Religious Discrimination Bill 2021 - Second Reading

February 08, 2022

I rise to speak on the Religious Discrimination Bill 2021 and related bills. I am just going to give my bona fides upfront for this piece of legislation, introduced by the Prime Minister late last year. My children have gone to Catholic schools and I do go to church—not as often as I should, perhaps. In another life, as a teacher, I taught religion in a Catholic school, and when I worked for the Independent Education Union, the union that covers teachers in non-government schools, I did actually take a case to the Anti-Discrimination Commission, where religion was the characteristic that was being discriminated against.

I say that by way of introduction, because this morning we saw the Prime Minister out in front of a church, talking about his legislation and saying that he wants this legislation to bring Australia together. But when he did so, he referred to the Citipointe Christian College, a college in Carindale, in Brisbane—a college where I actually did enterprise bargaining about 20 years ago—and he said:

You're referring to an existing law that was introduced by the Labor Shadow Attorney-General Mark Dreyfus. That is the Dreyfus law that you're referring to. He put that in place.

I just want to unpack that statement before I turn to the religious discrimination bills. What the Prime Minister was actually referring to was the Sex Discrimination Act. The Prime Minister said he had to bring in the religious discrimination legislation because it was an election commitment. He also made an election commitment, saying—well, he said he going to bring in an integrity commission, yet we don't have legislation in front of us about that. He also said he would bring in legislation that would prohibit LGBTQIA students from being discriminated against in non-government schools. That's not the legislation in front of us. That legislation would be about an amendment to the Sex Discrimination Act.

Back when Susan Ryan brought in the Sex Discrimination Act, the only characteristics it referred to were sex, marital status and pregnancy. When the Liberals came to vote on that legislation, I think they actually had a conscience vote, back in 1984 or 1985 or whenever that was. But, in 2013, when the current Prime Minister was a member of the Abbott-led opposition, the Abbott opposition actually let that legislation go through on the voices. Before 2013, the Sex Discrimination Act did not include any protections against discrimination on the basis of a person's sexual orientation, gender identity or intersex status, so the Labor Party brought in changes supported by those opposite—supported by the current Prime Minister when he was in opposition. Before the change was introduced, there was no prohibition on discrimination against any Australian on the basis of their sexual orientation, gender identity or intersex status.

Basically, before the changes, there was nothing to stop a religious school from discriminating against students on that basis for any reason whatsoever. Because of the changes introduced by the then Attorney-General, Labor's Mark Dreyfus, there is now a prohibition on discrimination on the basis of sexual orientation, gender identity and intersex status at the Commonwealth level, subject to a number of exemptions. It's basically more difficult for religious schools to discriminate against students on those grounds, unless they can show that it's done in good faith and in order to avoid injury to the religious susceptibilities of adherents of that religion. I just wanted to be clear about that because the Prime Minister was being quite deceptive when making that statement out front of the church this morning.

Labor has no problems with legislation that gets rid of discrimination. We know that. I've talked about the Sex Discrimination Act. We know the Racial Discrimination Act was passed by a Labor government. I do commend the Howard government for bringing in the Age Discrimination Act. Labor has a long history of striking treaties and then bringing in state and federal legislation to protect people from discrimination. In fact, early in his time in office, after the long dark years of the National Party and the coalition, Queensland Premier Wayne Goss decided to make it unlawful for Queenslanders to be discriminated against because of their religion. So it was a Labor premier that made those legislative changes way back in 1991. And, just for the sake of those opposite, when I spoke to the human rights commissioner in Queensland, he said that less than one per cent of the cases that come to him are to do with religious discrimination. I'm one of the few people who has actually taken a case to the commission on behalf of someone who was discriminated against because of their religion. So it's not that common. Even though there is a suggestion out there that people are being prevented from practising their faith, that is not the case.

Premier Goss was following in the footsteps of a Western Australian Labor government that had done the same thing back in 1984. Thereafter, a Labor government did the same here in the Australian Capital Territory in 1991. And I do commend the Country Liberal government that followed suit in the Northern Territory in 1992. It was Jim Bacon's Labor government that amended Tasmania's discrimination laws in 1999. It was a Labor government, under the leadership of Premier Steve Bracks, that made law the Racial and Religious Tolerance Act 2001 in Victoria. And it was the Rann Labor government that amended South Australia's Equal Opportunity Act in 2009 to prohibit discrimination on the grounds of somebody's religious appearance or dress.

All of that legislation was brought in by Labor governments. The aforementioned actions show clearly that the Australian Labor Party knows that the right to freedom of religion is recognised in international law because of treaties that we've signed and should be legislated domestically. Labor always supports fairness and equality. I particularly say that to my Muslim community, to my Hindu community, to my Buddhist community, to my Jewish community, to my Sikh community—people who particularly wear their faith publicly in the clothes that they wear, their hair or whatever it is where they show their faith. The freedom to have or adopt a religion or belief is absolute and cannot be limited or confined to protect other interests.

As the review by the former Attorney-General, the Ruddock review, noted, 'they cannot be departed from even in times of national emergency' and that in contrast the freedom to manifest religion or belief may be limited in specific circumstances.

But there is consensus from stakeholders, the Attorney-General's Department and both parliamentary committees that looked at this legislation, even though it was rushed over Christmas when many Christian organisations are a little bit busy—and I note that even Prime Minister Morrison noted the same of the bills that were personally introduced by him late last year—that the bills are flawed and seriously need amendment.

The two most contentious provisions are clauses 11 and 12. Why is clause 11 contentious? It is because it's explicitly designed to override state and territory antidiscrimination laws, specifically recent changes to the law made in the state of Victoria and also in Tasmania. As the Law Council of Australia said in their submission:

It departs from orthodox Commonwealth anti-discrimination law, which is generally designed not to exclude or limit the operation of State or Territory law that is capable of operating concurrently with it.

Given its interference in state and territory law, it is extraordinary that the Attorney-General's Department told the Human Rights Committee—and I note that the chair is here. We heard the same evidence. I'm the deputy chair of that committee. This is what the Attorney-General's own department said:

The department did not have meetings with any state or territory government to discuss any part of the Religious Discrimination legislative package between the conclusion of the second exposure draft consultation process and the introduction of the Religious Discrimination legislative package.

The Morrison government made an election commitment in 2019 'to work with the opposition, crossbench and stakeholders in a spirit of bipartisanship' and 'to introduce legislation into the parliament that enjoys broad cross-party support.' They're the government's own words. Yet they failed to consult with the Liberal and Labor state and territory governments. They've fundamentally failed to achieve that modest goal, and it will create confusion and heartache.

Astoundingly, the Attorney-General's Department admitted during the Human Rights Committee process—and during the other hearing—that the bill that was introduced last year by the Prime Minister has at least one serious drafting error and that that error is yet to be corrected.

Clause 12, another contentious clause, which provides that statements of belief are not discrimination, received the most criticism during the committee process. The criticism was broad. The Council on the Ageing told the committee in reference to people contemplating going into aged care:

What there's going to be is a chilling effect on how people fear that going through, because the messages will come down saying, 'Well, actually, they can say what they want to you,' whereas currently they can't.

The Council on the Ageing are speaking up for some of their most vulnerable people.

Some religious organisations were also concerned about the potential adverse impact of clause 12. The Uniting Church in Australia told the committee:

Our reading of clause 12, statements of belief, indicates that people can make a statement in good faith, believing that it is genuinely held within the doctrine, tenet or belief of a religion, and that it doesn't matter whether the religion itself would reject that view. The person can claim that it's a statement of belief and therefore it is held to be protected under this bill. We think that that is quite dangerous.

That's from the Uniting Church.

The Public Affairs Commission of the Anglican Church of Australia told the committee why they're concerned about clause 12 doing harm:

… there is no reason why you need to give that immunity or the ability to override under discrimination legislation. People are still free to make statements of belief, providing they don't do it in a way that discriminates. If you look at where the harm lies, obviously greater harm lies with the person who is being discriminated against, whereas the person who wants to make a statement can do it in a way that is not discriminatory.

Good legislation comes from listening. Good legislation comes from patiently working through the issues, not from making a promise four years ago and then rushing it in at five minutes to midnight. Good legislation does not divide the community.

There are other concerns with the legislation that has been introduced, including whether or not it's constitutionally valid. That's always a good one to get right. This bill is supposed to protect people of faith from religious discrimination, but it will do nothing to protect against the vilification of people who are targeted because of their religious beliefs or activities. I particularly speak to the Jewish community, the Muslim community, the Hindu community, the Sikh community—those who wear their faith and are targeted. This protection has been called for over many years. The calls have become more urgent since that shocking Christchurch attack when an Australian terrorist killed 50 people. We know that there has been a rise in Islamophobia and Hinduphobia. Anti-Semitic incidents are on the rise in Australia and the United States—around the world, in fact.

These laws are not being debated today. But the discrimination bills, which are largely uncontroversial, present the parliament with an opportunity to provide people of faith, particularly those of minority faiths, with protection against vilification. The government should work with the Australian Labor Party; the government should work with the state and territory governments, Labor and Liberal; and the government should work with religious stakeholders to address this shortfall in protections for people of faith.

In my remaining time I turn to the idea that we would let schools like Citipointe target people because of who they are, because of God's plan for that child. I'm fundamentally committed to protecting children in Australia. As a teacher, as a lawyer, as a politician, I have devoted my life to making sure that children's lives are safer and better. There is this idea that a contract targeting children and based on some misguided interpretation of the Bible could be foisted on parents to say, 'You must make a decision.' I've spoken to the people running Brisbane Christian College in my electorate, and they made it very clear that they love and protect all of their students. Children should not be targeted—trans children, intersex children, any children—when we know that God made them all. I find it utterly repugnant that a person would use a contract to beat up a child, saying, 'I know God's plan and I will enforce harm upon that child and that family.'

I know that the leaders of the Australian Christian Lobby and others have been strangely silent when it comes to this, and there has been some crab-walking away from Citipointe Christian College. I would ask them to make sure that they always protect the children that walk through their gates.