The tribunal focused on vilification whereas the Supreme Court has in effect said the legislation is about incitement of a third party to hatred of another person or group of persons. The words “vilify” and “vilification” should be removed from the legislation altogether.
A third problem lies with section 11, the so called exception clause, which reads:
A person does not contravene section 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith,
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- (a) in the performance, exhibition or distribution of an artistic work; or
- (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for (i) any genuine academic, artistic, religious or scientific purpose.
From Justice Nettle’s comments on this clause it is apparent that while the seminar might have met a “genuine religious purpose” and been conducted in “good faith”, it is questionable whether it would have met the criteria of being engaged in “reasonably”.
Justice Nettle himself says that an assessment of whether conduct was engaged in reasonably “may not always be easy”. Indeed, what is reasonable to one person may be totally unreasonable to someone else, and to try and judge what is reasonable by “the standards of an open and just multicultural society” as Justice Nettle suggests, will make for a very subjective assessment.
So while the Christian community can be grateful that the appeal was upheld and greater clarity given to the Act, the Act remains deeply troubling and therefore Christians, civil libertarians and all persons of goodwill should be unrelenting in their efforts to gain very substantial modification of this legislation by the Government.
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