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representatives vote 2022-02-09#5
Edited by
mackay staff
on
2022-02-18 12:16:46
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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 - Religious vilification
Description
<p class="speaker">Andrew Wallace</p><p>Very long and established principles are set out in the House of Representatives Practice on page 186. This quotes the principles set out in May that have guided the exercise of the casting vote. House precedents are also set out on pages 187 to 190 of the <i>P</i><i>ractice</i>. On this occasion, in accordance with the long-established principles, I will vote with the ayes, on the basis that, where further discussion is not possible, decisions should not be taken except by a majority.</p>-
- The majority voted in favour of *disagreeing* with [amendments](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Famend%2Fr6821_amend_31568dc0-a744-4ca5-aeb1-faed9126d411%22) moved by Isaacs MP [Mark Dreyfus](https://theyvoteforyou.org.au/people/representatives/isaacs/mark_dreyfus) (Labor), which means the amendments failed.
- There was one rebellion, with Bass MP [Bridget Archer](https://theyvoteforyou.org.au/people/representatives/bass/bridget_archer) (Liberal) crossing the floor to vote 'No' against the rest of her party, who voted 'Yes.'
- ### What do the amendments do?
- MP Isaacs [explained that](https://www.openaustralia.org.au/debate/?id=2022-02-09.157.1):
- > *The amendments that Labor is moving now would introduce into this bill a provision to protect people from vilification on the grounds of their religious belief or practice. This is a very important provision that the government has deliberately left out of this bill, despite requests from a range of faith communities for such a provision to be included. Indeed, it's difficult to understand how the Prime Minister can insist on what he imagines is the desire of people of faith to be able to make discriminatory statements about other Australians in what would otherwise amount to a breach of state antidiscrimination laws while ignoring their clearly stated desire to be protected from vilification on the grounds of their faith.*
- ### Amendment text
- > *(2) Clause 4, page 3, after line 30, insert:*
- >
- >> *Religious vilification is unlawful, with certain exceptions (see Part 4A).*
- >
- > *(4) Clause 7, page 10 (line 8), omit “this Act”, substitute “Part 4”.*
- >
- > *(10) Clause 9, page 12 (line 24), omit “this Act”, substitute “Part 4”.*
- >
- > *(17) Clause 12, page 17 (line 15), omit “.”, substitute “; or”.*
- >
- > *(18) Clause 12, page 17 (after line 15), after paragraph (2)(c), insert:*
- >
- >> *(d) that is unlawful under Part 4A (religious vilification).*
- >
- > *(19) Clause 16, page 20 (line 12), omit “this Act”, substitute “Part 4”.*
- >
- > *(21) Page 41 (after line 7), after Part 4, insert:*
- >
- >> *Part 4A — Religious vilification*
- >>
- >> *48A Religious vilification unlawful*
- >>
- >> *(1) It is unlawful for a person to engage in conduct, on the ground of the religious belief or activity of another person or group of persons, that:*
- >>
- >>> *(a) is not in private; and*
- >>>
- >>> *(b) a reasonable person would consider would threaten, intimidate, harass or vilify the other person or group.*
- >>
- >> *Note: Complaints can be made to the Australian Human Rights Commission about conduct that is unlawful under this Part (see the definition of unlawful discrimination in subsection 3(1) of the Australian Human Rights Commission Act 1986, and section 46P of that Act).*
- >>
- >> *(2) For the purposes of subsection (1), an act is taken not to be done in private if it:*
- >>
- >>> *(a) causes words, sounds, images or writing to be communicated to the public; or*
- >>>
- >>> *(b) is done in a public place; or*
- >>>
- >>> *(c) is done in the sight or hearing of people who are in a public place.*
- >>
- >> *(3) P ublic place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.*
- >>
- >> *48B Exceptions*
- >>
- >> *(1) A person does not contravene section 48A if the person establishes that the person engaged in the conduct reasonably and in good faith:*
- >>
- >>> *(a) in the performance, exhibition or distribution of an artistic work; or*
- >>>
- >>> *(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in:*
- >>>
- >>>> *(i) for any genuine academic, artistic, religious or scientific purpose; or*
- >>>>
- >>>> *(ii) for any purpose that is in the public interest; or*
- >>>>
- >>>> *(iii) in making or publishing a fair and accurate report of any event or matter of public interest.*
- >>
- >> *(2) For the purposes of subparagraph (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.*
- >
- > *(22) Clause 49, page 42 (line 6), after “Part 4”, insert “or 4A”.*
- >
- > *(23) Clause 50, page 43 (line 10), after “Part 4”, insert “or 4A”.*
- >
- > *(24) Clause 51, page 44 (line 11), after “Part 4”, insert “or 4A”.*
- >
- > *(25) Clause 70, page 57 (line 27), after “Part 4”, insert “or 4A”.*
- >
- > *(26) Clause 70, page 58 (line 6), after “Part 4”, insert “or 4A”.*
- >
- > *(27) Clause 73, page 59 (line 32), after “Part 4”, insert “or 4A”.*
- ### 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.
<p class="speaker">Anthony Albanese</p><p>I have a point of order, Mr Speaker. It goes to your ruling, which certainly there is precedent for. I'm not questioning the basis of that. But it is possible to deliver other outcomes given that the stated objective of the mover of this legislation was to have a consensus. If there is a definition of division, 62 each is it. I believe that there is a possibility of further scope and discussion in order to get greater agreement. I don't think that this is a positive way for this to move forward. This isn't really aimed at you, Mr Speaker, because you are in accordance with the procedures and precedents. I accept that that's the case. But normally in this place the context would be an adversarial contest, which is what we often have. What we have here is legislation which we're told is about building a consensus. Clearly that's not the case. It's certainly within the scope of the government, and I would ask it to consider the opportunity that it has now to actually get some genuine discussion and some agreement to resolve these issues in a more satisfactory way.</p> <p class="speaker">Andrew Wallace</p><p>On the basis of my ruling and the reasons given for my ruling, I don't intend to change how I have ruled. The question now is that government amendments (1) to (9), (11), (13) to (16) and (22) be agreed to.</p><p>Question agreed to, Mr Bandt and Mr Wilkie dissenting.</p> <p class="speaker">Mark Dreyfus</p><p>by leave—I move opposition amendments (2), (4), (10), (17) to (19) and (21) to (27) to the Religious Discrimination Bill together:</p><p class="italic">(2) Clause 4, page 3, after line 30, insert:</p><p class="italic">Religious vilification is unlawful, with certain exceptions (see Part 4A).</p><p class="italic">(4) Clause 7, page 10 (line 8), omit "this Act", substitute "Part 4".</p><p class="italic">(10) Clause 9, page 12 (line 24), omit "this Act", substitute "Part 4".</p><p class="italic">(17) Clause 12, page 17 (line 15), omit ".", substitute "; or".</p><p class="italic">(18) Clause 12, page 17 (after line 15), after paragraph (2)(c), insert:</p><p class="italic">(d) that is unlawful under Part 4A (religious vilification).</p><p class="italic">(19) Clause 16, page 20 (line 12), omit "this Act", substitute "Part 4".</p><p class="italic">(21) Page 41 (after line 7), after Part 4, insert:</p><p class="italic">Part 4A — Religious vilification</p><p class="italic">48A Religious vilification unlawful</p><p class="italic">(1) It is unlawful for a person to engage in conduct, on the ground of the religious belief or activity of another person or group of persons, that:</p><p class="italic">(a) is not in private; and</p><p class="italic">(b) a reasonable person would consider would threaten, intimidate, harass or vilify the other person or group.</p><p class="italic">Note: Complaints can be made to the Australian Human Rights Commission about conduct that is unlawful under this Part (see the definition of <i>unlawful discrimination</i> in subsection 3(1) of the <i>Australian Human Rights Commission Act 1986</i>, and section 46P of that Act).</p><p class="italic">(2) For the purposes of subsection (1), an act is taken not to be done in private if it:</p><p class="italic">(a) causes words, sounds, images or writing to be communicated to the public; or</p><p class="italic">(b) is done in a public place; or</p><p class="italic">(c) is done in the sight or hearing of people who are in a public place.</p><p class="italic">(3) <i>Public place</i> includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.</p><p class="italic">48B Exceptions</p><p class="italic">(1) A person does not contravene section 48A if the person establishes that the person engaged in the conduct reasonably and in good faith:</p><p class="italic">(a) in the performance, exhibition or distribution of an artistic work; or</p><p class="italic">(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in:</p><p class="italic">(i) for any genuine academic, artistic, religious or scientific purpose; or</p><p class="italic">(ii) for any purpose that is in the public interest; or</p><p class="italic">(iii) in making or publishing a fair and accurate report of any event or matter of public interest.</p><p class="italic">(2) For the purposes of subparagraph (1)(b)(i), a <i>religious</i> purpose includes, but is not limited to, conveying or teaching a religion or proselytising.</p><p class="italic">(22) Clause 49, page 42 (line 6), after "Part 4", insert "or 4A".</p><p class="italic">(23) Clause 50, page 43 (line 10), after "Part 4", insert "or 4A".</p><p class="italic">(24) Clause 51, page 44 (line 11), after "Part 4", insert "or 4A".</p><p class="italic">(25) Clause 70, page 57 (line 27), after "Part 4", insert "or 4A".</p><p class="italic">(26) Clause 70, page 58 (line 6), after "Part 4", insert "or 4A".</p><p class="italic">(27) Clause 73, page 59 (line 32), after "Part 4", insert "or 4A".</p><p>The amendments that Labor is moving now would introduce into this bill a provision to protect people from vilification on the grounds of their religious belief or practice. This is a very important provision that the government has deliberately left out of this bill, despite requests from a range of faith communities for such a provision to be included. Indeed, it's difficult to understand how the Prime Minister can insist on what he imagines is the desire of people of faith to be able to make discriminatory statements about other Australians in what would otherwise amount to a breach of state antidiscrimination laws while ignoring their clearly stated desire to be protected from vilification on the grounds of their faith.</p><p>In his second reading speech, the Prime Minister said:</p><p class="italic">People should not be cancelled or persecuted or vilified because their beliefs are different from someone else's in a free liberal democratic society such as Australia.</p><p>Yet the bill introduced by the Prime Minister would not prohibit the vilification of people on the basis of religious belief, religious dress or religious activity. Currently, if a Muslim Arab or an Indian Hindu or an Egyptian Copt is vilified on the basis of race, they have legal protection under Commonwealth law. But if they are vilified because of their religion, there is no protection under Commonwealth law. This bill does nothing to address this. This bill does nothing to protect a Muslim woman in Western Sydney who is abused in the street because of her hijab, or a Hindu man who is vilified for his religious beliefs.</p><p>The Race Discrimination Commissioner, Mr Chin Tan, completed a report last year called <i>Sharing </i><i>the </i><i>Stories </i><i>of </i><i>Australian Muslims</i>. That report provides confronting analysis and evidence of just how often Australians of the Islamic faith are being vilified because of their religion. Commissioner Tan wrote in his introduction:</p><p class="italic">The stories shared by Australian Muslim community members for this project have brought home to me that the undercurrents of religious discrimination, vilification and hate that manifested so horribly in the Christchurch attack, are not an aberration. They are consistent with the experiences of Islamophobia and anti-Muslim hate that is routinely experienced in Australia.</p><p>These amendments respond to the very real problem of religious vilification—a problem described by the Race Discrimination Commissioner of the Australian Human Rights Commission as a problem 'routinely experienced' by Australian Muslims and those from many other faith communities—by prohibiting a person from threatening, intimidating, harassing or vilifying a person or a group of persons on the basis of their religious belief. This should not be a controversial suggestion. I hope that no-one in this parliament believes that in our country people should continue to be allowed to threaten, intimidate, harass or vilify a Muslim man or woman because they're Muslim, or a Hindu man or woman because they're Hindu, or a Christian because they're Christian.</p><p>I will briefly outline the specifics of the antivilification provision these amendments will introduce. It provides that a person must not on the ground of the religious belief or activity of another person or group of persons engage in conduct that is not private and that a reasonable person would consider would threaten, intimidate, harass or vilify the other person or group. It's important to emphasise this last point: the religious antivilification provision these amendments would establish only prohibits conduct that 'threatens, intimidates, harasses or vilifies'. This is a higher threshold than the threshold in the longstanding protections against racial and other hate speech in section 18(c) of the Racial Discrimination Act, which is 'insult, offend, humiliate or intimidate'.</p><p>The higher threshold we are proposing for the protection against religious vilification will help to ensure that this provision cannot be used as a de facto prohibition on blasphemy. It's Labor's view that, while Australians should be respectful of each other, a statement that may be insulting or offensive to a member of a religious faith without more should not attract legal sanction. The proposed threshold is also consistent with the proposal put forward by the Australian National Imams Council and other submitters in response to the racial discrimination bill. In addition to ensuring an appropriately high threshold for religious vilification, these amendments also include a comprehensive defence to any action if the person engaged in the conduct complained of reasonably and in good faith did it:</p><p class="italic">(a) in the performance, exhibition or distribution of an artistic work; or</p><p class="italic">(b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in:</p><p class="italic">  (i) for any genuine academic, artistic, religious or scientific purpose; or</p><p class="italic">  (ii) for any purpose that is in the public interest; or</p><p class="italic">  (iii) in making or publishing a fair and accurate report of any event or matter of public interest.</p><p>Of course we invited the government to work with us on an antivilification provision to protect people of faith, but the government said no. This was just another example of how the Prime Minister's claim that he wanted to work in a bipartisan manner on this bill to unite rather than to divide Australians on these important issues of protecting people of faith was merely a pretence. The government has said that this issue was raised only at the last minute and there isn't time to work through the drafting. That is clearly nonsense. Since the first exposure draft of this bill was released over two years ago a range of religious groups have argued that the bill should include an antivilification provision. The Australian National Imams Council has even put forward drafting suggestions. This government was still drafting amendments to this bill as late as mid-morning yesterday.</p><p>These are sensible amendments. Labor has consulted with legal experts as well as with faith communities. We think these provisions get the balance right. Of course, if the government or others have suggestions as to how these provisions can be further improved, we are willing to consider those suggestions. These are sensible amendments. Labor has consulted with experts. Labor has consulted with minority faith communities. We do think that these provisions get the balance right.</p><p>What the government should not do—and should not be allowed to get away with—is pretend that this is all too hard. It is not. This parliament has an opportunity to provide people of faith, particularly minority faiths, with a meaningful and important protection against vilification. We should take that opportunity.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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