Page 1874 - Week 06 - Wednesday, 8 June 2016
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where it is reasonably necessary to discriminate on the grounds of physical features to protect the health or safety of any person. These exceptions will allow, for example, reasonable discrimination in sporting competition or in admission to emergency services.
The bill makes it unlawful to discriminate against a person who has altered the record of their sex under the Births, Deaths and Marriages Registration Act or a corresponding law of another jurisdiction. The bill will make it unlawful to discriminate against a person who has been, or is being, subjected to domestic or family violence.
Part 6 of the Discrimination Act, which deals with unlawful vilification, has been restructured, with the offence of serious vilification being relocated to the Criminal Code 2002 for enhanced visibility and prominence for police and prosecutors. The definition of vilification has been expanded to include conduct that incites revulsion of a person on the grounds of disability, gender identity, HIV/AIDS status, race or sexuality. Disability is a new ground to which vilification applies and has precedent in section 19 of the Tasmanian Anti-Discrimination Act.
Disability advocacy groups strongly support a vilification provision on the basis of the experience of their clients who are, in the words of peak disability advocacy group Advocacy for Inclusion, often subjected to “offensive language used to describe people with disabilities such as ‘retard’, ‘spastic’ and ‘psycho’ which are consequently widely viewed as acceptable terminology and used widely in the public domain. This degrades and vilifies people with disabilities.”
The bill changes the qualifier that the vilifying act is a “public act” to any act done “other than in private” in order to remove uncertainty about the legal meaning of “public”. Existing exceptions remain for fair reporting, and reasonable and honest acts done for academic, artistic, scientific or research purposes or other purposes in the public interest, including discussion and debate.
The bill makes amendments to better protect complainants and their associates from being subject to detriment, and also threat of detriment, for exercising their rights under the act. Previously, threat of detriment was not covered by this protection.
Part 1.2 of schedule 1 of the bill amends the Human Rights Commission Act, which makes provision for the initial handling of complaints about unlawful discrimination under the act. New section 43(1)(f) provides that a representative body or representative person with sufficient interest may make a complaint about discrimination on behalf of a named complainant with their consent.
This removes an existing barrier that prevents representatives or advocacy groups from making a complaint on behalf of a person who may otherwise be unable or unwilling to lodge a complaint and take it through the complaints process. The bill also reverses the onus of establishing that discrimination occurred. The bill will require a complainant to establish that treatment or a condition imposed is unfavourable or disadvantageous and to provide some evidence that would allow the ACAT to decide, in the absence of some other explanation, that the treatment or condition was imposed because of the protected attribute.
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