The process as punishment: The misuse of vilification laws

The process as punishment: The misuse of vilification laws

  • August 21, 2020

The Human Rights Law Alliance is acting for Lyle Shelton in relation to a vilification complaint brought against him by two drag queens.

This piece explains the basic substance of the complaint against Lyle and why vilification laws are bad law and easily subjected to misuse.

The complaint against Lyle is just one example of how everyday Australians are being made the subject of vilification complaints for simply expressing public opinions about personal or religious beliefs.

Even if vilification complaints do not ultimately succeed, the process itself is like a form of punishment.

The vilification complaints against Lyle Shelton

In January 2020, a ‘drag queen story time’ event was held for children at a public Brisbane library. Shortly after, Lyle Shelton published a blog post about the event. It included some facts about the drag queens and discussed the need to protect the innocence of children.

The two drag queens subsequently brought vilification complaints against him. The complaints were accepted by the Queensland Human Rights Commission (QHRC).

The complaints, in short, alleged that Lyle had incited “hatred towards, serious contempt for, or severe ridicule of” the drag queens on the basis of their sexuality. For example, the complaints included claims that Lyle had misgendered one of the drag queens and had described them as dangerous role models for children.

Vilification laws should not be weaponised to shut down debate on important matters of public interest. Lyle’s blog post apparently discussed factual matters and was apparently not derogatory or insulting. The point of the post was apparently to express that such events should not be held for children.

On 13 August, the parties attended a conciliation conference before the QHRC. Unfortunately, the matter was not resolved.

The complainants have 28 days from the conciliation to refer the matter to the Queensland Civil and Administrative Tribunal for a hearing.

Lyle now faces an anxious wait to see whether the complainants will take this step.

Broader context – the process as punishment

Lyle’s matter is just one example exposing the underlying problems in the broader context of vilification laws across Australia.

Unfortunately, there is a low bar for the making and acceptance of vilification complaints.

For example, complaints may be lodged through relatively simple online forms. The wording of the Acts also means that vilification may be alleged to occur through any “public act”.

The relevant commissions may also accept any complaints which appear to come within the relevant legislation. They do not first determine whether there has actually been a breach.

Despite the low bar, if a complaint is accepted a respondent may then be subject to the complaints process. The person may be required to attend a compulsory conciliation conference and participate in further negotiations with the complainants. If the complaint is not resolved, it could ultimately be referred for a public tribunal hearing. The respondent may need to attend and give evidence in their defence at the hearing.

The ease with which a complainant can force a conciliation conference can unhelpfully create an impression that they have a reasonable case and encourage them to pursue the case through to the Tribunal stage when there is no real prospect of success. This can place further burden on the system and takes valuable time and money away from legitimate cases.

This process – occurring before any breach of an Act is even established – is unfortunately like a punishment in and of itself. Even if a vilification complaint is not ultimately successful, a respondent to a complaint may expend significant time, cost and effort in defending the complaint and obtaining legal advice. The process may also be unfamiliar and stressful.

This is particularly concerning in the context of everyday Australians being made the subject of vilification complaints for simply expressing their opinions. The laws are apparently being misused against such people with beliefs against mainstream views or ideologies.

With such a low bar for the making and acceptance of complaints, more and more people may find themselves in this position. They too may find themselves ‘punished’ by the process, even if any complaints against them are ultimately unsuccessful.

We are also concerned that fear of the process may contribute to a culture in which everyday Australians are afraid to freely express their views.

Just because someone disagrees with a point or view or is even offended by it does not mean that they have been vilified. In Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 the court made it clear that it does not matter if someone’s conduct offends or hurts the feelings of a group of persons This is irrelevant to establishing whether vilification has taken place. What matters is whether the conduct incites hatred in others against the person or group.

Vilification laws should not be used against people who simply respectfully express their opinions or beliefs in public. This stifles free and open speech in a pluralistic liberal democratic society. It is essential to the health of our society that we allow free and open debate on issues of public interest. Speech needs to be met with speech, not lawfare.

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