September 21, 2020
The anti-discrimination complaint against Tasmanian Liberal senator Claire Chandler is the latest example of the threat to free speech posed by Australia’s state and federal anti-discrimination laws, and the bodies tasked with enforcing them.
Ironically, the complaint under section 17 of Tasmania’s Anti-Discrimination Act was prompted by an opinion piece authored by Chandler in defence of free speech, and a subsequent email exchange with a constituent about it. Writing for the Hobart Mercury in July, Chandler bemoaned the rise of cancel culture and the way it attempts to silence people such as author JK Rowling for their views. In the article, Chandler made a passing reference to her view that women’s sports, women’s change rooms and women’s toilets should continue to be for individuals of the female sex.
Section 17 is Australia’s most restrictive anti-free speech law. It prohibits “any conduct which offends, humiliates, intimidates, insults or ridicules another person” on the basis of 14 different protected characteristics, including race, age, gender and sexuality. It is section 18C of the Racial Discrimination Act on steroids. It’s the same law used to pursue Tasmania’s Catholic Archbishop Julian Porteous during the same-sex marriage debate for producing a pamphlet that explained the church’s traditional view of marriage.
While many would consider Chandler’s participation in public debate to be evidence she is doing her job, Tasmania’s Anti-Discrimination Commissioner determined these are sufficient grounds to summon the senator to attend mandatory conciliation.
In accepting the complaint against Chandler, Commissioner Sarah Bolt described the senator’s views as “problematic”, and questioned whether the constituent “should be subjected to material” that is “arguably objectively offensive on the basis of gender identity and intersex variations of sex characteristics”.
Every Australian deserves the right to participate freely in public debate about contentious issues without fear of legal sanction for merely expressing their opinion.
But it is particularly alarming that unelected bureaucrats are seeking to police the opinions of elected members of parliament, including their direct communication with constituents.
Tasmanians voted for Chandler to represent their values. Many would share her opinion on these issues, but not have the time, the platform or perhaps the confidence to express them publicly. In the privacy of the ballot box they have the opportunity to vote for a representative who will speak up for them.
But instead of countering her views, or even running a campaign to defeat her at an election, Chandler’s political opponents are seeking to silence her with the law, and along with her all the constituents who voted for her. As Chandler has pointed out, the commissioner could have dismissed the complaint as vexatious and without substance. But ultimately, this is not a problem of a lone, rogue bureaucrat. The problem is the idea that people should be protected from speech they find offensive.
This idea is fundamentally antithetical to free speech. Our liberal-democratic society depends on free and open debate. Sometimes this involves uncomfortable conversations. People are sometimes offended, but it is impossible to have open discussions about controversial topics without someone, somewhere, being offended.
We accept this because it is part of living in a free society, but also because over the long term it is far better to allow dissenting views to be aired than for these views to be suppressed and the people who hold them to feel persecuted.
The alternative is for some people’s views to be heard while other people are silenced. Anyone who prefers this approach ought to consider the fact that fear is not agreement and silencing people does not change their opinion. On the contrary, it makes it harder to recognise and resolve issues that exist in society. It also creates resentment, and when a society’s politics becomes characterised by resentment that society will begin to slowly tear itself apart.
Unfortunately, this idea has already become embedded in our laws through a patchwork of state and federal anti-discrimination legislation, enforced by bodies such as Equal Opportunity Tasmania and the Australian Human Rights Commission. In the past few years laws like these have been used against columnist Andrew Bolt; the late Bill Leak, for a political cartoon; a group of Queensland University of Technology students who had allegedly criticised the existence of an Indigenous-only computer lab; a Canberra radio host, for liking posts on Facebook; and now a Tasmanian senator, for advocating a position held by many of her constituents.
Thankfully, Chandler is courageous and passionate about what she believes. She will not be silenced and has the platform to expose the absurdity of this process.
But most Australians don’t have large public platforms, and many don’t have the time or the resources to be drawn through a long quasi-legal process run by anti-discrimination bodies.
This is why so many Australians now fear voicing their opinions on controversial topics – especially when those opinions are on the wrong side of the zeitgeist. Not only do they have to avoid being the target of online mobs, but the legal risk posed by laws such as section 17 of Tasmania’s Anti-Discrimination Act.
The open exchange of ideas is an indispensable aspect of our liberal-democratic society. When people’s free speech is inhibited – whether directly through law, the fear of legal consequences, or the fear of online mobs – we become less free and our society becomes more fragile.
James Paterson is a Liberal senator for Victoria.
