Thursday, 29 August 2019

Religious Discrimination Bill 2019

Speech

The list of dignitaries present is too long to mention by name, but I would like to acknowledge the leaders of all the different faiths present, CEOs and leaders of diversity and human rights groups and leaders in the legal fraternity.

In addition, can I specifically acknowledge and thank Peter Wertheim and Alex Ryvchin, Co-Chief Executive Officers and Anton Block, President of the Executive Council of Australian Jewry for organising today’s event, as well as Rabbi Elton and Justice Rothman of the Great Synagogue – thank you for hosting us in this extraordinary venue.

It is a rare privilege to be invited to speak in the Great Synagogue.

Surrounded by so much history and magnificent objects of worship – suggests that a good place to start is by a reference to another object of worship.

In 2017 the British Museum held a ‘Living with Gods’ exhibition which examined objects of worship - as a means of providing a window into the nature of belief.

One such object was an orthodox liturgical vestment created in Russia in about 1989. A velvet and silk embroidered image of Christ on the back of a Cope.

Working in 1989 after the fall of communism, the embroiderer had literally no vestment images to use as a guide because they had all been destroyed. The image depicted in the embroidery was instead clearly a re-characterised version of the only images of Christ that the embroiderer was able to access – being the Soviet anti-religious propaganda art on display in the various museums of atheism (which many Russian churches had been turned into if not destroyed or even more cruelly turned into public toilets).

The item exemplifies the resilience of faith.

After nearly a century of violent effort to end all religion in Russia; an image meant to ridicule religion was repurposed by the devout for religion’s post glasnost awakening.

John Henry Newman observed that true religion is “slow in growth and, when once planted, is difficult of dislodgment; but its intellectual counterfeit has no root in itself; it springs up suddenly, it suddenly withers.” 1

In reflecting how quickly the Soviet museums of anti-god withered is in a sense to detract from an appreciation of the totality and violence of the effort.

From the moment of the occupation of government buildings in Petrograd in 1917; enormous state sponsored propaganda machines operated for decades to destroy religious thinking and devotion. Churches and priceless objects of worship were destroyed and murderous personal violence was exacted upon clergy and other people of all religions.

General observations about finding an Australian balance for religious tolerance

Of course NOW – for modern Australians – the Soviets’ attempt to end all religion in Russia was a project whose cruelty, violence and sheer absurdity is obvious to all rational observers.

But that was far from true of the intellectual thinking of the time. The project was underpinned by the philosophies of giant public intellectuals such as Freud and Marx; who from different perspectives considered religion to be a disposable impulse of fantasy. And the project was cheered on during its violent operative course by a who’s who of Western intellectuals. Australia has of course never directly encountered anything like the 20th century violence of anti-religious totalitarianism, nor thankfully is there real concern in that regard.

But it is important to comprehend the resilience of faith during that shameful chapter in 20th century history (and to remember other barbaric attempts to extinguish religion that will be close in the minds of many in this room).

Properly appreciating the foundational role faith plays for so many individuals in our own society - is a critical starting point for any legislation that deals with religious expression.

In a liberal democracy the crucial starting point for any policy that affects individual’s freedom of expression is to be as collectively restrained as is reasonably possible; from interfering with another’s freedom to express themselves.

But equally, free expression (be it religious or otherwise); will never be absolute.

Given that various types of free expression will need to be limited, from time to time, in a necessarily difficult balancing exercise to secure other agreed upon values; what will be critically important in a religious context is that less religious people in our community exercise their best understanding of how religious Australian’s will actually be affected by any particular restrictions on their religious liberty.

This is especially important in truly multicultural societies whose underpinning is a live and let live approach to public life.

A restriction that might seem trivial to a person without religious conviction might be far from trivial to a person of faith. Empathy and understanding is necessary because we cannot live and let others live; without some real appreciation of what makes our neighbour’s life meaningful.

And; just as we should all take great effort not to underestimate how important religion is to individual Australian lives it should not be underestimated how important religion is to the composition and success of the life of Australian nation itself.

Efforts to replace the religious impulse with pseudo rational secular substitutes have always failed and this is perhaps because there is no substitute for the foundational strength provided to individuals through faith.

The essential shared modus vivendi – the mode of living with the vicissitudes and sometimes cruel turns of human life that is central to all the great religions – is a belief beyond self.

This foundational idea – that life is for more than our atomistic physical existence – not only gives individuals strength and purpose of an irreplaceable type – but it has also made Australia a more resilient nation.

Some of our most significant migration has been from times and places of religious persecution to our great democracy, where the tolerance of Australian civil society offered something that many other places did not – the ability, within the reasonable framework of the collectively endorsed rule of law, to believe.

And to manifest that religious belief not merely in thought or prayer but in practice, speech and teaching; without that freedom being unnecessarily impinged upon by other individuals or other religious entities or advocacy groups or the state itself.

An individual’s cultural and religious heritages are not indistinguishably the same things - but more often than not one cannot be understood without the other.

While Australians quite rightly take enormous pride at being the most successful multicultural nation on earth, there is often an under-recognition of the fact that our diversity of cultural heritages; is at many points inseparable from the Australian diversity of religious beliefs.

Australia is a nation of the many great religions – Christianity (of many denominations), Islam, Judaism, Buddhism, Hinduism, Sikhism.

The 14 million Australians adhering to an existential religious given - that the very purpose of life is to further purposes beyond the mere living self – is a force for real good in our pluralist society.

Charitable care for others has of course many sources beyond religion. However, the fact that the great religions in Australia share an essential mode of living where individuals search for meaning beyond the empirical and so seek to live beyond the self AND THEREBY for others – has manifest in many great achievements and countless cumulative individual.

My colleague Julian Leeser, in a recent speech on this topic noted that in the context of some modern tension between churches and LGBTI Australians; that these relations have not always been so contestable.

At the height of the misunderstanding of HIV/AIDs in the 1980s, when many hospitals were turning away patients - the Sisters of Charity at St Vincent Hospital Darlinghurst acted with unique compassion and courage in reversing that trend. While acknowledging the many sources of care and progress AND the need to be clear eyed regarding the reality of failings that have occurred with some churches (as can occur with all human entities); it is nevertheless true that Australia has benefited from its religious growth and diversity.

From the time of its origins - Australia has been host and beneficiary of many people grouping together and caring for others – St Vincent De Paul, Sisters of Mercy, the Salvation Army, Uniting Care, Anglicare, World Vision and many others.

The Australian Context for a Religious Discrimination Bill

In determining upon the appropriate legislative model to guard against encroachments on religious belief the Government has endeavoured to understand what are the actual problems and reasonably held concerns that are manifest for individual Australian’s who rightfully wish to express their faith.

As an aide to addressing situations that require improvement, but not engage in solving problems that are not manifest; the work of the Ruddock Religious Freedom Review can be well commended.

As noted earlier, Australians have thankfully never experienced the religious persecutions that marred European and other histories. But this does not mean that we are immune from harassment or violence being perpetrated on religious Australians.

As a starting point for legislative reform I think it is a fair summary to say that no religious groups wished for any lessened applications of our existing criminal laws.

So a very important clause of this draft Bill appears at s.27 2; which states that nothing in the Bill would make it acceptable to express a belief that a reasonable person would regard as promoting or encouraging a serious offence 3

The Ruddock Review heard examples of bullying and coercion against people on the basis of religious belief at work and school. Whilst noting the need for more comprehensive data in this area, the Review acknowledged evidence:

  • From the Report on Antisemitism in Australia 2017; citing 230 reported anti-Semitic incidents between 1 October 2016 and 30 September 2017 4
  • From the report Islamophobia in Australia 2014–2016; citing 243 incidents of ‘Islamophobia’ including verbal assaults, threats, hate mail and property damage between September 2014 and December 2015 5

We all witnessed murderous violence in mosques in New Zealand and Australia has experienced acts of callous religious vandalism like those recently perpetrated on a Hindu temple in Regents Park.

In Australia we should always ensure our criminal laws are fit for the purposes of specific and general deterrence against religious vandalism, incitement to hatred and all violence against persons of religion. This Act changes none of that.6

The types of concerns most generally raised before the Ruddock Review and to me and other Parliamentarians across our country - have been less about physical interference but are still significant and worthy of concern and response.

Concerns have ranged from compelling the unreasonable removal of religious clothing, libraries not wanting to stock religious books, the cumulative effect of various decisions by employers or tribunals or other key decision makers - that have the real effect of limiting an ability to quote or paraphrase or teach the scripture of accepted religious texts. And the diminished ability for parents to make informed decisions about when instruction on non-academic subjects in schools (such as on sexuality) might warrant a reasonable response from a religious family to decline the instruction.

In a number of media interviews on this subject I have been asked the question variously formulated but of the type – that says – well is there really any problem here with religious expression in Australia.

The proposition is that somehow be they Christian, Jews, Sikhs, Muslims or Buddhist – religious Australians are worrying or anxious about little or nothing.

I do not believe that proposition passes scrutiny.

For example, after anti-Semitism was acknowledged by the Ruddock Review, the very next year the Executive Council of Australian Jewry’s 2018 Report on Antisemitism in Australia (despite a pattern of under-reporting) recorded 366 anti-Semitic incidents, representing a 59% increase over the previous 12-month period.

AND there are other examples of curtailments of specifically religious expression and practice.

Two recent examples are instructive because they demonstrate how an anxiety about religious expression across many faiths has not occurred in a vacuum.

Porteous 7 and the Baptist Union of Queensland 8

The facts of these matters are relatively well known and are more extensively footnoted in the text copy of this speech.

But essentially, in each case the words complained of were no more than an expression of support for the traditional view of marriage consistent with a traditional Christian view.

Porteous, the Catholic Archbishop of Hobart, was the subject of a complaint in Tasmania by an activist and federal Greens candidate under a provision of the Tasmanian Act that has no precedent anywhere else in state or federal law for its breadth in seeking to make speech which is said to be offensive unlawful. 9 It is fair to say that when that section was drafted (even given its astounding breadth), it is doubtful that anyone would have considered that a Catholic Archbishop could be in any jeopardy of being deemed as speaking unlawfully merely for putting a view on traditional marriage entirely consistent with his faith.

The Baptist Union of Queensland matter related to a complaint of discrimination on the basis of an email sent to employees. Again, the email did no more than putting a view in support of the traditional definition of marriage, (similar to the alternative view for same sex marriage put by many corporate CEOs). It is safe to say that no-one would have envisaged when the Queensland Anti-Discrimination Act was passed in 1991 that a discrimination action would be taken against a Baptist care organisation for saying something consistent with their faith in a temperate way to their staff in the context of a legitimate wider debate.

These complaints were ultimately withdrawn or discontinued.10 But the process here was the punishment – the message sent is that before you say something on a public issue from a traditional religious underpinning be warned that you can face a long costly action designed to achieve a state sanctioned punitive response for expressing your religious view.

The Structure of the RDB

The Bill follows the well known three stage structure of discrimination legislation:

  • First – defining an attribute (in this case ‘religious belief or activity’ which is defined in s5(1) of the Bill) 11
  • Second – defining the concept of discrimination, both direct and indirect, and setting out the specific circumstances where it becomes prima facie unlawful for someone to be discriminated against because of that attribute
  • Third, – setting out categories of specific and general exceptions to the prohibitions.12

In this structural sense the four existing Commonwealth Discrimination Acts13 dealing with race, sex, disability and age give expression to the most traditional conception of rights.

In the liberal democratic tradition, rights are conceived to exist because they constitute an inalienable part of our existence as human individuals.

The greatest European thinkers such as Hobbes and Mill correctly conceived that a right exercised by one person will often conflict with that of another.

Freedom of expression structurally conflicts with the freedom from defamatory or vilifying speech. The freedoms to associate (whether on the basis of gender or religion or age) will need to be balanced against the right for individuals to access places and institutions free from the arbitrary exclusion of others.

The context to these types of problems is that rights by their very nature are incommensurable.

They are impossible to rank in a cardinal or ordinal sense – because equally rational people may disagree as to which rights are more important than others. And further, even if rights could be ranked there is no way to exhaustively define their boundaries in a way that sees them perfectly contour with neighbouring rights.

In real life, we see how colliding rather than contouring rights mean that people may rationally disagree on where to draw the line balancing one right with another.

One structural method to resolve these disagreements is to list, as best we can individually define them in positive terms, all the rights that we believe exist across different pieces of legislation or in a single Bill.

Because we cannot rank or contour these rights in positive written form to provide inarguably agreeable outcomes in all human situations; this positive rights model places great reliance on the judiciary to make determinations as to what is the acceptable result in the ongoing conflicts between rights.

This Bill (like the other Commonwealth anti-discrimination Acts) does not take this path. Which is why it is best described as a ‘shield’ approach rather than a positive rights ‘sword’ approach. Noting here how lawyers feel compelled to explain what law does not do before explaining what they do, I can also note that the Bill does not:

  • prioritise freedom of religion over other rights;
  • have any effect on s 18 of the Racial Discrimination Act 1975;
  • make lawful conduct that constitutes a serious criminal offences;14 or otherwise
  • authorise or enable hate speech, harassment or vilification.

This Bill instead; accepts as its starting point that the right to free religious expression (like other rights) exists in perpetuity and indivisibly with our human existence. Without a need to point to any single statutory description of that right.

And that, as a consequence, our society should be as collectively restrained as is reasonably possible; from interfering with another’s freedom to express themselves.

Some, but not all religious groups have raised a preference for a positive rights approach as opposed to a traditional anti-discrimination architecture.

Aside from not being what was recommended from the extensive consultative analysis of the Ruddock Review or what was promised and taken to a full general election; there are several problems with the positive rights or ‘sword’ approach.

At several points in the consultations on the issue it appeared that perhaps some of these problems have not been fully thought through - even by some of those in church groups calling for this approach.

First, a foundational difficulty with positively expressing accepted rights in bare terms (even if as elegantly expressed as they are in the American first amendment or the ICCPR) – is that the practical arbitration between elegantly drafted but conflicting concepts has to go somewhere.

In the positive expression model it goes in its largest part to Courts. Courts are very skilled at many things – but arbitrating on what are essentially public policy decisions between broadly defined rights causes those Courts to become politicised and produces more results that are less informed by democratic processes.

I have always found vague and unconvincing the proposition that better results in difficult balancing exercises would arise in by Australia having a list of rights and leaving the judiciary to determine outcomes at large. The positive rights approach was last advanced under the Gillard government and was soundly rejected in public discourse and quickly abandoned.

Why would it be assumed that drawing the balanced line between competing statements of positive rights would somehow produce a balance more favourable to religious expression than to other values, if it were drawn to a greater degree by a secular Court then by Parliament.

Of course, a Bill such as the one now presented (even though it does not positively express rights) will still often require ultimate decision making by a court. But where this Bill and all the other Discrimination Acts may lack the apparent simplicity of bills of rights, they benefit from providing much greater statutory guidance to the courts; by laying out Parliament’s and thereby the peoples specific framework for resolving anticipatable situations in a way which is relatively detailed (and which can be changed by future Parliament’s if that is required).

Rights positively expressed are powerful swords but they are always dual edged swords.

Inserting into Australian law a US First Amendment form of words or a formulation based on section 18 of the ICCPR15 might be elegant to read but what results it would actually produce in public policy (including for religious Australians) would be far from simple to predict.

The US First Amendment provides a near absolute protection for highly offensive caricatures of religious and other public leaders - intentionally inflicting distress on public figures through caricatures, parody and written satire is a form of speech protected by first amendment jurisprudence. The defamatory and offensive nature of the things written, for instance, against a Christian preacher summarised in the decision of Hustler Magazine, Inc. v. Falwell 16 have to be read to be believed.

In Australia, even in the absence of a specific statutory provision establishing a right to free religious expression the High Court famously disagreed 3:3 on whether Commonwealth laws could validly prevent someone from sending shocking, vile and harassing letters to the parents of deceased service men and women.17 A positive right to freedom of religious expression may well put beyond any doubt that a perpetrator could do so, provided they could argue that a religious expression underpinned that activity.

Indeed, a singular statutory statement of the right to free religious expression would likely cut across defamation laws and make it more likely that one religious figure (or an atheist for that matter) could lawfully engage in what would otherwise be serious defamation of another religious figure. Indeed, such a positive rights approach may well have the ironic and dangerous effect of diminishing the protection offered to religious Australians from anti vilification and incitement provisions in state criminal laws.

A response to the less democratic and more unpredictable outcomes produced in the positive rights approach should never be to seek to exclusively enshrine one right only.

Where incommensurable rights are in revolving practical conflict (requiring ongoing arbitration) there is always a natural want for people particularly attached to one type of right to seek its legislative elevation. That is perhaps the unwisest possible move away from the Australian tradition, because elevating one right above all others is so unbalanced it would have results which are anything but fair and totally unpredictable.

The Operation of the RDB

The three tiered attribute, prohibition and exclusion model necessarily engages a level of complexity but benefits from the fact that the court is provided with a more detailed starting set of rules. Judicial decision making is thereby guided and narrowed by a set of legislative guardrails designed to protect people from others or other entities (or the State itself) where there is unreasonable and unnecessary limits placed on their free religious expression in the public square.

And there is real significance in setting out where people would be protected through the provision of an ability to complain (and if unresolved by the AHRC to require a judicial decision) - against a range of real life incursions that are foreseen by the specific protections in the Bill.

For instance, last year the CEO of the NSW Jewish Board of Deputies was refused entry to a function; because of the religiosity of his position. Everyone would agree this is totally unacceptable.

Indeed, the Labor deputy leader of the NSW Upper House properly and swiftly said Mr Alhadeff had an official invitation to the function and … “was welcome to attend [AND THAT] .. it was a stupid, malicious and vindictive to refuse him entry into a multicultural event”.

That exclusionary conduct was clearly malicious and vindictive, but in NSW without this Act there would be no avenue for Mr Alhadeff (if he were minded) to argue this was unlawful discrimination on the basis of his religion.18

It is not difficult to imagine the specific and general deterrence such a complaint might have; as well as the educative capacity to shed light on discrimination or any other type of religious bigotry.

And the protection from discrimination provided in this Bill extends to a range of areas from education and employment to the provision of services and Commonwealth programs.19

Just because a protective legal shield is simple does not mean it is unimportant.

It was an equally simple principle - that people should not be excluded from riding at the front of a bus that sparked the Montgomery Segregated Bus Boycott in the USA and that launched nationwide efforts to end racial segregation of public facilities.

Equally, that a simple protection is important need not mean it is controversial.

The fact is that all the Australian States and Territories have their own versions of anti-discrimination legislation.

In Western Australia and Victoria in 198420 - Queensland and the ACT in 199121 - Northern Territory in 199222 and Tasmania in 199823; those jurisdictions all, without undue controversy, made religion a protected attribute.

If we accept the principle that it is appropriate to protect people from discrimination based on their age, sex or race or disability (and we have accepted in most jurisdictions this should extend to protect religious Australians) - why is the principle somehow more controversial for a Commonwealth protection for religion.

Although this Bill follows a standard structure as the drafting experience in the states demonstrates, that protecting different attributes involves some differences in emphasis and drafting.24

All Discrimination Acts have to contain what are considered to be reasonable and proportionately fair exceptions.

One clearly necessary category of general exception in the religious context is that religious practices which operate in favour of members of the same faith community might have an effect of excluding people of other faiths. For instance a religious school may admit students of many faiths or may prefer students only of its own faith but that discretion is not viewed by other faiths as discriminatory because they understand and accept its foundational importance to all faiths.

In choosing how to formulate exceptions for religious bodies this Bill adopts a broad structure informed by the approach in s.82 of the Victorian legislation.25 The effect is to preserve the status quo whereby a religious body, which is defined at section 1026, can; on questions of how it deals with the exclusivity of its premises or composition or services - apply its own determination of the best application of its own doctrines and beliefs, and does not discriminate by acting in good faith on that basis.

The definition of religious body in s10 of the draft Bill does not extend to bodies whose sole or primary activity is commercial, such as hospitals and aged-care providers. I am acutely aware of the important role that religious hospitals and aged-care providers play in the delivery of these services, and so as part of my consultations I will be specifically engaging with these stakeholders to understand any concerns they may have with the starting position in this exposure draft.

I must stress for the avoidance of any doubt that the exception applies only in respect of decisions by a religious body, on matters of religious doctrine that pertain to people of different religious beliefs.

So, for example, it would not be discriminatory for an Islamic school to decline to employ catholic teachers (or vice versa). But this Bill does not affect the current exemptions that exist for religious bodies within other Discrimination Acts, at either State or Commonwealth level.

At a Commonwealth level, the issue of religious body exemptions to discrimination legislation regarding other attributes such as sex or sexual orientation is the specific question that is currently being considered by the ALRC.

That issue, at its core, is a specific drafting exercise which is essentially focused on the question of the wording of the current exceptions in ss 37 and 38 of the Sex Discrimination Act 1984.

In light of the public release of this Bill for consultation, under section 20(2) of the Australian Law Reform Commission Act 1996, the terms of the ALRC reference were amended today to ensure that the ALRC’s review is able to take account of the Government’s intention to pass the present Bill and ensure that the ALRC was not diverted into applying resources to consider drafting issues already determined by the terms of this Bill.

Other important operative provisions in the Bill that can be briefly summarised before concluding appear in s.8 and s.41.

Section 8 deals with indirect discrimination which is where the balancing exercise inherent in anti-discrimination Acts very often occurs.

Where a rule of general application in say employment or a school rule is applied equally but because of its terms may have the effect or disadvantaging people of a particular religious belief; the essential question is whether the rule is reasonable in all the circumstances.

Section 8 in this Bill follows the usual drafting of these clauses but with some additions intended to guide decision makers on the question of reasonableness (in circumstances that we have recently seen arise in the area).

For instance the effect of section 8(3) is to establish for a decision maker that for a large employer a rule27 that has the effect of restricting someone from making a statement of religious belief outside work is not to be considered reasonable unless it can be first shown that the rule was necessary to avoid unjustifiable financial hardship to the employer.

Obviously this is meant to deal with the trend of large employers setting general non communication rules that may unreasonably limit free religious expression in an employee’s own time. A large organisation in Rugby Australia’s position might argue its restrictive rule was necessary to protect its ‘brand’ and so avoid unjustifiable corporate hardship (and was reasonable in all the circumstances). Someone in Mr Folau’s position would likely argue the opposite but this provision offers a procedure to engage that protection. Importantly, no statement of belief in this context is reasonable if it is malicious or if it harasses, vilifies, incites hatred or violence or advocates for the commission of a serious criminal offence.

Section 41 provides that a simple statement of belief made in good faith, that is not malicious, likely to harass, vilify or incite hatred or violence or advocate for the commission of a serious criminal offence; does not constitute discrimination under any Commonwealth, state or territory anti-discrimination law. Nor does it contravene the unprecedentedly broad section 17(1) of the Anti-Discrimination Act 1998 (Tas).

In the Porteous matter where an action was started against the Tasmanian Catholic Archbishop for doing no more than expressing a traditional religious belief – it was clearly appropriate that the application was withdrawn. This provision reflects that it was an application which was insufficiently supported by reasoned argument or precedent to have been properly commenced in the first place. At the Commonwealth level great effort has been made to eliminate and discourage unmeritorious complaints and if the relevant State based processes had been similarly and appropriately stringent it would be likely this provision of the Commonwealth bill would have much if any work to do.28

This provision would also have acted as a shield to the discontinued complaint in the Queensland Baptist Union matter.

On these two provisions dealing with religious belief I would like to conclude by noting an important recent legal judgement of the UK High Court. In that case, a young student made statements of belief in the UK uncannily similar to Mr Folau in Australia. He was wrongfully suspended and the Court made the important point - the mere existence of views on religious grounds does not necessarily connote that the person expressing such views will discriminate on such grounds. This is a critical distinction.

Conclusion

As I said at the outset, it is a privilege to have the opportunity to speak today to the launch of the public consultation process for the Government’s Religious Discrimination Bill.

And I would like to conclude by noting that the release of the bill represents the start of the formal consultation process on the bill and over the coming weeks, I will be meeting with stakeholders across the country as part of the consultation process. Details of the process for making submissions is available on the Department’s website along with copies of the bill and supporting materials and I personally look forward to seeing many people in this room at the consultation starting in Melbourne next Wednesday and Sydney next Thursday.


1  John Henry Newman (2009) “The Idea of a University”, p.165, Aeterna Press.

2 27 Counselling, promoting etc. a serious offence

(1) Divisions 2 and 3 do not make it unlawful to discriminate against a person on the ground of the person’s religious belief or activity if:

(a) the person has expressed a particular religious belief; and
(b) a reasonable person, having regard to all the circumstances, would conclude that, in expressing the belief, the person is counselling, promoting, encouraging or urging conduct that would constitute a serious offence; and
(c) at the time the discrimination occurs, it is reasonable to assume that the person holds the particular belief.

(2) Serious offence means an offence involving harm (within the meaning of the Criminal Code), or financial detriment, that is punishable by imprisonment for 2 years or more under a law of the Commonwealth, a State or a Territory.

3 See also the definition of religious belief and activity in s 5 of the Religious Discrimination Bill 2019 – the definition only extends to engaging or not engaging in lawful religious activity, the bill does not authorise or protect activity which is unlawful.

4 See para1.403 of Religious Freedom Review citing Executive Council of Australian Jewry, Report on Antisemitism in Australia 2017 (26 November 2017).

5 See para 1.404 of the Religious Freedom Review citing report by Dr Derya Iner Islamophobia in Australia 2014–2016 (July 2017).

6 See again for example, s 5(1) (definition of religious belief or activity), ss. 8(4) and 41 (2) (circumstances in which statements of belief are not protected) and s27 Counselling, promoting a serious offence.

7 In 2015, the Australian Catholic Bishops Conference authorised an 18-page pamphlet entitled “Don’t mess with marriage”. The publication raised the topic of same-sex marriage, and then described the purpose of the pamphlet as follows: We wish by this pastoral letter to engage with this debate, present the Church’s teaching to the faithful, and explain the position of the Catholic faithful to the wider community. The Catholic Archbishop of Hobart, Julian Porteous, distributed the pamphlet to Catholic schools in Tasmania. Catholic priests elsewhere in Australia did likewise. An activist and federal Greens candidate complained about the pamphlet to the Tasmanian Anti-Discrimination Commissioner in September 2015. The Complaint went to two conciliation hearings before ultimately being withdrawn by the complainant, 8 months later in May 2016.

8 In September 2018, the then Queensland Anti-Discrimination Commission found that an email sent by the Chief Executive of the Baptist Union of Queensland’s Carinity care service during the same-sex marriage plebiscite, in which he argued for a ‘no’ vote, constituted an ‘arguable case’ of ‘indirect discrimination’. In December 2018 the complaint was discontinued after being referred to the Queensland Industrial Relations Commission. The email sent to around 1300 staff encouraged staff to “vote No” but also stressed it was important for both sides to “be respectful of each other”. At the time the email was sent, a number of prominent CEOs had publicly supported the Yes campaign through an Open Letter from 32 prominent CEOs, including Alan Joyce of QANTAS. In sending the email to staff, the CEO of Carinity noted that as other CEOs have made their position clear through the media, he was also sharing his views as he considered that there were flaws in the Yes campaign which need to be considered. What is notable about the complaint that was discontinued in December 2018 is that it was not a complaint where there was an arguable case that the email contravened a very broad offensive speech provision in a State Act – it proceeded primarily as a ‘standard’ discrimination case under the indirect discrimination provisions of the Queensland Act.

In addition, a second complaint arising from the same email was still being heard by the QIRC as recently as last month – almost 2 years after the email was sent.

The complaint alleges victimisation under ss 129 -130 of the Anti-Discrimination Act 1991 (Qld). It has been brought by a casual staff member who did relief work as a Youth Worker at Carinity’s Orana Youth Shelter. He alleges he was victimised for signing a petition objecting to the CEO’s email and that as a result of signing the petition he was not offered another shift.

9 Section 17(1) of the Anti-Discrimination Act 1998 (Tasmania) provides that “a person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e) , (a), (b), (c), (d), (ea), (eb) and (k), (f) , (fa) , (g) , (h) , (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.”

10 As noted above, a second complaint relating to the email from the CEO of Carinity care is progressing.

11 religious belief or activity means:

(a) holding a religious belief; or
(b) engaging in lawful religious activity; or
(c) not holding a religious belief; or
(d) not engaging in, or refusing to engage in, lawful religious activity.

12 In all discrimination legislation this is necessary to allow for the fact that there will necessarily be some circumstances where the blanket prohibition needs to be mitigated to allow for some other value or need or necessary choice to be exercised.

13 Racial Discrimination Act 1975; Sex Discrimination Act 1984; Disability Discrimination Act 1992 and Age Discrimination Act 2004.

14 See section 27 (‘Counselling, promoting etc. a serious offence’) and section 5(1) (definition of religious belief or activity) of the Religious Discrimination Bill 2019.

15 Clause 18 of the ICCPR states “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

16 Hustler Magazine, Inc. v. Falwell 85 U.S. 46 (1988) Hustler magazine published a spoof interview with Christian televangelist Jerry Falwell, which claimed he was an incestuous drunk. In the interview, “Fallwell” discusses losing his virginity to his own mother, while ‘we were both drunk off our God-fearing asses on Campari’. “Falwell” claims in the interview that ‘Mom looked better than a Baptist whore with a $100 donation’ and that he decided to have sex with her because she had ‘showed all the other guys in town such a good time.’ The case held that intentionally inflicting emotional distress on public figures through caricatures, parody and satire is a form of speech protected by first amendment jurisprudence.

17 Monis v The Queen; Droudis v The Queen; (2013) 249 CLR 92. The High Court in that case divided 3:3 on the validity of s 471.12 of the Criminal Code, which relevantly prohibits a person from using a postal or similar service in a way that reasonable persons would regard as being, in all the circumstances, 'offensive'. Crennan, Kiefel and Bell JJ (in a joint judgment) held the section valid and French CJ (with whom Heydon and Hayne JJ broadly agreed, in separate judgments) held the section invalid. Under s 23(2)(a) of the Judiciary Act 1903 (Cth), if the High Court is evenly divided in an appeal, then the outcome is that the decision of the court appealed from is affirmed. Accordingly, the appeals from the NSWCCA, which upheld the validity of s 471.12, were dismissed.

18 In NSW, discrimination on the basis of race includes discrimination on the basis of ethno-religious background. A Jewish person may be protected against discrimination if the discrimination on the basis of their race (Jewish ethno-religious background) but not on the basis of their Jewish religious belief.

19 Section 13 (Employment); s 14 (Partnerships); s15 (Qualifying bodies); s16 (Registered organisations); s17 (Employment agencies); Education (s 18); Access to premises (s 19); Provision of Goods, services and facilities (s 20); Accommodation (s 21); Land (s 22); Sport (s 23); Clubs (s 24); Requesting or requiring information (s 25); Commonwealth laws and programs (s 26).

20 Religion was included as a protected attribute in the Equal Opportunity Act 1984 (Vic). Religious belief or activity was included as a protected attribute in the Equal Opportunity Act 1995 (Victoria). Religious or political conviction was included as a protected attribute in the Equal Opportunity Act 1984 (WA) which first commenced on 8 July 1985.

21 Religious conviction is a protected attribute in the Anti-Discrimination Act 1991 (ACT). Religious belief or religious activity are protected attributes in the Anti- Discrimination Act 1991, which fist commenced on 30 June 1992.

22 Religious belief or activity is a protected attribute in the Northern Territory Anti-Discrimination Act 1992 which first commenced 1 August 1993.

23 Religious belief or affiliation and religious activity are protected attributes under the Tasmanian Anti-Discrimination Act 1998.

24 An obvious difference is that many of the attributes protected in the other anti-discrimination acts are states of physical or physiological being. Religion is obviously a non-physical attribute but many people of faith would view their belief as inseparable from their being in that it is indivisibly a part of who they are.

Where physicality creates a state of being which in many contexts translates into shared experience – religion is both less than and more than a physical attribute because believers are fundamentally attempting to live in common with principles believed as ordained and in so doing they are seeking as a matter of purpose to live in common unity with others who are of their faith.

25 Section 82 of the Equal Opportunity Act 2010 (Victoria) provides:

(1) Nothing in Part 4 [When is Discrimination Prohibited?] applies to—

(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or
(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice.

(2) Nothing in Part 4 [When is Discrimination Prohibited?] applies to anything done on the basis of a person's religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity by a religious body that—

(a) conforms with the doctrines, beliefs or principles of the religion; or
(b) is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

26 ^10 Religious bodies may act in accordance with their faith

(1) A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted.

(2) Religious body means:

(a) an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion; or
(b) a registered charity that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a registered charity that engages solely or primarily in commercial activities); or
(c) any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities).

(3) This section applies despite anything else in this Act.

27 Section 5(1) of the Religious Discrimination Bill:

employer conduct rule means a condition, requirement or practice:

(a) that is imposed, or proposed to be imposed, by an employer on its employees or prospective employees; and
(b) that relates to standards of dress, appearance or behaviour of those employees.

Section 8(3) of the Bill provides as follows:

Conditions that are not reasonable relating to statements of belief

(3) For the purposes of paragraph (1)(c), an employer conduct rule that:

(a) is imposed, or proposed to be imposed, by a relevant employer; and
(b) would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer; is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer.

Note: A requirement to comply with an employer conduct rule that is not reasonable under this subsection is also not an inherent requirement of employment (see subsection ^31(6)).

28 The Human Rights Legislation Amendment Act 2017 reformed the complaints handling process at the Australian Human Rights Commission. The Act raised the threshold for lodging a complaint of unlawful discrimination and provided a greater ability for the Commission to terminate unmeritorious complaints, including by introducing new mandatory and discretionary grounds upon which a complaint can be terminated by the President (s 46PF of the AHRC Act).