Attorney General’s Department explain how the Religious Discrimination bill will work

Staff from the Attorney General’s department didn’t get off to a good start when they appeared before the Parliamentary Joint Committee on Human Rights last week. Three representatives of the Attorney General’s Department appeared to give evidence in relation to the third draft of the Religious Discrimination bill.

Politicians on the inquiry were surprised to discover representatives from Michaelia Cash’s department were not appearing in person at the Canberra hearings, but instead had opted to remain in their offices and appear via a video call.

“Is the Attorney General’s department located in Canberra?” Labor’s Deborah O’Neill asked, inquiring if there a special reason why the staff could not “come up the hill” and appear in person at the hearings being held in Parliament House.

Andrew Walter, the Acting Deputy Secretary of the Integrity and International Group within the Attorney General’s Department, told the inquiry that no disrespect was intended, and the team were not aware they were expected to attend the hearings in person, citing concerns about Covid-19.

Things got more difficult as the three bureaucrats appearing were crowded around a single laptop and struggled to be heard.

Despite the technological challenges the committee quickly got to asking questions about how the proposed Religious Discrimination bill would operate.

Nationals MP Anne Webster, who chairs the committee, asked the AG’s team to explain how the legislation would work using an example that had been cited several times as an area of concern.

Webster provided the example of a person working in an religious based aged care facility who believed euthanasia is not a godly principle, who then makes a comment to a resident or their family. Webster asked if that staff member would be protected under the Religious Discrimination act?

“There’s a few steps we need to work through.” Walter said, explaining how the legislation would operate. “The first is; is the making of that statement discriminatory against the person to whom the statement is made?

“Because clause 12 is not a general right of expression, it is, if you like, a defence or an answer to a claim of discrimination. So the first question is, would that conduct amount to discrimination against the person and on what ground is that discrimination claimed?”

‘So in this case of a person in an aged care facility, it’s a little bit tricky, but it could be on the basis of the person’s age, it could be a disability claim of discrimination, if the person is not religious I suppose it could be a religious discrimination issue, but that’s not a hundred per cent clear here-  that it is discriminatory.

“If we jump that hurdle, and we say ‘Yes, it is in fact, the mere making of that statement is discriminatory’. Then you need to work through, was it maliciously made? Let’s assume it was made without the intention of being malicious, then we would want to work through those elements of, is a belief that is actually held by the person?

“In this case probably so, and they’d probably get over the genuineness requirement, however the good faith requirement, I think in this instance, of a carer who has a duty of care and a responsibility in respect of their patient, is going to be more difficult to get over as a defence, because they are being conscientious about the welfare and concerns of the patient, in that circumstance I think it would be difficult to see that as something that could be made in good faith.” Walter said explaining the operation of the legislation.

Later during his appearance Andrew Walter faced tough questioning from The Green’s senator Janet Rice over statements put forward by the department that claimed the bill did not affect the operation of other Commonwealth anti-discrimination legislation.

Senator Rice highlighted that the submission from Australian Human Rights Commission argued that Clause 12 of the bill, which allows for statements of belief, had a significant impact on the operation of existing legislation on both a federal and state level.

Walters said the intent of the provision was not one that would have a substantive effect on current legislation. Senator Rice hit back saying there was a difference between having no effect, and some substantive effect, and the the committee had heard many concerns that it would have a significant effect.

The Attorney General’s Department said they would respond to the concern in writing.

Senator Deborah O’Neill also commented on the department and the government’s analysis of how Section 12 of the act would operated said she found it concerning.

“It concerns me that, given this government’s record, that when the Human Rights Commission describes section 12 as symbolic rather than a substantive piece of the legislation, that Australian’s don’t get sold something that isn’t what it purports to be.”

Graeme Watson 

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