Free speech trumps anti-gay hate: Tribunal

The ACT Discrimination Tribunal has dismissed a complaint about anti-gay vilification posted on The Canberra Times website linking gay men to pedophilia, on the grounds of free speech.
The tribunal ruling also found the statements unlawfully vilified gay men as a group using words like “pervert”, “slimy, smelly specimens”, and “pathogens”, but dismissed the complaint brought by Dr Daniel Emlyn-Jones because it didn’t target him as an individual.
ANU law professor Wayne Morgan, who represented Emlyn-Jones, said the ruling made a mockery of having vilification laws.
“It’s almost got to the point where I’m inclined to say anti-discrimination laws are useless because of the interpretation given to them by judges who don’t understand the purposes behind the law. They’ve almost become a complete joke,” Morgan told Sydney Star Observer.
“It’s extremely rare that a complainant wins, and more often than not there is a defence that applies. Few of the laws have any real basis on which to take a group complaint or to allege a community or a class of people as a whole has been vilified.”
Morgan said judges seemed incapable of recognising group harm and the free speech defence had become a lot more common and accepted, against the recommendations of the Federal Court.
“In my opinion it wasn’t a complete disaster for gay rights because the tribunal did actually find what The Canberra Times published did amount to vilification.”
The offending material appeared in The Canberra Times’s ‘Have Your Say’ online forum in 2005, containing statements like “you cannot naturally have children of your own, stay away from mine” and “stay away from schools”.
The newspaper’s then-editor Jack Waterford responded in an email to the ACT Human Right Commissioner that he maintained a high threshold for acceptable material and barred no subject from debate. The newspaper had run several stories on gay adoption, same-sex marriage and civil unions being proposed by the ACT Government.
Emlyn-Jones had sought an apology to the gay community to be printed in the newspaper and online, but no financial compensation. Although the tribunal declined to order the newspaper publish an apology, it suggested it do so anyway.
Morgan said his client was seriously considering his appeal options, but cost would be a factor.
The ‘Have Your Say’ forum has since been taken down, and the Territory’s anti-discrimination laws amended several times during the three years of deliberations.
ACT Human Rights Commissioner Dr Helen Watchirs wrote a submission in the case because of concerns about the free speech provisions of the ACT Human Rights Act and their impact on anti-discrimination laws.
Watchirs told SSO she would prefer the laws were changed to reduce the threshold test for a successful complaint.