Jenny Leong speaks on anti discrimination amendment (Religious Vilification) Bill 2023

I contribute to debate on the Anti-Discrimination Amendment (Religious Vilification) Bill 2023. The Greens support the principle that nobody should be discriminated against or vilified, including on the basis of their religion. The freedom to peacefully practise religion without fear of harassment or humiliation is essential to many of our multicultural communities. We know the current protections in the Act against vilification on the grounds of ethno-religion do not necessarily provide broad protection to Muslims, Hindus, atheists and others. That said, The Greens have serious reservations about the bill and the context from which it emerges. I note the contribution of the Minister for Customer Service and Digital Government, who said that all belong and all are valued. Sadly, the bill does not indicate that. All the groups in our society that are not currently protected in the Anti-Discrimination Act see this move as an indication from this Government that they are not protected, that all people do not belong and that they are not all valued equally. That is the reason we have serious concerns about the bill.

Under the previous Coalition Government, we saw a keen focus on religious discrimination. The push for so‑called religious freedom became a Trojan Horse for advancing a conservative, explicitly anti-LGBTIQA+ right-wing agenda. I recognise that discrimination towards individuals on the grounds of religion is real, but framing it as a paramount form of discrimination and vilification is a distraction from the bigger issues we face in our society around hate and transphobic, anti-LGBTIQA+ and anti sex work sentiments—all of which are missing in the Anti-Discrimination Act. Sadly, those pieces of the puzzle are not there.

Under the guise of extending religious freedom, space has opened up for ugly rhetoric from both Labor and Liberal sides of politics that suggests ensuring the rights of our LGBTIQA+ community to simply live as they are and who they are without exposure to hatred on the grounds of someone else's faith is somehow up for debate and discussion. In this very Act that we are amending, there are exemptions that allow for discrimination against people on the basis of their sexuality and their gender identity. We appreciate that this is a messy and divisive legacy, and that the Minns Labor Government has inherited an outdated Act. But is this really the kind of division that we are intending to move forward on right now?

This is not the first time that Labor has sought to establish protections against religious vilification in this Chamber. Indeed, two years ago—in 2021—The Greens supported a version of the bill that was brought by the then shadow Attorney General, Paul Lynch. That support came with a caveat. The Greens encouraged that bill on the basis that it seemed only piecemeal review of the Anti‑Discrimination Act was possible. Despite its many shortcomings, some of which I will speak to shortly, that was what was possible at the time. While we supported the bill and the protections from vilification that it conferred on people of faith, we also highlighted that many other gaps needed to be closed to ensure all community groups had the protection they deserved. We called for a wholesale review of the Act by the NSW Law Reform Commission.

Following the Minns Government coming to power, that review is finally underway. The Greens and I commend the Attorney General and others for finally acting on that promise that had not been realised by either major party since we all committed to it in 2014—nearly a decade ago. This review is long overdue. The Greens look forward to the findings and to finally strengthening the Anti‑Discrimination Act to bring it in line with other jurisdictions in this country. But let us be clear. The timing of the bill seems to pre-empt the findings of the holistic review. Whether that is the intention, it sends a clear message that the rights and interests of some groups in our community are more deserving of urgent protection than others. Why choose to insert protections for religious vilification while the review is underway when parallel protections for bisexual, non-binary and intersex people and sex workers are not also on the table?

Is the risk of vilification faced by people of faith so much greater than that faced by other groups that protecting them right now is so urgent for this Parliament to do, yet other groups can continue to suffer vilification, unprotected by the Anti-Discrimination Act, while we wait for the review to commence? What about the massive loopholes in the current Anti-Discrimination Act that enshrine the right of religious organisations, small businesses and some others to engage in State‑sanctioned discrimination? Surely they are urgent reforms that we should be looking at.

The Greens raised these concerns in 2021, when the then shadow Attorney General's bill was brought before us, and we reiterate them now. To be clear, we absolutely support that people of faith be protected from religious vilification when their activity is lawful and does not negatively impact on other members of the community. But we cannot, in principle, support the strengthening of protections for one community group when protections for others who still face an increased risk of targeted vilification and discrimination on our streets—in the streets of Newtown—across our city, in their workplaces and other institutional settings, are still lacking. There is nothing that indicates that this Government is about everyone belonging and everyone being protected by acting just on this reform now.

I thank and acknowledge community groups including Pride in Protest, Community Action for Rainbow Rights, Sex Workers Outreach Project, Scarlet Alliance, and Intersex Human Rights Australia, and the broad range of human rights, civil liberties and anti-discrimination organisations and experts for their tireless campaigning to ensure that so-called "religious freedoms" laws are not a way in which to further discriminate against people in our community. The Greens appreciate their activism. We will continue to be their voice in this place.

The earlier bill I referred to, supported by the Greens in 2021, provided a specific definition of "religious belief and affiliation" that mirrors that in section 93Z of the Crimes Act and defines it as "holding or not holding a religious belief or view". Sadly, the bill before us no longer has that clear definition. The Public Interest Advocacy Centre, or PIAC, in correspondence with the Attorney General, the shadow Attorney General and the crossbench, said, "The protected attributes—religious belief, affiliation and activity—included in the current bill are much broader than most other Australian States and Territories, meaning a broader range of speech will be prohibited as a result."

Let us be clear that the bill in its current form goes beyond what other jurisdictions have done in this space and in other areas fails to limit in the same way other jurisdictions have. This is happening without the consultation that could be done through the Law Reform Commission process. Furthermore, the drafting of section 49ZE does not make explicit that protections against religious vilification apply only to natural persons. Under the Interpretation Act 1987, a person such as that referred to in section 49ZE includes not only an individual but also a corporation, body corporate or public. The choice to protect persons, not merely natural persons, by this bill creates the worrying possibility that corporations or organisations could have a cause of action against religious vilification. I note that the shadow Attorney General referred to concerns that had been raised about this applying to groups. Assuming that he was referring to the amendments that The Greens have circulated, the issue is not actually with groups. We recognise that this legislation covers both individuals and groups of individuals.

Our concern is with the use of the word "person". We have serious concerns about the idea that organisations could take action against an individual. PIAC shares these concerns and has pointed out, "In practice, this ambiguity would allow larger, well-funded religious organisations to bring vilification complaints against individuals, with a potentially significant chilling effect on public criticism of these bodies." It is important to note that in this case the issue of racial vilification, which is the example that has been referred to, and vilification of religious belief are very different. For example, an organisation that advocates around multiculturalism does not hold a race, but a Catholic church or another religious organisation does hold a religious belief. Therefore, our view is that there need to be changes around that. [Extension of time]

Given this, this is not a principle that The Greens are willing to support. We believe that corporations, trusts, churches and other organisations should be prevented absolutely from vilifying individuals or groups of individuals. But that protection from vilification should apply only to natural persons—that is, individuals or groups of individuals. Finally, we have significant concerns over the bill's extension of protections to any form of religious activity. Akin to "religious belief or affiliation" and "persons" covered in the section, "religious activity" is left so broad and open for interpretation in its current drafting that it takes us well beyond the established process that has occurred in Queensland and Victoria, to allow any religious activity to be one of the protected attributes in relation to this legislation. This uncertainty is deeply concerning. The Greens contend that certain religious activity should not attract protections, including activity that is outlawed by another Act or statute. Without defining "religious activity" or at the very least restricting it to activity that is lawful, the bill raises legitimate questions about what protections, if any, unlawful religious activity would attract.

The Minister for Multiculturalism just referred to other States and said that New South Wales was being brought into line, but in this case we are not being brought into line with other States. Those other States provide protection in relation to lawful religious activity. New South Wales, in passing this legislation unamended, would be providing protection beyond that, to all religious activity. Would a person praying in a safe access zone outside an abortion clinic, for example, be in breach of part 6A of the Public Health Act but also have a cause of action against a reproductive justice activist or a member of staff at the clinic for reproaching the person for breaching that safe access zone? We believe that there is a need to tidy that up.

Surely we can all agree that with bigotry, from anti-queer sentiments to transphobia, rising across communities, this ambiguity is something we cannot risk. Is the Minns Labor Government's intention to undermine the hard-won protections around safe access zones with this legislation or to risk undermining future action taken to ban conversion practices? It is, of course, impossible to consider this bill in isolation from the existing and hugely problematic exceptions embedded in the Act that will allow religious organisations, small businesses and certain others to exist above a law specifically designed to protect vulnerable people from discrimination. The NSW Council for Civil Liberties, in a statement released this morning, put it best when it stated:

We want an Anti-Discrimination Act that does not discriminate.

To move on one part, without moving on other glaring deficiencies sends a bad message to the community about whose rights and interests are privileged over others.

The Greens agree wholeheartedly with that sentiment and, I reiterate, are fully supportive of the holistic review of the Anti-Discrimination Act by the Law Reform Commission. But the timing of the bill pre-empts the findings of that review and does not allow the Act to be considered in a holistic way. I indicate that that is why, at the very least, The Greens will be moving amendments to the legislation before us. These amendments, which are straightforward, reasonable and have the support of anti-discrimination experts at PIAC and the NSW Council for Civil Liberties, are a simple way to ensure that this Act is not so broad as to create a whole lot of concerning possibilities that will cause the kinds of tensions we are seeing in our community to flare up at just the time when we want to be working collaboratively on the review of the Anti-Discrimination Act. I will speak to the details of the amendments when I move them. I indicate that they are now available for all members. I am happy to provide any detail required.

If we in this place are serious about ensuring that our communities are safe from vilification and religious discrimination in all its forms, we must do this with the utmost care and caution. We need to be wary of any action that would suggest that the rights and interests of one group are more important or worthy of protection than those of another. The Greens' amendments seek to address some of the immediate concerns about the bill. I make clear that if we are saying this the Anti-Discrimination Act is intended to demonstrate that all people should be treated equally and live free from vilification in our society then we should not be acting separately on this piece of legislation now. We should be taking a holistic approach to the review of the Anti-Discrimination Act. The Greens look forward to working with anti-discrimination experts, lawyers, stakeholders and activists to ensure that is where we get to.