The claim
After passing through the House of Representatives with the support of Labor, the Coalition's religious discrimination bill — a 2019 election commitment — has been indefinitely shelved, thwarting plans from the opposition and crossbench to amend the legislation in the Senate.
Labor's support for the contentious bill came under scrutiny on a recent episode of the ABC's Q+A, when a questioner asked Shadow Minister for Education and Women, Tanya Plibersek, how she and her party could support the legislation.
In response, Ms Plibersek noted that "in lots of parts of Australia, people of faith don't have any protection at all".
"Right now in Sydney, if you're a Muslim woman sitting on a train and someone yells at you for wearing a hijab, you've got no protection under the law from that," she said.
Is that correct? RMIT ABC Fact Check investigates.
The verdict
Ms Plibersek's claim is overreach.
There are no religious vilification laws at either a state or federal level which would protect someone in NSW from vilification as described by Ms Plibersek, but experts told Fact Check other legislation could come into play.
For example, laws governing offensive language in public and behaviour on public transport could offer the woman some protection against the harassment described.
As one expert said, there was "nothing to stop the use of [offensive language laws] to address public Islamophobic comments".
The context of the claim
Ms Plibersek's claim was made in the hours following a decision by the government to indefinitely shelve its religious discrimination bill — a 2019 election promise.
According to the text of the proposed legislation, its objectives are to recognise the "freedom of all people to have or adopt a religion or belief of their choice" as well as the freedom to "manifest this religion or belief either individually or in community with others".
Specifically, the bill aims to eliminate discrimination on the grounds of religious belief or practice and to ensure all people have the same rights to equality regardless of religious belief.
Controversially, the bill also contains a clause ensuring that people are free to make "statements of belief", which as the Shadow Attorney-General, Mark Dreyfus, argued in parliament, would override any existing anti-discrimination laws.
"Lawyers can argue about the precise legal impact of this provision, but it is impossible to escape the fact that the provision is drafted in a way that suggests people of faith should be able to discriminate against other Australians on the basis of race, gender, sexual orientation, age and disability," Mr Dreyfus said during debate about the bill in the lower house.
"This is what the provision says. It literally says that a statement of belief will not constitute discrimination under any of Australia's existing anti-discrimination laws."
It is this provision that the questioner on Q+A referenced when asking Ms Plibersek about her party's support for the legislation.
"People of faith already have some of the strongest protections in this country," the woman said.
"What this bill will do is allow discrimination in the name of faith, not only towards LGBTIQ+ folk, but also women, unmarried parents, people living with a disability, people from multicultural backgrounds, and people of other faiths."
Ms Plibersek's response to the questioner did not touch on the statements of belief clause, but rather focused on Labor's support for a religious vilification amendment to the bill.
"We [Labor] do think that people of faith need to have protection from discrimination and vilification, just as every Australian deserves to be protected," she said.
What happened with the bill?
In the early hours of February 10, the day Ms Plibersek appeared on Q+A, the religious discrimination bill passed through the House of Representatives with the support of the Coalition (minus Tasmanian Liberal MP Bridget Archer) and Labor.
A crossbench amendment to the Sex Discrimination Act, designed to protect transgender students, also made it through the Lower House after five Liberal Party MPs crossed the floor to vote against the government.
Other amendments, including a Labor proposal to include a religious vilification clause in the religious discrimination legislation, as well as one addressing the statements of belief clause, failed to find support in the lower house.
Labor's religious discrimination amendment would make it "unlawful for a person to engage in conduct, on the ground of religious belief or activity of another person" or group, that would be considered to "threaten, intimidate, harass or vilify" that person or group.
According to Mr Dreyfus, meanwhile, the statement of belief amendment would "ensure that no existing protection against discrimination" would be "impacted in any way" by the statement of belief clause.
Despite failing to pass these amendments in the House of Representatives, Labor reportedly planned to fight for them in the Senate, where the government does not hold a majority.
However, when the bill reached the Senate later on February 10, a motion to ensure it would be debated that day was voted down and the bill was automatically adjourned to the next sitting, the Clerk of the Senate, Richard Pye explained.
"As to what happens next, the bills are on the Senate's Notice Paper," Mr Pye said in an email.
"The government is given the power under the Senate standing orders to list bills in its preferred order, so it is a matter for the government whether and where to list the bills for debate."
As previously mentioned, the government has indicated it does not plan to bring the bill on for debate before the impending federal election.
Anti-discrimination laws in NSW
Discrimination law in Australia exists at both a federal and state level, as Fact Check has detailed in a number of previous articles.
Simon Rice, a professor of law at the University of Sydney, told Fact Check that "neither any federal anti-discrimination law nor the NSW Anti-Discrimination Act prohibits religious vilification or religious discrimination".
"The woman in the example cannot complain that the religious vilification or religious discrimination she suffered was against federal or state anti-discrimination law," he said.
In New South Wales, the state in which Ms Plibersek's example takes place, the Anti-Discrimination Act 1977 offers protection from vilification on the grounds of race, gender, sexuality, and HIV/AIDS status but does not extend to religion.
A 2021 attempt to amend that bill to cover religious discrimination, introduced to the NSW parliament by Labor MP Paul Lynch, failed in the lower house after not receiving the support of the governing Liberal Party.
Notably, however, the definition of race within the Anti-Discrimination Act includes "ethno-religious status", as Luke McNamara, a professor of law at the University of New South Wales, told Fact Check.
He explained that courts had held that Sikhs and Jews were covered by that definition, but not Muslims.
Additionally, in a 2014 case against radio host Alan Jones the NSW Civil and Administrative Tribunal ruled only that comments made about "Lebanese Muslims", and not Muslims in general, were classified as racial vilification under the act.
The relevant Commonwealth legislation,the Federal Racial Discrimination Act 1975, also fails to specifically outlaw vilification on the grounds of religion, though section 18C (yes, that one) does offer protection from "offensive behaviour because of race, colour or national or ethnic origin".
Similar to the NSW anti-discrimination legislation, court rulings have found section 18C to cover offensive behaviour directed towards the Jewish community.
In a 2016 article for the UNSW Law Journal, Professor McNamara and co-author Katherine Gelber wrote that it was "surprising" that no authoritative ruling had been made on whether Section 18C applied to Muslims as a group.
"The likely answer, based on the jurisprudence associated with the terms ‘race' and ‘ethno-religious' in other jurisdictions, is that it does not cover conduct that vilifies Muslims unless the conduct also vilifies a person defined by ‘race, colour or national or ethnic origin'," the pair said.
Professor Rice also referred to such case law at both the federal and state levels, telling Fact Check court decisions had "decided that being Muslim is not a being of a ‘race', so the legislation offers no protection".
Offensive language laws
While state and federal anti-discrimination legislation may not offer protection to the woman in Ms Plibersek's example, the experts suggested that other laws could apply.
"It's probably not what Ms Plibersek was getting at but, depending on exactly what was said, the NSW Summary Offences Act does prohibit 'offensive language' in a public place," Professor Rice noted.
Under section 4A of that act, a person "must not use offensive language in or near, or within hearing from, a public place or a school".
According to a different journal article authored by Professor McNamara and Julia Quilter, a professor of law at the University of Wollongong, it was "well settled" that the test for whether something was offensive was "an objective one of the reasonable person".
Referencing a 1961 court ruling, Professors McNamara and Quilter wrote that something was deemed to be offensive if it was "calculated to wound the feelings, or arouse anger, resentment, disgust, or outrage in the mind of a reasonable [person]".
A 1966 case found a reasonable person to be "reasonably tolerant and understanding, and reasonably contemporary in [their] reactions".
Professor McNamara noted that while there was legal precedent for using section 4A of the Summary Offences Act in the context of racist remarks, he was not aware of any instances of it being used in cases involving offensive language directed at a person's religion.
He added, however, that there was "nothing to stop the use of section 4A to address public Islamophobic comments".
Professor Rice was also not aware of the law being used in regards to offensive language directed at religion, but noted such cases would be held in a local court and as such no reliable records were available.
Further, Professor McNamara said that yelling, as described by Ms Plibersek, was "not by definition offensive".
Professor Rice agreed.
"Merely yelling at a woman to remove her hijab would probably not be considered offensive language under the Summary Offences Act," he said.
"It would come down to the specific wording. Indecent language, for example, would be offensive, and that's getting away from the religious element of the conduct."
Laws specific to public transport
In addition to laws prohibiting offensive language, Professor Quilter told Fact Check that given Ms Plibersek's hypothetical incident took place on a train in Sydney, legislation governing behaviour on public transport may also apply.
Professor Quilter pointed to the Passenger Transport (General) Regulation, which makes it a criminal offence for a person "in or on a public passenger vehicle or train" to "behave in an offensive manner", "use any offensive language" or "wilfully interfere with the comfort or safety of other persons".
"Of course, this does not ‘protect' the Muslim woman per se but it does provide an [offence] for the perpetrator's behaviour," she said, adding that there had been previous instances of racist remarks, made on public transport and filmed, resulting in such charges.
The federal religious discrimination bill
It's worth noting that the proposed federal religious discrimination legislation, in its current form, would not protect the woman in Ms Plibersek's example.
As Professor Rice explained, in the version of the bill passed by the House of Representatives (with Labor's support), a religious vilification provision was not present.
"This was a glaring omission," he said.
He explained that the statements of belief provision meant that the person yelling at the woman could be protected under the legislation.
"More than the Bill not protecting the Muslim against vilification, the Bill would have positively protected the person who yelled at the Muslim woman, if what they said was a 'statement of belief'," Professor Rice said.
According to Luke Beck, an associate professor of constitutional law at Monash University, the "statements of belief" clause "overrides every federal, state and territory anti-discrimination law to make 'statements of belief' immune from legal consequences if they are based on a genuinely held religious view".
"For example, statements of belief could include a male boss saying to a female employee, 'women should not hold leadership positions' or a doctor saying to a patient, 'disability is a punishment for sin'," Dr Beck wrote in The Conversation.
As outlined above, amendments to the bill proposed by Labour have sought the addition of a religious vilification clause, as well as added clarity around the statements of belief clause.
Principal researcher: Ellen McCutchan, with Emma Fitzgerald
Sources
- ABC News, Government shelves religious freedom bill indefinitely, leaving election promise hanging in uncertainty, February 10, 2022
- Tanya Plibersek, Q+A, February 10, 2022
- ABC News, Controversial religious discrimination bill overhauled as Government releases new draft, December 10, 2019
- Religious Discrimination Bill 2022
- Mark Dreyfus, House of Representatives, February 9, 2022
- Religious Discrimination Bill 2021, Parliament of Australia, February 10, 2022
- Human Rights Legislation Amendment Bill 2021, Parliament of Australia, February 10, 2022
- House of Representatives, February 9, 2022
- Mark Dreyfus, Religious Discrimination Bill 2021 (amendments), February 9, 2022
- ABC News, Five Liberals cross the floor as contentious religious discrimination bill passes House of Representatives after all-night debate, February 10, 2022
- Senate, February 10, 2022
- RMIT ABC Fact Check, Do Australians lack protection against religious discrimination?, September 10, 2019
- RMT ABC Fact Check, Attorney-General George Brandis ill-informed on people's 'right to be bigots', January 14, 2015
- RMIT ABC Fact Check, Scott Morrison says businesses can refuse entry to unvaccinated patrons without falling foul of discrimination laws. Is that correct?, October 6, 2021
- NSW Parliament, Anti-Discrimination Act 1977, December 11, 2020
- NSW Parliament, Anti-Discrimination Amendment (Religious Vilification) Bill 2021, November 12, 2021
- NSW Parliament, Legislative Assembly, Votes and Proceedings, November 12, 2021
- NSW Civil and Administrative Tribunal, Trad v Jones, 2014
- Parliament of Australia, Racial Discrimination Act 1975, January 29, 2016
- ABC News, Section 18C: What's all the fuss and why does it matter?, March 21, 2017
- Katharine Gelber and Luke McNamara, Anti-vilification laws and public racism in Australia, UNSW Law Journal, 2016
- NSW Parliament, Summary Offences Act 1988
- Julie Ann Quilter and Luke McNamara, Time to define 'the cornerstone of public order legislation': the elements of offensive conduct and language under the Summary Offences Act 1988 (NSW), UNSW Law Journal, 2013
- Luke Beck, As parliament returns for 2022, the religious discrimination bill is still an unholy mess, The Conversation, February 7, 2022
