Labor will consider expanding anti-discrimination legislation to shield gay and transgender people from harmful speech if elected, in a move that has alarmed lawyers and free-speech advocates.
The proposal, flagged in the ALP’s national platform policy document, has been likened to section 18C of the Racial Discrimination Act for its potential to stifle free speech, with experts singling out the furore surrounding Christian rugby player Israel Folau, who will today face a hearing to decide whether his comments denouncing homosexuality, among other “sins”, breached the sport’s code of conduct.
Questions have now arisen as to whether, under Labor’s proposed legislation, Folau could be exposed to criminal sanction. “This is a worrying platform position and it raises the spectre of a much broader 18C or a broad anti-offending provision as in the Tasmanian Anti-Discrimination Act,” said Institute for Civil Society executive director Mark Sneddon.
“Labor considers such harmful harassment is an unacceptable abuse of the responsibilities that come with freedom of speech and must be subject to effective sanctions. Labor will ensure that anti-discrimination law provides such effective sanction.”
Neil Foster, an associate professor of law at Newcastle Law School, said Labor appeared to be attempting to make a case that “harassment by the written or spoken word somehow amounts to harm of a sort which should be sanctioned by the law”.
“It looks like this is a call to introduce a federal law forbidding the causing of offence (in effect) on the grounds of a person’s sexual orientation,” he said.
Institute of Public Affairs research fellow Morgan Begg said it was “disturbing” Labor was considering enhancing anti-discrimination laws to punish a “vague crime”. “Words like ‘harass’, particularly in anti-discrimination laws, are mired in uncertainty,” he said. “The new progressive orthodoxy sees mere disagreement as harassment. The use of the law to restrict harassment is likely to produce problems in the future.”