Tuesday, September 20, 2016

Proposed Anti-Discrimination Changes And "Don't Mess With Marriage"

The Tasmanian Government has introduced the Anti-Discrimination Amendment Bill 2016.  This differs little from a draft version that was circulated for public comment, but a notable change is that the proposed addition of a reasonableness clause has been dropped.

This is the second consecutive government to try to amend the fabric of free speech in the state.  The previous Labor/Green government introduced particularly extreme changes which were fortunately thrown out by the Legislative Council.  The latest proposals are nowhere near as concerning but they still raise some serious issues about the fair and clear application of the law to a range of differing beliefs.

There are two main backgrounds to the proposed changes.  The first is the complaint by Martine Delaney against the Catholic Church over the circulation of a booklet entitled Don't Mess With Marriage, a modestly worded but in places highly insulting defence of supposed church creed against same-sex marriage.  The complaint attracted high-profile attention and at times was frothed about in the opinion sections of the Australian on a more or less daily basis.  In fact, all that happened was the complaint was sent to conciliation as quite clearly required by the law, and we never found out whether the booklet actually breached the law because the complaint was dropped after the conciliation stage.

The second is a possible plebiscite on allowing same-sex marriage and concerns that the current Act would not allow the anti-same-sex marriage side to say their piece without breaking the current law by insulting people on the basis of their sexual orientation.

In my view, most of the proposed changes are improvements.  The one that is not an improvement is the core change: the proposed addition of a "religious purpose" test, in which a person who is "in good faith" "conveying, teaching or proselytising a religious belief" becomes exempt from the Act.  It is not made explicitly clear that this also applies to someone discussing an anti-religious belief or a belief against a particular religion.  If this is the case, it may as well be called the Discrimination Act.

My quickly-written submission to the draft version (noting again that the reasonableness test has been dropped so comments relating to it are out of date) follows.  One word unintentionally omitted from the submission has been added in square brackets.  Following the submission I have some comments on the "Don't Mess With Marriage" booklet that seems to have set off the current attempt to change the laws.


Comments on Draft Anti-Discrimination Amendment Bill 2016

by Dr Kevin Bonham

Personal background

I am writing this submission as a public commentator and political analyst with strong views on a range of issues.  In the life of the previous State Parliament I lobbied against some of the extensions to section 17 that were proposed by the former Government, on the grounds that they went much too far.  The proposed changes would have outlawed much of the normal cut and thrust of political debate (in which insulting people for having ridiculous opinions is not only a widespread but also a frequently useful part of political discourse ).  They would also have had serious chilling effects in the fields of art and satire. 

My view is that while the new proposals are nowhere near as objectionable as some of those defeated in the previous parliament, they are nonetheless a mixed bag.  Especially, the proposed explicit protection of religious opinions, while providing no equivalent and equally explicit protection for both non-religious and anti-religious opinions, would render the Anti-Discrimination Act itself [discriminatory].  It would codify a State policy of favouring religion over non-religious opinions in the area of free speech and in any remotely secular society this should not be accepted.

On the other hand, the proposed changes to strengthen rejection provisions under the Act appear to me to be beneficial.

Comment on rationale behind the proposed changes

At least to the extent apparent from public debate, the proposed changes appear to be a reaction to two closely linked issues:

1. The possibility of a plebiscite on same-sex marriage, in which opponents of same-sex marriage might feel compelled to violate the Act by making comments that offend, intimidate, insult, humiliate or ridicule someone on the grounds of sexual orientation (or conceivably, gender identity or other listed attributes).  The argument is that the Act in its current form is an obstacle to fair debate on this matter.

Comment:  If we are to assume that the standards created by the Act are normally valid, then the idea of this argument is that a plebiscite justifies people acting in a way that would normally be viewed as illegal and unacceptable by law.  This is therefore not primarily a valid argument for changing the law; it is primarily a valid argument for not having a plebiscite. 

If a possible plebiscite is the sole pretext for changing the law then the State should firstly argue against holding such a plebiscite.  As there will be plenty of time between the creation of a plebiscite (if created) and its staging, anyone supporting the change on the grounds of a plebiscite should agree that a plebiscite alone does not justify any change until it is certain one will be held.  Moreover, if a plebiscite is the reason to change the law then the implication is that after the plebiscite it would be changed back. 

2. The complaint lodged by Martine Delaney over the "Don't Mess With Marriage" booklet (hereafter DMWM).  The complaint was referred to mediation and then abandoned by the complainant after mediation failed to produce a result she was satisfied with.

Comment: In my view the DMWM saga does justify a review of operating provisions of the Act to ensure they function as effectively as possible.  As a result of the withdrawal of the Delaney complaint, we still do not know whether the DMWM booklet breached the law at the time of the complaint.  If it did not, then the situation highlights a risk raised by opponents of anti-discrimination law about the use of the process to target them.  The expression "the process is the punishment", originally coined for a different area of law, is applicable to situations in which someone accused of breaching the Act but actually innocent may have to go through a long process to clear their name and/or avoid penalties.  A great risk with the application of all forms of "hate speech" law is their use (in good faith or otherwise) against forms of speech that are not actually illegal under them. 

Specific Proposed Changes

1. Wording and definition of "religious purpose"

The Bill proposes to create an exemption for "religious purposes" which are defined as "includes, but is not limited to, conveying, teaching or proselytising a religious belief".

I oppose this proposed definition.   It creates an unfair situation in which a person expressing a view in the process of conveying a religious belief is explicitly protected, but a person who expresses a similarly offensive view in the process of conveying an equally heartfelt belief against a religion or all religion is not.   Even if the legal meaning of "religious belief" is taken to include beliefs about or against religion, this should be made explicit in the interests of public education.  It is also notable that while, for instance, atheism is a belief about religion, it is nonetheless not technically a religious belief (as atheism is not a religion) and should not be described as such for any reason.

If an exemption is to be created at all, I prefer that it refer to a "religion-related purpose" and that the words "religion-related purpose" be defined as something along the lines of "includes, but is not limited to, conveying, teaching, proselytising or commenting about a religious belief or a belief about religion".

It is true that it is not easy to envisage a case in which a non-religious or anti-religious viewpoint might form the basis for an action that offends, intimidates, insults, humiliates or ridicules someone on the basis of a prescribed attribute.  A possible example is an attack on the views of a specific religion that members of that religion then claim to racially based because of the overlap between that religion and an ethnicity.  It seems that if a person makes such an attack on one religion in the name of another they will be automatically protected provided their comments are found to be in good faith and reasonable, but if they make such an attack on a religion from a position other than religious belief they will not necessarily be protected. 

A further concern about protections for "religious purpose" is that they may encourage someone whose viewpoint is primarily hateful rather than religious to clothe their hatred in the guise of religion in order to obtain an exemption.  Not only does this form of hatred do more genuine religious beliefs a disservice, but also the appearance of hateful comments with a claimed religious justification is often a more offensive form of harassment by those with homophobic views than when no religious justification is claimed. 

2. Addition of reasonableness requirement

Clause 4 proposes to amend Section 55 so that the current defence of good faith only applies if the act is also done reasonably.  This constraint would apply to the existing defences of acts done for artistic, academic, scientific or research purposes, as well as to the new proposed exemption of religious purpose.

The addition of the "done reasonably" constraint for artistic, academic, scientific and research purposes has not yet been publicly justified (to my knowledge) by any argument other than uniformity with other jurisdictions.  Especially in the area of art (where the question of whether a seemingly shocking expression is reasonable could be highly subjective even between different legal authorities) I believe there is a need for this extension to be clearly justified by evidence of a problem.  I do not support the addition of the "done reasonably" provision to the existing exemptions at this time.

The application of a "done reasonably" requirement to a "religious belief" exemption is somewhat confusing.  Many "religious" beliefs (ie beliefs sourced from interpretation of ancient scriptures) are seen as unreasonable by modern standards, either because they have been discredited by scientific evidence or because they are abhorrently illiberal or discriminatory.  How does the law decide whether the proselytising of, for instance, a "religious belief" that all atheists/all gay people (/insert group of choice) will burn in Hell is "reasonable"?  The meaning of the "done reasonably" clause as applied to the proposed religious exemption requires further discussion with numerous examples of what comments it would apply to.

3. Proposed strengthening of rejection provisions

Clauses 5, 6 and 7 of the Bill effectively require the Commissioner and Tribunal to reject a complaint if it is their view that it will ultimately not succeed.  I support all these proposed changes as they are likely (at least in theory) to minimise the impact of complaints with little prospect of success against their targets.  I do not, however, believe these changes would have had any impact on the DMWM situation as it would not have been immediately apparent to the Commissioner whether the complaint would succeed or not based on the law as it stood at that time.

(submission ends)

On "Don't Mess With Marriage"

I thought I'd give my views on the DMWM booklet as part of this article too, because really I think this booklet needs a good hard shredding to show just how ludicrous and intellectually inept the Catholic Bishops' contribution to the debate really is.  My view is that the booklet probably does not deserve to be banned, but that it does deserve to be harshly ridiculed because it is very silly.  Also it should definitely not be circulated to children in schools that receive public funding.

On page 3 the booklet points out various examples of discrimination (such as that only children are admitted to primary schools and various examples of positive discrimination or special needs programs).  It then argues:

"Thus privileging or assisting particular people in relevant ways is not arbitrary but an entirely fair response. And 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 problem is that even if marriage is an institution so designed (historically, an extremely dubious claim as marriage has served many purposes) the ability of marriage to provide these claimed purposes for mixed-sex couples is simply not affected by allowing same-sex couples to marry.  This is different to, for instance, extending a program targeted at a disadvantaged group to everyone: the dilution of resources would then prevent that program from achieving its purpose of helping the disadvantaged group.  The Catholic Bishops have missed the point: discrimination needs to be justified by the potential effect of not discriminating.

On page 5, the booklet contrasts a view that marriage is about "an emotional tie, enhanced by public promises and consensual sexual activity" with a supposed Catholic view that marriage is "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."  The argument is that marriage is a "comprehensive" union because of the possibility of reproduction and anything else is second-rate.  But what of couples who can't reproduce?  On them, there is this:

This is true even where one or both spouses are infertile: they still engage in exactly the same sort of marital acts as fertile couples, i.e. that naturally result in a child. Marriage for them as for other truly married couples is grounded on a total commitment: bodily and spiritual, sexual and reproductive, permanent and exclusive. It is in these senses that marriage is comprehensive.

So apparently couples have a reproductive commitment to each other even if they marry each other knowing that one or both biologically cannot have children, and even if they don't even want to? How ridiculous.  And quite obviously if a heterosexual couple who marry do not want children and take all possible steps to avoid having any, then they cannot be said to have a "reproductive commitment" of the sort the Catholic Bishops call for.  The logical implication of the DMWM argument is that couples who are childless by choice should not be allowed to marry and have inferior relationships, but the church doesn't go there.  It is only interested in fencing out the gays.  Later the booklet explicitly defines married couples as being "open to the procreation of children", without admitting that its conception of marriage in fact excludes many existing mixed-sex marriages.

The implication must be that the Catholic Bishops in fact believe that marriages between mixed-sex couples who do not intend to reproduce are not true marriages and should be annulled by force of law.  However, they lack the guts to openly admit this.

It goes on:

On this traditional view what allows for this special kind of union between a man and a woman in marriage is precisely their difference and complementarity. Their physical, spiritual, psychological and sexual differences show they are meant for each other, their union makes them whole, and through their union ‘in one flesh’ they together beget children who are ‘flesh of their flesh’. They share the sameness of humanity but enjoy the difference of their masculinity and femininity, being husband and wife, paternity and maternity. 

Apparently if someone enjoys being with a partner who has the same biological and legal gender as them but otherwise has a totally different personality type, that doesn't count - the only difference worth enjoying in a marital sense is having different bits between your legs and using them to breed.

On page 8 we see a typical example about how this supposedly nicely worded booklet is actually loaded with passive-aggressive sniping:

Families also provide the social stability necessary for the future by modelling love and communion, welcoming and raising new life, taking care of the weak, sick and aged. The principal ‘public’ significance of the marriage-based family is precisely in being the nursery for raising healthy, well-rounded, virtuous citizens

This continues on page 11:

Sometimes people claim that children do just fine with two mums or two dads and that there is “no difference” between households with same-sex parents and heterosexual parents. But sociological research, as well as the long experience of Church and society, attests to the importance for children of having, as far as possible, both a mother and father. 

Implication: if you raise a child in a same-sex parenting situation, you are raising citizens who are not healthy, well-rounded or virtuous.  

The "evidence" for this turns out, as usual, to include the widely discredited Regnerus study and also a raft of papers that pertain to single-sex parenting, divorce and other situations irrelevant to established same-sex two-parent families.  To cite the Regnerus study without acknowledging the vast number of criticisms of it published in various sources is not merely an error in good faith but intellectual laziness at best.  More likely it suggests a determination to cite friendly sources as if they are factual without even checking how they have been received by academia.  It is for this reason that I suspect the DMWM booklet could have been in hot water had the Delaney complaint actually gone the distance.  Citing the Regnerus study without any comment on its many known defects is comparable to the many sloppy errors of fact made by Andrew Bolt that caused him to lose his case.

On page 12 we get the scaremongering:

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. 

I'm not sure that it teaches differently anyway, but it is easy enough to argue that marriage is about whatever those getting married want it to be about.  If a religion can't argue that case to its own flock there is no hope for it.

And people who adhere to the perennial and natural definition of marriage will be characterised as old-fashioned, even bigots, who must answer to social disapproval and the law.

Well no, you can adhere to whatever definition you like.  The point is that you can't impose that definition on everybody else.

And so on.  I may comment further on this issue once I have seen some of the parliamentary debate.

Update 23 Sept: A couple of notable responses:  Firstly the Australian Christian Lobby don't actually like the changes because they don't go very far and because they will only protect religious homophobes and not non-religious ones (who the ACL may well believe are going to Hell but will nonetheless make use of while they can).

Secondly this submission from Community Legal Centres Tasmania makes the point that there is no basis in case law for a need to provide protections to religious views, and presents many useful examples.  The Law Society of Tasmania also opposes the changes for similar reasons.

Archbishop Porteous, who was the respondent to the DMWM complaint, does not support the proposed change as it applies to "hate speech".  However he seems to differentiate between "hate speech" and other forms of content covered by the current laws.

Update 1 Oct: Government To Press Ahead Regardless

Supporters for the proposed changes on either side of the religious/SSM divide have been in short supply, and what's worse Eric Abetz is among them.  Tonight on ABC TV news the changes were justified  (supposedly) in terms of free speech for religious people about same-sex marriage (whether there's a plebiscite or not) and also the freedom of businesses potentially at risk from slow anti-discrimination processes.

The link drawn in the news item between employing people with a disability and the changes (most prominently by a 2014 Liberal candidate, though also hinted at by Vanessa Goodwin) is largely a distraction.  The "streamlining" amendments only apply to the dealing with complaints under sections 17 (1) and 19 of the Act, which are the prohibitions on offensive public speech and not the prohibitions on discrimination in employment or service provision.  So if there are business concerns about employment then these amendments have nothing to do with them.

As for what those engaging in a so-called "religious purpose" will gain here, they're already protected if their behaviour is a public act done in good faith for any purpose in the public interest.  They won't be protected under the changes if their behaviour is for "religious purposes"  but isn't in good faith, and they may still face a lengthy investigation if the goodness of their faith is not clear.

Someone will move from being guilty to innocent under the proposed changes if their behaviour is for "religious purposes" and is in good faith, but either their behaviour wasn't in the public interest or cannot be shown to be.  They'll move from being innocent (but potentially investigated at length) to having a complaint dismissed quickly if their behaviour is for "religious purposes", is in good faith and is in the public interest, but proving public interest, while possible, is difficult.  And that seems to be all the changes will accomplish where religious speech is concerned.

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