Wednesday, 20 August 2014

Email to the DPP/ S474.17 Criminal Code



From: fionabrown01@hotmail.com
To: stephen.grodzicki@cdpp.gov.au
Subject: Notice of Motion
Date: Thu, 21 Aug 2014 14:35:21 +1000

Dear Stephen,
I confirm I served a Notice of Motion and affidavit on the DPP today
I also confirm you said this matter was " complex" when we were last in court on the 6th August
so I refer to the further conduct of this matter.....
It is becoming abundantly clear that the proceedings cannot be maintained on the basis of the information before the court.
In addition, before the Magistrate the crown failed to apply the proper Tests as set out in  the decision of Monis V the Queen , Coleman V Power and Brett David Starkey
In addition it appears from a procedural fairness prospective the Crown’s case must fail as none of the witnesses who have executed statements have been able to substantiate the matters that  have been raised in their statements or  to produce  any evidence to underpin the statement of facts  or allegations that they claim. In addition  many of the allegations contained  in the statements are hearsay and totally unsupported and given that none of the  witnesses were allowed  to be called it appears extraordinary that the  court did not summarily dismiss the prosecution,
Accordingly I take this opportunity to  withdraw  the prosecution and consent  to orders quashing the conviction

I await your consideration

Yours Sincerely
Fiona Brown

Wednesday, 13 August 2014

Eatock v Bolt [2011] FCA 1103 S 18 C Racial Discrimination Act


28 September 2011, Justice Bromberg

HUMAN RIGHTS – Part IIA Racial Discrimination Act 1975 (Cth) – offensive conduct based on race – newspaper articles and on-line blog articles – principles for determining imputations conveyed by articles – conventional meaning of ‘Aboriginal’ – whether Part IIA of the Racial Discrimination Act restricted to conduct based on racial hatred – whether articles were reasonably likely to offend, insult, humiliate or intimidate – whose reaction is to be assessed – relevance of community standards – ‘in all the circumstances’ – ‘reasonably likely – ‘offend, insult, humiliate or intimidate’

This proceeding raised for consideration Part IIA of the Racial Discrimination Act 1975 (Cth) (the RDA), including questions as to the balance sought to be struck by Part IIA between justifiable freedom of expression and the right to freedom from racial prejudice and intolerance.

The applicant (Eatock) complained that two newspaper articles written by a well-known journalist Andrew Bolt (Bolt), and published in the Herald Sun by the Herald and Weekly Times (HWT), conveyed racially offensive messages about fair-skinned Aboriginal people. In a class action brought on her own behalf and on behalf of a class identified as people who have a fairer, rather than darker skin, and who by a combination of descent, self-identification and communal recognition are, and are recognised as, Aboriginal persons, Eatock claimed that Bolt’s articles contravened s 18C(1) of the RDA, which relevantly provided:

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Bolt and the HWT denied that the elements of s 18C had been established and claimed that in any event, their conduct was exempted by s 18D of the RDA, which relevantly provided that:

Section 18C does not render unlawful anything said or done reasonably and in good faith:


(b)
in the course of any statement [or] publication…made…for any genuine… purpose in the public interest; or

(c) in making or publishing:

(ii) a fair comment on any event or matter of public interest…

Justice Bromberg determined that each of the elements required by s 18C was established and that the conduct of Bolt and HWT was not exempted from unlawfulness by s 18D. His Honour was therefore satisfied that each of Bolt and HWT had contravened s 18C of the RDA by reason of the writing and publication of the articles. As well as making a declaration of contravention, Justice Bromberg made orders which prohibited the re-publication of the articles and required HWT to publish corrective notices in the newspaper in which the articles had appeared.

In the course of his judgment and in construing s 18C of the RDA, Justice Bromberg held that:

(i) section 18C was not restricted to extreme racist behaviour based upon racial hatred or behaviour calculated to induce racial violence;
(ii) whether conduct is reasonably likely to offend a group of people, is to be analysed from the point of view of the ‘ordinary’ or ‘reasonable’ representative of that group, to whom will be attributed characteristics consistent with what might be expected of a member of a free and tolerant society;
(iii) the phrase ‘reasonably likely’ in s 18C(1)(a) refers to a chance of an event occurring or not occurring which is real, and not fanciful or remote; and
(iv) the phrase ‘offend, insult, humiliate or intimidate’ in s 18C(1)(a) does not extend to personal hurt which is unaccompanied by a public mischief of a kind that the RDA seeks to avoid and refers to conduct that has profound and serious effects.

Justice Bromberg held that Australian Aboriginal people are a race and have a common ethnic origin within the meaning of s 18C(1)(b) and that a person of mixed heritage but with some Aboriginal descent, who identifies as an Aboriginal person and has communal recognition as such, satisfies what is conventionally understood to be an Australian Aboriginal.

His Honour held that from the perspective of fair-skinned Aboriginal people, the articles contained imputations that:

  • there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and
  • fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.

Justice Bromberg was satisfied that fair-skinned Aboriginal people (or some of them) were reasonably likely, in all the circumstances, to have been offended, insulted, humiliated or intimidated by the imputations conveyed by the articles. Further, Justice Bromberg was satisfied that the causal nexus required by s 18C was satisfied because the articles were calculated to convey a message about the race, ethnicity or colour of fair-skinned Aboriginal people, including as to whether those people were sufficiently of Aboriginal race, colour or ethnicity to be identifying as Aboriginal people.

In relation to the construction of s 18D of the RDA, Justice Bromberg held:

(i) the onus of proof under s 18D falls on a respondent; and
(ii) that an assessment of whether conduct is done ‘reasonably and in good faith’ within the meaning of s 18D, involves a consideration of both objective and subjective good faith. Objective good faith will be assessed by reference to the values underlying Part IIA.

Justice Bromberg concluded that the articles were not written ‘reasonably and in good faith’, as required by s 18D of the RDA. The inclusion of untruthful facts, the use of inflammatory and provocative language and the failure to minimise the potential harm to those likely to be offended denied to Bolt and the HWT, both the ‘fair comment’ exemption provided by s 18D(c)(ii) and the genuine purpose exemption provided by s 18D(b) of the RDA.

Saturday, 28 June 2014


RACIAL DISCRIMINATION ACT 1975 - SECT 18C/ Magistrate Lisa Stapleton / Offensive words

So who makes the decision that  it is offensive in the first place. It's time people toughened up.
It is particularly disturbing that the shonky NSW Magistrate  Lisa Stapleton  also  believes words can be taken out of context. Clearly this incompetent NSW magistrate is out of touch with community standards.
Offensive behaviour because of race, colour or national or ethnic origin
             (1)  It is unlawful for a person to do an act, otherwise than in private, if:
                     (a)  the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
                     (b)  the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Note:          Subsection (1) makes certain acts unlawful. Section 46P of the Australian Human Rights Commission Act 1986 allows people to make complaints to the Australian Human Rights Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.
             (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:
                     (a)  causes words, sounds, images or writing to be communicated to the public; or
                     (b)  is done in a public place; or
                     (c)  is done in the sight or hearing of people who are in a public place.
             (3)  In this section:
"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Friday, 27 June 2014

Senator calls for Royal Commission into financial planning industry
Clearly there is a problem with ASIC and its complaints register.
With AFSA previously called ITSA 90 % of complaints made about shonky Trustee are fucked over because Matthew Osborne , Principal Legal officer is advising regulation that a trustee has the discretion to fuck over and breach the Bankruptcy Act.
This allows AFSA to protect shonky trustee like Paul Pattison. After an FOI, AFSA admitted they had only received a small number of complaints about Pattison. The fact actually is AFSA received over 40 complaints about Pattison and still failed to act. AFSA also misled Senator John Williams on this.
As with the shonky Financial Adviser Peter Holt ASIC failed to act on numerous complaints made against him. This would have been because of the shonks working in the ASIC Legal department fucking over ASIC obligations
Bob Katter's daughter previously worked in ASIC's Legal Department in Sydney.
Australian Broadcasting Corporation
Broadcast: 26/06/2014
Reporter: Sarah Ferguson
Misconduct by financial advisers detailed in a Senate committee report questions the credibility of the Commonwealth Bank and financial regulator ASIC to such a degree that a Royal Commission into the industry is needed, according to Senator Mark Bishop.

Transcript

SARAH FERGUSON, PRESENTER: Allegations of fraud, forgery and a cover-up have emerged from a Senate inquiry into the financial regulator and Commonwealth Bank.

The Senate report has slammed ASIC's handling of rogue financial planners at the Commonwealth Bank and is calling for a Royal commission.

The bank is accused of encouraging a culture where advisors were rewarded with big commissions for talking clients into risky products, and when clients lost money, the wrongdoing was covered up and compensation was minimal.

The Senate Economics Committee has described the corporate watchdog as timid and hesitant in its handling of the case.

Retiring Labor senator Mark Bishop, who chaired the committee, joins me now live from Canberra.

Mark Bishop, welcome to 7.30.

MARK BISHOP, RETIRING LABOR SENATOR: Thank you and good evening.

SARAH FERGUSON: Now, you're calling for a Royal commission into the Commonwealth Bank and ASIC. Just starting with the bank, what have they done to warrant that call?

MARK BISHOP: What they've done is that they have not done enough. They haven't opened up their books. They haven't disclosed the full extent - the full number of clients who have been affected. They haven't paid adequate compensation to those who haven't been offered compensation. And more importantly, we're still unaware, after six months, as to the real extent of the damage. It's time to open up the books.

SARAH FERGUSON: Alright. Well tell me what you think the real extents of the damage is. What sort of number of victims of this dodgy financial planning are we talking about?

MARK BISHOP: We know the Commonwealth Bank's arm had 300,000 clients over a period of years. We know that 400 or a few more have received some form of compensation. We know that at least 7,000 files are considered to be suspect. Somewhere between 400 and that 7,000, possibly up into the tens of thousands of persons have suffered real harm, haven't received adequate compensation and deserve to have their files reconstructed and re-examined in a transparent, open, accountable manner.

SARAH FERGUSON: Now, the Commonwealth Bank tonight is saying that they've apologised for the mistakes of the planners that were identified by your committee and that they now have robust procedures in place to stop that sort of dodgy planning advice coming again. Do you accept that?

MARK BISHOP: I accept that they have put in place some remediation, that they have paid $50 or $60 million to some clients. We still don't know how many clients are affected. There hasn't been a full independent examination of their books and we do know that those clients who retained reputable law firms to act on their behalf received significantly higher compensation payments than those who used the services offered by the Commonwealth Bank. Yes, they've made some changes, but nowhere near enough.

SARAH FERGUSON: So you're saying that the Commonwealth Bank is still covering up the extent of the number of victims and the extent of their suffering?

MARK BISHOP: I'm saying that the Commonwealth Bank needs to release the full number of clients, the number of clients who have lost serious amounts of money, the reasons for those losses and offer compensation via a reputable accounting firm or a reputable legal firm to end this nightmare that thousands and thousands of individuals and families are going through.

SARAH FERGUSON: Now, what did the Commonwealth Bank do when it realised that it had these planners offering very high-risk advice? Did it move quickly to shut them down?

MARK BISHOP: No, no, it didn't. It acted inordinately slowly. Those financial planners had thousands of clients, they were reaping in millions of dollars of fees, a large share of that went up the bank chain in terms of profit and was returned to shareholders. It was only after extensive, repeated and extensive demands for inquiry and report and repair did the Commonwealth Bank put into place some mechanisms for change.

SARAH FERGUSON: So are you saying the Commonwealth Bank kept those financial planners in place knowing what they were doing?

MARK BISHOP: A number were let go - were removed after some years. A large number of those financial planners still remain in the bank and some indeed have been promoted.

SARAH FERGUSON: Now your report also looks at the behaviour of ASIC and they're part of your call for a Royal commission. How quickly did ASIC respond to the whistleblowers who came to them reporting that they were suffering at the hands of these financial planners?

MARK BISHOP: If I have been critical of the Commonwealth Bank, I'm equally critical - the report is equally critical of ASIC. It has been slow, it has been unresponsive, it hasn't taken reports seriously, it hasn't pursued investigations properly, agreements that have been reached haven't been enforced properly. Its tale is a tale of woe and clients and people in the wider community have continued to suffer because of their inordinately unresponsive and slow reaction.

SARAH FERGUSON: And they're about to have a fairly large budget cut, ASIC. Is the situation going to get worse for them?

MARK BISHOP: As this industry grows, as it goes into a trillion-dollar industry, as more firms emerge and lobby and gain business, we need to have a strong, effective, feared regulator. That's going to mean that Government in due course is going to have to allocate further funds, by whatever means, so that ASIC can do the job that's needed to be done on behalf of millions of Australians.

SARAH FERGUSON: Mark Bishop, thank you very much indeed for joining us.

MARK BISHOP: Thank you very much.

Monday, 17 February 2014

Human Rights Commissioner/ Freedom of speech
Transcript
EMMA ALBERICI, PRESENTER: When Australia's new Human Rights Commissioner Tim Wilson takes up his post tomorrow as the second most senior member of the Australian Human Rights Commission, it could either be the dawn of a new era in individual freedom or the erosion of hard-fought anti-discrimination laws protecting women, gays, the disabled and Aboriginal Australians among others. Views are definitely divided on Mr Wilson's appointment. He's here with me in the studio, but first, this report from Margot O'Neill.

MARGOT O'NEILL, REPORTER: The newest Human Rights Commissioner, Tim Wilson, is unlike most others who've come before him. A former media commentator specialising in trade and climate change for the free market think tank the Institute of Public Affairs, he has no conventional professional human rights experience.

TIM WILSON, INSTITUTE OF PUBLIC AFFAIRS (On ABC's The Drum): Is it actually going to be effective policy? I mean, if your objective is to introduce this clean energy future ...

MARGOT O'NEILL: But perhaps most unusually of all, the newest Human Rights Commissioner isn't sure that protection from discrimination even qualifies as a human right. In fact he questions the value of laws promoting equality.

TIM WILSON (Nov. 12, 2011): We all believe in a fairer society, but define fair. It's a grab-bag of things based on what you think matters at any given time. You look at the world as though it's a dashboard of dials that can be tweaked to come up with the perfect equilibrium. It's crap.

MARGOT O'NEILL: Anti-discrimination is core work for the Human Rights Commission and many human rights advocates are upset with Tim Wilson's appointment.

BEN SAUL, UNIVERSITY OF SYDNEY: I think the process for his appointment was not fair or open or transparent. ... You can't just have opinions about human rights, in the same way that I wouldn't be appointed Chief Medical Officer of the Commonwealth just because I've got opinions about hospitals.

MARGOT O'NEILL: Attorney-General Senator George Brandis, who appointed Tim Wilson, has been critical of the Human Rights Commission and its advocates for focusing too narrowly on anti-discrimination rather than traditional human rights like freedom of speech.

For instance, Senator Brandis wants to amend the Racial Discrimination Act, which presently outlaws some speech that may offend, insult, humiliate or intimidate.

Just where the line should be drawn on free speech is a hot issue.

BEN SAUL: There are many groups in Australia who are arguing to retain the existing law and relatively few people who are arguing for its abolition. I mean, yes, Andrew Bolt, Tim Wilson, George Brandis, but there isn't - there really isn't a groundswell of support in society for its abolition. ... It's really, I think, the most vulnerable in our community that we should be looking after the most.

MARGOT O'NEILL: Tim Wilson is an openly gay man who says he abhors discrimination. But he believes freedom of speech is an indivisible right, even when it's offensive or intimidating. He says an active citizenry and the free market are better protection of individual rights than legislation.

So if an Aboriginal man is refused service in a rural pub, Tim Wilson believes publicly naming and shaming the publican and boycotting the hotel is more effective than anti-discrimination laws.

HUGH DE KRETSER, HUMAN RIGHTS LAW CENTRE: Well the logic isn't supported by human rights law and nor is it supported by common sense. So, typically the people experiencing prejudice and discrimination lack the ability to effectively advance their interests in public debate.

MARGOT O'NEILL: Human rights advocates say there's some common ground with the new commissioner, such as opposing Queensland's anti-biker laws and supporting gay marriage. But if freedom from government interference is really Tim Wilson's guiding principle, they say he faces some tough policy questions.

Margot O'Neill, Lateline.


EMMA ALBERICI, PRESENTER: The new Human Rights Commissioner Tim Wilson is with us now in the studio.

Congratulations on your new role.

TIM WILSON, INCOMING HUMAN RIGHTS COMMISSIONER: Thank you. Subtlety is never my strong point, as that video shows.

EMMA ALBERICI: So don't hold back now.

TIM WILSON: (Laughs)

EMMA ALBERICI: Do the other commissioners have any reason to fear your appointment, given that 12 months ago the IPA was actually calling for the abolition of the Human Rights Commission?

TIM WILSON: Well the Institute of Public Affairs and some staff who worked there did call for the abolition of the Human Rights Commission ...

EMMA ALBERICI: You were policy director there ...

TIM WILSON: I was a policy director, but let's make it crystal clear I never said that at all. In fact I had criticisms of the commission and most of it was around it not focusing enough on traditional civil and political rights and human rights and I've outlined that in the past and in many ways, I guess, my appointment is the solution to some of the problems that I've identified. But by accepting this appointment I've also made it clear that I think there is opportunity to work with the commission and I've been really impressed and encouraged by the feedback and support I've received from the commission already, but they realise there are a lot of areas where there's common ground between them and I and there are opportunities to really inject fresh ideas and debates around human rights.

EMMA ALBERICI: Well you've spoken about bringing a new focus to the commission. What exactly is it that you want to achieve there?

TIM WILSON: Well I want to really drive through the commission and work successfully with the commission to drive a culture of rights and responsibilities in Australia. As you know, we don't have anything like a Bill of Rights or even necessarily some of the traditional human rights acts that exist for instance in parts - in Britain. And I think the only thing that's really going to make sure that human rights are at the centre of public life and at the foundations of our society is if we have an active citizenry that stands up - understands what their human rights are, stands up for them and defends them against government when they come and try and attack them.

EMMA ALBERICI: Well let's talk about some specifics to gauge your position on various human rights issues. First, racial discrimination. How do you best protect a person who, because of the colour of their skin, has been refused a job, a room at a hotel or service in a pub?

TIM WILSON: Well there are multiple ways of looking at human rights from the outset. I come from a classical liberal tradition. It isn't the only way to approach them. Some people approach it from a much more legalistic perspective.

EMMA ALBERICI: We want to know about your perspective.

TIM WILSON: Sure, yeah, but I think it's important for people to understand there are different perspectives and that by their nature human rights are a political construct and that there are differences of opinion. Some people look at it from a social justice perspective, which is about how to drive equality. From a classical liberal perspective I believe very strongly that the role of human rights is to protect individuals from the encroachment and abuse of power by government. And so when you have a situation like discrimination - and I abhor discrimination and I know the package at the start made that clear - there are different ways. If you take the legalistic approach, as we do now, which is to basically just try and make it illegal, but if you take it from a classical liberal perspective ...

EMMA ALBERICI: Well, can we just talk about - just so that we can really understand your position here, ...

TIM WILSON: Sure.

EMMA ALBERICI: ... in this particular circumstance, how do you protect the individual? Because at the moment, the law intervenes to say that a person can't be discriminated against on the basis of the colour of their skin when it comes to applying for a job or service in a pub or being granted a hotel room.

TIM WILSON: Well you're giving too much deference to the law because the law does do that when it's invoked, but it doesn't mean that people don't go about discriminating and hiding it in different ways and that's partly because the incentive under these sorts of laws if people want to discriminate against somebody on the basis of their skin is they find some other reason to do it and they keep their prejudice to themselves. What I'd rather have is to - is to have people be open about their prejudice, so that people can shine a bright light into dark corners and to expose people for their discrimination, their prejudice and why it exists and also for it to be challenged, because when you look at people who have prejudice deep in their heart, if you tell them they can't exercise that, all they do is go off into the corner and maintain their prejudice in their heart, rather than interacting, learning and growing and having it challenged by people who outline why it's so foolhardy.

EMMA ALBERICI: How does someone who's marginalised, poor, vulnerable, perhaps doesn't speak the language, isn't educated, doesn't have the money, how does that person fight back? Isn't that an abuse of power, because the person has - there's an imbalance in that power relationship if they're an employer, for instance, a large employer?

TIM WILSON: Well it depends on who the discriminator is. If it's government, it's a very different situation than if it's a private individual. Governments should never discriminate on (inaudible) and in fact I think it should be made illegal quite clearly. There's a very big difference when private citizens do that, because coming from a human rights approach, the very nature of, for instance, rights of free association is discrimination, that people can make a decision about who they want to associate or not associate with as they see fit. How do people in weak positions do this? This is why I talk about the importance of having an active citizenry, so it isn't just about one individual saying, "I have been discriminated against," and everybody moving onto the side. People have to see prejudice within society and challenge it directly and we all have a responsibility with that.

And I'll just give a classic example from personal experience. A few years ago I was in a pub in Melbourne - so we're not even talking about remote communities - with two woman who were obviously in a loving relationship, were being intimate, but not in a way which would have unreasonably offended anybody in the room, and yet the publican who was responsible for the bar asked them to leave. And on my personal effort, initiative, I guess, I stood up and said, "No, I'm sorry; there is no grounds to do this," and least of all because there are other people who are heterosexual couples doing exactly the same thing over there, over there, over there and eventually saw the manager and addressed it. But it takes, sometimes, people to stand up, because even in that situation, sadly, the individuals concerned were more prepared to accept the discrimination rather than challenge it.

EMMA ALBERICI: Well precisely and there's not always going to be a Tim Wilson sitting in the corner helping them out.

TIM WILSON: (Laughs) Well - and that's true and that's why I want to change and drive a culture of rights and responsibilities so that people know that they can do it and they can stand up for their rights as individuals and that other people will also support them. It's not going to be an easy solution. These things are complicated. But if you respect traditional human rights, you want to preserve and protect them and defend them, you have to recognise that there's tension between objectives around anti-discrimination and traditional human rights. And what I don't want to see is what we saw last year where there was an omnibus bill put before the Parliament where basically human rights were completely dismissed around freedom of association, freedom of speech, purely to promote anti-discrimination objectives.

EMMA ALBERICI: But that's - and we'll speak about freedom of speech in a moment.

TIM WILSON: Sure.

EMMA ALBERICI: But specifically, doesn't legislation need to extend a hand to minorities to people who aren't empowered in the way someone like you who is educated and understands rights and responsibilities is?

TIM WILSON: Well, there's a difference between sort of a philosophical approach and pragmatic. I understand why we've gone down the pragmatic approach. But I guess I would say that it's better for those legislation to focus on limiting the power of government and the abuse of power of government and helping other people - citizens taking an active role in helping other people, because it's not just about one individual, it's about a whole societal approach and a culture of rights and responsibilities and making sure that people stand up for other people as well as themselves.

EMMA ALBERICI: Now you recently told a Senate committee that your own partner, who's a school teacher, resigned from the Catholic education system because as a gay man he didn't see any opportunity for career advancement. Now you've defended the rights of the Catholic education system to discriminate against someone on the basis of their sexual orientation.

TIM WILSON: Well, I - both my partner and I have defended the right of the Catholic Church to have an education system where they decide that they think only people who can work for them want to uphold their version of moral values. I disagree with their approach. I think they end up selling out the future of their children as well as making sure they don't get the most talented staff. But if you believe in human rights and you understand the principles of why they're important and preserving the integrity of the individual and their rights to go out living their lives, including when they operate collectively as religious faiths do, you have to be consistent. You can't just pick and choose when suddenly things decide to work for your interests or otherwise. But I know that my partner's very hopeful that the Catholic Church will change its views particularly in relation to teachers and that that will give him an opportunity to go and work in the system in the future.

EMMA ALBERICI: But your view presupposes a level playing field, where in fact it becomes survival of the fittest, doesn't it?

TIM WILSON: No, no at all. And I don't think it presupposes a level playing field at all, nor does it presuppose the outcome you have identified. What it says is we all start from different positions in life and I'm under no illusion about that. But surely our focus must be: how do we unleash the maximum potential of individuals? And how do we create a societal framework and have government create a societal framework to unleash the maximum potential? And I believe that's through a culture of rights and responsibilities where people feel confident to stand up and defend themselves as appropriate and to make sure that the role of government doesn't encroach too much. And yes, there'll be conflicts, yes, there'll be differences of opinion. It doesn't mean we're all going to have this perfect solution where everybody feels loved all of the time. But it's about: how do we govern society from the individual up, rather than from politicians and bureaucrats down?

EMMA ALBERICI: Should the Federal Government have a right to deny you and your partner the right to marry, as it currently does?

TIM WILSON: Well this is a very interesting question, because as I've already said, I don't think governments should discriminate, and in fact that that's where most of the focus around anti-discrimination efforts should be going to and I think there is a very serious equality-before-the-law proposition in front of us.

EMMA ALBERICI: But can I just get you to clarify that? Does that mean they should be able to discriminate in a private school, for instance, but not in a government school?

TIM WILSON: Yes, that's exactly what I mean. I think private schools and private institutions that are established and operate independently have a right to go about their organisation as they see fit and they do that ...

EMMA ALBERICI: So is the Federal Government - sorry. Is the Federal Government discriminating then on its - in its attitudes to same-sex marriage?

TIM WILSON: Well that's precisely what I'm saying. I think there's a very good argument that you can say there is not an equality-before-the-law proposition. But remember that issues around marriage for same-sex couples are fused very much with religious views and this is part of the tension. We've actually taken essentially a private religious institution of marriage and the public civil institution of marriage and in one sense married the two of them into one institution. This is why in the past I've argued that what we should do is actually separate them out again and have some form of civil union which is open to pretty much any couple, but ...

EMMA ALBERICI: But if I could just get - that's all hypothetical. But as the law currently stands, I just want to pin you on this matter, particularly: is it discriminatory, in your view?

TIM WILSON: As I've already answered, I do think it's discriminatory and I think that there are - I that's why there's increasing questions being raised by Australians about whether it should continue going forward. But I'm not saying that just simply changing two words in the act is the first world-best solution. What I think is a more human rights-based solution is to get government out of marriage, hand it back to religious faith if they want to have a religious institution, then have a civil tradition which is different. That's a first world-best solution. The second best is to just change the current act as it is and maintain that fusion.

EMMA ALBERICI: Let's talk about free speech because your view is that free speech should be pretty much absolute. Would you put any caveats on it?

TIM WILSON: Of course I would put caveats on it. It's when free speech runs into conflict with other human rights. And so what I've already outlined previously is when free speech comes into conflict with people's physical property and owning of themselves, there is a justification to limit free speech.

EMMA ALBERICI: Can you give us an example?

TIM WILSON: Well when people directly incite violence against another person, that is clearly an example where speech goes too far. I think sometimes intimidating people to the extent and particularly with relation to harassment, which most people refer to as bullying, can be an example of that. Similarly I think defamation law - very constrained - I think it's too broad at the moment, but very constrained where you're basically undermining people's right to earn reputation, which has sort of formed its own property right and their opportunity to make a future for themselves, are legitimate restraints, but things like "offend, insult and humiliate" I don't think in any way are legitimate justifications.

EMMA ALBERICI: OK. Well this is the Attorney-General's view. He wants to abolish Section 18C of the ...

TIM WILSON: Well he's actually said he's going to - looking to change it.

EMMA ALBERICI: Changing it.

TIM WILSON: I want full repeal.

EMMA ALBERICI: Pardon?

TIM WILSON: He's keeping his options open.

EMMA ALBERICI: And as you say, as it currently states, it forbids speech that may, "offend, insult, humiliate or intimidate". So you're saying: what's wrong with the status quo at the moment? Is that someone should be able to do all of those things as long as no-one comes to physical harm?

TIM WILSON: Well there should be a difference between where the law sits and where acceptable conduct sits, least because there has to be a gap so that people can challenge ideas and personal morality and what acceptable conduct is. And what Section 18C does at the moment is say, "This is where acceptable conduct is, so this is where the law should the sit." I think they should separate themselves. In no way - and let me make this clear: in no way do I think people should be going around and racially vilifying people or anything else. But people have a right to free speech and to exercise their expressions and their thoughts because we need that to have a robust discussion in a free society and Section 18C at the moment doesn't achieve that.

EMMA ALBERICI: Edward Snowden: hero or traitor?

TIM WILSON: Well I think there are different parts to Edward Snowden. If you look at him as just one man and all of his conduct in one pot, I think it's very hard to make an assessment of him. I think when he was talking about things like the spying of the National Security Agency in the United States on average citizens, clearly the Government had completely stepped out of line and there was a need to draw attention to that and to whistleblow on the conduct of the Government. But when you get involved in taking documents which undermine national security and then essentially wholesale dump them onto other agencies and newspapers and whatnot for them to do what they reasonably want to do fit, I think that's a different proposition. So I think on some terms, he probably is a hero, and I think on other things, he's not so much of a hero.

EMMA ALBERICI: And very quickly 'cause we're running out of time, on freedom of the press: is that principle being challenged by the Prime Minister's view that the ABC should be a cheerleader for the country and for its government?

TIM WILSON: Well, freedom of speech and freedom of the press are essentially interchangeable concepts. And I don't think it's coming under attack. The Prime Minister has exercised his view. He's welcome to his view. If you disagree with him, you're welcome to exercise the alternate view. But, there is a challenge with the ABC because it's a very large public sector institution which is making it increasingly hard for private media outlets to operate and for there to be a diversity in public debate. That's a secondary issue - or a different issue from the one you've just asked, but that is also part of the free speech debate we need to have as well.

EMMA ALBERICI: We are out of time. Tim Wilson, thanks very much for coming in.

TIM WILSON: A pleasure. Thank you.


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