October 5th 2019

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Articles from this issue:

COVER STORY Oil disruption could mean a sticky patch for Australia

EDITORIAL Gladys Liu controversy ignores reality of China's interference

CANBERRA OBSERVED Water emergency intensifies in Murray-Darling Basin

VICTORIAN AFFAIRS Tolerance Bill aims to 'eliminate' vilification

FUEL SECURITY As Canberra sleeps, all is well ... well ... well

EUTHANASIA An open letter from WA Faith Community Leaders to the Premier and Members of the West Australian Parliament

EUTHANASIA Unsung heroes of the last moments

YOUTH AFFAIRS Tumbler: Where vulnerable youth self-diagnose as autistic and transgender

NATIONAL AFFAIRS Inquiry into the Family Law Act: that misnamed source of misery

PHILOSOPHY The element of justice in economic practice, Part 1 of two parts

CINEMA EXTRA Unplanned: The movie they don't want you to see

OBITUARY A giant of a man has fallen: Hal G.P. Colebatch, 1945-2019

MUSIC Words as music: Bypassing the intellect, straight to the emotions

CLASSIC CINEMA The Wicker Man: Horror by reversal of expectations

BOOK REVIEW David Brooks' search for meaning

BOOK REVIEW Stabbing us in the back

BOOK REVIEW Admired historian dares his memory



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Tolerance Bill aims to 'eliminate' vilification

by Terri M. Kelleher

News Weekly, October 5, 2019

Remember the Catch the Fire Ministries case? Two pastors, Danny Nalliah and Daniel Scott, were taken to the Victorian Civil and Administrative Appeals Tribunal (VCAT) on a complaint of racial vilification under the Racial and Religious Tolerance Act (the Act) by the Islamic Council of Victoria for comments about Islam.

The parties settled out of court so the test for “conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of” another person was not decided.

Now Fiona Patten, Reason Party leader in Victoria’s Legislative Council, has introduced a bill to amend the Act that would change the test for vilification to “conduct that is” merely “likely to incite hatred against” etc. This would set a new, lower threshold for a finding of vilification.

It would introduce into Victoria a provision of effect on free speech similar to section 17 of the Tasmanian Anti-Discrimination Act. It was under section 17 that Hobart Archbishop Julian Porteous was dragged before the Human Rights Tribunal on a complaint of offending, ridiculing or insulting the complainant for simply circulating within the Catholic community a statement of the Church’s teaching on marriage.

Similarly, section 18C of the federal Racial Discrimination Act has caused huge controversy because of its chilling effect on free speech. It was under this provision that conservative commentator Andrew Bolt was prosecuted for racial discrimination for comments he made about people identifying as Aboriginal. And that students at Queensland University of Technology were sued for $250,000 for Facebook posts about being thrown out of a campus indigenous computer lab because they were not indigenous.

It is revealing that the Bill would rename the Act as the Elimination of Vilification Act in place of the Racial and Religious Tolerance Act and “inclusion” would replace “tolerance” as the main purpose of the Act. Will promoting “inclusion” force on people other beliefs, whether religious or secular, which are against their convictions? Will it shut down discussion, debate, exchange of ideas about differences for fear of being prosecuted for vilification?

And the Bill seeks to remove proselytising as a religious purpose that will not amount to vilification. So, mere proselytising could be found to be vilification.

Tolerance is about people getting on together despite differences; not complaining of vilification because someone makes comment on those differences.

The Bill seeks to add sexual orientation and gender identity as new protected attributes, opening up whole new areas of differences of opinions and beliefs.

Gender identity raises the issue of the deep differences between the biological worldview of sexual identity – that sex is biological, immutable and can be objectively determined by reproductive function – and the gender fluid worldview, that gender is how you feel and is fluid or changeable and may differ from your biological sex, and that a person can change their sex.

It is very important that discussion of these issues not be shut down as there are serious conflicts that affect women and girls, in particular, that result from legal recognition of the gender fluid worldview. The rights of biological women and girls are seriously impacted if males who identify as females have to be allowed to use female safe spaces (such as women’s refuges for victims of domestic violence); intimate spaces (such as toilets, change rooms and showers); be housed in women’s prisons; be allowed to compete in women’s sporting competitions; be eligible for women’s affirmative action scholarships and jobs; be allowed to insist that biological women provide them with intimate services such as body-waxing of male genitalia.

It is unclear whether it will be possible to have a genuine debate about these issues. Any comments made in the course of such a debate would be at risk of being found to be vilification of persons who identify as other than their birth sex.

And how is it to be determined whether someone is “likely to” be incited to hatred, etc by something someone else has said or written? If the complainant does not even have to show that someone has actually been incited to hatred, etc of another person by the comments, it is a purely subjective exercise by a court or tribunal to make a finding of vilification. There is no objective standard.

The risk of complaint of vilification will hang over any person or organisation that publishes, in the public arena (online, in print, audio or video) any comment or opinion about any of the attributes covered by the Bill.

It is the lack of certainty around what is likely to be found “likely to incite” that is the problem. As there is no objective test, any commentator would be well advised to take the temperature of the general public feeling about a topic before venturing an opinion.

There are exceptions for conduct engaged in for the purposes of any discussion or debate that is “in the public interest”. However, a person accused of vilification would have to prove that the discussion or debate was “in the public interest”. In the meantime, as the saying goes, the punishment is the process.

The proposed amendments are a threat to open debate about very important social issues. It will gag freedom of speech. It will be Victoria’s version of section 18C of the federal Racial Discrimination Act, which has caused so much controversy and sparked repeated calls to repeal it.

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Last Modified:
April 4, 2018, 6:45 pm