Tuesday 15th October 2019
Hansard of the Legislative Council

Anti-Discrimination Act 1998 and Religious Discrimination Bill

[8.06 p.m.]
Mr FINCH (Rosevears)- Mr President, I have had a legal assessment of this motion and intend to provide that in support of this motion by the member for Nelson.

I will not read through the motion numbers, but in answer to point (1) of the motion, particularly important aspects of the Tasmanian Anti-Discrimination Act include the breadth of its protection for all Tasmanians from discrimination, the breadth of its expectation that we treat all others without discrimination and its clarity and accessibility of its processes for all Tasmanians.  This law does much more than simply create a process whereby an individual who feels they have been subjected to discrimination or related conduct can complain about that conduct.  It sets a standard of community expectations about how we, as Tasmanians, will engage with each other, how we will ensure that all Tasmanians are afforded a fair go and not be subjected to others expressing derogatory and demeaning views of us or behaving towards us in prejudiced and derogatory ways.

This is the nature of law.  It provides not only formal mechanisms for resolving disputes but also sets or articulates community standards.

Motion point (2) - in 2014, the then government proposed extending the scope of section 17 to cover all attributes, including religious belief, affiliation and activity.  While some additional attributes were agreed to by the Tasmanian Parliament, the extension to include religious belief, affiliation and activity was opposed by the current government.

Section 17(1) is a provision that drew on previous discrimination cases across Australia, but it made it clear that unlawful discrimination can include conduct that causes offence on the basis of a personal characteristic, such as that person's disability, that intimidates a person on the basis of a personal characteristic such as that person's race or ethnicity, that humiliates a person on the basis of a personal characteristic such as that person's marital status, that insults a person on the basis of a personal characteristic such as the person's gender identity and that ridicules a person on the basis of a personal characteristic such as the person's age.

It draws on that case law and sets out in clear terms what sort of conduct might, in the relevant circumstances, constitute unlawful conduct akin to discrimination.

It is important to recall that discrimination is defined to include less favourable treatment on the basis of the particular personal characteristics.  It should not seem novel to suggest that humiliating a person because they are Aboriginal is less favourable treatment, insulting them because of their sexual orientation is less favourable treatment, ridiculing or intimidating them because of their disability is less favourable treatment, or being offensive about a person's personal characteristics such as their gender or gender identity, is less favourable treatment.  What the Tasmanian act does that is unique is spell this out in a specific provision, rather than requiring people to read this meaning into the definition of discrimination.  To do this is responsible lawmaking.  If a lawmaker knows how a complex concept such as discrimination has been interpreted by courts, it is appropriate to ensure that the prohibition of conduct clearly spells this out for the public.  That way, all members of the community, not only experts in discrimination laws, can understand what is the community standard of conduct.

Motion point (3) - the dominance of complaints under section 17(1) from people with disability has continued.  In her 2017-18 annual report, Anti-Discrimination Commissioner, Sarah Bolt, reported that almost 52 per cent of complaints under section 17(1) included allegations of a breach on a basis of disability.  The next highest included allegations of a breach of section 17(1) on the basis of gender, almost 29 per cent; age, 25 per cent; race, 16 per cent; and sexual orientation, 8 per cent.  The report noted that a complaint can allege breaches on multiple grounds or attributes.  The previous year, 2016-17, saw disability identified as the basis of a section 17(1) breach in over 60 per cent of complaints, with age identified in 33 per cent, gender in 15 per cent, race in 13 per cent and sexual orientation in 7 per cent.

Motion point (4) - the federal bill has the direct effect of weakening protections put in place by the Tasmanian Parliament, through weakening section 17(1) and weakening the protections against discrimination.  This undermines the role of the Tasmanian Parliament in making laws for the good governance of this state.  It does this in the name of religious freedom, purportedly under international law, yet fails to reflect the important mechanism set out in those international laws for ensuring that protection of particular rights or freedoms do not undermine other rights and freedoms.  By failing to reflect those mechanisms, the federal government is not acting consistently with its international law obligations.  Article 18 of International Covenant on Civil and Political Rights states -

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

  3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

Article 19 of the same international agreement states -

  1. Everyone shall have the right to hold opinions without interference.

  2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

  3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

    (a)   For respect of the rights or reputations of others;

    (b)   For the protection of national security or of public order (order public), or of public health or        morals.

Article 26 of this covenant states -

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

There is nothing in article 16 that makes it subject to the kinds of limits found in articles 18 and 19.  Australia is, and has been for almost 40 years, a party to this international agreement. 

Motion point (5) - the process for dealing with complaints under the Tasmanian act will be seriously hampered by the provisions in the federal bill.  It will add a level of complexity to the commissioner's role in dealing with complaints, making the complaint process slower, more complex and potentially more expensive for parties, many of whom are financially disadvantaged and have little or no access to legal or advocacy support.  It will undermine the intended informality of the early stages of a complaint, when the parties are encouraged to sit down together to try to understand each other's perspective in an effort to resolve the complaint early.  The last annual report of the Tasmanian Anti-Discrimination Commissioner, Sarah Bolt, reported that 45 per cent of early conciliation meetings resulted in the complaint being resolved.  This level of resolution is possible because the parties are able to come together without unnecessary formality and preliminary technical legal steps.  This will be undermined by the federal bill.

Motion point (6) - the bill not only expressly seeks to undermine section 17(1) of the Tasmanian Anti-Discrimination Act; it also undermines the fundamental protection against discrimination found in sections 14 and 15 of the act.  This protection ensures that people are protected against words and actions that are discriminatory, abusive, ridiculing or bullying of a person because of their inherent personal characteristics.  It gives special status to such conduct if it is based in religious belief, licensing people to engage in disrespectful and abusive conduct if they do so in the name of their religious belief.  It is unlikely that most people of religious belief will seek to be able to publicly behave in such bigoted ways, but the bill licenses those who do.  It also shifts the community standards of respect and decency in our dealings with each other, which are set by discrimination laws, away from being a standard that applies to all of us to being a standard that applies unless you assert a religious belief.

Motion point (7) - the federal bill proposes, for the first time in Australian law, to give special legal status to religious statements, allowing the override of all discrimination protections in Australian law.  This is extraordinary and appears to have no basis in an established need.  Discrimination laws have to date set out community expectations of all of us and provided protection from all of us from discrimination. 

Motion point (8) - the bill weakens both the protection under section 17(1) and the broader protection against discrimination under sections 14 and 15 of the Anti-Discrimination Act.  The federal government has argued this is being done on the basis of the federal government's response to the report of the Religious Freedom Review, chaired by the honourable Philip Ruddock.  That review found that by and large, Australians enjoy a high degree of religious freedom and indeed it -

... encourages the Commonwealth, State and Territory governments to consider the appropriateness of existing exceptions in discrimination laws that seek to protect religious freedom. 

... Those jurisdictions that retain exceptions in anti-discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations.

The expert panel made no recommendations that statements of religion or indeed anything similar, be permitted to override either general discrimination protections under other federal discrimination laws or state or territory discrimination laws, or that they be permitted to override the protection in section 17(1) of the Tasmanian Anti-Discrimination Act.

In its response, the federal government noted that some of the recommendations relate exclusively to the states and territories and that its intention in some instances to consult with the states and territories reflects shared responsibility for the area of policy between the Commonwealth and state and territory governments and that it would proceed initially in a way that seeks a coordinated and cooperative approach.

The Government stated its intention to proceed by -

  • developing a General Amendment Bill for introduction to Parliament as soon as practicable, containing amendments to existing Commonwealth legislation relating to freedom of religion, including amendments to marriage law, charities law and objects clauses in existing anti-discrimination legislation;

  • developing a Religious Discrimination Bill to provide comprehensive protection against discrimination based on religious belief or activity.  The Government will work with the Opposition, crossbench and stakeholders in a consultative process which aims to allow for bipartisan agreement on a Bill which can be introduced into the Parliament with broad cross-party support;

  • establishing a standalone position of Freedom of Religion Commissioner at the Australian Human Rights Commission;

  • supporting the Australian Human Rights Commission to increase awareness of the importance of freedom of religion;

  • commencing a process with all State and Territory Governments seeking their consideration to review and amend their own existing policies and legislations which pertain to freedom of religion to ensure a high degree of consistency across Australia; and

  • referring recommendations that pertain to the States and Territories to a proposed Council of Attorneys-General Working Group and the Council of Australian Government (COAG) Education Council, as appropriate, to consider all relevant recommendations.

The extent to which the response considered state or territory laws, such as section 17(1), seems to be limited to statements of belief, relating to the nature of marriage -

Relatedly, the Government will consult with States and Territories on the terms of a potential reference to the ALRC to give further consideration to how best to amend the current Commonwealth anti-discrimination legislation to prohibit the commencement of any legal or administrative action, pursuant State-based anti‑discrimination legislation analogous to section 18C of the Racial Discrimination Act, that seeks to claim offence, insult or humiliation because a person or body expresses a view of marriage as it was defined in the Marriage Act before being amended in 2017.

It is relevant to note that the Government has referred all the recommendations relating to limiting the scope of exemptions or defences for faith-based in relation to excluding people with particular characteristics from education, work, et cetera, to the Australian Law Reform Commission for separate inquiry.  This is despite the Prime Minister, Scott Morrison, making a clear commitment prior to the Wentworth by-election to legislate to protect children from discrimination by faith-based schools on the basis of sexual orientation.  There is little correspondence between what the expert panel found and recommended in relation to religious freedom and what the Government's bill seeks to enact.

On the motion points 9 and 10, just to wrap up, the Tasmanian state Government has not made public its response, if any, to the exposure draft of the bill.  It is extraordinary for the federal government to expressly name a specific provision of a specific state law to be affected by a federal bill.  It is also extraordinary for the relevant state government to not speak up against this target undermining of state parliamentary power.  This silence has the potential to set a disturbing precedent in relation to any other Tasmanian statute that the federal government seeks to override. 

The Tasmanian Government should, in responding to this bill, reflect the will of the Tasmanian people as made clear by the Tasmanian Parliament in relation to previous attempts to water down section 17(1).  These, as we have heard, and you know, were rejected by the Tasmanian Parliament.  I support the motion.