Religious Discrimination Motion

I have moved this Motion for debate because the Federal Government has proposed a piece of legislation which, if passed, would leave vulnerable Tasmanians with less protection from discrimination then they currently enjoy. 

The proposed legislation will do this by rendering a state law, passed by this chamber, no longer workable. In fact, the federal bill specifically targets our Tasmanian Anti-Discrimination Act 1998 with the intent of diminishing its protections.

As citizens, as representatives of our community and as legislators for this State this is a matter that deserves our attention, it warrants our discussion and, I believe, it requires of us a clear statement of response. That is the purpose of this motion.  I ask the members here in this place to join me in considering a strong response to this proposed federal bill and the potential impact it holds for our state.

Equality is important to me.   Rights are important.

From my work which has focused on social justice for many years, I have an avid appreciation of the protections we put in place for those who are marginalised, stigmatised, discriminated against and vulnerable.

Articulating and respecting rights assists us to live in a community that is fair and safe and inclusive. Putting in place discrimination law is one way we do that.  It is about ensuring equality.   It protects all of us from the harms of discrimination and prejudice and requires all of us to behave in ways that promote the equality and equal opportunity of all others

However, rights and equality are also about balance. Balancing some rights against each other, and against protection from harm, is an ongoing challenge and a matter of discussion for us as a community.

I believe the proposed federal bill misses the mark on balancing rights and protections.  And the potential negative impacts of that imbalance pose a danger to the Tasmanian, and Australian, community.

 

1.     Acknowledges that Tasmanians enjoy the strongest and most comprehensive anti-discrimination protections in Australia and that the Tasmanian Anti-Discrimination Act 1998 sets a standard for protection that has fostered a fairer and more inclusive society that is applauded by other Australian States and Territories and around the world.

Our Anti-Discrimination Act came about as a result of over 20 years of committed advocacy, community consultation and political negotiation. It has earned its place in our justice system and it has demonstrated value for many, many Tasmanians who have found a resolution to harmful, discriminatory experiences.

Associate Professor Terese Henning, the Director of the Tasmanian Law Reform Institute, gave a speech last year on the twentieth anniversary of the enactment of the Tasmanian Anti-Discrimination Act. In that speech, Associate Professor Henning noted the standing and success of our Act, she said:

Since the Anti-Discrimination Act became law most of us have come to understand, if we did not before, that attribute-based discrimination is a very real problem in Tasmania;

that many of us have experienced discrimination that has blighted our lives, minimised our life choices or otherwise caused us serious distress.

Many of us lived with discrimination and no possibility of remediation before the AntiDiscrimination Act was enacted. 

Further in that speech she said:

The Tasmanian Anti-Discrimination Act was lauded at the time of its enactment as world’s best practice.

One reason that it received such an enthusiastic response is that it was a late addition to Australia’s Anti-Discrimination laws which meant that we had the opportunity to learn from mistakes made in other Australian jurisdictions and from problems that had been identified with Anti-Discrimination Act laws elsewhere.

Having recognised the quality and positive impact of our Act, Associate Professor Henning went on to note the need for vigilance in preventing the erosion of the protections it provides, she said of the Act:

Our experience in this regard teaches us of the need to be vigilant in preventing the erosion of the rights protection it provides, both directly in narrowing its scope and increasing its exceptions and indirectly through procedural and practice requirements that limit the Commissioner’s and/or Tribunal’s ability to apply the Act properly and in accordance with its original legislative intent.  

Associate Professor Henning’s exhortation to vigilance in protecting our Act was timely, and highly relevant to the situation we find ourselves in today.

We find ourselves in a position of needing to strongly advocate to maintain the level of protection our Act provides to the Tasmanian people. One reason Tasmania is considered to have the nation’s strongest anti-discrimination laws because of section 17.  So I will now speak about the second point in the Motion.

 

2.    Supports Section 17 of the Tasmanian Act which prohibits any conduct which offends, humiliates, intimidates, insults or ridicules a person based on certain attributes including age, race, gender, disability, marital status, pregnancy, family responsibilities, gender identity and sexual orientation.

Other Australian states in their Anti-Discrimination legislation, do not have such an extensive list of behaviours as those that are covered under section 17.  It is this more extensive list in our Act that captures many of the discriminatory, harmful experiences in the daily lives of, for example, people with a disability or LGBTIQ+ Tasmanians.

The wording of section 17(1) reflects section 18C of the federal Race Discrimination Act, it covers the same offensive conduct (offends, humiliates, intimidates, insults or ridicules), except that 17(1) covers more attributes than just race.

Section 17 protects Tasmanians who are vulnerable to hate, prejudice and stigma from being subjected to humiliating and intimidating language.

The statistics tell us that of complaints made under Section 17(1) of the Tasmanian Act:

• Over a third of complaints are on the grounds of disability
• Another third are complaints on the grounds of race, gender and age
• The remaining third of complaints are on the remaining ten grounds
• Complaints on the grounds of sexual orientation and gender identity make up 5 to 10% of complaints

The Tasmanian Anti-Discrimination Act is consistent and balanced. 

Section 17(1) has been well examined in this place and confirmed by this Parliament.

It has also been tested by the Supreme Court in 2018 and found by that Court to not unduly impinge on freedom of religion or free speech and to be valid under the Australian Constitution.  

Justice Brett of that Court made a careful, rigorous argument that freedom of religion and freedom of speech are not unfettered rights and that the Tasmanian Anti-Discrimination Act strikes the right balance between these rights and the rights of citizens to live free from hate and vilification.

This motion states support for section 17 in the face of a proposed federal bill that would render it unworkable and allow Tasmanians included in the attributes it covers, to be humiliated, intimidated, insulted or ridiculed in the name of religion.

Personally, I would go much further than support section 17. I would add my gratitude and admiration for section 17 and our Act, which I believe makes our state a kinder, safer, more mature and thoughtful place to live for all Tasmanians. I can also say that I hold great pride in section 17 of our Act.  I am proud that we lead the nation in best practice protections.

I believe section 17 has encouraged us to give more attention to dealing with issues such as bullying in our schools and workplaces, and sets as normal the expectation that we endeavour to be thoughtful, moderate and kinder in the way we interact with each other.

Notwithstanding my gratitude, admiration and pride, in this section I ask my colleagues to join with me in supporting section 17 of our Anti-Discrimination Act.

 

3.    Notes that twice in recent years, attempts have been made in this Parliament to weaken the protections available under section 17 of the Anti-Discrimination Act to Tasmanians who are vulnerable to hateful, humiliating and intimidating language and that both times this chamber said No, not least because the biggest proportion of complaints under section 17 come from people with disability.

A similar proposal to the proposed federal Religious Discrimination Bill came to this place, most recently in 2017.

In 2017, in the same way that this federal Bill proposes to allow humiliating, intimidating, insulting and ridiculing language if that language is in the name of religion, the State Government brought a proposed amendment to our Tasmanian Act that sought to allow conduct connected to religious belief under both section 17 and also section 19 (a section which relates to incitement to hatred).

Those amendments to the Tasmanian Act were not supported by the Legislative Council in 2017.

Other members will be better placed to recall this period than I, as they were participants in those debates. At the time that those attempts were made, I was outside this chamber in other roles which included working with and for some of the most vulnerable members of the Tasmanian community; many of whom were at risk of having their protections lessened under the amendments proposed.

While I was able to see media reporting on the debates at the time and read Hansard after the fact, other members here who participated in those debates will know first-hand the significant distress caused by the proposal to weaken the protections available to a wide-range of Tasmanian people – including those with a disability, women, Aboriginal Tasmanians, culturally and linguistically diverse Tasmanians, older Tasmanians and gender and sexually diverse Tasmanians.

My understanding is that that distress was expressed to members in large numbers of letters and emails.   Other members will be better placed to reflect those exhortations that this place stand firm in defence of our state’s robust and effective Anti-Discrimination Act.  
And stand firm you did.

We now see a similar attempt to do at the federal level, that which was attempted by the State Government in times past.   An attempt to privilege one group of people over all others in their licence to engage in discriminatory speech.

While it is not in our power here to stop the progress of a federal bill, it is most certainly in our power to be staunch and consistent in expressing our denunciation of its impact on our state sovereignty and our Tasmanian community.

 

4.    Is concerned that the federal government wants to weaken the right of this Parliament to make human rights laws for Tasmanians by proposing a Religious Discrimination Bill that will weaken section 17 in the same way this chamber has refused to countenance. 

Concern is a fairly mild term to use in this instance when what we are talking about could be seen as a challenge to the very foundation of our federation.

The states, including Tasmania, created our federation. Our federal Constitution allows the Commonwealth certain powers, and confirms that states and territories undertake their role of governing for the good of their communities, including legislating in a manner reflective of the values and needs of those communities.

In seeking to override the protections our Tasmanian parliament has enacted against discrimination, the proposed federal bill could be seen to undermine our federation and the sovereignty of the Tasmanian parliament to do its work of governing for all Tasmanians.

I believe it is wrong of the Federal Government to be attempting this.

Clause 41 of the proposed Religious Discrimination Bill 2019 specifically overrides every anti-discrimination law in the country.  It allows people to make ‘statements of belief’ that would otherwise amount to discrimination under the laws that it seeks to override.

In the case of Tasmania’s section 17, under this federal bill people would be able to make statements that insult, offend, ridicule and humiliate others if it is done as a ‘statement of belief’.  In its submission made to the consultation process on the federal bill from Equal Opportunity Tasmania, on page 5 said:

The draft Religious Discrimination Bill 2019 is not particularly clear in defining what is meant by a ‘statement of belief’.  Clause 5 of the Bill provides a ‘statement of belief’ is a statement of a ‘religious belief’.  ‘Religious belief’ is defined to mean ‘holding a religious belief’.  This is not helpful drafting. 

I agree with Equal Opportunity Tasmania on that assessment.

We can contemplate illustrative examples of this override in a submission to the consultation on the federal bill from Associate Professor of Constitutional Law at Monash University, Luke Beck, a leading expert on religious freedom and the Australian Constitution.   

On page 7 of his submission, Associate Professor Beck says:

For example, in none of the following scenarios involving a ‘statement of belief’ would the person on the receiving end of the statement of belief be able to lodge a discrimination complaint:

• An employer tells a gay worker “being gay is a form of brokenness”.
• A school principal tells a school assembly “trans people choose to reject God’s nature”.
• A childcare provider tells a single mother “God will judge you harshly for taking away the child’s right to have a father”.
• An employer points a Catholic worker’s desk with a small picture of the Virgin Mary and says “look at that Catholic superstitious nonsense.”
• An employer refers to a male Sikh employee wearing a turban as “a towel head”.
• A doctor tells a gender-non conforming patient that “God condemns your sin”.
• An employer tells a female worker that “women should not be in positions of leadership over men”.
• A café owner tells a customer with a disability that “disabilities are God’s punishment for sin”.
• A pharmacist tells a Muslim customer “All Muslims will go to Hell”.

No other discrimination Act (state, federal or territory) operates in this way, overriding other acts.

Since the passage of the first of these, the Commonwealth Racial Discrimination Act 1975, and the NSW Anti-Discrimination Act 1977, all discrimination laws have operated effectively alongside each other, without directly interfering with each other.

Further, again from the submission by Equal Opportunity Tasmania, on pg 4

Currently, Australian anti-discrimination law operates so Commonwealth and State antidiscrimination legislation works concurrently together, and neither overrides the other.

For example, section 13 of the Disability Discrimination Act 1992 (Cth) states: ‘This Act is not intended to exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Act.’  There are similar provisions in the Sex Discrimination Act 1984 (Cth), Age Discrimination Act 2004 (Cth), and Racial Discrimination Act 1975 (Cth).

The equivalent provision in the draft Religious Discrimination Bill 2019 has the note: ‘Nothing in this subsection detracts from the operation of Part 4’. Part 4 of the draft Religious Discrimination Bill 2019 is the part relating to ‘statements of belief’.  This would have the effect that a statement of belief retains priority over all other discrimination laws.  

This is contrary to established discrimination law principles, and contrary to the principle of human rights being equal.  I note that Recommendation 3 of the Religious Freedom Review (Report of the Expert Panel, dated 18 May 2018) recommended that anti-discrimination legislation ‘reflect the equal status in international law of all human rights, including freedom of religion.’  The draft Religious Discrimination Bill 2019 goes against this recommendation and gives statements of belief unequal and priority status.

The protections provided to the Tasmanian people in our Anti-Discrimination Act were not arrived at in a quick or simple process.  It required time and effort, political will, and a great deal of consultation with the community to deliver us that legislation.

I ask that we stand again as representatives of the Tasmanian people and make a clear statement that it is unacceptable overreach for the Federal Government to try and run roughshod over our community and our right as a State Parliament to legislate in the best interests of that community.

 

5. Notes that the proposed Federal Governments Religious Discrimination Bill will make Section 17 of the Tasmanian Act unworkable so that it would no longer offer the protections we currently enjoy. 

The proposed federal bill singles out Tasmania’s Anti-Discrimination legislation, and specifically section 17, with the clear intention to render it unworkable.

The effect of this will be that Tasmanian people will lose discrimination and hate speech protections including people with disability, LGBTI people, women, members of racial and religious minorities, people in unmarried relationships and single parents.

In the submission from Equal Opportunity Tasmania, Tasmania’s Anti-Discrimination Commissioner makes a case for this being a severe limit on access to justice.  On page 5 of that submission, under the heading Overriding State Law, it says:

I strongly oppose the draft Religious Discrimination Bill 2019 overriding State discrimination law as, for the reasons given below,

it curtails State sovereignty, diminishes existing human rights protections, and will severely limit access to justice.

I note the Commonwealth Attorney-General’s public assurances that the draft Religious Discrimination Bill 2019 ‘is not intended to displace state law. 

Yet, contrary to established discrimination law principles in Australia, the draft Religious Discrimination Bill 2019 explicitly displaces and overrides State law.  

The Anti-Discrimination Act 1998 (Tas) is legislation passed by the Tasmanian Parliament to protect Tasmanians. 

In 2017, the Tasmanian Government attempted to exempt religious speech from the operation of section 17(1) of the Anti-Discrimination Act 1998 (Tas). 

Community groups in Tasmania, in particular groups representing people with disability, gave information to the Tasmanian Parliament about how vulnerable Tasmanians would be negatively impacted by the State allowing offensive, humiliating, intimidating, insulting and intimidating conduct to be directed toward them under the guise of religion. 

The Tasmanian Parliament maintained the protections in the Anti-Discrimination Act 1998 (Tas). 

It would be wrong for the Commonwealth to override the decision of the Tasmanian Parliament that Tasmanians should be protected from discrimination and offensive, humiliating, intimidating, insulting and intimidating conduct.

The Explanatory Notes for the Exposure Draft of the Religious Discrimination Bill 2019 state at paragraph 422 that section 17(1) of the Anti-Discrimination Act 1998 (Tas) should be overridden due to ‘its broad scope and demonstrated ability to affect freedom of religious expression’.  This statement is not correct. 

The practical effect of clause 41 (read in conjunction with the note to clause 60) of the draft Religious Discrimination Bill 2019 will be that when a respondent to a complaint under the Anti-Discrimination Act 1998 (Tas) alleges they made a ‘statement of belief’ the complaint would fail. 

This would significantly impact access to justice.

The submission went on to explain that were the Religious Discrimination Bill to be enacted, clause 41 of that bill would provide a defence to complaints made under our Anti-Discrimination Act.  That defence under Federal law would mean that the Tasmanian Anti-Discrimination Tribunal would not have jurisdiction to deal with the complaint.

The Equal Opportunity Tasmania submission then provides some examples of instances in which this lack of jurisdiction would mean that access to justice would be lessened for Tasmanians.   Those examples can be found on page 9 of the submission and included a situation of a man sacked because he was living with his defacto partner, a child with a disability bullied at school, and misogynistic behaviour towards women.

The submission points out that:

If the draft Religious Discrimination Bill 2019 was law, that type of complaint would not be able to be dealt with under the Anti-Discrimination Act 1998 (Tas).

Preventing complaints being dealt with under the Anti-Discrimination Act 1998 (Tas) where a respondent alleges they were making a ‘statement of belief’ would restrict access to justice for people.

Similarly, the Australian Human Rights Commission in its submission considers that this overriding of all other Australian discrimination laws is not warranted and sets a concerning precedent.

Associated Professor Luke Beck, a constitutional and religious freedom expert at Monash University, warned the Coalition’s exposure draft bill may be incompatible with international law and therefore not supported by the external affairs power in the constitution. International Human Rights law requires that people are treated on an equal footing under human rights laws. 

This proposed bill treats people differently.  It gives people who hold a religious belief more rights than people who don’t.  

Under this bill, people who hold religious beliefs can make statements on any topic that insult, offend, ridicule or humiliate other people if those statements are based on their religious belief.  For non-religious people, they are only protected in this way for statements on the topic of religion or for statements that arise directly from their non-belief.  Given this inconsistency in treatment, it is likely that this proposed bill is inconsistent with International Human Rights law and as such, it is likely unconstitutional in its function of overriding state laws.

 

6.    Is concerned about other provisions of the Religious Discrimination Bill that appear to allow bullying and abusive statements in the workplace, and in the classroom, and discrimination in the provision of health care and in the provision of other services. 

Protecting one group from discrimination should not extend to allowing that group to harm others.

The protections for vulnerable groups under Tasmania’s Anti-Discrimination Act were, in most cases, hard-fought gains in safety and opportunity, won over long periods of time in which those groups suffered the deplorable and harmful impact of unconstrained discrimination.  

That discrimination has not magically disappeared entirely, but those vulnerable groups now have a legislative protection and a recourse to seek a resolution when discrimination is experienced. To turn around now with this proposed Federal bill and undermine that protection and take away the avenue for recourse by rendering it unworkable is wrong.

Particular concerns have been raised that the discrimination based on religious belief allowed under clause 41 will be given licence in a range of settings such as workplaces, schools, healthcare and other service provision.

Women’s Health Tasmania have raised this in an email letter to members here, it says:

The list of everyday situations where people could be subjected to these unprovoked ‘judgements’ on the basis of who they are is potentially endless. The list of groups who could be adversely affected is almost as long.

But their options to seek redress will be short. They would no longer be able to seek the support of the Australian Human Rights Commission (AHRC), or state and territory discrimination bodies. Nor would employees be able to access the Fair Work Commission.

If we consider the potential impact in workplaces:

Currently, work health and safety laws impose a positive duty on employers to prevent bullying, and discrimination laws require businesses to provide their services free from discrimination, yet clause 41 would authorises some forms of bullying and discrimination.

A range of legal academics, the Diversity Council and others have warned that the Coalition’s proposed religious discrimination bill is unworkable for employers and will thwart policies designed to create safe and inclusive workplaces.

The Australian Industry Group submission warned that the bill bans employers from setting codes of conduct which indirectly discriminate on the grounds of religion and could come into conflict with policies designed to promote tolerance and diversity.

It warned the bill could “limit the ability for employers to regulate, respond and manage instances of inappropriate conduct by an employee that may cause conflict with, or detriment to, co-workers notwithstanding that such conduct may occur when an employee is not performing work”.

“The potential for the provisions of the proposed legislation to be used to advance and protect extremist opinions or behaviour, of whatever kind, in the name of an undefined religious belief should not be underestimated.”

“The provisions of the bill, as drafted, would seriously impede the ability of employers to maintain appropriate standards of conduct and to protect their employees from harassment and discrimination.”

In its submission the AIG said the draft bill, as well as being inconsistent with existing workplace laws, was “unbalanced, unworkable and unfair upon employers”.

It noted that over time the courts had developed principles about where and when employers could regulate their employees’ actions outside work and the proposed laws “would disturb these principles in a major way”, and had “the potential to increase conflict and disharmony in Australian workplaces”.

I am not even going to go into the slightly bizarre specific provision for companies with revenue of more than $50m which stops the sacking of employees for expressing religious views unless they are able to show that the action was necessary to avoid unjustifiable financial hardship.   

A situation where the protection of a right that is being asserted can apparently be traded off against financial hardship does not seem at all consistent with an accepted international approach to human rights.

Looking now at the health area:

This proposed bill effectively puts the personal religious views of a health professional before patient needs.  It risks creating considerable complexity and uncertainty for health services. 

Under this law it would be easier for doctors with objections to use their religious belief as a reason to refuse to provide care to a patient and, additionally, to potentially refuse to provide information or referral to unbiased advice and care elsewhere.

A particular risk is posed to health services such as abortion, euthanasia, contraception and sterilisation.

In a debate at the National Press Club last week, Fiona Patten, in her role as an ambassador for the National Secular Lobby, said:

“Consider a midwife, refusing to deliver a single mother’s baby.

A rural pharmacist refusing to fill a teenage girl’s prescription for the pill.

Or a Christian nurse simply refusing to treat a Muslim.

Bizarrely, the bill does not offer non-religious health practitioners the same right, even though they may hold the same beliefs.”

This issue of conscientious objection is outlined in the Equal Opportunity Tasmania submission on the federal bill on page 3.

Under the heading Clause 8(5)-(6): Conditions that are not reasonable relating to conscientious objections by health practitioners, it says:

Clause 8(5) of the draft Religious Discrimination Bill 2019 provides that where State or Territory law provides for conscientious objection, a rule that restricts or prevents a health practitioner from conscientiously objecting is deemed not to be reasonable and the rule will amount to indirect religious discrimination.

Clause 8(6) of the draft Religious Discrimination Bill 2019 provides that where State or Territory law does not make provision for conscientious objection, a rule that restricts or prevents conscientious objection will be deemed to be not reasonable, unless the rule is necessary to avoid an ‘unjustifiable adverse impact’ on:

• the provision of the relevant health service; or 
• the health of a person who is seeking that health service.

The effect of clause 8(6) is to potentially make unlawful a health service provider’s rules relating to health practitioners undertaking procedures, providing information, prescriptions, or referrals.   

This would result in patients losing the ability to access medical procedures, or obtain information, prescriptions and referrals.  In my view, it would be against the public interest to prioritise a person’s religious belief over another person’s right to access health care.

I would refer also to the Victorian Equal Opportunity and Equal Rights Commission submission to the consultation on the federal bill, pg 6:

Further, clause 8(6) does not set out any other obligations to patients, such as the provision of information, the requirement to disclose the objection, and making an effective referral.[i] The absence of real consideration for patient care and wellbeing is a concern to the Commission, particularly given research has demonstrated ongoing compliance challenges for doctors with their existing legal obligations for conscientious objections to abortions in Victoria.[ii]

In practice, these provisions will lead to confusion for patients, health practitioners and services, as well as have a negative impact on service quality, even where state and territory legislation provides for effective referrals. The lack of clarity about the operation of conscientious objections can create uncertainty and avoidance in patients, particularly those from marginalised backgrounds who may have experienced stigma in mainstream health services. An absence of clear guidance means a patient may be disrespected by a clinician, not provided a health service, information, a prescription or referral, and the health organisation is unaware as there are no reporting requirements on the health practitioner.

The Commission is concerned that the applicability of clause 8(6) is unclear and could undermine efforts by employers and health professional bodies to set standards and clarify legal obligations to ensure the provision of safe, inclusive and quality health services, particularly in rural and remote areas. It may also create resource implications for specialist services such as trans and gender diverse health services as patients feel unsafe accessing mainstream health and GP services.

Faith-based organisations/businesses:

The proposed bill could allow religious institutions, schools, charities and businesses to be made exempt from engaging in discriminatory practices under other (state and commonwealth) discrimination laws.  Especially in relation to employment and the provision of goods and services.

From the Equal Opportunity Tasmania submission pg 4:

Clause 10: Religious bodies may act in accordance with their faith

 Clause 10 of the draft Religious Discrimination Bill 2019 exempts a ‘religious body’ for conduct carried out in good faith that reasonably conforms to its doctrines, tenets, beliefs or teachings.  

Clause 10 would cover a broad range of conduct.  Clause 10(1) states the clause applies to conduct that ‘may reasonably be regarded as being in accordance with’ religious beliefs etc.  This broad approach would capture a wide range of conduct, so long as it had some connection with religious belief. 

Further, the definition of ‘religious body’ set out in Clause 10(2) is extremely broad.  The broad definition of ‘religious body’ could have the consequence of permitting discrimination in a wide range of areas, including schools, charities, hospitals and aged care homes.

I know that when this place debate proposed amendments to the Tasmanian Anti-discrimination Act in 2017 there was much discussion about the definition of a religion and the wide range of faith groups that may be captured by that definition, and as such, be protected and their actions sanctioned under the amendments to the Act.

Similarly, this proposed Federal bill in its definition of a ‘religious body’ could cover a very wide range of workplaces and services.

Women:

I would like to particularly mention women here as a group at risk of being made more vulnerable under this proposed bill.  Vulnerable to healthcare and services being withheld and vulnerable to damaging, intimidating and offensive comments and behaviours.

The Victorian Equal Opportunity and Human Rights Commissioner has warned in its submission that this bill would mean that religious believers could be free to publicly shame rape survivors, and an unmarried woman would be powerless to seek redress if a doctor told her she was “sinful and dirty” for requesting contraception on the basis of a religious conviction. 

The Victorian Commissioner also noted that a clause in the draft bill stating that expressions of belief should be protected from anti-discrimination laws could have the effect of “emboldening some people to characterise survivors of sexual assault or rape as being blame-worthy for not being sufficiently modest or chase.”

I have a high level of concern about provisions of the Religious Discrimination Bill that appear to allow bullying and abusive statements in the workplace, and in the classroom, and discrimination in health care and in the provision of other services.   I believe that most reasonable people would share that concern.

 

7.    Believes people of faith should be protected from discrimination, as they are under the Tasmanian Anti-Discrimination Act, but does not believe statements that purport to be religious should have a special legal status over and above other forms of communication. 

This proposed federal law includes positive measures to protect against discrimination on the basis of religion, and for this it is to be applauded.

The Australian Human Rights Commission, among many others, has endorsed those elements of the proposed bill that protect against discrimination on the grounds of religion. The Commission points to a valuable consistency between these proposed protections for religion alongside the existing federal discrimination laws that offer protections for race, sex, disability and age.  

Indeed, judging by a scan of the submissions made and the public comments made by prominent stakeholders, if the proposed federal bill focused on these elements alone, there would likely be resounding support for its introduction.

I heard the Federal Attorney General, Christian Porter, discussing the proposed legislation on the ABC Radio AM program yesterday morning (Mon 14 Oct).  As part of that discussion, he relayed a story as an illustration of the rationale for this bill.

The story was of a Jewish man in NSW who was denied access to an event at the NSW Parliament on the basis of his religion.  The Attorney General suggested that the federal law was required to ensure that such discrimination on the basis of religion was not legal and anyone who experienced such discrimination could have recourse to address it. 

I think this is a good illustration of what the Australian Human Rights Commission and most of us would agree is a positive reason for the introduction of those aspects of the proposed bill that would indeed provide federal protection and recourse for such situations.

Those elements would see people of religion having the same protections at the federal level as they have had in Tasmania since 1998, through protection against discrimination on the basis of their religious belief.

But the proposed bill goes substantially beyond these well-supported elements of protection.

The Australian Human Rights Commission also noted and warned against the fact that this proposed bill went further and suggested that the bill contains, I quote,

“unique provisions that have no counterpart in other anti-discrimination laws and appear to be designed to address high-profile individual cases. As a matter of principle, the Commission considers that this is not good legislative practice.  As a matter of substance, the Commission considers that this may lead to unintended and undesirable consequences.”

International human rights law relies on the concept of equality and non-discrimination.  Under international human rights law, freedom of thought, conscience and religion and freedom of expression are both expressly limited.  The limitations on them protect the fundamental rights and freedoms of others, including the right to equality and non-discrimination.

Indeed, freedom of expression, or what we would generally refer to as free speech, is stated to carry with it ‘special duties and responsibilities’ to respect the rights of others.

No good argument has been made as to why we would treat statements of religious belief differently in the context of freedom of expression. 

Why we would privilege it above other non-religious statements? It appears to be an attempt to write special rights and privileges into Australian law.  To make it lawful for people or organisations to say anything they want as long as it is construed as a ‘religious belief’ and regardless of whether it humiliates, intimidates, insults or ridicules a person. 

Religion plays an important role in our community.  It is an important aspect of many people’s lives.  The right to have a religious faith, to give expression to that faith and to undertake activities relating to that faith is one I support – but not at the expense of protecting the rights and safety of others.

 

8.    Condemns the Federal Government for its attempt to weaken protections for Tasmanian women, LGBTQI people, Aboriginal people, ethnic and religious minorities and people with disabilities.

The word condemn could be regarded as on overly strong word to use in this context. However, I believe its strength is warranted.

In its proposed bill, the Federal Government is attempting to allow some people in our community to say things to other highly vulnerable people that will humiliate them; that will insult them; that will ridicule them; and that will intimidate them. In my view, this is entirely unacceptable.  In fact it is contemptible.

At a time that we are, in many other spheres, so focused on combating bullying and the recognised damage it causes, including right here in this place with the recent passage of more robust bullying legislation, how can we possibly countenance this appalling backward step in our compassion and humanity?

Excuse my presumption, but I am going to suggest that none of us in this place are likely to bear the full possible consequences of this federal bill if it is passed. 

None of us is likely to be told that in our essence we are sinful;

that we are an abomination;

that we are disgusting;

that we are freaks of nature;

that we are subhuman;

that we are flawed and broken;

that we are evil, of the devil and in our nature a danger to children and the community.

Unlike so many Tasmanians – Tasmanians with a disability, Aboriginal Tasmanians, LGBTIQ+ Tasmanians, Tasmanians of minority faiths – not one of us will have to do anything other than imagine what that must be like.

Imagine not just the instances in which it occurs, but the daily fear and expectation that it may occur, at any time. 

In a public place, in the place that you work, when you go to the shop, when you need healthcare, when you take your children to childcare…

Every day.

We can only begin to imagine what that would be like to endure, and the toll it would take on us and our families.

For twenty years now, here in our state, previously the most backward on these matters, we have offered our fellow Tasmanians our love and support and importantly our legislative protection in the face of such experiences. 

How dare the federal government attempt to take that away from us? How dare the federal government threaten the protection that we as a community extend to our brothers and sisters, our neighbour and friends, our work colleagues and all our fellow citizens? And how dare we, any of us, fail to stand up, speak up and make every effort to defend those protections.

Given the gravity of the impact of this proposed bill from the Federal Government, I choose to use strong terms and express myself strongly in response.

Which brings me to the final two points of the motion.

 

9.    Calls on the State Government to consult with affected communities so that Tasmanian people who may be negatively impacted by the proposed Bill can have their views heard and considered before forming its response.

I believe that no response has been made by our state government in the formal consultation process on this proposed bill.

It may be that the State Government is responding through other channels, and if that is the case, I think the Tasmanian community has a right to know what response is being made on their behalf by their state government.

Who have the State Government consulted with to date as they consider the proposed Federal bill?

What assessment have they made of its likely impact on our state Act?

What process are they undertaking to arrive at a position on this, and how will they be advocating for that position with their Federal counterparts?

I believe the Tasmanian people should reasonably expect that their State Government would staunchly defend our State laws and the protections provided under them to our community.

 

10.  Calls on the State Government to defend Tasmanians who are vulnerable to discrimination, hatred and abuse, by rejecting the proposed Federal Bill.

Again, I am going to quote Associate Professor Terese Henning, speaking last year on the 20^th Anniversary of our Anti-Discrimination Act.

In her speech, she says:

What I have attempted to show in this address is that, while our Anti-Discrimination Act is widely accepted and revered as part of the fabric of the Tasmanian justice system and society, we cannot be complacent about it. It is not immune to threats in various guises from those who oppose its application or seek to narrow its protections.

Our state and our people have the most to lose from this proposed federal bill. We are, in fact, being targeted by it, and the protection of our most vulnerable is being threatened.

This proposed bill should be rejected by all of us, but especially by our State Government as they should be the key defender of our state’s sovereignty, defenders of our demonstrably successful and lauded State law, and defenders of the people of Tasmania, most especially those who face discrimination.

I commend this motion to my colleagues in this place and ask them to support it.

[i] For example, see best-practice guidance from the Australian Medical Association on how general practitioners should conscientiously object: Australian Medical Association, AMA Position Statement: Conscientious Objection, (27 March 2019) https://ama.com.au/position-statement/conscientious-objection-2019.

[ii] There is already evidence of confusion and non-compliance by doctors in existing conscientious objection regimes: Louise Anne Keogh, Lynn Gillam, Maria Bismark, Kathleen McNamee, Amy Webster, Christine Bayly, & Danielle Newton, ‘Conscientious objection to abortion, the law and its implementation in Victoria, Australia: perspectives of abortion service providers’ (2019) 20(11) British Medical Journal Medical Ethics 1.

More parliamentary speeches by Hon Meg Webb MLC