Tuesday, 03 September 2019

Raf Epstein ABC Melbourne



Subjects: Religious discrimination bill

RAFAEL EPSTEIN: In the wake of the same-sex marriage survey, there was a push from both inside the Coalition and from some church groups to protect religious freedom. Scott Morrison's Government has come up with a batch of proposed laws to protect people's views in certain circumstances if they're an accepted part of a religious doctrine. We're joined by the Attorney- General Christian Porter. Thanks for having a word to us.

CHRISTIAN PORTER: Yeah, pleasure.

RAFAEL EPSTEIN: Christian Porter, there's a few crossbenchers who want to see evidence of a real problem before they vote. Is there substantial evidence that people are, say, losing their jobs because of their religious beliefs?

CHRISTIAN PORTER: Well, we've seen one very high profile example of that. We've seen the Catholic Archbishop of Tasmania have Tasmanian Discrimination Act proceedings brought against him for doing no more than expressing a traditional Christian viewing in favour of traditional marriage. We've seen a Baptist care organisation in Queensland similarly face discrimination actions against them for …

RAFAEL EPSTEIN: [Interrupts] They're the three that are often spoken about. I guess I'm asking if there is substantial evidence. If someone's come to you and said: look, we know this is a big problem because of this body of research.

CHRISTIAN PORTER: A very senior member of the Jewish community last year was refused entry into an event that he'd previously had been invited to at New South Wales State Parliament House based on his religiosity. We've seen increases in incidents against some Islamic people in Australia.

We've seen increases in incidents against Jewish people in Australia. I mean, I think that the Ruddock review went through this at great lengths. There have been notable high profile…

RAFAEL EPSTEIN: [Interrupts] I didn't see anybody else losing their job other than Israel Folau.

I'm keen to talk about the Israel Folau part of this. But they're all sort of examples that get touted and get recycled a lot in the newspapers. Is there substantial body of work that says this is a substantial problem?

CHRISTIAN PORTER: Well, there's very high profile examples that come to people's attention. But we shouldn't be under any allusions that if there's one person out there who's had very prescriptive workplace rules from their employer placed on them with respect to what they can and can't say outside their workplace and has lost their job for being in breach of those. But there are whole range of people out there who are subject to similar prescription from their employers, who because they don't want to lose their job, don't express their beliefs on Facebook in their spare time.

RAFAEL EPSTEIN: [Interrupts] How do we know there's a whole range of people facing that problem?

CHRISTIAN PORTER: Well, because the large enterprises in this country, whether they be Rugby Australia- law firms do it as well, are now engaged in the process of making very prescriptive requirements on their employees, not merely as to religious matters but as to the things that they can say and do on Facebook and social media in their spare time. Now you can flout those laws and run the risk of being sacked if you like or you can suck it up and not say things that you might otherwise feel free to say in your spare time so...

RAFAEL EPSTEIN: [Interrupts] Can I ask- sorry.

CHRISTIAN PORTER: … no, well, and I think most Australians would think that that's a level of prescription and interference in their free expression that isn't warranted.

RAFAEL EPSTEIN: How would this stop- or could this stop a future Israel Folau being sacked by Rugby Australia over a social media post?

CHRISTIAN PORTER: Well, it could potentially do that. I mean every circumstance is going to be different and the facts will play out differently. But what this rule does is that in considering whether a rule of general application in a workplace, or an employer has a general rule about prescribing what you can and can't say on social media at your spare time, and they're doing that under the guise of not wanting to have their brand damaged of suffer commercial loss, then the first thing that they would have to prove to be able to prove that that's reasonable rule is they did actually suffer undue financial hardship by virtue of a breach.

RAFAEL EPSTEIN: [Interrupts] Can I interrupt, Attorney-General. I just want to clarify because there was a lot of talk- again, I know it's not retrospective. But there was a lot of talk that Rugby Australia's sponsors would be very upset with Israel Folau. I think it was Land Rover and Qantas. Is threats and talk of and letters saying we don't like, is that the same as, under your law, showing this financial damage?

CHRISTIAN PORTER: No, you'd have to actually show the financial damage. But without being a complete expert on all of the ins and outs of Qantas' sponsorship of Rugby Australia, my understanding at the time was far from there being threats that they'd withdrawn sponsorship, that they had said publicly that in effect, this was nothing to do with him. And this was a dispute between Rugby Australia. So let's not get in to the …

RAFAEL EPSTEIN: [Talks over] No, it's just an example for people to understand.

CHRISTIAN PORTER: … putting upon Qantas things that they said to have done that they didn't appear to do.

RAFAEL EPSTEIN: [Interrupts] So Rugby Australia would need to say: oh look, we lost this sponsorship deal and we lost this number of people who didn't come to our games because of this social media post. That's the sort of way they would be able to defend themselves under your law. Is that what this law means?

CHRISTIAN PORTER: That's correct. They would have to demonstrate that if a rule that they say is there for the purpose of preventing an undue hardship is not abided by, then they actually suffered undue financial hardship. Now, I don't think that's'- and the Government doesn't think that's a reasonable thing to do. If the purpose for having these very prescriptive rules on sometimes thousands of employees about what they might otherwise do freely in their spare time on Facebook or social media in expressing a view; in this case, a religious view. If the reason for that is said to be preventing undue financial hardship- well, that's fine. That might be a very good reason to do it. But you'd need to be able to establish that, surely.

RAFAEL EPSTEIN: And why is that privileged over a public servant who can't tweet something about Government policy? Why is that speech not protected, but the religious speech is?

CHRISTIAN PORTER: So you're referring to the Banerji High Court decision which says …

RAFAEL EPSTEIN: [Interrupts] Yeah, but again, I mean you can imagine that coming again …

CHRISTIAN PORTER: [Talks over] Well I can answer the question for you, Raf, if you like.


CHRISTIAN PORTER: Yep, okay. So public servants are in a very unique category of employee. And for hundreds of years having inherited this principle from United Kingdom, the independence of the civil service has to be maintained in actuality, and it has to maintained in perception. And what the high court said was that someone, in this case, tweeting that any person, whether under potential anonymity or openly were criticising the government that they are employed as a public service independently to serve, then that would be a breach of both the actuality and perception of the independence of the public service. And under that longstanding rule of the Westminster system, wouldn't be allowed.

RAFAEL EPSTEIN: I'm not disagreeing that it's a long established legal principle, but doesn't your law mean that you've got more free speech if it's part of your religion than you do if you're a public servant?

CHRISTIAN PORTER: Well, that's- the two aren't at all comparable. I mean, it's always been the case that a public servant has to provide …

RAFAEL EPSTEIN: [Talks over] [Indistinct] speak out about a political issue or a religious issue.

CHRISTIAN PORTER: No, no. Well, if you're a public servant, as you know Raf, the ability to speak out happens to government directly, but you give frank and fearless advice. But once elected democratic governments are determined on policy …


CHRISTIAN PORTER: … the job of the public service, even if it's a policy that they advised against it to support that policy on an independent basis, now - that's a principle that's been going on for hundreds of years.


CHRISTIAN PORTER: Trying to draw a comparison between that and a set of circumstances where a private sector organisation with a revenue turnover of over $50 million, places all sorts of busybodying prescriptive rules upon its often thousands of employees as to what they can say in their spare time. Now, there might be reasons why they might want to do that, but religious expression is particularly import to millions of Australians …

RAFAEL EPSTEIN: [Talks over] I understand.

CHRISTIAN PORTER: … so there better be a good reason for wanting to do that if you're prescribing religious expression. But drawing a comparison between the public service and a very unique particular rule that applies to the independent public service in this situation, I think just doesn't advance the debate very much.

RAFAEL EPSTEIN: Christian Porter's the Attorney-General. There's a number of changes they're proposing around religious freedom. They've also got some new laws around online paedophile activity that I'll get to in a moment. Christian Porter, just- I guess the principle of you can say what you like if it's part of your religion's accepted doctrine - if I'm working for a private company and I'm going to say offensive things because that's sort of the territory that we're in, can I say that it's just part of my religion that Jews are money-hungry, black people are more stupid than white people, that's part of my religion therefore I can say it and it's not core business for the company I work for. Would it also protect that sort of speech?

CHRISTIAN PORTER: Well, I very much doubt it. What religious underpinnings would you offer for those types of statements?

RAFAEL EPSTEIN: Well, the entire new world was civilised by Christianity, wasn't it? I mean, you could- I'm not saying it's a sensible thing, Christian Porter, I'm just asking if you went to a court and said: look, my religion says all Jews are money-hungry, therefore I …

CHRISTIAN PORTER: [Interrupts] Well, you name a religion to me that you could logically advance and reasonably advance that those statements that you just made were underpinned in the doctrines or scripture or inherent tenets of a faith. Just name one faith that you say would underpin those types of statements …

RAFAEL EPSTEIN: [Talks over] Well, I guess I'm asking - the legislation protects, what, mainstream religions and mainstream religious views? How's the religious doctrine defined?

CHRISTIAN PORTER: [Talks over] No I didn't- again, you're putting words in my mouth, I didn't say that. Religious-

RAFAEL EPSTEIN: [Interrupts] So tell me how it's defined?

CHRISTIAN PORTER: Well, religion is defined as a religious [audio skip] activity, there's a great deal of case law that sits behind that. There's a 1983 case that considered whether Scientology was a religion, and that was held to be a religion. So the point remains that you-

RAFAEL EPSTEIN: [Interrupts] So Scientology is a religion, and Rastafarian is not?

CHRISTIAN PORTER: Well, I'm not aware whether or not that particular religion has been assessed, but I doubt very much whether would fall under the ambit of the High Court decision, which talks about the types of things that you need to be considered a religion. But the point that you're making is that a range of speech which we would otherwise think is vilifying or harassing, which things are not allowed under this legislation, would somehow be based in a religious doctrine or scripture. I mean, when we actually look at how this is playing out in the real world, you're getting statements, for instance, like those that were made now in a very recent but famous case in the United Kingdom High Court, that involved the University of Sheffield, where a young student said things in fact that were uncannily similar to those things that were said by Israel Folau, and the UK High Court said that those things were not discriminatory, that they were in effect, paraphrasing, even if they were clumsy paraphrasing of certain scripture. And they didn't amount to discrimination.

RAFAEL EPSTEIN: Can I ask you another related question - I'm not asking for your opinion on the Tamil couple from Biloela who- they've got a court case tomorrow, you're the Attorney-General.

But people have been criticising the Prime Minister's faith as a way of critiquing him politically. Just as a general standard of how we talk about politics in this country, do you think it's okay to talk about someone's faith as part of criticising them politically?

CHRISTIAN PORTER: Well, I just think it's a wrong-headed criticism. I mean, for someone who is a person of faith and a dedicated Christian to say that that would mean that they can only make one particular decision in a matter such as the one that you've described seems to me to be absurd. I mean, a person of faith and a devout Christian would also want to avoid deaths at sea, which we saw under alternative policy settings. So, depending on what you think is the greater compassion in circumstances like this, I just think that that kind of input into the debate is unhelpful, it doesn't tell us anything.

RAFAEL EPSTEIN: I guess I'm asking if it's legitimate.

CHRISTIAN PORTER: Well, I mean- anyone can express themselves in a way that they see fit and, you know, Kristina Keneally's decided to bring faith and Christianity into this. I think that that's unhelpful. She can do that if she likes, but I think it's very unhelpful.

RAFAEL EPSTEIN: You've announced a raft of laws around online child exploitation and there's some mandatory sentencing you're proposing. We've had an attempt at mandatory sentences in Victoria, actually around emergency services workers. Paramedics were assaulted, bloke did not go to jail, even though it was specifically tightened to be mandatory. Why are you proposing mandatory sentencing for child exploitation offences, and how do you know it will work?

CHRISTIAN PORTER: Well, we had a very large uptick in the complaints that have come into the AFP around this type of behaviour. Double the number of complaints that existed only a year ago. In 28 per cent of the instances where people are convicted of these offences in Commonwealth statute, they don't spend a day in jail. We think that these have just elevated to a category of seriousness that it warrants a response in sentencing. I'm aware but not- across all of the detail of the Victorian example, but I was previously a state attorney-general, and I think that your Victorian laws might have been based somewhat on the laws that we brought in in WA to have mandatory sentencing for serious assaults against police. They decreased the assaults on police in a very short period of time by four months. So what we want to offer here is specific deterrence to people who might otherwise engage in this behaviour, but send a very clear message of general deterrence that these are totally unacceptable offending, whether that is offending online, or whether it's travelling overseas to offend against child in other countries. Totally unacceptable and you can expect jail terms if you engage in it.

RAFAEL EPSTEIN: Really appreciate your time, thank you.

CHRISTIAN PORTER: Pleasure, cheers.

RAFAEL EPSTEIN: Christian Porter's the Attorney-General in Scott Morrison's Cabinet.​​​​