Published: 11 October 2019

Tasmanian discrimination law is among the most discussed, debated and scrutinised of any legislation passed in the State. Most recently in 2017 additional religious exemptions were rejected because they risked fundamentally diminishing the protections available under the existing Act.

The right to free speech is important to all Australians. However, this right is not an unmitigated freedom to say whatever you want. There are established boundaries and social standards. The right to free speech has an inherent obligation to moderate our own contributions. With rights comes responsibilities and an obligation to not harm.

This is particularly important with the rise of social media creating a greater challenge as it allows the spread of hate speech to spread very quickly and widely. 

Consistently the Tasmanian Parliament has determined the Anti-Discrimination Act achieves the right balance of protections against those who treat fellow Tasmanians less fairly because of their gender, race, sexual orientation, disability and other characteristics, at the same time allowing for a diversity of views and beliefs.

A draft Religious Discrimination Bill released by Commonwealth Attorney-General, Christian Porter, seeks to override sections of Tasmanian discrimination law. 

Section 17(1) of the Tasmanian Anti-Discrimination Act, has been intensely scrutinised and a substantive body of case law exits to determine how provisions are to be applied in practice. It prohibits a person engaging in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of a range of attributes including race, age, sexual orientation, gender identity, disability or parental status in circumstances where a reasonable person, having regard to all circumstances, would have anticipated the other person would be offended, humiliated, intimidated, insulted or ridiculed. 

The Commonwealth Bill seeks to override Tasmanian law by providing that most statements of religious belief would not breach section 17(1) of the Tasmanian Anti-Discrimination Act. Existing protections under Tasmanian laws would no longer be available. Conduct that offends, humiliates or intimidates another person would be allowed if it were done in the pursuit of a religious belief.

The main problem with privileging religious beliefs above other groups is that it elevates those beliefs in a way which says the legitimate views of others are not worthy of protection and sends a message that, as a community, we happy to allow conduct that insults, offends, ridicules where is it done in the name of religion and not on any other basis. 

The potential impacts of such a move are alarming. In the name of religious belief, a single women seeking contraception, a child being raised by a single parent, a gay person, a Muslim woman, a woman seeking access to reproductive health services, could be harassed, humiliated, intimidated, insulted or ridiculed, on the basis of another’s religious belief, without protections the Tasmanian law provides and seeks to regulate. 

Currently, the majority of complaints under section 17 (1) of the Tasmanian Act to the Anti-discrimination Commissioner relate to people with a disability. An example of the removal of these protections could result in a person with disability having no recourse when, based on religious belief, a person says their disability is the work of God or punishment for some former sin. 

The current law does not prevent a person from holding religious views and beliefs, it simply requires any expressions of faith directed to others be done in a way that is civil and respectful, avoiding expression of prejudice. This is consistent with a modern understanding of rights and freedoms where fellow Tasmanians are treated with civility and respect.

Many people of faith have stated they feel deeply uncomfortable with any attempts to provide a license for religious groups or those of religious faith to engage in discriminatory and offensive conduct through a law that would permit people of religion to discriminate against or degrade people with disability in any way. 

Current discrimination laws do not deny people of faith holding views which some may consider contrary to modern principles. Nor do they deny people of faith the ability to express their views on issues of debate. On the contrary under Tasmanian law a person’s right to hold religious views and beliefs are protected and people are protected from discrimination on the basis of their religion. 

Tasmanians should reject attempts by the Commonwealth to seek to override the Tasmanian Anti-Discrimination Act.


The Advocate 12 October, 2019



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