Tasmania's Anti-Discrimination Act is the harshest in the nation, whereby Section 17 of the Act prohibits offending, humiliating, or insulting another person on the basis of a range of attributes including sexual orientation and gender identity. Section 17 came to national attention in 2015 with a complaint against Tasmanian Bishop Julian Porteus over a booklet defending Catholic teachings on marriage. The Anti-Discrimination Commissioner eventually decided it was not in the public interest to continue investigating the complaint, but despite concerns over freedom of speech, Section 17 remains in place.
In August 2017 a complaint was made against Presbyterian pastor Campbell Markham and colleague David Gee, over comments made during same-sex marriage debates in 2011. In this article Campbell Markham shares his experience as the target of a law that empowers the offended.
On Friday February 23 my colleague and I were summoned by the Tasmanian Anti-discrimination Commissioner to a “conciliation conference.” The letter to our lawyer read, emphasis original, “Your clients must attend the conciliation conference. Two hours has been allocated from 10 AM to 12 PM.”
Equal Opportunity Tasmania works from a nondescript edifice at the end of one-way alley: an oddly ugly place in beautiful Hobart. We were shown into a bare boardroom. It was a little too warm for jacket and tie, and there were no windows. Pass-keys gave us access to bathrooms; a jug of water and plastic cups graced a hefty table. Ten minutes later two EOT ladies entered. The complainant was sitting in a room next to ours.
First they assured us that they were “not on anyone’s side.” This was very hard to believe. I had just walked past two doors decorated with scattered strips of rainbow colour, an oblique but unmistakable reference to the LGBT flag. (The homepage of the EOT website displays similar graphics.)
If that’s not partisan enough, the logo of the EOT, a thick “equal” sign, is identical in shape and proportion to the logo of the Human Rights Campaign, the most powerful LGBT lobby in the U.S. (The meaning of this particular graphic is known to anyone on social media). If the EOT is “not on anyone’s side,” why does it embellish its office with famous LGBT symbology?
We were also told that if we failed to reach conciliation, the matter would proceed to tribunal, a process “that could take years.” This seemed vaguely threatening: “If you don’t go along with this today, you will be chained to it for years to come.”
For the next fifty minutes we were asked to respond to the allegations made against us, the allegations accepted by the Commissioner for “investigation.” This referred in my case to things that I had written in 2011 in defence of marriage. A vital community debate was in process, and I participated in that debate.
There is something inherently humiliating about having to explain your actions to civil servants. Am I not free to live and speak as I see fit, without spending hours in a windowless room defending myself before grey bureaucrats, a hidden complainant sitting in the next room?
The complainant has nothing to lose by the way. The tax-payer funds his complaint. He can walk away at any moment without consequence. Even if his allegations are utterly baseless, he can tie me up for years, compel me to seek legal help, leave me facing who-knows-what sanctions and penalties, and walk blithely away whenever he so chooses. It is not a wise law that accords zero responsibility to those who can wield it to harm others.
At 11AM the EOT workers left, and for the next hour we could hear a fierce discussion with the complainant in the adjoining room. The words were indistinguishable, the tone was unmistakable.
At 12 noon, the appointed finishing time, the EOT ladies returned to tell us that discussions with the complainant were not finished, and that we were permitted to take a break. We were not asked if it was acceptable or even convenient for us to go overtime, we were simply told to return in thirty minutes. After all, what better things had we to do?
At 12:30 PM we returned to our windowless room. Raised voices still murmured through the wall. At 1 PM I found the air-conditioner controls. At 1:50 the ladies returned to present to us the complainant’s list of demands, demands that could never be accepted. They returned to the complainant. More raised voices. At 2:15 they re-entered. I had a 3 PM appointment and said I had to leave. They granted my release. I felt a strange sense of liberation, like I had escaped Shelob’s web.
These four and a quarter hours were the nadir of a six-month process of anti-discrimination action. And all for what? Had I harangued a crowd into violence? Had I defamed a person with lies? No. In my defence of marriage I had “offended” the complainant.
The foolishness of such a law is manifest. I can control what I say, but how can I control another’s reaction to my words? Some may love them, others may hate them; some may feel insulted, others may feel encouraged. Is it right to prosecute people not for their actions per se, but for the subjective emotional response of others to those actions?
To be human is to speak. To be free is to speak one’s mind. How do such laws, which expose us all to complaint and prosecution, not dehumanise us? How do such laws not muzzle us all?
I do not blame the good people at the EOT. Though there is an unconscious discourteousness to the proceedings—they kept us more than two hours beyond the agreed time without asking—the ladies themselves were respectful. I do not even blame the complainant. He is simply using legislation that is sitting there to be used.
I blame the law itself. Section 17 of the Tasmanian Anti-Discrimination Act is a chemical attack on our freedom of speech and conscience. No wonder the EOT process is dehumanising, it is hitched to a wraith.
That is why I write this. This bad law remains powerful because it is executed behind locked doors in a dead-end alley. The doors need to be opened. Everyone should know what goes on. We need to shine a bright and searching light on this whole murky operation.
On Thursday morning 1 March I received an email from EOT saying that because conciliation had failed “the complaint must be referred to the Anti-Discrimination Tribunal for inquiry.” No surprise, we had more or less accepted years of legal processes and fees. Within the hour, however, we learned that the complainant had dropped the matter and the EOT had “closed the file.” What changed his mind? Why the rush to close the case? No explanation. Certainly no regrets.
Yes there’s some relief. But what about the six months of meetings and lawyers? What about the untold hours of legal counsel?
In any case this ghastly “Section 17” is still sitting there, ready for the next unhappy person to wield against any other Tasmanian for words that have offended them. This poisonous law—so unworthy of a free society—does not just concern “religious people.” We are all exposed. This question now is, do we as a community have the will and the courage to uproot it?
Campbell Markham is a Presbyterian pastor in Hobart, Tasmania.