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Joint Standing Committee on Foreign Affairs, Defence and Trade
Status of the freedom of religion or belief

BANKS, Ms Robin, Private capacity

CROOME, Mr Rodney, just.equal and Tasmanian Gay and Lesbian Rights Group

HILKEMEIJER, Ms Anja, Private capacity


CHAIR: Welcome. I indicate that, in addition to Senator Singh and Mr Zimmerman, Dr Aly is on the phone from WA. I invite you to make some opening comments.

Ms Banks : I did make a submission to this inquiry in my previous capacity, as Anti-Discrimination Commissioner for Tasmania. You should have received that back in January last year. Really I want to address the introductory remarks in that, and say that I think it's really critical that in Australia we find the balance in relation to all of the international human rights that are recognised in the core human rights treaties. I identified in that submission that the two that appear to be most engaged and exercised in this context are the right to equality and the right to freedom of religion, thought and belief. That is article 2 and article 19 of the International Covenant on Civil and Political Rights.

I want to take a step back and say that, in recognising international rights, what we recognise is that the United Nations and its member states, including Australia, have identified that those rights are indivisible, so all of them need to be protected and fulfilled if people are going to enjoy all of the benefits of human rights and participate fully in democratic society. The United Nations has talked about the importance of human rights to democracy, to flourishing democracies, and that's really how I come at this, from that perspective.

It's clear in that international treaty that the right to freedom of thought, religion and belief is understood to be about the right to worship and to come together with others in worship and to exercise one's religious beliefs in that way. It doesn't permit the imposition of religious beliefs on others, and it is constrained in the international treaty by protection of other rights, so it can't be exercised in a way that infringes other rights, just as freedom of expression can't be exercised in ways that infringe other rights. That's an important context.

It's also interesting to think about the history of why we have any of the rights really, but particularly freedom of religion and belief, and that is that these documents came out of the Second World War, as the sort of catalyst for international recognition and protection. It was a war in which at least one state oppressed religious minorities—Nazi Germany in relation to the Jews—and so there was the recognition that states and the powerful shouldn't use that power to oppress those who are minorities within their community, whether they are religious minorities or other forms of minorities. That's where I think we also see the relationship with the equality right. They actually go together, because they're about the right of everybody to live good lives and to flourish and have equal opportunity. So, that was Nazi Germany. At the same time, Christianity was being oppressed in the Soviet Union, and that must have caused some very interesting debates at the United Nations about including this right in the form that it's in there. We continue to see states or countries oppressing religious minorities—for example, the Falun Gong in China, and groups in parts of the Middle East who are subjected to various internecine wars. Even within religions you see that oppression happening. So, it is critical to understand it as a protection against the overreach of government and the oppression of minority groups by either other religions or the state.

The important thing, when you look at freedom of religion, is: to what extent do we protect those minorities in Australian law? In Tasmania the Anti-Discrimination Act provides for protection against discrimination on the basis of religious belief, affiliation and activity. I think that's a really important protection. It's been used. As commissioner, I've certainly received complaints from members of religions who felt that they were being discriminated against because of that belief or a manifestation of that belief. Fortunately I think all of those complaints managed to be resolved through the internal process that we have in the discrimination law.

Those complaints are always useful, because often people who are the respondents to complaints haven't thought about the impact of their behaviour on somebody. One of them was about requiring a person to work on effectively their religious day. The employer simply didn't understand what the problem was. When it was clarified to them through the complaint process they were able to find a way to manage that conflict between the freedom and their employment obligation. I think discrimination law is a very good tool for dealing with these issues and finding a way through the problems.

It is critical that we have discrimination protection at all levels. At the moment of course we don't have it at the federal level, and I think that's an absence that causes problems. I suspect if we had had religious discrimination protection under federal law in the past that some of the debates we're having now would be less likely to have arisen, because things wouldn't have felt so out of whack—I guess this is how people feel the situation is.

I think the balance under Tasmanian law is right. I think we've got the right balance. I don't think there needs to be anything more. To do something more would be to privilege one of those rights over all of the others, and I think it's critically important not to say any group in our society is above the law. No matter what your beliefs, you're part of a secular, multicultural and multifaith society, and it's critical to ensure that whatever our beliefs are we understand that the law is the founding document—not just the Constitution. The law that is built by our parliaments is the way in which we manage complexity and diversity.

For me, going beyond what exists in discrimination law and what should exist federally to special protections and even some of the exemptions in discrimination law in other jurisdictions causes me concern. I've watched some of the cases where the question of religious doctrine gets investigated, and they're very complex. They can go on for years, and in fact several of them have. It raises the question: what beliefs? What is a belief that should be protected by law, or should have a privilege by law? If it's simply religious beliefs, how do we argue that under the international framework, because the international framework protects freedom of belief more broadly. If we say it's religion, how do we define religion? There's a lot of complexity in that. Do we say it doesn't matter what the religious belief is—orthodox, unorthodox, et cetera? How do we do that in a society that we say is governed by the rule of law and where we are all expected to obey and be bound by the same laws?

I think we need to be very careful about going any further than discrimination law protections. I think it raises the spectre of privileging some groups over others, whether it's one religious group over other religious groups or one group in society, people of faith, over people who are not of faith. That would be my opening position.

CHAIR: Thank you, Ms Banks. Mr Croome or Ms Hilkemeijer.

Mr Croome : I'll speak briefly. I just have five quick points. The first point is that we need to be very clear what we're talking about when we talk about religious freedom. My understanding and I think the understanding of most Australians would take us back to the wars of religion in Europe, where Europe emerged from those wars with a deeper understanding of the need not to discriminate or foster intolerance towards people because of their religion, and at least back to the 19th century in Britain, where Jews and Catholics were emancipated from legal discrimination. That definition—we can call it the Enlightenment definition—is that we should not disadvantage or discriminate against people because of their religious faith. That's a value that's deeply embedded in our culture and one on which I think we would all concur. At least in the view of many LGBTI people in Australia and across the Western world, that term has changed its meaning in the last 10 or 15 years. It's changed its meaning from not discriminating against people because of their faith to allowing discrimination in the name of faith against others. This is of course what many LGBTI people and our friends and allies are concerned about—the use of religion as a justification for discrimination in business services, in employment, in accommodation and in a whole range of other areas. It's that very different definition of religious freedom that I would contend is something we should distinguish from the first and not accept as legitimate in Australian society.

In terms of finding the right balance between the traditional understanding of religious freedom and the rights of minorities to enjoy equal treatment, I concur with Robin that the Anti-Discrimination Act does strike a very good balance. Not only does it have strong provisions against religious discrimination, which Robin described, but, in terms of the rights of religious organisations, it doesn't directly or explicitly allow discrimination against lesbian, gay, bisexual, transgender or intersex people. What it does allow is discrimination on the grounds of religion. But, in the legislative amendments made to that act over the last 20 years, it's been very clear that when religious organisations have been granted that right to discriminate on the grounds of religion—let's say a Catholic school being able to discriminate in favour of teachers who are Catholic rather than Protestant or Islamic or Jewish—that does not extend to discrimination on the grounds of sexual orientation or gender identity or intersex status. The Tasmanian parliament has said that time and time again. I think, because of that very good balance in the Tasmanian Anti-Discrimination Act, we should see that act as a model nationally when it comes to removing those existing exemptions which do explicitly allow discrimination by religious organisations against vulnerable minorities.

I think a majority of Australians concur with the balance that's been struck in Tasmania. I draw your attention to a YouGov Galaxy poll that was conducted last month which looked specifically at this question of whether the law should allow discrimination against LGBTI students or teachers in faith-based schools or in other faith-based organisations, and the answer overwhelmingly was no. Four out of five Australians said no to that and didn't believe that faith-based organisations that were allowed to discriminate should receive public funding. The right way to ensure that the same balance prevails nationally is, as I think Robin was saying, to have an instrument nationally that prevents religious discrimination, or a religious discrimination act, and also a human rights act that allows us to ensure that, going forward, a proper balance is struck between the different competing rights that we're talking about.

To end I'll just talk about the situation overseas. In many different countries around the world there is discrimination, legal discrimination and persecution against LGBTI people, too often in the name of religion. We've seen that in Russia, where the parliament, the Duma, passed laws about 10 years ago to prevent the so-called proselytising of homosexuality, which was something that the Orthodox Church was firmly behind and pushed very strongly. We saw it in Uganda, with debate about laws to increase the penalties for homosexuality, potentially even to the point of the death penalty, which was backed by evangelical churches in Uganda. Fortunately, that hasn't been passed yet. And we've seen it in Indonesia, where advocacy from some Islamic groups has led to a debate about reintroducing jail terms for homosexuality where they currently don't exist in that country.

Australia has a really important role, particularly in terms of the Commonwealth of Nations and the Asia-Pacific region, to advocate against that persecution and to advocate against that persecution in the name of religion. Australia has a proud record in that regard. We have advocated against persecution of sexual and gender minorities at the United Nations at a multilateral level since the early 1990s. I think we could lift our game when it comes to our bilateral relations and the human rights talks we have with our neighbours and other members of the Commonwealth. Perhaps most important of all is leading by example. If we allow further discrimination in the name of religion in Australia, then what message does that send to those countries where this persecution is occurring and seemingly increasing? It sends a message that it is acceptable. We should not be sending that message. Instead, we should do our best to model a balance between the rights of vulnerable minorities, the right to equality for those minorities—sexual, gender, religious or cultural—and freedom of religion.

CHAIR: Thank you, Mr Croome. Ms Hilkemeijer.

Ms Hilkemeijer : I'll just make a very brief statement. I know you have been listening for a while. I'd like to first of all thank the committee for the invitation to appear today. I'm a lecturer in law at the University of Tasmania, with teaching responsibility in the areas of constitutional and international human rights.

I've been following the work of this committee and I know that it has received submissions and proposals for legislative reform to better protect religious freedom in Australia, and I know from reading the transcripts of recent hearings in Sydney and Melbourne that the committee is interested in what such legislative change would look like and what any unintended consequences might be. My submission relates only to proposals that would allow businesses to refuse to provide goods and services where that accords with a core belief. I've only looked at that aspect of it.

These proposals—and I've tried to look at them all—come in many shapes and sizes. Some are extreme—for example, that people be exempt from any law on the basis of any conscientious belief. Some are highly specific—that there be a right to refuse to provide products that involve some artistic expression. And some are more nuanced—that there be a right to refuse goods and services except where this causes concrete hardship. Some proposals are based on variations of article 18. There's what I call an article 18 minus proposal, which removes the government's right to place reasonable limits on the practice of religion. There's an article 18 plus proposal, which would add a personal right to engage in any act or failure to act. Finally, there are proposals using the language of proportionality—namely, that goods and services may be refused where this is capable of being considered reasonably appropriate and adapted to protecting or advancing freedom of religion and belief.

My submission is that a law that allows businesses to refuse to provide goods and services because of a conflict with core beliefs is not supported by article 18 of the ICCPR and is inconsistent with the object and purpose, as well as the structure, of the covenant. I've looked in great detail at the law, particularly the jurisprudence in other Western liberal democracies that apply human rights frameworks. I've concluded that to allow such discrimination would be a radical departure from the law and practice in other Western liberal democracies. It would also be unlikely to be supported by the external affairs power and possibly place Australia in breach of its international obligations. In my written submission I outline some reasons for this, and I am happy to answer questions.

CHAIR: Thank you very much. I will kick off the discussion before my colleagues come in. Ms Banks, you, I think, in my view, correctly asserted that, if you look at the origin of the Universal Declaration of Human Rights and then, subsequently, the international covenant that arose out of the various activities in the Second World War, particularly by one country, were there to protect the individual against the state, and that the challenge these days, decades later, seems that, in a country like Australia, it's less the individual versus the state, and this tension where individuals are asserting different rights and they come in conflict with each and how we best resolve that conflict may be different in other countries. Mr Croome makes some good points about what is happening in other places. But at least for Australia and probably most Western countries like Australia, it's a different issue.

I took it, from what you were saying, that you believe that, if there was Commonwealth anti-religious discrimination legislation along the lines of what's in Tasmania, that would help to better balance the situation. Obviously, there's a range of approaches that could be taken. If we start from a point that, at least at the Commonwealth level, there is probably an inadequacy at the current time—and that's the evidence before the committee, which we reported in our interim report. Why do you think that that approach—in trying to teach the best way forward—is better than, say, a standalone freedom of religion act or a freedom of religion association and speech act or even a charter of rights such as in Victoria or the Human Rights Act in the ACT? There's a range of options. Based on your experience here, you are obviously in favour of one, and I just want to try to understand why it's better, you believe, than the others.

Ms Banks : I shouldn't have discounted of a federal human rights act. I have been through, I guess, very long and painful discussions about a federal human rights act. I would love to think it was on the cards but I don't think it is. I think that we will continue as a nation or as a body politic to resist that, unfortunately. I am part of a campaign here in Tasmania for a human rights act, and I believe that it is actually the best outcome. So for me the ideal is that we have a human rights act which teaches not only the politicians but also the people of Australia about balancing rights and about how to deal with it when rights come in conflict, and then things like antidiscrimination laws would sit beneath that as the detailed implementation of one of the rights in respect of minority groups. So, yes, I do think a human rights act is the best overarching—

CHAIR: An argument that is put is that, simply to have a religious antidiscrimination law—however you want to phrase it—is in effect propounding a negative right rather than a positive right and that if all these rights are meant to be somehow coexisting they should be on the same kind of positive rights level. That is what I'm trying to tease out.

Ms Banks : And I would agree. In fact, I have always argued that part of the problem with the existence of discrimination law in the absence of a human rights charter or bill is that what we see is negative rights protections rather than a positive right, and the antidiscrimination protection doesn't go as far as the idea of a right to equality, which exists under international law. So people think that it's a right to equality but it's not quite the same thing, and you are right to make that point. Indeed, I think a full charter of rights that recognises in Australian law all of the rights that Australia has ratified under international conventions as a state party should be in that charter. That would be my preferred approach. I think then below that you have other laws, like privacy law, discrimination law and criminal law, that deal with some of the specific details of the negative part of the rights protection.

CHAIR: Again, so I understand: when you are saying a 'charter of rights' are you referring to a charter of rights along the lines of the Victorian charter of rights? There is a distinction between—well at least in my mind—a bill of rights, as in the American situation, versus a charter of rights that can be drafted in different ways.

A court might have an advisory role rather than a definitive role in terms of determining what the outcome is.

Ms Banks : In my view, the Victorian charter doesn't go far enough, because the UN has consistently said rights without remedies are not rights. There needs to be some mechanism for having remedies awarded where people's rights are infringed, and the Victorian charter doesn't do that in an express way. I'd look to the original Canadian bill. The first iteration of human rights in Canada was a legislative bill of rights—it's confusing; the words don't really have meaning—which subsequently changed into—

CHAIR: A charter of rights and responsibilities, as I recall.

Ms Banks : Yes. They now have a charter which is a quasi-constitutional document. The bill was simply legislative. As a human rights advocate, I would say that I think that, in the distant future, the possibility of quasi or constitutional protection is something we should consider if we believe these are core values of democracy. However, I don't think Australia is ready for that and I accept that we need people to become familiar with human rights, and I think the only way that will happen is through enactment. It's been a long debate in Australia where we say, 'Let's not do that until people understand rights,' but I don't think people engage in conversation about human rights in the absence of it having any meaning in law in Australia. It's unfortunate, but I think that's what we've seen time and again.

What's recommended for Tasmania came out of a Law Reform Institute report which is now 11 years old. It included much of what's in both the Victorian and ACT legislation but with a recommendation for some form of remedial protection, because, without that, as the UN says, they're not real rights. In all other areas of law where we give people rights, we tend to say, 'If your right is breached, you can do something about it.' I think that's the only shortcoming of the Victorian model.

CHAIR: Anne, do you have any questions?

Dr ALY: I just have a couple of questions. My first question is a little bit philosophical. One of the things that I think we've been seeing through these hearings is how we define religion within this whole discourse and, of course, within any kind of law that needs to be chartered or legislated. One of the issues is that there are two kinds of approaches to religion. One is a narrow approach to religion which sees religion as something that is wholly within the private domain. It is almost a spiritual view of religion, where it can be completely in the private domain and therefore has a separation of religion from state. What I think we've been observing particularly over the past few years and what has come to a head through the discussions that we've been having with this inquiry is that there is another, broader view of religion as it not just being contained within the private or spiritual domain but something that also impacts on public life. I don't know that that's come out in the discussions, but I think the discussions have a view of religion being either narrow and spiritual or broader. Is that something any of you would like to comment on in particular with regard to how we navigate those perceptions of religion and how people view religion for the purposes of antidiscrimination?

Ms Banks : In terms of discrimination law, when I was commissioner I certainly treated it as genuinely held private belief. It's tricky. I wouldn't necessarily say it's narrower, but certainly private domain and spiritual would be the characteristics that were enough to get into the jurisdiction, because there is no definition of religion in discrimination law. It's interesting because discrimination law generally protects individuals or groups of individuals rather than institutions. I think that's the other distinction that can be drawn, and it applies at the international level as well. I think what the international law protects—and I would love Anja to talk about this as well—is personal belief and the manifestation of that personal belief. It doesn't seek to protect the institutional structures of religion, which I think are quite a different thing. For me it is very much about protecting personal religious belief.

Dr ALY: Thank you.

Mr Croome : I will talk about it at a cultural level. My partner is from Latin America, and I remember his surprise, when he arrived in Australia, at the extent to which the views of religious leaders figured in public debate. They figured much more prominently than they did in his country of origin, which is quite a Catholic country. I think that's indicative of the extent to which Australians accept that there is a really important role—

Mr ZIMMERMAN: I'm not sure every Latin American would agree with that view.

Mr Croome : Not at all; of course they wouldn't. But I think it's indicative of the great forbearance and value that Australians have, even if they don't agree with religious leaders, for religious leaders stating their views and having a role to play in public life and for the respect that as a nation we give to religious leaders and faith communities. But allowing, accepting and valuing the role of religion in public life is not the same as legally allowing discrimination against, say, lesbian, gay, bisexual, transgender and intersex people in commercial transactions, employment, accommodation or education.

We have antidiscrimination law in Australia because we believe in equal opportunity. Everyone should have the same opportunities in life in core areas of life, including the areas I just mentioned—employment, education, housing—and we shouldn't be rolling back those laws in the name of religion, because those laws have been so useful for us and so important for us in creating a more tolerant and inclusive society. So I believe the questions we are dealing with here are two very different things. The role of religion in public life is highly valued in Australia, but Australians also highly value the antidiscrimination laws that help foster a more inclusive society.

Dr ALY: Thank you.

Ms Hilkemeijer : If I could add a few words: of course, the ICCPR and article 18 in particular doesn't draw any distinction between the expression of religion or belief in private or in public. There is a general right to practice your religion and belief, and the distinction is not relevant. What does happen in the public sphere, however, is that governments are entitled to enact laws of general application, including laws that balance the need for equality protection against freedom of religion, and I think that's where the clash happens. But, as a matter of international law, the right to practice religion and belief does not depend on any distinction of that kind.

Dr ALY: Okay. I have one other question. The discussion to date predominantly has been around the Christian religion and LGBTIQ rights. What other scenarios, implications or examples have you seen or can you give that might contribute to the debate from a different perspective or the same perspective?

Ms Hilkemeijer : I want to say very briefly that I have come across some other examples in my research—particularly cases in the UK. One of them concerns the protection of a belief in English nationalism. Someone had made statements contrary to an employer's code of conduct. He was sacked and he said in his defence that those statements were an expression of his belief in English nationalism. I've also come across a case, in the employment context, of someone whose core belief around living his life in order to prevent or reduce human contributions to climate change prevented him from being moved to another place, because he lived his life without producing any carbon. That was also upheld in an employment tribunal. There have been many cases of belief where people have claimed that a right to belief entitles them to a departure from the general law.

Dr ALY: Thank you.

Ms Banks : Another significant issue that Australia has dealt with and continues to deal with largely through the criminal law is the practice of female genital mutilation, which of course is purported to be a religious practice and which we say is not acceptable to have performed on girl children at any age—and probably adults as well. We have dealt with that in the criminal law, where we said it really doesn't matter if it's a religious practice; it is not an acceptable practice in a modern Australian society. I think there are probably dozens of other examples, but that's one where I think the vast majority of people agree that it was a completely appropriate restriction on religious belief being manifested.

Dr ALY: Thank you.

Ms Hilkemeijer : The point with that and with many of these is that they are the manifestations of belief that affect a person who doesn't choose them. It's the imposition on somebody else's rights, and I think this is where there is the conflict that we talk about in terms of religion and people who are same-sex attracted. It's to what extent your religious belief should trump somebody else's right to live their life unharassed or persecuted and their right to equality, because all should be protected from conduct that targets in that way.

Dr ALY: Thank you.

Mr ZIMMERMAN: I have a couple questions. The first one flows in some respects from Dr Aly's questions. The convention doesn't distinguish between belief and religion, but much of our focus has been on religion. I'm wondering whether you believe that, in any enactment of, for example, amendments to a federal antidiscrimination law, the remit has to be both, or does that take us into an area which is going to cause more problems than it's worth, to put it frankly?

Ms Hilkemeijer : As a matter of constitutional law, the court has stipulated a number of conditions for the exercise of the external affairs power to implement a treaty. One of those is that the obligation must be reasonably specific, which this is, but also that it be implemented in a way that's reasonably appropriate and adapted. So there could be an argument that an implemented provision relying on article 18 that took only religion and left out belief would not be a reasonably appropriate and adapted form of implementing that obligation.

Mr ZIMMERMAN: So you're saying that any federal legislation would have to cover both belief and religion?

Ms Hilkemeijer : I think Professor George Williams said last year to this committee that the safest thing from a constitutional point of view would be to enact article 18 in its entirety. It has been the practice of parliament in the past to stick as closely as possible to the words of the obligation in the treaty. It would be at least more dubious that the court would uphold a provision that only takes part of the words of article 18.

Mr ZIMMERMAN: My second question was to you, Ms Banks, in your blissful retirement as the commissioner. Because it has such national prominence, I'm wondering whether you would like to comment on the Porteous case and its implications to the debate about religious freedom.

Ms Banks : Certainly. I think that I provided a summary that was agreed between the parties. It's a long time ago now. But certainly there is a summary that the parties agreed could be provided publicly because of the level of interest. Every time I hear about that case in public reporting and elsewhere, I'm concerned about the misrepresentation of what happened, including the way in which my office conducted the complaint. You could have been left thinking that our process is incredibly oppressive. It isn't. I received a complaint. It named the Australian Catholic Bishops' Conference and Archbishop Julian Porteous as the respondents to the complaint on the basis that they were the publishers of the material of which a very small amount was alleged to potentially breach the law—not the whole booklet, and Ms Delaney has repeatedly said publicly that she absolutely endorses the right of the Catholic Church to express its views on marriage to the extent that those views don't start to suggest that people who are gay or lesbian are somehow lesser human beings less entitled to equality rights and also where the language of the booklet is potentially stigmatising. So it was two or three sentences of the booklet that were in question.

The respondents were invited to respond to the complaint and asked if they wanted to participate in conciliation. All of the parties enthusiastically embraced having a conciliation, so any suggestion that they were dragged to the conciliation is correct. I have read it reported that the respondents were asked to respond to thousands of pages or hundreds of pages; in fact, in total it was probably 25, and half of that was explanation about process and a copy of the complaint, which included the booklet. So there's a lot of overstatement of what happened.

Nobody is forced to go to lawyers in that early stage of the process. In fact, nobody's forced to go to lawyers ever in the law. If a party chooses to engage lawyers, that's a matter for them. We certainly say to parties, 'We really encourage you to come to the conciliation openly and ready yourself to have the conversation, rather than relying on lawyers as the front of that.' In fact, we discourage lawyers from speaking in conciliation because what we really want to have happen is for the parties to hear each others' perspectives not filtered through the clever words of us lawyers; it tends to interfere with people actually listening with their hearts as well as their minds.

There were two conciliation conferences. I think they were really useful. The parties considered alternative framings of those particular bits of the booklet. In the end, they weren't agreed, and Ms Delaney withdrew her complaint because, as I understand it, she felt that to go any further would really take the issue into a domain that was unnecessary. She felt she'd made her point, which was that she asked the Catholic archbishops and bishops to consider the impact of their words, not only on adults but on the children of people who were the subject of some of those words. She felt there was no purpose in going any further. She didn't seek to close down the booklet in its entirety.

I've also seen any number of reports saying it had a chilling effect on speech. Well, it hasn't had any chilling effect on that booklet; it is still publicly available through a number of websites, and it's unamended. So it clearly hasn't chilled that speech, and I don't think it's chilled any other speech. People have said, 'This sort of legislation interferes with people's freedom of expression.' We could talk about freedom of expression and the restrictions on that as well, which really are that you can't use it to oppress others and you certainly can't use it to undermine or take away the rights of others.

Again, it's a reason to have a human rights charter. People will actually work how to do this balancing work better and understand that my rights end where they start interfering with another's. The criminal law does that every day. It says, 'You can go about and live your life how you want to, but you can't hurt others.' You can't do things that harm others, either by taking their property, by injuring them or by doing a number of other things. We get that in the criminal context, but we don't really get it in the broader human rights context. I think that case was a good example where people said, 'This is oppressive.' Well, it wasn't oppressive. All of the parties had their say and had an opportunity to think about how to resolve it. I think they had an opportunity to think about the impact of that booklet on some people.

Outside of the legal framework, there were a number of other ways in which people expressed their distress about that booklet, including children leaving church services conducted by Archbishop Porteous here in Tasmania. There were school students leaving because they felt, I presume, that his words didn't reflect their life experience. People can do a whole lot of things to express their views. The law is one mechanism that allows us to engage in dispute in a constrained way and in a way that avoids violence—that's really where the law came from originally. I think it's important for people to understand that much of the media around that case misrepresented what happened.

Mr ZIMMERMAN: I would just make the observation that the 'do no harm' principle is frequently not black and white because harm is a subjective concept in many ways. One of the concerns about that case which I think the archbishop subsequently raised was that because the complaint was withdrawn there was no resolution and, therefore, no broader guidance arising from that case as to whether the language is acceptable under the act or otherwise, if I can put it in those terms. I suppose the fear that arose from that is whether other people are self-censoring because they fear a complaint, and there's obviously no clear guidance that emerged from that. How would you respond to that concern?

Ms Banks : I think there was guidance to the extent that the law asks us to think before we act, and it does in discrimination law just as it does in all other law, and to think about the impact my words will have if I express them unfettered. That's actually quite useful guidance. In terms of it having gone to the tribunal, I could almost guarantee that, had that case gone to the tribunal, it would not have ended there and we would have had another sequence of cases that took five, six, seven or eight years. There are two other major streams of cases in Australian law where discrimination law and religious freedom have been in apparent conflict. Both of them went through multiple appeal processes, both of them took a number of years and, at the end of the day, I'm not sure we got answers that anybody was any more satisfied with, and we certainly wouldn't have had an answer in time for the marriage equality plebiscite. It would never have been resolved in that amount of time. It's a misunderstanding. It would have given clarity. I think the American case is a good example of how little clarity you might get from an appeal court. Sometimes they answer the question that they have to answer and everything else is left, and everybody comes out of it saying, 'Oh, okay.' In Australia, where we have seven judges, you could go to the High Court, you could get seven judgements and you could spend another 50 years trying to understand what the core element of that case was. We see that in Australian law far too often, not just in discrimination law but, in fact, in many other areas. You don't get clarity, necessarily, from a court case.

Mr ZIMMERMAN: Is it your view that sections of the booklet did harm in a way that warranted a restriction on religious freedom of speech?

Ms Banks : Are you asking me personally?

Mr ZIMMERMAN: Yes, I am.

Ms Banks : I think they could have been framed differently. I think it would have been really appropriate for them to be framed differently, and it's literally two or three sentences. It would have done no harm to the expression of religious views to frame them differently. Like many things, there are two or more ways to say something that express the same concept and some of those are more harmful than others. Having worked at the Canadian Human Rights Commission and watched how the Canadian courts deal with this question, they ask you, 'If you do have to infringe rights, you do so to the least extent possible. If you need to infringe them, you look for the least infringing mechanism.' I think there were less infringing ways to say what was said and maintain the religious view.

CHAIR: Just on that, I don't think we have a copy of that agreed statement of facts and issues.

Ms Banks : I'll see if I can locate it.

CHAIR: It would be useful, I think, from our perspective.

Mr Croome : Could I add a couple of points? It's important to understand this particular case in the Tasmanian context. Since the act was put in place—

Mr ZIMMERMAN: You're such a Federalist, Mr Croome!

Mr Croome : Indeed I am!

Ms Banks : Aren't we all?

Mr ZIMMERMAN: Not if you come from Sydney! It's the centre of the universe!

Mr Croome : Yes, I think all the jurisdictions are equally important. In this context, there are many cases, going back to when the act was put in place, of people making allegations of hate speech, including against some religious bodies. I recall that Ms Delaney took a case against some advertisements that were placed by the Exclusive Brethren, and she isn't the only one; there are others as well who take cases against advertisements and pamphlets distributed by others. There's currently a case before the Supreme Court by Robert Williams about some material that he alleges is hateful material against gay people that was distributed at an election by someone whose defence is religious freedom. There are many cases and most of those cases have been resolved at conciliation, satisfactorily to all parties involved.

In many cases, the people who published those ads or distributed that material just didn't even consider the possible impact that might have on LGBTI people. From reading what Martine has written about her case, it was clear that she saw it in that context, in that Tasmanian tradition of finding a solution in the Anti-Discrimination Tribunal. She's written that, in the context of the marriage equality debate, her aim was not to stop debate but to foster a better debate, a higher standard of debate, a debate where we could actually talk about the issues at stake without feeling that we were being attacked. Her argument was that she felt that the booklet Don't Mess with Marriage could have been, as Robin said, worded better, in a way where LGBTI people didn't feel that they were being attacked as people. It could have been worded in a way that put the Catholic position on marriage in a far more compassionate, sensible and tolerant form. She was simply pursuing a goal that she and others had pursued before the Anti-Discrimination Commission for the last 20 years, often—in most cases—with really positive results. This other case, with Robert Williams, hasn't gone down that path, unfortunately, but most of them did.

I think a lot of people who have watched that process over the last 20 years were shocked that suddenly there was a national outrage about something which had happened in Tasmania so often and no-one in the past had cared about it on the other side of Bass Strait. It seemed to be part of a broader narrative that had nothing really to do with Tasmanian law or the case itself but was about promoting, like I said earlier, a different, new and dangerous concept of religious freedom.

Ms Banks : Somebody asked about belief more broadly. The Tasmanian act doesn't only protect against discrimination on the basis of religious belief, affiliation and activity; it also does the same in relation to political belief, affiliation and activity, and in that it's quite unusual. So it doesn't restrict it to just one of the concepts of belief under international law. That's important.

I just want to say something else. We're talking here about the freedom of religion coming in conflict with discrimination law. I can conceive of situations where that same religious freedom could come in conflict with defamation law. 'It's my religious belief that I'm entitled to say these things about you because I think you are blah, blah, blah.' Would we ask defamation law to give way? Do we ask other laws to give way to belief in that way? We asked people in defamation law the same thing we ask in discrimination law—to think before you act in ways that cause harm. You've identified that harm is a quite difficult concept, but it is clear from evidence across the globe that discriminatory speech, just like defamatory speech, can cause harm at the time but it can endure quite significantly and it can cause psychological harm for the rest of a person's life. It certainly shapes the person's future.

Too often we think, 'It's only words.' It's not only words. You as politicians would understand the power of words. You use them every day in powerful ways. So I think we need to be careful not to think that this is somehow less important harm than the harm that's done when somebody—

Mr ZIMMERMAN: But we do expect a higher threshold if we're restricting someone's right to free speech.

Ms Banks : Yes.

Mr ZIMMERMAN: In this case, the 18C debate about whether the four criteria—

Ms Banks : Absolutely. We do expect a higher threshold.

Mr ZIMMERMAN: It does harm if you say homosexuality is a sin.

CHAIR: There's a certain robustness, though, about defamation law. It's a while since I've practised, but the classic definition was to cause hatred, ridicule and contempt, and there was a sort of robustness about that. Simply to offend someone doesn't get you across the line so far as defamation is concerned. It's got to be something more than that.

Ms Banks : Yes, and there's got to be something more than that in discrimination law too. I would say in many ways it's as hard to succeed in a discrimination law claim based on words as it is in defamation law, and it's less oppressive. Defamation law is heavily oppressive in terms of the way it's used to shut down criticisms of public figures, and the media hate it for that reason. They're quite concerned about it. So I think we need to be careful not to just talk about discrimination law as one form of law that restricts what you're entitled to say and do. All law does. All law constrains our behaviour in ways that the state has decided is in the public good, so I think we shouldn't just select discrimination law as a problem.

Senator SINGH: A lot that has been covered so far. I might go to Ms Hilkemeijer's submission, which I understand is also the submission you provided to the Ruddock panel?

Ms Hilkemeijer : Yes.

Senator SINGH: You go into this issue of exemptions for individuals in some detail in the submission. I think you say that most other countries do not have exemptions for individuals to antidiscrimination law. Can you provide some examples of these other countries which have antidiscrimination law similar to Australia to see where we sit in that area of exemptions?

Ms Hilkemeijer : I want to say that I had in my statement, but I cut it out, that, together with my colleague Dr Brendan Gogarty and a research assistant, I've just had accepted for publication some research we've done looking at the 29 countries that have accepted same-sex marriage legislation including the United States, which was quite a task, because you've got so many jurisdictions. In that research, we actually found that there are no jurisdictions that allow business exemptions, and that's quite striking. Even in the United States, where the movement in support of such exemption is the strongest, such laws are rare and highly contentious. In my research, we were looking at the cases that have been brought in jurisdictions such as the US, Canada, the UK and under the European convention, where they're some way ahead of Australia in some way, where cases have been brought by people who have argued that antidiscrimination law shouldn't apply to them because of their core belief that doing so would make them complicit in something they believe is sinful. My research showed that, in each of those cases where the courts have applied a general human rights rainbow bill of rights or a charter of rights, those courts have said that equality laws that limit the practice of religion in that way are reasonable and valid. So, in each of those cases, the courts have upheld those laws as being consistent with the international right of freedom of religion or belief. And the most recent case of that was a case of Eweida before the European Court of Human Rights in 2013.

Senator SINGH: So in 29 countries in your research, none of them have—

Ms Hilkemeijer : None of them have it. I also notice, listening to your submissions recently, at the hearing in Melbourne, there was reference made to the Mississippi bill 1503. That is an example of a piece of legislation that allows that. It follows on other pieces of legislation like that. In Indiana, where now Vice-President Pence was governor of Indiana, he enacted a law that expressly allowed it. Within a week, it was repealed because of the national outrage. But in regard to the law in Mississippi, the person giving evidence before this committee said that the court had upheld the bill. That's not correct. The Mississippi bill 1503 was challenged before two courts, and it was dismissed on the ground of standing because the plaintiffs brought that case before the law had come into effect. So there's no doubt that this law will be challenged again. But it's extremely interesting. We looked at all of the jurisdictions in the US and all of the other 29 jurisdictions. None of them have it. It's interesting.

Senator SINGH: To what extent, if any, is it reasonable to allow for religious exemptions in antidiscrimination law?

Ms Hilkemeijer : Robin may want to comment on this, but Australian law already provides considerable exemptions to protect religious freedom.

Ms Banks : And I think Anja and I would disagree on one particular way of dealing with exemptions in discrimination law. Partly, I think, Anja's position reflects a concern about how the particular exemption would be read in Australia. In Canada, they don't have a whole raft of specific exemptions or defences in discrimination law. They have two, and it would be my preference to have two if I thought that people would understand them. This is the problem. One of the two exemptions is what's called a bona fide occupational requirement exemption. You can discriminate against a person in employment if they are unable to perform or do something or if the discrimination reflects a bone fide occupational requirement. So, using a very simplistic example, if you need somebody as a bus driver, then it's a bone fide occupational requirement to have a drivers licence, and there are certain people who can't get drivers licences because, for example, of disability or age. Then you wouldn't be subject to a successful complaint because it's based on a bona fide occupational requirement.

The other one is an equivalent of that in a broader service context, which is a bona fide justification. Can you, in the context of what's being done, justify this treatment? It really reflects the international test, the way it's applied in Canada: when can you infringe on a human right? It has to be justified, it has to be proportional and a whole lot of other things. I would love Australia to go down that track, rather than cherry-picking certain industries that get protection. What we've seen is some groups get protection under exemptions and others don't simply because they're not powerful at the time the discrimination law is being drafted. All of them, in theory, reflect that core principle: can it be justified, is it proportional and is it necessary for good government? There are all those sorts of principles. But the idea, when the former government proposed a single discrimination law at the federal level, was to incorporate what's called a general exemption. The risk is, and I understand this, that some people who currently don't have access to an exemption or a defence would get one. But maybe they should have one now and they simply don't have one because they haven't been in a powerful enough position to argue that their bit of the world, their bit of industry or whatever else should be protected.

Mr ZIMMERMAN: Can you think of an example of that?

Ms Banks : Small business doesn't have a general exemption. If you're a small business, you can't argue that you're doing it because of the nature of your business and it's necessary because you can't afford to do something else. You don't get a defence for that. You do in disability discrimination law. If you can show that doing something would cause an unjustifiable hardship, which is another iteration of the same defence, to not discriminate would cause unjustifiable hardship, then you get a defence, but you don't get it in other areas of discrimination law—race, gender, sexuality or any of the others. So it seems to me that we're well overdue for a really good look at it. I think there was an attempt—but it still didn't get across the line—to really say, 'What is the underlying principle of these exemptions and why do we have them?' If you can show in a religious organisation that, in order to run a school along religious grounds, you need core staff of that school to be of the religion, I don't think anybody would quibble at that. But when you say that every single person employed in a school that's a religious school has to be of that religion—rather than has to endorse the values of the school, because the two are different things—then I think you're going beyond what's reasonably necessary. Does the gardener have to be a person of faith?

Mr ZIMMERMAN: Does the science teacher?

Ms Banks : Can the science teacher teach to the curriculum?

Mr ZIMMERMAN: There's not a black-and-white answer, is there?

Ms Banks : No, there's not.

Mr ZIMMERMAN: The gardener's an easy one to pick.

Ms Banks : But, at the moment in some states in Australia, the gardener has to be a person of faith—sorry, doesn't have to be, but the school can choose to impose that requirement. That's the other thing. These are defences that are not always applied. Not all schools that can exclude people on the basis of religion choose to do so in relation to all staff. They pick and choose when they do it. That seems to me to be an interesting application of principle when you don't apply it consistently. And, unless you can rationally say, 'Well, of course we don't apply it to the gardener because the gardener isn't in the business of nurturing our children's education'—

Mr ZIMMERMAN: Proselytising from the rose bed!

Ms Banks : Proselytising on the ground. But nor should the science teacher be, surely, if we're teaching to a national curriculum that has been—

Mr ZIMMERMAN: Unless you wanted a science teacher who was going to be able to teach creationism.

Ms Banks : But that's not science. You could teach that in a religious class, but you can't teach it in science, because it's not science.

Mr Croome : Well, it's not part of the curriculum.

Ms Banks : And it's not part of the curriculum, apart from anything else, but it's not science. You teach the science curriculum in science classes; you teach religious beliefs in a different place in a school.

Senator SINGH: Would these two Canadian exemptions deal with this?

Ms Banks : I think they do, because of the way people understand them in Canadian law. They've had some fantastic—when I was working in Canada, the year I was there, the Supreme Court made two landmark decisions, one on each of these, on how to apply the test. It's a very sophisticated model and seems to have worked very well in Canada. Canada is a place that has as rich, if not richer, diversity of religious groups in its make-up.

Senator SINGH: But it's often used as a comparative country to Australia.

Ms Banks : Absolutely. Partly because it has had a human rights act for much longer than—well, we don't have one—I think it has a much more sophisticated approach to applying discrimination law in the context of a broader human rights framework, and so reads those defences in that context.

Senator SINGH: Do you have a view on the Canadian exemptions, Ms Hilkemeijer?

Ms Hilkemeijer : Only insofar as, without that sophisticated context, I think introducing a language of proportionality such as is proposed in the wording that has found its way in the submission by Freedom for Faith to the Ruddock panel, but also to this panel—I think it's quoted in your interim report—by Professors Parkinson and Aroney. I have many concerns with that, first of all from a rule-of-law perspective in that that kind of wording is not clear and it takes some time to understand what it means for something to be capable of being considered reasonably appropriate and adept at protecting or advancing freedom of religion, but more importantly, we'd have external affairs power concerns, because this provision is disconnected from article 18. I had some discussions with my colleague, Dr Brendan Gogarty, about this yesterday. It's open to two possible interpretations. One of them is that it's enough to show that your action is reasonably necessary for your religion. That's what it says on its face. If it says merely that, it would not be consistent with article 18.

The other way of reading it is to say that something has to be reasonably necessary for your religion, but in addition it has to comply with that proportionality test in article 18—namely, religion as possibly and reasonably modified for another legitimate purpose, which means you then have two layers of proportionality and two different proportionality tests. The test proposed here is drawn from the constitutionally implied freedom of political communication. The second tier of proportionality test that would apply comes from international human rights law, and they're not exactly the same. It's a hugely complex provision. I find it problematic, because it fails to meet the test I tell my students about: the three key requirements in AV Dicey's rule of law. Law must apply equally to all, but most importantly, the law must be clear. This provision is not clear, and without that sophisticated understanding that has existed for many decades in Canadian law, even though you probably need to be a lawyer to understand that, but more importantly—

Senator SINGH: You're talking about the general limitation clause in Professors Aroney and Parkinson?

Ms Hilkemeijer : Yes, but secondly—there are two possible interpretations, and possibly one that has this multilayered proportionality testing. It's unclear—I think it takes it away from article 18, and possibly a highly complex application. I would say that no lawyer would know what to advise their basis on the basis of this kind of provision. It would be massive and would go to the High Court, and perhaps our High Court, like the Supreme Court of the United States, would try to skirt the issue for as long as it could. It's very difficult.

Senator SINGH: We don't have a religious discrimination act nationally. If we were to have one, what would that look like in Ms Banks's world?

Ms Banks : This highlights the difficulty with federal discrimination law—that is, we have five acts rather than one, whereas all the states and territories have a single piece of legislation. There would be two ways to achieve protection against discrimination on the basis of religion at the federal level. One would be amendments to one of the existing acts, and probably the obvious one would be race, because those two get put together quite commonly—to do what was done in 2014 in relation to sexual orientation, but do it with religion. In 2014 the Sex Discrimination Act was amended to add protection against discrimination on the basis of sexual orientation, transgender or intersex status. That would be the easier way to do it. You already have the framework act in place; you just add religion to that. The other would be to enact a whole new piece of legislation a la the most recent federal act, the Age Discrimination Act. It's not ideal.

I think the ideal is that we do the work of a single omnibus act in Australia, which is what I think pretty much every other jurisdiction in the world and Australia has, but if you were going to do that, I think you'd have to look very carefully at it, because my view of the Age Discrimination Act is that it didn't take the opportunity of being the newest piece of legislation to look at what is best practice now. There are views by some—and I may have expressed this view myself—that the Age Discrimination Act looks terribly like the Disability Discrimination Act with some of the proactive bits taken out and the word 'age' substituted, which is not an ideal way to draft that kind of legislation. I think it would be very much, 'What are we trying to achieve here?' I would say adding religion to race is more complex than adding sexual orientation to the Sex Discrimination Act, because the Race Discrimination Act has a different framing to any of the other federal laws. It was the first, looks very different to the others and sort of predates all of the state and territory jurisdictions in terms of that framing.

Senator SINGH: 1975, is it?

Ms Banks : Yes, it's 1975. It takes the International Convention on the Elimination of All Forms of Racial Discrimination and seeks to enact that in Australian law, which is not what the subsequent discrimination acts do. I don't think there's a simple answer to it. The ideal is that you end up bringing all the acts into one place and add religion in that process.

Senator SINGH: And that's a human rights act?

Ms Banks : Yes—well, it's a federal antidiscrimination act. The human rights act isn't really a human rights act; it's an antidiscrimination law. Sorry for not being simple in the answer, but I don't think it's a simple question.

Ms Hilkemeijer : There's no equivalent international treaty on the prevention of discrimination on the basis of religion to draw upon.

Ms Banks : So you have to rely purely on article 18.

CHAIR: Thank you very much for your submissions and for coming along and discussing them with us today. It has been very interesting.

Ms Banks : And I will locate that document.

CHAIR: Thank you very much, Ms Banks.

Proceedings suspended from 12:17 to 13 : 15