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Thursday, 30 November 2017
Page: 9408


Senator FAWCETT (South AustraliaDeputy Government Whip in the Senate) (18:00): I present an interim report of the Joint Standing Committee on Foreign Affairs, Defence and Trade on the legal foundations of religious freedoms in Australia. I seek leave to move a motion relating to the report.

Leave granted.

Senator FAWCETT: I move:

That the Senate take note of the report.

It's my pleasure as the Chair of the Joint Standing Committee on Foreign Affairs, Deference and Trade to present the Human Rights Subcommittee interim report for the inquiry into the status of the human right to freedom of religion or belief in Australia. We've probably talked more about this topic in the Senate and in public over the last couple of months than we have for quite a few years—since the last report in Australia, which was conducted well over a decade ago.

For me, this in part arose late last year where a motion in the Senate created a Senate select committee to consider the implications for religious freedom should the parliament ever legislate to change the definition of marriage. I was asked by the government to chair that Senate select committee, and we had a group of senators who worked over a number of weeks and then reported in February of this year, having taken evidence from many people. The thing that surprised me as I chaired that committee was the low level of awareness from many in our community about the status of freedom of religion and belief in a legal sense. Also, I would argue, the low level of religious literacy amongst many in our community—even bodies that are established to work in the area of law or sometimes even in the area of human rights—to understand the various governance structures, the importance of religion to individuals and the compulsion, almost, that somebody's religious beliefs have on their conduct—that is, the fact that they're prepared to sacrifice time, money, effort and emotion into it; it's not something which is just a choice.

Out of that, because there was such low awareness, and there were concerns raised around the fact that people contended that we had a very low level of protection at a federal level and that the state protections were variable, one of the outcomes that I took as the Chair of the Foreign Affairs, Defence and Trade Committee was to seek a reference for the Human Rights Subcommittee to conduct this inquiry to have a more comprehensive review of the status of the law in Australia at both the federal and state levels to look at freedom of religion and belief. So Mr Kevin Andrews, who is the chair of that subcommittee, worked with the subcommittee members, again, on a cross-party basis, to take evidence from a wide range of people for that.

What they found was that in Australia, in practice, people have enjoyed great freedoms over the years. In practice, we are characterised as being a free country. But that has been more to do with the social mores that have developed in this nation—the common sense, the accommodation, the ability to live and let live—than legislation in law. I'll table some additional remarks after I have made these few comments that go into a little more detail about that. In essence, it found that there was limited protection in federal law and that the state and territory laws on this matter varied greatly in both nature and effectiveness when it came to religious freedom. They also found that, unlike in many countries in the world, where restrictions on religious freedom come from governments on the basis of having a state religion—and minorities then had restrictions placed on them—or from different religious groupings in a society, the restrictions in Australia most often eventuated where competing rights came into conflict because of rights to nondiscrimination. As we have moved through both the Senate select committee and now the debate in this place around the Smith bill, which was passed this week, many discussions and concerns have been raised around those issues.

At the heart of the issue is the fact that, because section 116 of the Constitution means federally we make no laws around religion—we separate ourselves from that—and because states have varying levels of coverage of freedom of religion but very thorough coverage of antidiscrimination law, with varying thresholds for how that will be applied, what you have is a situation, as we see in Tasmania right at the moment, where somebody can be expressing what we would all think is a valid, normal and legal expression of their religion around marriage or sexuality, for example, yet be hauled before a state based tribunal. We see state based tribunals making decisions that we think defy belief. In Queensland, for example, the antidiscrimination tribunal has found that because St Vincent de Paul—who most people, if you ask them, would say are a religious charity—were established for charitable purposes, and not religious purposes, in the view of that tribunal they're not a religious body, which means that then they don't enjoy the protections in the Sex Discrimination Act drawn from religion and belief that are afforded to religious bodies. It is a complex area of law.

You have seen in the media in recent days that Philip Ruddock has been appointed to look at freedom of religion and belief in the country. I've spoken to Mr Ruddock to make sure he's aware of this report, because it will provide a good basis for him to look at the implementation of the report. Both in the Senate select committee and in evidence given to the Human Rights Sub-Committee, the complexity and the breadth of issues involved means that it's not a simple or quick job to comprehensively legislate for protection of freedom of religion and belief, which is article 18 of the ICCPR. That has a number of implications, particularly the fact that it probably won't happen quickly, which is why a number of people have called, during the debate on the Smith bill this week, for measures more directly limited to the issue of marriage and related to the Smith bill to be legislated. Unfortunately, as we know, those were voted down here.

I think it's important, though, that we recognise that this is an important issue to get right. We've had stability and a large degree of cohesion in our society for many years. You can go right back to the preparatory works for our Constitution: some of our forefathers were agnostic, some were atheists and some were men of faith, but by and large they shared a set of values which have carried through over the decades. There has been very limited conflict in this area. But, increasingly, there are people coming into Australia not only of different faiths but, in particular, different ideologies and ideas that challenge the shared community values that we have had for so long. I believe we need to find appropriate ways—and personally I'm not in favour of things like a bill of rights, but there are three or four different methods—of looking at how, and how much, we implement article 18 into our law. I think we need to look at it. We need to respect the fact that the basis of the stability in our society is that we respect the majority view but we protect the minority so that they can hold, express and advocate for their positions.

So this is a complex area. I'm aware there are people on all sides of the chamber who hold varying views on this, and we need to be able to have this dialogue to make sure that people who hold a view that's different to the majority are able to express that view legally and to be respected for it, even if the mainstream view in the society has moved in a different direction. So I commend this bill to the Senate. I will table the remainder of these remarks, and I seek leave to continue my remarks later.

Leave granted.