At a FamilyVoice webinar the Attorney-General Michaelia Cash has outlined her views on the religious discrimination package of bills. She confirms that the RDB will override Victorian legislation regarding school staffing and also override the Tasmanian anti-discrimination act.
Greg Bondar from FamilyVoice begins by playing a clip of Prime Minister Scott Morrison introducing the bill. “It recognises that religious bodies, religious schools must be free to uphold the tenets of their faith and the ethos that makes their school a community. It is a recognition of the sacrifices parents make to educate their children in accordance with their values and beliefs and the choices they have made for their children’s education.
“As many schools have said throughout this process, faith is caught, not taught. The bill protects the fundamental right for religious schools to hire religious staff, to maintain their religious ethos in accordance with a publicly available policy. This protection will override state or territory laws, which seek to interfere with that right approach detailed in this bill provides certainty to school communities and the staff. They employ staff through the development of policies that are transparent to the school community. It’s only fair that nothing in this bill addresses, Mr Speaker, nothing in this bill allows for any form of discrimination against a student on the basis of their sexuality or gender identity. You won’t find anything of that nature in this bill.”
Attorney-General Michaelia Cash responds: “I actually was sitting in the House of Representatives gallery when the Prime Minister himself introduced the very, very important religious discrimination legislation. So, I do remember those words.”
Bondar notes that the Religious Discrimination Bills have been referred to two committees of the parliament and that he is appearing before one of them – the Joint Committee on Human Rights – and asks Cash to give an overview of the current situation.
“I want to bring all Australians with us, and that is why it is a sensible bill that can be supported by the Labor Party. And I’ll be upfront with you and your listeners. I was disappointed that the Labor party did not provide that support in the final week.
“But that’s okay because, as you said, the bill now does go before two committees, and we will have the opportunity to further consider it when the parliament returns next year.
“But just in terms of the overview of the bill, the bill itself provides sensible protection. And, as you and I both know, peace of mind for so many Australians, and that’s something that should be important for all of us. It does not matter whether we are people of religion or not; the bill will provide you with protection against discrimination on the basis of your belief or the fact that you have no belief.
“Greg, we already have existing federal anti-discrimination legislation. And as your listeners would know, it includes the Age Discrimination [Act}, the Disability Discrimination Act, the Racial Discrimination Act and the Sex Discrimination Act.
“However, as the Ruddock review itself stated, and I think as so many people already understand in Australia, there is no federal Religious Discrimination Act. That’s why this [action] is so important. It will provide those of faith – but as I said, and importantly, those who have no faith – with the same type of protection against discrimination as currently provided under legislation on the basis of age, disability, race.
“And the bill itself also importantly fills gaps in New South Wales and South Australia. Now, if you’ve got anybody listening to the podcast from New South Wales and South Australia, they would understand there are currently no protections for people in those states against religious discrimination.
“So, what does the bill in summary do? It will make it unlawful to discriminate on the basis of religious belief or activity in specified areas of public life. That’s important, public life, not private life. And this includes the provision of good services and facilities, accommodation employment, and probably something that we’ll talk a little bit more about during the course of today, education.
“As you said, Greg, and what the prime minister was referring to in that excerpt that you played, like some other discrimination law, the bill recognizes as does the Sex Discrimination Act the distinct nature of religious belief or activity. And that’s why it includes some exceptions for religious bodies, for example, religious schools, to ensure that they can operate in a way that maintains their religious ethos and character. Because it’s really important to remember this is a bill that is all about providing protection to people on the basis of religious discrimination.
“So, it fills that gap by providing protections to people of faith. And obviously, as I’ve already said, those who have no faith from discrimination on the basis of their religion in daily life.
“So, if we were to distil that down to some basic examples, what would it look like? So a Sikh should not be discriminated against because of their faith when trying to rent a property. I think everybody would agree that a Jewish school or a Christian or Catholic school will be able to choose to employ Jewish or Catholic or Christian teachers if that is their preference, and the publicly stated policy of the school openly states that. Transparency is a good thing in terms of direct discrimination and indirect discrimination; it works in a very similar way to other discrimination acts.
“There are obviously certain things that religious bodies, as I’ve already said, can do in good faith under the bill. Many of these, Greg, as you and I know they’re already recognized under the Sex Discrimination Act, that unique nature of religious bodies.
“So, like some other discrimination laws, the bill also recognizes the need for exceptions for religious bodies so that they’re able to engage in conduct consistent with their religious beliefs.
“Again, some really easy examples for people to understand: a Catholic Jewish or Islamic school can preference people who share their religious beliefs over someone who does not. Now, I went to a Catholic school. I went to a school here in Western Australia. Uh, Darryl [Budge, the Family Voice WA Director who is in the webinar] would probably know this school, a Presentation College. It was run by the presentation nuns. My parents chose to send me to a Catholic school and my sisters and brother because they wanted us to be taught Catholicism’s doctrines, tenets, and beliefs. My parents actively made that choice, and the government supports that choice.
“So, in other words, religious educational institutions should be able to preference people who share their religious beliefs over someone who does not.
“Greg, the bill also ensures that people can’t be the subject of a claim of discrimination for moderately expressing a statement of belief in good faith.
“But the bill importantly – and we’ve been really, really clear on this – draws a clear line against statements, as we should, that threaten, harass, vilify or intimidate anyone.
“You would know this well, given everything that that Family Voice does and stands for, a key aspect of protecting religious beliefs and activity is protecting the ability of individuals to explain, discuss, and share their beliefs. It’s as simple as that. Greg, you and I can have an honest discussion, we may not agree with one another, but we should be able to explain to one another, discuss with one another and share our beliefs without being told, ‘you’re going to be subjected to a claim of discrimination.’
“Of course, in our discussions, we have to make those claims in good faith. [When] we’re deliberately being malicious; obviously, that’s not a statement of belief made in good faith. But what the bill does is ensure that people are able to express genuine and sincerely held religious [beliefs]. And importantly, Greg, I know I go on about this, but it is an important aspect of the bill, nonreligious views.
Can I also just tackle Greg before we go into our Q and A? We need to talk about some of the issues because they involve what the bill does not do.
“So often, we hear the bill will allow the termination of LGBTIQA teachers. The bill does not do that. The bill does not enable the termination of a teacher on the basis of their sexual orientation, gender identity, marital or relationship status, or pregnancy.
“You and I know that the bill only deals with the attribute of religious belief or activity. I think it’s important to also remember that the Religious Discrimination Bill does not affect existing protections and, importantly, exemptions in other anti-discrimination laws, bearing in mind that under the Sex Discrimination Act, religious bodies, as you and I know, already have exemptions. Even the Labor Party understand it is important to maintain these exemptions.
“In terms of, does the bill allow the expulsion of LGBTIQA students again? No, it does not. The bill does not enable the expulsion of a student on the basis of their sex, sexual orientation, gender identity, marital or relationship status or pregnancy. And again, Greg, as you and I know, the bill only deals with the attribute of religious belief or activity. So the exceptions for religious bodies, which includes religious schools, only apply in relation to matters covered by the bill.
And as I’ve said, that is religious belief or activity. “And again, also importantly, the bill fills that gap that we’ve talked about. It sits alongside the sex discrimination act, the racial discrimination act, the disability discrimination act and the age discrimination act. And it does not affect the existing protections or exemptions in other anti-discrimination laws.
“But I would so say this, Greg and I have to say in all of the conversations that I’ve had, I don’t think I found anybody who disagrees with me and the Prime Minister himself has made this position clear – discrimination against students on the basis of being gay [is}, not something that we accept as a government. And I haven’t found anybody yet who disagrees with me, but to be clear, this bill doesn’t deal with that.
“This bill is about protecting people against religious discrimination on the, of their beliefs or non-belief. It fills that gap federally and in New South Wales and South Australia, where there are no current protections against religious discrimination.
“And importantly, and Greg, you did raise this in your opening comments, and I’ll finish my introduction here. In 2019, the Prime Minister made a commitment to the Australian people. We took this commitment to deliver protection from religious discrimination to the election. The Australian people re-elected the Morrison government, and we continue to be humbled by the trust they placed in us. But that means they supported the policies that we took to the election, and delivering on our commitment to protect people from discrimination on the basis of religion is an incredibly important one.”
Greg Bondar responds, “Wow. Thank you, Senator. They are certainly comments that have clarified some areas, but I wonder if I may come down to the nitty-gritty in terms of the bill and, let me give you a practical example that has come back to us from a number of supporters.
“And again, I was interested in hearing your comments about the gay or transgender student. Here is a question for you. How will the bill protect religious schools against litigation where an LGB or a transgender student in a Christian, Jewish or Muslim school wants to, for example, wear a dress, use a female bathroom, even though he’s biologically a male or be called Steve, instead of Eve? These actions or behaviours in a faith school go against that school’s faith. So how does, how does this bill really protect a faith school against, ensuring that this sort of behaviour is not tolerated? Because I have to tell you that the feedback I have is that these are going to be a real issue that the teachers and schools will be facing, Senator.”
Michaelia Cash: “That’s a really, really good question, Greg. And thank you for giving me the opportunity to address it directly. Again, as you and I both know, the bill does not change the existing status quo for this issue. And this is where I think people get a little confused or sometimes deliberately want to muddy the waters in relation to what this bill does. And I really do need to labour this point. Again, you and I have discussed this several times, and I really do appreciate your ongoing involvement in the discussion with me. Thank you.
“This bill only relates to religious belief or activity. And I think a lot of people either misunderstand what the bill is about or are deliberately misconstruing what the bill is about.
“It does not deal with discrimination on the basis of any other protected attributes. So, as you and I know, the bill itself does not affect the ability of religious, educational institutions established for religious purposes to discriminate on the basis of sexual orientation or gender identity.
“Now why? Because those exemptions already exist in the Sex Discrimination Act. Those exemptions are longstanding exemptions supported importantly by both major sides of politics.
“I do get disappointed when I see the Labor Party do want to make a real big issue out of this because there has always been an understanding. There has always been an understanding across politics that the ability of educational institutions established for religious purposes to actually operate in accordance with those purposes is just a fundamental part of being what they are.
“And I go back to my own education, a Catholic girl, a convent school, her parents making a choice, a choice to have her educated, according to the doctrines, tenets and beliefs of Catholicism.
“So, this bill does not have anything to do with that. This is about religion and religious beliefs more broadly. Though, in terms of the issues that you raise, as you would be aware, about two, two and a half years ago, the government did refer [the exemptions in the Sex Discrimination Act] to the Australian Law Reform Commission for further consideration.
“This was consistent with our response to the report of the religious freedom review, an inquiry into those exemptions. In fact, [we referred] all religious exemptions in all Australian laws, but they are two very separate issues, and they should not be confused. And hopefully not deliberately confused.
“This bill is all about discrimination on the basis of religious belief or activity when people raise those issues. Greg, they’re talking about the wrong act. Yeah. They’re in the realm of the Sex Discrimination Act.”
Greg Bondar thanks the Senator for her response, realises she might have more to say, and she continues.
“No, no. I think it’s a really important question because I think when people confuse the issue, they say, oh, when you shouldn’t have the Religious Discrimination Bill, because it allows this. [The Sex] Discrimination Act is the relevant piece of legislation that’s been referred to the Australian Law Reform Commission. We are looking at the Religious Discrimination Act, and that relates to religious belief or activity, and those issues should not be confused.”
Greg Bondar: “Look, I totally understand that, Senator, I don’t want to labour the point because you’ve got so many other questions, but I suspect you will find that the faith schools are going to be faced with a real challenge with some of these, … transgender, [and] LGB students who are welcome in any school. I suspect it’s when they’re being –it’s when their behaviour doesn’t reflect the ethos or religion of the school that you’re going to have issues, Senator.”
Michaelia Cash: “Yes and again, this is a bill that goes, that’s not just in relation to that particular, you know, you’re talking about ethos and behaviour that can be wide-ranging. Correct. But I think, as you know, the Prime Minister’s been pretty clear, and I haven’t found anyone who disagrees with me that a child not be discriminated against because they’re gay. And I think we all agree with that, but a religious school should be able to teach in accordance with doctrines, tenants, and beliefs, and [that is] a really important part of this legislation. And it’s something that I had consulted widely with religious schools, uh, more broadly. I mean, you and I had had this, [discussion] on a key part of that exception [that] is the publicly available policy.
“So, you and I both know upfront, I’m applying for a position at your school, and you are required to give me the publicly available policy. Correct?
‘That policy is public and guess what it says, Greg Bondar, FamilyVoice. We teach in accordance with 1, 2, 3, 4, 5. You’ve been upfront with me. I now know what I’m getting into. And if I can’t agree with that – this is what transparency is all about. And I think that’s a really important part of the bill that everybody I spoke to said, wow, that’s actually a really, really good thing have that publicly available policy to ensure that transparency.
“So, nobody can say going forward, I didn’t know that this particular religious school wished to discriminate on the grounds of religious belief or activity in employment. This is how they’re going to do it. We’re going to give preference, um, to people of faith for certain positions, and it’s necessary because of this reason.
“That’s a good thing. That’s a good thing, Greg.”
Greg Bondar: “Perfect. Thank you. So I’ve got another couple of other questions we really need to run through. Here’s one for you that I, that I really want you to have a think about. Why has the government left out conscious protection provisions in the bill?”
Michaelia Cash: “Now the Senate process will look at that. And I have to say, Greg, I hope that you will be providing feedback in relation to that. And I will be very minded to accept that amendment. I hope, I don’t know to say anything else other than please provide the feedback, Greg.”
Greg Bondar: “Okay. Well, well further on that then. I also note [that] it’s been raised by me, Senator, why has the government opted not to reflect the international covenant of civil and political rights in the bill itself?”
Michaelia Cash: “Yes so I have to say, I actually disagree with that and, and Greg, I hope I hope I got the previous question. I hope I understood. I’m not sure.
“I thought you were referring to the reasonableness clause. If you’re referring to conscientious objection. We can jump back and have a chat about that amendment.
“Yes, just in terms, the question you just posed for the bill itself has been prepared as it should have been. And certainly, the explanatory memorandum itself goes through this in detail and the statement of compatibility with human rights. It has been prepared with regard to Australia’s obligations under the International Covenant on Civil and Political Rights. We actually refer to articles 18 and 26. They were the two articles that we actually [referred] to when we were preparing the bill. And in fact, the objects clause for this bill, which is clause three for people, who might have it in front of them are directly based upon article 18 of the ICCPR.
“And as you know, objects clauses make clear the overall context in which the bill is to be considered. So, we have deliberately done that in relation to the bill, but more generally, the entire bill actually implements Article 26 of the ICCPR.
“And as you and I both know, that says that the law should prohibit discrimination on the grounds of religion, amongst other protected attributes.
“So, we are dealing with religion in relation to this and the religious freedom review itself. It recommended that all Australian governments have regard to the Syracuse principles when drafting laws limiting the right to freedom of religion. Now, I had a lot of conversations in my extensive consultations in relation to the Syracuse principles. And, uh, for those who don’t know, the Syracuse principles are intended to provide guidance on the interpretation of specific limitation causes in the International Covenant on Civil and Political Rights.
Greg Bondar: “Okay. You alluded to reasonableness. Now here’s a question for you then. In every other [anti-discrimination] act, if a business is discriminatory, all they have to prove is that it was reasonable, but under the Religious Discrimination Bill, a religious person has to prove that he or she was discriminated against. And two, that it was unreasonable. So why does the Religious Discrimination Bill not include the usual clause that requires a discriminator to prove they have acted reasonably?”
Michaelia Cash: “Yes. This is an issue that rightly should be considered by the parliamentary committees. I would encourage you to provide that feedback through the committee. And certainly, this would be a change; I am more than inclined to accept. So again, this is something that where you should provide that feedback. I’ve been pretty upfront. This is a change I would be prepared to accept. Can I jump back to conscientious suggestion? Just remind me what your question was?”
Greg Bondar: “Well, what it said was why has the government left conscientious protection provisions out of the RD bill?”
Michaelia Cash: “Yes. Okay. So, provisions relating to conscientious objections. They have been removed, but they were removed on the basis that the issue is all already appropriately, appropriately addressed by relevant professional codes of conduct for health practitioners and relevant state and territory laws.
“So, for example, the codes of practice for health practitioners that were covered [in] the exposure draft – that was medical practitioners, nurses, midwives, pharmacists, and psychologists – they already contained provision setting out how a health practitioner can act on their conscientious objections, or in the case of psychiatrists that they can comply with their ethical obligations, not discriminate without harming a patient.
“All laws, just, just for your listeners’ benefit, all laws dealing with termination of pregnancy, as well as all laws and jurisdictions that permit voluntary assisted dying, they also contain provisions to permit conscientious objections by health practitioners. But Greg, this is a really important part of discrimination.
“That’s the concept of indirect discrimination. So, a health practitioner who believes are subject to discriminatory conduct by their employer on the basis of their religious belief or activity, mm-hmm?
“So, for example, in relation to conscientiously objecting to providing a certain treatment consistent with the relevant code of conduct, they will still be able to make a claim of direct or indirect discrimination under this [bill]. It’s a really important part. So we are not saying there is no claim. What we are saying is we are not short cutting it. You are still able to make a claim, but on the basis that the relevant professional codes of conduct and state and territory laws already provide for it. We believe that the appropriate way is you can make a claim utilising the provisions of the [state] act.
Greg Bondar: “Okay, then, Senator, how does a faith-based hospital say a Catholic hospital, what does it do when a, a patient comes and says, ‘I want to undergo a transgender operation?’
“It’s totally against the faith of that particular institution. How does that play out in the bill? ”
Michaelia Cash: “So you’ve got to remember, in relation to hospitals, et cetera, they have a limited exemption. Okay.
“They have a limited exemption in relation to what they are able to do.
“The example that you’ve given, it’s not about an individual practitioner; you’ve given an example of utilising a hospital, correct?
“That is properly regulated by state and territory laws. So that’s where that regulation takes place.
“Just in relation to religious hospitals, age care facilities, accommodation providers, and disabilities service providers, the bill, you know, does provide exceptions for them so that they can maintain their religious ethos, but it is a limited exception in relation to employment decisions only.
“And that’s because of the nature of what they actually provide. So, in terms of your example, mm-hmm we deal [with] the individual – not what you’ve said, the hospital – because they’re in service delivery, basically in the case that you are talking about its health, they [the individual] get the limited exemption, but the regulation itself happens under state and territory law.
Greg Bondar introduces his colleague, FamilyVoice WA State Director Darryl Budge.
Darryl Budge: “There are lots of news reports about the Liberal and Labor parties wanting to amend the Sex Discrimination Act section 38 3. Can you rule out the government supporting those changes to remove the ability of Christian schools and religious schools to make decisions about students?
“Now, one of the important things that some people might not be aware of, [is] that if that amendment is made, it will mean that, our religious schools cannot subject a same-sex attracted person or a gender-confused student to any other detriment.
“In other words, to provide any guidance or counselling to that person or to provide an alternative platform for them that wouldn’t impinge on the ethos of the school. So, what do you say to people within the Labor Party that want to see that amended as part of the deal to get the bill through the lower house?
Michaelia Cash: “What I said to my opening comment on the bill Greg, you and both know I, and sorry, Darryl. This is the bill that we have, or should I say the Prime Minister, formally introduced into the parliament.
“This is a bill that provides sensible protections and peace of mind for many Australians. That’s something that should be important to each and every one of us; this is a bill that, because it provides sensible protections, should be able to be supported by everybody in terms of the exemptions contained in the Sex Discrimination Act. And we have had the opportunity to have a bit of a talk about them today. They have always been [seen] to be considered separately. And that’s why when I was speaking to Greg earlier on, I really wanted to make that distinction clear. This is a bill that protects against religious discrimination.
“The Ruddock review recognized that with over 14 million Australians identifying as having faith and all of the feedback they gave, that they do feel that they are discriminated against of their religious belief or activity. It is incumbent upon us as a government to provide them with the necessary protections, but in relation to the Sex Discrimination Act and the exemptions there, that is an ALRC referral, the Australian Law Reform Commission for those who don’t know what ALRC stands for. We wrote to them, as you know, two and a half years ago now. They’re doing quite a broad review, though. So, they’re also looking at the other exemptions at a state and federal level. They will report back to the government in 12 months after the passage of the bill.
“You are right though; the Labor Party have made it clear that they will be canvassing this particular issue in the committee process. And it will influence whether they vote for the bill or not.
“What the Prime Minister made clear – Is it the issue of discrimination on the basis of sexuality? So gay students should not be expelled. I think we all agree with that.
“But in terms of the question you posed, that is squarely within the ALRC review of the Sex Discrimination Act and the broader review. What I would say is this, though, to you and your listeners as the Labor Party have made it clear that they will be the ones pursuing this issue. Greg, when you appear on the 21st is really important that you put forward FamilyVoice’s views in relation to this matter. The fact that this bill is about discrimination on the basis of religious belief or activity, the appropriate avenue to look at exemptions to the Sex Discrimination Act is through the ALRC inquiry but also setting out what the consequences are.
“If the Labor Party were to go down this path, it is really important for stakeholders to actively participate in this committee process.
“Because I go back to where I started. I want bipartisan support for this bill. And in fact, I would call on Labor to support the bill in its current form. The reason is it is a sensible bill; it provides sensible protections. It provides peace of mind for so many Australians. It fills that gap federally in both New South Wales and South Australia as well. And I don’t think anyone argues with what this bill actually does provides protection to people of faith from discrimination on the basis of their religion in their daily life. No one should be discriminated against because of their lack thereof.
“So, I hope I’ve given you a very clear indication. This bill should be passed in its current form because it is a fair bill, and it is a sensible bill, and it should command bipartisan support.”
Greg Bondar: “Very quickly, the Prime Minister in introducing the bill said that the bill would override state legislation. As you know, in Victoria, there’s a lot of anti-Christian type employment legislation in place. Will that override the Victorian act?”
Michaelia Cash: “Yes, it’s a really, really good question. And I have to say in my final weeks of consultation, wow, this was an issue that was brought to my attention, not just by Victorians, but by religious educational institutions across Australia.
“It is a fundamental principle that religious schools should be able to make employment decisions that preference people on the basis of their religious belief or activity on behalf of the prime minister of Australia.
“And as the person who has been responsible for trusting this bill, I commit to you, that is what we believe a religious school can make the best employment choice to maintain a particular religious ethos of that school. And so, what we have said is this, the Victorian government, as we know, has its amendments. They are going to limit the existing circumstances where religious bodies and schools can discriminate unemployment matters on the basis of beliefs or principles of their religion.
“What they will do is this, a religious body will only be permitted to discriminate against someone in employment on the basis of their religious belief, where it is an inherent requirement of the role that the person be of the same faith as a religious body. And the requirement is proportionate and reasonable.
“And we say, no, no, that is wrong, but with regard to the bill, you are right. It will address those concerns, right? And it will provide that a religious education institution will not contravene a prescribed state or territory law if the religious body has given preference in good faith to persons who hold or engage in a particular religious belief or activity in employment matters.
And in particular, to go directly to your question, will the bill override that particular part of the Victorian legislation? The answer is yes, [into] the Religious Discrimination, Consequential Amendments Bill 2021 came a contingent amendment to insert the Victorian law, the Equal Opportunity Act 2010, into cause A, and that will take effect when both the bill commences, and the amending, Victorian law is enacted by the Victorian parliament and commences. So we are committed.”
Darryl Budge: “Yes. Right. That kind of leads on to the conversion therapy laws that are being enacted in some states and being promised. Where do those laws land in regards to this bill?”
Michaelia Cash: “Okay. So, the bill itself has very, very limited override provisions. So we override the state and territory legislation that is referred to, as I’ve just said in clause 11, and we override the Tasmanian, section 17, one of the Tasmanian Anti-discrimination Act. That’s the only override in terms of the Victorian conversion therapy laws.
Our bill does not affect the ability of states and territories to introduce laws covering conversion practice. The bill is not intended to impact state or territory laws relating to the unlawfulness of criminality of acts or practices.
So, to answer your question, that is actually a different issue. This bill is about obviously the federal government providing the protections against religious discrimination.
We do in two cases; you are right. We do override state and territory laws. The ability for religious educational institutions to press and section 17, 1 of the Tasmanian Anti-discrimination Act because it just is – it there’s no other applicable provision as you know, in discrimination law.
But after that, the bill does not affect the ability of states and territories to introduce laws covering conversion practices. But to be clear, if something is unlawful, obviously, that’s not tolerated by the bill.”
Greg Bondar thanks the Senator, extracting a promise to answer further questions.