Injured feelings the price of free speech during serious debate

The same-sex marriage postal vote has raised — yet again — the problem of laws that make it unlawful to publish material that is said to be offensive or insulting to various groups in the community.

The battle over section 18C of the federal Racial Discrimination Act was, of course, lost by proponents of free speech. But the thing to remember about that provision is that it makes it unlawful to publish material that is offensive to individuals or groups on the basis of their race, colour or national or ethnic origin, even if the publication would not be considered offensive by ordinary members of society but is seen as such by especially sensitive members of one of these groups.

All states and territories have anti-discrimination legislation that makes unlawful publications concerning racial groups but also extends the law to a much wider range of publications. The broadest of these statutes is the Tasmanian Anti-Discrimination Act.

This legislation makes it unlawful to offend, humiliate, intimidate, insult or ridicule a person on the basis of various attributes including sexual orientation, marital status and relationship status, provided a reasonable person would have anticipated that the subject of the conduct in question would be ­offended or otherwise affected.

This would appear to leave it open to persons in same-sex relationships to complain to the Anti-Discrimination Commissioner that they were offended by advertisements paid for by the No campaign that suggested, for example, that children were disadvantaged when brought up by same-sex parents as opposed to different-sex parents. And a reasonable person may well have anticipated that same-sex parents would be offended by such a claim.

It might be noted that it would also seem open to unmarried different-sex couples to complain about the traditional teaching of Christian churches, which says that living together without marriage is — to use a very old-fashioned expression — sinful. There have, however, been no such complaints, which suggest that such couples are not overly sensitive about the notion of living in sin.

Like most of its state and territory counterparts, the Tasmanian legislation provides a defence to an otherwise unlawful publication if it is done “in good faith” for a purpose in the public interest. It might be thought that this would protect publications made in the course of a discussion of political and social issues but there are two problems with this. The first is that the notion of good faith is a very subjective one and is left up to the tribunal or court hearing a complaint. The second problem is that, as the Queensland University of Technology students discovered when they were the subject of a complaint to the federal Human Rights Commission, there is little point in such a defence if it can only be made out after years of litigation and substantial legal costs.

There is an obvious potential for this kind of legislation to be used — or abused — during the postal vote campaign in an attempt to stop media advertisements or public speeches. It might be argued that such state and territory legislation does not extend to campaign publications because new commonwealth legislation on this subject covers the field and so overrides the operation of these state and territory statutes. This is a difficult constitutional question and would have to be determined by a court.

But, even if that argument is right, there may still be problems with the new commonwealth law. The legislation would make it illegal to vilify, intimidate or threaten to harm a person either because of the views they hold on the postal vote or in relation to their religious conviction, sexual orientation, gender identity or intersex status.

It is hard to imagine a television advertisement that intimidates or threatens to harm anyone but vilification is an easy allegation to make and there is a danger that it would provide media organisations with an excuse to reject confronting advertising material.

No one suggests that real “hate speech” — incitements to violence against sections of the community — should not be unlawful, as they always have been under the criminal law.

But this is very different from expressing opinions in the course of a serious political debate that some people may find offensive.

Laws that restrict those kinds of opinions inevitably stifle public debate on political and social questions because some persons will always be offended if their lifestyles or views are criticised. But injured feelings may sometimes be the price of freedom of speech.

Michael Sexton SC is co-author of Australian Defamation Law and Practice.