The former Tasmanian anti-discrimination commissioner, Robin Banks, has branded the religious discrimination bill “an extraordinary foray in the culture wars” which would license offensive views about women, racial minorities and disabled people.
Banks has joined LGBT advocates and the Greens who have denounced the bill because it overrides federal and state laws by determining that religious speech in good faith cannot amount to unlawful discrimination.
While Labor has so far held fire on the substance of the bill – complaining of insufficient consultation – the Centre Alliance senator Rex Patrick has questioned whether it addresses a real problem.
Religious groups and Coalition conservatives mostly welcomed the laws, but some signalled a desire for further institutional exemptions to federal discrimination laws – the subject of a separate Australian Law Reform Commission inquiry – or a positive right to freedom of religion, which the attorney general, Christian Porter, has already ruled out.
The draft bill overrides all state laws to protect religious speech provided it is not malicious and does not “harass, vilify or incite hatred” and expressly overrides Tasmania’s laws, which prevent speech that offends, insults or humiliates people based on protected characteristics.
Anna Brown, the chief executive of Equality Australia, said the bill “presents a risk to LGBTIQ people, women and other vulnerable groups by overriding every other anti-discrimination law in the country”.
Banks said it was “entirely incoherent in a diverse, pluralistic society that religious speech is protected where other speech isn’t”.
Banks said Sheik Taj Aldin al-Hilali’s comparison of women to “uncovered meat”, religious views that disability was “the product of sin” or that a particular ethnic group was inferior would all gain “a special cloak of protection” under the proposed law.
In 2017 the Tasmanian government attempted to exempt religious speech from the prohibition on offending, insulting or humiliating language, but the bid failed after opposition from disability advocates and women’s groups.
Jenny Dixon, the manager of Speak Out Advocacy, said her organisation fought that plan because it feared the change “sends a message to the community that denigration of people with disability is acceptable”.
On the new bill, Dixon said: “Anything that waters down protective legislation should be viewed with concern. It potentially deprives people of an avenue to bring issues to Equal Opportunity Tasmania.”
Banks said: “People think it’s just words but I’ve dealt with people who are emotionally scarred by words, who could now be marginalised at their work, at their school or university”.
“Religious speech is so privileged it will allow people to engage in racist, ableist, sexist anti-LGBTI speech.”
The Human Rights Law Centre’s chief executive, Hugh de Kretser, agreed that the bill “introduces unjustified carve-outs for people to express discriminatory views and to override state and territory protections which ensure fair treatment, particularly for women accessing abortion services”.
The centre is concerned the bill overrides state rules that require doctors with a conscientious objection to abortion to refer patients to another health service.
One of its senior lawyers, Adrianne Walters, said the bill “undermines women’s reproductive health” by allowing doctors to “abandon their patients” in jurisdictions such as South Australia, Western Australia and New South Wales.
“The bill unjustifiably prioritises a doctor’s personal religious beliefs over the right of women to access the healthcare they need.”
“The bill makes it even more important for the NSW abortion bill to have strong referral provisions.”
A constitutional law expert, Luke Beck, said the bill protected the speech of atheists “only on topics of religion” but protected all religious beliefs “on any subject whatsoever”, granting a “bigger sword” to them.
On Friday Patrick told ABC’s AM he had not seen the bill but would “almost certainly” seek to refer it to a Senate inquiry.
“Our current position is that we are not sure that there is a problem, only the perception of a problem, so we first have to be convinced that indeed there is a controversy to be solved by a new law,” he said.
Nationals MP George Christensen said the new law would “protect Australians who express their religious beliefs from being subject to state-based anti-free speech discrimination laws and from being hauled before kangaroo court anti-discrimination tribunals”.
Liberal MP Craig Kelly said the new law would enshrine a “commonsense” approach and congratulated Porter for opening the process for further consultation.
Liberal senator Concetta Fierravanti-Wells was more critical, telling Radio National the bills were “likely to fall far short” of addressing religious institutions’ concerns.
“The bill deals with discrimination on the basis of religious belief only in key areas of public life,” she said. “It does not create a positive right to freedom of religion which is what religious leaders, experts and stakeholders have been calling for.”
Labor senator Deborah O’Neill accused the government of inviting religious leaders to a “photo opportunity” on Thursday when the laws were released, but failing to conduct proper consultation, which is set to last just five weeks.
“As a Labor politician of faith, committed to family, they’re telling me they’re disgusted there isn’t a bipartisan effort to discuss the substance of this bill before it was released,” she said.
“The lack of consultation has led to the release of a draft that is not meeting expectations.”
