October 24th 2015


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Articles from this issue:

COVER STORY Labor proposes expanded role for infrastructure fund

CANBERRA OBSERVED Crossbench unity plugs Coalition water spill

EDITORIAL Deplorable attack on Sir Peter Lawler

LITIGATION Appeal to freedoms will not avail for Archbishop

INTERNATIONAL AFFAIRS Europe generous in face of Middle-Eastern influx

INTERNATIONAL AFFAIRS Europe's refugee crisis was much worse last time

CULTURE WARS The PC left is saving us from ... Tintin and Twain

SCIENCE AND CERTAINTY No safety in numbers as variable as these

EUTHANASIA Belgium, Netherlands in the grip of the small laws

FAMILY AND SOCIETY Marriage redefinition will feed government business

PUBLIC POLICY A wake-up call from land of rocky highs and lows

CINEMA Respectfully intended to make you laugh: The Intern

BOOK REVIEW Clearing the head

LETTERS

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LITIGATION
Appeal to freedoms will not avail for Archbishop


by Robin Speed

News Weekly, October 24, 2015

The Archbishop of Hobart, Julian Porteous, is about to find out that in Tasmania there is no right to freedom of religious belief or freedom of speech.

Archbishop Julian Porteous.

He is the subject of a charge that he breached the Tasmanian Anti-Discrimination Act by distributing a pastoral letter in the same-sex marriage debate. He may end up having to pay a fine, make a public apology and undertake not to repeat the distribution.

The matter is looming as a test case on what can be said by the Church and others in support of retaining the definition of marriage between a man and a woman. If the Archbishop is found guilty, the voices of intolerance will have succeeded in closing down the debate and only those who support the change will be able to speak out.

The interest of the Rule of Law Institute in the matter is in drawing attention to laws that affect our fundamental rights to freedom of speech, beliefs and expression, including freedom of the press. The institute makes no comment on the merits of changing the definition of marriage.

In the pastoral letter Archbishop Porteous sets out the teachings of the Catholic Church on marriage and states: “We wish by this pastoral letter to engage with this debate, present the Church’s teaching to the faithful, and explain the position of the Catholic faithful to the wider community.”

As far as has been reported, in the pastoral letter the Archbishop is alleged to have breached section 17(1) of the Tasmanian Anti-Discrimination Act 1998.

Section 17(1) abolishes the freedom to express religious
or other beliefs

Section 17(1) provides no express defence of freedom to express genuinely held religious or other beliefs. And as there is no Commonwealth constitutional guarantee of the freedom, the Tasmanian Parliament was free not to provide for the defence in the section.

In the recent case of Williams v Three Wise Monkeys and Durston (June 30, 2015) the Tasmanian Anti-Discrimination Tribunal said in relation to section 17(1): “the tribunal finds no basis for the respondent’s reliance on a right to freedom of religion by way of response or defence to this complaint.”

If this is a correct statement of the law, section 17(1) prevails over any expression of religious or other beliefs and the Archbishop cannot be heard to say in his defence that there is no breach of the section because he was simply setting out Roman Catholic teachings.

It may be just possible to argue that there is implied in the section such a defence based on the international treaties Australia has entered into: Article 18 of the International Covenant on Civil and Political Rights.

Section 17(1) abolishes freedom of speech

Similarly section 17(1) provides no express defence of the freedom of speech, including freedom of the press. And as there is no Commonwealth constitutional guarantee of the freedom, the Tasmanian Parliament was free not to provide for the defence in the section.

The Archbishop cannot be heard to say in his defence that there is no breach of the section because he was exercising his freedom of speech.

Section 17(1)

Section 17(1) provides: “A person must not engage in any conduct which offends any person on the basis of his or her sexual orientation in circumstances in which a reasonable person having regard to all the circumstances would have anticipated that the other person would be offended.”

The breadth of the section is mind-boggling!

The first requirement of section 17(1): that the complainant have been offended

The first requirement of section 17(1) is that the complainant have been offended by the pastoral letter.

Here the complainant is a Martine Delaney, who she changed from a man to a woman, is the Greens candidate for the federal seat of Franklin and is in a same-sex relationship. No doubt much more will be heard about her, but it appears that she has a genuine concern with the definition of marriage and would be particularly sensitive to what was written on the subject.

The first requirement is met by the complainant’s saying that she was offended by the letter. As the matter is entirely subjective, the requirement is met. It is irrelevant that no other person was offended or that the Archbishop did not know Ms Delaney or did not intend to offend her or anyone else in her position.

The second requirement: the offending publication must have been made on the basis of Ms Delaneys sexual orientation

The second requirement of section 17(1) is that the offending part of the pastoral letter must have been made on the basis of Ms Delaney’s sexual orientation.

In looking at this requirement it is necessary to have regard to what Ms Delaney is saying offended her. She said that the pastoral letter in describing same-sex relationships as a “friendship” sent a deeply damaging message to young people; and similarly, in saying that same-sex partners did not deserve equal recognition and were not “whole” people.

Whether what Ms Delaney says is accurate will no doubt be tested.

The third requirement: a reasonable person would have anticipated that Ms Delaney would be offended

The third requirement of section 17(1) is that a reasonable person would have anticipated that Ms Delaney would have been offended by the pastoral letter.

This requirement has two elements. First, the requirement to construct a reasonable person; and the second, to work out whether such a mythical person would have anticipated that Ms Delaney would be offended.

Who then is a “reasonable person”? It includes a male and a female, a heterosexual and a homosexual, a Catholic and a non-Catholic and many more. At the end of the day it means the sort of person the court or tribunal determining the matter, considers “reasonable”. This is not helpful and only highlights the uncertainty of the application of the section.

The second element is the most extraordinary. For it is not the effect on a reasonable person in the community, nor the effect on the group likely to be offended [as in Eatock v Bolt (2011) – the impact of the imputations that could reasonably be drawn from the newspapers was to be assessed from the perspective of a certain category of Aborigines]. Rather, it is the likely effect on Ms Delaney.

Section 55: the only statutory defence to section 17(1)

The only statutory defence to section 17(1) is contained in section 55. To avail himself of this defence the Archbishop will need to prove that the distribution of the pastoral letter was a public act done in good faith for a purpose in the public interest.

With the uncertainty of the application of section 17(1) the Arch­bishop may need to rely on section 55. However, in doing so he would not be relying on any defence of freedom of religion or of speech.

The anti-discrimination commissioner had six weeks at the time of writing to dismiss the application as misconceived; if he does not dismiss it, the Archbishop is in for a long and expensive fight, which will require a lot of personal courage and determination.

It is a fight, however, that has to be fought if our fundamental rights to freedom of religion and speech are to be preserved.

Robin Speed is president of the Rule of Law Institute of Australia.

 

 

Hobart Archbishop Julian Porteous in the dock

Hobart’s Catholic Archbishop, Julian Porteous, has been accused of violating the Tasmanian Anti-Discrimination Act for distributing the Australian Catholic Bishops’ Conference (ACBC) booklet, Don’t Mess with Marriage.

The complainant is LGBT activist and trans-gender woman Martine Delaney, who intends standing for the Greens in the seat of Franklin in the 2016 federal election.

This raises the question: if it is considered an offence to even discuss same-sex marriage in Tasmania, how will it be possible to debate the issue when the Federal Government holds a national plebiscite on the issue?

The Archbishop sent the booklet out to Catholic parents via Tasmania’s Catholic schools to be taken home to parents. Delaney claimed the booklet was “humiliating and insulting” to same-sex attracted couples and the children of same-sex partners.

Section 17 of the Tasmanian Anti-Discrimination Act prohibits “any conduct which offends, humiliates, intimidates, insults or ridicules another person” on grounds including sexual orientation and gender identity.

The Tasmanian provision has echoes of Section 18C of the federal Racial Discrimination Act which the Coalition promised in the 2013 election campaign to amend or repeal, which eventually it didn’t, which makes it an offence to “offend, insult, humiliate or intimidate another person or a group of people” because of race, colour or national or ethnic origin.

In particular, the case of Archbishop Porteous is of significance to the public debate in a plebiscite on whether Australian law should be changed to redefine marriage.

Archbishop Porteous called for any debate to be conducted in an atmosphere of respect and be one where all arguments can be presented and exposed to rigorous scrutiny. He said he “believes [the complaint] represents a new intolerance against Christianity in Australian society, and more generally a threat to freedom of speech”.

Family First Senator Bob Day, speaking in the Senate, said: “The persecution of Catholic Archbishop Porteous of Hobart is a black mark on Australian history and free speech.”

He added, “How on earth can a man of the cloth, explaining to his congregation his church’s teaching on marriage, be accused of ‘inciting hatred’ towards those who want gay marriage? The older generation are shaking their heads in disbelief at how out of kilter this is with their Australia.

“You have to wonder whether this is the Australia our forebears shed blood, sweat and tears to create.”

Peter Westmore




























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