Andrew Wilkie (Clark, Independent) Share this | Hansard source

I'm opposed to the Religious Discrimination Bill in its current form, just as I was opposed to the previous version of this legislation put forward by the government. This bill will have an enormous impact on the rights and freedoms of many Australians, and particularly Tasmanians. Tasmania has the strongest antidiscrimination laws in the country, and it's because of this that we have the most to lose under this legislation. Indeed, we have the fiercest protections against discrimination for minority groups and are the only state in Australia that prohibits discrimination on the grounds of sexual orientation, gender identity and relationship status by faith linked organisations, including schools, hospitals and charities. We are also one of the few states that prohibit all hate speech, with no exceptions on religious grounds.

The government has said that the bill is not intended to replace state laws. However, if it is passed, that's exactly what will be done here, because this bill creates a direct conflict between state and federal laws, allowing people who are complaining of religious discrimination to sidestep state laws and practices. So, in effect, Tasmania's Anti-Discrimination Act would be undermined, despite the Tasmanian parliament twice upholding the state's hate speech laws and the Supreme Court of Tasmania having found them to be constitutionally sound on more than one occasion. In other words, this bill demonstrates a blatant disregard for state and territory laws by the federal government. Indeed, the federal government should be looking at Tasmania's antidiscrimination laws as a model for national reform, but instead it is intent on watering down the strong protections we have in the island state. This is something that Tasmanians do not want, and even the Liberal Premier has said as much recently.

The Prime Minister has repeatedly said that this legislation will serve as a shield, not a sword. This is also not true, because this bill will allow people to make harmful and arguably discriminatory statements against others in the name of faith. It could allow, for example, a doctor to tell a vulnerable woman that she is sinning in the eyes of God because she is seeking access to contraception. It could allow a person to say to another that their disability was caused because they turned their back on God. It could allow a school to sack a member of its staff simply for being gay. It could allow a nurse to tell a patient that their HIV diagnosis is a punishment from God. It could allow faith linked schools to teach students that marriage can only be between a man and a woman, despite the overwhelming majority of Australians voting in favour of marriage equality and it now being Australian law. Indeed, it could allow a school to force parents to sign a contract agreeing that their children will only identify as the sex they were assigned at birth, as we saw in the media just last week. Quite frankly, it's absurd that people feel they are being persecuted if they are prevented from persecuting others. Don't get me wrong: I support freedom of religion when it means not discriminating against people of faith, but I will not support legislation that allows discrimination and hate speech in the name of faith.

I do acknowledge that two controversial provisions from the original draft bill have been removed: the Folau clause, which provided individuals with legal protection from having their employment terminated because of expressing religious beliefs, and the clause which would have enabled health providers to refuse to provide treatment based on conscientious objection. The removal of these provisions is welcome, but some of the most controversial provisions remain in the bill, and new inclusions, such as the clause allowing statements of belief as a defence to discrimination complaints, make this bill simply unsupportable, particularly considering this definition is not subject to clear or well defined limitations.

Implementing legislation which permits religious freedoms without appropriate corresponding limitations and safeguards is reckless and potentially dangerous. It goes against the public interest and completely disregards the wishes of the community. Indeed, a poll conducted by YouGov just last week found that 77 per cent of Australians oppose religious exemptions from laws against discriminatory speech. Moreover, I have received correspondence from hundreds, if not thousands, of Australians calling for this bill to be scrapped. The community recognises the dangers of this bill, so why can't the government?

What's equally concerning is the fraught process by which we have got to where we are today. The government would have been more than happy to push this legislation through the parliament without any scrutiny, but due to public and internal pressures the bill was subject to not one but two concurrent inquiries over summer. However, it's important to note that the process by which these inquiries were conducted was entirely unacceptable. For instance, the consultation process allowed just 25 days for public submissions into what is arguably the most complex discrimination law in Australia's legislative history. What's more, the inquiries were conducted over the Christmas-New Year period, when many organisations have closed for the year. This bill has been on the government's agenda for over three years, and this is obviously a very important issue in the Australian community, but once again politics are prioritised over effective public scrutiny.

Former Tasmanian Anti-Discrimination Commissioner Robin Banks has provided me with some worrying figures about these committee inquiries. For example, at the time of conducting her analysis, Ms Banks found that, although the overwhelming majority of the submissions received opposed the bill, only 14 per cent of the submitters had the opportunity to give evidence in person. On the contrary, of the small number of submissions received in support of the bill, 53 per cent of the submitters were allowed to give evidence. Further, there were four submissions from legal academics or legal groups which supported the legislation, of whom three gave evidence. On the flipside, there were 21 submissions from legal academics or legal organisations opposing the legislation, and only two of the submitters gave evidence. This leads to the conclusion that the committee has privileged certain voices, of religion, over others, and it is an unacceptable example of lack of due process. In short, the entire inquiry process has been a farce and a tick-box exercise by the government to justify passing this unjustifiable bill.

If the government is serious about protecting the rights and freedoms of all Australians, then it must ensure that the right balance is met between protecting people from discrimination based on their faith and protecting people from harm based on statements or actions by others in the name of faith. We are also bound to ensure that such a balance is reached under our international obligations. For instance, as a signatory to the International Covenant on Civil and Political Rights, under article 18 we must ensure that 'Everyone shall have the right to freedom of thought, conscience and religion.' This right includes the freedom to express one's religion or belief, but, importantly, it also provides an essential and well-defined limitation. Article 18.3 states:

Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Such a limitation would ensure the protection of all rights, whilst also maintaining the autonomy of state and territory laws. We cannot selectively apply our international obligations. The human rights of all Australians must be considered and applied as a complete package, including international law.

Australia remains the only democratic nation without any sort of bill or charter of rights. I have sought to remedy this with my Australian Bill of Rights Bill, which I've now introduced twice but which has not been supported by either major party. This bill would address the issue of religious discrimination. It would render invalid any Commonwealth, state or territory law that is inconsistent with the Bill of Rights, to the extent of that inconsistency. It would also specify that Commonwealth, state and territory laws should be interpreted so as to be consistent with the Bill of Rights.

In terms of the issue we are discussing today, article 6 of my Australian Bill of Rights enshrines a right to freedom of religion or belief, and article 4 allows for freedom of expression. Importantly, however, my Bill of Rights imposes a necessary limitation, in that people will be limited in expressing their rights as is necessary to ensure that the fundamental rights and freedoms of others are protected. So I say to all members of parliament: if you really want to protect the rights and freedoms of all Australians, my human rights bill is what we should be debating here today. That is the bill that should be passed.

In summary, I cannot support the Religious Discrimination Bill in its current form, because it doesn't ensure that all Australians are protected from discrimination and because it would have a particularly harmful effect on the Tasmanian community, which already has a strong protective framework. We should not be advocating for one group of Australians against another. Our laws should protect each and every one of us equally, no matter who we are, what we believe or who we love. We must move towards a more inclusive and accepting society, which promotes equal rights for all, not special rights for some. In light of everything I've said in his speech, I move the amendment that has been circulated in my name:

That all words after "That" be omitted with a view to substituting the following words:

"the House declines to give the bill a second reading and notes that:

(1) this bill will have a greater negative impact on Tasmania than any other state or territory because our anti-discrimination legislation is currently the best in the country; and

(2) the Tasmanian Anti-Discrimination Act 1998 has the full support of the Tasmanian Parliament and been strongly endorsed by the Liberal Premier the Hon Peter Gutwein MP".

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