A Free Speech Problem With Marriage Law Survey Safeguards

Advance Summary

1. This article raises concerns about specific "hate speech" prohibitions in the Government's Marriage Law Survey (Additional Safeguards) Bill 2017.

2. This article argues that Sections 15(1)(a) and (b) place unreasonable constraints on free speech by making political opinions attributes that are protected from "vilification", contrary to the normal practice of anti-vilification laws.

3.The ability to express strong criticism of people who present offensive or unfactual opinions serves as an important deterrent against expressing such opinions in the first place.

4. Many aspects of the proposed Sections and the limited exemptions available are insufficiently clear to a lay reader and involve a novel area of Australian anti-discrimination law.

5. Sections 15(1)(a) and (b) should be amended so that they apply only to intimidation and threats and not to "vilification". 

6. If this does not occur, then the debate surrounding the postal survey is not an adequately and clearly free and fair environment for the frank exchange of opinions and criticism.

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.