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1
Anti-Discrimination Amendment
ANTI-DISCRIMINATION AMENDMENT
BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of the Legislation
This Bill will amend the Anti-Discrimination Act 1991 by:
(a) repealing the existing racial/religious vilification provision and
inserting new civil and criminal vilification laws of wider scope;
and
(b) remedying various deficiencies and anomalies in the operation of
the Act, in particular by:
· providing for the extra-territorial operation of the Act so that
it will apply to proscribed conduct on vessels outside
Queensland territorial waters;
· ensuring the Act applies to discrimination in work
arrangements where the principal does not have a direct
contractual relationship with the worker; and
· providing for minor technical/procedural amendments.
Reasons for the objectives and how they will be achieved
Until now, the Act has proscribed only racial or religious vilification
which incites unlawful discrimination or another breach of the Act. The
Anti-Discrimination Commissioner Queensland has consistently called for
laws of wider scope that will strengthen protection against racial and
religious vilification and reinforce the social unacceptability of such conduct.
Vilification can take many forms, including hate-speech, graffiti and the
distribution of propaganda or other forms of offensive literature. It is
damaging not only to the individuals or groups vilified but to the cohesion
and harmony of a culturally diverse society.
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Anti-Discrimination Amendment
The Bill enacts new racial and religious vilification laws modelled on
New South Wales legislation. It provides both civil remedies and criminal
sanctions for public acts of racial or religious vilification. If a complaint of
racial or religious vilification discloses a contravention of the Act it will be
dealt with in accordance with the dispute resolution and enforcement
mechanisms already established under the Act.
The criminal sanctions will apply only to the offence of serious racial or
religious vilification which must contain the additional element of
threatening, or inciting others to threaten, physical harm towards the person
or group of persons or any property of the person or group. A prosecution
will be by way of summary proceeding under the Justices Act 1886 on
complaint of the Commissioner or a person authorised by the
Commissioner.
In addition to the vilification laws, the Bill contains a number of other,
unrelated amendments to improve the operational efficiency of the Act.
In particular, the Bill will remedy two limitations highlighted in
Anti-Discrimination Tribunal decisions.
The first of these amendments results from a Tribunal decision that the
Act does not apply to discrimination or sexual harassment which occurs
outside Queensland territorial waters (Carter v Sercombe and Ors QADT 8
September 1998 unreported). This means that where a complaint relates to
conduct on a ship a complainant may currently have to rely on federal
legislation, such as the Sex Discrimination Act. This is considered
unacceptable as, when Human Rights and Equal Opportunity Commission
(HREOC) withdrew from Queensland, there was a community expectation
that the Anti-Discrimination Commission Queensland (ADCQ) would fill
the gap. It can also result in injustice in cases where the location of a ship at
the time of an alleged contravention is initially not clear. This is because if
an action is brought under the Act and subsequently discontinued, the
Commonwealth legislation prohibits an action being subsequently brought
under its provisions.
The second amendment results from a decision that the Act does not
apply to discrimination by a principal against a worker when there is no
direct contractual relationship between the principal and the worker (Box v
Mount Isa Mines Limited, QADT, 21 August 1998, unreported). This gap
in protection for certain categories of workers, such as subcontractors, is
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Anti-Discrimination Amendment
unacceptable as it means that presently it is open to a principal to set
discriminatory workplace conditions with no liability attaching to the
principal under the Act.
Administrative cost to Government of implementation
The financial implications for Government are not significant.
Fundamental legislative principles
The Bill raises one issue regarding consistency with fundamental
legislative principles contained in section 4 of the Legislative Standards Act
1992. Section 4(2) requires that legislation has sufficient regard to, inter
alia, the rights and liberties of individuals.
The Bill contains new racial and religious vilification provisions which
will limit the right to freedom of speech.
The limitation is justifiable in that it serves a legitimate purpose in
ensuring that people are able to live peaceful and dignified lives free from
racial or religious harassment or vilification.
The right to freedom of speech is not absolute, but is limited by a number
of existing laws such as defamation, censorship and sedition.
The limitation contained in the Bill is reasonable and proportionate in that:
(a) it applies only to public, not private acts;
(b) the new section 124A contains exemptions which strike a balance
between freedom of expression and freedom from racial or
religious vilification; and
(c) the offence of serious racial or religious vilification requires proof
to the criminal standard that the incitement was done knowingly
or recklessly.
Consultation
Consultation has occurred with the following Government departments
and agencies:
· Anti-Discrimination Commission, Queensland (ADCQ)
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Anti-Discrimination Amendment
· Department of the Premier and Cabinet
· Department of Employment, Training and Industrial Affairs
· Department of Education
· Department of Aboriginal and Torres Strait Islander Development
· Department of Families, Youth and Community Care
· Department of Transport
· Department of Emergency Services
· Office of Women's Policy
· Legal Aid Queensland
· Director of Public Prosecutions
· Office of the Adult Guardian
· Chief Justice
· Chief Judge of the District Court
· Chief Stipendiary Magistrate
· Queensland Council for Civil Liberties
· Queensland Law Society Inc
· Queensland Bar Association
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Act.
Clause 2 states that the Act amends the Anti-Discrimination Act 1991.
Clause 3 inserts a new section 3A which expressly provides for the Act
to have extra-territorial operation so that it will apply to conduct on ships
connected with Queensland, whether or not the conduct occurs within
Queensland territorial waters. The provision makes it clear that it is not
intended to limit the laws of Queensland providing for the application of the
criminal law to offences committed at sea.
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Anti-Discrimination Amendment
Clause 4 inserts a new phrase in the definition section - "public act"
(which is cross-referenced to the new section 4A), and makes minor
technical amendments to the definition of "educational institution" in
response to the repeal of the Training Guarantee (Administration) Act 1990
(Cwlth) which is referred to in the existing definition.
Clause 5 provides a new definition of "public act" for the purposes of the
new racial and religious vilification provisions. The definition makes it
clear that a "public act" will include communication in any form, including
oral, written and semiotic communication by any means.
Clause 6 inserts a new section 15A to expressly prohibit discrimination
in work arrangements where there is no direct contractual relationship
between a principal and a worker performing work for the principal under
an arrangement between that principal and a third party.
Clause 7 is a minor technical amendment necessary because the Fire
Services Act 1990 has been repealed and replaced with the Fire and Rescue
Authority Act 1990.
Clause 8 inserts a new Chapter 4 Part 4 which establishes a new ground
of complaint of racial or religious vilification. The section makes unlawful a
public act which incites hatred towards, serious contempt for or severe
ridicule of a person or group of persons on the ground of the race or religion
of the person or group. Consistent with the interpretation that has been
accorded "incite" in other jurisdictions, the section will not require proof
that anyone was actually incited to be satisfied. The test of whether
incitement has occurred is an objective one based on a hypothetical listener
or viewer. The section contains a range of exceptions which are designed to
strike a balance between the right to freedom of expression and freedom
from racial and religious vilification. If a complaint to the
Anti-Discrimination Commission Queensland discloses a contravention of
the new section 124A, it may be conciliated and enforced under the existing
provisions of the Act.
Clause 9 replaces the existing Chapter 5, Part 2 with a new Part 2 which
creates a new offence of serious racial and religious vilification.
The new section 126 requires the additional element of threatening or
inciting others to threaten physical harm towards a person or group of
persons or the property of the person or group on the ground of race or
religion. Unlike the new section 124A, an element of the offence is that a
person must either knowingly or recklessly incite the hatred towards,
serious contempt for or severe ridicule of the person or group.
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Anti-Discrimination Amendment
The new section 126A ensures that a complaint of racial or religious
vilification to the Commission may be treated either as a complaint under
section 124A and therefore amenable to civil remedies or a complaint under
section 126 with criminal sanctions, or both.
Clause 10 makes a minor technical amendment to section 193(3) by
providing that when a person who has authorised a complaint gives written
notice to the Tribunal that the person does not want to continue with the
complaint, the obligation is on the Tribunal, not the Commissioner, to write
to the respondent as soon as practicable to tell the respondent that the
complaint has lapsed.
Clause 11 inserts new section 226A and 226B which will apply when
there are court proceedings for a breach of a suppression order that the
Tribunal has made pursuant to either section 191 or section 192. These new
provisions will empower a court hearing an action for such a breach to
make similar suppression orders as those originally made by the Tribunal.
The amendments are necessary because the present limitations in the courts'
powers to make such orders mean the re-agitation of the matters (which
were the subject of the original orders) may result in the "suppressed
matter" being published. This would frustrate the objective of the Tribunal
in making the original order. The clause provides that a contravention of the
court orders made under these new sections will constitute a contempt of
court.
© State of Queensland 2000