Update 19 January 2017:

Unfortunately, the Tasmanian Government has pushed ahead with its flawed legislation to allow greater rights to vilify LGBTI people, and especially vilification by religious organisations.

The Anti-Discrimination Amendment Bill 2016 – full text here – was passed by the Legislative Assembly on 25 October 2016.

This includes an expansion of the ‘public purpose’ defence for vilification, to cover “a public act done in good faith for… religious purposes” where religious purpose is defined as “includes, but is not limited to, conveying, teaching or proselytising a religious belief.”

Disappointingly, the Legislative Council failed to refer the Bill to an inquiry, although the Government ran out of time for the Bill to be passed in 2016 – the Attorney-General, Vanessa Goodwin, stated that:

“Due to our heavy legislative agenda and given the proximity to the end of the parliamentary year, the Government does not intend to bring the bill on for debate until next year. This will allow further time for community debate and stakeholder feedback to MLCs on this important issue.”

With Tasmanian Parliament resuming on March 7, that means there’s now less than 7 weeks left to convince upper house MPs not to undermine what has been, until now, Australia’s best anti-discrimination scheme.

Original Post:

Department of Justice

Office of Strategic Legislation and Policy

GPO Box 825

Hobart TAS 7001

c/ legislation.development@justice.tas.gov.au

Friday 9 September 2016

To whom it may concern

Submission re Proposed Anti-Discrimination Amendment Bill 2016

Thank you for the opportunity to provide a submission in relation to the Government’s proposed amendments to Tasmanian anti-vilification laws, which are included in the Anti-Discrimination Amendment Bill 2016 (‘the Bill’).

I make this submission as an advocate for lesbian, gay, bisexual, transgender and intersex (LGBTI) equality, and as someone who takes a keen interest in anti-discrimination and anti-vilification laws, both at the Commonwealth level, and in Australia’s states and territories.

My first comment in response to the proposed Bill is to observe that it appears to be a ‘solution’ in search of a problem.

As far as I can ascertain, there seem to be two main motivations for these reforms. The first is to satisfy the demands of the Australian Christian Lobby (ACL), who have repeatedly requested that state and territory LGBTI anti-vilification laws (where they exist) be suspended, or even abolished, in the lead-up to the potential national plebiscite on marriage equality.

The obvious response to such a demand is that, if their arguments against the equal treatment of LGBTI people under secular law require them to breach anti-vilification laws, perhaps they need better arguments rather than worse laws.

The second motivation appears to be a recent case, involving Mr Julian Porteous, following the distribution of the Don’t Mess with Marriage booklet by the Tasmanian Catholic Church that stated same-sex parents “mess with kids”, and that same-sex partners are not “whole people”. Possibly the most salient point to note is that the complaint was subject to attempted conciliation, which did not result in it being resolved, but then did not even proceed to the Tribunal.

I would argue that these two motivations – to allow the ACL to contravene vilification standards during any forthcoming plebiscite debate, and to respond to a single case that did not even make it to the Tribunal – are not sufficient justification to propose reforms that would ‘water down’ the anti-vilification protections that are currently offered to LGBTI Tasmanians.

Unfortunately, that is exactly what this Bill attempts to do. By replacing the wording of section 55, and expanding the exceptions to the vilification protections offered under sections 17(1) and 19 of the Anti-Discrimination Act 1998 (‘the Act’), the Bill would effectively allow greater vilification of people on the grounds of sexual orientation, lawful sexual activity, gender identity and intersex (among other grounds).

In doing so, it would wind back hard-fought, and hard-won, protections introduced after the long-running decriminalisation campaign of the 1980s and 1990s. It is very hard to see, 18 years since its original passage, why there is a need to make anti-LGBTI hate speech easier in the contemporary environment.

I have two more-specific concerns about the proposed changes to section 55.

The first is to question why the exception, which would be expanded to include ‘public acts done reasonably and in good faith’ for a ‘religious’ purpose (where ‘religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief’), should apply with respect to section 19[i], which establishes the more serious offence of ‘inciting hatred’ (whereas sub-section 17(1)[ii] regulates ‘conduct which offends, humiliates, intimidates, insults or ridicules’).

It is difficult to comprehend why the Act should be amended to make lawful the incitement of ‘hatred towards, serious contempt for, or severe ridicule of’ people who are lesbian, gay or bisexual (noting that section 19 currently does not offer protection to transgender or intersex people) merely because it is done for a ‘religious purpose’.

According to advocate Rodney Croome “Worst of all is the Government’s decision to erode hate speech protections even more than people like Julian Porteous want. He has called for the law against denigrating statements to be watered down, but has said the law against the more severe crime of incitement to hatred [ie section 19] should be kept intact.”[iii]

It seems this particular ‘solution’ isn’t just in search of a problem, it is lacking beneficiaries too (although it is clear who the losers will be from such an amendment: lesbian, gay and bisexual Tasmanians).

My second concern is to question the limits of the proposed exception for vilification for ‘religious purposes’, with respect to both sections 17(1) and 19. In particular, and noting it will be challenging for the Tribunal, or courts more broadly, to determine when a public act for a ‘religious purpose’ is ‘done reasonably and in good faith’ or not, how far will religious individuals or groups be allowed to go in ‘proselytising’ a religious belief that itself incites hatred?

An example of such a belief would be for an extremist christian organisation to promote a ‘literal’ reading of Leviticus 20:13, which has been interpreted as “If a man lies with a male as with a woman, both of them have committed an abomination; they shall surely be put to death; their blood is upon them”[iv].

And, before it is suggested that this example is implausible, we should recall that it is only four years since a senior figure within the Salvation Army publicly defended this belief – that gay people should be put to death – live on radio[v].

Given this, how would the proposed amended law deal with a situation where, instead of distributing the booklet Don’t Mess with Marriage, a religious school sent children home with a pamphlet entitled Gay Men Should Die (or perhaps slightly more generously, Gay Men Should Die Unless they are Celibate) conveying the ‘religious belief’ that men who have same-sex sexual intercourse ‘shall surely be put to death’?

It is reasonably clear such a pamphlet would ‘offend, humiliate, intimidate, insult or ridicule’, as well as likely inciting ‘hatred, serious contempt for or severe ridicule’ of, people on the basis of both sexual orientation and lawful sexual activity, and in doing so contravene both sections 17(1) and 19 of the Act.

But it is also possible the proposed new section 55 would ‘excuse’ these actions because it would be a public act done in ‘good faith for a religious purpose’, as it was ‘conveying, teaching or proselytising a religious belief’, no matter how offensive it is, to young people at a school operated by that organisation[vi].

I would argue that this would be an unacceptable outcome, and hope that the legislative sponsors of these amendments, and indeed anyone pushing for changes to Tasmania’s vilification laws, would agree.

It is particularly concerning that such an undesirable result could be achieved given we have seen above that there doesn’t actually appear to be any justification for the introduction of this Bill.

More generally, as someone from outside the State I would argue that the undermining of Tasmania’s anti-vilification regime, which is currently among the best, if not the best, law in the country, in this way would be a negative precedent for other jurisdictions.

This is especially important given only four states and territories currently have any anti-vilification protections for any sections of the LGBTI community (Tasmania, Queensland, NSW and the ACT). Nor do such laws exist federally. Even where they do exist, such as in NSW, they have significant flaws (for example, only protecting lesbians, gay men and some transgender people from vilification, and not protecting bisexuals or intersex people at all).

In my view, the Tasmanian Government should be concentrating on ensuring its anti-vilification laws are comprehensive (such as by amending section 19 to prohibit the incitement of hatred, serious contempt for or severe ridicule of transgender and intersex people) and effective, instead of making it easier for people to vilify others because of their sexual orientation, gender identity or intersex status.

Thank you again for the opportunity to make this submission and for taking it into consideration. Should you require clarification, or additional information, please do not hesitate to contact me at the details provided below.

Sincerely,

Alastair Lawrie

Footnotes:

[i] “19. Inciting hatred

A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of –

• the race of the person or any member of the group; or
• any disability of the person or any member of the group; or
• the sexual orientation or lawful sexual activity of the person or any member of the group; or
• the religious belief or affiliation or religious activity of the person or any ember of the group.”

[ii] “17. Prohibition of certain conduct and sexual harassment

(1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules abother 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.”

NB This covers sexual orientation (16(c)), lawful sexual activity (d), gender identity (ea) and intersex (eb).

[iii] The Mercury, Talking Point: Green light being given to homophobia and any bigot with a bible’, 31 August 2016. http://www.themercury.com.au/news/opinion/talking-point-green-light-being-given-to-homophobia/news-story/00ffb213c903540b1febfdb94dbef243

[iv] Of course, such a position would overlook the inherent contradictions of adopting a ‘literal’ interpretation of some sections of the bible, while rejecting literal readings of others, a double standard which has been perfectly encapsulated by the now famous ‘Letter to Dr Laura’ (responding to a US radio host’s bible-based description of homosexuality as an ‘abomination’):

[v] Huffington Post, Andrew Craibe, Salvation Army Official, Implies Gays Should be Put to Death in Interview, 26 June 2012. http://www.huffingtonpost.com/2012/06/26/andrew-craibe-salvation-army-official-gays-put-to-death_n_1628135.html

Joy 94.9FM presenter Serena Ryan: According to the Salvation Army, [gay people] deserve death. How do you respond to that, as part of your doctrine?

Craibe: Well, that’s a part of our belief system.

Ryan: So we should die.

Craibe: You know, we have an alignment to the Scriptures, but that’s our belief.

[vi] The only question is whether the public act was ‘done reasonably’, although I would suggest there is a risk at least some Tribunal members or judges may view the promotion of any religious belief, no matter how offensive, to be reasonable provided that belief was sincerely held.