12 pm: Debate has commenced.  Craig Farrell, who in my view has the hardest job in Tasmanian politics, is now introducing the bill passed by the Government in the lower house.   He will likely be bound to support it along party lines.

Farrell outlining key aspects of legislation

- full coverage of gender identity (transgender, intersex etc) in sections 3, 16.  (I support these changes.)

- Section 17.  (My area of concern) Farrell outlines the existing inconsistencies and links them to the issue of bullying.  He claims that there is no difference between the classes of protected attributes currently protected and those to be added.  The problem with this claim is that it is very important to free political debate that some of these attributes not be protected.  Furthermore, creating lists of protected attributes as a block to bullying is likely to be futile, since bullies will just find new attributes to bully on. 

- Government Amendment: The Government will add a good-faith exemption amendment to Section 17. Why it was left out in the first place is beyond me and I said it should not have been left out at the time.  Better late than never, still.

4:26 pm Mike Gaffney speaking, describing S 17 as contentious.   Gaffney opposes inclusion of political belief and activity (but not yet religion, my other area of concern) in S17.

Gaffney now speaking on gender and sexuality issues and need for bill to update definitions to project transgender, transsexual and intersex people.

4:34 Gaffney just pointed out that defamation is not a cure-all for offensive comment.  He is now talking about S17 and restrictions on political expression, and inferred political freedom.

4:39 Gaffney open to including these sections if subject to section 55 (fair speech exemption). Gaffney supports constituents' right to present him with offensive material in the course of lobbying.

4:42 Gaffney points out that exemption for fair speech does not assist bullying since bullying is not fair speech.  Suggests lack of defence under Section 17 may even perversely encourage more hateful behaviour.  Gaffney says ideal situation is removal of political attributes from (m) and (n) altogether. He says the "worst result" would be for S17 to go through as is.

4:45 An amendment on the question of religious schools may be introduced.   This may involve the LegCo revisiting matter debated in the Lower House, where no change was made because Labor proposals were voted against for opposite reasons by the Liberals and Greens.


4:53 Vanessa Goodwin speaking - Liberals oppose Section 17 extension and some other aspects, though they support most of the rest of the legislation.

4:59 Goodwin addressing Section 17.  Definition of offence would require continual judicial interpretation.  As I've pointed out before this is a part of the problem - people using this law in a practical sense need to be able to interpret it constantly, not wait for court cases.

Goodwin cites IPA: amendment fiddling while Rome burns, law does not resemble anti-discrimination law as first conceived.  Liberal concerns not alleviated by amendment.

Goodwin proposes limited extension of Section 17 to add gender identity and intersex.

5:10 Ivan Dean speaking on second reading - says government has consulted well on issue.

5:14 Dean - bullying difficult to define and he thinks we have all experienced it.

5:24 Dean now starting to talk about the legislation going too far.  Says in the past he has supported legislation that he has not been aware of all impacts at the time he approved it.  Cannot be sure about unintended issues of this legislation, confident there will be many.   Supports amendments concerning faith-based schools.  Won't support legislation at all.

5:27 Greg Hall now speaking; he will support the bill, with amendments.  Yet to see what amendments he supports.  Greg Hall raises concerns about slow speed of process - justice delayed is justice denied.

5:40 Adriana Taylor welcomes changes to procedure.  Says she is happy with addition of good faith exemption to Section 17.  Raising amendment on issue of faith-based schools, but apparently less extensive than Goodwin's.

5:44  Inevitable mention of "cyberbullying", by Rosemary Armitage.  Skywhale also mentioned -  example of subjective nature of offence.

5:54 Kerry Finch claims that religion is no less worthy of protection (in S17) than race.  He ignores that people have massive debates about which religious view should be preferred - based on differing views about what is true - but (no longer) generally have massive debates about racial superiority since it is known that such debates are offensive and groundless.

6:02 Finch draws very strong and general comments equating all breach of amended S17 with bullying.  If I heard the comments correctly they were ludicrous, but I will be checking the Hansard.

6:03 Harriss suggests bullying should perhaps be covered under Police Offences Act.  He is clearly sceptical about the subjective nature of the legislation.  Harriss raising concerns about percieved human right to not be offended, under such laws.

6:23 Harriss supports the principle of the bill but will be supporting amendments.

6:25 Mulder opposes the approach being taken concerning subjective offence and a "reasonable person"'s standards generally.  He's not a big fan of anti-discrimination law generally.  Long speech covering a wide range of concerns with the whole gamut.

6:54 Ruth Forrest speaking now.  I have missed parts of her speech because of trivial Canberra matters but she also will support the S17 amendments with the good faith amendment.  One thing I would like to pick up on with her speech is the "reasonable person" test.  She mentioned this as an important safeguard.  The big problem with the reasonable person test is that it relates to the perception of offence only, not to whether offence is reasonable.  A reasonable person could well anticipate that a person would be unreasonably offended by something they said, especially if they knew that that person was prone to take offence unreasonably.  In such a case, as literally worded, that person is guilty.

8:48 Debate adjourned somewhat unexpectedly. I missed the exact suspension as it occurred so quickly but it appears the Government is concerned that the Legislative Council would bring in changes over religious schools issues that would make the bill unacceptable to the Government. 

Thursday: The bill now shows as adjourned but remains at this stage at number 2 on the list of bills to be debated.  It remains to be seen exactly when it will resume.

Monday 8 July: The bill remains adjourned for negotiations and is now listed third on the list of bills to be debated not sooner than the sitting on 20 August. 

The bill was the subject of a question in the House of Assembly from Michael Ferguson to Attorney-General Brian Wightman on 27 July.  Ferguson asked:

"Mr FERGUSON (Question) - My question is to the Attorney-General.  Will the Attorney-General confirm that he has pulled the Anti-Discrimination Amendment Bill from debate because the government was scared that the Liberal amendment to provide proper and genuine freedom of choice for non-government, faith-based schools, was set to succeed?  Doesn't this once again demonstrate how out of touch you and your Labor-Greens government is, given that yet again one of your totalitarian bills is unable to pass through the parliament without significant amendment?"

The relevant section of the Attorney-General's reply was:

"I am pleased that the Legislative Council has expressed in-principle support for the bill.  As members are aware, the proposed amendments relating to denominational schools did not pass this House and thus were not part of the amendment bill being considered in the other place.  However, it seemed clear that there was an intention for one more amendment dealing with this issue to be moved for inclusion in the bill.  Given that the Liberals refused to support our sensible amendment in the House of Assembly, we are concerned that, if an amendment is made to the bill that a majority of the House of Assembly does not support, this could jeopardise the whole bill, including all the other important parts of the bill that seem to have general support.  We want to take that time to work through those concerns in the hope we can reach a position where we can move forward with this important legislation.

It is important to remember - and I explained this to people last night - that under the law as it stands it is unlawful for a faith-based school to give preferential enrolment to a student who shares that faith over those who do not.  That is why we offered a sensible exemption, which has not been accepted by the Liberal Party.  They are the ones standing in the way of schools' enrolment policies being made lawful.  This is a progressive amendment that was put forward and it is the Liberal Party that is putting at risk the enrolment of students in Tasmanian schools.  Be that on their heads.  They have an opportunity in the other place to make sure that the enrolment policies of denominational schools are lawful.  That is their opportunity and that is why they need to go to the Legislative Council and lobby with me to make sure that that narrow exemption is accepted by the Legislative Council. 

Let us make it very clear; we have tried to deal with the Liberal Party sensibly on this matter.  We have tried to negotiate.  I have talked them through this issue continuously, day after day, and tried to consult with them, but they refuse.  The people putting at risk the enrolment policies of denominational schools in Tasmania are the Tasmanian Liberal Party."

Finch Comment Update: I mentioned above that I found Kerry Finch's comments about bullying to be ludicrous, but I would check the Hansard to make sure that I had heard them properly.  Examples of statements made by Mr Finch include the following:

"I believe we all agree that conduct which offends, humiliates, intimidates, insults or ridicules our fellows is tantamount to bullying and is to be condemned in any just and civilised society.  I reject the notion that prohibiting conduct that offends, humiliates, intimidates, insults or ridicules another person on the basis of their religion is a restriction of free speech.  I believe it is no more a restriction on free speech than prohibiting such offensive action against a person on the grounds of their race or their sex. 


Mr President, behaviour that offends, humiliates, intimidates, insults or ridicules another person on grounds stated in this bill is bullying and is to be condemned in a civilised society. "

I think these comments should be read in the context of Kerry Finch supporting the application of the "good faith" exemption (S 55) to S17.  So probably he is not considering robust debate or reports of a public event that happen to insult or offend someone on the basis of a political view to be "bullying".  But even so, the above is way too overgeneralised.

I've mentioned before that it's common in internet flamewars for a troll to maintain a false view obstinately, no matter how often it is demonstrated to be false.  To argue that someone responding to such a view who then ridicules or insults the troll on the basis of the opinions the troll claims to hold, is thereby not only "bullying" the troll but in need of policing, is hardly equitable.  Even to hold the person responding to the troll to the good faith requirement, when the troll themselves did not display good faith in maintaining vexatious and false claims, is hardly fair.  Mr Finch is tarring a lot more people with the "bullying" brush than I suspect he has any idea of, and it makes me wonder whether he has been following the debates about this amendment as closely as some others.

We all have different ideas of what a civilised society should condemn, but in my view clueless overgeneralisations and melodramatic wavings of the "bully" card would sit fairly high on the list.

Update 21 Aug: A Liberal amendment to reduce the range of attributes covered by Section 17 just passed 8-6.  The bill as amended now adds only gender identity and intersex to the list of protected attributes.  While I would not have minded some of the other attributes being added as well, the most important thing was that the potentially disastrous inclusion of political and religious attributes was averted.

I will have the vote breakdown and some comments on any further debate when it shows up in Hansard.  Unfortunately I was out doing a radio interview and missed all but the tail end of proceedings.

Debate on the Bill as a whole continues this afternoon.

Update 22 Aug: The Bill as a whole has been passed in the Legislative Council with amendments and returned to the Lower House.  It does not become law until the House of Assembly passes it. Exclusion of faith-based schools was rejected after an amendment was tied 7-7 and hence defeated; instead there will be a provision for faith-based schools to apply for an exemption.  (An excellent idea in my view, provided they apply for an exemption from taxpayer funding at the same time.)  See The Examiner here for a report on the changes.

Concerns have been raised about the failure to extend Section 17 to cover sexual orientation as a protected attribute, in light of irrational homophobic flyers delivered in the Nelson Legislative Council election, and apprehended by Australia Post before they could be delivered in connection with a Senate campaign. 

I believe these concerns are in error. Section 17 of the Act addresses person-to-person discrimination - material that targets "another person on the basis of an attribute".  The issue of attacks on whole groups of people is covered in Section 19, which deals with the incitement of hatred.  Some of the offensive material recently issued may well fall foul of that section, and if not, there is always the opportunity to consider modifications to it, or to simply treat the homophobes with the contempt and ridicule that they deserve.  The idea that an opportunity to police gay-hate fliers has been lost as a result of the watering down of the S. 17 changes is in my view incorrect.

The Attorney-General Brian Wightman has responded to the amendment, saying he had:

"difficulty comprehending why we would allow people to have protection from humiliating and insulting conduct on the basis of their gender or marital status yet not on the basis of disability, race, religious belief, age or sexual orientation."

I note the conspicuous omission of political belief from this list, although as my previous posts canvassed, there are also valid reasons why religious debate should not be affected by these sorts of restrictions.

Beyond that, I would have no issue with disability, race, age or sexual orientation (indeed all the non-political and non-religious attributes in question) being protected in S 17.  But by expanding S 17 much too far, Wightman created a situation in which an alternative proposal for a minimal extension or no extension was always likely.  Had he been mindful of the need to avoid including contentious attributes that might affect public debate in the first place, the Liberals would have had no leg to stand on in trying to water down the list of attributes.  So while I agree with his comment above with the exception of "religious belief", the situation was completely self-inflicted.

In the end, the attempted over-expansion of S 17 has done those groups deserving extension of it no favours, and they are well entitled to ask why Labor and the Greens did not pursue this in a more sensible manner, and pressed ahead even when they were warned that they were making a big mistake.

I think some comment on this quote from the Anti-Discrimination Commissioner is also appropriate:

"While we have to be careful that parliament doesn't set limits that shut down debate . . . what we're trying to do is get people to think before they speak and act, and think is this going to hurt another person, is it going to do them harm?''

It's just not that simple.  We should be thinking about the value of ridicule, satire and sometimes scathing and offensive commentary in getting people to think before they speak and act.  The proposed changes were as much a perverse protection racket for some forms of thoughtless, offensive and insincere commentary as they were a barrier to others.

It is currently fashionable in the West to criticise Putin's Russia for having enacted laws against the promotion of homosexuality.  (Less than twenty years ago an attempt in our own Legislative Council to make such laws a condition of gay law reform failed 8 votes to 10.)  Russia deserves to be strongly criticised for adopting such laws and if it does not repeal them then I would support Australia boycotting the Winter Olympics.

The question for those who supported the proposed Section 17 changes is this.  If we are justly outraged by what is happening in Russia, but would ourselves suppress free speech or at least make it defend itself in court as soon as it offended or insulted someone on account of their political views, then who are we to complain?

Update 25 Sep:

I've just finally read the Hansard on this issue.  In favour of the Liberal amendment to limit the broadening of the scope of Section 17 were:

Goodwin, Mulder, Rattray, Armitage, Hiscutt, Hall, Dean and Finch.

The last-named is very interesting given his comments which I responded to above.

Opposed were:

Farrell, Forrest, Gaffney, Taylor, Valentine, Harriss (!)

I am not sure why Harriss was opposed.  A fairly typical right-left split, but with a couple of surprises.   An email I sent to all MLCs at the time was quoted in part by MLCs Rosemary Armitage and Greg Hall.

The whole issue has now had its natural epilogue.  The amended legislation has been accepted by the House and the House has recently contemplated controlling bullying through bullying-specific legislation. 

That could, of course, have been done in the first place and saved us all a lot of bother!

Update 27 Sep: There was one small (and welcome) change I didn't notice.  That is that an amendment to the version of the Act as amended by the Legislative Council was passed by the House of Assembly, and then accepted by the Legislative Council 10-4 (with Dean, Goodwin, Hiscutt and Mulder against).

In its final form, Section 17 now extends the existing protections to also include offending, humiliating, intimidating, insulting, or ridiculing a person on the basis of the following:

(a) race;
(b) age;
(c) sexual orientation;
(d) lawful sexual activity;
(e) gender;
(ea) gender identity;
(eb) intersex;
(f) marital status;
(fa) relationship status;
(g) pregnancy;
(h) breastfeeding;
(i) parental status;
(j) family responsibilities;
(k) disability;

The following aspects are not covered by Section 17, but are still grounds on which discrimination remains illegal.

(l) industrial activity;
(m) political belief or affiliation;
(n) political activity;
(o) religious belief or affiliation;
(p) religious activity;
(q) irrelevant criminal record;
(r) irrelevant medical record;
(s) association with a person who has, or is believed to have, any of these attributes. 

It was the potential inclusion of (m), (n), (o) and (p) that was a potential threat to free speech in my view. I could even have included a few of the other omitted clauses for similar reasons.

Eventually, the outcome has been a major improvement to Tasmanian anti-discrimination law without the addition of serious threats to free speech.  Additionally, the whole of Section 17 is now covered by the fair report and good faith defences in Section 55.  It is an excellent outcome; it is a shame that we had to go through what we did to get there - and that those responsible for that are unrepentant.

When the Attorney-General continues to maintain - after all the debate - that "section 17 should apply to all attributes ", we will need to make very sure that the impending, and in principle extremely welcome, introduction of specific anti-bullying laws does not recycle any of this debate's bad ideas about what bullying actually is.  Especially when there is such a groundswell of emotional support for finally doing something about a real problem that governments of all stripes have been hopelessly inept at addressing. 

I share that emotion and welcome it, but I will be reading the fine print of the proposed laws very carefully.


  1. The Leg Co has a pretty solid record for tossing errant legislation like this out, so hopefully all good.

    Unfortunately somewhere along the way people seem to have forgotten the basic rule of argument; the person who takes offence first loses. The idea that something one says can after the fact become illegal because someone else has a character flaw is repugnant to the nature of law.

  2. They passed the Same-Sex Adoption bill and then adjourned because of some impending legislation from the other place. I'm keeping an eye on the notice paper and will start posting again if I see signs that the matter is going to resume I will post here again. It sounds like the Government has a bit of a problem on its hands with the faith-based schools angle.

  3. What the bill needs is an amendment so that it applies only to the government and the agents thereof. That is needed, and is all that is needed, and is all that can be done without adversely restricting free speech.


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