Anne Webster (Mallee, National Party) Share this | Hansard source

I have the privilege of chairing the Parliamentary Joint Committee on Human Rights, which considered this important package of bills: the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021. The committee heard from a variety of experts and lobby groups who all expressed their thoughts on the bills, and I thank each and every one of them for engaging with the committee and making their views and voices heard.

This legislative package seeks to fill a void in Australia's human rights framework. This parliament rightly passed the Racial Discrimination Act in 1975, the Sex Discrimination Act in 1984, the Disability Discrimination Act in 1992 and the Age Discrimination Act in 2004. What is missing from this list is a religion discrimination act. This is despite the longstanding recognition of freedom of religion in the United Nations' Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The UN special rapporteur has emphasised the mutually reinforcing nature of the rights to freedom of religion and freedom of expression, stating:

Freedom of expression is necessary for the meaningful enjoyment of the freedoms of thought, conscience, and religion or belief … One cannot be fully enjoyed without the other or in the absence of the right to privacy, freedom of association and peaceful assembly. This suggests that the two rights are not only interdependent, but also exist in a legal continuum with myriad other rights.

The European Court of Human Rights has also observed that protection of religious groups is necessary for the realisation of the individual right to freedom of religion. The Commonwealth must step in to rectify the situation. Federal protection is lacking and the current patchwork of state laws does not protect every Australian, with New South Wales and South Australia lacking any framework and other states missing the mark with theirs. The need for such a framework has been well documented, beginning with the religious freedom review, chaired by Philip Ruddock.

People of faith and particularly those of minority religions are being discriminated against because of their faith, with no recourse under Commonwealth law. The primary purpose of these bills is to protect ordinary people of faith from discrimination as they go about their daily lives. The bills also protect those who experience discrimination because they do not adhere to any faith or religious belief. The bills will protect against direct and indirect religious discrimination. This is not a blanket protection as the realities and requirements of day-to-day life as well as potential conflict with other protected rights can occur. Indirect discrimination on the ground of religious belief or activity is permissible when reasonable. It is permissible to discriminate against someone on the basis of their religious belief if, in expressing their belief, they are encouraging or promoting conduct of an offence involving harm. It is permissible to discriminate against someone on the basis of their religious belief to comply with other legislation, law enforcement and national security needs. It is permissible to discriminate against someone on the basis of their religious belief if they cannot carry out the inherent requirements of their employment.

The bill also introduces the new offences of victimisation to deter people from trying to prevent others to engage with the Human Rights Commission and advertising an intention to engage in unlawful discrimination. These provisions strike the right balance in protecting religious freedom while also not impinging on other rights and the rights of others.

A crucial element of this bill is the clauses establishing a statement of belief. In summary: a statement of belief is a genuine belief made in good faith in accordance with what a person considers to be part of their belief system. The bill protects the making of statements of belief. This protection extends only to statements, not conduct, which may be discriminatory. Furthermore, the narrow protection of statements of belief extends only to other antidiscrimination laws or other prescribed state laws. The committee heard from Mr Mark Sneddon of the Institute for Civil Society, who remarked that statements of belief do not provide any individual a protection from every consequence and sanction, and that individuals can still face employer sanction, be in brief breach of contract, be in breach of code of conduct and face regulatory action from professional bodies.

Keeping with the bills' balanced approach, malicious, threatening or vilifying statements of belief are not protected under this bill. This allows for a shield against discriminatory complaints for moderately expressed religious views. The regulated nature and in-built protections means there is no sword here to use against others. Indeed, in the committee it was heard that the statement of belief had a narrow scope allowing banal statements. This reality of the bills' provisions does not reflect the commentary and scaremongering peddled by lobby groups. The further need for this protection is made clear in the application of some state discrimination laws. In Tasmania, we see the bar for protections set too low. Religious people feel they cannot even express traditional doctrines of marriage. Even the threat of these complaints and the spectre of lawyers and court costs to defend what many Australians feel is uncontroversial in their own faith community deters people from speaking. This is not right and has ever been remarked as possibly in breach of Australia's international human rights obligations under the International Covenant on Civil and Political Rights.

In practice, the Attorney-General's Department has outlined that a statement of belief defence will act as a federal defence to a claim of discrimination under Commonwealth, state or territory antidiscrimination laws. It will not, in and of itself, force discrimination complaints to courts, and, if they choose, states and territories have the power to arrange complaints to be heard at tribunals. The bill gives further protection by not allowing qualifying bodies to impose standards that would disallow a person from making a statement of belief when they are not working. Again, this is balanced. This protection does not extend to if the qualifying body conduct rule is an essential requirement of the job. Teachers, lawyers, health professionals and tradespeople should not be at risk of losing their registration or qualifications by reason of the expression of their religious beliefs in their personal capacity.

This bill gives religious organisations the protections needed to safeguard their religious ethos. This is a key issue for religious schools and their communities, who wish to maintain their faith and culture. The bill promotes this by allowing religious educational institutions to act in good faith, in a manner that a person would reasonably consider to be consistent with that religion's beliefs and teachings, including preferencing persons of the same religion. This is only permissible if done in accordance with a publicly available policy. It is important to note that the Religious Discrimination Bill itself states that certain conduct that is permissible under the bill may still be indirect or direct discrimination under other Commonwealth antidiscrimination laws, such as the Sex Discrimination Act.

People have asked me, 'Why such a rule for all religious schools, for all their employees?' Does it matter for a maths teacher at, say, a Christian school to be a Christian? Most people see the link for religious studies or humanities, but why maths? To that, I say: 'It is not about the individual subjects. It is about the type of people in the school, and the ethos the school values and wants to promote.' A student may see a maths teacher after class or in the yard about topics unrelated to class work. We all know the increasing burden teachers face as students' personal lives and problems become more apparent in the schoolyard, with little support from qualified professionals. It's important that all staff share the values of the school so parents and students have confidence in the community they put their children in.

Not only this, but it goes further, to an issue of freedom of association. In their submission to the committee, Jacinta Collins of the National Catholic Education Commission stated:

If people don't want to work in an environment which is operating within a faith based ethos, they can work in a public school or a school of another ethos or faith. It is an issue of choice, or, in my view, it's actually freedom of association … It's associating around our faith so that we can meet our mission about the transference of faith at the same time as delivering a high-quality education.

The proposed bills are about completing the antidiscrimination framework Australians enjoy. In keeping with our international obligations, and to protect all members of Australian society from discrimination, we must pass these bills. Anyone who has read the bills and not relied on wilfully spread misinformation will tell you the targeted measures of the bills, and the protections within that, will not see wholesale collapse of Australian society and instant discrimination and vilification—far from this. We will see religious and nonreligious alike enjoy protections under the new law and deliver clarity on permissible, personal and professional conduct.

Talks of amending the Sex Discrimination Act should have nothing to do with this bill, and debate on the merits of any amendments can be discussed when they're proposed. The task at hand is establishing a religious discrimination act that will bring peace of mind to all Australians, particularly those of faith.

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