Saturday, August 12, 2017

Will "Hate Speech" Be Illegal In The "Plebiscite"?

Things are moving fast in the Government's attempt to conduct a national voluntary postal vote on same-sex marriage.  Although we won't get to the High Court challenge against the "survey" until September 5-6 - meaning we might be a month away from knowing if the thing is on at all - a lot of questions are being raised and in cases answered about how exactly the plebiscite will be conducted, if it does proceed.  A major problem with the exercise has been that since it is not an Australian Electoral Commission process authorised by an act of Parliament, normal election requirements (authorisation, fraud and vote-buying protections and challenges) do not exist unless separately provided for.  In Thursday's instalment (Electoral Process, But Not As We Know It: Postal Plebiscite V2) I mentioned that at least regulation would be needed to get around these problems.  However the regulations available under legislation concerning the ABS are very limited concerning penalties.

In a welcome move, acting Special Minister of State Mathias Cormann has flagged the stronger possibility of special legislation to impose AEC-election-like conditions for the, er, whatever it's called.  This would create the really strange situation of the Senate approving laws governing a postal vote that the Senate had itself not approved and would have blocked if asked to approve it.  Such laws might themselves be subject to challenge.  The most important aspect of this debate for me, though, is the incorrect impressions of the impact of such possible laws that we are seeing in the media.  The SMH and ABC have referred to them as "ground rules for a fair and respectful debate on same-sex marriage", rules that would "stop hateful advertising material being distributed" and as protections against "malicious publications".  It isn't so.

These descriptions are invalid based on what Senator Cormann has so far said, which is simply that he would seek to reproduce the same protections for electoral processes that the AEC normally applies.  The error goes to the heart of one of the most common media confusions about Australian electoral law.

The Commonwealth Electoral Act S 329 (1) says:

      A person shall not, during the relevant period in relation to an election under this Act, print, publish or distribute, or cause, permit or authorize to be printed, published or distributed, any matter or thing that is likely to mislead or deceive an elector in relation to the casting of a vote.

This is not a general "truth in advertising" provision.  The words that are so widely overlooked are "in relation to the casting of a vote".  The provision concerns misleading and deceptive statements about the mechanics of the vote - telling someone that voting a certain way is formal when it isn't (or vice versa), telling someone the election is on the wrong day and so on.  In Australia, truth in advertising provisions apply only at state/territory level in South Australia and the Northern Territory, and the South Australian Electoral Commissioner has recommended abolishing them.  They place electoral authorities in a very difficult place in determining what political claims are clearly unfactual, a judgement that should really be made by the voters.  See Professor George Williams' submission to JSCEM (PDF) for an excellent summary of what problems a federal truth-in-electoral-advertising law might cause.

In any case, material can be disrespectful, unfair, hateful and malicious without necessarily being false or misleading (it might just be a nasty opinion), so even if a federal truth-in-advertising power did exist, it might not stop ugly stuff from doing the rounds.

Provided that hate material doesn't mislead voters about the casting of their vote, the only restriction that would be imposed by adding AEC requirements to the plebiwhatever is that material would need to be authorised.  This means simply that all election material carries the name and address of a person in whose name it is posted and who is willing to take responsibility for it.

The JSCEM Report on authorisation processes (PDF) noted that authorisation is important mainly because voters have the right to know who is responsible for electoral advertising.  In the context of hate material, a person might be more reluctant to publish hate material if they had to accept responsibility for it.  Parties will sometimes circumvent this problem by outsourcing their hate ads to shell authorisers, as the Tasmanian Liberal Party did with the Exclusive Brethren in the leadup to the 2006 state election, but if parties are busted doing this it may be an even worse look for them than owning up in the first place.  The other advantage of authorisation in the context of hate material is that if the hate material is defamatory or otherwise illegal, then no-one will be able to publish it without risk of being sued or prosecuted.

However, if someone is willing to authorise a hateful statement in a federal election, and the statement isn't otherwise illegal, there is nothing in normal electoral laws that would stop them.

No Federal Law, And State-By-State Variation

Australia also does not have a federal offence of vilification based on sexuality.  Vilification based on race is a federal offence under the Racial Discrimination Act 1975 but there is no similar protection for other minorities that might be vilified.  There are, however, a range of measures available in the states:

* In Queensland, it is unlawful to incite hatred, severe contempt or severe ridicule of a person or group based on their sexuality or gender identity.  Exemptions include:

a public act done reasonably and in good faith for purposes in the public interest, including discussion and debate; or for academic, artistic, scientific or research purposes;
a fair report of a public act; or
where publication of material would be subject to the defence of absolute privilege in proceedings for defamation.

* In New South Wales, it is unlawful to incite or encourage hatred, severe contempt or severe ridicule of a person or group based on actual or incorrectly perceived homosexuality, transgender status or HIV/AIDS status.  Similar exemptions apply in Queensland but with slight differences, eg

a public act done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

* Tasmania has Australia's most extensive anti-vilification laws, possibly as a reaction to the historic stain of having taken far too long to repeal the nation's worst anti-gay sex laws.  In Tasmania, it is unlawful to incite hatred, severe contempt or severe ridicule of a person or group based on sexual orientation or lawful sexual activity.  However it is also illegal in Tasmania, 18C-style, to:

engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (fa), (g), (h), (i) or (j) 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.

The protected attributes list includes sexual orientation, lawful sexual activity, gender identity and intersex.

Similar exceptions apply as in Queensland but again the "public act" wording is different:

" a public act done in good faith for –

(i) academic, artistic, scientific or research purposes; or

(ii) any purpose in the public interest."

* In the ACT, it is unlawful to publicly incite hatred towards, revulsion of, severe contempt or severe ridicule of a person or group based on: gender identity, HIV/AIDS status, intersex status or sexuality.  Again similar exemptions apply but the "public act" wording is different:

   (c)     do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter.

I have not been able to find any reference to anti-vilification laws (as distinct from laws against discrimination) involving sexuality in the remaining States or the NT.

The meaning of "good faith" in such cases seems critically important here.  In the infamous Andrew Bolt 18C case, Bolt's inaccurate comments about alleged "white Aborigines" were found to have lacked good faith because:

425 In my view, Mr Bolt’s conduct involved a lack of good faith. What Mr Bolt did and what he failed to do, did not evince a conscientious approach to advancing freedom of expression in a way designed to honour the values asserted by the RDA. Insufficient care and diligence was taken to minimise the offence, insult, humiliation and intimidation suffered by the people likely to be affected by the conduct and insufficient care and diligence was applied to guard against the offensive conduct reinforcing, encouraging or emboldening racial prejudice. The lack of care and diligence is demonstrated by the inclusion in the Newspaper Articles of the untruthful facts and the distortion of the truth which I have identified, together with the derisive tone, the provocative and inflammatory language and the inclusion of gratuitous asides. For those reasons I am positively satisfied that Mr Bolt’s conduct lacked objective good faith.

With the usual disclaimer that I am not a lawyer, it would seem that if this standard were applied to the scruffier edges of the No campaign, material that was gratuitously offensive and careless with the facts might be held to breach Tasmanian law at least.

Campaigns Might Be Legal In One Place And Not Another

The impact of the range of laws about hate speech in different parts of the country might be that hateful material that is legal in one state might not be legal in another, or while legal in another might be subject to a lengthy complaint process at much inconvenience to the author before being found legal.

An example of homophobic material policed under the Tasmanian law was the pseudo-statistical crackpottery distributed to letterboxes in the lead-up to the 2014 Legislative Council election for the seat of Nelson. This was an election at which candidate positions on same-sex marriage had been an election issue.  One James Durston, going under the at least doubly inappropriate alias "Threewisemonkeys", was found to have published the braindead flier in question and ordered to publish an apology.

A more high-profile case in Tasmania was the Don't Mess With Marriage booklet, which at one stage was being discussed in The Australian on a more or less daily basis.  My previous comments about this deeply silly little booklet, and related proposals to amend the Tasmanian law, are here.  The complaint was initially accepted for conciliation but withdrawn by the complainant after not getting anywhere much, so we never got to find out whether the Catholic Bishops had breached the Tasmanian law (a finding that if made might well have led to a constitutional challenge.) Another significant complaint is now underway.

A proposal to include a "religious purpose" exemption (similar to that in NSW) is coming back before the Tasmanian Legislative Council in its current session, but this exemption is not even supported by the Christian Right, who don't want the Act to be biased in their favour and are calling for the Tasmanian law to be much more heavily wound back.  The proposed changes also include sensible changes that would make it much easier for complaints with little prospect of success to be snuffed out earlier in the process.  It will be very interesting to see how this pans out as the left of Tasmanian politics (Labor plus left-wing independents) holds a blocking majority in the Council at the moment.

So, in summary to this stage:

1. None of the legal changes likely to be proposed based on the comments by Senator Cormann would necessarily prevent hate speech.
2. There is no federal law that would necessarily prevent hate speech.
3. Some state laws cover hate speech and those that do vary (considerably) by state.
4. The laws that do cover hate speech in given states - especially Tasmania - are little tested and their limits are unclear

Where to from here?

I argued previously that rather than the plebiscite presenting valid reasons to change state laws on vilification issues, state laws on vilification issues were a reason not to have a plebiscite.  If the No campaign cannot have its say without demeaning people on the basis of their sexuality, and doing so in a normally illegal way, then that is yet another sign that Australian governments should have simply legalised same-sex marriage long ago.

However if the plebitrite is really on, then these state laws are an issue, because they present a basis on which the No campaign can claim they lack a level playing field on which to argue their "case" against same-sex marriage.  For very confused minds, this may play into Tony Abbott's claim that the vote is about "political correctness" and "free speech".  That is even though the restraints imposed by these laws exist even though same-sex marriage is illegal, and more importantly even though anyone who consistently supports freedom wouldn't be arguing against allowing same-sex marriage in the first place.

If there is legislation to introduce electoral offences, then in theory a Senate majority could amend that legislation to add plebiscite-specific hate-speech controls.  However the Government would presumably not accept such amendments, and even the offering of them would play into the No campaign's hands by being easily portrayed as an attempt to create a skewed playing field - yet reason why plebiprocesses are a very bad idea, since they so easily become about everything but the core issue at hand.

Indeed, any law seeking to regulate "hate speech" would probably be challenged by No campaigners in court, creating still further uncertainty about what people were allowed to say about the campaign.  So it might be better not to go there - and for Yes campaigners to exercise great strategic caution about making complaints in the states that allow them - and instead to just blame the Government for any cases of "hate speech" that occur.

On that basis, I could be wrong, but I think the prospects for effective national prevention of "hate speech" during the campaign are rather weak.   If anything, the campaign will result in pressure to wind back or suspend some aspects of existing state laws.

"Hate speech" by Yes campaigners?

Some pretty vitriolic stuff will be said by both sides during the campaign and No campaigners may well allege that Yes campaigners are also engaging in "hate speech".  Indeed I have seen such comments already on social media in recognition to a certain Tim Minchin video.

However, the laws that do exist generally won't see it that way.  Many states have prohibitions on vilification on the basis of religion, but vilifying a person for spouting a load of clueless homophobic claptrap including token references to God is not the same as vilifying them for their religious views.  "Opposition to allowing same-sex marriage" is not a protected attribute anywhere (though it would have been had the previous Tasmanian Labor-Green government had their dangerously clueless way on this issue.)

Other issues under scrutiny

There are many other electoral process aspects of the plebiscite that will not necessarily be resolved by special legislation to copy the Electoral Act offence provisions.  One curious aspect that still seems to have life in it is the possibility of 16-17 year-olds who register being allowed to vote (though that possible loophole is easily "fixed" by patching the regulations if required.)  I'm not entirely sure the "silent elector" issue has been put to bed yet either.  I recommend following both Michael Maley (@michaelmaley7) and Stephen Murray (@smurray38) on Twitter for informed comments on these sorts of things.  Or for non-Twitter users, see Murray's site and Maley's comments in various places (including Antony Green's website, and also comments on my previous article).

Also see Damon Muller's Known Unknowns About The Same-Sex Marriage Survey.

Update (Sunday)

Labor have flagged a concern I had also wondered about - if the Senate approves a regulation pertaining to a survey, would this compromise legal challenges against the survey based on it being a measure unapproved by parliament?  The obvious solution to this is for the legislation to be delayed until the court challenge has been ruled on, even if this involves delaying the "survey".

(Disclosure: The currently proposed plebiscite count dates are inconvenient to me because of an inter-state commitment.)

Update (16 August):

Proposed legislation to extend protections has been seen by Labor and the Greens but, per the above, would most likely be put only after the High Court case had concluded.

1 comment:

  1. Comment by Michael Maley:

    The issue of legislating to require truth in electoral advertising has been an ongoing one ever since the High Court’s ruling in the leading case of Evans v. Crichton-Browne [1981] HCA 14. A provision of this type was inserted in the Commonwealth Electoral Act 1918 by the Commonwealth Electoral Legislation Amendment Act 1983, but following a further inquiry by the Joint Select Committee on Electoral Reform (see report at, was deleted immediately before the 1984 election by the Electoral and Referendum Amendment Act 1984. The inquiry in question and associated report dealt with the fundamental issues in considerable depth.

    One point of history is worth noting: the idea of regulating truth in advertising was not new even in the 1980s. L F Fitzhardinge, in the second volume of his biography of William Morris Hughes, noted that the latter had, in the run up to the second conscription referendum in 1917, promulgated:

    “a new regulation making it an offence to publish false statements intended to mislead the voters, a regulation which clearly left a wide discretion to the censors”.

    That regulation in fact formed the basis for the 1983 amendment. (I know this because I prepared the 1983 amendment drafting instructions.)

    A broader question you only touch on is the basis of constitutional power for the Commonwealth to legislate in relation to the plebisurvey. There’s no doubt that the Commonwealth has power to regulate federal election campaigning, as campaigns have long been seen as an integral part of elections. But it seems to me that there’s a real potential issue about whether the power to make laws regarding “census and statistics” would include a power to regulate political discourse surrounding an issue of opinion on which statistics are supposedly being gathered, since “campaigning” has never in the past been seen as part of the process of statistics gathering. While the Racial Discrimination Act contains valid anti-vilification provisions, the legislative power relied on to support that Act was the external affairs power, linked to Australia’s ratification of the Convention on the Elimination of All Forms of Racial Discrimination; and unless Australia has ratified something similar in relation to sexual preference, it’s hard to see the external affairs power coming into play. And of course, always ticking away in the background is the implied freedom of political communication.

    All in all, it seems pretty likely that anything other than minimalist legislation would wind up in the High Court very quickly.


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