Getting into the Act

Why and How the Victorian Racial and Religious Vilification Act Should be Changed

September 2005

By Mark Durie

In 2001 the Victorian Government brought in the Racial and Religious Tolerance Act.

This Act comprises three distinct sections. The first part relates to acts of what is called racial or religious vilification. It defines a civil offence of inciting certain sentiments about another person, or class of persons, on the basis of their race or their religious beliefs or activities. The sentiments which it is illegal to incite are hatred, serious contempt, revulsion or severe ridicule. Certain exceptions are allowed by the Act, which allow incitement provided that the exercise of certain freedoms of speech is involved, such as artistic freedom, and the freedom to comment on political matters.

Another part of the Act is designed to protect the rights of those making complaints. It also defines ‘vicarious liability’ provisions by which an employer can be found guilty if an employee breaches the Act: for example a if a minister breaches the civil provisions, then their denominational head would also be guilty by virtue of this fact.

A third part of the Act defines certain criminal offenses, which include incitement intended to lead to violence against another person.

This legislation is incorporated into Victoria’s Equal Opportunity framework.

Recently there have been some high profile cases invoking the civil religious provisions of the Act. Four cases which have attracted a lot of attention have been:

* a successful complaint by the Islamic Council of Victoria against the Christian revivalist prayer ministry, Catch the Fire and Pastor Daniel Scot;

* an unsuccessful complaint by a convicted pedophile witch, Robin Fletcher against the Alpha Course, the Salvation Army and Corrections Victoria;

* an out-of-court settlement of a complaint by transgender witch Olivia Watts against the Christian mayor of Casey Rob Wilson; and

* a complaint which is still pending by the notorious occult group Ordo Templi Orientis against a Christian child psychologist Reina Michaelson, who specializes in assisting victims of ritual abuse.

Commentary on this Act has divided religious communities. Muslims have supported and opposed it, as have Christians. The only really controversial part of the Act are the Civil provisions, which allow any person to make a complaint, initially through the Equal Opportunity Commission, if they believe themselves to have been vilified. After attempted conciliation, the case is referred to the Victorian Civil and Administrative Tribunal, where a second round of conciliation may be attempted. Finally, the case can be taken to the Tribunal for a decision. After this, legal appeals can go to the Supreme Court, as is the case with the Islamic Council’s case against Catch the Fire.

Many are suggesting that the Victorian Racial and Religious Tolerance Act is flawed and in need of revision or removal. The Act is certainly difficult to understand and apply — according to Judge Michael Higgins who presided over the Catch the Fire case — so it is helpful to focus on what appear to be the main problems with the Act.

Some have suggested that under the terms of the RRTA respondents are innocent until proven guilty, that the onus is on the respondent to prove their innocence. This is only partly true. Under the terms of the Act, the onus is on the complainant to prove the primary issue of incitement, but the onus is on the respondent to prove the secondary issue of the exceptions. This can make things complicated, as the Islamic Council of Victoria vs. Catch the Fire case showed, where Judge Higgins allowed double submissions after evidence had been heard: one from the complainant laying out the incitement case, then the respondents’ submission which included their exceptions case, then a response from the complainant, and a final submission from the respondents. However despite this double-onus feature of the Act, I believe there are more significant issues with the RRTA.

I here offer my own hit-list of things which need review. Before launching into these matters, the general comment can be made that our society is unused to thinking about matters religious in anything but a quite superficial way. The Act is something of a mess as a result. Just one small symptom of this mess is that the definitions of the Act appear to introduce the notion of a ‘lawful religious belief or view’, which is a truly bizarre concept, which implies that the state of Victoria believes it has the power to define certain religious beliefs or views to be unlawful. Was it really intended that there could be certain beliefs that the State of Victoria will find it unlawful for someone to adhere to?

Let us move beyond particular examples. The core reason for the mess which is the RRTA is that the authors of the Act have taken race law and extended it to religion with minimal adjustments. This process reflects what has been a growing view in the community that religion is a category closely akin to race. We often hear these days of incidents of religious discrimination or expressions of religious hatred being described as ‘racism’. This view of religion – that it is a kind of spiritual race category – presupposes that religion is personal, private, non-ideological, and largely irrelevant to public political affairs. According to this view, faith is a matter of ethnic or cultural identity, not public or political conviction. The Act makes this view of religion clear in its preamble:

The people of Victoria come from diverse ethnic and Indigenous backgrounds and observe many different religious beliefs and practices. The majority of Victorians embrace the benefits provided by this cultural diversity and are proud that people of these diverse ethnic, Indigenous and religious backgrounds live together harmoniously in Victoria.

Most of the problems with the Act stem from this confusion of the categories of race and religion. As some commentators have pointed out, religion is a conscious choice — what is traditionally termed a ‘matter of conscience’. Although people can and do change their religion, race is different, being something you are born with, not a matter of conscience. In this respect, religion is more akin to morality, or political ideology, than to cultural or ethnic identity. This is not to deny that there is an ethnic and cultural dimension to religion. Of course there is. But religion itself cannot be limited to this, and the areas of religion which are most likely to cause disharmony and tensions between people are in the realm of beliefs.

How then does the distinction between race and religion relate to the actual provisions of the Act? Here are some specific objections and proposals for change.

1. The Act does not meet Australia’s international obligations to guarantee Freedom of Religion. This is the most significant error in the Act. The Act makes concessions to Freedom of Speech, but not to Freedom of Religion. The commitment to protect Freedom of Speech is reflected in the first paragraph of the preamble to the Act:

The Parliament recognises that freedom of expression is an essential component of a democratic society and that this freedom should be limited only to the extent that can be justified by an open and democratic society. The right of all citizens to participate equally in society is also an important value of a democratic society.

The objects of the act are likewise primarily concerned with protecting Freedom of Speech:

(1) The objects of this Act are—

(a) to promote the full and equal participation of every person in a society that values freedom of expression and is an open and multicultural democracy;

(b) to maintain the right of all Victorians to engage in robust discussion of any matter of public interest or to engage in, or comment on, any form of artistic expression, discussion of religious issues or academic debate where such discussion, expression, debate or comment does not vilify or marginalise any person or class of persons;

Note that the right of Victorians to adhere to and practice their religion is not one of the rights which the Act seeks to maintain.

Note that the RRTA applies the parliament’s commitment to protect Freedom of Speech by including exceptions to the civil provisions. These allow inciting speech under certain circumstances:

A person does not contravene section 7 or 8 if the person establishes that the person’s conduct was engaged in reasonably and in good faith—

(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; or

(ii) any purpose that is in the public interest; or

(c) in making or publishing a fair and accurate report of any event or matter of public interest.

The origins of these exceptions in race law are shown by the fact that they are copied virtually word-for-word from the ‘exemptions’ in Section 18D of the Federal 1975 Racial Discrimination Act:

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

(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 for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

These exceptions (or ‘exemptions’ in the 1975 Act) reflect a fairly well-established tradition of anti-racism law, which acknowledges that certain matters which could reflect negatively on races do need to be discussed, as a matter of Freedom of Speech, but this freedom should be exercised in a way which is reasonable in light of the nature and purposes of the purpose and function of the right to Freedom of Speech.

The idea that the exercise of Freedom of Speech or Expression goes along with certain duties and responsibilities is reflected in international covenants and declarations. For example the International Covenant on Civil and Political Rights (1966) states concerning Freedom of Expression (Article 19) that this right ‘caries with it special duties and responsibilities’, for example in relation to the public interest. These exceptions, with their focus on ‘reasonableness’ and ‘good faith’, thus reflect from longstanding human rights thinking in relation to Freedom of Speech. It is significant that whilst the human rights covenants do acknowledge limitations on Freedom of Religion, they are rather different from, and not as extensive as the limitations on Freedom of Expression. They do not, for example, include the notion of ‘special duties and responsibilities’ which apply to Freedom of Speech.

The adaptation of the exemptions from the 1975 Racial Discrimination Act into the RRTA’s exceptions involved two main changes. One was the removal of (c)(ii), the exemption for fair comment expressing a genuine belief. That is interesting in itself, involving a restriction of freedom of speech. But what I would like to focus upon here is the addition of the word ‘religious’ to the list of allowable purposes.

There is something quite crucial to note about the way religion has been introduced into RRTA exceptions, and that is that matters of religious freedom have been treated as akin to art, science or academic freedom. Religious freedom is in this way subsumed under the category of Freedom of Speech, and religion is treated as some kind of cultural or educational activity – much like artistic, scientific or academic activity – rather than as an expression of faith and conscience.

Yet it is of vital importance that Freedom of Religion and Freedom of Speech are quite distinct freedoms, with distinct criteria and concerns, and also, in international best practice, distinct kinds of restrictions. Key statements such as the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the Declaration on the Elimination of all Forms of Intolerance and of Discrimination based on Religion or Belief which define our international human rights environment all clearly distinguish between Freedom of Speech and Freedom of Religion.

For example in the UDHR there are separate paragraphs for religion and freedom of communication:

Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

We should reflect deeply on these freedoms. Freedom of Religion has to do with the right of someone to hold beliefs and to manifest them in accordance with their conscience. On the other hand, Freedom of Speech has to do with holding and expressing opinions and disseminating information and ideas. In each case the function and purpose of these rights are quite distinct. Those who drafted these international codes did not attempt to reduce religious freedom to Freedom of Speech, or vice versa, and quite rightly so.

This then is a fundamental flaw in the Victorian Racial and Religious Tolerance Act, that there is NO actual provision for Freedom of Religion, only a Freedom of Speech provision, into which religion has been dragged. Some might add ‘kicking and screaming’, for a concession for discussion for religious purposes is not the same as a concession for the right to practice their religion.

The most widely recognized aspects of religious manifestations in the UN system are teaching, worship and the propagation of faith, whether in private or public. The lack of acknowledgement of these freedoms in the Act is a serious omission which needs to be corrected. In a multicultural society it is unacceptable for religious tolerance legislation to protect Freedom of Expression, but not Freedom of Religion in a fair and reasonable way.

The effect of the omission of reference to Freedom of Religion is that religious groups brought before VCAT will need to make a case for their freedom to manifest their religion and propagate their faith based upon Freedom of Speech considerations, a process which even international Human Rights instruments had not anticipated. Making such a case can turn out to be a convoluted and confusing process, because the Act’s exceptions invoke concepts of reasonableness and good faith which were designed to deal with Freedom of Speech considerations relating to the dissemination of information and ideas, but not with Freedom of Religion concerns relating to freedom of conscience and the manifestation of one’s convictions. For example, what would ‘reasonableness’ count for in relation to the manifestation of religious conviction? If your religion seems unreasonable and wacky to me, or even evil, how will I assess the ‘reasonableness’ of your manifesting it in public? And what is ‘good faith’ in relation to the right to propagate one’s faith?

As one respected expert in international human rights put it to me, a comedian has more protection under the RRTA than a religious practitioner. This is because the RRTA is designed to protect Freedom of Speech, not Freedom of Religion. How can this be? Consider that a a comedian could get away under the Act with saying outrageous things designed to make people laugh — which actually incite severe ridicule — because it is the nature of the comedian’s art, their ‘reasonable’ purpose which the Act seeks to defend, to incite laughter. However a preacher could be convicted of inciting serious ‘ridicule’ for cracking the same jokes from the pulpit, because their purpose is religious, and their conduct is exempted only in so far as it meets some definition of a legitimate religious purposes. The religious practitioner would have to prove before the Tribunal that this purpose implies the freedom to make people laugh.

It is one thing to protect scientific discourse about race which is ‘reasonable’, because the objectives of scientific discourse are transparent, uncontroversial and widely accepted, and ‘reasonableness’ will be readily understood in the context of scientific discourse. However the objectives of religions and religious discourse are diverse, inherently controversial, and often poorly understood. Many would say that religions are inherently unreasonable virtually by definition of being religions, and even religious practices can seem quite irrational and unreasonable.

How did this law come to have such a fundamental flaw? The reason is clear enough. The RRTA is race law, converted by a simplistic cut and paste job into religious law. There is no paragraph in the Universal Declaration of Human Rights which protects the ‘Freedom of Race’, and there is nothing in anti-racism thinking which is analogous to religious freedom. As copycat legislation, the RRTA took race law as its model for religious law. This no doubt seemed plausible enough at the time because of the widespread tendency in society today to regard religion as analogous to race. Also the churches were found to be sound asleep, being quite unused to having to defend their fundamental freedoms.

However this equation “religion=race” was always a weak proposition. Religion is a choice – it involves the right to exercise the conscience – and the Religions Freedom provisions of international Covenants are designed to protect the freedom of conscience, which cannot be reduced to a right to Freedom of Speech. In contrast race is not a choice and does not involve freedom of conscience, and there is no comparable Freedom of Race in the international covenants.

The copycat processes which generated this law misunderstood the distinctive nature of religion. In fact this law works against Freedom of Religion, as we saw in the recent Catch the Fire case where the respondents were asked by the judge to publicly deny their own religious convictions about Islam as part of the proposed settlement of the case.

The Act should be amended in two ways to address this problem. First a genuine religious exception should be added, protecting the rights of people to religious freedom, including teaching, worship, and the private or public propagation of their faith. This must be quite distinct from the Freedom of Speech exceptions.

Second, there should be acknowledgement of the need to safeguard religious freedom in the preamble to the Act, alongside the existing acknowledgement of the need to maintain Freedom of Speech. It is a mistake that the Act states as one of its goals that it exits to safeguard Freedom of Speech, without a comparable statement concerning Freedom of Religion. Sure ‘religious tolerance’ legislation should be designed to safe-guard Freedom of Religion? Hopefully, in time, this will be something that the Act does address.

2. The Act is misleading and gratuitious in its use of the term ‘vilification’. Laws which regulate public behaviour need to be easily understood by the community. Unfortunately in its use of the term ‘vilification’ the Act gives a misleading impression.

While the headings of the Act, and the preamble refer to ‘vilification’, the actual paragraphs which define illegal conduct are always in terms of ‘incitement’, not ‘vilification’. In a nutshell, the Act prohibits incitement, but calls it vilification. Yet incitement and vilification are not the same. The words ‘vilify’ and ‘vilification’ are broadly understood among English speakers to imply ‘defamation’, as numerous dictionary definitions show. However what the Act actually makes illegal is not a form of defamation, but ‘incitement’. Why is this significant?

One crucial point of difference is that in defamation actions the truth is always a defense. However as the Act is worded, speaking the truth about a matter is not in itself a defense against an incitement charge. This is quite intentional, because it has been found that speaking the truth can incite hatred, contempt etc, and anti-racism mechanisms recognize this and explicitly seek to prohibit the use of factual or otherwise truthful statements for racist purposes. Thus the Act allows matters which could incite bad sentiments to be spoken of reasonably and in good faith in scientific discourse or for other reasonable purposes, but not gratuitously without a legitimate purpose in mind. To take just one example, if a geneticist were to read a paper at an academic conference on Aboriginal people’s capacity to ingest large amounts of liquids quickly, this could be reasonable, but the same material read at a White Supremacist meeting could be inflammatory and be considered illegal incitement.

The Racial and Religious Tolerance Act is very much in this tradition of prohibiting incitement whether or not what is said is true. The Act implies that whether a statement is true or not is irrelevant to the question of incitement. This was pointed out by Brind Woinarski QC in the Catch the Fire case, when he stated repeatedly that even if the objectionable statements put out by Daniel Scot were true, they should still be found to have been illegal.

Such considerations do help fuel the public perception about the RRTA that ‘the truth is no defense’, and the outcome is much public confusion surrounding the Act. Someone could be convicted for speaking what they believe to be the truth, or what actually is the truth, and evidence about the truthfulness of what was said could be ruled irrelevant to the question of incitement.

A simple solution to this confusion could be to remove ALL instances of the word ‘vilification’ or ‘vilify’ from the Act, and to speak consistently about ‘incitement’ instead. Thus it would known and discussed as anti-incitement legislation, not anti-vilification legislation. This would make conciliation easier, for it would be much easier to get someone to apologize for incitement, than to have them apologize for ‘vilification’ with the implication of libel and slander that this word conjures up in the public’s mind.

3. The Act could mislead in its use of the term ‘incite’. In English the verb ‘incite’ has the core meaning of causing someone to embark on an activity, as for example in the expression ‘incite a riot’. Indeed the Latin origin of ‘incite’ incito means to set something into rapid motion or to cause to accelerate. Furthermore, in most cases when a person is said to incite something, it is understood that they did this on purpose.

In contrast, the Act construes incitement in terms of a potential to evoke undesirable sentiments such as ridicule (amusement and and inclination to laughter) or contempt. Such feelings are matters which are inherently subjective and difficult to make conclusive findings about, especially where religious sentiments are involved.

The solution to this could be to define ‘incite’ in the Act. The next section clarifies what such a definition might look like.

4. The threshold for the Act is inappropriately low. Offences under the Act are broader than the standards required by the UN International Covenant on Civil and Political Rights (the Covenant), which proscribes ‘advocacy … of hatred that constitutes incitement to discrimination, hostility or violence’. Clearly this is what the Act is meant to be about – hatred that leads to harm or the intention to harm. But the scope of the civil provisions of the RRTA is much greater. As it stands, the Act protects religious sentiments, because it prohibits the incitement of bad sentiments. It encourages those who would take offence at the religious teachings of others to perpetuate their intolerance through legal claims, based on their sense of offense. Since the Act in fact focuses on inciting bad sentiments, the experience of bad feelings can be enough to stir up a complaint.

A remedy could be to raise the threshold of the Act to match the UN International Covenant on Civil and Political Rights, so that it applies to cases of incitement which leads to or is intended to lead to discrimination, violence or other forms of active hostility.

The low threshold of complaint is made worse by another problem with the Act – the confusion of identity and belief.

5. In copying race law and turning this into religious law, the Act confused identity and belief. Specifically it was an error to substitute the expression ‘religious belief or activity’ for ‘race’. This is another hiccup in the translation from ‘race’ to ‘religion’. The present wording of the Act invites legal contentions about religious beliefs (dogmas). Instead of using the simple term ‘religion’ to replace ‘race’ in the copycat process, it specifies ‘religious belief or activity’ as the equivalent to ‘race’. This blurs a longstanding distinction in Western culture between freely criticizing someone’s ideas, which has traditionally been regarded as legitimate and a healthy sign of a free society, and criticizing or attacking them as people, which is of course unacceptable.

Of course not all cultures accept this distinction, according to which one can hate someone’s ideas without hating them. In Islamic jurisprudence, for example, attacking someone’s faith is regarded as a very personal matter and many statements of Human Rights in Islam include the right to have one’s religious sentiments protected. The Indian Islamist intellectual Syed Abu A’la Maududi developed a statement of Human Rights in Islam in competition with the Universal Declaration of Human Rights. (A summary outline of Maududi’s Human Rights system has been linked for some years now into the website of the Islamic Council of Victoria.) The Ninth right in the ICV’s list of Human Rights in Islam is:

Protection Of Religious Sentiments:

Along with the freedom of conviction and freedom of conscience, Islam has given the right to the individual that his religious sentiments will be given due respect and nothing will be said or done which may encroach upon his right.

The idea that the protection of religious sentiments is a right — the right not to have one’s feelings offended — reflects shariah legal traditions, but it is inconsistent with the Western tradition of rights and our tradition of vigorous debate and contesting of religious differences.

The distinction between people and their beliefs is, as Salman Rushdie and others have pointed out, a foundational principle of the Western tradition of freedom, and we would be very foolish to surrender this after centuries of enjoying its benefits.

It is a matter of concern that recent judicial findings at VCAT have made inconsistent rulings in relation to this distinction. Judge Higgins in his finding against Catch the Fire did not seem to appreciate the distinction, whilst Justice Morris in dealing with the Robyn Fletcher complaint regarded the distinction as absolutely foundational to interpreting the Act.

One issue is that the Act in its preamble does not recognize this distinction, and it should. The Act should also be reworded to say ‘religion’ instead of ‘religious belief or activity’. This would remove the major part of the problem. There should also be an explicit acknowledgement of distinction between persons and their identity on the one hand, and the beliefs which they may adhere to on the other. This could be reflected in the preamble and / or the objects of the Act.

6. The freedom, and even encouragement of individuals or community groups to initiate complaints incites legal contests along sectarian lines.

The intention of the Act, and the whole Equal Opportunity framework which lies behind it, is to encourage conciliation and increase understanding between people, by dealing with matters in a way which dispels ignorance and promotes understanding. This does not however allow for the depth with which religious convictions can be held, and that these are not necessarily subject for consideration of rationality and reasonableness. There is little prospect at present that the whole RRTA framework will actually result in greater understanding between religious groups. At best it could serve to marginalize and silence obnoxious fringe religious groups. At worst it would incite age-old religious conflicts, make people fearful of manifesting their religious convictions, and cause considerable harm to our religious harmony.

A far better model is the recently proposed UK anti-incitement law, under which an action can only be taken by the Director of Public Prosecutions. A remedy for us here in Victoria could be to remove the Act from the Equal Opportunity Commission’s framework and thus from the EOC’s purview, by restricting actions to the Director of Public Prosecutions. It is damaging to religious harmony to have the EOC acting as a kind of religious watchdog, or as a kind of religious police.

7. A law which restricts religious practice, as the Victorian Act clearly does, should be a criminal, not a civil matter, and actions should be heard in a Court, not an inferior tribunal such as VCAT where the normal rules of evidence do not apply. This is an issue of what is a fair forum for testing difficult and controversial evidence, such as the correct way to interpret holy scriptures, and the theological implications of historical events. The recent Catch the Fire case resulted in the judge imposing remedies which would cost the respondents something in the order of $70,000. He restricted their public speech on Islam and the Qur’an all throughout Australia. For one of the respondents, who gains his livelihood by providing apologetic training for Christians, this means that, if he accepts this restriction, he would be unable to earn his living as a religious practitioner. The likelihood is that such a restriction will be regarded by the respondents as an intrusion on their freedom to manifest their religion, and they will refuse to comply with the Tribunal’s injunctions. Such is the stubborn nature of religious conviction that it can value freedom above life itself.

The possibility that individuals, because of what they regard — however contentiously — as the practice of their religion, could receive penalties as high as $70,000, and perhaps be sent to jail for refusing to comply with VCAT orders, shows that such individuals should have the right for the primary evidence on their case to be heard in a court, where the time-honoured rules of evidence apply, and not in an inferior Tribunal, where the rules of evidence do not apply, and the complex character of religious belief systems cannot be adequately considered. This could be easily fixed by making all provisions of the Act criminal, and not civil, and have them heard in a court, not VCAT.

Conclusion

The Victorian Racial and Religious Tolerance Act is deeply flawed. Its intention was honorable — to promote religious harmony and tolerance. However it was designed on the presupposition that religion is in essential a cultural construct, akin to race. By not acknowledging the profound differences between race and religion, the Act does not adequately protect religious freedom, it misconstrues the role of religion, and incites conflicts between religious groups. Most of its errors come from the simple Act of turning race law into religious law without attending to the differences between race and religion.

There are two levels of solutions which could be applied. One could be to remove the religious provisions of the Act altogether. This would be the simplest solution.

Alternatively, the civil religious provisions could be removed. Other necessary steps are replacing the term ‘religious belief or activity’ with ‘religion’, and eliminating the words ‘vilify’ and ‘vilification’ from the Act altogether.

There must also be a clear acknowledgement of the right to Freedom of Religion, both in the preamble and objects of the Act, and also, if the civil religious provisions are to remain, in the allowed exceptions.

If all this were accomplished, we would have gone a very long way to meeting the deep objections to this law which have arisen from our religious communities.

Virtually everyone in our community would agree that religious harmony is a good thing. Christians for the most part do appreciate the State’s attempt to promote religious tolerance. However the Victorian Racial and Religious Tolerance Act was founded on a false premise, that a religion is merely a kind of ethic or cultural marker. Having enacted this flawed law in good faith, the onus is now on the Bracks government to amend it.