Tasmania's Draft Anti-Discrimination Amendment Bill 2016: A Matter of "Appropriate Balance"

Wednesday 14 September 2016 @ 2.17 p.m. | Legal Research

On Friday, 9 September 2016, the call for submissions to the Tasmanian Department of Justice on the Draft Anti-Discrimination Amendment Bill 2016 (the Draft) closed. The Draft was first released for consultation on 26 August 2016 and was described on the Tasmanian Department of Justice's website as providing amendments:

". . . to ensure that there is an appropriate balance between providing protection from discrimination and unlawful conduct whilst allowing for genuine public debate and discussion on important issues".

According to a recent ABC News report, the proposed changes are yet another instance of anti-discrimination laws that have been in place for quite a long period of time being sought to be either repealed or suspended - in the Tasmanian case, the ABC News reports:

". . . The changes were prompted by concerns from church and conservative groups that they would not be able to campaign freely against same-sex marriage in the lead up to the national plebiscite."

The ABC News further claims that, the State Government plans to table the proposed amendments to the Tasmanian anti-discrimination law in the Parliament as early as next week. The key feature of the proposed new legislation is a "reasonableness test" with respect to conduct which offends, humiliates, intimidates, insults or ridicules, and the provision of exemptions for religious groups in respect of such conduct.

What the Current Tasmanian Law Provides

Two provisions in the current legislation identify certain types of conduct that are prohibited while a third provision describes exceptions.

Currently section 17(1) of the Anti-Discrimination Act 1998 (Tas) (the Act) prohibits conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of "specified protected attributes" - being: gender, race, age, sexual orientation, lawful sexual activity, gender identity, intersex, marital status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities and disability. While Section 19 of the Act prohibits the incitement of hatred, serious contempt for or severe ridicule of a person or group of persons on the basis of race, disability, sexual orientation or lawful sexual activity or religious belief, affiliation or activity.

Section 55 of the Act provides an exception to sections 17(1) and 19 of the Act for certain prohibited conduct, including a ". . . public act done in good faith for academic, artistic, scientific or research purposes or for any purpose in the public interest".

Details of the Proposed Changes

The Draft proposes changes to the exception in section 55 of the Act so as to introduce a test of reasonableness, limiting the exception to a public act "done reasonably and in good faith", and making it clear that the exception applies to public acts done for religious purposes.

The Draft also seeks to address concerns that the current threshold for the acceptance of a complaint made under the Act is "too low". Further, the Draft proposes changes to various provisions in the Act to require the "rejection or dismissal" of a complaint made under sections 17(1) or 19 of the Act in certain, specified circumstances.

The Tasmanian Department of Justice's website specifically states that the Draft:

". . . does not make repeal or make any changes to sections 17(1) or 19 of the Act".

Reaction to Proposal

The ABC News reports that the Tasmania Government has been criticised for not allowing enough time for submissions to be made on the Draft, indicating that it announced the proposed changes late in August 2016, and wrote to stakeholders, but that important groups like the Tasmanian Council of Social Service (TasCOSS - a peak body that represents 300 groups) did not receive notification until one week before last Friday's deadline for submissions. The ABC quotes TasCOSS chief executive Kym Goodes as saying:

"This is such an important amendment and it is just not the sort of amendment that we would like to see go through Parliament without the opportunity for people in the community sector and people in the community to have the opportunity to have some input, . . . If the changes in this Bill are warranted, it will be all the stronger for having gone through a vigorous and reasonable process to become law."

The apparent lack of consultation was also remarked upon by Tasmania's Anti-Discrimination Commissioner, Robin Banks, who is reported as saying she was disappointed she was not consulted before details of the planned amendments were released to the public.

The Huffington Post reports the comments of Tasmanian Gay and Lesbian Rights Group spokesman Rodney Croome who, it is reported, is of the view the changes proposed by the Draft will "give the green light to hate speech not seen the state [Tasmania] for almost twenty years."

The Tasmanian Government has argued back that the changes proposed by the Draft had been known for some time and all members of the community were given adequate notice of the Draft.

The introduction of the actual Bill and the discussions around its passage through Parliament will be something to watch. Certainly it seems concerning to see how easily established and tested discrimination protections can be worn down and it is very worrying for the prospects of a respectful national debate yet to come in the form of the Same-sex Marriage Plebiscite.

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