Brandis: "People do have a right to be bigots, you know."

[mottrain]

Christ... just keep repeating that it is...

Your turn. How is it a restriction of speech? Who is it restricting?

Who does the RDA restrict in a way that doesn't already exist?

What does the RDA restrict?

The right to make statements without fear of sanction. And lol. At you bitching about others repeating. Pretty sure I have to when you keep avoiding answering.

 

[Floor Pie]

The right to make statements without fear of sanction. And lol. At you bitching about others repeating. Pretty sure I have to when you keep avoiding answering.

I keep answering, and you keep saying "it is!"...


The only thing that the RDA can even get close to admonishing, is when someone deliberately lies, to be racist.

As in they know they are being racist, they know they aren't telling the truth... and they do it anyway.

That's what you are fighting for is it? So racists can intentionally lie, to be racist?

Anyway, they do it, the court finds that they did lie, and they are told to apologise, and asked not to do it again.
They can... nothing is stopping them...
Free speech is still alive and well, even for racist hatemongers. (Or as you like to call them "heroes").

Meanwhile you are against gay marriage, and you want the Burka banned.
And you think homosexuals are mentally deficient, and it's the same mental deficiency that occurs in pedophiles...
You also think Bernardi is great.

 

[mottrain]

I keep answering, and you keep saying "it is!"...


The only thing that the RDA can even get close to admonishing, is when someone deliberately lies, to be racist.

As in they know they are being racist, they know they aren't telling the truth... and they do it anyway.

That's what you are fighting for is it? So racists can intentionally lie, to be racist?

Anyway, they do it, the court finds that they did lie, and they are told to apologise, and asked not to do it again.
They can... nothing is stopping them...
Free speech is still alive and well, even for racist hatemongers. (Or as you like to call them "heroes").

Meanwhile you are against gay marriage, and you want the Burka banned.
And you think homosexuals are mentally deficient, and it's the same mental deficiency that occurs in pedophiles...
You also think Bernardi is great.

No you provide no substance to your answers till now. Then you show it is a restriction of speech. Glad you agree.

 

[Lester Burnham]

No, they dont. Australian Law makes no special rules for biological decent, and does not define Aboriginal as a biological race. One can be 'Aboriginal' at Australian law and utterly lack any biological 'Aboriginality'.

From the Bolt case

1. Brennan J at 243 considered that a biological element was an essential element of membership of a race. Membership of a race could be proved by proof of descent from ancestors who are acknowledged members of the race. Brennan J otherwise identified cultural and sociological factors as indicative of a race.
2. In his later judgment in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 70, Brennan J took an approach reflective of the three-part test which Deane J had described as the “conventional meaning” of an Australian Aboriginal:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

From the stoushes about control of ATSIC resources in Tasmania.

In Shaw v Wolf, Merkel J held that, for the purposes of the ATSIC Act, some degree of descent was necessary but was not of itself a sufficient condition of eligibility to be an “Aboriginal person”: at 118. The judge applied the three-part test and observed that descent, self-identification and communal recognition are interrelated and in order to understand the nature of that relationship, it was necessary to consider the sociological context in which identification as an Aboriginal person occurs in Australia: at 118.

And yet here both you and I are doing just that, and neither you nor I have been dragged of to the courts.

So.. youre wrong.

We are merely discussing generalities. Under the current law we need to be very careful about discussing specific people who claim to be Aboriginal, for fear of being dragged to court in case those people are offended by our questioning.

If our society is going to have special rules for people we designate as 'Aborigine' we should have open and robust processes around those rules.

Of course a much better solution would be to do away with all race based policies so it does not matter how the courts ruled who was Aborigine and who was not.

 

[Malifice]

From the Bolt case

1. Brennan J at 243 considered that a biological element was an essential element of membership of a race. Membership of a race could be proved by proof of descent from ancestors who are acknowledged members of the race. Brennan J otherwise identified cultural and sociological factors as indicative of a race.
2. In his later judgment in Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 70, Brennan J took an approach reflective of the three-part test which Deane J had described as the “conventional meaning” of an Australian Aboriginal:

Membership of the indigenous people depends on biological descent from the indigenous people and on mutual recognition of a particular person’s membership by that person and by the elders or other persons enjoying traditional authority among those people.

Common law fail:

In 1983 the High Court of Australia[131] defined an Aboriginal or Torres Strait Islander as "a person of Aboriginal or Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives".

The ruling was a three-part definition comprising descent, self-identification and community identification. The first part – descent – was genetic descent and unambiguous, but led to cases where a lack of records to prove ancestry excluded some. Self- and community identification were more problematic as they meant that an Indigenous person separated from her or his community due to a family dispute could no longer identify as Aboriginal.

As a result there arose court cases throughout the 1990s where excluded people demanded that their Aboriginality be recognised. In 1995, Justice Drummond ruled "..either genuine self-identification as Aboriginal alone or Aboriginal communal recognition as such by itself may suffice, according to the circumstances." This contributed to an increase of 31% in the number of people identifying as Indigenous Australians in the 1996 census when compared to the 1991 census.[132]

Judge Merkel in 1998 defined Aboriginal descent as technical rather than real – thereby eliminating a genetic requirement. This decision established that anyone can classify him or herself legally as an Aboriginal, provided he or she is accepted as such by his or her community.

http://en.wikipedia.org/wiki/Indigenous_Australians#Definition

Yes, one can be ethnically Japanese, however be adopted by an Aboriginal family at a young age and (as long as there is genuine self identification and acceptance by the Aboriginal community) be Aboriginal.

ABSTUDY isnt tied to genetics. We dont say Aboriginal people are 'biologically' handicapped and thus need more money to study.

The handicap is a socio economic one. Just like 'race' is a social construct itself.

 

[medusala]

ABSTUDY isnt tied to genetics.

Say lets say I am an aboriginal and claim Abstudy, would you have an issue with that?

#spartacus

 

[Lester Burnham]

Common law fail:

http://en.wikipedia.org/wiki/Indigenous_Australians#Definition

You quoted Wikipedia. I quoted a Federal Court judge from a recent real court case.

Yes, one can be ethnically Japanese, however be adopted by an Aboriginal family at a young age and (as long as there is genuine self identification and acceptance by the Aboriginal community) be Aboriginal.

This person adopted by an Aboriginal family fails the three part test because he/she is of Japanese descent not Aborigine.

Like I said, it is fine to discuss this sort of thing in abstract. But under the current law it would be unwise to have a discussion about a specific individual of Japanese descent adopted by an Aboriginal family about whether they were really Aborigine.

 

[Malifice]

You quoted Wikipedia. I quoted a Federal Court judge from a recent real court case.

I know the case mate. I suggest you read it. Merkel J was clear that one does not need biological descent to be 'Aboriginal'.

From the case:

Aboriginality as such is not capable of any single or satisfactory definition … The present case offers a good example of the difficulties thrown up by issues of Aboriginal identification. That some descent may be an essential legal criterion required by the definition in the Act is to be accepted. However in truth, the notion of ‘some’ descent is a technical rather than a real criterion for identity, which after all in this day and age, is accepted as a social, rather than a genetic, construct.

http://www.alrc.gov.au/publications/36-kinship-and-identity/legal-definitions-aboriginality

You will notice the question of adoption was raised in earlier cases and via obiter was rejected. That obiter is no longer good law. Descent does not need to be biological (although such biological descent would certainly help).

If the person geninely self identifies as Aboriginal, and is genuinely accepted as such by the Aboriginal community then that alone can suffice. Establishing descent (via biological descent or otherwise) is icing on the cake.

This person adopted by an Aboriginal family fails the three part test because he/she is of Japanese descent not Aborigine.

No, its quite the opposite. He passes the test because he has descent via adoption, self identification and acceptance by the Aboriginal community. The element of 'descent' does not need to be biological.

The real question is whether the Aboriginal community would accept an ethnically Japanese person as 'Aboriginal' even if he had been raised as Aboriginal by his adopted parents. I dare say many would not. Although that itself is a seperate element of the test, and an altogether different question.

 

[Lester Burnham]

I know the case mate. I suggest you read it. Merkel J was clear that one does not need biological descent to be 'Aboriginal'.

From the case:

http://www.alrc.gov.au/publications/36-kinship-and-identity/legal-definitions-aboriginality

You are misinterpreting what Merkel is saying. Aboriginal descent is a requirement but in some cases it is hard to prove by public record, in which case word of mouth family history of descent is sufficient.

Merkel J held that if a person has no Aboriginal descent then he or she cannot be an Aboriginal person for the purposes of the Act. However, evidence about the process by which self-identification and communal identification occurs can be probative of descent. Merkel J referred to the lack of documentary records and to the reticence of some families of Aboriginal descent to publicly acknowledge that fact due to actual or perceived racism from the rest of the community.

In these circumstances Aboriginal identification often became a matter, at best, of personal or family, rather than public, record. Given the history of the dispossession and disadvantage of the Aboriginal people of Australia, a concealed but nevertheless passed on family oral ‘history’ of descent may in some instances be the only evidence available to establish Aboriginal descent. Accordingly oral histories and evidence as to the process leading to self-identification may, in a particular case, be sufficient evidence not only of descent but also of Aboriginal identity.
​

Bromberg used this interpretation in the Bolt case.

But anyhoo, that is a side issue. In terms of RDA the relevant part of my argument that you have skipped twice now, is that under the current law we should be wary of discussing specific people who claim to be Aboriginal, for fear of being dragged to court because those people might be offended.

​

 

[Malifice]

But anyhoo, that is a side issue. In terms of RDA the relevant part of my argument that you have skipped twice now, is that under the current law we should be wary of discussing specific people who claim to be Aboriginal, for fear of being dragged to court because those people might be offended.

But this is the case with defamation and privacy generally is it not? Avoid discussing specific people etc?

 

[Lester Burnham]

But this is the case with defamation and privacy generally is it not? Avoid discussing specific people etc?

Except we are not talking about defamation and privacy. We are restricting what people can say because someone might get offended.

 

[Malifice]

Except we are not talking about defamation and privacy. We are restricting what people can say because someone might get offended.

Not something I agree with. Also I'm opposed to the UKs laws on racial discrimination which removes the element of intent to offend.

I'm fairly sure the Bolt case clearly made the point that when done for legitimate reasons such discussions are ok.

From memory Bolt only ran afoul of the
Legislation because his article was designed to denigrate and contained factual errors.

Also, one has total freedom of speach in relation to political matters thanks to the constitution (which overrules the RDA)

Criticising ABSTUDY and Native title and who should or should not get either, is fair game.

 

[Lester Burnham]

I'm fairly sure the Bolt case clearly made the point that when done for legitimate reasons such discussions are ok.

From memory Bolt only ran afoul of the
Legislation because his article was designed to denigrate and contained factual errors.

Kinda. The judge ruled that Bolt said things that were untrue, and the tone of his comments indicated that his comments were not an expression of a genuine belief. Hence Section 18d of the RDA did not apply, which says that - Section 18C does not render unlawful anything said or done reasonably and in good faith.

Comments by columnists, bloggers and bigfooty posters are replete with sarcasm, hyperbole and parody. It is a poor law when the outcome of a court case comes down to the particular judge's opinion about the tone of what someone has said.

 

[Malifice]

Kinda. The judge ruled that Bolt said things that were untrue, and the tone of his comments indicated that his comments were not an expression of a genuine belief. Hence Section 18d of the RDA did not apply, which says that - Section 18C does not render unlawful anything said or done reasonably and in good faith.

Comments by columnists, bloggers and bigfooty posters are replete with sarcasm, hyperbole and parody. It is a poor law when the outcome of a court case comes down to the particular judge's opinion about the tone of what someone has said.

Such laws are ticky to get the balance right I grant you.

Its always a tough balancing act between the right to freedom of speech and not unfairly abusing that right to the detriment of the liberty of others.

The common law has been grappling with it for ages.

 

[Chief]

From memory Bolt only ran afoul of the legislation because his article was designed to denigrate and contained factual errors.

Isn't this every Bolt article anyway?

 

[mottrain]

Isn't this every Bolt article anyway?

Negative. Nice Muslim article was posted about a month ago with wonderful facts placed in it. Didn't leave much room to complain about it.

 

[Floor Pie]

Negative. Nice Muslim article was posted about a month ago with wonderful facts placed in it. Didn't leave much room to complain about it.

Ok, so one article?
That's ok, everyone makes mistakes. Even Bolta.

 

[mottrain]

Ok, so one article?
That's ok, everyone makes mistakes. Even Bolta.

There have been others too where he has shown facts. The Ali one was another one.

 

[Floor Pie]

There have been others too where he has shown facts. The Ali one was another one.

Broken clock and all that.

There is only so much bullshit he can peddle, before he accidentally uses facts.
He isn't infallible motty. Leave the poor guy alone!

 

[mottrain]

Broken clock and all that.

There is only so much bullshit he can peddle, before he accidentally uses facts.
He isn't infallible motty. Leave the poor guy alone!

Same could be said about writers like Clementine Ford.

 

[Floor Pie]

Same could be said about writers like Clementine Ford.

HOW DARE YOU INSULT CLEMENETI Don't care..

I didn't even know who she was until a 3 second google just now.

Same could be said about plenty of writers.
But I'm glad you agree Bolta is a lying mouthpiece.

 

[AM]

Jonathon Holmes take on Brandarse's National Security Legislation Amendment Act (No. 1) Labor should also be condemned for passing it.

http://bit.ly/1wtfddJ

 

[Gough]

From the governments newly launched ACORN (Australian Cybercrime Online Reporting Network) describing what can be considered cyber bullying.

Cyber-bullying or stalking occurs when someone engages in offensive, menacing or harassing behaviour through the use of technology. It can happen to people at any age, anytime, and often anonymously.

Examples of cyber-bullying include:

• posting hurtful messages, images or videos online
• repeatedly sending unwanted messages online
• sending abusive texts and emails
• excluding or intimidating others online
• creating fake social networking profiles or websites that are hurtful
• nasty online gossip and chat, and
• any other form of digital communication which is discriminatory, intimidating, intended to cause hurt or make someone fear for their safety.

Just like bullying or stalking offline, not all online behaviour is criminal. There are Australian laws which apply to serious online harassment and online bullying behaviour. Under the Criminal Code Act 1995 (Cth) it is an offence to use the internet, social media or a telephone to menace, harass or cause offence. The maximum penalty for this offence is three years imprisonment or a fine of more than $30,000.

Seems that you have the right to be a bigot IRL but not online. I'm waiting for the outcry about freedom of speech being under threat.

 

[Malifice]

The silence of the Right in this thread is deafening.

medusala Dan26 mottrain

As I have always maintained. The 'conservatives' pass just as many (if not more) laws as the 'progressives'.

Its just who those laws target that changes.

 

[medusala]

The silence of the Right in this thread is deafening.

medusala Dan26 mottrain

FFS, if you cant even grasp the very basics of liberalism why would I even bother to respond?