Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

Throughout history, governments, parliaments and the judiciary have grappled with the concepts of human rights, personal freedoms and discrimination. In Australia, for all of the laws, international conventions and public debate, we still have gaps in the national human rights laws that guide our country. Perhaps that is because every right and every freedom granted to one person diminishes the rights and freedoms of another. Striking the right balance is always a challenge.

We see that today around the world and on our doorstep, with people wanting freedom and protesting against COVID-19 restrictions. In reality, laws may modify behaviour but they will not end prejudice and discrimination. That can only be achieved through understanding, acceptance, goodwill and a change of attitude. That is why dealing with religious freedoms has proven to be so difficult, as the Ruddock inquiry found, as the two Senate committees found and as the Prime Minister and this parliament are now finding out.

In my time in this place, few, if any, other issues have been more difficult to resolve to the satisfaction of all. Our constitutional founding fathers attempted to deal with religious rights as far back as 1891 and finally settled on section 116 of the Australian Constitution, which simply states:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Section 116 of the Australian Constitution is very simple and very clear. Article 18 of the International Covenant on Civil and Political Rights, which Australia is a signatory to, expresses the right of freedom of thought, conscience and religion or belief. Article 26 of the covenant reinforces article 18. However, covenants must be enacted into Australian law if they are to be effectively enforced. It seems, based on several High Court judgements, that section 116 of the Australian Constitution only provides limited protection for people of faith.

This brings us to this legislation and the need for it, and the need to protect people of faith from ridicule, discrimination, persecution and even physical harm. For people of deep faith, their faith is paramount to their lives. It guides them through their lives, even in the face of personal harm or, in some places, death. Such is their conviction and faith. Just as we have enacted legislation about racial discrimination, sex discrimination, disability discrimination, fair work conditions and so on, it is reasonable that we legislate religious freedom and religious protections.

From my observations, religious discrimination is on the rise, with people of faith being increasingly mocked, ridiculed and vilified. Many no longer openly talk about their faith and feel uncomfortable in the company of nonbelievers. It is a similar story for people of the LGBTIQA+ communities, who are at times equally targeted because of who they are. They too are all too often made to feel inferior to others and subjected to cruel, derogatory comments and actions.

It has always been the case that to be different attracts attention and often exclusion and derision from others. However, any freedoms or protections granted in law should never be used to discriminate, spread hatred or vilify others.

Over recent years there have been numerous examples of discrimination and offending against religious or LGBTIQA+ people. Other speakers in their contributions to this debate referred to some of those examples. Not surprisingly, therefore, both sectors have taken a deep interest in this legislation and have had some disagreements over the proposal before us, so it is up to the parliament to bring the parties together, to find a way forward, to mediate and, importantly, to ensure that all parties are respectfully listened to and responded to.

No legislation will ever satisfy every grievance raised, but with goodwill this legislation could be improved and could overcome many of the concerns raised. That is what Labor's amendments seek to achieve.

Ultimately, it is the intent of this legislation that matters most because the courts or others in positions of authority, if and when they are asked to adjudicate over matters of discrimination or wrongful conduct, will draw on the intent of this legislation for guidance.

Labor's position has been clear from the outset. The freedoms of thought, conscience and religion or belief are fundamental human rights. Labor supports the extension of the Commonwealth's antidiscrimination framework so as to ensure that Australians are not discriminated against because of their religious beliefs or activities, while at the same time not diminishing the rights and freedoms of others.

In its consideration of this legislation, Labor has been guided by three very clear principles: firstly, as the International Covenant on Civil and Political Rights makes clear, religious organisations and people of faith have the right to act in accordance with the doctrines, beliefs or teachings of their traditions and faith; secondly, support for the extension of the Commonwealth's antidiscrimination framework to ensure Australians are not discriminated against because of their religious beliefs or activities; and, thirdly, consistent with the international covenant, ensuring that any extensions of the Commonwealth's antidiscrimination framework do not remove protections that already exist in the law to protect Australians from other forms of discrimination. I do not believe that any fair-minded person could disagree with the three guiding principles, and Labor's amendments are consistent with each one of them.

Getting this legislation right, particularly as it interacts with other laws, is complicated. However, only time will tell whether the legislation, if it passes through parliament, will achieve its objectives. As with all legislation, parliament has the right to review or amend legislation at any time, if flaws are identified. Perhaps a commitment to an early review of the legislation would allay some of the fears that have already been raised.

I said earlier that this legislation is complex. The complexity of this is well summed up in an amicus brief provided by several legal academics to the US Supreme Court when it was considering state based same-sex marriage legislation. The brief, which is also directly relevant to the legislation before us, was referred to in an Australian Law Reform Commission paper on religious freedom. It states:

… No one can have a right to deprive others of their important liberty as a prophylactic means of protecting his own … The proper response to the mostly avoidable conflict between gay rights and religious liberty is to protect the liberty of both sides.

That is what we should strive for, and I believe it can be done.

In an excellent analysis of this proposed legislation, Emeritus Professor of Law Rick Sarre concludes with this statement:

I remain confident that, with some tweaking of current laws, Australians will be able to continue to enjoy freedom of religion and belief, and freedom from religion and belief with or without new legislation. If there is to be a new Act, legislators must ensure that it encourages tolerance and denies bigotry any oxygen. If we can adhere to this commitment, the long and winding road that leads to a plateau of religious freedom that is acceptable to all will be less difficult to navigate.

Sound advice indeed.

In conclusion, can I stress this: Labor are committed to ending religious discrimination, as we have always been committed to ending any form of discrimination. Indeed, it has consistently been Labor that has led the way towards legislation that has ended discrimination wherever it has been identified. The Morrison government has now had some three or four years to deal with this matter, and it is clear to all of us that it simply now wants to use this legislation to divide Australians and to wedge Labor in the lead-up to the next federal election.

My view is that, at this time, when we are dealing with a matter that is not only complicated but also affects so many sectors of society, the parliament should be working at its best: the parliament should be coming together and showing the national leadership that people in the community consistently call for. It is a time when we can, collectively, as people elected to this parliament to make decisions for the nation, come up with a response that at least meets the needs of most people in this country.

I believe that is possible, but it will take the goodwill of this parliament. There is a lot of goodwill on this side, as the Leader of the Opposition made clear in his contribution to this debate earlier on this afternoon. There is goodwill from the crossbenchers, from what I've detected from the speeches that I've heard. And I believe that there is goodwill from many government members as well.

Let us show the Australian people that we are here to serve them, and let us come together and put together legislation that overcomes the concerns of all those people who have contacted us. Like other members of this House, I have been contacted by people from all sides of this debate, and each of them, in my view, raised legitimate concerns with what they see before us. If the Morrison government does not get this legislation right, a future Albanese Labor government will, and we will ensure that religious freedoms are secured in law forever and a day.

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