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6PR Mornings with Gareth Parker



Subjects: Release of draft Religious Discrimination Bill for public consultation

GARETH PARKER: Okay. Attorney-General Christian Porter is releasing the details of the religious discrimination bill we've been discussing for some weeks. I chatted with him earlier.

ATTORNEY-GENERAL: Yes. Morning, Gareth. In Sydney today about to speak on religious discrimination Bill.

GARETH PARKER: And we understand you're about to reveal for the first time the provisions of this bill. How's it going to work?

ATTORNEY-GENERAL: So we'll put the bill out in a full consultation draft. So that will be today and everyone, whether you're religious or not, will get a good chance to have a look at it, make comments on it. So there'll be public submissions taken through a website, and I'll run a range of consultations across Australia for people who are interested to come and sit down and talk about the bill.

But it largely works the same way that discrimination bills work at a Commonwealth level and in the state. So you set out what they call an attribute, which in this case is being religious or indeed not having a religion, and then it sets out a variety of circumstances where it would be unlawful to discriminate against someone based on that attribute, and then it sets out a range of necessary and logical exemptions or exceptions that you will need. So in very simplest terms, there was an incident here in New South Wales, I think last year, where a senior figure in the Jewish community was declined entry to a room where there was a multicultural function on that he had been invited to.

And because New South Wales doesn't have a discrimination act that has the attribute of religion, that wasn't unlawful. And we, as a Commonwealth Government say those type of circumstances should be unlawful. You shouldn't be refused entry to a function you've been invited to because you're religious any more than you should be refused because of your sexuality or your age or the fact that you might have a disability.

GARETH PARKER: There have been a lot of, well there's a lot of views on this out in the community already before it's been exposed, particularly some religious groups, they want sort of almost active rights created by this bill. Will it do that?

ATTORNEY-GENERAL: No it won't. It won't do that. And in Australia, we've never gone about protecting people's rights through a positive bill of rights model at a federal level, and there are a lot of good reasons why you wouldn't do that. But probably, the least appropriate way to ever do that is to have one right positively expressed in isolation, and this bill doesn't do that. It follows a more traditional liberal democratic process of saying that our starting point is always to assume that people have the largest possible ability to freely express themselves, whether that is on religious or other matters. And then to set up protections from situations where that freedom that we assume exists might be impinged on, which is what this bill does. And it also seeks to try and deal with some of the matters that we've seen arise particularly with religious expression in the workplace outside of work hours. So it has some tailored elements to it, but largely follows a very standard structure.

GARETH PARKER: Okay. So I just want to test some real life examples of that. Obviously, the Israel Folau case has been prominent and that's before the courts; but in a situation where someone has expressed religious views on their own time, on social media, and that's in conflict with some sort of contractual provision with their employment agreement, will that be protected or not?

ATTORNEY-GENERAL: Well there'll be an avenue to complain that that kind of rule by your employer is unreasonable, and that is a pretty standard provision. So if an employer or a school rule or something has a general application that might have the effect of particularly disadvantaging a group of people of a particular religion, they can complain about that rule. And the ultimate test is whether or not that rule is reasonable in all the circumstances.

Something that is in this act which is specific to those types of situations that you've just mentioned is that if it's a very large company with a turnover of 50 million, a rule that says that someone can't in good faith talk about their religion in their spare time would not be reasonable unless the large company could show that there was an unjustifiable financial disadvantage for them. So they'd have to show that somehow or other, that people speaking in their spare time about their religion was causing them some kind of financial hardship. We think that's an appropriate standard for them to have to reach …

GARETH PARKER: (Talks over) Okay.

ATTORNEY-GENERAL: … to justify that kind of rule.

GARETH PARKER: Would sponsors abandoning a peak sporting body qualify as a reasonable loss of income?

ATTORNEY-GENERAL: Well, potentially, if you could show that to the relevant standard that that was an inevitable effect of not having a rule that prevented someone from speaking freely on matters of religion. But in most instances, I would have thought that would be quite hard to show because there are 14 million Australians who are religiously affiliated, and so people having a religion will necessarily be people that you're employing. And people want to be able to have the ability to express their religious belief, to teach, to attend teaching of religious instruction. So it's not unusual thing for employees outside their work hours to be engaged in religious expression.

GARETH PARKER: Okay. Interesting. Will, for example, a Catholic school be able to continue to insist that the people it hires are Catholics?

ATTORNEY-GENERAL: Essentially yes. So a Catholic school or an Islamic school or a Jewish school for that matter might set itself up in a way that it admits students of all different faiths, or in some instances they will exclusively have a student body and admit students only of their own faith. And the exceptions in this act to the general prohibitions mean that that status quo is effectively maintained. So there is an ability for religious schools to have their school composed of people of their own faith. And when you talk with religious Australians - and this is just about the ability of the school to make exclusive decisions based on religion and other people's religion, so it's not about sex or sexuality or age or anything of that nature. When you talk to religious Australians, they accept from one faith to another that faiths will sometimes want to have schools that are exclusively for people of that faith.

GARETH PARKER: One of the issues that sparked this whole discussion before the last election was the case of whether a religiously based school could exclude a child if they were gay. Where does the bill stand on that?

ATTORNEY-GENERAL: This bill doesn't deal with that issue. So that issue has gone to the Australian Law Reform Commission. As you've just indicated what this bill does deal with, amongst many other things, is how a religious school might be able to deal with its student body on questions of religion, but it doesn't deal with how a religious school can deal with its student body on questions of sexuality or disability or race or matters covered in other discrimination acts. So that issue, which is about trying to draft the right balance between people not being discriminated on because of their sexuality, and schools having the ability to maintain their religious ethos. Not an easy question.


ATTORNEY-GENERAL: That question has gone to the Australian Law Reform Commission (inaudible) …

GARETH PARKER: (Talks over) Okay, so let's not (inaudible) …

ATTORNEY-GENERAL: (Talks over) … governments and drafting. Not in this bill.

GARETH PARKER: Alright. So if an extreme brand or an extreme thread of a religion goes out and tells its adherents, its followers, that anyone who doesn't adhere to our extreme brand of this religion deserves to be killed. Is that protected under this bill?

ATTORNEY-GENERAL: No, absolutely not. So what the bill makes very, very clear is that a religious belief can't be an unlawful religious belief. And nor can any religious expression incite other people to criminal offence. Full stop. So, and that is the position at law in Australia at the moment, and nothing in the bill changes that position. And in talking to religious Australia, they were very, very keen to make sure that we maintain all the strength and stringencies of our criminal law, and particularly the laws that say it is an offence to incite another person to violence. That is never acceptable. Not under the guise of religion, or under any other bases.

GARETH PARKER: Attorney-General Christian Porter, thank you for your time.