Chapter 5

Committee view

As stated in chapter 1, the committee is grateful to stakeholders who engaged in this inquiry in a respectful and constructive way. The inquiry was enriched by the personal insights shared, and the considered views expressed about the ways in which the proposed package of legislation may impact on the lives of those of religious faith and of no religious faith.
Across the diverse views voiced during the course of this inquiry, there was broad support for measures to protect people from discrimination on the grounds of religious belief and activity. The lack of such protections is a significant gap in Australia’s anti-discrimination regime and its obligations under international law.
The absence of a comprehensive set of protections against religious discrimination in Australia is remarkable, particularly given the fundamental way in which spirituality and religion have informed and continue to contribute to the diverse and pluralistic fabric of Australian society.
These bills are, therefore, a necessary addition to Australia’s anti-discrimination laws, seeking to fill that gap and afford people both of religious faith and of no religious faith protections to practice their beliefs without interference or recrimination.
There is some apprehension about certain aspects of these bills. It was put to the committee that the measures in the legislative package extend beyond ‘standard’ or ‘orthodox’ anti-discrimination provisions, like those which exist to protect other personal attributes. However, the committee is persuaded that the unique nature of religious belief and activity, including that they are expressive and support and encourage activity in communal settings, warrants specific protections.
Clause 12 of the Religious Discrimination Bill 2021 (religious discrimination bill) – the ‘statement of belief’ clause – was the subject of much discussion amongst stakeholders. The committee agrees that there is a balance to be struck between the competing values that inform Australian society, but it is not convinced that affording protection to people of religious faith (or of no religious faith) to express moderately held religious beliefs made in good faith would disturb that balance or skew it in favour of one particular attribute.
A healthy pluralist society must allow for people of religious faith to act and express in accordance with their beliefs—and likewise for those not of religious faith. The religious discrimination bill seeks to protect this key value, while acknowledging that such a right is not absolute. In particular, the clear limitations placed on clause 12 (and other provisions of the bill) provide the space necessary for people of religious faith to practice their faith while also protecting social cohesion and the fundamental rights of others.
The committee acknowledges stakeholders’ concerns about section 38 of the Sex Discrimination Act 1984 (Sex Discrimination Act) and discussion about possible amendments to that Act. The operation of exemptions under the Sex Discrimination Act, particularly in the context of education institutions and the implications for teachers and students, is a serious issue.
Media reports over recent days have suggested that the government may seek to amend the Sex Discrimination Act. While this report broadly reflects on key positions on this issue (see chapter 3), the committee was advised by the Attorney-General’s Department that such an amendment to the Sex Discrimination Act had not been approved. Therefore, at the time of tabling, no such amendment was available to the committee for further consideration or comment.
The prospective operation of the bills, and the religious discrimination bill in particular, was contested by eminent representatives of Australia’s legal community. This points to the legal complexity of these bills, and the committee agrees that they will likely attract judicial consideration. As Professor Nicholas Aroney of the University of Queensland told the committee, it is not without precedent that progressive legislation has passed into law and subsequently been clarified by the judiciary.1
That said, the committee considers that the Commonwealth government should ensure that constitutional questions are addressed to the extent possible prior to enactment of the bills. In particular, the committee urges the government to give careful consideration to the issues raised by Professors Anne Twomey and Nicholas Aroney, including Professor Aroney’s proposed amendments.

Recommendation 1

The committee recommends that the Commonwealth government considers the issues raised in relation to clauses 11 and 12 of the Religious Discrimination Bill 2021, with particular regard to the:
concerns of Professor Anne Twomey; and
drafting amendments proposed by Professor Nicholas Aroney.

Recommendation 2

Subject to Recommendation 1, the committee recommends that the Senate passes the bills.
Senator the Hon Sarah Henderson

  • 1
    Professor Nicholas Aroney, Proof Committee Hansard, 20 January 2022, p. 13.

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