Ever since the High Court decided in 1994 that the Constitution contains an implied freedom of political communication, it's become quite fashionable to have a crack at striking down any law that gets in the way of free speech, on the basis that it offends that constitutional freedom.
The latest target is the NSW Anti-Discrimination Act's prohibition of public acts that incite hatred towards, serious contempt for, or severe ridicule of, homosexuals – simply, anti-gay hate speech. That's been law for 20 years. A Mr Sunol recently tried to have it declared invalid as it infringes his constitutionally protected right to say what he wants.
Mr Sunol, a taxi driver, was being prosecuted for some pretty vile statements he posted on various websites about gay people. We won't repeat them, they were disgusting.
The Constitutional question came before the NSW Court of Appeal. The test to apply in these cases is well settled: (1) does the law in question effectively burden freedom of communication about government or political matters? And (2), if so, is it reasonably appropriate and adapted to serve a legitimate end which is compatible with the maintenance of our system of representative government?
The answer to (1) was yes. The Court said that discussion of the position of minority groups in society and the extent to which their position should be enhanced or protected by legislation, is part of the fabric of Australian political debate. I guess marriage equality might have been in the back of their minds. It'd be nice to live in a world where homosexuality is not a government or political matter at all, but apparently we're not there yet.
(2) was a yes too. Basically the Court said that some subjects, like race, religion or sexuality, need particularly careful handling and it's appropriate to place some restrictions on how they may be publicly debated so passions don't get too inflamed.
So, the anti-hate speech law stands and Mr Sunol is probably in a bit of trouble.
Australia sits mid-way on the free speech spectrum between the US at one end where it's a free-for-all, and some European countries at the other which have super-strict hate speech laws. It's always a tough balance but we've got it about right.
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