Dave Sharma (Wentworth, Liberal Party) Share this | Hansard source

As a matter of principle, people should be protected against discrimination because of their faith—that is, religion should be a protected attribute just as age, disability status, race and sex are. In principle, I support religious discrimination legislation which protects people against discrimination on the basis of their faith. It is right, for instance, that people of faith should not be discriminated against in employment decisions. They should not be discriminated against if they are of a minority faith and are seeking to get a job, or in the terms and conditions that are offered to them in employment because of their faith. They should not be discriminated against in questions of admission to professional bodies and associations. They should not be discriminated against with respect to clubs and registered organisations, access to premises, the provision of goods and services, accommodation, club membership, sports participation—all these sorts of things. Just as we would not tolerate, would not accept, people being discriminated against on account of their gender, race, age or disability for such things, nor should we allow or tolerate such practices because of someone's faith or religion.

I also accept the rationale for faith based communities and organisations, particularly that people should be able to organise themselves on this basis to establish schools, aged-care facilities, clubs and registered organisations and to pursue their spiritual and communal life in this way. Voluntary associations of people who share values and beliefs are what makes our communities diverse and strong. My own community, the Jewish community, have religiously based schools, aged-care facilities, hospitals, sporting clubs and other registered organisations. I accept and indeed would defend and protect their right to do this, just as I would for any other minority faith. So there are parts of this bill which I think are important and we should applaud.

Part 4 of the bill, which largely deals with protecting people of faith against discrimination in all these areas, is an important part of the bill. Section 7 of the bill, which allows for affirmative action decisions, if you like—positive discrimination among faith based communities, whereby they can preference hiring people of their own faith, preference members who share their own faith—is important and needs to be preserved. That's the sort of balance we need to strike in a fair and liberal society. But it's also important—to me and, I think, more broadly to the community—that human rights are equal and indivisible. That's what the International Covenant on Civil and Political Rights provides, and that's what we as Australians have signed up to, being party to the treaty. That means that antidiscrimination like this should provide a shield, but it should not be enabled to be used as a sword.

It should protect people against discrimination , but it should not provide a licen c e for people to discriminate . I think that is where some of the difficulties arise with this bill.

Whi l st I broadly support legislation that protects people of faith against discrimination, I do share some of the concerns expressed in some of the committees and by some of my colleagues about elements within the bill —the statement - of - belief provisions, for instance . I think we ' ve made considerable progress from the earlier exposure drafts of this bill . The so-called Folau clause is no longer there . The so -called conscientious objection provision is no longer there. But there is a statement - of - belief provision within the bill — section 12 — which causes me to ask a number of questions. I ' m still reconciling myself to it, but I think it's important that I do canvass these doubts with the House.

Firstly, to my mind, all types of speech should deserve equal protection . It shouldn't matter whether a speech is religiously grounded or grounded in faith , in its nature , as a cause of the speech. Political speech should enjoy the same level of protection and freedom. Artistic speech should enjoy the same lev el of protection and freedom , as should i deological speech . It concerns me that we have a provision within this bill which seems, at least on the face of it, to privilege a certain kind of speech and give a certain kind of speech a special protection which other elements of speech lack.

As a federalist and someone who, generally speaking, supports the rights of states to regulate their own affairs in these matters, I ' m also a little uncomfortable with the overriding of state laws and, indeed, other federal antidiscrimination laws in this bill . I can understand the reason for doing this— and people have pointed to the Tasmanian antidiscrimination legislation in particular as a reason for doing this, but my answer would be, by and large, that that ' s for the Tasmanian s, the Tasmanian parliament and the Tasmanian government to fix.

I'm also concerned about whether this is workable from an employment and workplace perspective. During the two inquiries that were held we hear d from the Australian Industry Group, the Business Council of Australia and the Australian Chamber of Commerce and Industry about whether this provision would make it difficult for them to ensure harmonious workplaces and make sure that people were not given licen c e to say things in the workplace which would undermine the harmony and the cohesion of the workplace but to which the employer would have no redress.

There are some protections, though, in the statement - of - belief provisions, and I think it ' s important that we highlight those because a lot of the impact of th ese provision s will depend upon how the courts choos e to interpret the statement - of - belief provisions and how they choose to interpret some of the exceptions to the statement-of-belief provisions . In particular, p rotection does not a pply to a statement of belief that is malicious or that a reasonable person would consider would threaten, intimidate, harass or vilify a person or a group. I think that ' s an important protection . I know some take the view that this will, by and large, mea n that only innocuous or non -off ensive sorts of speech — the normal differences of opinion that should be and are, indeed, aired in public — would attract the protection of this provision and that other elements that cross a line into harassment , intimidation or vilification, either by the nature of what is said or by the persistence and the repetition of it , would not enjoy this protection . B ut this will be something for the courts to work out , and i t does give me some concern that the boundaries here are not particularly clear.

B eyond that , I'm also concerned about real - life issues of discrimination that are happening right now which are not the subject matter of this particular bill but which I think cannot be considered separate to this piece of legislation . These are the provisions in the Sex Discrimination Act which date from 2013. A t the time, these amendments broaden ed the protected attributes in that piece of legislation to include sexual orientation, gender identity, marital status and relationship status . B ut at the same time that they included those as protected attributes — that is , they en sured that people could not be discriminated against on those grounds or as a result of those attributes — there was also a carve - out for educational institutions established for religious purposes . This is what is now section 38 of the Sex Discrimination Act.

That carve-out is not new. It has been with us for nine years now. It is causing real-world examples of discrimination. We heard, through these two parliamentary inquiries, real-life examples of teachers who are being dismissed because they came out as openly gay. We've heard of transgender students feeling like they've been hounded out of their schools because of their gender identity or uncertainty about their gender identity. We saw, just last week, Citipointe Christian College in Brisbane send out what I don't think anyone could fail to see as a spiteful and harassing communication to the parents of that school, demanding that they sign up to certain values; demanding, though, also, that they control, if you like, their sexual orientation or gender identity—as if that were a question of lifestyle choice rather than a question of personal attribution. I think these things that are happening are wrong. I think that example, of Citipointe Christian College, is wrong. I think the example of Karen Pack—who I met earlier today, and who believes she was dismissed from her teaching role because she came out and announced that she was marrying her partner—is wrong as well. And this is discrimination that is happening right now, in our schools in particular, and that I think we do need to address.

Now, I've been on the public record as saying that I believe these parts of the Sex Discrimination Act do need to be removed; they do need to be amended. It is my view that, in Australia, once we took the decision that we all did, collectively, in the marriage equality plebiscite, and once we passed legislation to allow same-sex marriage, we took a decision, collectively, as a community, as a nation, as a body politic, to say that we would no longer allow inequality in these spheres. But what we're dealing with here, with the Sex Discrimination Act and section 38(3), is unfinished business from that national decision. It's a carve-out that still allows discrimination on these grounds: discrimination on the grounds of sexual orientation, discrimination on the grounds of gender identity, discrimination on the grounds of marital status—discrimination, indeed, even on the grounds of pregnancy. This is a relic that, I believe, the parliament needs to deal with. Removing section 38(3) of the Sex Discrimination Act entirely I think would be the easiest way to do that. It would provide some protections, at least, for students. I know teachers would probably need to be dealt with in separate provisions of the Sex Discrimination Act.

I do accept and I do appreciate that the government has asked the Australian Law Reform Commission to address these issues. But to my mind, this has taken too long. It has taken longer than it should have.

If we are considering this legislation, the religious discrimination legislation—which is strengthening the protections available to religious communities, and I don't disagree with that and have no problem with it—then we also need to make sure that we are looking after vulnerable communities whose disadvantage or susceptibility or vulnerability to discrimination we have not addressed. That's so particularly, I think, for children in schools—and, yes, for teachers as well, but particularly for children in schools—who are some of the most vulnerable people in our population, and particularly those who are struggling with issues like their sexual orientation or their gender identity. All the evidence is that mental health issues amongst our young people are particularly prevalent amongst this group of people, and we should not be making their lives harder by allowing them to be persecuted or vilified on account of attributes as to which they have no choice. These attributes are intrinsic to who people are, and to pretend otherwise, as Citipointe Christian College did, and as other institutions do from time to time, I think is not only incorrect from any number of biological or ethical perspectives but is antithetical to our own values.

There are important elements within this bill which I support. There are elements of it which I find concerning, and I will continue to have concerns about them. I notice, and I think it's important, that there is a review provision within the bill that provides for a new office of a Religious Discrimination Commissioner, which is an important office, to review and report back within two years. But what we must most importantly address now is the legacy ability to discriminate which already exists in our legal framework, which is already in our Sex Discrimination Act, which allows schools to discriminate against students and teachers on the basis of their sexual orientation or their gender identity. We have already committed to doing this. I know the government has already committed to doing this. It is time we cracked on and did it, because human rights are equal and indivisible, and, if we are addressing the rights of one particular community here, we also need to be addressing the rights of other vulnerable communities.

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