Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Assistant Minister for the Republic) Share this | Hansard source

I support the core principles of the Religious Discrimination Bill 2021, but I have deep reservations about a couple of sections of the bill that I will go to. I do support the core principle of the extension of the federal antidiscrimination framework to ensure that Australians are not discriminated against because of their religious beliefs and activities, just as the Commonwealth law currently prohibits discrimination on the basis of age, disability, race, sex, gender identity, sexual characterisations and sexual orientation. This approach is consistent with the International Covenant on Civil and Political Rights, to which Australia is a signatory, which makes it clear that religious organisations and people of faith have the right to act in accordance with the doctrines, beliefs and teachings of their traditions and faith. However, also consistent with the international covenant is the principle that any reform in this area must ensure that an extension of the federal antidiscrimination framework does not remove protections that already exist in the law to protect Australians from other forms of discrimination, and that is where many Australians have very valid concerns regarding the operation of this bill. I believe that those concerns are valid and I share those concerns. I also believe that those concerns should be dealt with by the government if this bill is to pass this parliament.

The two particular concerns relate to clauses 11 and 12 of the bill. Clause 11 grants preference for religious organisations in some of their policies. But there's a particular issue in doing that with transgender children, and that's an issue that I believe needs to be fixed. There's also an issue with clause 12. Clause 12 of the bill relates to statements of belief. Under this clause, a statement of belief does not constitute discrimination if it is not malicious, it's not threatening or intimidatory, it doesn't harass or vilify and it's a statement made in accordance with someone's religious views and with the teachings and tenets of that religion. Many Australians have expressed their opposition to this clause and their concern regarding this clause, both to the committee and to my office through emails. I appreciate their concern and I thank those who have contacted me on both sides of the argument with respect to this issue. I share some of those concerns.

The first issue that I have with statements of belief is that I don't understand—and it's been very difficult for anyone to explain—what statements people wish to make that they cannot already make or wish to say at the moment. What are the statements that this bill will allow people to make that cannot be made at the moment? Many people have been unable to answer that question. Indeed, I believe that the government has been unable to answer that question. The human rights committee went to this issue in quite some detail and actually made a recommendation in their report that the government had to deal with this issue. The recommendation is at 6.135, recommendation 9 of the report, and it says:

The committee recommends that the government consider providing further explanation and examples with respect to clause 12 in the explanatory memorandum accompanying the Religious Discrimination Bill 2021, to provide greater clarity about what sort of statements or actions may, or may not, be considered to not constitute discrimination.

That was the view of the committee. The committee is telling the government that they need to provide clarity about what statements of belief people will be able to make that they can't already make at the moment.

The Kingsford Legal Centre, a very well respected community legal centre in my electorate, has also expressed concern about the operation of this clause, and their director, Emma Golledge, wrote to me last year, outlining their views on what this section of the bill will allow some people to say. In their view, it will allow people to say things like this: to women in the workplace, that they should be at home caring for children; to an LGBTIQ staff member, that they are going to hell; or to a person with a disability or health condition, that they need religious intervention to cure them. Now, if that is the case then I believe that there is a problem with this bill. As someone who has a very close relative who is gay, I can't see why we should be amending the Australian laws to allow protection for people to make statements such as that, and, indeed, for that clause to be able to be used to encourage those types of statements.

The second issue I have with clause 12 is that the operation of it will grant special rights under Australian law to one group of Australians, ahead of other Australians who may not hold those religious views. So the operation of this particular clause offends a deeply important principle of Australian law, and that is that all Australians are equal before the Australian law—all Australians are equal. It's actually the antithesis of many religious doctrines—most notably, that of equity and equality before God, and, indeed, before the law. So that is an issue with respect to clause 12.

The third element is that clause 12 overrides existing antidiscrimination laws. It will override 12 federal, state and territory laws. It will be the only such law to do so. This was again an issue that was identified by many submitters to the human rights committee inquiry. At 6.20 of their report, they identified that the Law Council of Australia had noted:

Clause 12 is highly unusual in that it seeks to override existing antidiscrimination laws at the Commonwealth, State and Territory level. This does not appear in other Commonwealth anti-discrimination laws which are generally intended to operate concurrently with State and Territory laws. Clause 12 stands alone in this respect.

So there's an issue with the operation of this law and it overriding state and territory antidiscrimination laws.

The fourth element of concern with respect to this particular clause, clause 12, is that, in recent times, governments have passed antidiscrimination laws to create inclusive and respectful workplaces. It has been about changing the culture in workplaces to remove discrimination—particularly against women, LGBTIQ members of the community and people with disabilities. And employers, unions and workers have used those laws as a basis for creating codes of conduct and policies that create and maintain respectful and inclusive workplaces. And it has worked. It has worked to change the culture, for good, in workplaces throughout the country and to change the behaviour of individuals around discriminatory activity.

Just today, the first item of business for this year in this parliament was for this parliament to accept the Jenkins report into workplace behaviour in this parliament, and for the Prime Minister and the Leader of the Opposition and the leaders of other parties to apologise for the appalling conduct that some employees and others have experienced in this workplace. We pledged to do more to make sure that this workplace is much more inclusive and respectful.

But many Australians who submitted to this inquiry believe and share the view that allowing statements of belief that are exempt from the provisions of federal, state and territory antidiscrimination laws will at the very least make it unclear whether certain statements, particularly relating to the role of women in society and LGBTIQ people, would amount to a breach of a workplace code, a policy or an EBA, and therefore undermine the ideal of creating safe and inclusive workspaces. And it may make it unlawful for a person to take an action under the Fair Work Act if they feel that they have been aggrieved under those workplace laws or under those workplace codes and EBAs because of the operation of this law which overrides those state and territory laws and displaces them. If you look at it in that respect, if this law is passed and that particular clause gets up we are going to head in the wrong direction about workplace culture and creating respectful and inclusive workplaces.

The fifth point around this clause is that it creates a convoluted system of antidiscrimination law. Discrimination complaints are overwhelmingly handled by state and territory tribunals. They are done on a no-cost basis to provide easy access to justice for Australians. Typically those tribunals use a process of conciliation at an initial stage to try and sort the issues out, and most of them do. But if this particular provision gets up, if a defendant raises a defence under clause 12 of the Religious Discrimination Act, making a statement of belief, which will provide and afford that protection, then that is a defence under federal law, and those state and territory tribunals cannot exercise federal jurisdiction or determine a question of federal law because they don't have chapter 3 status under Australia's Constitution. So the matter may have to be transferred to a Federal Court, with great delay and at great expense to the participants on both sides. That is not the way I believe that we should be encouraging our antidiscrimination laws to be operating in this country, and those seeking justice under them.

The final point I have on clause 12 is that it promotes divisive religion. A core part of this bill in sections 7 to 10 that I support is promoting respect, promoting equality and promoting compassion, as good religious tenets and teachings should do. The problem with clause12 is that it could allow people to use religion to create division and hatred. In my view, we should not be amending our discrimination laws to encourage that.

I'm a person of faith. I was raised Catholic. I went to a Catholic school. I go to church almost every weekend. I'm involved in my parish. My kids all go to Catholic schools. The foundation of my belief and my faith is in the core principles of the Bible, which are repeated in every chapter and every verse: love, respect, compassion and equality. They are the core principles of the Bible and religious teaching that I base my faith on. I cannot in good conscience understand why a clause included in this bill that could be used to undermine those principles of religion should be allowed. Doing so detracts from and undermines the core principle of the law that's outlined in clauses 1 to 10, and that is to protect people, to ensure that they are freely able to practice their religion and express their beliefs. This is an issue that was also identified again in the human rights committee report about the division that this could create. Dr Carolyn Tan, the chairperson of the Public Affairs Commission of the Anglican Church of Australia, said:

… if in fact clause 12 doesn't do anything useful it's better to take it out, because it only causes greater division.

Now that is a perfect summation of some of the problems with this bill, and this bill raises serious concerns because it has been rushed. The Prime Minister made the commitment in 2018, yet here we are, on the eve of an election, and this still has not been dealt with. The government only provided amendments to this bill to the parliament this morning. We still don't know what they are; they haven't been introduced.

In conclusion, although I support extending the antidiscrimination framework to protect against discrimination on the basis of religious belief, we must ensure that this is not at the expense of protections that already exist in the law to protect Australians from other forms of discrimination. The government should consider removing that clause—clause 12—and others, which, in my view, undermine that core principle that the bill won't protect people on the basis of their religious belief.

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