Tasmania’s exemplary law in peril

Jonathon Hunyor says the federal Religious Discrimination Bill is radical.

AS a lawyer from New South Wales who works with people facing disadvantage and discrimination, I have to confess to being envious of the Tasmanian AntiDiscrimination Act.

While the NSW AntiDiscrimination Act is old and outdated, in many respects the Tasmanian law is bestpractice. For example, Tasmania strikes the right balance when it comes to religious discrimination.

Since 1998, Tasmanian law has had some of Australia’s strongest protections against discrimination against people of faith. This includes protecting religious activity, belief and affiliation.

But Tasmania also has the strongest protections against discrimination against other people in the name of religion. This includes not allowing religious schools, hospitals and charities to discriminate against staff, students, patients and customers on grounds like sexual orientation, gender identity and relationship status. Tasmania also sets a high standard in protecting people from being intimidated, insulted, offended, humiliated or ridiculed on the basis of attributes like race, disability, sex, marital status or sexual orientation.

This protection isn’t about “political correctness”. It only applies where a “reasonable person, having regard to all the circumstances” would have anticipated the harm caused. And free speech is well-protected. Everything said in good faith for academic, artistic, scientific or any other purpose “in the public interest” is allowed.

So what would the federal Religious Discrimination Bill mean for Tasmanians?

Unfortunately, it would undermine the balance struck by the Tasmanian AntiDiscrimination Act and the protection it provides the community.

We have been told that the Bill’s aim is to extend consistent protections against religious discrimination across the nation. This would be a positive step that would affirm Australia’s commitment to a diverse and inclusive society.

But the federal Bill goes much further than this. In a number of ways it seeks to privilege the expression of religious views over the rights of others — including women, LGBTI people, single mothers, people with disability — to live free of discrimination.

Crucially for Tasmanians, it seeks to override your AntiDiscrimination Act.

This is a radical step. Not only is it exceptional for the Commonwealth to override a state or territory law, but our whole system of antidiscrimination laws is based on having legislation at the Commonwealth, state and territory levels that coexists and is complementary. The Religious Discrimination Bill fractures this system.

In practice, it means Tasmanians will no longer have protection from being humiliated, intimidated or ridiculed by people making religious “statements of belief”. Consider a student with a disability whose teacher tells them in class that their disability is a trial imposed by God. Or a women told by their manager at a staff meeting that according to their religion women should always submit to their husbands.

Where we draw the line on issues like this isn’t always simple. All the circumstances need to be taken into account to get the balance right between free speech and the right to take part in public life free of discrimination. While the Bill won’t protect statements of religious belief unless they are made in good faith and not malicious, harassing, vilifying or incite hatred or violence, this leaves a whole range of demeaning and degrading conduct that would get a free pass.

Another consequence of this override is that issues about “statements of belief” won’t be able to be considered by the Tasmanian AntiDiscrimination Tribunal.

Only a court will be able to consider them, because the arguments would involve a Commonwealth law and our Constitution prevents tribunals from making decisions about Commonwealth law. The less formal and less expensive option of a tribunal hearing will no longer be available.

The Religious Discrimination Bill won’t serve our community well, and Tasmanians will be the biggest losers.