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Karen Middleton on what the religious discrimination bill actually entails, and why Scott Morrison is so desperate to pass it.

The proposed law that could legalise discrimination

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In the lead up to the last federal election Scott Morrison promised he would introduce new laws to protect religious freedoms. 

Now the federal government has finally introduced a religious discrimination bill to parliament.

But there are concerns that the proposed laws could make it easier for individuals to vilify marginalised communities, like the queer community, without consequence.

Today, chief political correspondent for The Saturday Paper, Karen Middleton on what the religious discrimination bill actually entails, and why Scott Morrison is so desperate to pass it. 

 

Guest: Chief political correspondent for The Saturday Paper, Karen Middleton.

 
Read Transcript

[Theme Music Starts]

RUBY:
From Schwartz Media I’m Ruby Jones, this is 7am.

 

In the lead up to the last federal election Scott Morrison promised that he would introduce new laws to protect religious freedoms. 

 

Now the federal government has finally unveiled exactly what those laws will look like.

 

And there are concerns that they could make it easier for individuals to vilify marginalised communities, like the queer community, without consequence.

 

Today, Chief Political Correspondent for The Saturday Paper Karen Middleton, on what the religious discrimination bill actually entails, and why Scott Morrison is so desperate to pass it. 

 

It's Wednesday, December 1.

 

[THEME MX OUT]

 

RUBY:
Karen, the federal government is once again talking about religious freedom. This isn't the first time that this has come up, so can you take me back and tell me where this debate begins? 

 

KAREN:
So in 2017, Australia voted in favour of same sex marriage, of marriage equality. 

 

Archival tape -- Malcolm Turnbull:
“What a day, what a day for love, for equality, for respect.” 

 

KAREN:
And that pleased a lot of people and upset some other people.

 

Archival tape -- Unknown person:
“Well, look for thousands of years all cultures have believed that marriage is between a man and a woman.” 

 

KAREN:
Some people who are upset were in the conservative faith communities who really were troubled by that decision. 

 

Archival tape -- Unknown person:
“But what we've seen where this has changed in other parts of the world, people have been taken to court for alleged bigotry because they just want to believe.”

 

KAREN:
So among those concerns from some faith communities about the decision to legalise same sex marriage were fears that they put that they would end up being discriminated against, that people of faith would be victims of discrimination as a result of this change in the law. 

 

Archival tape -- Reporter 1:
“The devout Christian was hounded by Colorado Civil Rights Commission after refusing to bake a cake for a same sex wedding.”  

 

KAREN:
And they gave examples like people who produced certain goods and services, say a baker, who didn't want to sell a cake to a couple who were going to get married, who were gay. 

 

Archival tape -- Reporter 1:
“Now he's being sued again for refusing to bake a cake celebrating a gender transition.”  

 

KAREN:
They wanted to have protections put in place so they could exercise what they say were their religious beliefs and not be penalised under the law as a result. And in response to them, Prime minister Scott Morrison initiated a review of religious freedoms and religious discimination and that review went through 2018 and wasn’t resolved in any legislative form before the parliament by the time of the federal election in 2019 so it was still a sort of an outstanding issue.

 

The Prime Minister promised that he would legislate to protect religious freedoms, as he put it, and that ended up being effectively an election promise that he made.

 

RUBY:
OK. So Scott Morrison promised to legislate to protect religious freedoms back before the last election, so that’s 2019. So what was actually in the bill Karen? 

 

KAREN:
So early versions of the bill were unveiled by former Attorney-General Christian Porter and put out for public debate in what's known as an exposure draft form.

 

People get to comment on it, give feedback to the government, they go away and make some changes and do some redrafting. 

 

Archival tape -- Christian Porter:
“The bill instead accepts as its starting point that the right to free religious expression, like other rights, exists in perpetuity and indivisibly without human existence.” 

 

KAREN:
The first and second drafts of the bill. It contained what became known as the Folau clause, which would protect individuals who wanted to make public statements in relation to their faith from being sacked by their employers as a result, because that was what happened to Israel Folau. 

 

Archival tape -- Reporter 2:
“The career of one of Australia's most exciting rugby union players, Israel Folau, is all but over after he launched a tirade on social media against drunks, gays and adulterers.”

 

KAREN:
Now, Israel Folau is a evangelical Christian. He's a conservative Christian.

 

Archival tape -- Israel Folau:
“My faith and what I believe in that is based on the Bible is the most important thing to me, and it defines me as a person.” 

 

KAREN:
And he's quite outspoken with his Christian beliefs and where he sees them in relation to social issues. And this was one of those.

 

Archival tape -- Reporter 3:
Yesterday afternoon on Instagram, the Wallabies star told homosexuals that hell awaits you...and urged that they repent.”

 

KAREN:
It was very controversial at the time, and it ignited or re-ignited this debate within those faith communities. And so there was pressure applied directly to Scott Morrison in the middle of that election campaign to do something to protect people like Israel Folau, who at that point was starting to get pressure back on him from his employer, Rugby Australia, about his comments, which were in breach of their Code of Conduct. 

 

Archival tape -- Reporter 4:
“Israel Folau's case was one that divided Australians and went far beyond the sporting field. But the issue won't go away as attention now turns to the federal government's religious freedom bill, which is up for debate next year.”

 

KAREN:
We saw two drafts of that bill and there were other elements in it as well that sought to preserve people's right to speak out publicly in defence of their faith or in relation to what they believed in terms of their religious faith. 

 

RUBY:
OK, so the first versions of this religious freedom bill, were an attempt to provide legal protections for people who have religious beliefs so that they can express those beliefs freely, even if those beliefs are discriminatory. And it was controversial for many reasons, right from the very beginning, in particular because of the Folau clause. So what ended up happening to these earlier versions of the bill, from 2019 onwards?

 

KAREN:
Well, there was a lot of pushback from advocates for LGBTIQ rights and human rights groups, equality advocates saying that this bill was too extreme, that it was unfair and that it was actually going to allow religious organisations to discriminate against other people and that that was not fair. 

 

Now there were some faith communities that also believed it didn't go far enough. So the government was starting to be stuck between two competing constituencies on this.


So that's the process that we've been engaged in, and there's been a lot of pressure because now we're approaching another federal election. It's a full almost three years since the Prime Minister made this promise, and we still haven't seen a final version of the bill. And so that is what has now in the final fortnight of the parliament for the year been produced and put into the parliament. 

 

RUBY:
We'll be back after this. 

[Advertisement] 

RUBY:
Karen, last week, the government introduced a new version of its religious discrimination bill. 

 

Archival tape -- Speaker of the House of Representatives:
“The Prime Minister.”

 

Archival tape -- Scott Morrison:
“Thank you, Mr Speaker. I'm very pleased to present the Religious Discrimination Bill 2021 and the explanatory memorandum.”

 

RUBY:
The Prime Minister, Scott Morrison, he introduced it himself, which I suppose goes to show how personally invested in this bill he is. Can you tell me what he said? 

 

KAREN:
Yes. And it was an interesting decision to introduce it himself because it could have actually been introduced in the Senate, where the Attorney-General Michaelia Cash is based. But the prime minister really wanted to introduce it himself because of that personal investment that you talk about.

 

Archival tape -- Scott Morrison:
“Mr. Speaker, human beings are more than our physical selves, as human beings, we are also soul and spirit. We are also importantly what we believe…”

 

KAREN:
He gave a quite passionate speech. He talked about the soul and the spirit of an individual person that needed to be protected. 

 

Archival tape -- Scott Morrison:
“The protection of what we choose to believe in a free society. Is essential to our freedom. In a liberal democracy, it is like oxygen.” 

 

KAREN:
He talked about this bill being a foil to the cancel culture that he said was increasingly prevalent, and that was marginalising people of faith. 

 

Archival tape -- Scott Morrison:
“People should not be cancelled or persecuted or vilified because their beliefs are different from someone else's. In a free, liberal democratic society such as Australia.” 

 

KAREN:
And he talked about this version of the bill retaining some of the protections that had been in earlier drafts, but button removing others. And I guess that reflects this difficult position he finds himself in now, where there are the competing constituencies that still have concerns and he's at risk of making everyone unhappy and nobody satisfied with this bill. 

 

Archival tape -- Scott Morrison:
“Our faith communities contribute to our national life or playing a part in helping live out our great destiny as a people. Australians one and free. I commend the bill to the House.” 

 

RUBY:
Ok so it sounds like this the latest version of the bill obviously has some similarities to the earlier drafts - but some things have been removed. So what is gone?

 

KAREN:
So the clause that was known as the Folau clause has been removed. That was probably the most controversial. That was the clause that was going to allow someone in the same situation as Israel Folau, to make statements based on their faith and not be sacked for it. 

 

But there is still a modified version of that clause that will protect certain people who are in certain professions that are governed by a professional body that licences or authorises their work. And by that, you might think of people like doctors or lawyers who have to get their licence to practise through a professional body. There are provisions that qualify that a little they are not allowed to be malicious statements. They can't harass or vilify or intimidate people. They have to be based on genuine belief. But of course, there is a bit of interpretation of what constitutes genuinely held belief. So that remains in the bill.

 

And equally there's another contentious element in the bill relating to what are known as statements of belief. And these are comments that people can make in the context of their work circumstances and as long as they're based on a genuinely held belief, they won't be subjected to anti-discrimination provisions in legislation because this bill does override both other federal laws and state and territory laws, potentially so that people who might otherwise be found to be discriminating against someone by making comments related to their own religious faith can be protected.

 

An example that Equality Australia, the LGBTIQ advocates make in relation to the issues that a nurse treating a person with HIV might be able to say that it came from their homosexuality, which was an abomination in the eyes of God, and be protected for saying that to an HIV patient, whereas under other laws that would be deemed to be discriminatory. 

 

Archival tape -- Anna Brown:

“We need to make sure that when you go to see a doctor that you are guaranteed a doctor that treats you and, you know, gives you the care that you need on the basis of your medical condition. Nothing, nothing to do with your and your identity.”

 

KAREN:
So this is proving to be quite controversial, and the advocates of equality are saying that they don't think that that should remain. 

 

RUBY:
Mm. So to what extent is the end result here, Karen, similar to earlier iterations of this bill, to things like the Folau clause, because it sounds like people will still be able to say discriminatory things and defend their right to do that by saying that is, their genuinely held religious belief. 

 

KAREN:
That's right, they will still be able to say things.

 

There's quite a lot of scope for people to say things that might be hurtful to others in relation to their own religious faith or belief. Earlier iterations of the bill were going to allow hospitals and health services to restrict the provision of services to some people based on the ethos of philosophy, religious philosophy of those institutions. That's not going to be allowed anymore.

 

There is still provision for educational institutions to discriminate against people under some circumstances, provided that they publish a policy statement that clearly indicates the religious basis for the views that they hold. There are some protections in the bill for that, and there's some discretion for a minister to allow those kinds of actions to be taken as well. 

 

So there are still things in this bill that a number of people who are human rights advocates are saying are a bit problematic. 

 

RUBY:
And Karen, how important is it for the Prime Minister to get this legislation passed? Is this really something that's seen as an issue that the Coalition's voter base feels strongly about and needs to happen? 

 

KAREN:
Yes, he was under a lot of pressure because of the timing of the Israel Folau issue right back in 2019, right in the middle of an election campaign, and he he moved to make that promise to try and neutralise that issue because there are faith communities in marginal seats, particularly in western Sydney, and they applied a lot of pressure. 


But equally, there are communities in other seats that the government holds seats like the one that Trent Zimmerman has in North Sydney. 

 

Archival tape -- Trent Zimmerman:
“The area that I'm keen to get greater clarity about is what happens in schools and educational settings. We've made it clear that we don't think that teachers should be hired or fired based on things like their sexuality.” 

 

KAREN:
There are constituents in those seats that don't want this bill to proceed in the way that it is. 

 

Archival tape -- Trent Zimmerman:
“What I'm keen to ensure is that policy isn't constructed in a way that would allow backdoor mechanisms of discriminating against people, for example, because of their sexuality.”

 

KAREN:
So the politics are quite complicated here. Both sides are under pressure and both sides are having to sort of tread very carefully, hoping to offend the minimum number of people, but be seen to be advocating on behalf of communities of faith. So it's an interesting sort of standoff that we see in the parliament as the parliament comes to a close for 2021. 

 

RUBY:
Karen, thank you so much for your time. 

 

KAREN:
Thanks, Ruby.

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[Theme Music Starts]

RUBY:
Also in the news today,

The federal Sex Discrimination Commissioner has handed down a report into Parliament’s workplace culture that found one in three people experienced some kind of sexual harassment while working in federal parliament. 

 

The review, prompted by sexual assault allegations made by former staffer Brittany Higgins, found more than half of all people in Commonwealth parliamentary workplaces experienced at least one incident of bullying, sexual harassment, attempted or actual sexual assault.

 

And acclaimed Indigenous actor, David Dalaithngu, has died four years after he was diagnosed with lung cancer.

 

Dalaithngu was raised in Arnhem land and considered one of Australia’s best artists.  He became a star following his breakout role in the 1971 film Walkabout and went on to shape decades of Australian film, including in Storm Boy, Crocodile Dundee, Rabbit Proof Fence and Ten Canoes.

I’m Ruby Jones, this is 7am. See you tomorrow.

[Theme Music Ends]

 

Host

Ruby Jones is an investigative journalist and host of 7am.

Guest

Karen Middleton is The Saturday Paper’s chief political correspondent.

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