Thursday, 25 November 2021
Human Rights Legislation Amendment Bill 2021; Second Reading
That this bill be now read a second time.
The Human Rights Legislation Amendment Bill 2021 amends existing Commonwealth legislation to better protect the right to freedom of religion, giving effect to several recommendations of the Religious Freedom Review.
Freedom of religion interacts with a wide range of laws at a Commonwealth, state and territory level. However, issues of freedom of religion at the Commonwealth level are most closely affected by government regulation in the context of antidiscrimination law, charities law and marriage law.
In response to the recommendations of the Religious Freedom Review, this bill makes amendments to these three areas of law.
Religious Freedom Review
On 22 November 2017, the then Prime Minister announced a review into religious freedom in Australia, to be conducted by an expert panel chaired by the Hon. Philip Ruddock.
The review's final report was provided to the then Prime Minister on 18 May 2018. The final report is the result of extensive public consultation, including consideration of over 15,500 submissions and 90 consultations with a wide range of stakeholders in every state and territory.
The review was a timely opportunity to consider the protection of the right to freedom of religion in Australian law, and the manner in which it interacts and intersects with other rights.
The review made 20 recommendations, three of which are implemented by this bill (recommendation 3, 4 and 12).
Objects clauses in antidiscrimination law
This bill amends existing antidiscrimination law to reflect the equal status of all human rights.
This implements recommendation 3 of the Religious Freedom Review.
The rights to equality and nondiscrimination frequently intersect with other rights, including the right to freedom of religion.
However, the Religious Freedom Review noted that objects clauses in existing federal antidiscrimination law do not currently reflect the potential tensions between these rights.
While the existing clauses in the Age Discrimination Act 2004, Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 refer to objects related to the promotion of the rights to equality and nondiscrimination, they do not expressly reference other human rights, such as the right to freedom of religion.
Accordingly, this bill amends these existing objects clauses, and introduces an objects clause in the Racial Discrimination Act 1975, to ensure that each federal antidiscrimination act has an objects clause which recognises the indivisibility and universality of all human rights, the equal status of all human rights in international law and the principle that every person is free and equal in dignity and rights.
These amendments will ensure that appropriate regard is given to all human rights in antidiscrimination law, including the right to freedom of religion. This reflects a key principle in international law—that all human rights must be treated with equal importance, and no rights should be prioritised at the expense of any other.
Amendment to the Charities Act
This bill amends the Charities Act to codify that otherwise charitable entities that engage in lawful activities promoting a traditional view of marriage are undertaking those activities for the public benefit and not contrary to public policy.
This reflects the existing legal position that such charities will not be disadvantaged for, in and of itself, advocating for a view of marriage as being the union between a man and a woman.
This implements recommendation 4 of the Religious Freedom Review.
A fundamental aspect of the right to freedom of religion is the freedom to manifest one's religion, including through establishing and maintaining appropriate charitable institutions. Faith based charitable institutions continue to make a significant contribution to all aspects of Australia's civic life.
Following the debate on marriage equality, the Religious Freedom Review noted that there was possible ambiguity around whether advocacy of a 'traditional' view of marriage could constitute a disqualifying purpose under the Charities Act, which would result in the loss of charitable status.
The review ultimately came to the conclusion that mere advocacy would not meet the threshold of a disqualifying purpose, and advocating a change to law or policy in support of another charitable purpose (such as advancing religion) may itself be a charitable purpose.
However, the review recognised there was benefit in amending the Charities Actto give certainty to faith based charities. Accordingly, this amendment puts this issue beyond doubt and ensures that a charity that advocates in favour of marriage being the union between a man and a woman to the exclusion of all others will not lose its charitable status solely due to such advocacy.
Amendment to the Marriage Act
This bill amends the Marriage Actto clarify that educational institutions established for religious purposes may lawfully refuse to provide goods, services or facilities in relation to the solemnisation of a marriage, in accordance with their religious belief.
This implements recommendation 12 of the Religious Freedom Review.
The solemnisation of a marriage is a significant event for any couple and has particular religious significance for people of faith.
Australian law must appropriately balance the right of all couples to enjoy equal access to marriage with the right to freedom of thought, conscience and religion.
It was in recognition of this fact that the parliament, as part of the protections for freedom of religion in the Marriage Amendment (Definition and Religious Freedoms) Act 2017, introduced exemptions for bodies established for religious purposes to refuse to provide goods, services or facilities in association with any marriage, if the refusal:
The Religious Freedom Review recognised that there was ambiguity as to whether all religious institutions, particularly religious educational institutions, are covered by this exemption.
The right to freedom of religion includes the freedom to establish and maintain places of worship. The government is of the view that places of worship and other religious sites should not be required to be used for purposes that are inconsistent with the religious tenets upheld by the religious body.
The amendment in this bill introduces a new provision in the Marriage Act which extends the existing exemption for bodies established for religious purposes to apply also to educational institutions established for religious purposes. This includes schools, colleges, universities and other educational institutions.
This exemption will ensure that religious educational institutions are not compelled by law to provide support for marriages which are inconsistent with the fundamental tenets of their religion.
The amendments in this bill will ensure freedom of religion is given necessary protection in existing Commonwealth legislation, and that an appropriate balance is struck between freedom of religion and other human rights in federal antidiscrimination law.
I commend this bill to the House.