24 Aug Religious rights threat in state discrimination laws
Andrew Burrell — The Australian — 24 August, 2017
The states will come under pressure to overhaul their anti-discrimination laws if Australians vote yes to same-sex marriage, amid a mounting push to protect the rights of people and companies to act according to their religious beliefs.
In an unexpected consequence of moves to protect opponents of same-sex marriage from the threat of legal action, it has emerged that state-based laws would need to be strengthened — or overridden by the commonwealth — for such protections to be effective.
Advocates say the issue is most urgent in Tasmania, where several Christians have already fallen foul of the state’s Anti-Discrimination Act, including Catholic Archbishop Julian Porteous, who was taken to a tribunal in 2015 for advocating traditional marriage.
Some Coalition MPs and church leaders have begun lobbying for religious freedoms to be legislated alongside same-sex marriage, warning that individuals, businesses, schools, charities and hospitals will be vulnerable to legal action if the Yes campaign succeeds.
Tony Abbott has been campaigning on the issue but the former prime minister was criticised yesterday by Defence Industry Minister Christopher Pyne for trying to “muddy the waters” in the debate.
Anti-discrimination lawyer Mark Fowler, of Brisbane firm Neumann & Turnour, said few people realised that any changes to federal laws might need to be replicated in the states because almost all discrimination cases were heard in state-based courts.
“State MPs say marriage is not our issue, but it is their issue,” Mr Fowler said.
“If they want to deal with proper protections, they will need to think about their own acts.”
He said that if change at the state level did not occur, the commonwealth would need to introduce its own laws invalidating state-based regimes, using section 109 of the Constitution, a move that could prove to be unpopular.
University of Newcastle associate professor Neil Foster said the states, particularly Tasmania, should be planning changes to their anti-discrimination laws ahead of the same-sex marriage postal vote. He said the issue of legal protection for religious beliefs had barely been examined during the debate.
“I am very concerned that this is an area that has not been thought through,” Professor Foster said.
University of Sydney law professor Patrick Parkinson said he favoured new federal laws that would override “crazy” situations such as that in Tasmania, where it was illegal to “offend, humiliate, intimidate, insult or ridicule” on the basis of one of 14 listed attributes. Under a complaint in Tasmania last month, two Christian preachers were accused of offending gays and atheists.
“Tasmania has the most far-reaching laws restricting freedom of speech of any state in Australia,” Professor Parkinson said.
“They need to be reviewed because they are incompatible with Australia’s international human-rights provisions.”
Professor Parkinson warned that Australia would see cases similar to those overseas where people had lost jobs for advocating traditional marriage or had been sued for refusing to provide goods or services to a same-sex wedding.
Victorian Liberal senator James Paterson said he and other MPs wanted to see changes in federal and state laws to protect religious freedoms if same-sex marriage were legislated.
“We can’t start having a discussion about religious liberty then — we have to talk about it now,” Senator Paterson said. “It’s the right time to think about what changes we need to make to anti-discrimination laws, alongside changing the Marriage Act.”
West Australian Liberal MP Andrew Hastie said he would push hard on extending protections for religious beliefs beyond those proposed in previous draft bills.
“The protections offered in those bills extended only to the wedding and the wedding participants themselves,” Mr Hastie said.
“They need to be expanded to whole-of-life protections. I will be fighting very hard to make sure it (a same-sex marriage bill) includes religious protections.”
Reverend Stephen ’t Hart, a pastor at the Free Reformed Church in Perth’s southern suburb of Baldivis, said yesterday he would support legislative moves to protect Christians and people of other faiths who did not believe in same-sex marriage. He was concerned that Christians might not be able to adopt or become foster carers if they maintained a traditional view on marriage.
“We want the freedom to speak out about what we believe God wants us to do,” he said.
Amid rising political tensions over same-sex marriage, Mr Pyne became the second cabinet minister to criticise Mr Abbott for his campaign tactics ahead of the postal survey of the nation.
He said on Adelaide radio that Mr Abbott would try to “find a line” to “undermine the case” for same-sex marriage.
Attorney-General George Brandis said on Sunday that he would not be “tricked” by Mr Abbott into debating same-sex marriage on broader issues, such as freedom of religion.
Mr Pyne said the public would not believe the vote was about anything other than allowing gay couples to wed. “I’m not in favour of marriage equality in spite of being a conservative; I’m in favour of it because I’m a conservative, and I think more people should have access to the institution of marriage,” he told radio FIVEaa.
“I think the children in same-sex households should be able to have the stability that union brings. And while Tony Abbott might well try and muddy the waters and make the vote about something other than what it is, it’s a pretty straightforward question: do you or don’t you agree that same-sex couples should have the chance to marry?”
The Australian Electoral Commission released figures yesterday to show the electoral roll had grown by 54,545 places between August 8, when Malcolm Turnbull flagged the postal survey, and Tuesday. The AEC said it had processed 577,879 enrolment transactions during this period, which The Australian understands were largely address updates.
Additional reporting: Joe Kelly, Greg Brown
This article originally appeared in The Australian.