Anne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | Link to this | Hansard source

I table a replacement explanatory memorandum and revised explanatory memoranda relating to the Religious Discrimination Bill 2022 and related bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated into Hansard.

Leave granted.

The speeches read as follows—

RELIGIOUS DISCRIMINATION BILL 2021

Our antidiscrimination laws play an essential role in protecting the liberty of our citizens, each as individual human beings.

Today, we fix an important weakness in our discrimination laws, as our government promised the Australian people that we would do at the last election. Today we honour that commitment.

Laws needed to protect citizens in a tolerant, multicultural, liberal democracy.

The Commonwealth has a Sex Discrimination Act, a Racial Discrimination Act, a Disability Discrimination Act and an Age Discrimination Act.

However, there is no standalone legislation to protect people of religion, or faith, against discrimination. Or indeed for those who choose not to have a faith or religion.

The introduction of this bill, the Religious Discrimination Bill 2021, will fix this.

In this age of identity politics we hear much about how we are identified by our gender, our age, our sexuality, our race, our ethnicity or our level of physical or intellectual ability. These are known as protected attributes, and they should be. We are rightly protected against discrimination in relation to any of these attributes.

But human beings are more than our physical selves.

As human beings, we are also soul and spirit. We are also, importantly, what we believe. For many, this can inform who they are more than anything else.

The protection of what we choose to believe in a free society is essential to our freedom.

In a liberal democracy it is like oxygen.

So it is only right we should expect that what we sincerely believe should be afforded the same protection from discrimination in a free liberal democracy as any other protected attributes of our humanity.

And, as provided for in this bill, this includes not being discriminated against for non-belief.

Such protections respect the true integrity and dignity of the individual. It's what makes them who they are, who we are, and how we choose to live our lives in accordance with the laws of this land.

This bill puts this right.

It is a sensible and balanced bill. I commend the Attorney on the work she has done in ensuring that it is a sensible and balanced bill.

It is the product of a tolerant and mature society that understands the importance of faith and belief to a free society, while not seeking to impose those beliefs on or ever seeking to injure others in the expression of those beliefs.

It balances, as Australia always must, freedom with responsibilities.

This bill also builds on Australia's proud record as the most successful multicultural and multi-faith nation on the planet.

To so many Australians, religion is inseparable from their culture. They are one and the same. To deny protection from discrimination for their religious beliefs is to tear at the very fabric of multiculturalism in this country.

We are the most successful multicultural country on the planet, united in our love of our country and the freedoms so many have come here to enjoy—particularly to escape discrimination and persecution for their religious beliefs. They came here seeking that freedom. That freedom should be protected for them. Those freedoms, those most important to them, should be protected from discrimination.

Our nation is an exemplar of acceptance and tolerance.

The Australia we love is one where the people of all faiths and beliefs live side by side. We're an example to the world.

A free society is a tolerant society.

In a free society, we don't go around imposing our views on each other or seeking to injure one another with those views.

People should not be cancelled or persecuted or vilified because their beliefs are different from someone else's in a free liberal democratic society such as Australia.

The whole point of faith is choice—the action of free will.

It is for this reason that free societies typically have a strong tradition of faith. Faith and freedom have been so inseparable in the formation of liberal democracies all around the world.

It is therefore no wonder that people of faith and religion have played such a prominent role in the creation and establishment of free societies. The underpinning principles of our free societies—indeed, the notion of liberty itself—draw heavily from the roots of faith.

Religion and faith are also about humility and vulnerability.

They are about love. They are about compassion. They are about speaking the truth in love, as the scriptures say.

They recognise the sanctity and dignity of every single human being.

Faith is about the heart. It is about the soul and the spirit. It's not about the state or the marketplace.

In our democracy we rightly divide church from state—that is an important liberty. But we do not separate faith from community.

History has shown that dictators and autocrats have never felt at ease with people of faith amongst their ranks in their societies. They have never felt at ease with faith and religion. They have never felt comfortable with human choice, with human dignity and the refusal of individuals to give to the state, what is the proper place of the divine.

Intolerance towards faith and religion, is to see the life of faith as a threat to nation and liberty and often the state.

In so many settings, faith strengthens lives. It provides that sense of belonging. It builds and sustains and nurtures communities.

I am so grateful for the contribution of countless Australians of faith—who have built schools, hospitals, food kitchens and shelters, and started services to meet almost every human need you can imagine.

Religious communities have always sought to bridge the gaps of human need in our free society, between the state and the market place.

We need institutions like the Salvos, Jewish Care, Lifeline, Muslim Women Australia, Mission Australia, the Brotherhood of St Laurence, and countless others offering services large and small.

All of them bring a vital human dimension to their work.

They attend to the needs of the soul and the spirit—not just the needs of our physical selves.

To leave the fulfillment of such needs only to the government and the state or the market is to weaken our society.

As the late Rabbi Lord Jonathan Sacks argued, the state can deliver much—health, welfare, education, defence, the rule of law. But I would agree with him when he argues that the state is not the author of the active citizenship that creates the face-to-face care and compassion that constitutes the good society.

The capacity of the state or the market to meet the needs of our soul and spirit has great limitations, if any capacity at all. They can be incredibly impersonal.

In between the state and the marketplace you will find the community, you will find family, you will find the individual—and there also you will find the work of faith and religion.

The protection from discrimination of faith and religion in the public sphere is therefore central to the strength of our civil society and the health of communities, families and, indeed, our very selves.

Our country is better because of the generosity and charity of our religious communities and institutions.

This bill is about helping protect what we value as Australians: difference, fairness, choice, charity and, if we are not hurting others, the right to live our lives as we choose to.

This bill is a protection from the few who seek to marginalise and coerce and silence people of faith because they do not share the same view of the world as them.

The bill is based on four years of work and is a longstanding commitment of our government.

In November 2017, the government appointed an Expert Panel into Religious Freedom chaired by the former father of this House, the Hon. Philip Ruddock, a fine attorney.

The expert panel received over 15,000 submissions.

It reported to the government in 2018.

In 2019, the government took to the Australian people a commitment to introduce new protections against religious discrimination, consistent with other antidiscrimination laws.

Since then, the government has been working through the issues with so many groups.

We have consulted widely on this bill. And again I thank the Attorney-General for her role in leading this process, and her predecessor.

This bill is balanced and thoughtful. It does not take from the rights and freedoms of others.

We do not seek to set one group of Australians against another, because to do so would diminish us all.

It strengthens important freedoms that have been buffeted over recent years.

The bill honours the mandate we have from the Australian people to protect Australians of faith and religion against discrimination.

This bill is about extending the umbrella of fairness that is so fundamental to our national character, because Australians strongly believe in fairness.

This bill seeks to protect people of faith from discrimination on the basis of their religion in daily life, including work, education, buying goods and services and accessing accommodation.

While there are some provisions in the existing laws that provide some protections for people of faith, these can be complex and can create uncertainty.

And they are inconsistent across Australia.

In particular, there is a gap in New South Wales and South Australia, where there is either limited protection or no specific protection against religious discrimination.

This bill will provide for the first time protections for those of faith at the Commonwealth level, and in the states of New South Wales and South Australia where there is currently no state based religious discrimination legislation.

This bill brings clarity and it provides confidence that Australians of faith can have confidence they will be protected from discrimination.

A Sikh should not be discriminated against because of the turban they wear.

Nor a Maronite because of the cross around their neck.

Nor a Muslim employee who keeps a prayer mat in the bottom drawer of their desk at work.

Nor a Hindu couple who are seeking to rent a property.

Nor the Jewish school seeking to employ someone of their faith—if that is their preference—and the publicly stated policy of the school.

This bill ensures people can't be persecuted for moderately expressing a reasonable belief—what could be fairer than that?—whether that belief is motivated by—or indeed, critical of—a religion.

It recognises the unique ways in which those of faith express their beliefs and ensures that good faith statements of that belief are appropriately protected for both religious and non-religious views.

However, the bill draws a clear line against harassment, vilification or intimidation of anyone. Religious faith should always be expressed in love.

This bill is about creating a bigger space for everyone in our national life—to be themselves, who they believe, what they believe, free of discrimination, coercion and judgment.

That is our Australian way, and it always has been so.

The bill recognises that religious schools must be free to uphold the tenets of their faith and the ethos that makes their school a community. It is recognition of the sacrifices parents make to educate their children in accordance with their values and beliefs and the choices they have made for their children's education.

As many schools have said throughout this process, 'faith is caught not taught'.

The bill protects the fundamental right for religious schools to hire religious staff to maintain their religious ethos in accordance with a publicly available policy.

This protection will be able to override state or territory laws which seek to interfere with this right.

The approach detailed in this bill provides certainty to school communities and to the staff they employ through the development of policies that are transparent to the school community. It's only fair.

Nothing in this bill—I stress: nothing—allows for any form of discrimination against a student on the basis of sexuality or gender identity. You won't find anything of that nature in this bill. Such discrimination has no place in our education system.

The protections in this bill affirm the generous, openhearted and accepting culture that is embodied in much of our national life.

However, we believe it is important that what has been treated as a culturally accepted norm should be better codified in law.

Sadly, every age faces its share of bigotry against people of faith. The Treasurer and his colleagues sadly know too much about this in their own personal lives and in their own communities. I particularly acknowledge all

those of the Jewish faith. It is a great shame that the Treasurer of our country has to be offered close personal protection not because he is the Treasurer but because he is a Jew.

The values of 'tolerance' and 'diversity' have been appropriated against Protestant Christians, Orthodox Christians, Catholics, Mormons, Muslims, Jews, Buddhists, Hindus, Baha'is, Sikhs and so many more religions.

Discrimination against people of faith is not a new thing; it is ancient.

The sectarian divide that dominated almost the first two centuries of European settlement in Australia is testament to that. Catholics and Protestants. Thankfully now a thing of the past; we worship freely together and openly.

Equally, that sectarian divide is a reminder that people of faith too have a responsibility to treat others as they themselves seek to be treated—another great principle and teaching of faith.

Still, many people from various religious traditions are concerned about the lack of religious protection against the prevalence of cancel culture in Australian life. It's true. It's there. It's real.

The citizens of liberal democracies should never be fearful about what they believe, the lives they lead or the God they follow, if, indeed, they choose to follow one or acknowledge one at all.

Australians shouldn't have to worry about looking over their shoulder, fearful of offending an anonymous person on Twitter, cowardly sitting there, abusing and harassing them for their faith, or transgressing against political and social zeitgeists.

We have to veer away from the artificial and phoney conflicts, boycotts, controversies and cancelling created by anonymous and cowardly bots, bigots and bullies.

In our secular society, every religion and belief should have the same rights and freedoms. That's what freedom is.

That means the faith of any religion, as well as no religion, shouldn't override the rights of others in a free society.

That means we rightly have a secular democracy and government, but that does not afford secular humanism the status of a state religion, as I stated in my maiden speech in this place.

Just over 80 years ago President Franklin Delano Roosevelt spoke about what he called the four essential human freedoms: freedom of speech, freedom from want, freedom from fear and freedom of worship.

In Australia, Sir Robert Menzies was so taken by the four freedoms that he made them integral to his 'Forgotten People' broadcasts. These broadcasts became the intellectual foundation of the party that he founded and I have the great privilege to now lead in this place.

In its DNA, together the Liberal and the Nationals—I join with the Deputy Prime Minister—our government, believes in these four freedoms in the deepness of our own DNA.

The freedom to worship is not merely the freedom to believe.

It's the freedom to think.

It is the freedom to exercise our conscience.

It is the freedom to doubt.

Indeed, it's the freedom not to believe.

This protection will give Australians of faith confidence—confidence to be themselves and confidence in the country they belong to, a resilient democracy that can embrace faith and not be threatened by it.

Our faith communities contribute to our national life, all playing a part in helping live out our great destiny as a people, Australians, one and free.

RELIGIOUS DISCRIMINATION (CONSEQUENTIAL AMENDMENTS) BILL 2021

The Religious Discrimination (Consequential Amendments) Bill 2021 makes consequential amendments necessary to support the implementation of the Religious Discrimination Bill 2021.

This bill, together with the Religious Discrimination Bill, implements recommendations 15 and 19 of the Religious Freedom Review.

This legislative package introduces, for the first time, comprehensive federal protections against discrimination on the basis of religious belief or activity. This package also establishes the position of the Religious Discrimination Commissioner within the Australian Human Rights Commission.

This bill, while containing only consequential amendments, nevertheless forms an important part of these reforms. It amends existing Commonwealth legislation to ensure that discrimination on the basis of religious belief or activity is treated in the same manner as discrimination under existing antidiscrimination law. It also contains a contingent amendment to clause 11 of the Religious Discrimination Bill to prescribe the Victorian Equal Opportunity Act 2010 only if the amendments to that act made by division 2 of part 2 of the Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Victoria) are enacted by the Victorian parliament and commence.

Respecting diversity, including diversity of religious belief, not only is fundamental to recognising the inherent dignity of the individual but also contributes to the democratic life of our community. The Australian government strongly believes that all Australians should be able to hold religious beliefs and practice their faith publicly, without fear of discrimination.

Complaints under the Religious Discrimination Act

This bill amends the Australian Human Rights Commission Act 1986 to ensure that an avenue for redress is available to individuals subject to discrimination on the basis of religious belief or activity.

The amendments in this bill extend the commission's existing complaints-handling functions to complaints of unlawful discrimination under the Religious Discrimination Act.

Accordingly, a person aggrieved under the Religious Discrimination Act will be able to make a complaint to the commission alleging that they have been discriminated against on the basis of their religious belief or activity.

If a complaint cannot be successfully conciliated, the complainant may then proceed to the federal courts.

These amendments are essential to ensure that victims of religious discrimination are able to access a remedy for the violation of their rights to freedom of religion and to equality and non-discrimination.

The commission's complaints-handling procedures are free and accessible for all parties. Requiring complaints to go through conciliation prior to reaching the courts is a key measure in ensuring access to justice, and plays an educative role in enabling individuals and organisations to better understand their rights and responsibilities. Conciliation provides an important opportunity for the parties to a discrimination complaint to resolve matters amicably, without proceeding to litigation in the courts.

This bill also makes amendments to the Australian Human Rights Commission Act and the Inspector-General of Intelligence and Security Act 1986 so that complaints of discrimination on the basis of religious belief or activity are dealt with by the appropriate entity. Accordingly, the commission will be required to refer complaints regarding the conduct of Australia's intelligence agencies to the Inspector-General of Intelligence and Security and to refer complaints relating to discriminatory industrial instruments to the Fair Work Commission. This reflects the current approach under existing federal antidiscrimination law.

The bill also makes minor technical amendments to support the commission's extended complaints-handling function.

Religious Discrimination Commissioner

This bill makes the necessary amendments to the Australian Human Rights Commission Act to establish the Religious Discrimination Commissioner as a member of the commission.

These administrative amendments ensure that the Religious Discrimination Commissioner is conferred the same functions, powers, duties and privileges as the existing special-purpose commissioners. This includes, for example, the function of assisting the court as amicus curiae in certain proceedings, including those which may have significant implications for the administration of the Religious Discrimination Act.

These amendments will also ensure that the commission may delegate certain functions or powers to the commissioner, that the commissioner is protected from civil actions related to the performance of their functions or powers in good faith and that the commissioner is subject to the commission's statutory nondisclosure obligations.

Exceptions in the Fair Work Act 2009

This bill will amend the Fair Work Act to recognise the Religious Discrimination Act as an antidiscrimination law for the purposes of section 351 of the Fair Work Act.

Section 351 of the Fair Work Act provides that an employer must not take adverse action against an employee or prospective employee on the basis of a number of attributes, including on the basis of their religion.

By adding the Religious Discrimination Act to the list of antidiscrimination laws in section 351, the bill will ensure that conduct which is not unlawful under the Religious Discrimination Act will not be unlawful for the purposes of the protection from adverse action taken because of an employee's religion in the Fair Work Act. This will provide consistency across federal antidiscrimination law and ensure that persons acting in accordance with the exceptions in the Religious Discrimination Act have a defence to an adverse action claim under the Fair Work Act.

Other amendments

This bill will amend other Commonwealth legislation that refers to the existing framework of antidiscrimination laws so as to include references to the Religious Discrimination Act. This includes listing the Religious

Discrimination Act for the purposes of the Sea Installations Act 1987 and providing in the Civil Aviation Act 1988that civil aviation regulations may be inconsistent with the Religious Discrimination Act if necessary for the safety of air navigation.

Amendment of the Religious Discrimination Bill

This bill also contains a contingent amendment to clause 11 of the Religious Discrimination Bill. Clause 11 provides that religious education institutions are able to preference people in employment who hold or engage in a particular religious belief or activity. The preference must be made in good faith and in accordance with a publicly available policy. Clause 11 only operates in relation to state or territory laws that are prescribed by regulation. The purpose of this amendment is to prescribe a Victorian law on the face of the Religious Discrimination Bill that, if amendments to the Victorian law are enacted, will operate to restrict an existing exemption for religious schools under the Victorian law.

This amendment will prescribe the Victorian Equal Opportunity Act 2010 only if the amendments to that act made by division 2 of part 2 of the Equal Opportunity (Religious Exceptions) Amendment Act 2021 (Vic.) are enacted by the Victorian parliament and commence. The amendment will insert a new paragraph into subclause 11(2) to refer to the Victorian Equal Opportunity Act 2010. Consequential amendments will also be made to subclauses 11(3) and (4).

Conclusion

The amendments in this bill will facilitate the implementation of the Religious Discrimination Act, which will form an essential new part of Australia's human rights and antidiscrimination architecture.

This bill will ensure that persons who have been subject to discrimination on the basis of their religious belief or activity are able to pursue an appropriate and effective remedy, whether that is under the Religious Discrimination Act or the Fair Work Act. These amendments are essential in protecting individuals who have been subject to discrimination on the basis of their religious belief or activity and ensuring the proper operation of the antidiscrimination framework.

HUMAN RIGHTS LEGISLATION AMENDMENT BILL 2021

The Human Rights Legislation Amendment Bill 2021 amends existing Commonwealth legislation to better protect the right to freedom of religion, giving effect to several recommendations of the Religious Freedom Review.

Freedom of religion interacts with a wide range of laws at a Commonwealth, state and territory level. However, issues of freedom of religion at the Commonwealth level are most closely affected by government regulation in the context of antidiscrimination law, charities law and marriage law.

In response to the recommendations of the Religious Freedom Review, this bill makes amendments to these three areas of law.

Religious Freedom Review

On 22 November 2017, the then Prime Minister announced a review into religious freedom in Australia, to be conducted by an expert panel chaired by the Hon. Philip Ruddock.

The review's final report was provided to the then Prime Minister on 18 May 2018. The final report is the result of extensive public consultation, including consideration of over 15,500 submissions and 90 consultations with a wide range of stakeholders in every state and territory.

The review was a timely opportunity to consider the protection of the right to freedom of religion in Australian law, and the manner in which it interacts and intersects with other rights.

The review made 20 recommendations, three of which are implemented by this bill (recommendation 3, 4 and 12).

Objects clauses in antidiscrimination law

This bill amends existing antidiscrimination law to reflect the equal status of all human rights.

This implements recommendation 3 of the Religious Freedom Review.

The rights to equality and nondiscrimination frequently intersect with other rights, including the right to freedom of religion.

However, the Religious Freedom Review noted that objects clauses in existing federal antidiscrimination law do not currently reflect the potential tensions between these rights.

While the existing clauses in the Age Discrimination Act 2004, Disability Discrimination Act 1992 and the Sex Discrimination Act 1984 refer to objects related to the promotion of the rights to equality and nondiscrimination, they do not expressly reference other human rights, such as the right to freedom of religion.

Accordingly, this bill amends these existing objects clauses, and introduces an objects clause in the Racial Discrimination Act 1975, to ensure that each federal antidiscrimination act has an objects clause which recognises the indivisibility and universality of all human rights, the equal status of all human rights in international law and the principle that every person is free and equal in dignity and rights.

These amendments will ensure that appropriate regard is given to all human rights in antidiscrimination law, including the right to freedom of religion. This reflects a key principle in international law—that all human rights must be treated with equal importance, and no rights should be prioritised at the expense of any other.

Amendment to the Charities Act

This bill amends the Charities Act to codify that otherwise charitable entities that engage in lawful activities promoting a traditional view of marriage are undertaking those activities for the public benefit and not contrary to public policy.

This reflects the existing legal position that such charities will not be disadvantaged for, in and of itself, advocating for a view of marriage as being the union between a man and a woman.

This implements recommendation 4 of the Religious Freedom Review.

A fundamental aspect of the right to freedom of religion is the freedom to manifest one's religion, including through establishing and maintaining appropriate charitable institutions. Faith based charitable institutions continue to make a significant contribution to all aspects of Australia's civic life.

Following the debate on marriage equality, the Religious Freedom Review noted that there was possible ambiguity around whether advocacy of a 'traditional' view of marriage could constitute a disqualifying purpose under the Charities Act, which would result in the loss of charitable status.

The review ultimately came to the conclusion that mere advocacy would not meet the threshold of a disqualifying purpose, and advocating a change to law or policy in support of another charitable purpose (such as advancing religion) may itself be a charitable purpose.

However, the review recognised there was benefit in amending the Charities Actto give certainty to faith based charities. Accordingly, this amendment puts this issue beyond doubt and ensures that a charity that advocates in favour of marriage being the union between a man and a woman to the exclusion of all others will not lose its charitable status solely due to such advocacy.

Amendment to the Marriage Act

This bill amends the Marriage Actto clarify that educational institutions established for religious purposes may lawfully refuse to provide goods, services or facilities in relation to the solemnisation of a marriage, in accordance with their religious belief.

This implements recommendation 12 of the Religious Freedom Review.

The solemnisation of a marriage is a significant event for any couple and has particular religious significance for people of faith.

Australian law must appropriately balance the right of all couples to enjoy equal access to marriage with the right to freedom of thought, conscience and religion.

It was in recognition of this fact that the parliament, as part of the protections for freedom of religion in the Marriage Amendment (Definition and Religious Freedoms) Act 2017, introduced exemptions for bodies established for religious purposes to refuse to provide goods, services or facilities in association with any marriage, if the refusal:

conforms to the doctrines, tenets or beliefs of that religion, or

is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

The Religious Freedom Review recognised that there was ambiguity as to whether all religious institutions, particularly religious educational institutions, are covered by this exemption.

The right to freedom of religion includes the freedom to establish and maintain places of worship. The government is of the view that places of worship and other religious sites should not be required to be used for purposes that are inconsistent with the religious tenets upheld by the religious body.

The amendment in this bill introduces a new provision in the Marriage Act which extends the existing exemption for bodies established for religious purposes to apply also to educational institutions established for religious purposes. This includes schools, colleges, universities and other educational institutions.

This exemption will ensure that religious educational institutions are not compelled by law to provide support for marriages which are inconsistent with the fundamental tenets of their religion.

Conclusion

The amendments in this bill will ensure freedom of religion is given necessary protection in existing Commonwealth legislation, and that an appropriate balance is struck between freedom of religion and other human rights in federal antidiscrimination law.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.