Thursday, 30 November 2017
Foreign Affairs, Defence and Trade Joint Committee; Report
I present an interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade on the legal foundations of religious freedoms in Australia.
Ordered that the reports be printed.
by leave—I move:
That the Senate take note of the report.
It's my pleasure as the Chair of the Joint Standing Committee on Foreign Affairs, Deference and Trade to present the Human Rights Subcommittee interim report for the inquiry into the status of the human right to freedom of religion or belief in Australia. We've probably talked more about this topic in the Senate and in public over the last couple of months than we have for quite a few years—since the last report in Australia, which was conducted well over a decade ago.
For me, this in part arose late last year where a motion in the Senate created a Senate select committee to consider the implications for religious freedom should the parliament ever legislate to change the definition of marriage. I was asked by the government to chair that Senate select committee, and we had a group of senators who worked over a number of weeks and then reported in February of this year, having taken evidence from many people. The thing that surprised me as I chaired that committee was the low level of awareness from many in our community about the status of freedom of religion and belief in a legal sense. Also, I would argue, the low level of religious literacy amongst many in our community—even bodies that are established to work in the area of law or sometimes even in the area of human rights—to understand the various governance structures, the importance of religion to individuals and the compulsion, almost, that somebody's religious beliefs have on their conduct—that is, the fact that they're prepared to sacrifice time, money, effort and emotion into it; it's not something which is just a choice.
Out of that, because there was such low awareness, and there were concerns raised around the fact that people contended that we had a very low level of protection at a federal level and that the state protections were variable, one of the outcomes that I took as the Chair of the Foreign Affairs, Defence and Trade Committee was to seek a reference for the Human Rights Subcommittee to conduct this inquiry to have a more comprehensive review of the status of the law in Australia at both the federal and state levels to look at freedom of religion and belief. So Mr Kevin Andrews, who is the chair of that subcommittee, worked with the subcommittee members, again, on a cross-party basis, to take evidence from a wide range of people for that.
What they found was that in Australia, in practice, people have enjoyed great freedoms over the years. In practice, we are characterised as being a free country. But that has been more to do with the social mores that have developed in this nation—the common sense, the accommodation, the ability to live and let live—than legislation in law. I'll table some additional remarks after I have made these few comments that go into a little more detail about that. In essence, it found that there was limited protection in federal law and that the state and territory laws on this matter varied greatly in both nature and effectiveness when it came to religious freedom. They also found that, unlike in many countries in the world, where restrictions on religious freedom come from governments on the basis of having a state religion—and minorities then had restrictions placed on them—or from different religious groupings in a society, the restrictions in Australia most often eventuated where competing rights came into conflict because of rights to nondiscrimination. As we have moved through both the Senate select committee and now the debate in this place around the Smith bill, which was passed this week, many discussions and concerns have been raised around those issues.
At the heart of the issue is the fact that, because section 116 of the Constitution means federally we make no laws around religion—we separate ourselves from that—and because states have varying levels of coverage of freedom of religion but very thorough coverage of antidiscrimination law, with varying thresholds for how that will be applied, what you have is a situation, as we see in Tasmania right at the moment, where somebody can be expressing what we would all think is a valid, normal and legal expression of their religion around marriage or sexuality, for example, yet be hauled before a state based tribunal. We see state based tribunals making decisions that we think defy belief. In Queensland, for example, the antidiscrimination tribunal has found that because St Vincent de Paul—who most people, if you ask them, would say are a religious charity—were established for charitable purposes, and not religious purposes, in the view of that tribunal they're not a religious body, which means that then they don't enjoy the protections in the Sex Discrimination Act drawn from religion and belief that are afforded to religious bodies. It is a complex area of law.
You have seen in the media in recent days that Philip Ruddock has been appointed to look at freedom of religion and belief in the country. I've spoken to Mr Ruddock to make sure he's aware of this report, because it will provide a good basis for him to look at the implementation of the report. Both in the Senate select committee and in evidence given to the Human Rights Sub-Committee, the complexity and the breadth of issues involved means that it's not a simple or quick job to comprehensively legislate for protection of freedom of religion and belief, which is article 18 of the ICCPR. That has a number of implications, particularly the fact that it probably won't happen quickly, which is why a number of people have called, during the debate on the Smith bill this week, for measures more directly limited to the issue of marriage and related to the Smith bill to be legislated. Unfortunately, as we know, those were voted down here.
I think it's important, though, that we recognise that this is an important issue to get right. We've had stability and a large degree of cohesion in our society for many years. You can go right back to the preparatory works for our Constitution: some of our forefathers were agnostic, some were atheists and some were men of faith, but by and large they shared a set of values which have carried through over the decades. There has been very limited conflict in this area. But, increasingly, there are people coming into Australia not only of different faiths but, in particular, different ideologies and ideas that challenge the shared community values that we have had for so long. I believe we need to find appropriate ways—and personally I'm not in favour of things like a bill of rights, but there are three or four different methods—of looking at how, and how much, we implement article 18 into our law. I think we need to look at it. We need to respect the fact that the basis of the stability in our society is that we respect the majority view but we protect the minority so that they can hold, express and advocate for their positions.
So this is a complex area. I'm aware there are people on all sides of the chamber who hold varying views on this, and we need to be able to have this dialogue to make sure that people who hold a view that's different to the majority are able to express that view legally and to be respected for it, even if the mainstream view in the society has moved in a different direction. So I commend this bill to the Senate. I will table the remainder of these remarks, and I seek leave to continue my remarks later.
by leave—I thank Senator Fawcett for facilitating the tabling of this report and my opportunity to reflect on a few issues ahead of further discussions of these issues, I suspect, in the House next week. Introducing this report, which probably would have fallen off the program had we not been alerted to it, I think is quite useful.
I became aware of this report in some detail when I looked at the outline of the likely conclusions that was in The Australian newspaper today. As chair of the Privileges Committee, can I say I don't think there's any likely adverse impact of the description that was in the newspaper, so I don't think any further action is required. But it is useful to see what this inquiry has canvassed and discussed. As Senator Fawcett indicated, there is quite a degree of concern with the level of religious literacy and the issues that have been canvassed, at least in this article, and I look forward to seeing the report. I think it will be very helpful to the discussion not only in the parliament but in the period ahead with the Ruddock review and indeed with respect to any further consolidation project that might be attempted for our antidiscrimination framework and state and federal jurisdictions. These were some of the issues that we canvassed in the debate on the bill and the amendments.
I want to take this opportunity to reinforce the point that Labor had a conscience vote in respect of the amendments in the Smith bill, and I acknowledge Senator Smith here as well. We carefully looked at those amendments, and I indicated in the debate that there were some areas that I had ongoing concerns about, there are other areas where issues had been resolved to my immediate satisfaction, and there were other areas which I have subsequently come to class essentially as classic liberalism, where Labor senators were never going to be of a similar mind. If you approach some of the issues in dealing with matters around religious freedom from a classical liberal perspective, it should be no surprise that Labor senators weren't convinced. I say that respectfully, because I'm very pleased that this report has now been tabled and approached, as I think Senator Fawcett alluded to, and I commend the chair of the subcommittee, Kevin Andrews. If this is indeed reflected in the report, which I have yet to look at, I think there is enormous scope for bipartisan support to enhance our current antidiscrimination framework to ensure that some of the issues, problems and ambiguities between the federal and state jurisdictions don't become a challenge in the future to, as Senator Fawcett referred to, the common square type approach that has been applied in Australia to dealing with issues around religious freedom. But, as Senator Fawcett said, these issues are quite complex. People of common interest did indeed have concerns that we weren't in the best frame with the same-sex marriage bill to be dealing with some of these very complex issues.
So I look forward to looking in detail at this report. I'm pleased to hear that it's already been brought to the attention of the Ruddock review, although I'm still waiting to see what those terms of reference are, so it will be good to be able to indeed see that. But I'd also like to highlight that the report by Dennis Shanahan and Joe Kelly in The Australian makes the point that even next week's debate—I think the Prime Minister alluded to it this morning—will look again at the George Brandis amendments that the Senate considered. This report of the report that's now being tabled indicates that the committee has been told that Australia's agreement to various international covenants, which George Brandis wanted to highlight in amendments to the same-sex marriage laws, provides little practical protection. That was indeed the concern that I had when I looked at the first of Senator Brandis's amendments, because, whilst I didn't comment on this at the time, the advice I received was that unless there was some ambiguity in the same-sex marriage bill or act then they were likely to have essentially no effect. And the legal advice I received was that it was very hard to imagine what type of ambiguity in that particular piece of legislation was ever going to arrive to give those provisions effect. I'm heartened, as Senator Fawcett said, that there are essentially four models, I think you indicated, that might deal with some of these issues without necessarily going down the Bill of Rights path, and I look forward to looking at and addressing those.
I want to return to the commendation I paid to Senator Fawcett about the enormous amount of work that must have gone into the process of drafting amendments in respect of this bill. I don't think that work and that common activity is necessarily going to be lost with the passage of the Smith bill. I think it's fine work that quite a range of people have engaged in that can still be drawn upon, by whichever future government, to produce an antidiscrimination framework that still allows for our particular Australian common-square approach. So I look forward to looking at the detail of this report. I seek leave to continue my remarks.