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The Media is Offended by the new Discrimination Bill

The media is right to be up in arms about proposed new laws. AAP Image/Alan Porritt

The federal Attorney General has put forward a proposed new draft anti-discrimination bill. An enquiry into the Bill by the Senate Legal and Constitutional Affairs Committee has attracted over 500 submissions. Submission 484 is from “Joint Media Organisations”, unusually a joint submission by the major media providers in Australia; it is very critical of the Bill.

So what is this new bill for? It is designed to consolidate and simplify existing federal anti-discrimination laws, which currently cover the grounds of race, sex, disability and age. It will roll them up into “one great big new law”. It also adds new protected grounds of discrimination (known as “protected attributes”), such as religion, sexual orientation and nationality (see draft s. 17).

The most controversial aspect of the proposed new law is that “discrimination” in draft section 19 is defined as the “unfavourable treatment” of someone because of their protected attribute. Unfavourable treatment is further defined in s 19(2)(a) as including “harassing” of “the other person” and, in 19(2)(b), “other conduct that offends, insults or intimidates” a person. It is s 19(2)(b) which has the media up in arms. And rightly so.

As pointed out by the new ABC Chair and former NSW Supreme Court Chief Justice Jim Spigelman in his Human Rights Day Oration in December, s 19(2)(b) sets the bar too low. It is certainly unpleasant to be offended or insulted because of one’s race, gender or age (for example). However, the “harm” caused in such instances is too trivial to warrant the consequence of unlawfulness. If such behaviour escalates beyond the trivial, then we reach the realm of “harassment” which is already (rightly) covered in s 19(2)(a).

Today Nicola Roxon has issued a press release purporting to justify s 19(2)(b). She states:

Despite what some reports may have said, it is not the case that any conduct that a person finds offensive will be unlawful. The draft bill only seeks to clarify what courts have already found - that racial, age, sex and disability discrimination can include harassment on that basis.

Similar reasoning is contained at para 107 of the government’s Explanatory Notes. I beg to differ from Roxon’s reasoning. If the subsection is simply meant to make clear that offence and insults can in some circumstances amount to “harassment”, it seems to me that that matter is adequately covered by s19(2)(a). Indeed, the separation of 19(2)(a) from 19(2)(b), and the latter’s reference to “offence and insults” as “other conduct”, indicates that they are different to “harassment”.

A prohibition of offending or insulting behaviour or “treatment”, even if it is motivated by prejudice, interferes too much with the internationally recognized human right to free expression (or “free speech”). Certainly, that right is not unlimited, and there is also a human right to be free from discrimination. However, there is no human right not to be offended or insulted. And indeed, historically much important speech has offended somebody. The closest such right is the right to be free from vilification which incites hatred: that is a long way from behavior which merely “offends” or “insults”. Indeed, the racial vilification provisions in the new Bill (s 51(2)), and in the current Racial Discrimination Act (s. 18C), also go too far by including behavior which simply “offends” and “insults” another because of that person’s race.

A final point about the draft provisions is that the test of whether something offends or insults appears to be subjective. If so, it could open up people to liability because they happen to be dealing with someone who is very easily upset.

So what does this all mean for the new Bill? Actually, not much. I predict that s 19(2)(b) will not make it into the final legislation in its current form (the prohibition on “intimidation” may remain); the Bill hangs together well without the problematic offends/insults standard. There is certainly no reason to chuck the baby out with the bathwater, no matter how much The Australian (which has published story after story after story on the issue) might be hyperventilating. And the Bill itself has many worthwhile and important provisions, designed to ensure that people are indeed free from discrimination on irrelevant grounds in crucial areas of life, a very important human right, particularly for the vulnerable (for more info, check submission 249 from the Castan Centre for Human Rights Law).

Join the conversation

47 Comments sorted by

  1. Moira Clarke

    logged in via Facebook

    Thank you for another excellent article, highlighting one of several issues in the draft legislation, i.e. the problematic definition of discriminatory speech or behaviour as that which offends or insults. Conversation readers will also find that, (a) religious institutions and the services they run (e.g. some public hospitals), with the welcome exception of providers of aged care, are granted exemptions so that they can continue to discriminate, even when in receipt of public funding; (b) the wording…

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    1. Craig Thomas

      logged in via Facebook

      In reply to Moira Clarke

      So what you're saying is that it is so poorly written (by a bunch of lawyers) that it will provide endless employment opportunities to a bunch of lawyers?

      Anybody else spot what they're trying to do here?

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  2. Dale Bloom

    Analyst

    This is hilarious.

    Here is someone who is intensely disliked by nearly every person inside the country, and they propose a new bill on discrimination.

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    1. Stephen Prowse

      Research Advisor at Wound CRC

      In reply to Dale Bloom

      Far from hilarious, this is an important discussion on an important issue. You may have a different opinion of the Attorney General if you had the opportunity to meet her in person. Like all our politicians at the moment she has to work in a difficult environment.

      It is far from clear how your comment adds to the debate

      Cheers

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    2. Dale Bloom

      Analyst

      In reply to Dale Bloom

      Stephen Prowse
      Probably the last person in Australia to responsibly propose a bill on discrimination would have to be Nicola Roxon.

      Her comment that Tony Abbot was “fair game” was probably the most disgusting comment I have ever heard made by any Attorney General of any country.

      She would regard attacking someone as a type of sport, and that would be the absolute antithesis of discrimination.

      The two most untrustworthy people in politics at present would have to be the Prime Minister, and her cohort Nicola Roxon.

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

    Grumpy Old Man

    Great article, Sarah. This one seems to have slipped by the Conversation up unitl now. I certainly hope you are correct in your assessment that the legislation wont get through as it currently stands. Cheers.

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

    logged in via Twitter

    The error in the joint media submission is that it seeks to suggest that the new Bill was give a free-standing right of action to anyone who is offended or insulted. This is plainly incorrect (and Dr Joseph, of course, does not repeat this error). However, it is necessary to identify the error for what it is in order to understand why proposed section 19(2)(b) will not cause the sky to fall in and, indeed, plays a necessary role in the elimination of discrimination.

    Under the regime in the new…

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    1. Stephen Prowse

      Research Advisor at Wound CRC

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

      A good analysis that helps the discussion of an important issue. What is far from clear is that if "offends and insults" remains in the legislation will it be used as intended or will many writers and publishers or articles that people fund offensive end up in court. Offence that amounts to unfavourable treatment of a person in public life does not seem an adequate reason to seek recompense.

      As I understand it, the media industry joint submission included an example from SBS that suggested that the case against their broadcast of the program on the Armenian genocide would most likely be successful under the new legislation. Hyperventilation from the Australian can be expected but from SBS.......

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

      logged in via Twitter

      In reply to Stephen Prowse

      Stephen, the new Bill retains the current process which requires complaints to be made to the AHRC before Court proceedings can be commenced, so there is a mechanism there to winnow out unmeritorious claims (noting, of course, that there is no legislative formula for immunity from unmeritorious claims).

      I'm still trying to track down that SBS case but on the description in the joint submission, it looks like SBS would be able to engage the section 23 defence if the same thing happened under the new Bill. No-one has put their name to the joint media submission (which is not surprising - I wouldn't have put my name to it if I had been asked to write it) and it does read like the News Limited line. It is a pity that so many other media organisations appear to have put their name to the submission without apparently reading the Bill as a whole.

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    3. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

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

      Thanks Angus, especially for being respectful. We've of course discussed this before.

      If you're right, why then isn't "offends " and "insults" further defined? Coz it certainly reads as if they could apply to single instances of something which merely offends somebody. It just doesn't seem to me that those words are necessarily confined to harassment of a group.

      The issue of harassment of a group is also covered by the fact that 19(2)(b) isn't exhaustive anyway.

      Nothing in s23 seems likely…

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    4. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

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

      I guess my disagreement with both you & Roxon is that I just don't see why 19(2)(b), as drafted, is qualified or even linked to (a), Apart from in explanatory notes. I also think the provision could have a chilling effect regardless of intentions. I'm also not sure why harassment per se has to be personalized but I defer to your expertise on the case law there (it could be defined otherwise though).

      Finally, as for "unfavourable treatment", I think 19(2)(b) could be read as saying the reception of offence or insults (in a rel area of public life) IS sufficient detriment for the purposes of defining unfavourable treatment.

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

      Grumpy Old Man

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

      Angus, haven't you contradicted yourself when you say:
      unfavourable conduct CAN CONSIST OF CONDUCT THAT "OFFENDS, INSULTS or intimidates the other person". MERE OFFENCE OR INSULT does not engage the section - that insult or offence needs to amount to unfavourable treatment in a relevant area of public life - that is, some identifiable diminution of the ability of the affected person to go about their lives.
      Where does the onus of proof of offence or insult lie?

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

      logged in via Twitter

      In reply to Sarah Joseph

      There's no need to define "offends" or "insults" because conduct which is offensive or insulting is not unlawful discrimination unless it amounts to unfavourable treatment - it's a classic example of the maxim that the stream cannot rise above the source, with "unfavourable treatment" being the source and section 19(2)(b) being the stream.

      If I read something on the Conversation which offends or insults me because of my race or gender (or some other protected attribute) then I've not been subject…

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

      logged in via Twitter

      In reply to John Phillip

      John, the point is conduct which offends or insults can amount to unfavourable treatment, but not every example of insult or offence will amount to unfavourable treatment. If I abuse you using, say, an epithet which is derogatory of your religion in a post on the Conversation, it is unlikely in the extreme that I have subjected you to unfavourable treatment in the relevant sense.

      If I'm your supervisor and I leave notes on your desk in each day using the same derogatory epithet, it's very likely I have subjected you to unfavourable treatment in your employment, where the unfavourable treatment consists of conduct which offends or insults you.

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    8. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

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

      S51 adds as it applies in all walks of life whereas normal "discrimination" does not. Though I do think Spigelman suggested it was now redundant.

      You might be right, of course, as to how it will pan out (though I doubt the provision will survive). But, if so, it is to my mind "insider" drafting that only makes sense to discrimination lawyers familiar with case law on previous legislation.

      I really see no harm in getting rid of "offence" & "insults" and, if nec, including a defn of harassment which includes harassment of groups. In any case, you & Roxon indicate "offence & insult" are types of harassment in which case they're covered i 19(2)(a)

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    9. John Nicol

      logged in via email @bigpond.com

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

      You mention "free from discrimination" while at work. Does this mean that unless one has been refused a promotion or otherwise treated differently from other employees because of race, colour, .... the mere mentioning of a racial, colour... difference does NOT amount to an offence?

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  5. John Nicol

    logged in via email @bigpond.com

    An earlier criticism which I read of the act, was that the onus of proof had been shifted to the person being sued for discrimination. I believed that the bill required that someone, having "insulted" or "offended" another, had to prove that she/he had not done so. This was not mentioned in the article and I am not sure if the description I read was correct. Can someone explain this to me. Thanks.

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    1. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to John Nicol

      It's in the Castan Centre submission I flag at end of column. The onus shifts to respondent/defendant once prima facile case established. I'm in favour.

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    2. Moira Clarke

      logged in via Facebook

      In reply to Sarah Joseph

      Having read the section of the Castan Centre submission that deals with the burden of proof, I still have some concerns. This explanation seems to assume that the respondent will always be in the more powerful and/or more wealthy position. However, there will always be cases where, for example, both claimant and respondent are students in an educational institution, or an employee in the workplace submits a claim against a co-worker. How will the shifting burden assist in these cases?

      I take the point in the submission that the legislation increases the capacity of the courts to dismiss unmeritorious complaints in the first instance, and I think you have made this clearer than it was in the explanatory notes.

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    3. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Moira Clarke

      I'm not going to pretend to know a lot about existing discrimination cases (this post focuses on free speech & Adam Fletcher was main author of CC sub) but I'm going to AJE some hopefully educated guesses.

      1. Suspect majority of cases that get to court concern unequals not equals. Many between equals would get resolved eg at work by boss. If alleged discriminator supported by boss then might become issue of vicarious liability ie employer responsible for behaviour of allegedly discriminating employee. Then proceedings are between equal & unequal.

      2. Damage done by an equal nothing like that done by "superior". There's a limit to the unfavourable treeatment that an equal can perpetrate.

      Just some thoughts. I think in reality cases aren't between equals.

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

      logged in via Twitter

      In reply to Moira Clarke

      The practical reason for the reversal of onus of proof is that it is often very hard to get evidence of what was in the mind of the discriminator in relation to whether unfavourable treatment was "because of" a relevant protected attribute.

      Consider this example - assume that an employer does a round of redundancies and just so happens to make redundant all of its female employees who are working part-time because they have carer's responsibilities for their children. No full-time female employees…

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    5. Craig Minns

      Self-employed

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

      Angus, your example is misleading. What if he employer's reason for selectively reducing part-time employees is that they are not as productive n an hourly basis as their full-time equivalents,or because their outside responsibilities interfere with their availability to the extent that it reduces overall productive capacity or causes problems with the rosterng of other employees?

      I'm familiar with a situation that obtains in hospitals, where it can be difficult to fill shifts on Mondays and Fridays and some other unpopular shifts. Is it discrimination to favour employees who are willing to work the less popular shifts, such as by preferentially giving them choice of the more popular ones as well?

      It seems to me that this legislation will open the door to a flood of facile claims that will consume a lot of time, effort and cost, especially given the "no-costs" clause for complainants.

      When does an operational imperative become discrimination?

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

      logged in via Twitter

      In reply to Craig Minns

      Craig, if there is a genuine operational imperative (particular skills required, or if the ability to work overtime is a genuinely inherent requirement of the position) then the employer will have a "good" reason to displace the "bad" reason. Whether part-time employees are required to work across the whole week, or only on particular designated days, is a matter that should be part of their employment arrangements from the outset.

      However, if the employer just makes the blanket assumption that…

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  6. Andrew Jakubowicz

    Professor of Sociology and Codirector of Cosmopolitan Civil Societies Research Centre at University of Technology, Sydney

    My take is that the words that are used in the new Bill re racial discrimination and vilification are the same effectively as the old - the four elements have been around for a long time. The News Ltd position (rightly pinned as the driver for the joint media submission - I thought SBS had backed away from it), is what is known as the Andrew Bolt gambit. That is you can say what you want about people (including maligning their morality, ethics and good names and do so because of their race), and…

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    1. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Andrew Jakubowicz

      Thanks or this Andrew.

      The racial vilification provisions are the same as what we have now. I think existing ones go too far with offend & insult, though intimidate OK & humiliate borderline so OK. I said so at time of Bolt case. Bolt hit the jackpot though in that his articles were found to do all 4 things.

      The provision discussed above goes much further as it applies to all protected attributes, though not in all contexts (as racial vilification does).

      We argue against extent if religious exemptions in the CC submission. Religious vilification is covered in Vic law. Cheers.

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    2. Andrew Jakubowicz

      Professor of Sociology and Codirector of Cosmopolitan Civil Societies Research Centre at University of Technology, Sydney

      In reply to Sarah Joseph

      See I don't agree that the current criteria go too far exactly because 23 (the get a life clause) will wipe most of them out, and the ones left standing should be tested.

      In your to me overly shorthanded response are you saying that the Religion attribute should be everywhere (ie not just ILO) or only that the exemptions should be cut back?

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    3. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Andrew Jakubowicz

      My comment related only to exemptions though, in principle, I think protection on religion attribute could extend to other areas of life. It gets difficult though as what in fact is a "religion"? (It's on my mind coz of a thesis I'm dealing with). If a religion is any belief at all it'll get difficult, though maybe not, coz of s23.

      I don't however think s23 well crafted to deal with "get a life" complaints re offence & insult. An offensive statement is hardly achieving a legit aim or made in good faith - my point is that offence per seis too trivial to be unlawful in the first place. Nothing in s23 seems to address that.

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    4. Andrew Jakubowicz

      Professor of Sociology and Codirector of Cosmopolitan Civil Societies Research Centre at University of Technology, Sydney

      In reply to Sarah Joseph

      A quick addendum: the current Racial Vilification words have a long history - back to 1966 and Australia's Article 4 reservation on the ICERD... ie we declined to criminalise race hate speech. When the ALP tried to move past this in 1995 they were blocked in the Senate by Howard and when he got in, the wider view of vilification stood asa compromise exactly because the criminal sanction was not available and there was recognition that the process of pursuing vilification remedies would be onerous and difficult without state sanctioned support. What we are now seeing is that because effectively of one case at News Ltd, even this limited range of options is to be shrunk further. The conservatives expected the trek to be so difficult that no one would survive it - when somebody did, they went bananas.

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    5. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Andrew Jakubowicz

      But the law was passed in 1995.

      Others have succeeded before the Bolt applicants, eg vs Fredrick Toben. I agree the News Ltd/IPA reaction has been OTT & their affront over an alleged breach of free speech is laughable given their general opposition to human rights. As I said, Bolt was found to have done more than offend or insult.

      Even the judge in Bolt agreed, though, that the words therein go further than Art 4 CERD. I think they should be pared back. Even though they haven't proven to be a big danger to free speech this far, I don't think that threat should rest so clearly in the statute books. Ditto draft 19(2)(b).

      My take on Bolt fwiw: http://castancentre.com/2011/09/29/andrew-bolt-free-speech-and-racial-intolerance/ (it's also linked in article)

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    6. John Nicol

      logged in via email @bigpond.com

      In reply to Andrew Jakubowicz

      Andrew Jakubovicz,

      I think you are going way over the top to claim that what Andrew Bolt said was a diatribe. I am not sure if your ead what he actually said and even in the `judgement, the finding was that the words he used were not racist and did not in themselves constitute racial vilification. However, the judge, amazingly extended the "inference", on behalf of Bolt, to say that what he appeared to heve implied or intended to say was racial ly discriminatory.

      It is interesting to note…

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    7. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to John Nicol

      You think so? Bolt wrote blatant untruths about specific people, with seemingly zero attempt at research, implying that they used their Aboriginality to receive benefits. He's lucky he wasn't taken to the financial cleaners by multiple defamation actions. Instead, he was found to have breached the RDA, resulting in the fact that his nasty sneering articles are still online but accompanied by notices of breach.

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    8. John Nicol

      logged in via email @bigpond.com

      In reply to Sarah Joseph

      Thanks for your response Sarah.

      I did not actually find anything in Bolt's articles which could be interpreted as "nasty" and "sneering" beyond setting out the facts, which as I indicated, seem to have been confirmed by aboriginals more closely aligned to the main stream.

      Do you not concede that the grants made available by governments to aboriginals are primarily aimed at providing for those who have been less fortunate, have suffered discrimination on the grounds of colour and are in need…

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    9. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to John Nicol

      Bolt stated blatant untruths about the people he was writing about. Eg. That Larissa Behrendt's father was German when he was Aboriginal. The snide reference to her as "mein Liebchen" was to my mind sneering and nasty, not to mention wrong. It was "careless" and hurtful. I think it is also horrible to describe another Aboriginal person as having a "distressingly white face". I think those words were calculated to mock and hurt.

      I read the articles long ago when I wrote about them - I have no…

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    10. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to John Nicol

      Sorry, you also asked about the purposes of the relevant prizes. I don't know the exact prizes & I wouldn't want to assume what their purpose is. The winners satisfied the criteria which is hardly their fault. If Bolt wants to have a ping at the prizes instead of the people he's unlikely to end up in court. Prizes are won acc to criteria but also merit.

      Bolt's main criterion wasn't "comfort" from memory but skin colour or racial heritage. I also wouldn't assume that any assumptions he made about their "comfortable" backgrounds were even correct, or any lack of discrimination they may or may not have suffered.

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    11. John Nicol

      logged in via email @bigpond.com

      In reply to Sarah Joseph

      Thank you again for your courteous response. I accept some of the points you make about Bolt doing his case no good in court and have read the full transcript of the case.

      While I am probably still inclined, at least, towards a different interpretation from the one you are making, I do appreciate your courteous response to mine and other posts. It is unusual, but very pleasing, to find an author who is so willing to engage in the conversation with respondents, making the visit to this page all the more rewarding. Thank you. Best wishes, John Nicol

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    12. Lynne Newington
      Lynne Newington is a Friend of The Conversation.

      Researcher

      In reply to Sarah Joseph

      I hope you don't mind me commenting here Sarah and I hope it isnt out of context,, but the defining of religion can become extremely blurred, when dealing with legal counsels within the church.
      My Spirit still grieves for the now adult woman, struggling for many years to deal with the attrocities committed against her.
      The religious body forced into finally addressing what befell her, permitted their counsel to call her immoral a blatant insult and offensive statement.
      Good luck with your thesis.
      I'm sure Judy Courtin would be a walking library after what she has been dealing with, may you could exchange notes!

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    13. Sarah Joseph

      Director, Castan Centre for Human Rights Law at Monash University

      In reply to Lynne Newington

      Absolutely no problem with your comments. I run out of steam on commenting back though after about. 24 hours after posting columns.

      Yes I know of Judy. Cheers

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  7. Lynne Newington
    Lynne Newington is a Friend of The Conversation.

    Researcher

    Well, I for one can see some benefit iin it.
    Put simply, The Religious Discrimation Act permits religious bodies are permitted to do what they please in house, to "prevent scandal", even when it goes against UN Human Rights and Convention on the Rights of the Child, [we are recently seeing the consequnces of that].
    For instance, the Convention on the Right of the Child as of Australia's accesion in 1990, Articles 7and 8 states in part:
    The child has a right to their name and right to know their…

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  8. Dania Ng

    Retired factory worker

    Thank you for this article, I was unaware that the consultation process was (is?) taking place in respect to changing the discrimination legislation in order to curtail free speech in this country even further. It is interesting to note that your submission is actually supportive of the discrimination laws becoming even more draconian. Taking Canada among other such nut case examples of 'human rights' law is not supporting your perspective. You may remember that Canadian govt voted to repeal s13(1…

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  9. Joseph Bernard

    Director

    " It also adds new protected grounds of discrimination (known as “protected attributes”), such as religion"

    sounds like blasphemy laws are to be introduced.. so what is going to be the punishment? Beheading is all the rage i hear..

    and does this mean our courts are going to be tied up for years because someone takes offense at a comment like "My spaghetti monster god is much better than your God"?

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  10. Craig Thomas

    logged in via Facebook

    This Bill is the first necessary step on the way to us getting a Blasphemy Law, as human civilisation continues its regression under the influence of two powerful and completely retarded religious lobbies: Islam and US Christian fundamentalism.

    Making religion a "protected attribute" is illogical and dangerous: religion is politics. If you give a political lobby the legal power to enforce its dislike of free speech then you pretty much give up what little Democracy we have left.

    Alternatively, make political adherence also a "protected attribute" - after all, it too is largely based on irrational beliefs and passed on within a family. The Stalinists and Nazis in our midst will love having their beliefs proteced by human rights legislation, I'm sure.

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  11. Tim Benham

    Student of Statistics

    When the baby is a monster it should be thrown out with the bath water. Discrimination is the exercise of our higher faculties; to seek to ban it is an affront to human freedom and dignity.

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