Thursday, 20 September 2018
Religious Freedom Review Expert Panel; Order for the Production of Documents
by leave—I move:
(1) notes the claim of public interest immunity in response to the Senate Order to produce Religious Freedom Review Expert Panel;
(2) cites the Senate's Grounds for Public Interest Immunity Claims, where it states:
It is accepted that deliberations of the Executive Council and of the cabinet should be able to be conducted in secrecy so as to preserve the freedom of deliberation of those bodies. This ground, however, relates only to disclosure of deliberations. There has been a tendency for governments to claim that anything with a connection to cabinet is confidential.
(3) acknowledges the report does not relate to the deliberations of cabinet; and therefore
(4) insists the Order for the Production of Documents be complied with by 3pm 20 September 2018.
The Senate yesterday passed an order for production of documents, for the final report of the Religious Freedom Review Expert Panel. This was rejected by the government late last night, on the grounds that the report informed and was the subject of cabinet deliberation, and therefore the public interest immunity claim was made. The reason for moving this motion today is that we reject that, for the reasons that I just outlined in the motion. The community needs to see this report. In fact, it is in the public interest for this report to be tabled. It is not in the public interest for this report to continue to be hidden. The government, by hiding this report, is putting people's lives—particularly the lives of lesbian, gay, bisexual, transgender and intersex people—on hold.
The government has had the final report of the Religious Freedom Review Expert Panel for four months now. We all know the circumstances in which the Ruddock review, the expert panel, was set up. It was as a consequence of the successful passing of the marriage equality legislation. The marriage equality legislation, as we know, removed the largest state-sanctioned discrimination against LGBTIQ people, in allowing us to get married. In response to that, there was some unhappiness on the government benches, particularly among those in the right wing on the government benches. There was a bit of a sense that we need to work out the whole issue of balancing the issue of religious freedom and religious discrimination. That's why the Ruddock review was set up. It is extremely important for LGBTIQ people, in particular, to know what that review has found, to know what Mr Ruddock is recommending to government and then to see what the government's response is, because this review and the government's response to it have potentially huge impacts on the lives of LGBTIQ people. At the moment, they are being kept in the dark. They are being left in the lurch. We do not know whether the Ruddock review is recommending further discrimination against LGBTIQ people, further discrimination that would allow schools, hospitals, aged-care centres, florists and bakers to further discriminate against LGBTIQ people.
The reason why it is now so important that the Australian people know this is the comments of Prime Minister Morrison in recent weeks, where he has indicated that he, in fact, wants to further discriminate against LGBTIQ people. He wants to wind back some of our antidiscrimination laws which protect LGBTIQ people from discrimination. It is extremely important that lesbian, gay, bisexual, transgender and intersex people know the extent of the recommendations from Philip Ruddock and to what extent the Prime Minister is planning to further discriminate against them. We know that this debate, about how religious freedom and religious discrimination weigh up against each other, is something that is of critical importance in our antidiscrimination laws going forward. In the Senate inquiry into marriage equality last year there was universal recognition that we need to protect religion as a protected attribute. Of course everybody should have the right to hold a religion and express their religion, but there is a great deal of debate about how the impacts of the manifestation of their religion upon other people should be managed.
The Greens position is that we need to have a charter of rights, so that we can balance people's right to have a religion versus people's right to not be discriminated against. That's the direction we need to be heading in. They're the discussions that the community needs to be having. If we had that charter of rights discussion we could be moving forward. We were hopeful that the Ruddock review might provide some information that would work out where the community debate should go, but in order to provide that information we need to see the report. We do not need to be kept in the dark. We need to let that report see the light of day. It is four months now that the government has had that report. Why isn't it releasing it now? We have been told for a number of months to expect it quite soon, but one has to ask: what is the government hiding?
There are questions around the fact that we have a by-election in Wentworth coming up in a month's time. The debate has been that the government's not going to release the Ruddock review before the Wentworth by-election. We know that the people of Wentworth are very strong supporters of LGBTIQ rights, so one could surmise that maybe the government are keeping this report in secret because they actually don't want the people of Wentworth to realise what their true agenda is. The true agenda is further discrimination against LGBTIQ people in the name of religious freedom. That's what you could actually surmise. That's the ulterior motive of keeping this report hidden. If they weren't planning on doing this then why not release the report? Why not release it so we can see what Mr Ruddock has recommended. And why not then respond to it and lay to rest all these people's concerns and fears?
I really want to go to the point of the importance of seeing the report of the Ruddock review, because there is a lot of fear in the community. LGBTIQ people across the community are worried. They are concerned. They know that achieving marriage equality was a big step forward, but they are very fearful that their rights are going to be wound back. It's not just a theoretical thing that they are worried about; it's people's actual lives—people employed as teachers in faith based schools, who are fearful of no longer having jobs; people employed in aged-care centres or hospitals, who are fearful of not even getting jobs because of their sexuality or gender identity or fearful that they will lose their jobs because of those things. Again, the Greens would like to see our laws strengthened so that people are better protected from discrimination, but we are worried, and the community is worried, that there are going to be further grounds to discriminate against people because of their sexuality or gender identity. You only have to look at the interventions of our Prime Minister over the last month to see that their fears seem to be very well grounded. When the Prime Minister sees fit to retweet an appallingly homophobic and transphobic article in The Daily Telegraph, saying that we don't need gender whisperers in our schools, one can see the sort of intolerance the government seems to be heading to. That's what people are fearful about. They are thinking: if a Prime Minister sees fit to retweet something like that, what has he got in mind? What is he planning to do? What legislation is this government planning to put up to further vilify and discriminate against people just on the basis of their sexuality and their gender identity?
The issue of protecting people's rights is of fundamental importance. All people, regardless of their gender identity, regardless of their sexuality, need to be treated as equals. They need to have all the opportunities other people in our society have. It's clearly going to be an ongoing debate in our community, but it needs to be a debate informed by evidence, rather than an emotive discussion based on prejudice. We need to have the basic information. The government, in initiating and setting up the review into religious freedom in the first place, had the opportunity, through doing the consultation the review has done, to put on the table a body of evidence with which we can move forward. That's the evidence we need to have. In particular, it's evidence that is needed before the people of Wentworth go to the polls in a month's time. They need to know what the Ruddock review recommended and what the government's plans are. So the motion I am moving today says: can we please move this forward? It asks all of our senators here to make sure the information is available so that we know where the power lies; so that we know what the government has planned; so that we know whether it's the fair treatment of LGBTIQ people that's on the government's agenda or whether the government's response to the question of religious freedom is one where the far right of the party have won the day and the government is planning further discrimination against lesbian, gay, bisexual, transgender, intersex and queer Australians.
The government will oppose this motion. That is because, as has long been recognised by the Senate and as has been practised by governments of both political persuasions, we believe that the principle of cabinet confidentiality, the confidentiality of cabinet deliberations, is a very important and long-established principle under the Westminster system. It is designed to ensure that cabinet ministers can debate policies and proposals freely so that the ultimate decision that is made is the best possible decision. I hasten to add here, in relation to the report of the Religious Freedom Review Expert Panel, which has been received by the cabinet, that the government has not as yet made any decisions on the way forward. The cabinet continues with its deliberations. This is obviously a matter which is highly sensitive. It's very important for the government, in its response, to get the balance right, to get its decisions right. I think it would make it inappropriately more difficult for the government to get the balance right and to make the best possible decision in relation to this issue if the longstanding principle of cabinet confidentiality was breached in the way as is suggested in this motion. That is why I call on the Senate—and I certainly would call most respectfully on the opposition, which has acted in consistency with the principles of cabinet confidentiality under the Westminster system during its periods in government, and is likely to do so in the future—to join with the government in preserving, whether on this topic or any other topic, a very important principle: to ensure that cabinet ministers, as they deal with often very complex, sensitive and difficult issues, are in the right position to debate policy proposals and other proposals freely and, indeed, in confidence, without essentially the additional difficulty in reaching the best possible decision that would come with a premature debate in the context of no decision yet having been made. Once the government has made a decision, all of the information, quite rightly, ought to be in the public domain, but this is not yet the time, given that the cabinet has not yet made a final decision and the deliberations are ongoing.
Labor, too, has concerns with the government's claim of public interest immunity on this occasion. As the minister has outlined, Labor as a party of government does regard seriously issues around cabinet confidentiality and cabinet deliberations. But there are a few issues on this occasion that I think I should highlight as to why our concerns remain on this particular matter. Firstly, in claiming public interest immunity, in response to the Senate's call of yesterday, the government hasn't outlined what harm it suggests may occur. That's a critical element of any claim of public interest immunity—to outline what harm is envisaged by this report being released. I would highlight to Minister Cormann that there are many occasions on which a government releases a report of a review before it concludes its response to that review. So we have yet to hear why, on this occasion, in relation to this review, the release of the review itself, as opposed to the cabinet's deliberation of the review, cannot be made available.
I would like to remind the Senate that there's some history to this matter. Some senators may recall that, in addressing the legislation around same-sex marriage and amendments that were put before the Senate by some senators on that occasion, I made the point that it would have been helpful to have been able to give more serious consideration to these religious freedom matters, but that the Prime Minister at the time, Prime Minister Turnbull, had, in a sense, kicked these matters down the road by establishing the Ruddock review. When that review was established, a number of senators who might've been inclined to support further work to occur in relation to introducing protections around religious freedom essentially folded into supporting the Ruddock review process as the appropriate forum under which these matters should be addressed. Remember, though, this is quite some time. The Greens have highlighted some of the concerns in relation to how we, as a nation, might proceed in the future to protect religious freedom, but there are, of course, a myriad of other concerns that the Ruddock review has considered.
Let me highlight for the Senate, for instance, that, at the commencement of the Ruddock review process, there were concerns from a number of parties that submissions were not being made public, that people weren't able to follow the proceedings, that some of the proceedings were unnecessarily secret and that the process itself had been somewhat clouded. I join with those who hold the view that the findings of that review have remained closed for too long now.
You might have some sympathy for concerns that say, 'Well, we've got a new Prime Minister and a new cabinet, and it needs to consider these things,' but it has been some time. I don't think this issue should be beholden to the uncertainties within the Liberal coalition government and its changes of leadership. I think these issues are more important than that, and we should have a broader, measured consideration of what was considered within the Ruddock review.
Unfortunately, I need to reflect on issues that have been raised in a sense anecdotally around the review, because we still can't see it. One element of those reflections has been that Mr Ruddock went into that review process with an approach that was essentially: 'Where's the nuisance? I don't see the nuisance here. So, not being able to see the nuisance, I don't really see that we need to do much more than the status quo.' I was subsequently told, 'Well, no, actually the review board did identify that there was some level of nuisance, not only the issues that have been highlighted by the Greens but also issues highlighted by members of various religious communities.'
On that note, I would like to say that I'm disappointed that this process appears to be becoming politicised. Prime Minister Morrison said he wasn't going to become the Christian warrior, but, by taking as long as he has and by shrouding this review still in secrecy, these issues are now becoming politicised in a quite unnecessary way. I would like to see an opportunity for all of those who have a multitude of different views to air those views, and the best way to do that is for the review report to now be made public so we can have what I would hope would be an open, measured discussion around what those recommendations are. For that reason, Labor will be supporting the motion.
Orders for the production of documents are a key oversight tool for this Senate. We've seen a number of OPDs refused by this government on very dubious grounds. I accept the principles laid out by Senator Cormann that cabinet in confidence is a well-respected doctrine in the Westminster system of government. I don't challenge him on that.
However, let me just go to the claim that has been made by the government in this instance. They've made the claim that they can't provide the documents, on the grounds that these documents informed and are the subject of cabinet deliberations. Of course, cabinet deliberations are protected, but not necessarily things that are subject to deliberations—only the deliberations themselves. If this has not been through cabinet, it can't be a deliberation of cabinet, and it cannot attract that claim.
I will make another point, a very important point: we are a house that complies with the laws of this land. The laws of this land say that, in order for a document to be considered cabinet in confidence, it must have at birth a dominant purpose for submission to cabinet. I would like the government to come back to this chamber with some evidence that shows that, when they commissioned this report, it was intended exclusively for cabinet.
You would also note that, in accordance with the Cabinet Handbook, cabinet submissions take a particular form, and typically cabinet submissions are limited to 50 pages. I would like to get an answer from the government in respect of this: how many pages are in this particular report? You cannot simply pass a document through the cabinet room in order to obtain a protection of cabinet in confidence. That's inappropriate.
The other point I would make is that there are very strict handling requirements for documents that are cabinet in confidence. There are very strict tracking requirements for documents that are cabinet in confidence. I would like the government to bring to this chamber evidence that this document has been held confidential and has been tracked in accordance with the Cabinet Handbookso that we can be satisfied that the claim that is being made by the government is bona fide. We cannot simply have an aroma-of-cabinet defence fettering the Senate in its legitimate oversight role.
I note that this government has consistently made claims of public interest immunity in this chamber. It should be of great concern to every member of this Senate, because when there's a change of government the people sitting on the government side will end up on the opposition side of the chamber and will want to do their job properly, informed by the documents that are paid for by the taxpayer and are commissioned for public purpose. I respect what Senator Cormann has said. I respect the claim that is made, but it must be a proper claim. I suspect in this instance that it is not.
We have a situation at the moment where the government is in the ACT Magistrates Court claiming that the matters before that court are secret. We've had a number of instances in this chamber where the government have done the same thing, only to have their rulings overturned by people such as the Information Commissioner and the AAT. By making these false claims you undermine proper process—the very process Senator Cormann relies on not to bring these documents to the chamber. I ask for more information to be provided to the chamber. I'm inclined to support the Greens' motion.