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representatives vote 2022-02-09#3
Edited by
mackay staff
on
2022-02-18 11:48:50
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Title
Bills — Religious Discrimination Bill 2021, Religious Discrimination (Consequential Amendments) Bill 2021, Human Rights Legislation Amendment Bill 2021; Consideration in Detail- Religious Discrimination Bill 2021 - Consideration in Detail - Statements of belief
Description
<p class="speaker">Adam Bandt</p><p>by leave—I move Greens amendments (1) to (12):</p><p class="italic">(1) Schedule 1, page 4 (after line 10), after item 5, insert:</p><p class="italic"> <i>Fair Work Act 2009</i></p><p class="italic">5A Section 12</p><p class="italic">Insert:</p><p class="italic"><i>educational institution</i> means a school, college, university or other institution at which education or training is provided.</p><p class="italic">5B Paragraph 153(2)(b)</p><p class="italic">After "institution", insert "(that is not an educational institution)".</p><p class="italic">5C Paragraph 195(2)(b)</p><p class="italic">After "institution", insert "(that is not an educational institution)".</p><p class="italic">5D Paragraph 351(2)(c)</p><p class="italic">After "institution", insert "(that is not an educational institution)".</p><p class="italic">5E Paragraph 772(2)(b)</p><p class="italic">After "institution", insert "(that is not an educational institution)".</p><p class="italic">(2) Schedule 1, item 6, page 5 (lines 4 to 7), omit subsection 47C(4).</p><p class="italic">(3) Schedule 1, page 6 (after line 10), at the end of the Schedule, add:</p><p class="italic">10 At the end of section 23</p><p class="italic">Add:</p><p class="italic">(4) Paragraph (3)(b) does not apply to accommodation provided by an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:</p><p class="italic">(a) in connection with the provision of education or training by the educational institution; or</p><p class="italic">(b) in connection with employment by the educational institution.</p><p class="italic">11 After subsection 37(2)</p><p class="italic">Add:</p><p class="italic">(3) Paragraph (1)(d) does not apply to an act or practice of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if:</p><p class="italic">(a) the act or practice is connected with the employment of a member of the staff of the educational institution; or</p><p class="italic">(b) the act or practice is connected with the position of a contract worker that involves the doing of work in the educational institution; or</p><p class="italic">(c) the act or practice is connected with the provision of education or training by the educational institution; or</p><p class="italic">(d) without limiting paragraphs (a), (b) or (c) of this subsection—immediately before the commencement of the <i>Human Rights Legislation Amendment Act </i>2022, the act or practice:</p><p class="italic">(i) was not unlawful under this Act; but</p><p class="italic">(ii) would have been unlawful apart from section 38.</p><p class="italic">Note: Former section 38 provided that certain provisions of this Act did not render it unlawful for a person to discriminate in certain circumstances connected with an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed if the person discriminated in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.</p><p class="italic">12 Section 38</p><p class="italic">Repeal the section.</p><p>These amendments do one thing and one thing only, and it's a very simple thing that has been identified by a number of members during this debate as being of great concern with the bill. These amendments remove the statement of belief provision. That is all they do. They don't insert anything else. They remove the statement of belief provision from the bill.</p><p>That needs to be done for two important reasons. The statement of belief provision, firstly, is the most novel provision of this bill and, secondly, is the most pernicious. It's the most novel in that this bill is supposedly about protecting people from victimisation on the basis of religion. Now, the principle of including religion as a prohibited attribute, as it were, on the basis of which you can't discriminate or victimise is something that I think most people in this parliament would agree with. It would probably have universal agreement in this parliament. But this bill does something that other discrimination legislation doesn't do: it inserts a new provision, a statement of belief provision, that is not found in other pieces of discrimination legislation. It is novel, it is unnecessary and it's gravely concerning. And this goes to the point about it the most—or a—pernicious aspect of this bill. Not only will it allow things to be done that will override state legislation—and we've heard about that and about how it would take away protections that are enshrined in legislation in, for example, Tasmania.</p><p>What it also does, this statement of belief provision, is open up new grounds for discrimination to occur. We've heard example after example, from members from both sides, of statements that could be made that now might offend other provisions, other discrimination provisions, but will become lawful. These are the statements that will cause a lot of harm. These are the statements that are made when someone working in a healthcare area says to someone else, 'I think that your condition, your illness that your suffering, is a punishment from God because you're gay.' Or statements that are directed at a transgender student or staff member that might not be about expelling them, but might be something that is designed to make, or has the effect of making, their life a misery. These are the statements that would currently not be protected, but are going to open up a whole new suite of discriminatory and harmful behaviour.</p><p>What this amendment does is remove that provision that opens up a whole new suite of discrimination. It still allows other provisions in the bill to continue, including protections for religious belief against victimisation and against discrimination, so those are untouched; however, what it does is very simply say one thing: 'This new statement of belief provision is unnecessary. It's new and untested and broad. And it's harmful.' I would say to the House that I know there might be some others who will move amendments around the statement of belief section, but there is a reason this one is first in order of proceedings, and that is because it does a very simple job. It just says that statement should be removed. We can still have the rest of the legislation, which includes protection on the basis of religion, if that's what people want to vote for, but it removes the ability to introduce what has been called a sword into this legislation. So the shield will remain, but the new provisions that open up a range of potential new harm will go.</p><p>I say to the House, with respect to others who are moving amendments, this is the simplest way to do it. This new, untested and potentially harmful provision should not survive in this legislation. We can have a debate or a discussion another day, about whether something like this is needed, but lets now, for those who want to support this legislation, allow it to proceed on the basis of other forms of legislation, to stand side by side with other protections in discrimination, but without this harmful provision.</p> <p class="speaker">Paul Fletcher</p><p>The government does not support this amendment, which would remove clause 12 from the Religious Discrimination Bill. The government is of the view that simply communicating one's genuinely held religious beliefs in good faith is not and has never been discrimination. The purpose of this provision is to clarify that people should not be subjected to complaints of discrimination on that basis.</p><p>The statement of belief, in and of itself, under clause 12, will not constitute discrimination, and that means that a person cannot be found to have discriminated against a person under any antidiscrimination law for merely expressing, discussing, and debating their genuinely held religious beliefs in good faith—for example, merely stating a biblical view of marriage or an atheist view on prayer. This bill only applies to statements and not to conduct, or a course of conduct. It does not protect statements that are malicious or that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group, and I suggest that's the response to a number of the factual circumstances that the member mentioned in his contribution.</p> <p class="speaker">Mark Dreyfus</p><p>Labor have our own amendments in relation to the statement of belief, which is clause 12 of the Religious Discrimination Bill. While we have some sympathy for the amendment that has been moved by the leader of the Greens party, which is to delete clause 12 in its entirety, after consideration, our view is reflected in the amendment that I will later move as an amendment to the government amendments. We've concluded that a better approach is simply to remove the override of state and territory discrimination statutes and to remove the specific override of section 17 of the Tasmanian Anti-Discrimination Act, but to leave part of clause 12 intact with an amendment which would provide clarity that a statement of belief or religious activity in and of itself won't constitute discrimination under the Religious Discrimination Bill. We think that that is a better way to reassure people of faith that, in our view, the mere expression of a non-malicious statement of belief should not contravene any Australian law—and I will have more to say about this—but it's certainly the case that there has been a great deal of disagreement about what clause 12 would allow, what it would not allow. It's simply that we think that the better approach is as set out in the amendments moved by the Greens party.</p> <p class="speaker">Andrew Wallace</p><p>The question is that the amendments be disagreed to.</p><p></p><p></p><p></p> -
- The majority voted in favour of *disagreeing* with an[amendment](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6821_amend_44ec8bc2-0548-4bff-97e0-207841305eed%22) introduced by Melbourne MP [Adam Bandt](https://theyvoteforyou.org.au/people/representatives/melbourne/adam_bandt) (Greens), which means it failed.
- ### What does this amendment do?
- MP Bandt [explained that](https://www.openaustralia.org.au/debates/?id=2022-02-09.142.1):
- > *These amendments remove the statement of belief provision ...*
- >
- > *That needs to be done for two important reasons. The statement of belief provision, firstly, is the most novel provision of this bill and, secondly, is the most pernicious. It's the most novel in that this bill is supposedly about protecting people from victimisation on the basis of religion. Now, the principle of including religion as a prohibited attribute, as it were, on the basis of which you can't discriminate or victimise is something that I think most people in this parliament would agree with. It would probably have universal agreement in this parliament. But this bill does something that other discrimination legislation doesn't do: it inserts a new provision, a statement of belief provision, that is not found in other pieces of discrimination legislation. It is novel, it is unnecessary and it's gravely concerning. And this goes to the point about it the most—or a—pernicious aspect of this bill. Not only will it allow things to be done that will override state legislation—and we've heard about that and about how it would take away protections that are enshrined in legislation in, for example, Tasmania.*
- >
- > *What it also does, this statement of belief provision, is open up new grounds for discrimination to occur. We've heard example after example, from members from both sides, of statements that could be made that now might offend other provisions, other discrimination provisions, but will become lawful. These are the statements that will cause a lot of harm. These are the statements that are made when someone working in a healthcare area says to someone else, 'I think that your condition, your illness that your suffering, is a punishment from God because you're gay.' Or statements that are directed at a transgender student or staff member that might not be about expelling them, but might be something that is designed to make, or has the effect of making, their life a misery. These are the statements that would currently not be protected, but are going to open up a whole new suite of discriminatory and harmful behaviour.*
- ### Amendment text
- > *(1) Clause 3, page 3 (line 2), omit “beliefs; and”, substitute “beliefs.”.*
- >
- > *(2) Clause 3, page 3 (lines 3 to 6), omit paragraph (1)(d).*
- >
- > *(3) Clause 4, page 3 (lines 24 to 26), omit “circumstances. Certain statements of belief also do not constitute discrimination for the purposes of specified legislation, including this Act”, substitute “circumstances”.*
- >
- > *(4) Clause 5, page 5 (line 3), omit “, 14 and 15”, substitute “and 14”.*
- >
- > *(5) Clause 5, page 5 (line 4), omit “1”.*
- >
- > *(6) Clause 5, page 5 (lines 7 and 8), omit note 2.*
- >
- > *(7) Clause 5, page 7 (line 21) to page 8 (line 2), omit the definition of statement of belief.*
- >
- > *(8) Clause 12, page 16 (line 21) to page 17 (line 21), omit the clause.*
- >
- > *(9) Clause 15, page 19 (line 8) to page 20 (line 5), omit the clause.*
- >
- > *(10) Clause 16, page 20 (line 8), omit “section 15 and”.*
- >
- > *(11) Clause 18, page 22 (lines 17 to 19), omit subclause (4).*
- >
- > *(12) Clause 68, page 56 (line 5), omit the note.*
- ### What does the bill do?
- According to the [bill homepage](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6821), the bill was introduced with the [Religious Discrimination (Consequential Amendments) Bill 2021](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r6819) and [Human Rights Legislation Amendment Bill 2021](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/r6820) in order to:
- * *prohibit discrimination on the basis of a person’s religious belief or activity in a range of areas of public life, including in relation to employment, education, access to premises and the provision of goods, services and accommodation;*
- * *establish general and specific exceptions from the prohibition of religious discrimination;*
- * *provide that certain statements of belief do not constitute discrimination for the purposes of certain specified Commonwealth, state or territory anti-discrimination laws;*
- * *create offences in relation to victimisation and discriminatory advertisements;*
- * *establish the office of the Religious Discrimination Commissioner;*
- * *confer certain functions on the Australian Human Rights Commission; and*
- * *provide for miscellaneous matters including delegation of powers or functions, protection from civil actions and a review of the operation of the Act.*
- SBS News has provided [a good summary](https://www.sbs.com.au/news/religious-discrimination-bill-passes-lower-house-as-five-liberal-mps-cross-the-floor/1418953a-e34d-4606-bb7e-89413596ac40) of the more controversial parts of the bill, including an explanation for each rebellion that occurred during the long debate. According to [this summary](https://www.sbs.com.au/news/religious-discrimination-bill-passes-lower-house-as-five-liberal-mps-cross-the-floor/1418953a-e34d-4606-bb7e-89413596ac40), the key areas for concern were:
- * the parts of the bill that allowed religious schools to discriminate on the basis of sexuality and gender identity;
- * the "statement of belief" that seems to protect people expressing religious beliefs even if they're offensive and therefore seem to override existing anti-discrimination protections; and
- * the fact that the bill does not outlaw vilification of people of faith.
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