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.

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.

A Same-Sex Marriage Plebiscite Is An Even Worse Idea Now

Last year I wrote a piece called A Same-Sex Marriage Plebiscite Is A Terrible Idea.  At the time I wrote it, Tony Abbott was still Prime Minister, albeit not for long, and the proposed plebiscite (or "non-binding referendum" if you prefer) was just a silly rumour being fanned by foolish Liberal-aligned op-eds.

I made the following basic points:

* The plebiscite would not generate new knowledge since it is already clear that Australian voters support same-sex marriage.
* The majority voice is irrelevant because the right of two consenting adults to marry each other should be recognised, since there is no reason to allow the majority to impugn it in a liberal democracy.
* Australia has resolved far more difficult issues without recourse to a referendum, and to subject same-sex marriage to such a vote opens the door for constant demands for unnecessary national votes on other subjects.
* The plebiscite would not be binding.
* A plebiscite, even if passed, stigmatises people in (or seeking) same-sex relationships by implying that their relationships were problematic enough to require the consent of society.
* At a time when Australia is in debt, a plebiscite is an unconscionable waste of public money unless a need for it can be demonstrated.

Tasmania Senate 2016: Prospects and Guide

SUMMARY
Likely outcome 4 Liberal 4 Labor 2 Green + Lambie with 12th seat unpredictable
Final seat between Liberal, Labor, Lambie Network or a micro-party
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Tasmania's list of Senate candidates has been released.  The state has 58 candidates, including 21 party groups and five ungrouped candidates (two of whom are running for parties).  This compares with 54 candidates in 23 party groups (plus one ungrouped) in 2013.  The new Senate system should have the impact over time of discouraging so many micro-parties from wasting their deposits and cluttering up the ballot paper, but because it's the first time and it's a double dissolution, a lot of them have decided to try their luck anyway.  (There's a scurrilous theory that some of them are part of an organised flood of the ballot.)

This piece gives some basic information and views about the parties and lead candidates, and some general background to the contest.  The party candidate section, in places, represents my own opinions of the candidates and parties.  There are a few obnoxious candidates on the Tasmanian ballot  and I have no hesitation in warning voters about these people.  There are also some parties that may not be what they seem.

For advice about how to best use the Senate system to vote see How To Best Use Your Vote In The New Senate System.  I have listed how-to-vote cards for the parties here, but my advice is to ignore them since following any how-to-vote card weakens your vote.

Also see ReachTEL Says Lyons Going, North In Doubt for some comments on some rather vague Senate related polling for Lisa Singh, Richard Colbeck and Jacqui Lambie.

Abetz, Mushrooms And Shaky Same-Sex Marriage Polling

Advance Summary

1. Recent comments by Senator Eric Abetz opposing marriage equality should be taken in the context of Abetz's historic opposition to repealing "anti-gay" sex laws, and his use of much the same thin-end-of-the-wedge argument style then as now.

2. The anti-equality group Australian Marriage Forum is receiving substantial publicity but media have not examined whether this group has a formal membership structure or substantial membership.

3. Claims by the Ambrose Centre for Religious Liberty that support for same-sex marriage drops when respondents are asked to support changing the Marriage Act ignore the likelihood that some respondents would support achieving it through distinct legislation.

4. Many other findings in the Ambrose Centre's study are unreliable because of the extent to which respondents have been primed through the emphasis on one side of the story.

5. The Ambrose Centre study does, however, reveal that most voters who oppose same-sex marriage would still do so even if it did not cause significant social change and even if studies showed there was no impact on the wellbeing of children.  

6. Australian Marriage Forum's own report on polling is awash with unsound conclusions, and the amount of priming involved in their question designs means that little of use can be drawn from it.

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This very long and in places rambling article covers some dodgy polling by opponents of same-sex marriage, but also some dubious recent comments by fellow Tasmanians on the issue.  There's also an irrelevant diversion about mushrooms.  Feel very free to just read whatever bits of it, if any, interest you.    As stated before I completely support allowing federal same-sex marriage and regard the arguments against it as lacking even the slightest shred of merit.  This then will not read like an unbiased article, but when it comes to polling I am careful to criticise bad (and praise good) polling practice by both sides of any debate, whatever I think of the views of those involved.

[An update re the irrelevant mushtoom diversion was added in 2025.]

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.