In the wake of new federal anti-discrimination protections on the basis of sexual orientation, gender identity and intersex status, Tasmania’s Anti-Discrimination Bill 2012 has stalled in the parliament.
The Bill introduces new protections against discrimination on the basis of gender identity and intersex status. More controversially, the Bill proposes to extend the prohibition on offensive, humiliating, intimidating, insulting and ridiculing conduct to a number of new grounds.
Such offensive conduct is already prohibited in relation to gender, marital status, relationship status, pregnancy status, breastfeeding, parental status and family responsibility. The Government hoped to extend the provision to include race, age, sexual orientation, disability, industrial activity, political belief and activity, religious belief and activity, irrelevant criminal record, irrelevant medical record, or association with anyone in these classes.
The Legislative Council passed an amended version of the Bill, which weakened offensive conduct measures and the Bill has now returned to the lower house. The amendments proposed by the Liberal National Coalition removed the suggested new protections against offensive conduct and inserted additional provisions in support of free speech. Gay and lesbian activists have pointed out that the Bill in its current state now prohibits conduct to offend or insult a transgender person or intersex person, but not a gay or lesbian person.
The Australian Christian Lobby has spoken out against the laws and Liberal shadow Attorney-General Vanessa Goodwin advocated against the proposals citing concerns about restricting free speech. LGBTI rights campaigners have supported the Government’s proposed Bill in its original form, and Anti-Discrimination Commissioner Robin Banks said the right to free speech is not unlimited.
The delayed passage of the Bill comes shortly after Tasmanian independent candidate Andrew Roberts’ ‘Know the Truth’ election flyer condemning marriage equality and labelling gay people as Sodomites, paedophiles and perverse was stopped from distribution by Australia Post.
The HRLC has commented 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 words “offends” and “insults” are too low a threshold for vilification laws like these.
It is important to get the balance right in other respects as well, and some of the proposed new grounds, such as political belief and activity, industrial activity and irrelevant medical record, go beyond vilification protections in other Australian jurisdictions.
Overall, given the many benefits of protections against unfair discrimination, it would be a shame for Tasmania to miss an opportunity to strengthen laws to do things like prevent religious vilification. The HRLC welcomes the Tasmanian Parliament reconsidering these anti-discrimination laws and resolving concerns about balancing rights to free speech against rights to equality in a way which upholds Australia’s international human rights obligations.