Free speech, religious freedom and vilification in Australia

ABSTRACT

In Australia, the marriage-equality plebiscite of 2017 prompted significant debate over appropriate limits to free speech in the context of expressions of religious belief. This article reports on the results of a political discourse analysis of media coverage in prominent national newspapers from 2017 to 2021. Findings show the debate was dominated by three representations: discrimination against Christians, disagreement as rights abrogation, and the meaning of ‘free speech’ as unbridled and unlimited. These representations were deployed in an (ultimately unsuccessful) endeavour to override long-held views about the appropriate place of freedom of speech in Australian political culture and law, and to misrepresent the meaning and purpose of vilification laws.

KEYWORDS:

• Vilification
• marriage equality
• Australia
• hate speech
• religion

A prominent topic in the relationship between religion and politics in Australia after marriage equality has been the question of whether limits ought to apply to the freedom to express religious views. In the debate over marriage equality, some advocates of a ‘no’ vote argued that the preservation of religious freedoms was synonymous with the preservation of freedom of speech. They claimed that those who spoke out against marriage equality were being vilified and were at risk of having their free-speech rights infringed. Notably, it was reported in the media that the marriage-equality campaign was ‘bruising’ for LGBTQIA + communities and ‘marred by homophobic incidents and campaign material which occurred largely with impunity’ (Karp 2017a). LGBTQIA + folk reported double the number of ‘verbal and physical assaults’ during the period of the survey compared with the previous six months (Karp 2017b).

Nevertheless, proponents of a ‘no’ vote argued that the disapprobation to which ‘no’ voters were subjected was speech-limiting and rights-abrogating. These arguments have a long pedigree, as evidenced by former Attorney-General George Brandis’s comment in 2013 that, in debating marriage equality, the ‘left’ sought to undermine free speech (cited in Johnson and Tremblay 2016, 142). But these arguments flourished in earnest during the marriage-equality survey in September to November 2017 and have been prominent since. Prior scholarly examination of the 2017 marriage-equality survey shows that freedom of speech was a ‘dominant discussion topic’ on the Facebook pages of those who opposed marriage equality yet almost entirely absent from the pages of those who advocated a ‘yes’ vote (Chen 2019, 293) and that, over time, the arguments of those advocating a ‘no’ vote came to identify religious freedom with freedom of speech (Poulos 2020a, 1; 2020b). The empirical data in this article therefore derive from comments by advocates of the ‘no’ campaign because that is where this debate manifests.

Some advocates of a ‘no’ vote suggested that the appropriate remedy, which would protect the right to free speech of people of faith in Australia who oppose marriage equality, was to legislate a specific statutory protection for religious freedom that would include an untrammelled right to freedom of speech. This would bring discrimination on the grounds of religion into line with sex discrimination, racial discrimination and age-related discrimination, which have all been federally legislated. However, this form of statutory protection would also elevate the right to freedom of speech on religious grounds above extant limits on freedom of speech in Australian law, insofar as it would permit the freedom of expression of religious views in a capacious way.

This article investigates this debate. After outlining my approach and setting the context, I analyse public discourse around freedom of speech, vilification and freedom of religious expression during the marriage-equality plebiscite and subsequently. The analysis reveals three key representations: discrimination against Christians, disagreement as rights abrogation, and the meaning of ‘free speech’ as unbridled and unlimited in the context of religious freedoms. These representations support two key endeavours by the campaigners who promote them. The first is an attempt to change the meaning of ‘free speech’ in public discourse, and the second is to distort the purpose of vilification laws.

I conclude that some opponents of marriage equality tried to reset understandings of free speech. First, their discourse sought to override the long-held view in the Australian polity that while free speech is important, it can and should be overridden in the interests of a definable public good such as protecting the community from harm. Second, they posited the right to free speech as a capacious, limitless right to say anything one wants as long as it conveys a religious belief. This means they also sought to extinguish the view that responsibilities, such as the responsibility not to harm others with one’s words, ought not to apply to freedom of speech in this context. All these elements amount to a (for now, unsuccessful) attempt to reset the parameters of free speech in Australia.

A political discourse analysis approach

In this article, I adopt a political discourse analysis approach (Chilton and Schäffner 2002; 1997), which entails the study of the use of language ‘of which the public is only half aware’ (Chilton and Schäffner 1997, 207). I analyse and identify discourse, defined as a social practice that seeks to construct a particular meaning and reality (Titscher et al. 2003, 26–27) and made up of ‘texts’: these are the analytical units which reveal discrete manifestations of the discourse being analysed and the ‘evidence to be described empirically’ to uncover its features (Titscher et al. 2003, 26). I read texts to identify dominant ‘representations’ (Dunn and Neumann 2016, 5), a concept common to discourse analysis and critical discourse analysis, and which I take here to mean how we understand social phenomena (Dunn and Neumann 2016, 33, 37, 60).

Political discourse analysis requires understanding the context within which the discourse takes place. The general context is that free speech has historically had a ‘contingent’ place in Australian political culture (Gelber 2011, 137). While it is a widely held value, the polity has also accepted restrictions that achieve a social and public good, such as vilification laws that are designed to protect vulnerable community members from discriminatory harms, and for which the public has shown strong support (ABC News 2014; Kenny 2014). Vilification is defined here as speech that enacts systemically discriminatory harms against members, and perceived members, of marginalised communities (Maitra and McGowan 2012, 4). It can constitutively ‘silence’ its targets by rendering their speech unspeakable, both literally by engendering fear and intimidation and constitutively by constructing a context within which their words are unable to achieve what they intend them to achieve (e.g. Langton and Hornsby 1998).

All jurisdictions except the Northern Territory possess vilification laws, and in several,¹ religion is a ground. Vilification laws are not designed to prevent people from expressing their views on topics of public policy. Rather, they are designed to encourage people to engage in public debates in a manner that does not harm others (Chesterman 2000, 266; Post 2009, 128). I note that it is possible to express faith-based views in support of traditional marriage without engaging in vilification. For example, a statement that, due to one’s religious belief, a person does not support marriage equality is not inherently vilifying. However, a statement that gay people have no place on this earth unless they stop being gay is vilifying because it posits a member of a systemically marginalised group as inherently unacceptable and not worthy of the human dignity of community membership in a context within which that marginalisation is present.

During the marriage-equality survey, then Prime Minister Malcolm Turnbull enacted the Marriage Law Survey (Additional Safeguards) Act 2017 (Cth), which applied from 14 September to 15 November 2017. It prohibited vilifying, intimidating, threatening or causing harm to a person who expressed a view in relation to the survey (s 15) and imposed a civil penalty. It therefore protected both those expressing support for marriage equality and those expressing opposition to marriage equality. It also protected broadcasters who reported on relevant material, and the approval of the Attorney-General was required to commence proceedings. No complaints were lodged under these provisions (Koziol 2017a), although, as noted above, there were reports of vilification against the LGBTQIA + community during the campaign. Media reports also noted that some of the most egregious anti-LGBTQIA + comments during the survey resulted in complaints to the Queensland Anti-Discrimination Commission under that state’s vilification law (Crockford 2018), but as proceedings under those provisions are confidential, it is not possible to know what occurred.

This debate led to (as yet unsuccessful) attempts to enshrine religious freedom in law. Following an Expert Panel report (Ruddock 2018), the federal government released a first exposure draft in October 2019,² which invalidated any restriction on employees’ statements of beliefs by their employer unless such statements were likely to harass, vilify or incite hatred or violence against another person (s 8). This was known as the ‘Folau clause’, named after the high-profile case in which footballer Israel Folau violated the terms of his employment contract with Rugby Australia by repeatedly tweeting homophobic messages (Gelber 2018). In 2019 Rugby Australia cancelled his contract after he tweeted that homosexuals (along with adulterers, liars, fornicators, thieves, atheists, idolators and more) would go to ‘HELL … unless they repent their sins and turn to God’. It led to a debate about Folau’s freedom to express his religious views and Rugby Australia’s ability to require employees to abide by conduct standards.³

In January 2020 the government released a second exposure draft,⁴ which left the relevant clauses (s 8) largely unchanged. In November 2021, a revised package of three bills was released,⁵ with the relevant clauses changing again between the First (ss 12, 15) and Third readings (ss 12, 15). These versions declared that statements of belief did not constitute discrimination under any relevant federal and state/territory vilification laws (s 12), unless a reasonable person would consider them to be malicious, threatening, harassing, intimidating or vilifying. The revision also retained a clause that stated that an organisation discriminated against a person on the grounds of religious belief if it restricted, or prevented them from making, statements of belief (s 15). Again, the caveat for malicious, threatening, intimidating, harassing or vilifying statements was retained.

Finally, in April 2022, the Religious Discrimination Bill 2022 (Cth) failed to achieve majority support in the Senate. That Bill stated that ‘the making of a statement of belief’ did not constitute discrimination under relevant federal, state and territory anti-discrimination law (s 12).⁶ It did not protect statements that are ‘malicious’ or that a reasonable person would consider threatening, intimidating, harassing or vilifying, and added that a ‘moderately expressed religious view that does not incite hatred or violence would not constitute vilification’.⁷ The Bill also stated that an organisation discriminates on the grounds of religious belief if it restricts or prevents employees from making statements of belief, again with the caveat that this does not apply to comments that are malicious or that a reasonable person would consider threatening, intimidating, harassing or vilifying (s 15). It is highly likely that these caveats would not have led to a clear differentiation between speech that would be protected and speech that would not when that speech was vilifying. This is because the terms used in these drafts differ from that used in current vilification law,⁸ which would lead to confusion over where and how to draw the line between protected views and unlawful conduct.

In this context, it is also important to note that the question of whether Christians in Australia are subject to systemic discrimination and marginalisation is relatively straightforwardly able to be answered in the negative. Systemic discrimination is understood as behaviour and activity that is ‘pervasive and institutionalised in patterns and practices of social exclusion and disadvantaging’ (Sheppard 2010, 6). It occurs when ‘unequal treatment results from “neutral” institutional practices that continue the effect of past discrimination’ (Sheppard 2010, 241). Systemic discrimination requires establishing patterns of disadvantage and marginalisation that are perpetuated by otherwise neutral policies and practices, and that connect with historically identifiable disadvantage. Christianity is today the most common religious affiliation in Australia, according to the 2021 national census (Australian Bureau of Statistics 2022). There is a lack of evidence to support claims of systemic discrimination towards Christians as a group, who would need to be able to demonstrate being subject to widespread denial of housing, job opportunities or educational opportunities, or common acts of violence, for example.⁹ Such evidence is not available. However, it is notable that claims to victimisation and rights abrogation by Christians opposed to marriage equality in Australia form part of a global discourse, led especially from the United States (Koppelman 2015; 2020).

Data collection

I conducted a search of major Australian newspapers from 1 January 2017, the year in which the marriage-equality survey was conducted, to 31 December 2021. Using Factiva, I searched the Australian Financial Review, the Australian, the Sydney Morning Herald, the Guardian, and the Age for the terms ‘free speech’ or ‘freedom of speech’ or ‘freedom of expression’, and ‘religious freedom’ or ‘freedom of religion’ or ‘religion’ or ‘religious’.¹⁰ This produced a dataset of 950 articles (after duplicates had been removed). I read each text manually, focusing on identifying the ways in which speakers elucidated the connection between marriage equality and freedom of speech. I regarded the most consistently elucidated representations as the dominant representations.

The discursive and policy connection between marriage equality and freedom of speech

It is first important to establish that there was a connection in the discourse between marriage equality and freedom of speech. Primary data support the findings of prior research cited above. The former Prime Minister Tony Abbott famously opined that ‘if you’re worried about religious freedom and freedom of speech, vote no’ (Campbell 2017) and criticised the fact that advocates of change had not ‘finalised … fair protections for freedom of religion and freedom of speech’ (Abbott 2017a). Former Deputy Prime Minister John Anderson stated that ‘freedom of religion is really just a manifestation of the freedom of speech’ (Anderson 2017). MP Angus Taylor argued that whether legislation enacting marriage equality would include protections for freedom of speech and religion was the ‘defining issue’ of the marriage-equality campaign (Taylor 2017). Senator Amanda Stoker described freedom of religion as ‘inseparable from freedom of speech, thought and conscience’ (Stoker 2018).

The central claim in all of these debates was that the free speech of Christians who oppose marriage equality was abrogated and therefore required statutory protection to permit them to exercise their religious freedom in a wider manner than extant vilification provisions would allow. The contours of this claim are complex, and my aim here is to disaggregate its components while recognising they overlap. I therefore move now to reveal the key representations in the discourse.

Key representations in the discourse

Discrimination against Christians

Commentators argued that the treatment of opponents of marriage equality amounted to discrimination against Christians and a denial of their rights. At times, these claims centred on being treated or regarded poorly on the basis of Christian beliefs. Examples include that ‘the Christians see themselves as the underdogs’ (Patrick 2017). Other articles expressed the view that those who opposed marriage equality faced ‘retaliation for their beliefs’ (P. Kelly 2017) and that there were ‘numerous examples of Christians being punished for freedom of speech’ (Oriel 2017a). Conservative politicians warned of the ‘threats that will come as a result of legislating for marriage equality’ (Morrison cited in Tillett 2017), while others claimed exclusion from public life insofar as supporters of marriage equality were ‘driving religion from the public square’ (P. Kelly 2017; also Anderson 2018; Paterson cited in Shanahan 2019; Walker 2019).

Some alleged that the law could be used against opponents of marriage equality merely for expressing their religious beliefs: ‘It is those who support traditional marriage who are more susceptible to actions … from government bodies and commercial organisations’ (Sneddon cited in P. Kelly 2017); then Senator Cory Bernardi stated anti-discrimination law would be ‘weaponised’ against ‘no’ voters and those who support traditional conceptions of marriage (The Australian 2017a); and the Coalition for Marriage claimed that ‘the mere expression of the view that marriage should be between a man and a woman would become unlawful’ (Koziol 2017b).

Opponents of same-sex marriage claimed their rights were being disregarded. The Centre for Independent Studies claimed that ‘disregard for the rights of same-sex marriage opponents has long been a hallmark of LGTBQI activists’, that the debate lacks a ‘concern for how extending the rights of one group may restrict the rights of others’, and that granting rights of marriage equality must, by definition, restrict the rights of its opponents: ‘The assertion that same-sex marriage is a “human right” obliterates consideration of the rights of religious believers’ (Sammut 2017). As one commentator asked, ‘Is it right that a tiny fraction of the community should be allowed to force their extreme opinions onto everyone else in the community?’ (cited in Woodward, Watson, and Evershed 2017), while another made the similar argument that when the ACT Government reminded ‘all Canberra schools they needed to be inclusive’, it was ‘trampling over the rights of schools’ (Balogh 2017). Others suggested that the rights of ‘no’ voters would be abrogated if marriage equality were to be legislated (Abbott 2017b); that ‘same-sex couples gaining rights meant that religious people would lose them’ (Ackland 2017); that ‘religious people feel that their fundamental rights are under threat’ (Sammut cited in Lane 2019); and that although the argument for same-sex marriage was ‘dressed up as inclusivity’, it was ‘really demanding citizens to sacrifice their fundamental human rights’ (Sammut cited in Cornwall, Coris, and Visontay 2019).

Others made explicit claims that opponents of marriage equality were discriminated against for merely holding or expressing their views: ‘a lot of other supporters of traditional marriage felt that they were, one way or another, discriminated against’ (Fisher cited in J. Kelly 2018); ‘why do the rights of one group trump all other rights?’ (Richards 2019). Journalist Paul Kelly called ‘for laws to protect Christians from discrimination’ (Marr 2017), and Liberal MP James Paterson put forward draft legislation to allow ‘people who believe they have been “victimised” on the basis of their marriage beliefs to seek court orders, injunctions and damages for loss suffered’ (Karp 2017a). Debate around the Paterson bill produced a ‘non-negotiable’ demand for ‘the prevention of discrimination against people for their religious views’ (Coorey 2017a). The Dean Smith bill proposing the amendment of the Marriage Act to allow for same-sex marriage was described as ‘almost bound to see Christians persecuted’ and as ‘empower[ing] state-funded discrimination against Christians’ (Oriel 2017b).¹¹ Senator Eric Abetz reaffirmed a position he had held years earlier that the introduction of marriage equality would lead to discrimination against those holding religious views (Abetz 2017; Abetz cited in Johnson and Tremblay 2016, 147). A media report on anonymous ‘no’ leaflets reported comments including that ‘a common vein of propaganda is that yes supporters are the political and media establishment, seeking to silence the oppressed majority’ (Woodward, Watson, and Evershed 2017). The perception was that those in favour of marriage equality ‘despise debate. They prefer censorship … Wherever gay marriage has been legalised, authoritarianism follows’ (cited in Woodward, Watson, and Evershed 2017).

Disagreement as rights abrogation

A second representation was that legislating for marriage equality would abrogate the rights of opponents of same-sex marriage by overriding their religious views. Of course, many people disagree with public policies and laws; this is routine. To claim that disagreement with a policy enacted through democratic procedures amounts in and of itself to rights abrogation is, in that sense, absurd. A person who disagrees with, or is required to comply with, a policy such as attending school or paying taxes is not having their rights abrogated in a meaningful sense.

At times, well-known opponents of marriage equality stated this view in vague terms: ‘faith-based schools will lose the freedom to act according to their religious beliefs’ (Donnelly 2017); the campaign was a ‘war on freedom’ (Oriel 2017a). Some claimed ‘prejudicial treatment of people and institutions because they support traditional marriage’ (Paul Kelly cited in Marr 2017) and other unspecified negative impacts, such as the ‘potential for the legalisation of same-sex marriage to have flow-on effects for other people’s freedom’ (Paterson cited in Karp 2017c).

But at other times the same public commentators made more specific claims, such as ‘avenues of intimidation’ used against same-sex marriage opponents, including ‘consumer boycotts promoted by social media’ (P. Kelly 2017); ‘the bullying and aggression that dominates social media’ (Shanahan 2017); and a view that they were being excluded from public life due to ‘a politically correct campaign to undermine marriage as an institution and to further secularise society by banishing religion from the public square’ (Donnelly 2017) that occurs ‘without regard for the rights of anyone else’ (Sammut 2017). The Centre for Independent Studies suggested that the ‘yes’ campaign operated ‘without regard for the rights of anyone else’ and was ‘intolerant’ because the argument that ‘same-sex marriage is a “human right” obliterates consideration of the rights of religious believers’ (Sammut 2017). Thus, they suggested that simply arguing that there is a right to marry whom one chooses amounts to an ‘obliteration’ of the rights of those who disagree with that position.

Perhaps more importantly, the media reported on claims that verbal abuse against ‘no’ campaigners reached a threshold that constituted ‘hate speech’ and silencing: the rainbow flag ‘stands for a political movement that doesn’t tolerate a different point of view … they will demonise you’ (Greber 2017); people of faith ‘will suffer “harassment and coercion” if same-sex marriage is legalised and … any change represents a clear and present danger to freedom of expression’ (Donnelly 2017); ‘so far, it’s the supporters of change, not the opponents, who’ve been responsible for bullying and hate speech’ (Abbott cited in Coorey 2017b). In 2019, then Prime Minister Scott Morrison similarly claimed opponents of marriage equality faced ‘hate speech and bigotry’ (Karp 2019). A columnist claimed the debate contained ‘hate speech … directed at the “white Christian conservative”’ (Oriel 2017a), and the National Council of Churches compared ‘verbal and physical abuse’ against Christians advocating a ‘no’ vote with the abuse of Muslims after the September 11 terrorist attacks (cited in Karp 2018a).

Conservative politicians made extensive claims of silencing. The former Prime Minister John Howard asserted, ‘An attempt is under way to silence those who might defend the status quo. This onslaught on freedoms we have long taken for granted should be repulsed’ (Howard 2017). Paterson wrote in the Financial Review, ‘Do we really want to live in a society where it might not be legal for people to publicly express their view about marriage?’ (Paterson 2017). Bernardi condemned an ‘emerging authoritarianism’ (Bernardi 2019), while Morrison said that religious freedom legislation was necessary to protect ‘people of faith from those who seek to “marginalise and coerce and silence” them’ (Morrison cited in Szego 2021). Prominent public commentators made the same claims: ‘any change … opens the floodgates to coercion, litigation and financial penalties against those who are committed to the sanctity of marriage’ (Donnelly 2017); same-sex marriage would give ‘licence to gay activists weaponising anti-discrimination legislation and using it to stifle debate or dissent’ (Hewett 2017); ‘in Australia there’s now an ever-decreasing number of places where it’s safe to express an opinion’ and a fear of ‘getting sued if you offend’ someone you disagree with (Roskam 2017); ‘we’re reluctant to say what we really believe, because of the way people will criticise us. So in one sense our freedom has already been compromised’ (King 2017); the Smith bill would ‘bind … freethinkers under a state regime of political correctness’ and fail to protect them against the ‘lawfare used internationally to silence dissenters and purge them from public life’ (Oriel 2017b); campaigners are ‘swamping the public debate’ with an ‘introspective, authoritarian denial of free speech’ (Davies cited in Fox Koob and Akerman 2017); ‘the freedom of speech of 5 million Australians is about to be wiped out before Christmas’ (Shelton cited in Hutchens 2017); ‘people now have become too fearful to express their view even among their families for fear of being labelled a bigot or hater. So a silence is being imposed’ (Porteous cited in Merritt 2018); ‘religion and people of religion are relentlessly attacked in the correct-thought media every day’ (Craven 2018); ‘Christianity will not be silenced or stifled in Australia’ (Court cited in Karp 2018b); and we face ‘a future where lawfare, violence, slander and intimidation are used to bully religious believers into silence’ (Oriel 2019).

I note that the particular claims, as they are outlined here, of victimisation through hate speech and silencing do not cohere with philosophical or jurisprudential understandings of these types of discursive harms as noted above. Nor does the data provide evidence that those opposed to marriage equality were unable to articulate their views in the public sphere.

Meaning of free speech as unbridled and unlimitable

Prominent ‘no’ advocates were of the view that expressing one’s religious views ought to have virtually no bounds: ‘It seems right now no one can make any statement in favour of marriage without being condemned as a “hater” or a “bigot”’ (Kellehan 2017); ‘individuals could be left legally exposed for simply speaking their minds’ (J. Kelly 2017); ‘provisions are required to protect people from discrimination on account of whatever views they may hold about marriage’ (Parkinson cited in P. Kelly 2017); ‘parents are appalled by mad gender theory, but they have little power to curb it because of new forms of human rights law’ (Shanahan 2017); ‘already we live in a climate of intimidation where civil debate is impossible’ because ‘political correctness has previously intimidated many into silence’ (cited in Woodward, Watson, and Evershed 2017); people need to be able to ‘speak [their] mind and give [their] advice without being bullied’ (Abbott cited in Balogh 2017); freedom of religion ‘is first and foremost about speech and expression: the ability to live out our beliefs and convictions through word or action’ (Anderson 2017); ‘you can’t live with a religious worldview if you don’t also have the freedom to express that worldview without threat of legal restriction’ (Begg cited in Hutchens 2017); ‘the right of free expression … cannot be allowed to be curtailed by, at times, hysterical groups of activists’ (Porteous cited in Merritt 2018); ‘polite society will not tolerate public expression of some Christian views’ (Albrechtsen 2019); ‘all too often calls to regulate speech look like opportunistic attacks on conservatism and religion’ (Chavura 2019);¹² and ‘there is no freedom of speech, or religion … without the freedom to express it’ (Oriel 2020). This idea was picked up on by the Rationalist Society, which, in its submission to the Religious Freedom Review, accused religious groups of wanting an ‘unfettered right to manifest [their] beliefs, even if this involves breaching the fundamental rights of others’ (cited in Karp 2018a).

Resetting the meaning of ‘free speech’?

I have established that opponents of marriage equality linked free speech to marriage equality and argued for legal protections for religious freedom that override existing vilification laws. This discourse underpinned two key endeavours. The first was an attempt to override a long- and deeply held premise in Australian political discourse regarding the appropriate place for freedom of speech. As noted, the place of free speech in Australian political culture and law has been that it is both a widely held value and that it may be restricted under certain circumstances to achieve a social good. This discourse attempted to override that established position, positing freedom of speech as limitless in the context of religious expression.

The second endeavour was to distort the purpose of vilification laws, which, as noted, are not designed to stop people from expressing their views but to encourage them to do so in ways that do not harm. This discourse attempted to posit these laws as restrictive of faith-based speech per se, implying one could not express one’s religious views in a way that was consistent with the requirements of vilification laws.

Yet this was a campaign around a controversial policy issue. In such a context, disagreement – even caustic disagreement – that does not harm others is the very paradigm of exercising freedom of speech. Many of the impugned activities were, in fact, legitimate exercises of free expression that did not cross the threshold into actionable harm. Being able to debate the issue, even when expressing unkind views of a person who holds a faith-based reason to oppose marriage equality (for example by suggesting they might be a ‘bigot’), does not in and of itself amount to a violation of their human rights. This is because it is unlikely that such words would reach the threshold of harm to be rights-abrogating.

Perhaps there are two lessons to be drawn from this debate. The first is that ‘freedom of speech’ may not be successfully mobilised as a discursive representation to win a public debate if the view of free speech being put forward is that free speech means being able to say what you want with impunity. While this attempt to posit free speech as unlimitable has been unsuccessful thus far, due to the majority vote for marriage equality in the survey and the failure to date of the federal government to legislate to protect religious freedom in the manner proposed, this debate is far from over. Understanding its components will assist us to negotiate these debates when they re-emerge in future.

The second is that because free speech is a fundamental human right, its philosophical and legal parameters are important to understand well, and misrepresentations and misunderstandings of human rights ought to be refuted and challenged. This study promotes enhanced understandings of free speech in the hope that doing so may mitigate against the repetition of these misrepresentations and misunderstandings in future.

Acknowledgements

I am grateful to Kate Brennan for research assistance, to the reviewers for very helpful feedback, and to the hosts of the workshop at which an earlier version of this paper was presented for very useful feedback and comments.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Notes on contributors

Katharine Gelber

Katharine Gelber is head of the School osf Political Science and International Studies at the University of Queensland, a fellow of the Academy of Social Sciences Australia, a former Australian Research Council Future Fellow (2012–2015) and a former president of the Australian Political Studies Association. Her expertise is in freedom of speech and speech regulation, with research projects into the regulation of hate speech, especially online, and other allegedly harmful speech. Her recent publications include Free Speech in the Digital Age (Oxford University Press, 2019), jointly edited with Susan Brison; Free Speech After 9/11 (Oxford University Press, 2016); and articles in Journal of Public Policy, Parliamentary Affairs, Law and Society Review, Political Studies, Contemporary Political Theory, Melbourne University Law Review, Review of International Studies, and the Australian Journal of Human Rights.

Notes

1 Anti-Discrimination Act 1991 (Qld), s 124A; Anti-Discrimination Act 1998 (Tas), s 19; Discrimination Act 1991 (ACT), s 67A; Racial and Religious Tolerance Act 2001 (Vic).

2 Exposure Draft – Religious Discrimination Bill 2019 (Cth).

3 It is not unusual in Australia for employers to hold employees to standards in relation to their use of social media, as the Banerji case showed (Gelber 2019; Morris and Sorial 2022).

4 Second Exposure Draft – Religious Discrimination Bill 2019 (Cth).

5 Religious Discrimination Bill 2021; Religious Discrimination (Consequential Amendments) Bill 2021; Human Rights Legislation Amendment Bill 2021.

6 Interestingly, not all of these instruments contain religion-based anti-vilification provisions, so presumably they were all included for comprehensiveness rather than accuracy.

7 Religious Discrimination Bill 2022, Pt 2, s 12.

8 The Racial Discrimination Act 1975 (Cth), s 18C states that conduct is unlawful if it is reasonably likely to ‘offend, insult, humiliate, or intimidate’ a person on a specified ground. State vilification laws differ in the terms they use to define vilification, with many using the formulation of conduct that incites hatred, serious contempt or severe ridicule of a person on a specified ground. See, for example, Anti-Discrimination Act 1977 (NSW), ss 20C, 38S, 49ZT, 49ZXB; Anti-Discrimination Act 1991 (Qld), s 124A; Discrimination Act 1991 (ACT), s 67A; Racial and Religious Tolerance Act 2001 (Vic).

9 In liberal democratic states some dominant groups do claim that their human rights are imperilled (see, for example, McClain 2020; Teles 2016, 454).

10 The region was set to ‘Australia’ and parameters were set to exclude republished news, pricing/market data and personal announcements.

11 Liberal Senator Dean Smith introduced a bill to the parliament on 15 November 2017, which formed the basis for the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth). Senator James Paterson had promoted an alternative bill with more expansive protections for religious freedom on 13 November 2017.

12 A Catholic archbishop in Tasmania became a cause célèbre in 2015 after a vilification complaint was lodged with that state’s Anti-Discrimination Commission over a leaflet he distributed in schools that opposed same sex marriage. The complaint was subsequently withdrawn (Patrick and McIlroy 2022).