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Mugwump
Joined: 28 Jul 2007 Location: Between London and Melbourne
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The trouble is not with the decision, which is arguably (only arguably) justified by the law as drafted : the problem is with the law itself. The intent was to prevent incitement to violence and gross humiliation of a racial or ethnic group, and all of us would support that. It was not drafted tightly enough so it can now be exploited to prevent free speech and debate on serious public policy issues. So go the liberties of a society that no longer understands the source of its freedoms. _________________ Two more flags before I die! |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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The decision is likely to be correct as a matter of law. Ch 9 was seeking to have the complaint dismissed without a hearing on the merits. In our legal system, that happens only to cases that are, to put it colloquially, so unsalvageably hopeless that there is no serious prospect of them succeeding at trial because, as a matter of law, the facts that are alleged do not support a claim of the specific legal kind that has been made (ie, even if all the facts you allege are true and the evidence goes entirely your way at trial, it is not possible for you to win). That is not this case. One should, however, try to distinguish between the very low bar that is set in a claimants way when it comes to deciding whether or not they should have their day in court and the much higher bar that is applied when deciding whether or not a case should succeed.
The decision is on austlii. It is Ekermawi v Nine Network [2018] NSWCATAD 112. It concerns the possible application of particular parts of a NSW anti-discrimination law to the facts of that case. You can read it if you want but its reasonably uninteresting in the scheme of these things. The statement of the applicable principles in paragraphs 5 to 8 of the decision is very familiar - and about what youd expect to read in any such decision in the common law world. |
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David
I dare you to try
Joined: 27 Jul 2003 Location: Andromeda
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This has nothing to do with criticism of Islam. _________________ All watched over by machines of loving grace |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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Now I'm near a laptop, rather than wrestling with a mobile 'phone, here's the link to the reasons for decision:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATAD/2018/112.html
The key bit (with the references edited out so non-lawyers may, just possibly, find it less impenetrable than it otherwise might be) is:
"5.The Tribunal has power to dismiss a complaint before a final hearing if the complaint is frivolous, vexatious, misconceived or lacking in substance or if the Tribunal is satisfied that for any other reason no further action should be taken"....
6.As a general proposition, a complaint should not be summarily dismissed except in the clearest of cases .... The respondents have the onus of establishing that the proceeding should be dismissed without a hearing. Any facts which [the plaintiff/complainant, in whatever the particular case is,] asserts, must be accepted for the purpose of the summary dismissal application...
7.The words frivolous, vexatious, misconceived or lacking in substance have been held to refer to the insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all"....
8.In [a widely-quoted Victorian Supreme Court appeal decision, a judge] stated that the term misconceived is commonly used by lawyers to mean a misunderstanding of legal principle and the term lacking in substance to mean an untenable proposition of law or fact. ..."
The decision made was, in short, that the case brought by the complainant was not so obviously and legally hopeless that it should be cut off at the knees without going to "trial". It wasn't that the complainant is correct, merely that it is possible that, on the facts alleged, the complaint might succeed, so that the matter should be allowed to go (in the ordinary way) to final hearing. |
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thesoretoothsayer
Joined: 26 Apr 2017
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I personally see no cultural or national bond between a blue-eyed Bosnian computer programmer and a Sudanese goat herder.
This phrase is as spurious as saying "ethnic Catholic" or "ethnic Scientologist". |
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Mugwump
Joined: 28 Jul 2007 Location: Between London and Melbourne
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thesoretoothsayer wrote: |
I personally see no cultural or national bond between a blue-eyed Bosnian computer programmer and a Sudanese goat herder.
This phrase is as spurious as saying "ethnic Catholic" or "ethnic Scientologist". |
Youre right, and its a strange phrase, but discriminating against Muslims indirectly tends to discriminate against certain nationalities and ethnicities more than others, and indirect discrimination is rightly prohibited by law.
Its a difficult issue. My problems with the present discrimination law, inter alia. are firstly, that it should in no way apply to immigration policy, since the people affected are primarily outside our jurisdiction (family reunions are an issue, but they could be dealt with by a specific clause exempting them from either the discrimination act itself, or for any ban, depending on your wishes) ; and secondly, that the concept of contempt is way too broad and a threat to free speech. In the Andrew Bolt case, questioning someones aboriginality was considered to be contempt. Thus a law that was designed to deal with abominations like making Jews scrub footpaths becomes a threat to robust public discourse. _________________ Two more flags before I die! |
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HAL
Please don't shout at me - I can't help it.
Joined: 17 Mar 2003
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That was a long time ago. |
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stui magpie
Prepare for the worst, hope for the best.
Joined: 03 May 2005 Location: In flagrante delicto
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Pies4shaw wrote: | Now I'm near a laptop, rather than wrestling with a mobile 'phone, here's the link to the reasons for decision:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATAD/2018/112.html
The key bit (with the references edited out so non-lawyers may, just possibly, find it less impenetrable than it otherwise might be) is:
"5.The Tribunal has power to dismiss a complaint before a final hearing if the complaint is frivolous, vexatious, misconceived or lacking in substance or if the Tribunal is satisfied that for any other reason no further action should be taken"....
6.As a general proposition, a complaint should not be summarily dismissed except in the clearest of cases .... The respondents have the onus of establishing that the proceeding should be dismissed without a hearing. Any facts which [the plaintiff/complainant, in whatever the particular case is,] asserts, must be accepted for the purpose of the summary dismissal application...
7.The words frivolous, vexatious, misconceived or lacking in substance have been held to refer to the insufficiency or to the absence of merit or factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all"....
8.In [a widely-quoted Victorian Supreme Court appeal decision, a judge] stated that the term misconceived is commonly used by lawyers to mean a misunderstanding of legal principle and the term lacking in substance to mean an untenable proposition of law or fact. ..."
The decision made was, in short, that the case brought by the complainant was not so obviously and legally hopeless that it should be cut off at the knees without going to "trial". It wasn't that the complainant is correct, merely that it is possible that, on the facts alleged, the complaint might succeed, so that the matter should be allowed to go (in the ordinary way) to final hearing. |
In other words, because the complaint is not clearly absolute bullshit, it should be heard so that a judge can determine the case. As you said, doesn't mean the case will be successful, just that there's no grounds for throwing it out before being heard. _________________ Every dead body on Mt Everest was once a highly motivated person, so maybe just calm the **** down. |
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Skids
Quitting drinking will be one of the best choices you make in your life.
Joined: 11 Sep 2007 Location: Joined 3/6/02 . Member #175
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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Belgium 5, Tunisia 2. |
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think positive
Side By Side
Joined: 30 Jun 2005 Location: somewhere
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Soccer score? _________________ You cant fix stupid, turns out you cant quarantine it either! |
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watt price tully
Joined: 15 May 2007
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Pies4shaw wrote: | Belgium 5, Tunisia 2. |
Very droll.
Five two what? _________________ âI even went as far as becoming a Southern Baptist until I realised they didnât keep âem under long enoughâ Kinky Friedman |
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Pies4shaw
pies4shaw
Joined: 08 Oct 2007
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... 1, baby, 1 in 5, no one here gets out alive.... |
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Nick - Pie Man
Joined: 04 Aug 2010
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They're having a pretty quiet year so far. Muslim terrorism is so passe .. |
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Wokko
Come and take it.
Joined: 04 Oct 2005
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