On 26 September 2013, the Tasmanian parliament passed the Anti-Discrimination Amendment Bill 2012 (Tas) that introduced new protections against discrimination and offensive conduct and also improved the capacity of the Tasmanian Anti-Discrimination Commissioner to deal with complaints.
New protections for intersex, transgender and gender diverse people
There are now two new “protected attributes” or grounds of discrimination in Tasmanian anti-discrimination law. Under the changes it will be unlawful to discriminate against a person because they are “intersex” or because of their “gender identity”. These new grounds are consistent with the recently amended Sex Discrimination Act 1984 (Cth) and reflect international best practice. For example, the definition of “gender identity” also encompasses gender expression or mannerisms, so as to protect effeminate men or masculine women from discrimination. The Tasmanian Anti-Discrimination Commissioner will be running education and training to address the low levels of public awareness about transgender, intersex and gender diverse people. We will be watching with interest as Tasmania implements these new protections at a State level.
New protections against offensive conduct or attribute-based bullying
Tasmanian anti-discrimination laws already prohibit conduct that humiliates, intimidates, ridicules, offends or insults when it is linked to gender, parental status, marital status, pregnancy, breastfeeding, relationship status or family responsibilities. New amendments extend these protections to the grounds of race, age, disability, sexual orientation, intersex, gender identity and lawful sexual conduct. Some of the additional grounds originally proposed, such as political belief and activity, industrial activity and irrelevant criminal record, were removed in the final version of the Act.
These “offensive conduct” provisions are of broader application than vilification laws found in other jurisdictions (which serve to restrain hate speech and hate conduct in the public domain) and could be said to be conceptually closer to protections against attribute-based harassment (which focus on the distress caused to individuals by unwelcome conduct that generally occurs in private). The Anti-Discrimination Commissioner, Robin Banks, has welcomed these new protections as “an important step to enabling us to address bullying-type behaviour when it is linked to personal characteristics”. Ms Banks also welcomed observations by Parliamentarians that the laws did not go far enough.
The HRLC has commented previously on the Bill, saying international human rights law is clear that the right to free speech is not absolute. Free speech must be balanced with our obligations to outlaw hate speech. Hate speech causes real harm and needs to be addressed. However, the HRLC has also expressed concern that “offends” and “insults” are too low a threshold when regulating hate speech through vilification laws.
Discrimination permitted by religious schools
The new law also allows discrimination by religious schools in favour of students of the school’s religion, in an effort to balance freedom of religion with the right to be free from discrimination. Under the amended act religious schools are able to apply for a temporary exemption to allow them to preference children of the school’s religion, but only when there demand for entry to the school exceeds the available number of places.
For more information on the Anti-Discrimination Amendment Act 2013 (Tas) visit the website of the Office of the Tasmanian Anti-Discrimination Commissioner.