This is the last in a series of nine posts looking at Australia’s anti-discrimination laws and discussing how well, or poorly, they protect lesbian, gay, bisexual, transgender and intersex people. In these articles, I have analysed Commonwealth, state and territory legislation with respect to three main issues:
- Protected Attributes
- Religious Exceptions, and
- Anti-Vilification Coverage
This post will also be the shortest of the nine, because in all three areas Tasmania’s Anti-Discrimination Act 1998 is either best practice, or close to best practice, with only minor amendments needed to improve its anti-vilification provisions (although there is also a risk these laws will be wound back – see below).
Unlike some other schemes, Tasmania’s Anti-Discrimination Act 1998 protects all parts of the lesbian, gay, bisexual, transgender and intersex community against discrimination.
Section 16 sets out the protected attributes of the Act, and they include sexual orientation (sub-section c), gender identity (ea) and intersex (eb).
The definitions of these terms in section 3 are also inclusive:
“sexual orientation includes-
(a) heterosexuality; and
(b) homosexuality; and
“gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of an individual (whether by way of medical intervention or not), with or without regard to the individual’s designated sex at birth, and includes transsexualism and transgenderism” (noting that this does not require gender diverse people to adopt a binary identity in order to receive protection), and
“intersex means the status of having physical, hormonal or genetic features that are-
(a) neither wholly female nor wholly male; or
(b) a combination of female and male; or
(c) neither female nor male”
(with Tasmania only the second jurisdiction, after the Commonwealth, to include intersex as a stand-alone protected attribute).
Overall, then, the Tasmanian Anti-Discrimination Act 1998 adopts best practice in terms of the protected attributes it includes, covering all LGBTI Tasmanians.
The Anti-Discrimination Act 1998 is also best practice when it comes to religious exceptions – in fact, Tasmania is better, far better, than any other Australian jurisdiction in this area.
There are three provisions outlining relevant religious exceptions in the Act:
Section 51 “Employment based on religion
(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment if the participation of the person in the observance or practice of a particular religion is a genuine occupational qualification or requirement in relation to the employment.
(2) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to employment in an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion if the discrimination is in order to enable, or better enable, the educational institution to be conducted in accordance with those tenets, beliefs, principles or practices.”
Section 51A “Admission of person as student based on religion
(1) A person may discriminate against another person on the ground of religious belief or affiliation or religious activity in relation to admission of that other person as a student to an educational institution that is or is to be conducted in accordance with the tenets, beliefs, teachings, principles or practices of a particular religion.
(2) Subsection (1) does not apply to a person who is enrolled as a student at the educational institution referred to in that subsection.
(3) Subsection (1) does not permit discrimination on any grounds referred to in section 16 other than those specified in that subsection.
(4) A person may, on a ground specified in subsection (1), discriminate against another person in relation to the admission of the other person as a student to an educational institution, if the educational institution’s policy for the admission of students demonstrates that the criteria for admission relates to the religious belief or affiliation, or religious activity, of the other person, the other person’s parents or the other person’s grandparents.”
Section 52. “Participation in religious observance
A person may discriminate against another person on the ground of religious belief or religious activity in relation to-
(a) the ordination or appointment of a priest; or
(b) the training and education of any person seeking ordination or appointment as a priest; or
(c) the selection or appointment of a person to participate in any religious observance or practice; or
(d) any other act that-
(i) is carried out in accordance with the doctrine of a particular religion; and
(ii) is necessary to avoid offending the religious sensitivities of any person of that religion.”
At first glance these exceptions appear extensive in their application. However, the most important point to observe is that discrimination by religious bodies, including religious schools, is only allowed on the basis of the person being discriminated against’s religion – for example, a christian school offering preferential enrolment to students that are christian.
It specifically does not allow discrimination on the basis of other attributes, such as the person being discriminated against’s sexual orientation, gender identity or intersex status.
In this way, the Tasmanian Anti-Discrimination Act 1998 is clearly superior to other state and territory LGBTI discrimination laws, as well as the Commonwealth Sex Discrimination Act 1984 (which not only provides a general religious exception allowing discrimination against LGBT people in a wide range of circumstances, but also a specific one with respect to religious schools that permits discrimination against LGBT students and teachers).
The anti-vilification protections afforded LGBTI Tasmanians under the Anti-Discrimination Act 1998 are also strong – although, as we shall see below, there is one area of possible improvement, as well as an impending threat that could significantly undermine these laws.
There are actually two provisions that prohibit vilification under the Act:
Section 17 “Prohibition of certain conduct and sexual harassment
(1) A person must not engage in any conduct which offends, humiliates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed…”
Section 19 “Inciting hatred
A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of-
(a) the race of the person or any member of the group; or
(b) any disability of the person or any member of the group; or
(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or
(d) the religious belief or activity of the person or any member of the group.”
As we saw earlier, sub-sections 16(c), (ea) and (eb) cover sexual orientation, gender identity and intersex, consequently all LGBTI Tasmanians have recourse to the general anti-vilification protection found in section 17(1).
Interestingly, however, only sexual orientation is deemed worthy of inclusion in the more serious ‘inciting hatred’ prohibition of section 19. Which leads me to suggest the only possible improvement to the Act in any of the three areas outlined in this post: an amendment to sub-section 19(c) to include gender identity and intersex (which are both equally deserving of this protection).
Nevertheless, the anti-vilification protections contained in the Anti-Discrimination Act 1998 are at least the equal of any other state or territory – noting of course that only NSW, Queensland and the ACT have introduced similar protections (with no LGBTI anti-vilification coverage under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory).
As indicated earlier, these is an impending threat that could undermine existing Tasmanian anti-vilification protections, and that is a proposed amendment to broaden the ‘public purpose’ defence to both section 17(1) and (19). Currently, section 55 provides that:
The provisions of section 17(1) and section 19 do not apply if the person’s conduct is-
(a) a fair report of a public act; or
(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or
(c) a public act done in good faith for-
(i) academic, artistic, scientific or research purposes; or
(ii) any purpose in the public interest.”
In late 2016, as I have written elsewhere the Hodgman Liberal Government introduced legislation to expand this defence, and specifically to cover:
“(1)(c) a public act done in good faith for-
(i) academic, artistic, scientific, religious or research purposes; or
(ii) any other purpose in the public interest” [emphasis added] where
“(2) In this section-
Religious purpose includes, but is not limited to, conveying, teaching or proselytising a religious belief.”
In short, the Tasmanian Government wants to undermine existing anti-vilification laws to make it easier for religious individuals and organisations to “engage in… conduct which offends, humiliates, insults or ridicules another person” and even where it “incite[s] hatred towards, serious contempt for, or severe ridicule or, a person or a group of persons.”
It is clear that the most likely targets of this broader ‘right’ to vilify will be lesbian, gay, bisexual and transgender Tasmanians.
The Bill has already passed the Legislative Assembly, and it is expected to be considered by the Legislative Council when Parliament resumes from 7 March 2017.
It will be incredibly disappointing, not just to LGBTI Tasmanians but also to people around the country who have an interest in this area, if the Council agrees to change, and significantly limit, what is currently the best anti-discrimination legislation in the country – all to make it easier for religious groups to vilify people on the basis of their sexual orientation, gender identity or intersex status.
Hopefully enough Council Members reject this attempt, and in doing so ensure the Tasmanian Anti-Discrimination Act 1998 retains its ‘best practice’ status in relation to all of protected attributes, religious exceptions and anti-vilification coverage.