Published: 06 July 2017

Legislative Council Wednesday 12 April 2017

Ms  FORREST (Murchison ) - Mr President, I do not support that amendment.  I hope to make a contribution on the bill as other members may wish to.  The contribution of the member for Huon related to section 17 and his view that it goes too far and needs amendment.  That is not part of this bill.  Go back to the second reading speech that the Acting Leader delivered in this place a couple of weeks ago to grant religious exemption.  It is not about amending section 17.

People have made it very clear that is not what it is about.  It is about granting religious exemption.  The former anti-discrimination commissioner also had concerns about other changes to the process.  We all need to be given a chance to have our say on this bill.

Many groups have informed us that they are quite concerned about proposed amendments to this bill.  Their concerns have been well canvassed.  This legislation has been on the table for some time.  The churches do not agree with it - some say it does not go far enough with religious exemption while others say it goes too far.  As the member for Launceston said, Archbishop Porteous made very clear that he did not support a religious exemption like this.  That is what we are debating here - we are not debating an amendment to section 17 of the act; we are debating the bill now before us.

We do not need more information, nor do we need more time on this debate.  I am concerned that an amendment may be made during the Committee stage that moves away from the Government's position on this.  If that happens, it will need proper consultation.  In this place we all go on about the need for proper consultation, but there has been no consultation about such an amendment. We are getting screeds of information from organisations raising concerns about that.

I do not support adjourning this debate because it is not about section 17.  It is about the bill as it is presented - the principle of the bill to grant religious exemption - and other members in this House want to make a contribution about that.

Ms  FORREST (Murchison ) - Mr President, I do not support the bill.  I will not go over areas that other members have covered well. 

As we were told in briefings, freedom of expression is a human right, and freedom of speech is not an absolute right.  There has to be a balance.  The Government has said it has the balance right with this by providing a religious exemption that the churches have said they do not want.  I cannot see how that fits.  As the member for Launceston said, and the archbishop made clear in his contribution in the briefings, in communications as well as publicly, they were not seeking such an exemption.

Mrs Armitage - And there are 1200 religions.

Ms FORREST - Yes, registered religions.  It gives free licence to all manner of hate speech and other things to happen under the guise of religion.  In her contribution the member for Launceston asked how you define religion in that context.

Mrs Armitage - I cannot remember.

Ms FORREST - You raised the question about defining religion.  For everyone's benefit, I will read a couple of sections from this paper, 'Legal Aspects of the Protection of Religious Freedom in Australia', by Associate Professor Carolyn Evans, Centre for Comparative Constitutional Studies, Melbourne Law School in June 2009.

Under the section, 'Constitutional Protection of Religious Freedom', and under the heading of 'The Definition of Religion' -

In an early Australian case, Adelaide Company of Jehovah's Witnesses, Inc. v. Commonwealth (the Jehovah's Witnesses' case), Latham CJ referred to the problems of defining religion when he noted that, 'It would be difficult if not impossible to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist or have existed in the world'.

His Honour also noted that s116 'proclaims not only the principle of toleration of all religions, but also the principle of toleration of absence of religion'.

The most comprehensive discussion the definition of religion by the Australian High Court was in the Church of the New Faith v Commissioner of Pay-Roll Tax (Vict) ('the Scientology Case'), in the context of a legislative provision giving a taxation exemption to 'religious institutions'.  The Church of the New Faith, more commonly known as Scientologists challenged the decision of the Commissioner of Pay-Roll Tax, who had held that Scientology was not a religion for the purposes of this exemption.  The justices in the case, however, made clear that they intended their discussion of the definition of religion under the legislation to have a broader application, including to the constitutional definition of religion.

Three different definitions of religion were given (although there is considerable overlap between them in practice).  Mason ACJ and Brennan J set out a two-part test.  A religion must consist of: 'first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief'.

A religion was not to be treated as fraudulent and outside the category of religion simply because there are allegations that the founder set it up as a 'sham' if there is evidence of the sincerity of believers.

It continues further -

Murphy J took an expansive approach to defining religion.  His Honour rejected the notion that there is a single criteria to determine a religion or a closed set of categories of religions.

He said that it is better 'to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category.  This very vague language makes it difficult to determine what is necessary in order to determine whether a group is religious, especially given that Murphy J then went on to discuss a wide range of circumstances in which a body may be determined to be religious.  One common theme to his Honour's examples is that the bodies must claim to be religious.  In addition, it is sufficient if their 'beliefs or practices are a revival of, or resemble, earlier cults', and if they 'believe in a supernatural Being or Beings', including worship of a God, spirit or the sun or stars, if they claim to be religious and offer 'a way to find meaning and purpose in life', or if they are indigenous religions.

The vagueness of Murphy J's definition is compounded by the fact that his Honour denied that a religion must involve belief in a god, that it must claim exclusive access to religious truth, that it must have consistently claimed religious status over time, that it must be involved with propitiation and propagation, or that it must be accepted by the public.  This definition is, in some ways, the most consistent with the very broad approach adopted in international law, but not particularly useful in defining the boundaries of the definition of religion.

When we consider how we apply the religious exemption, it is pretty clear there is not a straightforward, simple definition.  Further on in the document, under the heading 'Definition of Religion in Discrimination Acts', it says -

The definition of 'religious belief or activity' or equivalent phrase in the discrimination acts tends to be minimal.  For example, in Victoria, the Equal Opportunity Act 1995 (Vic), S4(1) provides: 

 religious belief or activity means -

 (a)   holding or not holding a lawful religious belief or view;

 (b)   engaging in, not engaging in or refusing to engage in a lawful religious activity.

In the ACT, s11 of the Discrimination Act 1991 (ACT) is a somewhat more detailed provision.  For the purpose of prohibiting discrimination against an employee on the grounds of religious conviction by refusing permission to the employee to carry out a religious practice during working hours, it defines 'religious practice' as a practice -

  (a)   of a kind recognised as necessary or desirable by people of the same religious conviction as that of the employee; and

  (b)   the performance of which during working hours is reasonable, having regard to the circumstances of the employment; and

   (c)   that it does not subject the employer to unreasonable detriment.

To go to another document I want to read, which is 'Case Note and Commentary an Australian Definition of Religion', again this refers to Murphy J, which I referred to in the previous document.  Murphy J begins by drawing attention to the many tax exemptions and privileges enjoyed by religious institutions.  Therefore he says -

One can understand a certain scepticism when new religions appear.  Religious freedom is fundamental to our society, but even so, the truth or fallacy of religions is not the business of officials or the courts.

This is the key point.

It is difficult to define religion and there is no satisfactory single criterion.  It is better he says, 'to state what is sufficient, even if not necessary, to bring a body which claims to be religious within the category'.  There then follows a strategic and fundamental statement by Murphy J as to his approach to a definition of religion.  'On this approach any body which claims to be religious, whose beliefs or practices are a revival of or resemble earlier cults, is religious.' 

That quote then goes back to what I read in the previous paper.

Clearly, when we are imposing religious exemptions, it is very hard to determine what religion is.  The 1200 religions in Tasmania recognised under the ABS mean it is a pretty broad church, so to speak - pardon the pun - where exemptions could be granted.  My biggest concern is this bill was brought in to predominantly allow churches and people of religious faith the freedom to speak their views and mind with regard to the same-sex marriage debate, particularly with the pending plebiscite.  That is why it was brought in when it was.  The archbishop made that very clear.  I said to him myself, what is it that you want to say you cannot say under the current act?  Why do you need an exemption?  He does not.  He has made it clear he does not want an exemption.  He does not want to participate in hate speech. 

There may well need to be amendments made to the principal act but this is not the one.  The principle of this act to grant that is not substantiated.  The Government has not made the case.  I am not going to refer only in passing to the proposed amendments because that is a separate process; if it gets to the Committee stage, we will deal with it then.  I would like to read from an email received some time ago from Ben Bartl with regard to the bill before us, not the proposed amendments.  Members have copies of this.  I will read towards the end of his letter -

We reiterate that there are a number of defences already available in both the Anti Discrimination Act 1997 (Tas) and the Commonwealth of Australia Constitution Act 1900 that persons with a religious purpose would be able to rely on during the proposed plebiscite on marriage equality.  While the existing exemptions do place some restrictions on the type of commentary that can be expressed, such restrictions are designed to achieve balance and are not so restrictive as to prevent free and fair commentary, and open public debate.

He goes on -

Amendments tip the balance too far in favour of discrimination

As well as the case law demonstrating no case for reform …

which he included earlier in his letter -

… we are also concerned at the broadening of section 55 of the Act to include:  'religious purpose, in our opinion the current exemptions which apply to academic, artistic, scientific or research purposes, as well as any purpose in the public interest strikes the right balance.  We do not believe that conveying, teaching or proselytising [of] a religious belief should provide an exemption to discriminatory conduct and/or inciting hatred.

As I said, the archbishop made it clear he was not seeking that.

Alarmingly, the passing of this amendment will provide a platform for religious organisations to discriminate and/or incite hatred against minority groups including women, the disabled and the LGBTI community.

It is not just relating to the LGBTI community, which was the focus around the marriage equality debate; it is much broader than that.  This is why we are now seeing real concerns being raised by a range of other representative organisations - from the multicultural organisations to women's organisations to disability advocacy groups.

In his letter he says -

In summary, we cannot support the proposed amendment to section 55 of the Act.  The Government has repeatedly stated that the amendments are an attempt to 'strike the right balance' but have failed to provide any evidence of weakness in the current legislative provisions.  No case law.  No egregious outcomes.  No obvious reason for concern.  Further, in our view, the haste with which these reforms are being introduced is premature, particularly given the uncertainty around whether a plebiscite on marriage equality will even take place.

This is obviously before that.

However, of most concern is that the proposed amendment will weaken the protections provided to minority groups and allow persons with a religious purpose to engage in conduct that offends, humiliates, intimidates or ridicules another person and/or incite hatred against another person.

I will leave that quote there.

It is also important to remember that it is not about saying something, it is about an act - about engaging in conduct that offends, humiliates and intimidates.  There is already the 'reasonable person' test in that process.  We have had this discussion in the briefings.  I know the member for Windermere was particularly keen to understand if the reasonable person applies.  If a reasonable person would, by that action, have been offended, it probably is an action it needs to take.  But if a reasonable person would not have been offended by that action, it would not get anywhere.  There are those protections.  It is not like it is a free-for-all or that as soon as I say something which upsets someone, which I do quite often, I am suddenly going to be hauled before the Anti Discrimination Commissioner.  I am not.

I believe the premise on which the bill was brought in was flawed.  It was a reaction to a concern people raised about not being able to speak their mind in terms of their religious doctrine but it is not the right approach.  We also hear from the Australian Christian Lobby that it does not support the legislation either because it does not think it goes far enough and needs other changes.  If only there had been a proper consultation period for the bill when it was presented.  We all had the information about how quickly that process happened.  Many of the key stakeholder groups were away, unable to respond in the short time frame given.  Certainly TasCOSS, particularly, was not able to consult with its members.

Mr Valentine - Who was consulted is the question?

Ms FORREST - I have asked for that information and had we conducted an inquiry into this way back, you might have already have some of this information.  We have had a fair bit of time between now and then.  The Government has not made a case for the need for this change, because it is not supported by the people it particularly said it was trying to assist.

In terms of the proposed amendments, the members for Rumney and Launceston both spoke about this in voting against the amendments to section 55, removing the religious exemption.  I do not know why you just do not vote against the principle of the bill, because that is the principle of the bill.

The other amendments introduce matters that, as the member for Windermere said, when he talked to the Government about this some time ago, were not part of this bill.

Mr Dean - That is right.

Ms FORREST - If it is not part of this bill, then let us not make it part of this bill.  Let us have a proper consultation period on this matter, and the Government, or a private member, can bring back amendments that have undergone a proper consultative process because some of these marginalised groups - including women's groups, disability advocacy organisations, multicultural organisations and the LGBTI community - are genuinely concerned about this matter.  There are genuine concerns about the changes which should have had proper consultation.  That is the Government's job.  If a private member wants to do it, that is fine, but they are going to have to do the consultation.  If you get back here without proper consultation, I will be criticising you.  I reckon almost every member around this room will, because we always criticise when there has not been proper consultation about legislation.  We have held things up here in this place many times on the back of inappropriate, inadequate or lack of consultation.

Let us not even propose a change that has not been properly considered, because it is really clear from the emails and information we have received that there is great concern in the community.  We should not even be proceeding down that path.  If we do not agree with the principle of this legislation before us with the exemption for religious purpose, we should not support the bill.

We have information over the last few days, since last week, when the proposed amendment was being put forward.  It is pretty clear it is not the LGBTI community that suffers the majority of complaints under the section 17(1) of the current act.  A list was provided to us of complaints of alleged or identified offensive conduct.  At the top of this list is disability, which was 32.4 per cent in 2014-15 and 33.3 per cent of all complaints in 2015-16.  The next was gender, which again is obviously all the gender issues - women, transgender and gender identity:  9.2 per cent in 2014-15, and 12 per cent in 2015-16.  Race was next:  in 2014-15, it was 7.7 per cent, and 12 per cent in 2015-16.  Then age - we are all getting there - 8.5 per cent in 2014-15 and 8 per cent in 2015-16.  Family responsibilities:  8.5 per cent 2014-15, and 4.7 per cent in 2015-16,  Sexual orientation was next:  7.7 per cent in 2014-15, and 4.7 per cent in 2015-16.  That is followed, in descending order, by relationship status, marital status, gender identity, parental status, lawful sexual activity, pregnancy, breastfeeding and intersex.

Clearly, these are the people who are most concerned about the granting of religious exemption.  Some fundamental Christian views out there stick pretty much to the Old Testament and suggest that people with disability have somehow been sinful, and we could perhaps do away with them.

Mrs Hiscutt -  In light of the time, if your speech is not nearly completed, and given the anxiety from some other members, I ask that you might adjourn for reasons we are all aware of.  If you are winding up, that would be lovely, thank you.

Ms FORREST - I want to make a few other comments.  I would rather complete my contribution - it will not take too long.

We heard during the briefing we had some time ago that the Commissioner for Children and Young People was also concerned about the amendments to the bill we are considering.  He wrote in a media release on 21 September 2016 -

These amendments are put forward as being necessary to correct a perceived imbalance between providing protection for freedom of speech and protection from unlawful discrimination.  It is clear the impetus for these amendments is to ensure that speech and other public acts, engaged in for religious purposes, are protected under the Act.

As the Commissioner for Children and Young People, I am obliged to promote the wellbeing and best interests of all children and young people in Tasmania.  After careful consideration of the Bill I have concluded that it would be inconsistent with my statutory responsibilities to support the proposed amendments. 

In reality, these amendments will excuse conduct that would otherwise be offensive, humiliating or intimidating that would amount to incitement of hatred toward a person, if that conduct to carried out in good faith and for religious purposes.  I am particularly concerned at the message these amendments send to children and young people, especially those who by virtue of a particular attribute are seen as 'different' and can be ridiculed, harassed or insulted on the basis of that attribute.  This is the essence of bullying. 

There is a very real risk that as a result of the proposed amendments, public conduct which for example, offends, humiliates or intimidates a child or young person on the basis of factors such as race, gender, pregnancy, sexual orientation or disability, may be permitted. 

His real concern was about the impact on children, who are his prime responsibility.  He said -

Finally, the messages promoted by these amendments are in conflict with the important work underway here in Tasmania to ensure to ensure children and young people aware of the importance of treating others with respect.  They are also counterproductive to the messages that underlie out strategies and to prevent and respond to violence against women and others.

The Government is really keen and says it has the balance right in this legislation.  It says it is making the legislation consistent with legislation in other states.  I have been advised that is not the case.  It seems the proposed change to section 55 of the Tasmanian Anti-Discrimination Act 1998 is similar to some of the wording relating to exemptions in the Victoria Racial and Religious Tolerance Act 2001 and in the New South Wales Anti-Discrimination Act 1977.  The choice of wording seems to be a mix between the Victorian exception, a standalone exemption within the act, and the New South Wales exemption found within individual sections of the act.  The wording is not an exact match with either of the two examples given below.  I will read those in a moment.  The proposed Tasmanian clause includes mention of relevant conduct in section 55(1).  This is not defined within the bill or in the current act.  Further, the New South Wales exemption notes a public act must be done reasonably and in good faith. 

This bill initially included the reasonable and in good faith classification.  However, the version tabled in parliament, which we are dealing with now, includes only 'good faith'; the word 'reasonably' has been removed.

A further note is the definition of religious purpose.  This tends to suggest the Victorian section was also used to draft the clause proposed for the Tasmanian amendment.  The Victorian legislation used the 'reasonably and in good faith' classification.  However, it went further and placed a genuineness requirement on 'any statement, publication, discussion or debate made or held or any other conduct engaged in for - (i) any genuine, academic, artistic religious or scientific purpose; or (ii) any purpose that is in the public interest'.

We are not being consistent.  We are picking and choosing and arguing semantics.  This is an important matter.  I urge members to reject the bill.  Work needs to be done on the proposed legislation.  It needs to be looked at.  It is clear from many members' contributions that they agree with that.  It is clear that the bill is not right as it is.  The churches have said consistently that they do not support the bill.  Reverend Carmichael, whose letter other members have read out, believes the act is right as it is, that it does not need any change.  However, other religious leaders believe change is needed, but this is not it.

The Government has it wrong in this case.  I urge members to reject the proposed legislation to allow the Government to consult properly on the legislation.  It can then bring it back to this place for proper consideration and we can then vote on its merits.

The Council adjourned at 6.13 p.m.


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