‘No weakening’: Liberal state governments voice concern over federal religious discrimination bill
The New South Wales and Tasmanian state Liberal governments have expressed concern the federal religious discrimination bill will override their anti-discrimination laws.
Central provisions of the Morrison government bill, including those protecting statements of belief and religious institutions’ hiring practices, would override state laws potentially making claims unworkable, they submitted to a parliamentary inquiry.
The Coalition is struggling to win support for the proposed legislation, with a trio of moderate Liberal MPs reserving their right to vote against it and a deal between the attorney general and another group of disaffected MPs breaking down after a religious backlash.
The bill is being considered by two parliamentary inquiries, including the joint committee on human rights.
The Tasmanian attorney general, Elise Archer, submitted the federal bill appeared “to effectively invalidate the operation of the Tasmanian AntiDiscrimination Act”, including the provision banning speech that offends, insults or humiliates a person based on a protected attribute.
Archer submitted a person need only claim that their statement was a protected statement of belief and the Tasmanian anti-discrimination tribunal “must decline to hear the matter” unless the claim was specious.
While the person who made the statement was not required to show it was a statement of belief, the complainant would be required to prove it breached the bill’s safeguards that such statements must not be malicious, intimidating or harassing, she said.
“I would like to reiterate that the Tasmanian government’s view is [the package] would diminish the ability of the Tasmanian anti-discrimination tribunal to deal with certain complaints and … we continue to strongly advocate for no weakening of our anti-discrimination laws.”
The New South Wales premier, Dominic Perrottet, has openly questioned the need for the federal bill.
Anti-Discrimination NSW, the state government body that administers discrimination law, submitted it “remains concerned” the bill does not strike the right balance between freedom of religion and other rights.
It warned the religious discrimination bill would override provisions in state law “that limit the circumstances under which faith-based schools can discriminate against job applicants and existing employees”.
The statement of belief and hiring clauses “would also create significant procedural and access to justice issues”, it said, because the NSW Civil and Administrative Tribunal may not have jurisdiction to consider state claims where the federal law is invoked as a defence.
Moving the matter to a federal court would add “procedural and financial burdens on complainants and create a barrier to access to justice”.
Professor of constitutional law Anne Twomey submitted the federal government had attempted a “provocative” takeover of state law, but the drafting was “conceptually confused and probably invalid”.
Both sections “seek to control the operation of a state law”, she argued, rather than merely creating an inconsistency with state law.
“How can a commonwealth law dictate the interpretation of what amounts to discrimination under a state law?
“It cannot do so. It cannot amend or alter a state law or instruct a court as to how to interpret the state law.”
The Australian Catholic Bishops Conference praised the bill, arguing that it “does not go far enough” to ensure that freedom of religion is protected. The conference accused state governments including Victoria of seeking to constrain religious institutions’ hiring and firing powers.
The Australian Human Rights Commission submitted that it “strongly supports the introduction of enforceable protections against religious discrimination for all people in Australia”.
But while it endorsed those elements of the bill, it warned other sections “would provide protection to religious belief or activity at the expense of other rights”.
Sign up to receive an email with the top stories from Guardian Australia every morning
These were “unnecessary and disproportionate, or are otherwise inconsistent with international human rights law” and should be removed, it said.
In addition to the statements of belief clause, the AHRC complained the bill “provides very broad exemptions that allow ‘religious bodies’ to engage in religious discrimination” and allows corporations to make a complaint of religious discrimination.
“This is a significant departure from domestic and international human rights laws which protect only the rights of individuals, that is, humans.”