Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I move the opposition amendment to government amendment (8):

(1) Clause 4, page 3 (lines 25 and 26), omit "for the purposes of specified legislation, including this Act".

(2) Clause 4, page 3, after line 30, insert:

Religious vilification is unlawful, with certain exceptions (see Part 4A).

(3) Clause 5, page 5 (lines 7 and 8), omit "for the purposes of specified legislation, including this Act".

(4) Clause 7, page 10 (line 8), omit "this Act", substitute "Part 4".

(5) Clause 7, page 10 (line 18), omit "facilities", substitute "service providers".

(6) Heading to clause 8, page 11 (line 30), omit "facilities", substitute "service providers".

(7) Clause 8, page 12 (lines 1 and 2), omit paragraph (a), substitute:

(a) establishing, directing, controlling or administering a hospital; or

(aa) if the religious body solely or primarily provides aged care services—the provision of the services; or

(8) Heading to clause 9, page 12 (line 17), omit "facilities", substitute "service providers".

(9) Clause 9, page 12 (line 22), omit "facilities", substitute "service providers".

(10) Clause 9, page 12 (line 24), omit "this Act", substitute "Part 4".

(11) Clause 9, page 12 (line 28), omit "facility", substitute "service provider".

(12) Clause 9, page 13 (lines 4 to 7), omit paragraph (2)(b), substitute:

(b) a body (a religious aged care service provider) that solely or primarily provides aged care services in accordance with the doctrines, tenets, beliefs or teachings of a particular religion;

(13) Heading to subclause 9(3), page 13 (line 15), omit "facilities", substitute "service providers".

(14) Clause 9, page 13 (line 18), omit "facility", substitute "service provider".

(15) Clause 9, page 14 (line 8), omit "facility", substitute "service provider".

(16) Clause 12, page 16 (line 22) to page 17 (line 10), omit subclause (1), substitute:

(1) To avoid doubt, making a statement of belief does not, in and of itself, constitute discrimination for the purposes of this Act.

(17) Clause 12, page 17 (line 15), omit ".", substitute "; or".

(18) Clause 12, page 17 (after line 15), after paragraph (2)(c), insert:

(d) that is unlawful under Part 4A (religious vilification).

(19) Clause 16, page 20 (line 12), omit "this Act", substitute "Part 4".

(20) Clause 18, page 22 (line 18), omit "for the purposes of specified legislation, including this Act".

(21) Page 41 (after line 7), after Part 4, insert:

Part 4A — Religious vilification

48A Religious vilification unlawful

(1) It is unlawful for a person to engage in conduct, on the ground of the religious belief or activity of another person or group of persons, that:

(a) is not in private; and

(b) a reasonable person would consider would threaten, intimidate, harass or vilify the other person or group.

Note: Complaints can be made to the Australian Human Rights Commission about conduct that is unlawful under this Part (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986, and section 46P of that Act).

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3) Public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

48B Exceptions

(1) A person does not contravene section 48A if the person establishes that the person engaged in the conduct reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in:

(i) for any genuine academic, artistic, religious or scientific purpose; or

(ii) for any purpose that is in the public interest; or

(iii) in making or publishing a fair and accurate report of any event or matter of public interest.

(2) For the purposes of subparagraph (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.

(22) Clause 49, page 42 (line 6), after "Part 4", insert "or 4A".

(23) Clause 50, page 43 (line 10), after "Part 4", insert "or 4A".

(24) Clause 51, page 44 (line 11), after "Part 4", insert "or 4A".

(25) Clause 70, page 57 (line 27), after "Part 4", insert "or 4A".

(26) Clause 70, page 58 (line 6), after "Part 4", insert "or 4A".

(27) Clause 73, page 59 (line 32), after "Part 4", insert "or 4A".

As I said earlier, there has been a lot of disagreement about what clause 12—the statements of belief clause in this bill—would allow and what it would not allow. The government says that the clause simply clarifies that there is no law against a person making a statement of belief. But disability groups, human rights groups, women's groups, aged-care organisations, the Australian Medical Association, LGBTIQ groups and the Law Council of Australia have raised alarm. Lawyers can argue about the precise legal impact of this provision, but it is impossible to escape the fact that the provision is drafted in a way that suggests people of faith should be able to discriminate against other Australians on the basis of race, gender, sexual orientation, age and disability, particularly in Tasmania, which is singled out in this provision. This is what the provision says. It literally says that a statement of belief will not constitute discrimination under any of Australia's existing antidiscrimination laws. All of Australia's antidiscrimination laws in each of the states and territories are actually listed in this clause, and so too is a specific provision of Tasmanian Anti-Discrimination Act.

Labor does not believe that people of faith in Australia are seeking a special right to discriminate against people on the basis of disability or gender or race or sexual orientation or any other protected attribute. We agree that the mere expression of a non-malicious statement of belief should not contravene any Australian law, and we want to reassure people of faith on that front. We stand ready to work with the government on a better way of providing that reassurance, if it can be done in a way that does not remove protections against discrimination. But a law that says, on its face, that one group of Australians should be allowed to discriminate against other Australians is not the way to do it. Quite apart from the precise legal impact of the provision, it sends the wrong signal—a very divisive signal.

Over three years ago, the Prime Minister made a number of election commitments, one of which was to ask the Australian Law Reform Commission to consider the very issue this provision is directed to addressing. The commission was supposed to report in March 2020, but the Prime Minister extended the reporting date over and over again, and now the commission has been directed by this government only to report on this important question 12 months after the bill becomes law. The Prime Minister likes to remind people, including his own party room, that the enactment of a religious discrimination act was an election commitment—that's true; it was—but this provision was not part of that election commitment. In fact, it was quite explicitly not part of the Prime Minister's election commitment. So, to those opposite, especially those of you who are concerned about this provision, I implore you to act consistently with what the Prime Minister actually promised at the last election and vote in favour of Labor's amendment. The amendment would ensure that no existing protection against discrimination will be impacted in any way by clause 12; instead, the amendment to clause 12 would provide clarity that a statement of belief, in and of itself, will not constitute discrimination under the Religious Discrimination Bill.

The Prime Minister says that he wants this bill to bring Australians together. If that is truly what he wants, he will support Labor's amendment to clause 12 of this bill.

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