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Parliamentary Joint Committee on Human Rights

STEAD, Right Reverend Doctor Michael, Bishop of South Sydney, Chair of the Religious Freedom Reference Group, Anglican Church Diocese of Sydney [by video link]

TAN, Dr Carolyn, Chairperson, Public Affairs Commission of the Anglican Church of Australia [by video link]


CHAIR: I now welcome representatives of the Public Affairs Commission of the Anglican Church of Australia and representatives of the Anglican Diocese of Sydney. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you.

Mr PERRETT: Thank you very much for taking the time to appear before our inquiry. My first question is to Dr Tan. My understanding is you broadly don't support the bill in its current form, with particular concerns about the statement of belief and the extent of the exceptions for religious bodies to discriminate. My understanding from your submission is that the heart of your objection is that section 12 should be removed. Your submission says:

This provision gives an immunity to religious believers to make statements that may be totally racist, sexist or which may ridicule people with disabilities and the like.

Is it your view that section 12 would cause harm if it remains in the bill and the bill is passed?

Dr Tan : Yes, it is my view, because there is no reason why you need to give that immunity or the ability to override under discrimination legislation. People are still free to make statements of belief, providing they don't do it in a way that discriminates. If you look at where the harm lies, obviously greater harm lies with the person who is being discriminated against, whereas the person who wants to make a statement can do it in a way that is not discriminatory.

Mr PERRETT: Okay. That's a good way of saying it in terms of where the harm lies. Your submission raises concerns about other laws which might be prescribed to be overridden by section 12 in the future. Are there any particular laws you are concerned might be prescribed to be overridden by section 12(1)(c)?

Dr Tan : I suppose there's always the fear regarding section 18C of the Racial Discrimination Act, which has been under threat for a long time.


Dr Tan : That's one possibility.

Mr PERRETT: Okay, thank you. The test for determining whether something is within the doctrines, tenets, beliefs or teaching of religion is whether a person of the same religion as the first person or religious body could reasonably consider it to be in accordance with the doctrines, tenets, beliefs or teachings of that religion. Your submission raises some concerns about this test. Could you explain why you're concerned about this test and what you consider the test should be?

Dr Tan : The concern is simply that it's the 'one other person in the religion test', whereas we had suggested that it should be something that is either a more objective test or that it's at least something that relates to what the leaders or the people in authority within a religion think are the doctrines or tenets. That's usually the way it works when there is a more objective test. A fair bit of deference is given by courts and tribunals to what the leaders say the doctrines are. A concern is there might be a small minority of people who have a particular misguided interpretation of religion, and the tests should be higher than that.

Mr PERRETT: If it were the Pope in Rome or the Archbishop of Canterbury, would you have more confidence in that test rather than the man on the Clapham omnibus, so to speak?

Dr Tan : In a sense, but obviously, for instance, in the Anglican Church, there are a wide variety of views, both of the leaders—you're probably going to hear two different views today.

Mr PERRETT: I think my next question to your colleague might draw some of those out.

Dr Tan : Yes. We're not saying it's got to be the unanimous view, as long as it's a substantial view amongst the leadership, not just a minority, bizarre view.

Mr PERRETT: Alright. Thank you very much. Dr Tan. I'm now going to ask some questions of Dr Stead, the chair of the Religious Freedom Reference Group.

Dr Stead, your submission, from the Anglican diocese of Sydney, says, 'People of faith are facing increasing hostility in Australia.' And it refers to examples on a website. Could you provide the committee with examples from your own faith community—the Anglican community—of where people are facing increasing hostility. And what have Anglicans in the diocese of Sydney told you they are actually experiencing?

Bishop Stead : Thank you for the question. The point that we made earlier in our submission is that we are arguing for protection of religious belief for all religions, not just for Anglicans in Sydney. The reality is that Anglicans in Sydney are not a persecuted minority; but we're speaking up for Jews and for Muslims, who experience much more persecution than we do. So, no, there is not a lot of direct discrimination for individual Anglican Christians in the diocese in Sydney, but we want to protect people of all religions, not just our own.

Mr PERRETT: So you're relying on the information on that webpage rather than the actual reporting of people in your parish—is that the right term? Sorry, I should know, I am married to an Anglican, but—

Bishop Stead : That's fine. Your question was specifically about discrimination. People in Sydney do report that they're experiencing adverse treatment on the basis of their religion, but it doesn't amount to discrimination. We have been called bigots and homophobes and all kinds of, to me, offensive things, but I fully concede that it doesn't rise to the level of discrimination and this bill won't make any difference to that. So yes—people in the pews are worried about the rising tide of hostility directed towards people of faith, but it doesn't amount to discrimination.

Mr PERRETT: Can I take you to paragraph 34 of the Anglican Diocese of Sydney's submission where you say:

Clause 12(1)(a) should be understood as nothing more than a provision 'for the avoidance of doubt', not as a provision that 'takes away existing anti-discrimination protections'.

Can I ask you to consider whether a statement of belief as defined in the bill could constitute discrimination under section 18C of the Racial Discrimination Act? If so, and if section 18C were prescribed under section 12(1)(c) of the bill, would that protection remain? And I think you heard Dr Tan's earlier answer.

Bishop Stead : There is a political question about whether that's ever going to happen or not. I would preface that by saying: you should ask that question to representatives of the Islamic and Jewish communities, because we had long discussions with the government on that very issue. They were content that the current form of this bill, without prescribing, does not override the Racial Discrimination Act, and then it's a political question about whether the government would ever seek to override 18C by prescribing that—

Mr PERRETT: There has been clear expression from members of the government that that's still their preference.

Bishop Stead : That the government intends to override 18C—

Mr PERRETT: No, no. I'm not saying that's the government position. I'm saying that there are people—members of the coalition—who have made that very clear, including senators who have made it very clear that they would like to override section 18C.

Bishop Stead : Yes, but I don't believe that anybody has suggested that using clause 12 is going to be the mechanism to do that. And I just don't think that it's politically likely at all.

Mr PERRETT: Thanks very much, Dr Stead, for a good submission. Thanks, Chair.

CHAIR: Thank you. I'm going to Ms Hammond.

Ms HAMMOND: Thank you both for your submissions and for appearing today. Can I ask—perhaps somewhat naively—what's the relationship between the PAC and you? In what capacity do you appear and who do you represent, the two of you? You do have diverse views, which I think is also really interesting. It is really good for this particular committee and this hearing that two members of the same faith are representing two different views, because that is the reality of most faiths: how people live out their faith can be vastly different. So can I just get a better understanding of that? Dr Tan, perhaps, first.

Dr Tan : The Public Affairs Commission is a commission that was set up under the cannons of the Anglican Church in Australia at the national level, and that is a commission that is appointed by the Primate of the Anglican Church on the recommendation of the Standing Committee of the Anglican Church. We have members from all around Australia, but we are only able to speak for the Public Affairs Commission. In fact, no-one can speak on behalf of the Anglican Church as a whole because there are such diverse views across the church. I suppose the Anglican Church at the national level operates a bit like a federation of different dioceses, and there are 23 dioceses. So our authority is only to speak on behalf of the commission, even though we've got that role of speaking on public affairs.

Ms HAMMOND: So, Dr Stead, are you representing the Primate?

Bishop Stead : No. I'm representing the Diocese of Sydney. The Diocese of Sydney is the largest of the 23 dioceses of the Australian church. I'm also speaking on behalf of Anglicare in Sydney, which is one of the Anglicare [inaudible] network—it's the largest of the Anglicares, but, again, it's only one of a number of bodies that make up Anglicare—and on behalf of 40 Anglican schools in the Diocese of Sydney, which, again, is the largest grouping of Anglican schools. I'm only speaking on behalf of the Diocese of Sydney, but I am speaking representatively in that capacity, certainly not for the primate and certainly not for any other diocese in Australia.

Ms HAMMOND: I think the differences between the two submissions and the representations from the two of you do represent quite a bit of the diversity of the views on this legislation and this issue. Dr Tan, from the PAC's point of view, do you think that there is a need to protect religious beliefs?

Dr Tan : There is a need to protect against religious discrimination, yes. We support the principle of a religious discrimination bill, even though we said our first preference would have been to see it as part of a charter of rights or a consolidated piece of discrimination legislation. In the absence of that, given the piecemeal nature of it, yes, we do certainly support it, not so much for ourselves—as Bishop Stead has indicated, because Anglicans tend to be in the majority, or at least not discriminated against and not that obvious in our religious dress or otherwise—but certainly for other, minority religions who have difficulty with things like religious dress, with days they need to have as a Sabbath rest, and those sorts of groups. They certainly need protection. We've heard the statistics about discrimination against Muslims, Jews, Sikhs and the like.

Ms HAMMOND: I want to pick up on a comment you made earlier, Bishop. You mentioned that Anglicans, the people that you're speaking on behalf of, are not reporting discrimination but certainly you're hearing concerns from the pews about comments being made and names being called. Do you have concerns that that could lead into discrimination?

Bishop Stead : Yes, I do. That's the reason why we're supporting this bill—because I think it establishes a line in the sand to say, 'No, no; we believe that people of faith deserve to be able to hold their beliefs and articulate them without fear of ridicule, of adverse treatment.' The more the bill can establish that at a higher level, the more that it will have the trickle-down effect and, hopefully, will help us to become a more diverse country where we can actually tolerate differences of belief without having to shut down belief that we find offensive.

Ms HAMMOND: You mentioned 40 schools in the Diocese of Sydney. How many students would be in them?

Bishop Stead : Forty-something thousand, 45,000 students.

Ms HAMMOND: And how many teachers or staff?

Bishop Stead : It's something like 3½ thousand or 4,000.

Ms HAMMOND: I know Anglicare supports huge numbers of people. Anglicare is a phenomenal organisation. How many people would you employ in Anglicare?

Bishop Stead : I don't have the number in front of me, but the last time I looked I think it was 3,000, 3½ thousand. Then there would be probably that number again of volunteers—2 ½ thousand, 3,000 volunteers, people who voluntarily come into aged-care facilities or other Anglicare properties. They're not employees in a technical sense, but we consider them as people who are engaged in the work of Anglicare.

Ms HAMMOND: Correct me if I'm wrong, but, with the work that you do through Anglicare and the services you provide, there is no religious test for them is there?

Bishop Stead : No. Again, we're not arguing for the right to discriminate on the basis of service provision, but Anglicare does want to be able to increase the employment of Christian staff in certain key roles and for Anglicare to be able to work out what those roles are rather than having some court or tribunal or some other body determine when and where they can't employ Christians.

Ms HAMMOND: Why is that important? Is that important to the ethos of Anglicare? I presume you have the same position when it comes to schools.

Bishop Stead : We believe that the people who work in these organisations actually shape the ethos. It's not good enough just to have a statement of belief plastered on the wall; we actually have it embodied. We believe that Anglicare does what it tries to do, which is to love people in the name of Jesus. It does that by having people who believe in Jesus doing their work. It's very hard to do that with people who don't have a faith commitment as Christians. Now, lots of people who are not Christians and who are of very different religions work for Anglicare, but they understand that they're working for an organisation with a strong Christian ethos and they embrace that.

Ms HAMMOND: And so that doesn't tend to cause tension or problems or if it does they're random? In the population size across the schools and Anglicare, you'd always anticipate that there would be some personnel problems because that's the nature of life regardless. But, on the whole, it doesn't cause a problem?

Bishop Stead : The current arrangement works very well from our point of view and, we believe, from the point of view of employees. We don't have people complaining that they've been discriminated against on the basis of religion. In our schools in Sydney, and it's probably true across most Christian schools, Christian teachers would actually be in the minority. Probably only about 25 per cent of teachers would be professing Christians, but we think having 25 per cent of our teachers as Christians is enough to create a Christian ethos to shape the flavour of the school. So we will preference the employment of Christian staff where we can but, obviously, if you're employing a geography teacher, first and foremost, you want somebody who can teach geography; however, if you have two equally qualified people and one's a Christian and one's not, we'll probably go with the Christian one.

Ms HAMMOND: So, you'd look at it in its entirety of that particular community, school or branch of Anglicare. It's not like a set percentage of 20 per cent across the board; you'd look at it—

Bishop Stead : Absolutely. Not all of our schools in Sydney operate independently but certainly many of them have quite different approaches to employment and, likewise, within Anglicare or the other institutions we run, there'll be different policies in different parts of the organisation. Not surprisingly, in chaplaincy related services there would be a higher percentage of professing Christians in that work than in some other parts of Anglicare, for example.

Ms HAMMOND: Some concerns have been raised by others, Bishop, and I think it goes to the issues that Dr Tan raised as well. In my mind they come down to: is this bill going to be used as a sword instead of a shield? Is it going to be used aggressively by people to vilify and attack even though that's banned? Do you have concerns about that? Obviously, as a Christian, you want to be able to express your faith but also you don't want to be able to demean other people.

Bishop Stead : Absolutely. The point that we make in our submission is: we don't think the first part of clause 12 is actually doing anything new because any statement that is not malicious, not vilifying and not all those other things is not going to be discrimination. To the question of whether it's a sword or a shield, my question would be: are there examples of Christians who are currently saying things which have been found to be discrimination that the bill is now going to permit? And the answer is no. I've trawled through every judgement I can find and I can't find any example of somebody having made a genuine good-faith statement of belief that has been held to be discrimination under any state or federal act which would therefore be permitted by clause 12. Why clause 12 is important is because of the places where it has been used, where other antidiscrimination law has been used as a sword against statements of belief—and I'm thinking particularly of section 17 of the Tasmanian antidiscrimination legislation. So we don't want clause 12 because it's a sword for us against others; it's a shield against the overreach of insult and offend laws in other jurisdictions.

Ms HAMMOND: Thank you. Dr Tan, did you want to make any comment on that? 

Dr Tan : I suppose the concern is we've heard examples from various organisations of the types of things that might come out as discrimination. Employers might be putting up signs about requiring gay people to repent and things like that. Now that might not be enough to amount to harassment, but it might insult and for particular workers it might be discrimination. My view is that if in fact clause 12 doesn't do anything useful it's better to take it out, because it only causes greater division.

Bishop Stead : But, to be clear, I'm not saying section 12 doesn't do anything; I'm saying clause 12(1) doesn't do anything beyond stating what I think to be the current law. Clauses 12(2) and 12(3) are vital to preventing the kind of overreach that's happened in Tasmania.

Senator PRATT: May I ask a question? Where have you seen those examples of overreach? I understand the Tasmanian case you refer to was withdrawn, so I'm not very clear as to how it's seen as overreach?

Bishop Stead : There are four examples in Tasmania of which I'm aware. Although they were eventually withdrawn, in each case there was a long and protracted period of mandatory conciliation. In one case, the first complaint against Dr Gee was withdrawn. He's now facing a second complaint, which, as far as I know, has still not been resolved. And the very fact that people are having to answer for statements that they've made—statements of belief in public—having been put to the expense and the inconvenience of having to appear before these commissions, is an example of that. They're the four that I'm aware of. I'm not aware of any others in any other jurisdictions, because Tasmania, at this stage, is the only one that has an 'insult and offend' law, if I can categorise section 17 as that.

Senator PRATT: I might put some questions to you on notice with regard to that, because I know we will be short on time. Chair, do I have time to take the call?

Ms HAMMOND: I have now finished, Chair.

CHAIR: Thank you, Ms Hammond. Senator Pratt, over to you.

Senato r PRATT: Thank you very much. I want to ask the views of both of you in relation to a protected attribute and the extent to which—for all attributes—there should be some capacity for people to have their own statement of belief about that, whether it's within or without a religious context. I'm still somewhat confused about why a statement of religious belief needs privileging over other statements of belief, noting that a belief about an attribute, for example, might be positive or negative in relation to that attribute but still have a religious foundation to it. There are four quadrants to that question, if you like, and I'm somewhat confused by the fact that this legislation does not resolve those questions on an equal footing.

Dr Tan : Perhaps I could start by saying there are obviously no laws against statements of belief unless they are discriminatory under particular antidiscrimination legislation. Once something is discriminatory under antidiscrimination legislation, I would have thought, in most cases, that should be unlawful.

Senator PRATT: Right. And so, in that context, why do we need a statement of belief that is able to be discriminatory, versus someone, on a secular basis, saying, 'Well, my statement of belief about sexuality is not protected, when a religious statement about it might be protected.' Why do you not have the same view as the public affairs—

Bishop Stead : To my earlier point, I still maintain that statements of belief which meet all the other tests in clause 12 are not discriminatory. I'm not arguing for protection for genuinely discriminatory statements of belief.

Senator PRATT: Okay. I guess my question then is: why not all statements of belief, rather than just religious statements of belief, or perhaps all statements of belief about personal attributes or all statements of belief about—

Bishop Stead : I think the answer is: only because—

Senator PRATT: The same protections.

Bishop Stead : I think the answer is: only because we're in a religious discrimination bill As a matter of principle, I fully support the idea that all Australians ought to be able to make non-vilifying, non-malicious, good-faith, reasonable statements of personal views without being subject to section 17 of the Anti-Discrimination Act in Tasmania or something equivalent to it.

Senator PRATT: So why do we have a bill, therefore, that's about protecting not just religion as an attribute but also these beliefs? How do you reconcile the idea that for employers, for example, it might be all very well for a religion to be able to make that statement—and I'm not necessarily saying that it is okay—but that, therefore, even in a workplace you'd get statements belief that are not on a level playing field, even outside a religious institutional context? Dr Tan might also like to comment on that.

Bishop Stead : I think my answer is the same, which is that this is a religious discrimination bill and the government has been very clear that it's not contemplating something wider than that. It's not trying to protect the full orb of thought, conscience and belief protection. It's not protecting freedom of expression. It's because of the limited scope of this bill. But, to the point, it's because it's addressing a particular harm. There have been examples of people whose religious speech has been shut down or people who have attempted to use tribunal processes to shut down religious speech. Therefore, that's what's being responded to here. This bill is responding to a particular pressing issue.

Senator PRATT: I understand the way that's been framed, but I guess the question is in relation to attributes, where a statement of belief about an attribute is protected if it's of a religious nature but not if it is of any other nature. It's very perplexing in relation to how we can have rights that sit alongside each other. Dr Tan?

Dr Tan : I think the proposition is that there shouldn't be that distinction between religious and other types of statement of belief. But the difficulty we have is, in fact, that this a religious discrimination bill. That's why I would prefer having some form of consolidated legislation or a charter of rights though which you can look more consistently across a range of different attributes and issues. I will just add that I suppose the difficulty with the issue of frivolous claims and tying people up is that, unfortunately, in the law one sees a lot of that.

Senator PRATT: I know.

Dr Tan : It is not necessarily just religious matters but everything. You can't legislate against frivolous claims.

CHAIR: Thank you, Senator Pratt. We are going over to Senator Rice.

Senator RICE: Thank you both for your submissions. Dr Tan, I just want to expand on what you just repeated there: that you'd prefer to see a charter of rights rather than this approach. You said in your submission:

Given the piecemeal nature of anti-discrimination laws, it is essential that such laws protecting against religious discrimination are designed in in a way that is consistent with the operation of other anti-discrimination statutes and do not derogate in any way from those protections. It is essential to protect all human rights of vulnerable people.

Could you just expand on why having a charter of rights would be a better approach?

Dr Tan : Because you'd be able to look at all human rights in the same context. We're talking about human rights as being indivisible, and therefore there needs to be some form of consistency where you can try to protect all the different types of human rights rather than chopping them up and having to look at different pieces of legislation. Even with religious freedom, that's an important right, but, under article 18(3), it's subject to the fundamental rights and freedoms of others. So you need to have a system where all of those can be adjudged together.

Senator RICE: Going particularly to the difference that you and Dr Stead have on section 12 as to whether it's actually going to allow overriding other rights—Dr Stead was saying, 'No, it's not going to do that'—would that sort of problem be fixed if you had more inclusive, integrated legislation?

Senator O'NEILL: Properly planned and consulted on with the states.

Dr Tan : It might be easier if that section was removed altogether; that's my point of view.

Senator RICE: Essentially, you wouldn't need a section like that if you had integrated antidiscrimination legislation.

Dr Tan : One would hope not. It depends on how that legislation is drafted.

Senator O'NEILL: Senator Rice, can I ask a clarifying question of you. When you talk about a bill of rights, are you wrapping up in that harmonising of the laws across all the jurisdictions? Are those two things separate or the same in the way you just asked that question?

Senator RICE: I think we need to have that discussion as to what a charter of rights would look like and whether it would harmonise across state, territory and federal legislation.

Mr PERRETT: We tried that about 10 years ago, as you might recall!

Senator RICE: Dr Tan, you feel section 12 needs to be withdrawn. Can you talk about what you see are the risks of legislating in this piecemeal way, compared with having integrated coherent antidiscrimination legislation or a charter of rights?

Dr Tan : From my point of view, risk may not be the issue so much as the inconsistency behind it all. One of the complaints we made is that the Australian Law Reform Commission's looking into exemptions relating to the Sex Discrimination Act should have included any exceptions here as well, because there needs to be consistency across the board. We talked about this situation: is someone discriminating on the grounds of sex or are they discriminating on the grounds of religious belief about sex? They tend to be wrapped up together. The risk in terms of worrying about cost and factors like that is that one may be dealing with two completely different processes over the same set of [inaudible]

Senator RICE: You note in paragraphs 40 and 41 of your submission:

… it may be possible for existing students at a religious school to be expelled or penalised for their religious beliefs … if such conduct is in accordance with the doctrines, tenets, beliefs or teachings of the religion.

…    …   …

… the ability to dismiss or penalise teachers for their religious beliefs, which also may change after they were employed, is too severe.

If we had that integration, you would be able to weigh these up more appropriately; is that what you're saying?

Dr Tan : It is.

Senator RICE: Finally, you also note in your submission:

… most Anglican bodies like schools, welfare agencies, aged care facilities and the like have no intention of discriminating against people on the grounds of religion in provision of services …

Firstly, do you know of some Anglican bodies that do discriminate, given that you said 'most'? And do you have concerns that the provisions of this bill will apply to all religious organisations, not just Anglican ones?

Dr Tan : I'm not aware of any that want to discriminate. The difficulty with the term 'discrimination' is it also picks up preferences. We need to be able to enable preferences without allowing general discrimination, and, in terms of services, be able to preference people from a religion within schools or within aged-care homes, because people need to have facilities of worship and pastoral care. There's the section 10 special-needs situation, but I suppose it's not that clear what a need is. Therefore, a more widely framed clause might be better.

Senator RICE: Are you concerned about the ability of other religious bodies to discriminate in their services under this legislation, even if the Anglican bodies aren't doing that?

Dr Tan : Yes, that is a concern.

Senator RICE: One last question to Bishop Stead, on the discussion I've just been having with Dr Tan about support for a charter of rights: does the Sydney diocese have a view as to whether a charter of rights, rather than this type of legislation, would be an appropriate way to go?

Bishop Stead : We are concerned that the complexity of that exercise should not be underestimated. The fact is that it was 10 or 11 years ago that the then Labor government attempted to consolidate the federal antidiscrimination act before there was a religious discrimination bill, and then had to ditch it because it was too hard. It is very complicated. We've been talking about a religious discrimination bill since 2018, since the Ruddock inquiry, and it's taken this long to get where we've got to. My concern is that any attempt to pursue a charter or an integrated antidiscrimination act is going to so delay the protection of religious discrimination that it's, if I can be blunt, kicking it off into the long grass rather than dealing with the issue as it presents.

Senator O'NEILL: To both of you initially: do you support the passage of the legislation with amendment or without amendment, or do you oppose the passage of the legislation? Perhaps Dr Tan first.

Dr Tan : We support the principle of the legislation but not the particular form. We would support the passage of a substantially amended legislation.

Senator O'NEILL: Bishop Stead?

Bishop Stead : We would support the passage of the legislation with minor amendments. In our submission we highlight three very minor changes which I think are uncontroversial. I think they're actually drafting errors as much as anything else. We'd certainly like to see those things fixed. We'd make three other suggestions which, again, are in the 'nice to have' rather than 'have to have' basket.

Senator O'NEILL: I thank you both for the very careful submissions you've put. Like other colleagues, I indicate how potentially difficult this might have been for you to appear together, but how powerful it is to see that there is a range of views within the different faith traditions yet common shared values and beliefs enough to identify under the same banner that has accommodated for centuries.

My second major question is to section 12(1)(c). You'd be aware that there are concerns in the community that that particular section might then be adopted by a government and used to water down section 18C of the Racial Discrimination Act. To allay those concerns, which are quite strong in the community, would you support an amendment to prohibit the government from prescribing section 18C by regulation?

Bishop Stead : I wouldn't be opposed to that. I would prefer to see a legislative override in a rewritten 12(2) that actually overrode inconsistent state and territory legislation that makes a moderately expressed statement of belief an offence however framed, and therefore you wouldn't have to prescribe section 17(1) of the Tasmanian act, because you actually enshrine the principles at a federal level and that would then also protect 18C.

Senator O'NEILL: Thank you for that. Dr Tan?

Dr Tan : We have concerns about section 12 as a whole, but certainly if it were to remain we would prefer to see section 18C protected, so not able to be prescribed. The difficulty with that is that you're protecting a particular section, and legislation will change from time to time. It's difficult to just say that one particular named section is to be not prevented from being prescribed.

Senator O'NEILL: Thank you. Finally, I know that in our last hearing we had evidence from Christian schools that they been advised by the Prime Minister that there was actually no deal that had been done between the Prime Minister and members of his backbench, including Dr Katie Allen, Mr Dave Sharma, Ms Angie Bell and Ms Fiona Martin, with regard to the Sex Discrimination Act section 38(3). I have been asking participants in this public conversation—and I know that you do confer with the Attorney-General and other members of the government in helping them consolidate their views around this issue—do you know the truth? Is there a deal with the Liberal backbench or is there no deal? What have you been advised by the Prime Minister? Bishop Stead?

Bishop Stead : I can't provide any more information to you than what's already on the public record. We know what you know from reading it in the newspapers. We haven't had any guarantees one way or the other from the Prime Minister or from the Attorney-General about 38(3). For the record, our view is 38(3) shouldn't be repealed in its entirety because it goes too far in seeking to address the presenting problem. If there needed to be a particular restriction that says that a school can't expel a student on the basis of their sexuality or gender, that is fine, but taking out 38(3) would have unintended consequences that would go much wider than that.

Senator O'NEILL: So to be clear, you think there could, within this legislation, be a carve-out, particularly for students, and to deliver that in a timely way because they have been waiting already for a long time?

Bishop Stead : No, not in the Religious Discrimination Bill. Are you saying in the consequential amendment bill?

Senator O'NEILL: Yes.

Bishop Stead : If that has to be, it could be. My preference would be to wait for the ALRC to do that work because it is a bigger question. But yes, if there needed to be a very targeted restriction to 38(3) then having it within the consequential amendment bill would be acceptable.

Senator O'NEILL: That was very clear and helpful. Finally, Dr Tan, what is your response to that same question?

Dr Tan : We obviously believe it is something that should be in the subject of an AMRC response. In response to the earlier question, we have no knowledge about what the government's deals are but we certainly would like to see amendments to section 38 but they need to be done properly. We await the Law Reform Commission's response on that.

CHAIR: Thank you for appearing before the committee today and for giving your time. The committee requests that answers to questions taken on notice are provided to the committee secretariat by close of business 20 January 2022.