Freedom of thought, conscience and religion or belief are fundamental human rights.
Labor has already expressed its support for the extension of the Commonwealth’s anti-discrimination framework to ensure Australians are not discriminated against because of their religious beliefs or activities– just as Commonwealth law currently prohibits discrimination on the basis of age, disability, race, sex, gender identity, sex characteristics and sexual orientation. Labor senators of the committee reiterate their support for that position.
So, the question before the committee is therefore not whether Labor or Liberal senators support the religious discrimination bills in principle– the question is whether the bills the government has introduced achieve their objective of protecting people of faith from discrimination while, at the same time, not diminishing the rights and freedoms of others.
Our consideration of these bills has been guided by the three principles set out by the Australian Labor Party following their introduction to the Parliament:
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.
Support for the extension of the Commonwealth’s anti-discrimination framework to ensure Australians are not discriminated against because of their religious beliefs or activities.
Consistent with the international covenant, ensuring that any extension of the Commonwealth’s anti-discrimination framework does not remove protections that already exist in the law to protect Australians from other forms of discrimination.
During this inquiry, submitters have expressed overwhelming support for extending the Commonwealth’s anti-discrimination framework to protect people of faith. This is an important point and we must not allow it to be obscured by the significant controversy over a handful of contentious provisions in the government’s religious discrimination bills.
At the same time, the fact that aspects of the government’s proposed reforms are highly contentious cannot be ignored and it must be recognised that this contention has come about largely as a function of the way in which the government has approached the task of developing this legislation.
Given the limited time available to prepare these additional comments, Labor senators have elected to focus their attention primarily on the contentious aspects of the religious discrimination bills—noting that each of us will have further opportunities to discuss other aspects of the bills in the Parliament or elsewhere.
Election commitments and broken promises
On 13 December 2018, the Prime Minister announced that his government would enact a Religious Discrimination Act and appoint a ‘Religious Freedom Commissioner’ before the 2019 election. That did not happen and thus it then became one of the government’s election commitments.
The promise to enact a Religious Discrimination Act was not an isolated commitment. It was accompanied by a series of other election commitments about how the government would go about the task of developing legislation and addressing the other recommendations in the Religious Freedom Review. The Prime Minister promised the Australian people that (among other things):
The government would ‘work with the Opposition, crossbench and key stakeholders in a spirit of bipartisanship’ to introduce a religious discrimination bill into the Parliament that already enjoyed cross-party support. This did not happen.
The government would establish a Council of Attorneys-General Working Group with states and territories, which would consider– and work through– recommendations of the Religious Freedom Review that related to state and territory anti-discrimination laws, including their interaction with Commonwealth laws. This did not happen.
The government would, within a fortnight (back in 2018), legislate to ensure children are protected from discrimination at school. This did not happen.
The government would, following consultation with states and territories, commission the Australian Law Reform Commission (ALRC) to conduct an inquiry ‘with a view to settling upon a legislative mechanism that would, on a nationally consistent basis, achieve the twin purposes of limiting or removing altogether (if practicable) legislative exemptions to prohibitions on discrimination based on a person’s identity, while also protecting the right of religious institutions to reasonably conduct themselves in a way consistent with their religious ethos’. More than three years later, no such inquiry has been conducted.
The government would task the ALRC, following consultation with states and territories, with considering ‘how best to amend current Commonwealth anti-discrimination legislation to prohibit the commencement of any legal or administrative action, pursuant to State-based anti-discrimination legislation analogous to section 18C of the Racial Discrimination Act 1975’ (i.e. section 17(1) of the Tasmanian Anti-Discrimination Act 1998). More than three years later, no such inquiry has been conducted.
Having broken each of these promises, the Prime Minister then waited until the last minute before an election to introduce one of the most complex pieces of proposed legislation this committee has been tasked with reviewing during this term of the Parliament. The government then demanded that this committee conduct its review over the Christmas holiday period in the middle of a pandemic giving potential submitters very little time to thoughtfully respond to the committee’s call for evidence.
The committee’s inquiry and report
The committee received hundreds of submissions and had very little time to consider each of them carefully.
This would be incredibly challenging at the best of times. But in the middle of what the Prime Minister has rightly described as a ‘very difficult summer’ for all Australians, it has proved to be challenging for senators to give the committee’s report— and, indeed, the subject matter of the report— the level of close attention it deserves.
That said, Labor senators wholeheartedly endorse the many laudable sentiments in the committee’s report, particularly about the need to protect people of faith from discrimination.
We would also like to record our support for Recommendation 1 of the committee’s report, which calls on the government to consider the issues raised by submitters in relation to clauses 11 and 12 of the Religious Discrimination Bill 2021 in particular. However, we note that while the committee has singled out the constitutional concerns identified by Professors Twomey and Aroney, the concerns expressed by submitters in relation to clauses 11 and 12 clearly extend beyond those issues.
Labor senators acknowledge that clauses 11 and 12 are intended to address real and legitimate concerns of religious organisations and people of faith.
Certainly it is the case that we support the right of a religious school to give preference in employment with a view to ensuring that the school is able to reasonably conduct itself consistently with its religious ethos. Preserving that right is the concern underlying clause 11.
We also agree that the mere expression of a non-malicious and ‘moderately expressed religious view’, in good faith, should not contravene any Australian law– and the government and Parliament have a role to play in reassuring people of faith of this. We understand that providing that reassurance is the primary purpose of clause 12.
In its effort to address those underlying concerns however, the government has produced two complex, divisive and novel provisions – and it has done so without consulting with the Opposition, or any state or territory government.
It is clear from the evidence received by the committee that clauses 11 and 12 are the most contentious and complex provisions in the Religious Discrimination Bill 2021.
Numerous submitters have argued that clause 12, in particular, would undermine protections that already exist in the law to protect Australians from other forms of discrimination, and that neither clause 11 nor clause 12 would achieve their objectives. Many submitters have also argued that– by overriding state and territory anti-discrimination law unilaterally– legitimate complaints relating, in whole or in part, to a ‘statement of belief’ under state and territory anti-discrimination laws would face a much more complicated and expensive process. In some cases, legitimate complaints may not be able to proceed at all.
Conversely, other submitters rejected this view, arguing that these concerns are overstated. For their part, such submitters contended that clauses 11 and 12– though imperfect –are essential to provide certainty to Australians that the law will protect the ability of religious schools to maintain their ethos and the right of people of faith to give expression to their religious beliefs.
Labor senators note that, in its appearance at the committee’s hearing on 21 January, the Attorney-General’s Department was unable to address many of the concerns that have been raised about clauses 11 and 12.
We also understand the frustration expressed by advocates for the bills that the extension of the Commonwealth’s anti-discrimination framework to protect people of faith has been delayed as a result of the length of time the government has taken to act on its promise in 2018 to bring forth these bills to the Parliament.
Against that background, we support the committee’s recommendation that the government considers the many concerns raised by submitters in relation to clauses 11 and 12. We would add that the government should work with the Opposition, crossbench and key stakeholders to address those concerns.
Further, Labor senators urge the government to engage directly with minority religious groups to address concerns that aspects of the bills may have the potential to negatively impact these groups through a reduced access to services.
Other concerns with the Religious Discrimination Bill
In the short time available to prepare these additional comments, Labor senators have not had the opportunity to address the concerns that have been raised by submitters about other provisions of the bill (though many of those concerns are set out in the committee’s report). Needless to say, the government should consider those concerns carefully and work with the Opposition, crossbench and key stakeholders to address them– whether by way of amendment(s) to the bills or, where appropriate, by other means.
Separately, Labor senators note that there is no anti-vilification provision in the government’s Religious Discrimination Bill. In light of well publicised incidents of religiously motivated violence, it is time for – at the very least – a mature national conversation about the call for greater legislative protection against vilification and incitement to hatred or violence based on a person’s religion or religious belief.
Labor senators of the committee wish to extend their thanks to those who have participated in the committee’s inquiry into these bills. We acknowledge that the question of religious discrimination in Australia, and how the Parliament should address it, is one that can evoke passionate responses among members of our community and appreciate the respectful manner in which participants conducted themselves throughout the course of the committee’s hearings.
The matter which the committee has been asked to consider is one that is both complex and difficult and we reiterate our disappointment that the committee has been provided with such little time to consider the bills and their provisions in greater detail.
Australia is a nation that is built on religious pluralism and freedom. Labor has and will continue to support the rights of Australians to manifest their religious beliefs in accordance with our obligations under Article 18 of the International Covenant on Civil and Political Rights.
Labor supports the notion that the Commonwealth’s anti-discrimination framework should be expanded to ensure that Australians are not discriminated against on the basis of their religious beliefs or practices. In doing so, Labor has made clear that it is important that such an extension does not remove existing protections Australians already enjoy against other forms of discrimination.
Throughout the course of the committee’s inquiry, it became clear that whilst most of the measures contained in the bills were welcome and worthy of implementation in law, certain provisions are highly contentious.
We accept the calls of certain key stakeholders for action, however it is important that the bills which do pass the Parliament are as well constructed as they can be. Thus, we implore the government to work with the Opposition, crossbench and key stakeholders to address the concerns of submitters to this inquiry with a view to ensuring that the religious discrimination bills are fit for purpose.
Senator Raff CicconeSenator Louise Pratt
Deputy ChairSenator for Western Australia
Senator for Victoria
Senator Deborah O’Neill
Senator for New South Wales