7.30 Report with Leigh Sales
Subjects: Religious discrimination bill
LEIGH SALES, PRESENTER: And the Attorney-General, Christian Porter, is with me now.
Thanks for coming in.
CHRISTIAN PORTER, ATTORNEY-GENERAL: Thanks Leigh.
LEIGH SALES: Under this law, can I basically get away with saying anything if I make a persuasive enough case that it's my genuinely held religious belief?
CHRISTIAN PORTER: Well, you'd need to be able to anchor what you've said in religious, accepted religious doctrine, and you would have to say that in good faith and it would have to relate and be consistent with your religion.
And if you said those things there is a provision in this legislation that says that you can't be the subject of a complaint under another piece of discrimination legislation.
But you can't just say anything. All the usual rules around defamation and the usual limits to free speech of any type would apply. But fundamentally the Bill is about protecting Australians of religion in certain circumstances like entry to premises, the provision of goods and services, employment and education.
LEIGH SALES: Can I ask though, for you to clarify something you just said? So will this religious freedom bill trump the other anti-discrimination bills, sexual discrimination bills? Is that what you're saying?
CHRISTIAN PORTER: No. So all of the existing discrimination bills operate, this doesn't displace those and particularly at a Commonwealth level, of course, there's issues around the Sex Discrimination Act that have gone to the Australian Law Reform Commission.
There were two complaints made, one against the Archbishop of Tasmania, the Catholic Archbishop, Mr Porteous, and one against a Queensland Baptist organisation and they were complaints made of discrimination in effect in those two states, based on things that were said which were no more than statements, Christian statements, about their preference for a traditional view of marriage.
What this bill does say is that those types of complaints, which were withdrawn and discontinued by the way, couldn't be commenced because they wouldn't be sustainable.
LEIGH SALES: You said if I said something offensive, I would have to prove that it was part of my genuinely held religious belief but the draft bill doesn't define religious beliefs, so doesn't that leave it very wide open for anybody to argue that anything is their genuinely held religious belief?
CHRISTIAN PORTER: Well, there's actually quite a lot of case law that sits behind the idea of what a religion is and what a religious belief is that dates back to the 1980’s. A lot of those early cases were taxation cases about whether or not the church of Scientology was a religion. So there is a quite settled body of case law.
LEIGH SALES: So it will rely on precedent?
CHRISTIAN PORTER: Yeah, it will rely on precedent and it is good case law that indicates what would be in and what would be out in terms of a religious belief.
LEIGH SALES: Minister, can we run through some high-profile examples that often get cited in this discussion about religious freedom and get you to explain to viewers how things would change or otherwise under this law.
Would this law have prevented the Australian Rugby Union from sacking Israel Folau over his Instagram posts?
CHRISTIAN PORTER: Well, I just don't have enough of all of that evidence before me to give you a determinate answer one way or the other but what it would do is give someone in Israel Folau's circumstance an avenue for complaint and that complaint would look like this: My employer puts a condition upon me which has the effect of restricting my ability to express my religious beliefs in my spare time.
And what this bill says is that if a large employer with a turnover of over $50 million did that, not merely would they have to show that broad condition on the employee is reasonable, but they would have to show that unless that condition were complied with, that they, the business, would suffer undue financial hardship.
LEIGH SALES: So if you could show for example that you were losing sponsors and advertisers that might be sufficient?
CHRISTIAN PORTER: Potentially that's one way you could show undue financial hardship. But it seems to the Government that more and more large businesses are getting into this area of telling their staff what they can and can’t do, not just on religious expression but all forms of expression in their spare time.
LEIGH SALES: Okay, here is another example. If you're a Christian baker and don't want to make a wedding cake for a gay couple, another example that is often cited, what would happen under this legislation? Could you make that choice?
CHRISTIAN PORTER: Well, the individual religious baker would be protected like this. If someone was refusing to supply him produce to help bake his cakes, based on the fact he was a Christian, he would be protected from that because that would be unlawful.
But that person would still have to serve, or staff, all customers that came in to his shop.
LEIGH SALES: Okay, so he can't discriminate on the basis of, "My religion is that I don't believe in same-sex relationships. I don't want to serve you." You couldn't actually do that?
CHRISTIAN PORTER: No because a commercial operation is a commercial operation. It's not a religious organisation.
LEIGH SALES: What about, would an Anglican school be allowed to sack a teacher who was not adhering to the Anglican ethos in their behaviour?
CHRISTIAN PORTER: Well the way in which we grant exceptions for things that would otherwise be prohibited discrimination is that we do what they do in Victoria, which is effectively say that religious organisations, which includes schools, are going to have the highest level of discretion about who they employ as teachers or have in their student body. Now most religious schools will employ teachers of different faiths and in fact, have student bodies of multi-faith but there are some religious schools in Australia who maintain quite strict exclusivity and those schools, if their present status quo is that they don't hire teachers of another faith or they don't admit students of another faith, that status quo would be remaining unchanged.
LEIGH SALES: Minister, I'd like to ask you some questions relating to the prosecution of Witness K and his lawyer, Bernard Collaery.
Witness K, for people that don't know, is a former senior operative with the Australian Secret Intelligence Service. In 2004 he led an operation to bug the offices of East Timor's cabinet when Australia was negotiating with East Timor over oil and gas.
He blew the whistle on this in 2012 and he and his lawyer are now being prosecuted under national security law.
Your predecessor, George Brandis, had concerns over ticking off on a prosecution and in the two and a half years that the relevant material was before him, he didn't make a determination.
You gave the go ahead for the two to face charges within six months of taking office.
Why did you not share Mr Brandis' concerns?
CHRISTIAN PORTER: Who says he has concerns or had concerns?
LEIGH SALES: Well, he took two and a half years to have a look at the material which would suggest he didn't see it was something that should be immediately green lit?
CHRISTIAN PORTER: Weill, it might suggest that it was a matter where you had to look at the evidence carefully or receive further legal advice.
And in fact, there was several sources of legal advice including two independent recommendations from different Commonwealth directors of public prosecutions.
So I just don't know where this view that somehow there was uncertainty on the part of the former attorney-general arises from.
LEIGH SALES: I guess just the amount of time, that it was two and a half years with him but only six months with you?
CHRISTIAN PORTER: Well, when I came into the office of Attorney-General there had been a last piece of advice requested from the former attorney-general that arrived shortly after my appointment.
I considered that and all the previous pieces of advice but I might note that the process here is a statutory process where the independent office of a Commonwealth Department of Public Prosecutions, the director, considers a brief of evidence and makes an independent arm's length decision as to whether or not a prosecution should proceed based on the reasonable prospects of conviction and an assessment of the public interest, all of which links back to the brief of evidence and the strength, or otherwise, of that brief and they make a recommendation to me, seeking my consent.
LEIGH SALES: On the question of public interest, why do you think it's in the public interest for these two people to face prosecution?
Isn't it in the public interest for Australians to know that this was going on?
CHRISTIAN PORTER: Well, the reason I can't go into that in detail is because the matter is before the courts, where all of the evidence will be brought, and tested and ultimately the question as to the strength of the public interest and the reasonable prospects of conviction relates back to the extent and nature and composition of the evidence and just as the first law officer of Australia I'm prevented from talking about those things while the trial is on foot.
LEIGH SALES: Christian Porter, thank you very much.
CHRISTIAN PORTER: Thank you.