Yesterday Rodney Croome took to the pages of the Mercury to put his view that Tasmania’s Anti-Discrimination laws are “fantastic”. Today, I respond with my arguments that they are an unacceptable imposition on free speech. What a great example of the exchange of alternative viewpoints in a democracy!
Unfortunately, a much less perfect example of free democratic debate occurred last time I had an article published in these pages. My opinion piece on free speech was referred to the Anti-Discrimination Commissioner, and six weeks later I received a legal direction telling me I MUST attend a ‘conciliation hearing’. A large fine awaited me if I refused to do so.
The conciliation hearings provided for by the Act are not merely an “opportunity” (as Mr Croome characterised it) to have a friendly chat and come to common ground. A person who is the subject of a complaint is given no choice but to attend. In my case, I was given no opportunity to respond to the complaint before being directed to conciliation. Equal Opportunity Tasmania then refused me permission to be accompanied by a lawyer. It’s made clear to you that failure to come to a conciliated agreement can have the effect of Tribunal proceedings being initiated, leading to further legal costs and time off work with the ultimate threat of large fines, compensation payments and enforceable court orders.
Bear in mind that my alleged offence was writing an article in these pages mentioning that many women, myself included, support females retaining the right to single-sex sports, toilets and changerooms, and responding politely by email to a constituent who asked me to confirm that this was my view.
It should be obvious to any fair-minded Tasmanian that this scenario is seriously deficient in natural justice and is intimidating to be confronted with. As a woman, I found it staggering that I was compelled by law to attend a meeting with a man who I don’t know, to justify why I believe that women should be able to get changed and use the bathroom in female-only spaces. Nevertheless, I advised EOT that I would be attending. I certainly had no inclination to pay a large fine to EOT for non-attendance, which would no doubt have helped fund the next witch hunt.
Mr Croome’s article erroneously states that I “turned down the opportunity to conciliate” when in fact it was the Commissioner who cancelled conciliation on the basis that I had refused to sign a confidentiality agreement. The complainant then suddenly withdrew the complaint, stating that all he had ever wanted was “an open and frank conversation” – a sentiment completely at odds with the action of reporting someone to an Anti-Discrimination Commission for replying to your email, asking that they be banned from repeating their views ever again, and wanting them to be forced to sign a confidentiality agreement.
I suggest that it is obvious that this chain of events clearly represents an unacceptable limitation on free speech. As has been articulated by many others in the past, being compelled to attend a conciliation hearing, racking up legal bills, and taking time off work to prepare a defence is an up-front punishment you’re forced to bear before you’ve even been found guilty of anything. Women from diverse backgrounds and across the political spectrum who share my views on sex-based rights and contacted me in support made the valid point that many would simply not be in a position to bear these costs and impositions, and so would be forced to concede and compromise on their deeply held views about women’s rights just to make the complaint go away.
It is for these reasons, demonstrated not only by my case but by the numerous cases before it, that many of us believe Tasmania’s Anti-Discrimination Act is unacceptably restrictive for free speech, and positive aspects of the law do not justify overlooking these perverse outcomes. We would not, for example, willingly accept wrongful convictions in criminal law on the basis that the law also holds guilty offenders to account occasionally.
One of the unfortunate outcomes of the complaint being withdrawn by the complainant only after it was accepted by the Commissioner is that Tasmanians are still in legal limbo about what can be said in defence of women’s sex-based rights without risking being dragged to a compulsory conciliation hearing. My fear is that the next woman who is on the end of this treatment won’t be an elected Senator with the platform and resources to fight false charges. I know from my discussions with people from across Australia that these fears are shared by many. And so, free speech suffers.