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ABC Radio National Drive with Patricia Karvellas



Subjects: Religious discrimination bill

PATRICIA KARVELAS: The Attorney-General Christian Porter has unveiled a highly-anticipated legislation to outlaw discrimination on the basis of religion. It's the final phase of a process that began more than 18 months ago when parliament voted to legalise same-sex marriage. The Government's decision to legislate a relatively conservative proposal has disappointed some religious leaders, who advocated for the right to religious freedom. Conservative Liberal Senator Concetta Fierravanti-Wells is one of those pushing for a more wide-ranging bill. The Attorney- General Christian Porter joins me now. Christian Porter, welcome to the program.

CHRISTIAN PORTER: Thanks, Patricia.

PATRICIA KARVELAS: Can you give me some day to day examples of the sort of discrimination that will now be outlawed under this legislation?

CHRISTIAN PORTER: Yes, sure. So there was an example, I think it was last year in New South Wales, where a senior member of the Jewish community had been invited to a multicultural event in a room at Parliament House in New South Wales, and when he got there, was refused entry based on his religiosity, if you like. Now, New South Wales is one of the few states that does not have religion as a protected attribute. It's not yet protected at the Commonwealth level, so as terrible malicious and vindictive as that was, that was not unlawful discrimination, and that person in question didn't have the ability to make a complaint that they were excluded to the room unlawfully based on their religion.

PATRICIA KARVELAS: You said in July that it wasn't your intention to override existing state antidiscrimination laws, but you are specifically overriding Tasmania's Anti-Discrimination Act. Why have you broken that commitment?

CHRISTIAN PORTER: Well, I said that we weren't displacing state government's antidiscrimination laws, and we're not. In fact, I wouldn't even describe it as overriding those laws.

There are instances where there could be, on one issue, an inconsistency in the operation between a state and this Commonwealth law should it be passed. That in those circumstances the Commonwealth law would prevail. What we are saying is that there couldn't be a valid complaint arising in another state's discrimination law based simply on the fact that someone was expressing a genuine religious belief in good faith.

Now, if state laws operate correctly, I don't see that there actually would be an inconsistency, because I'm not aware of any successful actions that have ever been brought against a person where they've successfully complained of discrimination based simply on the fact that someone had stated, in good faith, one of their religious beliefs.

But we did have two instances - one in Tasmania, one in Queensland - where people were complained against, and those people had done nothing more than raise in good faith an expression of their own religious belief. In both those instances, the complaints were either discontinued or withdrawn, which they should have been because they were frankly unmeritorious. But what we're saying is that those complaints shouldn't have actually been brought in the first place.

PATRICIA KARVELAS: Rodney Croome, the spokesman for Equality Tasmania, says this law also protects women and people with disabilities who will be more vulnerable without it. What's your response to that?

CHRISTIAN PORTER: I just- I mean, I haven't heard those statements in their complete and fulsome saying, but I just can't see how that would be the case. I mean, this law takes a architecture and style of legislative protection that applies to people presently because of their age, or their race, or the fact of having a disability, or their sex or sexual orientation, which is all good law. And it applies that same good law to a person who has religious beliefs, so that a person should never be discriminated against in terms of being able to be served or have goods delivered to them because of their race or their sexuality. Why should people be able to be discriminated against in those same scenarios because of their religion?

PATRICIA KARVELAS: Under this bill, an employer wouldn't be able to fire someone for expressing their religious beliefs unless it caused the employer a financial loss. Would this bill have prevented Rugby Australia from sacking Israel Folau over his Instagram posts?

CHRISTIAN PORTER: I can't say that with absolute certainty one way or the other. But what this bill would do is provide someone in the position that Israel Folau was in a legitimate procedure for complaining against the rule that their employer put upon them, which ultimately led to the employee being dismissed. So what we're saying is that it seems to be a habit now in larger corporate Australia to get more and more into drafting sometimes quite complicated terms and conditions of employment, which seek to restrain what people can do and restrict them in what they can say in their spare time. Not merely on religious matters but on other matters.

But where a large organisation had a rule, which purported to limit someone's ability to express themselves on a religious matter in their spare time, then they would bear responsibility for showing that that rule was a reasonable rule in all the circumstance. And at the core of that, and the first thing they'd have to show is that that rule was necessary and compliance with the rule was necessary to avoid undue financial hardships to those large corporations.

Now, I presume that Rugby Australia, if ever, a complaint like this came to be made against them, would have argued in those types of circumstances that they could show that. I don't know whether they could or they couldn't, but it seems to me that if the rationale for that rule which limits someone's free religious expression in their spare time is that you're suffering corporate damage, then you should have to show that.

PATRICIA KARVELAS: The Catholic Archbishop of Hobart, Julian Porteous, has previously urged the Government - Scott Morrison and you - to enshrine laws that guarantee the right of faith-based institutions to teach according to religious doctrine and to safeguard - crucially - the seal of the confessional. Why have you chosen not to go into that area?

CHRISTIAN PORTER: Well, the archbishop- the Catholic Archbishop of Tasmania, Mr Porteous, went through something quite awful, I think. He distributed a pamphlet, which was distributed widely across Australia, devised and drafted by the Catholic Church, which did little more than put the Catholic Church's view about the virtues of the traditional definition of marriage. And he was the subject of complaints under a very, very broad section of the Tasmanian Discrimination Act.

Now, this legislation does offer some protection in those circumstances because of the clause that we discussed earlier, which said that someone simply stating in good faith and in non-malicious or harassing way their religious belief couldn't be the subject of such an action. So there is a protection for someone like the Catholic archbishop in Tasmania. But on the issue of state laws dealing with mandatory reporting of offending, which might over cut the sanctity of the confession, that's a matter for states to make laws on. And this bill doesn't seek to override those types of state laws.

PATRICIA KARVELAS: Your colleague Concetta Fierravanti-Wells is pushing for a religious freedom bill. She started a petition. Are you confident this will have the support of the majority of your party room? Because clearly, she's already out saying that there needs to be more.

CHRISTIAN PORTER: Well I'm very confident it will have a very, very strong support, a very strong majority in my party room. I know that there are some people from religious organisations - not all by any stretch - but some who would prefer there to be rather than the traditional antidiscrimination legislation approach, some Gordian knot approach which just sets out in very simple language an overarching right to freedom of political expression. I think that's a poor way to go about trying to achieve the ultimate outcome that we all want, which is to have 14 million religious Australians protected from discrimination for a variety of reasons. But I don't ultimately think that'll be something that will get widespread support.

PATRICIA KARVELAS: So you think they're in the minority, and you won't blink even though now this is just a draft exposure bill. They clearly plan to put a lot of pressure on the executive wing of the government to try and change these laws so that your final bill doesn't look like the one released today.

CHRISTIAN PORTER: Well, I mean, people during the consultation phase will make any number of inputs, and I would suggest that during the consultation phase they'll clearly be drafting, and tweaking, and polishing, and finalising, and changing of some of the clauses in this bill. But on the fundamental issue as to what is the best approach to protect Australians- religious Australians, and as to the two choices of this traditional orthodox architecture, which assumes that all Australians should be free to religiously express themselves and then seeks to protect them from instances where people would impinge, or bodies would impinge on that existing freedom. I think that's a much better approach than having just a simple one sentence, one clause, bill of rights in the absence of statutorily defining other rights, and then hoping that that would be interpreted in a way which adequately protects Australians of religion over the long sweep of interpretations that would happen.

PATRICIA KARVELAS: So Labor has been quite critical that there hasn't been enough consultation. I mean, the bill came out today. You've been talking with your own party but not them. Why haven't you brought them in?

CHRISTIAN PORTER: The Labor Party? Well, we're consulting on a now exposure draft bill. It's difficult to have consultation on a draft bill without having the draft bill. And it's not an unreasonable thing for executive government to consult internally with its own parliamentary colleagues. And to an extent, in broad and general terms with key stakeholders, but I think consulting in good faith with the opposition in great detail around a fully formed piece of draft exposure, draft legislation is a very fair process. And I'm looking forward to that process with Labor, and ultimately the principle here is that we don't accept that it's fair that someone because of their age, or their sex, or their race, or the fact of a disability, would be excluded or discriminated against. So why would we accept that type of conduct applied to someone because of their religion? And moving from that fundamental principle, which I think will be a common ground, to the point of having a draft bill means that you can consult sensibly on some of the details as to how you put that agreed upon fundamental principle into legislative play.

PATRICIA KARVELAS: Just finally, why is the government pursuing legal action against a former intelligence agent for sharing information about the bugging of the Prime Minister's office in Dili by Australian foreign agents? Given it's our government that's done the wrong thing.

CHRISTIAN PORTER: Well, we, like all previous governments, don't confirm or deny anything with respect to intelligence operations. But in the circumstances of those charges there is an ultimate requirement for a narrow range of charges that a prosecution be consented to by the Attorney- General. Before that point in time, there's obviously an investigation. The Commonwealth DPP forms its own arm's length, completely independent view as to whether or not it's appropriate to prosecute. They look at the reasonable prospects of conviction and the public interest in prosecuting, all of which are questions that trace back to the strength of the evidence that's in the brief.

I received that request for a consent to prosecute. I provided that consent and I did that based on the independent legal advice and decision-making of the Commonwealth DPP, which I might add, was supported by other additional independent legal advice pieces that had been provided.

PATRICIA KARVELAS: Do you regret that decision?

CHRISTIAN PORTER: No, not at all. That was a decision that was made based on the well-known decades-old process, and based on independent legal advice from the independent statutory agency of the Commonwealth Director of Public Prosecutions. And it's not the Attorney-General's job to make decisions that people will universally like; it's the Attorney-General's job to make decisions based on the advice of your independent agencies who base their advice on briefs of evidence.

PATRICIA KARVELAS: Just a quick question before I let you go. There's a story that's already gone viral. PM&C is committed to staff inclusion and diversity. 'Please use the bathroom that best fits your gender identity' is a sign that's been put on the women's toilets. Chris Uhlmann has shared this picture. The Prime Minister has said the sign will be removed. Why will it be removed?

CHRISTIAN PORTER: First I've heard about any of this I'd have to say, Patricia, is right here and now with you. So I haven't seen any pictures or heard anything else that anyone's said about …

PATRICIA KARVELAS: But the idea, you know the principle, because you know these debates. You're the attorney-general around gender inclusivity. Why actually remove it? It's a small number of staff, no doubt, that are in this in this situation. Why do it?

CHRISTIAN PORTER: Why is a large number of staff who use toilets, and I think their expectation is that those toilets are reserved for people of that particular sex. So, I mean, there's more than one consideration in those types of circumstances. I don't know what other facilities are on offer at the particular agency in question. But people use toilets with certain expectations as to what they will experience in toilets.

PATRICIA KARVELAS: All right Minister, thank you so much for joining us.

CHRISTIAN PORTER: Cheers, thank you.

PATRICIA KARVELAS: And that is the Attorney-General Christian Porter.​​