Prime Minister Scott Morrison announced his government would enact a religious discrimination law and appoint a “Religious Freedom Commissioner” in December 2018, before the following year’s election.
This did not happen. Instead, it became an election commitment. Morrison promised he would “work with the Opposition, crossbench and key stakeholders, in a spirit of bipartisanship”, to table a religious discrimination bill that already enjoyed cross-party support. This promise was broken.
Morrison promised to 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 promise was broken.
On December 2, the Senate referred the Religious Discrimination Bill 2021, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021 — referred to as “the bills” — to the Parliamentary Joint Committee on Human Rights and the Senate Legal and Constitutional Affairs Committee for inquiry and to report by February 4.
The committees handed down their reports and recommended that the federal government consider problems raised in relation to Clauses 11 and 12 of the Religious Discrimination Bill 2021, especially the concerns of constitutional law expert Professor Anne Twomey and amendments proposed by Professor Nicholas Aroney, and that the Senate pass the bills.
Labor Senators observed that back in 2018 the Morrison government had committed “within a fortnight, [to] legislate to ensure children are protected from discrimination at school”. What they failed to mention is that, in October 2018, the PM was asked what he would say to gay teens who faced the threat of expulsion from schools because of their sexuality.
The PM said he “understands and is going to take action to fix it”. The commitment was not to protect “children”, nebulously described, but quite specifically to protect LGBTIQ+ children. That Labor failed to make this clear in its response is both perplexing and disappointing.
Australian Greens Senators, in their dissenting report, noted that: “The proposed review by the Australian Law Reform Commission is set to report a year after the passage of any Religious Discrimination Bill, meaning that in the intervening period between the Prime Minister’s promise and the reporting date, an entire cohort of students will have entered high school and graduated”.
In the lead-up to a federal election, Morrison’s government is handling this package of bills in much the same way it has managed so many public policy issues — rushed and botched.
The bills were rushed through the inquiry over a distressing holiday-New Year period, when Omicron swept the nation, displacing lazy summer holidays by anxiety-ridden days in the hot sun at testing queues. A stalled vaccination rollout (especially the booster and vaccination for children) terrified the public as the death toll in aged care and of the elderly continued to rise. Rushed policy with no effective planning resulted in rapid antigen testing kits being either unavailable or prohibitively priced.
And so it was with these bills: they were rushed through parliamentary committees, with limited time for submissions and appearances.
Clause 12
The result is that the government has introduced a complex, unsafe and divisive parcel of bills. Twomey, in her analysis of Clause 12, characterised it as “conceptually confused and probably invalid to the extent that it seeks to control the operation of a state law rather than establish a direct inconsistency with it or exclude it from operating within a field that has been exhaustively and exclusively covered by a Commonwealth law”.
Clause 12 provides that statements of belief that satisfy the definition of that term in the bill would not constitute discrimination under existing federal, state or territory anti-discrimination law.
Labor Senators have called on the federal 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”.
The Greens’ dissenting report called for “further consideration of the bills [and that they] be delayed until an appropriate consultation process has been undertaken, and until the Sex Discrimination Act 1984 has been amended to provide protection for LGBTIQA+ students”.
On introducing the bills into the House of Representatives on November 25, the PM stated that the religious discrimination bill would “fix an important weakness in our discrimination laws”. Morrison noted that while the Commonwealth has a Sex Discrimination Act, a Racial Discrimination Act, a Disability Discrimination Act and an Age Discrimination Act; “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 explanatory memorandum to the bill states that protections against discrimination on the grounds of religion under existing Commonwealth, state and territory laws “are piecemeal, have limited application and are inconsistent across jurisdictions”. The PM insisted that “the introduction of this bill, the Religious Discrimination Bill 2021, will fix this”. Unfortunately, it has done the opposite.
Twomey noted that Clause 12 “does not constitute discrimination for the purposes of a number of Acts, including State Acts”. Twomey rightly asked: “How can a Commonwealth law dictate the interpretation of what amounts to discrimination under a State law? It cannot do so. It cannot amend or alter a State law or instruct a court as to how to interpret the State law. All it can do is enact its own law...”
Twomey observed that it “was confounding to contemplate why these provisions of a highly contentious Bill would be drafted in such a provocative manner”. She strongly recommended the bill be amended.
Stripping protections
The Greens drew attention to multiple submissions that expressed “profound concerns at … stripping away existing protections in antidiscrimination law at multiple levels around the country".
The Australian Human Rights Commission (AHRC) considered that the explicit overriding of all other discrimination laws “is not warranted, sets an alarming precedent, and is inconsistent with the stated objects of the Bill, which recognise the indivisibility and universality of human rights. By contrast, this provision seeks to favour one right over all others, and to additionally elevate one form of speech above others".
The ACT Government stated in its submission that it and others “condemned these unprecedented override clauses … It sets a dangerous precedent that the Federal government may seek to continue eroding robust, local discrimination protections in States and Territories, that reflect the will of residents of those jurisdictions. It is particularly concerning that the federal government may seek to do this through regulations rather than further legislation, reducing the amount of scrutiny on future parliamentary action seeking to extend religious freedom".
Similarly, the Tasmanian government’s submission stated: “The Religious Discrimination legislative package as drafted would diminish the ability of the Tasmanian Anti-Discrimination Tribunal to deal with certain complaints and that, as a Government, we continue to strongly advocate for no weakening of our Anti-Discrimination laws.”
These concerns were shared by the Australian Council of Human Rights Authorities, comprising key anti-discrimination officials in each jurisdiction. It stated that the bill “undermines the coherence of Australia’s anti-discrimination framework by overriding state and territory anti-discrimination legislation”.
The Australian Discrimination Law Experts Group (ADLEG) explained that Clause 12 would have wide-ranging consequences in limiting liability for discrimination, vilification and otherwise harmful comments against others that target protected attributes. “For instance, it is currently unlawful for a person in Tasmania to use a racial epithet or slurs to offend, ridicule, insult, intimidate or humiliate another person on the basis of their race. Under Clause 12, this behaviour would become lawful — but only for those who do so on the basis of a religious belief.”
The Public Interest Advocacy Centre (PIAC) and the ADLEG both expressed concern with Clause 12 in that “the override of state and territory discrimination laws will significantly limit access to justice for victims of discrimination in Australia”.
While acknowledging that there would be limitations on the substance of statements that would attract protection under clause 12, Equality Australia suggested that the provision, as drafted, would likely protect statements that “offend, insult or humiliate particular groups of people”.
Submitters highlighted that Clause 12 could also increase discrimination against people of faith, particularly those of minority faith traditions.
The PIAC said that under the Religious Discrimination Bill it could be permissible for a Jewish person to be told “that they are responsible for killing Jesus”.
Venerable Akaliko, Board Member of the Buddhist Council of New South Wales, drew from his own experience to explain that “moderately expressed views can still cause a lot of harm”. He said: “It is quite common for Christians to come up to me on the street and to tell me that I am going to Hell and that I’m following the wrong religion … It doesn’t go far enough to protect people from views which are offensive or humiliating.”
The AHRC also strongly opposed the statement of belief provisions. AHRC President Emeritus Professor Rosalind Croucher told the committee that it considers the clause “not legally necessary”, as “other provisions of the bill will provide confidence to people that they can speak freely about their faith without infringing the rights of others”.
AHRC deputy director Graeme Edgerton further explained: “It’s not necessary to protect moderate statements of religious belief. But that’s not the legal effect of clause 12. The legal effect of clause 12 is broader than that, and that’s why we have concerns about it. It not only protects moderate statements; at the margins, because it overrides existing anti-discrimination law protections, it will also have real impacts on people who rely on those protections, particularly in relation to demeaning or degrading statements.”
The AHRC said it is unaware of any case where genuine statements of belief “have been held to be contrary to Australian anti-discrimination law” and argued that the “only thing that Clause 12 of the Bill does is to affect the operation of anti-discrimination legislation (both Commonwealth laws and State and Territory laws) to permit conduct that would otherwise amount to discrimination”.
The AHRC wants Clause 12 to be removed from the bill. Sane voices are calling for a delay of the bills — in their current form — so that they can be redrafted after greater community engagement. These are completely sensible demands.
And to do otherwise? The old adage “fools rush in where angels fear to tread” comes readily to mind.
[Gabrielle Walsh is a writer and political historian with decades of experience in both public policy and analysing or helping frame legislation.]