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Free speech and other human rights: the clause that almost sank the Human Rights Bill

One news item buried among all the discussion about the early election announcement, Craig Thomson’s arrest and Moses Obeid’s testimony to ICAC yesterday was a statement from the Attorney-General, Nicola…

Three little words in a draft bill threatened both free speech and the bill’s existence. j / f / photos

One news item buried among all the discussion about the early election announcement, Craig Thomson’s arrest and Moses Obeid’s testimony to ICAC yesterday was a statement from the Attorney-General, Nicola Roxon, that a tiny clause of the proposed Human Rights and Anti-Discrimination Bill 2012 will be redrafted (or removed). This is worth bringing to light because the few words in this clause – “offend” and “insult” - have caused alarm and dominated public debate over the broader question of reforming Australia’s anti-discrimination laws.

The question remains as to whether the removal of this clause will address the free speech concerns and allow more debate about the other 154 provisions.

Considering the ambitious and competing instructions they were given, the drafters of the proposed Human Rights and Anti-Discrimination Bill 2012 have done a remarkably good job, with the exception of that one clause. The “offend, insult or intimidate” clause, 19(2)(b) has been the subject of most of the public debate (along with exemptions for religious groups), and has led to many accusations that a bill supposedly designed to “consolidate” federal anti-discrimination laws goes too far and needs to be reined in.

The bill itself is the outcome of two-and-a-half years of consultation by the government, after it announced in 2010 that it would “consolidate” federal anti-discrimination laws as part of Australia’s Human Rights Framework. The team’s instructions were to “consolidate” the five existing anti-discrimination acts into one, add sexuality and gender identity as new grounds, and make the law more consistent and less complex.

These goals in turn were designed to make the law easier for individuals and businesses to understand. Two qualifications were made. One was explicit: do not diminish any existing protections. The other was not stated up front but has become clear: do not touch the churches’ exemptions.

While consolidation might have looked easier to the government than introducing a bill of rights (as the National Human Rights Consultation Report suggested), this was never going to be a straightforward exercise.

The reality is that the existing acts – including the Racial Discrimination Act and the Sex Discrimination Act – are each very complex, containing at least ten different definitions of discrimination (as well as other definitions of vilification and harassment). These acts set out a multitude of prohibitions and are qualified by an extraordinary and inconsistent array of exceptions. They pose a regulatory challenge and there is no doubt that their complexity and inconsistency justify the simplification exercise.

The draft bill that has emerged is a remarkable achievement, containing one definition of discrimination, a simplified prohibition akin to the one used in the Racial Discrimination Act, and a general justification provision to replace a host of specific and technical exceptions. When the bill was released as an Exposure Draft last November and sent off to the Senate Legal and Constitutional Affairs Committee for review, the consultation revealed a few problems, including the one that prompted Roxon’s announcement today.

What does clause 19(2)(b) actually say and do?

It is found in the part of the bill that defines discrimination. The new definition of discrimination is fairly unremarkable, except for this particular subclause. In clause 19(2), the drafters sought to make clear “to avoid doubt” that discrimination includes harassment, as the courts have told us many times over the years.

But here we get to the crux of the problem. Instead of simply saying discrimination includes “harassment”, clause 19(2)(b) adds that discrimination can include “other conduct that offends, insults or intimidates” another person because of their protected attribute.

These particular words appear in both the definition of sexual harassment in the Sex Discrimination Act and the definition of racial vilification in the Racial Discrimination Act, both of which are retained unchanged in the bill. The numerous and vociferous objections to clause 19(2)(b) related to a concern that it could be interpreted as a vilification clause that applies to all 18 attributes in the act, not merely race.

While Roxon publicly stated in an opinion piece for The Australian in early January that it was not the government’s intention to extend the vilification provisions beyond race to all attributes, the provision could still be interpreted in that way.

A second concern is that it omits the safeguards that are in the racial vilification provisions, such as an objective test of “offends, insults or humiliates”, and the free speech provisions that protect speech or conduct that is reasonable to the average person or is a fair and accurate report or comment on a matter of public interest.

The vilification provisions are designed to curb racial hate speech that undermines the dignity and inclusion of ethnic groups. They have operated since 1995. But as former justice James Spigelman rightly asserted in his Human Rights Day Oration, if the bill has the effect of making conduct unlawful simply because it causes someone offence, it goes too far. Democracy depends on free speech and, as Spigelman adds, “freedom to offend is an integral component of freedom of speech”.

No-one has defended or supported clause 19(2)(b), so it is not at all surprising that the Attorney-General has finally asked for alternatives, including removal of the clause. We needed to have this debate and ensure this correction.

The question, however, is whether the objections and cries of outrage over this one subclause have tainted public opinion about the bill generally.

Hopefully Roxon’s announcement has doused this fire and can clear the air to allow for good public debate about the other provisions of a bill that would bring significant clarity, consistency and common sense to the field of Australian anti-discrimination law.

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179 Comments sorted by

  1. Chris Harper

    Engineer

    An unbelievably rotten piece of legislation from a rotten Prime Minister, a rotten government, and an incompetent Attorney General.

    That this bill could be proposed in the first place is a clear demonstration of the contempt with which these people hold the core and essential freedoms on which a free and democratic society is built.

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    1. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Chris Harper

      "... the core and essential freedoms on which a free and democratic society is built."

      What are those core and essential freedoms, Chris, and how would you define a free and democratic society?

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    2. Chris Harper

      Engineer

      In reply to Anthony Nolan

      How would I define a free and democratic society? Complex question – at the margins there will be room for all sorts of arguments, both measured and heated. At the core though? Freedom of speech and expression and freedom of association, unfettered by state limitations, are essential preconditions without which all other attribute are meaningless.

      If I am not free to exchange information, freely and openly, with whomsoever I wish, at my own discretion, then I am not free and I am not informed and the electoral result, whatever it is, loses both credibility and validity.

      If I am not free to both seek and enunciate truth, regardless of any opinion others may hold, then I am not free at all.

      As to what constitutes truth? Well, let’s talk about that right now, shall we? After all, once this bill passes we won’t be permitted to do so in any public arena lest some poor petal whines that their feelings have been hurt.

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    3. Stephen Prowse

      Research Advisor

      In reply to Chris Harper

      The comment "The question, however, is whether the objections and cries of outrage over this one subclause have tainted public opinion about the bill generally." seems to be to be the case.

      Maybe this is a good example of how consultation, transparency and public debate has resulted in a change that has the potential to deliver a good piece of legislation.

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    4. Dania Ng

      Retired factory worker

      In reply to Anthony Nolan

      de·moc·ra·cy
      /diˈmäkrəsē/
      Noun
      1 - A system of government by the whole population or all the eligible members of a state, typically through elected representatives.
      2 - A state governed in such a way.
      (Source: google, which knows EVERYTHING!)

      Additionally, the word derives from the Greek word 'demos', as employed in the times of the Athenian city state. That is, not this demos [http://www.demos.co.uk/], though interesting as it is and highly recommended, but the Greek word for village…

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    5. Sue Ieraci

      Public hospital clinician

      In reply to Chris Harper

      "After all, once this bill passes we won’t be permitted to do so in any public arena lest some poor petal whines that their feelings have been hurt."

      Chris - did you miss the main thrust of the article - ie that 19(2)(b) is to be reviewed?

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    6. Stephen Prowse

      Research Advisor

      In reply to Chris Harper

      Perhaps there is not a realisation that inappropriate words can destroy people

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    7. Lynne Newington

      Researcher

      In reply to Chris Harper

      I wonder if all the websites that have derrogative comments about Muslims will have to be diabled.
      Australians Warned About Islamic Jihad By Stealth written by Babette Francis is one that comes to mind.
      And what the West must demand of Muslims is another, in fact most have now been delegated to the Archives of Endeavour Forum.

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    8. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Lynne Newington

      Gee Lynne thanks for the pointer to that little nest of vipers.

      Still alive??? It's satanic I reckon - some mephisto shenanigan - she must be 107 in the shade....And keeping even worse company than before.

      I recognise some names fro the Q society - the mob who sponsored that prominent advocate of free speech and expression Geert Wilders.

      Took me right back that did. Just awful.

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    9. Lynne Newington

      Researcher

      In reply to Peter Ormonde

      Well Peter, as a matured Catholic so I thought, I could never understand why she and others of Endeavour Forum as NGO's and some influence with the United Nations, as mother's themselves, why they always supported now Cardinal Pell when such insidious crimes were being committed against our own Catholic children.
      Not to mention the God knows how many children had father's clergy denied their rights according to not only the UN Convention of Rights to the Child, but universal law for both child and father.
      In both cases the former UN Convention, Australia had been signatory to since 1990 and the silence was deafening.
      Until now of course when politicaly expedient and the Cardinal up front leading the band, no doubt believing the money's in the bag.

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    10. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Lynne Newington

      Ooh Ms Lynne I'm not sure what you're engaged in researching but I'd suggest giving this outfit a wide berth. Wading into the perverse and conflicted swamp of this sort of business defies any sort of analysis or rational understanding. Ugly people doing ugly things. Invariably.

      This stuff comes out of an anaerobic fetid bog seething with hatred and venom, which of course they are perfectly free to express and we, fortunately, are increasingly free to ignore.

      I'm off for a walk... wash that stuff off.

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    11. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Dania Ng

      Thanks Dania. I must say I couldn't ever have imagined anything like the reality you've outlined here.

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    12. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Chris Harper

      OK, so you've made a good case for freedoms of speech and communication. There are always issues to be explored there but ... what I want to put back in response is that you've made no mention of the other characteristics of a modern democracy that are equally significant. You've not mentioned things like state guarantees of material security (the social welfare system) or other public goods such as affordable state subsidised education, including so called 'free' public education. Generally, you ignore entirely the broad issue of equity in outcomes without which it is difficult to argue that the democracy we inhabit is one of free and *equal* individuals.

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    13. Julia Thornton

      PhD Candidate

      In reply to Anthony Nolan

      Absolutely agree, Anthony

      Freedom of speech does not trump all other freedoms despite what the Murdoch papers would have us believe. There are many other rights and freedoms , including rights to freedom from verbal violence - ie, offence, insult and intimidation - that are equal to freedom of speech.

      Civilisation depends on civility, not just in some abstract sense. The idea behind civility is to reduce or eliminate violence between citizens, which includes both physical violence and verbal…

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    14. Chris Harper

      Engineer

      In reply to Anthony Nolan

      A welfare state may exist without democracy, and democracy may exist without being a welfare state. I failed to mention them because what you put forward are incidental services, not core prerequisites.

      The first approximation to a modern welfare state I am aware of was Bismark's Germany, hardly a model of democracy.

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    15. Chris Harper

      Engineer

      In reply to Sue Ieraci

      Sue,

      "Chris - did you miss the main thrust of the article - ie that 19(2)(b) is to be reviewed?"

      I am aware of that. I am also aware that this will not be done with respect of the race provisions of the legislation, so any attempt to discuss Australia's race classification laws could result in some outraged offence merchant shutting that discussion down by claiming offence.

      I am also aware that the burden of proof continues to be reversed, to the detriment of all who may be maliciously accused…

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    16. Kim Darcy

      Analyst

      In reply to Anthony Nolan

      Anthony. Sorry, but you are still stuck in the 1950s. What you are describing has nothing to do with "democracy". What you are describing - and yearning for - is "socialism". Sorry, your day has gone. Nobody buys this crap anymore.

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    17. Kim Darcy

      Analyst

      In reply to Chris Harper

      Actually, the inventors of "democracy" had an idea that included a type of 'welfare state'. Except access to welfare state benefits and security in ancient Athens were dependent on a level of civic responsibility and involvement that the likes of Anthony and Eva Cox could never cope with.

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    18. Chris Harper

      Engineer

      In reply to Anthony Nolan

      Anthony,

      You said: "OK, so you've made a good case for freedoms of speech and communication."

      And therein lies the tragedy. Only a generation ago it would not have been necessary to make that case. The ideas I sketched out there were common knowledge across the political spectrum with only the most extreme ideologues, marxists and fascists, not holding to them as a matter of course.

      That it is, today, necessary to make the case for these core principles underlying our system of belief and government brings me close to despair. How can you, or anyone else raised in belief that totalitarian societies are anathema, not understand that these principles are precisely what differentiate us from the murderous regimes of the 20th C. If we abandon these principles then we become them.

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    19. Emma Anderson

      Artist and Science Junkie

      In reply to Chris Harper

      Advocating that children are schooled and the ill get to see a doctor is vastly different from believing that it's okay to vilify but not to dissent (characteristics of the regimes you speak of)

      Likewise vilification, whilst representing an unfettered way of speaking, is effectively illegal anyway, under libel and defamation law. Though neither of those, being civic, allow for the extraordinary vilification that occurs when a leader tells his or her people to go out and beat the living shit out…

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    20. account deleted

      logged in via email @gmail.com

      In reply to Stephen Prowse

      Stephen, the issue is with the concept of "offence" being a just cause of action. It is not to do with other aspects of discrimination.

      However, let's examine what you said: "inappropriate words can destroy people". Certainly there are people who are sufficiently vulnerable to the opinion of others to do self-destructive things. The nurse who took her own life over a prank call, for example, was no doubt "offended" at the response of her colleagues to her error, but she also had a predisposing…

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    21. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Kim Darcy

      What about Obama - and our own Red Queen - socialists on the rampage apparently.

      I don't think we should restrict ourselves to semantics Kim. The folks in Cairo aren't socialists - they just want social change, opportunity, a vote, better wages, equality, fairness ... all sounds vaguely familiar.

      People use different words, have different ideas of what that looks like - even Sharia Law sadly, but there seems to be a desire in the human heart to be treated like humans.

      Long as that keeps hapening I don't care what it's called.

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    22. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      I'm not the one to do this. Andrew Bolt and Anita Heiss would be far more able to fill you in on the details. They have become kinda expert on the subject - albeit from different directions.

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    23. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Kim Darcy

      Oh, so no one buys into the idea of public hospitals and supported health care anymore because they're socialist. You must remember to mention that to Obama the next time you see him!

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    24. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Chris Harper

      The "murderous regimes" of the 20C never hesitated to exercise freedom of speech especially racially and ethnically vilifying speech directed at minorities. Remember - Jews, Gypsies, homosexuals and communists were the first to feel the full impact of unrestrained freedom of speech. Now, how would you suggest that a democracy can guard against that sort of outcome at the same time as protecting freedom of speech?

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    25. Chris Harper

      Engineer

      In reply to Anthony Nolan

      You said: “Now, how would you suggest that a democracy can guard against that sort of outcome at the same time as protecting freedom of speech?"
      Easy, by protecting free speech, by protecting those attributes which make us a free society instead of stripping them away and turning us into the sort of society where those things can happen.
      If you don’t want those things to happen then fight those people who work to eliminate the protections against them, people like that incompetent fool Roxon…

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    26. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      Hang on ... you used the words ... you asserted that such things actually exist Chris. Are you now saying you were just parroting Blot? A flick pass to someone who "knows"?

      The truth of the matter is that there are no such "laws" or classification systems. Not in legislation nor in practice.

      Here: http://www.abs.gov.au/ausstats/abs@.nsf/Lookup/1249.0main+features22011

      Don't repeat lies unless you yourself are willing to carry the lie's full weight mate. There should be a law.

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    27. Chris Harper

      Engineer

      In reply to Anthony Nolan

      Anthony,

      Gillard and Roxon consider you unfit to live your life without their dictat. I consider you are capable of making your own decisions without any orders from me. In that context, who is it that despises you, and who respects you?

      Don't forget, the people who want to control what you are or are not allowed to say regard you with contempt as a person, by definition. They are contemptuous of your ability to make judgements which satisfy their demands.

      Those who support your right to speak freely, again by definition, respect you as autonomous human being, and respect your right and ability to make judgements.

      You judge - which set of viewpoints is most likely to lead to the repression which so concerns you?

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    28. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      You can live in whichever contrafactual world you wish, no skin off my nose, bur nonetheless I suggest Anita Heiss and her friends might still disagree with you.

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    29. Lynne Newington

      Researcher

      In reply to Peter Ormonde

      The majority of them are Catholics, I just like to know what else is done......in my name at least.
      Not good!
      I was reared by the Sallies where there was room for all, even the "dreaded Masons" who were so good to us as children.

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    30. Emma Anderson

      Artist and Science Junkie

      In reply to Chris Harper

      In case you missed my previous comments Chris (it's been a heated conversation so no skin off my nose) I'll repeat myself.

      If you were for absolutely free speech you wouldn't just be questioning this particular bill. You would also be arguing against all other restrictions placed against unfettered speech, such as libel and defamation laws, parliamentary protections, and the like.

      Under Australian law, we do not have the explicit right to free speech. We have the implicit right in the common…

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    31. Anthony Nolan

      logged in via email @hotmail.com

      In reply to Chris Harper

      Chris Harper: you haven't made a case that free speech is any sort of protection against the consequences of hate speech rendered possible under rules that protect free speech.

      As to your straw person (this is so tedious) of course I'm not suggesting that Jews and the Rom are at risk because of vilification in Australia ... although you'll find that the Executive Council of Australian Jewry and other Jewish representative organisations are very quick to respond to hate acts and speech ... however, Australian history is the history of the persecution of minority groups who have paid the price of living in a culture that tolerated vilification and disparagement on the basis of ethnicity, appearance, sexuality and other identifiers of difference from a putative 'norm'.

      But you have nothing to say about them or that history.

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    32. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Lynne Newington

      One of the interesting things that's happened over the last 50 years is the decline in christian factionalism ... used to be one of the most pervasive and poisonous influences in public administration and Australian culture.

      I remember fully expecting a lightning bolt for a week after I once set foot in an Anglican church. Thank god for confession eh?

      Sectarianism was particularly poisonous in the NSW Police Force over many decades and probably persists to this day - revolving administrations based on their religious affiliations... revolving congalines of crooks taking paper bags and much worse.

      This was so structurally ingrained in the NSW cops it is probably still built in in some way but it will not be primarily sectarian. This seems to have quietly faded into history. Despite the fact that some folks like Pell still seem to live in the 1950s and reflect the pompous empty worst of it.

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    33. Lynne Newington

      Researcher

      In reply to Peter Ormonde

      Yes and to think that as we speak, leaders of Catholic and "reformed" churches in America, have just signed an agreement to recognise each other's sacrament of baptism.
      The condition being, "that water and a reference to the Trinity for mutual recognition.
      I do recall it was in the pipeline here but not sure it' been signed and sealed, I could be wrong considering the unity of the National Council of Churches, and the Royal Commission would incline them to all stick together.
      I can't imagine them all being signatory to it..

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    34. Dylan Evan Taylor

      Law/Arts Student

      In reply to Lynne Newington

      Thinking about why I reckon offense is an unreasonable limitation on freedom of speech brought me to two examples that helped to clear the muddied waters.

      Firstly, my staunchly Christian grandparents are offended by homosexuality but their offense does them no harm. If they were more accepting of different world-views they wouldn't be so offended.

      Secondly, Bill Henson's photography exhibition created an uproar because some people found his work to be offensive. If people are offended by…

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    35. Kim Darcy

      Analyst

      In reply to Stephen Prowse

      Oh wonderful. So, now you people want the State to police what is, and what is not, "inappropriate"!

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    36. Lynne Newington

      Researcher

      In reply to Dylan Evan Taylor

      I sure do.
      So to would Archbishop Denis Hart, answering his door late at night to a woman who had been taken advantage of by one of his brother priests, struggling to deal with the aftermath, telling her to "go to hell bitch".

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    37. Emma Anderson

      Artist and Science Junkie

      In reply to Lynne Newington

      I'd say that act reflects

      1. A lack of human decency, the addition of cruelty
      2. Protectionism/Tribalism "the flock" literally flocking together
      3. A possible breach of some kind of legal obligation to protect someone in harm's way, rather like, when you see a car accident, call an ambulance; not the same as mandatory reporting per se

      But I don't see how it relates to free speech as it applies to non-discrimination principles. As in, the reasons why he did that had nothing to do with her gender, sexual orientation, disability status etc, and everything to do with him being a low life arsehole protecting another low life arsehole at her expense.

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    38. Lynne Newington

      Researcher

      In reply to Emma Anderson

      To the contrary Emma, the second paragraph of Dylans response can be seen on the level the acceptability of "free speech", even discrimination for that matter.
      The woman was an ex-nun, expected to accept the rantings of a "superior" figurehead.

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    39. Kim Darcy

      Analyst

      In reply to Dylan Evan Taylor

      Dylan, those who objected to Henson's ephebophilic photography did so for reasons other than it being merely 'offensive' to *them*. I don't agree with them, but they tended to see the issue as an extension of the whole 'child porn' issue. I think the Henson issue is therefore, probably different than, say, "Piss Christ", R-rated movies, or the gay Mardi Gras where the response "just don't go to that gallery/cinema/Oxford Street" is the appropriate response.

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    40. Kim Darcy

      Analyst

      In reply to Anthony Nolan

      No, Anthony. Nobody buys the notion that democracy means "equity in outcomes". It simply doesn't. "Equity in outcomes" has nothing to do with democracy. That is Socialism and Communism In fact, the more the State tries to create "equity in outcomes", the more democracy is trashed.

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    41. Kim Darcy

      Analyst

      In reply to Anthony Nolan

      "The "murderous regimes" of the 20C never hesitated to exercise freedom of speech especially racially and ethnically vilifying speech directed at minorities."

      Again, Anthony, "freedom of speech" is not about the freedom of the STATE. It is about the freedom of citizens FROM the State.

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    42. Kim Darcy

      Analyst

      In reply to Emma Anderson

      "Under Australian law, we do not have the explicit right to free speech. We have the implicit right in the common law and in the way existing laws are practiced."

      Actually Emma, the High Court has found we have an 'implied right of political communication' in the Constitution. I think their reasoning is dodgy myself, but they're the boss, not me. This takes the issue on to another level. Statutes can overrule the common law, but not the Constitution. Curiously, Bolt's lawyers never went down this path. And as they did not appeal to the High Court, we still don't know. But as it stands s.18C of the Racial Hatred Act goes way beyond ANY international instrument we have signed.

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    43. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      Political communication is just one aspect of free speech.

      Can you tell me more about s.18c of that act? Is it commonwealth or state law?

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    44. Emma Anderson

      Artist and Science Junkie

      In reply to Lynne Newington

      Actually I got the impression from Dylan's comment that he was more or less implying that if someone has the right to yell out your window at 1am, you have the right to yell at them to shut up. He called it censorship but in a way both parties would be practicing free speech.

      That's different from the Denis Hart comment you made. I took the liberty of googling it after I replied to you on that. I saw no indication that she was an ex-nun, but it was a documented event in so far as the magistrate…

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    45. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      That is true, the reaction was concerning the possibility it could be considered a form of child porn.

      The counter reaction appears to have been that child porn is an entirely different can of worms..some of the counter reaction as follows

      1. Child porn exploits children, coercian, secrecy etc. Henson had permission from both parents and child and it was an open, non secretive process
      2. Child porn is sexualised. The images were non sexual. Nudity and sexual images are not the same…

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    46. Kim Darcy

      Analyst

      In reply to Emma Anderson

      I agree with you Emma on the Henson issue. I just wanted to separate t from the issue of "being offended" as a cause for legal action.

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    47. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      Fair enough. However, the Henson issue is an example where being offended was a cause for legal action. They closed the exhibition down.

      Perhaps a lack of legal clarity meant that this could happen.

      Perhaps this lack of clarity is distinct from anti-discrimination laws, and refers to state censorship powers and literature classification system. Or the tendency for populist issues to get in the way of justice issues.

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    48. Lynne Newington

      Researcher

      In reply to Emma Anderson

      You couldn't have looked very hard Emma, or maybre you were just waiting for me to do it..
      There's several references still online, one with picture of her in her habit.
      The Age August 11 2009 Sex abuse victim told to go to hell.
      Another again in the Age July 13 2002 just to name a couple.

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    49. Emma Anderson

      Artist and Science Junkie

      In reply to Lynne Newington

      The Age article from 2009 that I saw had no picture. But it may have been an editorial.

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    50. Peter Hindrup

      consultant

      In reply to Julia Thornton

      ‘There are many other rights and freedoms , including rights to freedom from verbal violence - ie, offence, insult and intimidation’.

      Recently, while working with a Welshman, I swore and he said : ‘There is no need to blaspheme’! I hadn’t heard the word in years!

      This is his problem, and anybody elses who chooses to be offended. That people choose to believe in mythical beings is their right, to expect others to have any concern about offending those mythical beings is totally unreasonable.

      Insult? Except that a fitting insult ought not be so labelled, for it ought accurately describe the being to whom it is directed.

      The old adage ‘that sticks and stones may break my bones’, is something that I believe ought be instilled in all kids, for if they cannot develop a toughness to mere words, what hope have they as they emeerge from the shelter of childhood?

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    51. Peter Hindrup

      consultant

      In reply to Dylan Evan Taylor

      'Secondly, Bill Henson's photography exhibition created an uproar because some people found his work to be offensive'.

      If anybody found his work 'offensive' then they w/are clearly in need of help!

      'If people are offended by such work then they should simply avoid going to exhibitions where such work is displayed.'

      I entirely agree. This is like those who are offended by same sex marriage and prostitution. (I am excluding forced participation, child exploitation and the like) has nothing to do with them, cannot harm them, but they are 'offended!'

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    52. Peter Hindrup

      consultant

      In reply to Emma Anderson

      'the Henson issue is an example where being offended was a cause for legal action. They closed the exhibition down.'

      In the end the NSW Department of Public Prosecutions recommended that no charges be laid against Henson, and the Australian Classification Board gave the images in question a PG rating.

      The exhibition returned later to a Paddington Gallery. (Sydney), no fuss, and anybody who went along to be titillated would have been better off exercising their imaginations on the beach, where they would have had much more exposure to base their fantasies on!

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    53. Lynne Newington

      Researcher

      In reply to Emma Anderson

      Beautiful wasn't she..
      Imagine a mother fostering a vocation in her daughter only to have her violated by a priest to whom she owed her spiritual allegiance to.

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    54. Emma Anderson

      Artist and Science Junkie

      In reply to Peter Hindrup

      Storm in a tea cup.

      How many other photographic exhibitions have been classified by the board and dragged through the DPP?

      It's not normal practice in the visual arts, that's for sure.

      Their efforts would have been better served catching any creeps who went there to be titilated.

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    55. Emma Anderson

      Artist and Science Junkie

      In reply to Lynne Newington

      I am not sure who was beautiful....are you referring to the ex-nun? I have not seen what she looks like and don't think that matters.

      What matters is some creep arsehole did a creep arsehole thing and another creep arsehole made a creep arsehole comment about it instead of doing the humane thing.

      What also matters is that creep arsehole - Whelan anyway - finally got nabbed for it.

      I hope that poor woman has been able to begin healing. If you're using was...why? I hope your not saying...if you are that's downright tragic.

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    56. Peter Hindrup

      consultant

      In reply to Emma Anderson

      I tend to have a solid basis for my opinions. This issue was in a 'difficult' area. Pornography, child abuse, art . . . ?

      Having attended a lecture by David Marr, and read his book, 'The Henson Case' I decided to have a look for myself.

      Interesting work, but it had nothing in it to support the hysteria.

      A media blow up by shock jocks and easily spooked police stirred the pot, however no other institution/organisation with an obligation to monitor these areas were remotely interested.

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    57. Emma Anderson

      Artist and Science Junkie

      In reply to Peter Hindrup

      "A media blow up by shock jocks and easily spooked police stirred the pot, however no other institution/organisation with an obligation to monitor these areas were remotely interested."

      Would I be correct in remembering that the police got spooked after the media blow up?

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    58. Lynne Newington

      Researcher

      In reply to Emma Anderson

      It was just a quiet observation how beautiful she was, the eyes being the window of the soul
      You've lost me on ..."if your using......why? I hope your not saying.....if I am that's downright tragic". I'm sorry.

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    59. Emma Anderson

      Artist and Science Junkie

      In reply to Lynne Newington

      Oh...I think I read something in your use of the tense "Was" that wasn't there. My apologies.

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  2. Bob Buckley

    ASD advocate

    The proposed Bill should strike the right balance on racial vilification.
    But racial vilification is far from the only concern with the proposed legislation. The proposed Bill fails to protect vulnerable people (e.g. people with a disability) from vilification. In effect, the omission of disability vilification from the proposed Bill endorses or promotes disability vilification.
    The proposed Bill is a Discrimination Act, not a human rights act. The human rights section of the act is mainly about…

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    1. Emma Anderson

      Artist and Science Junkie

      In reply to Bob Buckley

      An anti-discrimination/human rights bill that doesn't take into account the many ways it is possible for vulnerable people, such as the chronically (and/or episodic but continuously) ill or disabled hasn't done it's home work.

      Bob, I take it from your title "ASD" refers to autism spectrum disorders? The ASDs are complicated all on there own and people with ASDs and their families/friends encounter numerous difficulties. As do people with depression, PTSD, psychological, neurological and neurodegenerative…

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    2. Emma Anderson

      Artist and Science Junkie

      In reply to Emma Anderson

      I would also like to add that in many respects the so called Supported Wage System is actively discriminatory against people with disabilities, especially those with pervasive developmental disorders involving retardation.

      It's an excuse for employers to pay 'unintelligent' factory workers less than 'intelligent' workers for the same job whilst getting a subsidy just for 'being nice' and hiring them.

      Perhaps if we had adequate support for people with conditions such as retardation from early childhood, they would have the opportunity to learn more skills and in doing so have more choices.

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  3. David Clerke

    Teacher

    I can do no better than quote a recent article from the UK Telegraph
    "A law which has been used to try to convict a student who said “woof” to a police dog, or called a police horse “gay” is to be changed.

    Home secretary Theresa May said the Government will accept a House of Lords amendment to remove the word 'insulting’ from Section 5 of the Public Order Act.

    The amendment had been promoted in the House of Lords by Lord Dear, a former HM Inspector of Constabulary.

    Six years ago police…

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    1. John Phillip
      John Phillip is a Friend of The Conversation.

      Grumpy Old Man

      In reply to David Clerke

      David, it does seem that there are some (many?) in our society who would be happy to limit free speech in order to protect their authority or opinions. The thing that concerns me about the arcticle you quote was the fact that it implies that 38 % of MPs believe that it IS their role to outlaw insults. Wow!

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  4. Rajan Venkataraman

    Citizen

    Belinda,
    Thank you for your informative and measured article. Much better than most articles that have been turned out on this subject.

    It seems like this is a debate that the country has needed and - to give the parliamentary system its due - it seems like the whole exposure draft process has facilitated this and may lead to much improved legislation. Let's hope so.

    I agree with you that we now need to consider other clauses of the draft Bill - such as how wide we think the exemption in clause 33 for "organisations established for religious purposes" needs to be and indeed just how broadly we think such organisations should be defined.

    Also, a thus far little remarked aspect of the Bill is the apparent removal of protections against discrimination on the basis of genetic predispositions. See the following piece from Civil Liberties Australia:
    http://www.cla.asn.au/media/2013/130122%20Discrimination%20on%20Genetics.pdf

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    1. Michael Leonard Furtado

      Doctor at University of Queensland

      In reply to Rajan Venkataraman

      Well flagged, Rajan. I noticed that Belinda relegates Section 33 to the status of a lost cause and wonder if she's right. Granted that its an election year and Labor would want to let things lie, the trend in the UK has turned in the reverse direction, with a Conservative government lifting the exemptions enjoyed by Catholic adoption agencies in relation to intending gay and lesbian parents.

      Even though other exemptions in respect of Catholic school employment practice are still intact, a campaign…

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  5. Benjamin Koh

    Doctoral Researcher, Complementary and Alternate Medicine at University of Technology, Sydney

    Nice article and a debate that society requires.

    "...Democracy depends on free speech and, as Spigelman adds, 'freedom to offend is an integral component of freedom of speech'..."

    Hmmm... when does the right to swing one's fist stop at the tip of another person's nose?

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    1. account deleted

      logged in via email @gmail.com

      In reply to Benjamin Koh

      Offence is not assault, Benjamin. "Sticks and stones may break my bones but names can never hurt me": an instructive childhood ditty about putting things in proper perspective that I learnt around 6 or 7 years of age, but that seems to have been missed by Ms Roxon.

      I suspect what she learnt instead was "do as you're told" and "Nanna knows best".

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    2. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "Sticks and stones may break my bones but names can never hurt me"

      Words can and do hurt. Speech acts have real effects. To deny this is to deny that we can even communicate by these means.

      The fact that they do not cause injury in the way a fist does, does not mean that they cause no harm. For example: your closing sentence seeks to diminish our opinion of the Attorney general. i.e., it does her harm.

      This is a minor example of the very real harm that speech is capable of. Speech acts are…

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    3. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      Geoffrey, "offence" is not an incitement to crime or violence. Another instructive bon mot that I learnt as a child is that "offence is taken, not given".

      As for diminshing Ms Roxon, I'm not sure if that's possible.

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    4. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      The response to bad speech is better speech.

      As to diminishing peoples opinion of the Attorney General, it is my right to do so, and none may gainsay it.

      If I were to say anything about her which is untrue then she has access to the courts to restore her good name. Whatever the result of that court action we are then all better informed. If what I say is true, then it is my right to say it and we are, again, all better informed.

      The only basis in which we are not better informed is if some whinger succeeds in making it an offence to speak openly.

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    5. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      " It is the words of men that led us to the greatest crimes of the twentieth century."

      It was the acts of men, and women, which were the greatest crimes of the 20th century. The words are nothing unless people are prepared to act.

      Bear in mind that the greatest criminals were Marxists, followers of the creed that the Prime Minister shares....

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    6. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "offence" is not an incitement to crime or violence."

      But it is an offence to incite violence or crime. How do you like that equivocation?

      I was not discussing what "offence" might involve, I was disputing the usefulness of your truism. Not all harm is covered by the criminal code. Nor do words need to incite violence to be harmful.

      If I repeatedly call a young gay person "sick" or "evil" I can do considerable harm without needing to explicitly incite an act of violence.

      "Another instructive bon mot that I learnt as a child is that "offence is taken, not given"."

      Yes, but that is just as useless as your other truism. You ask me to accept that no matter what the particulars of a situation, one party bears no responsibility for their actions. Yet it remains the case that in the absence of these actions, there is no offence. The fact that one person feels offended - i.e., "takes offence" does not automatically absolve the one who "gives offence".

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    7. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      I'm afraid you're not making any sense, Geoffrey.

      No matter how hard I try to be offensive, my efforts will come to naught if you refuse to be offended.

      Conversely, no matter how I try not to offend, I will fail if you are determined to find an offence.

      The power is all in the hands of the listener.

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    8. Dania Ng

      Retired factory worker

      In reply to Benjamin Koh

      The right to be angry, to say that you're angry, and to call someone an idiot when one has reasonable grounds for doing so. That's the right that we all ought to have. When you have some sophist academic telling us that 'religious sensibilities' do not count when Christophobic wackos want to destroy millennia old religions, but if we say this is what happens we ought to be muzzled because we offend someone's 'moral depth' - well, that's when the freedoms we all enjoy are out of kilter. We ought to then do something about it and shake our fist under their unusually long proboscis.
      pro·bos·cis
      /prəˈbäsəs/
      Noun
      1 - The nose of a mammal, esp. when it is long and mobile, such as the trunk of an elephant.
      2 - (in many insects) An elongated sucking mouthpart that is typically tubular and flexible.
      Source: google
      (I think the second is the one which most adeptly explains whom we're talking about)

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    9. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to account deleted

      This is some new post-modern sort of argument Craig ... where one makes an assertion - that "offence is taken not given" ... and then without drawing breathe sticking the boot in . A zero-sum sort of syllogism in two lines.

      As is your absolute birthright Craig. And I would defend your right to hurl the odd insult with my very lifeblood.

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    10. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Chris Harper

      "As to diminishing peoples opinion of the Attorney General, it is my right to do so, and none may gainsay it."

      - I have not denied that you possess this is your right, only that it is false to believe that is not a form of harm. I would also note that the right to free speech also covers my right to gainsay your right to free speech.

      "The words are nothing unless people are prepared to act."

      - Yes, but they were prepared to act and they acted upon those words. This says nothing contrary to my point.

      "Bear in mind that the greatest criminals were Marxists, followers of the creed that the Prime Minister shares..."

      - The Prime Minster is not a Marxist. You do a great disservice your argument when you sprout utter nonsense. Another example where words cause harm - self harm in this case. Why should I even consider you a serious interlocutor?

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    11. account deleted

      logged in via email @gmail.com

      In reply to Peter Ormonde

      "sticking the boot in", Peter? Only if you take it that way...

      The sentence was deliberately ambiguous.

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    12. Benjamin Koh

      Doctoral Researcher, Complementary and Alternate Medicine at University of Technology, Sydney

      In reply to Geoffrey Edwards

      Thanks Geoffrey. I agree that psychological harm may be different in form to physical harm, but both nevertheless can inflict hurt and pain. Recent social debates on Facebook bullies and teenage suicides are but some anecdotal examples.

      I can't help myself wondering if the present argument FOR free speech is somehow equated to an argument AGAINST anti-discrimination laws? There is nothing wrong with free speech and the ability to express one's opinion (however right or wrong that opinion may…

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    13. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      "Why should I even consider you a serious interlocutor?"

      You're of course perfectly at liberty to use your own power of choice to ignore things you don't like. Their existence doesn't compel your attention.

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    14. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      I refer you to Ms Gillards role, as an adult, in Socialist Forum.

      I am not aware of her ever clearly and explicitly disavowing the views, attitudes or ideology central to that group.

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    15. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      So marx was a socialist - therefore all socialists are marxists... hmmm....

      Shouldn't there be some other line in there to make up the logical flow ... I know:

      Marx was a socialist.
      All crows are black.
      Therefore all socialists are marxists.

      Or crows.

      How are things in 1954 there Chris?

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    16. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "The power is all in the hands of the listener."

      There is no listener without a speaker. That a listener finds your speach offensive, or not, does not negate the fact that you are the one who speaks the words.

      I agree with you, that it is the listener's response to your speech which governs the sensation of offense.

      I disagree with you on the fact that you have no responsibility for your speech acts - they are your acts.

      Critically, the individual instance of offensive speech is not…

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    17. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Chris Harper

      "I refer you to Ms Gillards role, as an adult, in Socialist Forum."

      I will refer you to the fact that Socialism is not equivalent with Marxism.

      Marxism is a member of those polotical philosphies that are described as socialist. Being a member of a Socialist Forum does not mean that one is a Marxist.

      You will need to do more to convince me that she is a Marxist than cite her participation as a University Student in a left wing forum.

      I studied Marx when I was at university and voted Labour. That does not make me a Marxist.

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    18. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      Geoffrey, you keep moving away from the issue of offence as a cause of action.

      I agree with you that inciting adverse actions against groups of people based on some arbitrary characteristic is a bad thing, but that is not what the discussion is about.

      I'm also a bit concerned about the whole thought-police aspect of your defence of Roxon's law. That's precisely why the law itself is bad.

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    19. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Benjamin Koh

      Benjamin,

      "I can't help myself wondering if the present argument FOR free speech is somehow equated to an argument AGAINST anti-discrimination laws?"

      I think it's reasonably certain that there is a strong libertarian strain that sees any form of anti-discrimination legislation as an attack on the very principle of free speech.

      "freedom comes with responsibilities."

      Yeah, the absolutists don't like to see it that way. They seem a pretty conflicted mob. Arguing regularly for a whole range of mutually incompatible positions. The strong libertarian right are a strange beast.

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    20. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "...you keep moving away from the issue of offence as a cause of action."

      That is because this because that was your line of argument and not the one I initially responded to nor one I advanced. You can keep arguing it if you want but I am not at all convinced that you can absolve yourself of responsibility by fiat.

      "I'm also a bit concerned about the whole thought-police aspect of your defence of Roxon's law. That's precisely why the law itself is bad."

      If you can point out where I have…

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    21. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      Who here would identify as being supportive of "the strong libertarian right" do you think Geoffrey? Perhaps Chris Harper might, although he's more a liberal I think, but I certainly wouldn't.

      "Words are capable of casuing harm. End."
      So much for "nuance"...

      The rest of your post doesn't make a lot of sense, since nobody is arguing that words can not cause harm and you were the one who seemed concerned that words reflect ideas and wants to suppress some words that may reflect ideas you don't like.

      Offence is not threat
      Offence is not assault
      Offence is not discrimination
      Offence is not incitement
      Offence is someone choosing to get upset at something said by somebody else. It's subjective, even if the utterer hoped to cause it there is no way to test whether it's genuine. A bit like all those claims of mental distress that have sent Comcare broke.

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    22. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "Who here would identify as being supportive of "the strong libertarian right" do you think Geoffrey?"

      - I hadn't really put anyone here in that basket, Craig. I was musing on a Benjamin's point about the source of opposition to Anti-discrimination measures, not the ideological leanings of contributors.

      "So much for "nuance"..."

      - If I had said words are capable of P and only P, this witticism might have had merit.

      "...nobody is arguing that words can not cause harm"

      - You thought…

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    23. Julia Thornton

      PhD Candidate

      In reply to account deleted

      Craig, you have clearly never heard of the 'blue eyes, brown eyes" experiment (easily accessible on the internet) where blue eyed people are systemically vilified and demeaned by brown eyed people. Every time it has been run, blue eyed people in it, comment on how inescapable their diminished sense of self worth became.

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    24. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      Geoffrey,

      I was not referring to 'a' socialist forum, I was referring to Ms Gillards membership of an organisation named 'Socialist Forum'.

      This was a hard left Marxist organisation set up in conjunction with members of the CPA. In fact, arguably it can be labeled a CPA front, or continuation.

      Ms Gillard has most recently claimed that she just did a bit of typing for them, but in reality she was an organiser and Socialist Forum documents indicate that she was a senior official. This claim…

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    25. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      I said nothing that could lead you to seriously believe that I endorse that flawed syllogism.

      Marxism, Fascism, National Socialism, Fabianism, Christian Socialism...

      They are all variants on socialism, but only one of them is Marxism, the one called Marxism, strangely enough. Or is it that you are also confusing the organisation which called itself 'Socialist Forum' with some sort of generic socialist forum?

      As to 1954, wasn't that a time when even the non marxist left had less of a tendency to take a romanticised view of mass murder, genocide and megadeath than do today's modern progressives?

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    26. Kim Darcy

      Analyst

      In reply to Geoffrey Edwards

      "Speech acts have real effects."

      Oh goodie. Just what we really want: Solictors, Barristers, Judges, and armies of Arts graduates clogging up the justice system debating philosophy and linguistics, quoting (mostly misquoting) Austin, Searle, Derrida, and Judith Butler. What a wonderful world you dream of!

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    27. Kim Darcy

      Analyst

      In reply to Geoffrey Edwards

      "It is the words of men that led us to the greatest crimes of the twentieth century."

      Indeed, Marx and Engels to be dragged before Kulturkommisar Professor Gillian Triggs and her Star Chamber for daring to publish

      "The history of all hitherto existing society(2) is the history of class struggles...The Communists disdain to conceal their views and aims. They openly declare that their ends can be attained only by the forcible overthrow of all existing social conditions. Let the ruling classes tremble at a Communistic revolution. The proletarians have nothing to lose but their chains. They have a world to win."

      But no. Nanny Roxon's Bill is concerned with the REAL social menace by addressing a trannie as "sir".

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    28. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      I thought this one was sorted out.

      Calling the Pope a Dictator that wears a stupid hat is free speech.....it's insulting, but probably accurate.

      Calling a group of people cockroaches and angrily rousing riots against them is hate speech.

      Not much of a debate. The incite to violence is hate. Sardonic non violent commentary about a public figure is fair game.

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    29. account deleted

      logged in via email @gmail.com

      In reply to Emma Anderson

      Emma, we already have laws against incitement and defamation and harassment etc, etc, etc.

      This law does no more than provide a means to make trouble with no evidenciary support. It's a means of giving the disaffected a free hit, even if they have no genuine basis for their complaint.

      It could easily be turned against the very people it is designed to appeal to. For example, a logging firm employee might take action against protestors on the grounds of being called offensive names. The potential for abuse is large, it seems to me.

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    30. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      Oh yes Chris - they quibble - they split their red herrings - but down deep where it counts we know they're really all the same these fellow travellers and agents of influence...

      Gillard is obviously sworn to follow in the footsteps of Pol Pot and Stalin. That's what they do.

      Expunge them all - Nauru Now!

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    31. account deleted

      logged in via email @gmail.com

      In reply to Julia Thornton

      Julia, systematic vilification and social opprobrium is not the same as an individual saying something that someone else claims is offensive. If you can't see that difference then there is little point in discussing the issue.

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    32. account deleted

      logged in via email @gmail.com

      In reply to Peter Ormonde

      Peter, that's a false association. One can point out that certain commonalities exist without claiming that the worst excesses are likely.

      For example, Abbott has a Catholic background: that doesn't imply that we will experience a return of the Inquisition if the LNP is elected, despite the hysteria from some.

      Gillard's Marxist past is well known and to suggest it has no influence on her current views is not merely silly, it implies a shallowness that I doubt she possesses, despite her very genuine character flaws.

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    33. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      You said: “Gillard is obviously sworn to follow in the footsteps of Pol Pot and Stalin “

      Well, she chose to spend years associating with and showing common cause with their ideological twins here in Australia – what conclusion would you suggest we draw? That years spent supporting supporters of the most murderous ideology in all human history was just youthful indiscretion? If she had put on a brown shirt and drawn a natty little mustache on her upper lip on a daily basis would you be equally forgiving? Do you want to tell me, in any practical terms, what the difference is? Apart, that is, from one being fashionable and the other not.

      Given that she is demonstrably relaxed about stamping her jackboot down hard on public political discussion, regardless of whether she has now stepped back a little, what conclusions am I meant to take?

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    34. account deleted

      logged in via email @gmail.com

      In reply to Geoffrey Edwards

      "I was musing on a Benjamin's point about the source of opposition to Anti-discrimination measures, not the ideological leanings of contributors."

      Rot. You were trying to paint opposition to the laws as being motivated by an extreme political viewpoint, including the opposition expressed here. It's a fallacy known as "poisoning the well".

      "I sought to adress the essential falsehood of it."

      The key phrase that you got wrong was "names will never hurt me", which you interpreted as "words can never hurt me". The falsehood is yours, I'm afraid.

      "when you engage in discourse such as this you are seeking to supress ideas that you do not like by arguing for their falsehood."

      Hahaha, that's hilarious. Here I was thinking I was having a serious discussion. Sorry about that.

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    35. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      No wonder we're having trouble with global warming .... some folks just live on a different planet altogether. Guilt by association... consorting, fellow travelling with the ideological twins of Pol Pot and the Ceaușescus... and now she's running the place with her jack-boots amnd her gangs of thugs herding folks off to camps in Nauru and Christmas Island!!!!

      The most murderous ideology in all human history ... you reckon?

      Answer me this Chris: how many folks have died in all human history…

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    36. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to account deleted

      "Rot."

      No Craig. I replied to Benjamin's post with these words: "I think it's reasonably certain that there is a strong libertarian strain that sees any form of anti-discrimination legislation as an attack on the very principle of free speech."

      1) This seems a reasonable statement.
      2) It does not exclude other positions.
      3) I was speaking in general terms, not with reference to contributors here.

      "I sought to adress the essential falsehood of it."

      "The falsehood is yours, I'm afraid."

      - Names are also words. Names do hurt.

      "Here I was thinking I was having a serious discussion. Sorry about that."

      - If you do not believe I am serious, then so be it. We can both be happy with the fact that neither of us have had to change our mind, and saddened by the fact that neither of has gained anything from the exchange. Quite the giggle.

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    37. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Kim Darcy

      Kim,

      It is interesting that you choose to quote "Speech acts have real effects." in order to introduce your derisory comments.

      Do you deny the ability of speech, the turning of thoughts into vocal communication, to have any influence on events? Do you deny the reality of verbal communication?

      I assume my previous statements are merely strawmen, but please feel free to explain why you think that quote was pertinent.

      Just a tip - of the authors you quote, I have only read a very small amount of Searle's arguments on the Chinese Room, so I guess I can be omitted from the cast of evil misquoting same.

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    38. Chris Harper

      Engineer

      In reply to Peter Ormonde

      “The most murderous ideology in all human history ... you reckon?”

      Absolutely. The numbers are out there, and I am sure you know how to both read and count. I recommend you start with the works of Robert Conquest and then move on. Google is your friend.

      As to the rest of what you wrote, I really don’t understand what that rant was about.

      BTW, as to guilt by association, Ms Gillard didn't limit her association with Socialist Forum to having a beer with its members. She was a senior official and actively worked to further its agenda. This is just the teensiest tad more than guilt by association.

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    39. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Kim Darcy

      "addressing a trannie as "sir"."

      And you wonder why people feel frustrated to such an extent that they feel their only recourse is the force of law. Do you believe that certain members of society have no right to their preferred nomenclature merely on the grounds of simple decency?

      Do you think at appropriate to call indigenous Australians boongs? Niggers perhaps?

      Nonetheless, I am sure that there are some in the trans community who would happily be referred to a sir. Those who identify as men. I'll just assume it is your general ignorance that leads you to such petty minded positions.

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    40. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      Hey Chris - give me an idea of what this marxist training and agenda furthering might look like?

      9-10 IED construction
      Tea and bikkies
      10-15 -12.00 Labor Camps and enhanced interrogation techniques
      12-1.00 Lunch
      1-3.00 Overthrowing the State by winning elections
      Tea and bikkies
      3.15-4.00 Applied molotov cocktails
      4-5.00 Gay Marriage and Refugee Policies from a Marxist perspective

      And then off to the ALP Branch stacking all night...getting votes.

      But I'm convinced - This marxist plottery must be torn out root and branch these bomb-throwing terrorist marxists and their fellow travellers - these menaces to society...these wannabe mass murderers ... let's make them illegal ...

      Hang on - You mean it's not illegal?

      Well no but it should be shouldn't it - that's what democracy is all about isn't it?

      Oh yeah, and Free speech - don't forget free speech.

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    41. account deleted

      logged in via email @gmail.com

      In reply to Peter Ormonde

      Forget to fill the ol' script yesterday Peter?

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    42. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to John Phillip

      John,

      You wrote: "your argument fails at the use of the word 'repeatedly,"

      I assume that you are referring to this:

      "If I repeatedly call a young gay person "sick" or "evil" I can do considerable harm without needing to explicitly incite an act of violence."

      If that is the case, then it should be read in context as you seem to have misunderstood what I was arguing. The previous statement included: "I was not discussing what "offence" might involve..." i.e. I was not interested at that…

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    43. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      You got it. You are exactly right.

      I tell you what, if you want to make a rational comment I will happily address it, but if you just want to sneer and sling non sequiturs I really can’t see the point. We clearly take different approaches to ideologies whose followers murder millions on millions of people.

      Tell me, how do progressives cope with the cognitive dissonance which comes from the conviction they are personally morally superior, while still making jokes out of genocide, mass murder and megadeath?

      Seriously, you would know about that. Can you fill me in?

      As a by the way, why would you think I want to make expressing Marxism illegal? Do you have a need to smear people for what they didn't advocate? Do you seriously have that much difficulty understanding a stance based on principle?

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    44. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Chris Harper

      Chris,

      "She was a senior official and actively worked to further its agenda"

      So, for the sake of arguments let as assume that you are correct. The Socialist Forum was the hardcore rump of the CPA and Gillard was, during her student days, an ardent Marxist.

      But people's positions often change from those they expressed in there student days.

      The question is modal. "Was" does not equal "is."

      If I remember correctly your contention was that Gillard IS a Marxist. Marxism was "...the creed…

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    45. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Chris Harper

      "...how do progressives cope with the cognitive dissonance which comes from the conviction they are personally morally superior, while still making jokes out of genocide, mass murder and megadeath?"

      I imagine that the process is not so different from that you have to go through in order to argue that anyone to the Left of John Howard is a Marxist intent on the destruction of freedom and democracy.

      I will suggest that the humour in Peter's post derives not from the fact that he considers genocide or mass murder funny, but rather from the fact that you think it is in anyway appropriate to use these to argue your case. Sort of like a lefty calling John Howard a fascist. It is revealing of a certain ignorance that one cannot but laugh at.

      So, if you skip the false accusations Peter might cease highlighting their essential absurdity.

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    46. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      I'll take my rational comment from the NRA:

      "Ideologies don't kill people, people kill people"

      History kills people. Context kills people. Fear kills people. Greed kills people. And sometimes we dress it up in isms - from catholcism, to imperialism, to nationalism and yes even communism.

      But down deep it's the other stuff - the selfish nasty stuff that really drives the show. People with stuff hanging onto it. People without stuff trying to get it.

      No ism that I've come across lists…

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    47. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      Geoffrey,

      My contention is that she has never expressed regret for the views she held or expressed back then. She may have grown out of those views, and I think it possible she has, but we have no way of knowing because she even goes so far as denying the true extent of her involvement.

      As to the ‘jackboot’ description? Ms Gillard has demonstrated a willingness to close down public political and religious discourse in only the last month, regardless of any backtracking which has since happened…

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    48. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      Chris you seem to be forgetting where these words like "jackboot" came from. They came from jackboots Chris. Real ones. Cracking heads and ribs in streets. Fascism left a lot of words and images in our language Chris - but do not confuse the rhetoric for the reality.

      Now you can say Socialist Forum was influenced by folks who'd a pretty solid grounding in marxism - no argument - but do not start talking about jackboots and fascism in the same breath... deeply ahistorical and doubly offensive given the sames and ethnicities of the folks in question.

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    49. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Seriously Peter, you do take things to absurdities.

      Ms Gillard can say what she wishes, she can advocate any policy she wishes, but I would dearly love to see her expunged, eliminated, removed, from public life as soon as is humanly possible. That is to say, be rendered of no consequence through the normal political process – kicked out at the ballot box, lose her seat, and from then forward be ignored by every sane person.

      If she wants to pull up a soap box in Martin Place then good on her. She has an entitlement to speak, but people are entitled to ignore her as they see fit - she has no entitlement to be heard.

      If you wish to draw baseless conclusions then feel free. Your freedom to do so doesn't render them any less baseless. In fact, they say more about your inclinations than they do mine.

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    50. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to Chris Harper

      Sometimes one doesn't have to take things very far Chris.

      It's one thing to call for Julia Gillard and the Government to be dumped because of failed policies - on immigration, solar panels whatever ... it is another entirely to call for her "expungement" on the basis of having done the typing for a mob of Melbourne lefties or whatever you claim she was doing.

      One is democratic - the other far from it - as you well know.

      Now stop shifting ground like a scuttling crab and admit I gotcha.

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    51. Emma Anderson

      Artist and Science Junkie

      In reply to account deleted

      How do you think this law could be amended so that the potential for abuse is reduced? If that is not the way to go about it, do you have suggestions on perhaps structural means to this end?

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    52. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Chris Harper

      Chris,

      "My contention is that she has never expressed regret for the views she held or expressed back then."

      If you assume that part of her views included the opinion that purges, gulags, and extra-judicial killings the Leninist-Stalinist regimes were, not only justified, but good in themselves, then yes, one might expect that she would make an acknowledgement of the idiocy of such a thing.

      But the fact remains that simply being persuaded of the socialist/marxist axis of political thought…

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    53. Kim Darcy

      Analyst

      In reply to Geoffrey Edwards

      Geoffrey, I answered your question in the next post about "speech acts" and Marx & Engels' "Communist Manifesto". I did so as a response to your silly claim "It is the words of men that led us to the greatest crimes of the twentieth century." You might as well try and justify - the now FORMER A-G - Nanny Roxon's offensive bill by arguing "It was the Big Bang that led us to the greatest crimes of the twentieth century."

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    54. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      ""It is the words of men that led us to the greatest crimes of the twentieth century." "

      Not a silly claim but only partially true. Rousing hate speeches directed at people ignorant and desperate enough to look for someone to blame for their misfortunes, did lead to the greatest crimes of the 20th century.

      Eg, In Nazi Germany, the saddest part is probably hard to pick (it was all rather sad) but I'd have to say that although lots of people wanted to oppose and some did, it is also the case that many people went along with it and actually believed those rousing speeches. A source of great shame for the German people, who have, since those dark days, had to do many things to bring back to life the better of their natures which is no more or less vile than anyone else.

      Mob mentality, desperation, hate: a cocktail that leads to hell on earth.

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    55. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Kim Darcy

      Kim,

      "I answered your question in the next post about "speech acts""

      No. You didn't. You put up a quote and seem to assume that I am arguing against free speech and defending Roxon.

      This is false. I am arguing against bad defences of free speech. I have been at pains to point out that "arguments" that imply words cannot cause harm are weak.

      Equally weak is any arbitrary decision to exclude them from the chain of causation as you would do.

      "It was the Big Bang that led us to the greatest…

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    56. Kim Darcy

      Analyst

      In reply to Geoffrey Edwards

      Geoffrey, the problem with you people is that, given the chance, you would outlaw 'double dipping', leaving the toilet seat up, and for saying "bless you" when someone sneezes. You all suffer from political personality disorders, where you don't understand boundaries.

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    57. Geoffrey Edwards

      logged in via email @gmail.com

      In reply to Kim Darcy

      Kim,

      "the problem with you people"

      You people? You will need to be more precise. Is this simply the category of people who disagree with you or did you have something specific in mind.

      "given the chance, you would outlaw 'double dipping',"

      I double dipped just the other day.

      "leaving the toilet seat up"

      My thesis is that it takes more effort to move it up than to flick it down. I leave it up, my partner puts it down.

      "saying "bless you" when someone sneezes"

      As someone saying…

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    58. Peter Hindrup

      consultant

      In reply to Julia Thornton

      Julia:
      Only if the blue eyed people are prepared to play the game!

      Ignore the 'rules', treat the concept with the contempt it deserves and the exercise falls flat.

      Yes, I have been involved!

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    59. Emma Anderson

      Artist and Science Junkie

      In reply to Geoffrey Edwards

      "You all suffer from political personality disorders, where you don't understand boundaries."

      Kind of like when the Viet Minh and the Viet Cong were at each other's throats, the United States government thought they were being invaded.

      Apparently it was folly a deux (bad spelling) because Australia was being invaded too.

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    60. Chris Harper

      Engineer

      In reply to Geoffrey Edwards

      Geoffrey,

      You said: “I imagine that the process is not so different from that you have to go through in order to argue that anyone to the Left of John Howard is a Marxist intent on the destruction of freedom and democracy”

      Would you like to point out where I have done this? I am well aware of differences between Marxists and social democrats, and I have said nothing which elides the two..

      You said: “Sort of like a lefty calling John Howard a fascist”

      There is a difference. There is no evidence that John Howard ever followed any collectivist creed, or was ever anything other than a liberal democrat. To claim he was a fascist was never anything other than a smear and a fantasy. That Julia Gillard was a Marxist, or at least sympathised with Marxists, is documented reality, and the policy she was proposing is consistent with that ideology.

      I’m sorry Geoffrey, but your comparison is baseless.

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    61. Chris Harper

      Engineer

      In reply to Peter Ormonde

      Peter,

      I am fully aware of the origin of the use of the term ‘jackboot’ as a metaphor for repression, and my use of it is appropriate.

      Jackboots are as appropriate to Marxism as they are to fascism, and in metaphor they are also appropriate to the legislation as was.

      During the 20th century National Socialists were responsible for the deaths of approximately twenty million people subject to their authority. Marxists were responsible for the deaths of between one hundred to one hundred and…

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    62. Chris Harper

      Engineer

      In reply to Peter Ormonde

      That's the best you can do? A bit of sarky deflection?

      May I refer you to the word 'metaphor'. It'll be in the dictionary.

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    63. Julia Thornton

      PhD Candidate

      In reply to Peter Hindrup

      Yes, I agree, if its a game, then you can refuse to play. A little harder if its your experience of life though.

      I assume, as you are such a vociferous defender of the right to insult, that you are not of any of the classes of people who are systematically subject to such treatment.

      I would go so far as to suggest that you are a white, middle class, middle aged man with a relatively high income and blue eyes. I suspect the only vilification you have been subjected to was at the footy ground, where, after all, you can walk away.

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    64. Julia Thornton

      PhD Candidate

      In reply to account deleted

      I presume you can tell the difference yourself because you are not a member of any class of people who are regularly subject to "systematic vilification and social opprobrium"?

      If you are actually a member of one of these groups, how do you tell where the generic stops and the personal begins? And why is a generic insult worse than a personal one?

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    65. Peter Hindrup

      consultant

      In reply to Julia Thornton

      Too many assumptions! All wrong!

      A small, small very quiet boy, in a tough school for 'primers' of about 200 kids with a pecking order based on aggression, with me on the bottom. Learn to fight back, or suffer hell every day. Develop a quick tongue and loose the fear of being 'beaten up'.

      Do the best you can. Learn from each fight. Learn not to react to verbal abuse/taunts, It really is not that difficult.

      Learn very young that 'sticks an stones may break my but names will never hurt me'.

      It has worked for me all my life, some 74 years, everywhere I have lived.

      Lover of violence? No chance! I would still rather read a book. But submit to a bully, a stand over merchant, then you are no more than a slave and I would die before I became a slave.

      Your world is far too precious for me. I wont play the victim game.

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    66. account deleted

      logged in via email @gmail.com

      In reply to Emma Anderson

      I'm sorry Emma, I didn't see this earlier.

      How it could be amended is to remove the subjective elements that are untestable. This also applies to other laws, such as Family Law, in which a claim to have felt intimidated is taken as grounds for a claim to have been a victim of violence, with no evidence needed, merely the subjective claim. Unsurprisingly, the number of claims of violence as a cause of action has risen since McClelland's Family Violence amendments were enacted.

      If a claim is untestable it is no basis for a judgement.

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    67. account deleted

      logged in via email @gmail.com

      In reply to Peter Hindrup

      Very good answer, Peter and one I can strongly relate to. A small, precocious boy a couple of years younger than his classmates thrown into the "Lord of the Flies" world of a large boarding school. The introduction was a severe beating by a much larger boy for having placed belongings on the "wrong" bed, within minutes of first arriving and over 5 years such fisticuffs were never far away.

      I find this hand-wringing by adults over the possibility of hearing things they don't like quite contemptible.

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    68. Emma Anderson

      Artist and Science Junkie

      In reply to account deleted

      I can see how untestable claims, the example being 'intimidation' could lead to poor judgements.

      I can also see how someone could make a truly threatening gesture and then tell the court 'I was only kidding' or 'I don't remember' and getting away with it because people don't routinely record their interactions. Well, I hope not. Although the internet may be an exception.

      Further, an example from criminal law being child abuse reported by an adult previously victimised. The odds of that being testable in most cases are quite low. Yet, the odds of the case being truthful (or at least honest) are quite high.

      I think this is about balance. We can't set the bar so low that petty bullshit takes over. We also can't set the bar so high that serious crimes (like child abuse) go unanswered.

      What that balance would look like is beyond me.

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  6. Dale Bloom

    Analyst

    I can remember making a number of complaints to the Sex Discrimination Commission regards sex discrimination carried out by a feminist, and each time I was told that the sex discrimination had to affect me personally before Sex Discrimination Commission would act.

    I can remember making a number of complaints to various Universities regards sex discrimination carried out by a feminist employed by the University, and each time I was told that the feminist had a right to their opinion.

    At no time did the Sex Discrimination Commission or a University ever say that the sex discrimination did not occur, and in fact some Universities actually acknowledged that the feminist had carried out sex discrimination.

    But each group had their ways of allowing the feminist to carry out sex discrimination.

    So the discrimination laws can be manipulated and abused to suit whatever purposes.

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  7. Peter Ormonde
    Peter Ormonde is a Friend of The Conversation.

    Farmer

    This was always a silly idea.... as if any Australian is going to give up their natural and self-evident right to call someone a bastard.

    Of course there are nice bastards and proper bastards and all shades in between but the Australian trait of irreverence, of taking the whipper snipper to the tall poppies, is very much part of the national character and has been for a long time. It is embedded in the language and how we use it. It's one of the things that outsiders really notice and enjoy…

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    1. Dania Ng

      Retired factory worker

      In reply to Peter Ormonde

      You're a funny bastard sometimes, Peter - I give you that much.

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    2. Kim Darcy

      Analyst

      In reply to Peter Ormonde

      Good on you Peter. Beautifully said. You even type with an Australian accent! You could be Germaine Greer's long lost twin brother. :)

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    3. Emma Anderson

      Artist and Science Junkie

      In reply to Peter Ormonde

      What you said Pete

      "I think we Australians should recognise the sacramental nature of causing offence and that the only real crime is to do so crudely and without humour or just to be mean."

      Although if not being mean, why is offense caused?

      And I wouldn't mind a bit of decorum in Question Time.

      Tony: "The world is going to end because of this card carrying Ranga"

      Julia: "The world will end itself if it sees your budgie smugglers again!"

      Doesn't exactly get the job done....

      No need to worry about respecting the honour of parliament. They make asses out of themselves.

      The bastards!

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  8. wilma western

    logged in via email @bigpond.com

    Good article. After reading Spiegelmen's comments I assumed there would be some revision of the exposure draft. Roxon's statements that this was a draft for consultation and there was a Senate committee in progress got drowned out by the chorus of right wing and other" libertarian" propagandists. Roxon seemed to choose not to get involved in a heated debate which was sensible as it would have further headlined the accusations that the ALP wanted to get the thought police out , abetted by the likes of Abetz and Brandeis. The most biozarre example of this was the Opposition demanding that the PM publicly censure Tim Mathieson for his "poor taste" remark re prostate examinations while at the same time decrying "political correctness" motivating the hoo-ha about Mathieson. Headlines are all that count apparently.

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    1. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to wilma western

      G'day Ms W,

      Jim Spiegelman's no dill and has bit of practice watching ideas become law. I wouldn't put it past him to have stuck this just to give folks a poke and get a few hectares of press.

      Nah, more likely it's in as some sort of lightning rod... an ambit claim if you like that draws fire and attention and - in being sacrificed and giving the forces of decency and all things proper enough of a victory to allow the rest of the package to go through untouched. A political sacrifical offering.

      And it is a useful thing to discuss I reckon - what we are really seeking to achieve and protecting whom from what.

      I'd just like a law that makes it illegal to be nasty, mean or vicious... judge the intent rather than the object. Gaol folks for not saying g'day in the street. Community Service Orders spent standing outside the grocers' smiling.

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    2. account deleted

      logged in via email @gmail.com

      In reply to Peter Ormonde

      "Community Service Orders spent standing outside the grocers' smiling."

      Excellent idea, Peter, that could spawn a whole new economic stimulus package in the employment of "smile monitors" to ensure the penitent was smiling adequately. Then of course there would be the need for intensive training for those incapable of grinning sufficiently broadly and naturally we couldn't have people being offended by the sight of poor dentition as they buy their groceries, so remedial dentistry would need to be provided on a compulsory basis.

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    3. Peter Ormonde
      Peter Ormonde is a Friend of The Conversation.

      Farmer

      In reply to account deleted

      Yes the Smile Stasi would be one approach I guess.

      But I find myself leaning more to those sadly lost commor lore practices so cruelly denied by the Common Law of late.

      I did not put forward the putative place of punishment - the grocers' - on a mere whim or personal preference. I'm thinking stocks. Where the penitent are pelted with putrid produce till they perk up.

      Rough justice - but jolly. We could get a community development grant. Organic too!

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    4. Emma Anderson

      Artist and Science Junkie

      In reply to account deleted

      Oh No! Adequate dental care! That would be socialist!

      Seriously though, we have smile monitors already. They're just on billboards. "Be happy for you can buy meaningless shit at the expense of our grandkids"

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  9. Dania Ng

    Retired factory worker

    What a clear, concise and informative article! Many thanks, Dr Smith. Congratulations to The Conversation for finally obtaining an unbiased and useful piece which addresses a current topic without obvious partisan intent.

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  10. Angus M-a-c-i-n-n-is

    logged in via Twitter

    It's disappointing that no-one has stepped up to defend clause 19(2)(b), because not only is it defensible, but the criticism which has been directed is based on a failure to read the legislation as a whole.

    Clause 19(2)(b) does not make the giving of offence unlawful. Unlawful discrimination occurs when one person treats another person unfavourably on the basis of a protected attribute. Conduct which offends or insults can be (that is, is capable of amounting to) unfavourable treatment - consider…

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    1. account deleted

      logged in via email @gmail.com

      In reply to Angus M-a-c-i-n-n-is

      It clouds the issue and creates a broader set of circumstances for claims of discrimination. For example, the landlord referred to above may have legitimate grounds for wishing some other tenant in his premises but in the course of conversation utter some opinion about some aspect of Indian affairs in the news that might then provide a pretext for action on the grounds of offence.

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    2. Angus M-a-c-i-n-n-is

      logged in via Twitter

      In reply to account deleted

      Craig, that's how the current law operates - if you have three good reasons for not hiring someone (or not leasing them your premises) and one racially discriminatory reason, that's not three out of four and thus a pass mark, that's an act of unlawful discrimination.

      It's not that hard to comply with the current law - don't make decisions about people on the basis of the attributes protected by discrimination legislation.

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    3. account deleted

      logged in via email @gmail.com

      In reply to Angus M-a-c-i-n-n-is

      The point is that there may be no discrimination at all, just sound reasons and the existence of a cause of action based on a subjective perception of offence is not going to produce a properly just outcome.

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    4. Robin Bell

      Research Academic Public Health, at University of Newcastle

      In reply to Angus M-a-c-i-n-n-is

      Section 19 must be read in the context of other relevant sections.
      Read Division 3 "When discrimination is unlawful", Section 22 which states
      "It is unlawful for a person to discriminate against another person if the discrimination is connected with any area of public life."
      The subsequent subsection lists a non-exclusive list of examples. This leaves available a wide application of section 19.
      Also Section 124 which provides that once a prima faci case is made (i.e. a case made in the abscence of opposing evidence; e.g. I was refused accomadation due to my race- evidence is I was refused accomadation- prima faci case proved), the onus of proof moves to the defendant reqiring them to prove their innocence!
      This is not a amalgam of the previous legislation - its a rewrite, and a baddly done rewrite at that.

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    5. Angus M-a-c-i-n-n-is

      logged in via Twitter

      In reply to Robin Bell

      Robyn, section 22 deals with a quite different issue. At present, discrimination is only unlawful if it it occurs in one of the areas identified in the relevant piece of legislation (commonly things like employment, education, accommodation, the provision of services, and so forth). This means that a discrimination complainant has to fit within one of those areas, and that has led to a great deal of technical argument (in particular, about when government agencies are, and are not, providing "services…

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    6. Robin Bell

      Research Academic Public Health, at University of Newcastle

      In reply to Angus M-a-c-i-n-n-is

      Sections 49 and 50 (sexual harrassment) make the same connection between illegal acts and public life.
      Do not agree with your interpretation of sections 19 and 22. Section 19 clearly defines discrimination, while section 22 describes when that discrimination is illegal. The two must be read together. Otherwise section 22 stands alone and has no meaning at all.

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    7. account deleted

      logged in via email @gmail.com

      In reply to Angus M-a-c-i-n-n-is

      The reversed onus bothers me a great deal. It creates the potential for frivolous claims designed to create trouble for the one accused with the complainant having made no case to answer.

      This Government seems to like a reversed onus, but I can't help noticing that our PM has consistently relied on the conventional onus to avoid making admissions on the AWU fraud matter.

      Apparently, if you're accused of being involved with facilitating a fraud of several hundred thousand dollars it's OK to say "prove it or shut up", but if you're accused of calling someone names it's "prove you didn't or else".

      If it wasn't so serious it would be great comedy.

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    8. Kim Darcy

      Analyst

      In reply to account deleted

      The reason for the reverse onus gives away part the of the REAL political motivation behind this Bill, and that is to justify a massive redistribution of taxpayer money to the Human Rights Industry. The fact is, in Australia, there is relatively little problem with "racial hatred", and all the cognate harassment/sexual orientation gibberish. Basically, the Human Rights Commission is currently over-funded for the amount of need/demand there is out in the community. The Human Rights Industry types spend all their time and money trying to create "human rights" panics. They're as bad as BigPharma and the medical profession (especially Psychiatry), spending all their time and billions of dollars trying to cook new "diseases" and "illnesses", so they can sell us more pills.

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  11. Susan Hemruth

    Luftmensch

    Thank-you for raising discussion on this issue. The culture in many workplaces is being influenced by the kind of thinking that "if anyone takes offence" that is the same as systematic bullying. It is not. Offence can be in the eye of the beholder.

    This kind of thinking is stultifying sensible dialogue in Australia. Radio National had a Counterpoint program about free speech which looks at the recent Andrew Bolt case:
    http://www.abc.net.au/radionational/programs/counterpoint/in-australia/4400670

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  12. Robin Bell

    Research Academic Public Health, at University of Newcastle

    Sorry Belinda, "insulted" is not part of the definition of harassment in the 1984 Act. It only lists "offended, humiliated or intimidated".
    Including "insulted" would have materially changed the meaning of the act and introduced a substantially more subgective test, given that insult is by definition entirely subjective.

    This consolidated Act must be reviewed extensively, as it combines legislative instruments that were specificly designed for particular circumstances. Racial discrimination laws…

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    1. Kim Darcy

      Analyst

      In reply to Robin Bell

      The words "gender", "identity", "offends", and "insults" should all be deleted wherever they appear in the Draft Bill, and that includes extant legislation, such as the Sex/Racial Discrimination Acts. Wherever the word "gender" is currently used - or proposed - substitute the word "sex". If the result is senseless, then delete that provision entirely. There is no problem with deleting "offends" and "insults", as they are just add-ons to "humiliates" and "intimidates". As for "identity". Jesus Christ. That is not work for judges.

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    2. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      Gender and sex aren't the same thing.

      Currently, the legal definition of sex is a binary that actually discriminates against people who don't fall within the binary, either anatomically (such as intersex persons) or in terms of identity (such as transgender persons).

      The appropriate use of both terms, and the term 'identity' would ideally provide some protections for people who currently don't have adequate legal recognition, let alone protections.

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    3. Kim Darcy

      Analyst

      In reply to Emma Anderson

      Sorry, but this is simply wrong, as even your own argument makes clear. 'Sex' is not 'binary'. As you, yourself, have noted, as does have ever authority - medical and otherwise - there is such a condition as 'intersex'. It is extremely rare, but we all know it exists. Unlawful discrimination on the basis of 'sex' clearly includes 'intersex'.

      As for "identity". It is not for the State's coercive powers to muddle around in the discursive mire of 'identity'.

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    4. Emma Anderson

      Artist and Science Junkie

      In reply to Kim Darcy

      Legally, sex is binary.

      There is no legal recognition on personally identifying documents (certificates) that are required by law to gain access to numerous rights and responsibilities that allow for someone to say "other"

      Our choice from birth is "male" or "female"

      That is discrimination

      Also, intersex births are more common than public perception suggests. It is the case that some of those born intersex are 'corrected' through surgery and the child lives as one gender. It is also the case that sometimes they bet on the wrong horse and the person actually identifies as the opposite in the binary.

      Those that won the 50/50 false binary bet fall into the ether and probably don't find out unless the plumbing stops working, which is not always the case. If they don't know, why would the rest of us?

      Well, the medical profession keeps statistics and what you define as extremely rare is in fact, merely uncommon enough for the rest of us to not actually notice.

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  13. wilma western

    logged in via email @bigpond.com

    Can't believe the simplistic hard-heartedness of those who say people's responsibility is not to "take offence".One aim of the combined legislation is to enable action against workplace harassment and bullying. For example ,should a teenager working in a restaurant be expected to carry on regardless of repeated comments about gender, racial background,Seventh Day Adventist religion etc?

    Thankyou Mr M-a-c-i-n-n-is for the legal clarification. Ms Roxon also explained the draft incorporated existing…

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    1. Kim Darcy

      Analyst

      In reply to wilma western

      "For example ,should a teenager working in a restaurant be expected to carry on regardless of repeated comments about gender, racial background,Seventh Day Adventist religion etc?"

      You have the question the wrong way. The issue is when should we allow the State to gets its tentacles into our affairs? Is the example you cite so common and so socially damaging that State interruption is required?

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  14. Paul Munro

    logged in via Facebook

    An excellently clear outline of the substance of the draft legislation and the perceived flaws in it.
    One might wonder about the reasons why the general media fails to supply factual reports of similar quality; sadly, it is only necessary to skim through the bulk of the commentary about Belinda's straightforward exposition for it to be manifest that even subscribers to The Conversation often prefer infotainment and abusive discourse to a sobre assessment of what is effectively a review of existing legislation and an attempt to consolidate it into a coherent and consistent scheme compatible with Australia's hitherto bipartisan adoption of global standards for discouraging discrimination on a variety of grounds.

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    1. Kim Darcy

      Analyst

      In reply to Paul Munro

      Paul NONE of the international instruments, which Roxon purports to base this legislation, ever mentions the word "offends" or "insults".

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  15. account deleted

    logged in via email @gmail.com

    According to the news this morning, Roxon is to resign her seat at the next election.

    Perhaps Gillard wants her to run the defence in the AWU fraud matter...

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  16. Pat Moore

    gardener

    Chris Harper exercising his right to "free speech" uses some inflamatory & frightening words against an elected prime minister saying she should be "expunged" ("to prick or blot out" , "to conquer", "to take by assault"), "rendered", "eliminated", "removed". and states that "she has no entitlement to be" heard", is "rotten" and also implies that she is only supported by insane people.!!!

    And who is the "jackboot fascist" again?

    Fascism is defined as "rigid one party dictatorship, forcible…

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    1. Kim Darcy

      Analyst

      In reply to Pat Moore

      Pat, fascism was a very historically-specific political phenomenon that rose in certain countries as a defence against Soviet-backed Communist forces screwing with other countries politics and culture. It largely died at the end of WWII.

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  17. Pat Moore

    gardener

    In reply to Kim Darcy

    So did "Soviet-backed communist forces" predate Mussolini's Italy & Hitler's Germany? I don't recall learning that in modern history. Sounds like propaganda to me.

    In light of this discussion it is imperative to appreciate that "the right to free speech" means something totally different for those in power & those who are not. It is a furphy. The MSM, always in campaign/spin mode for the capital-rich forces it represents, legally protected politicians, lawyer drenched…

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  18. wilma western

    logged in via email @bigpond.com

    How many of those with apparently expert problems with the way the "omnibus" draft is worded put in a submission to the Senate Committee? How many will lobby the new AG about their concerns? Wouldn't it be good to get bipartisanship on a few important issues ? One can always dream.

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