ROBODEBT: it's wonderful how the threat of legal action can energize the Morrison Government

Faced with three court cases which will inevitably expose the shaky ground on which the Centrelink income compliance program - aka robodebt - was built in July 2016, the Morrison Government now makes a limited, tactical response ahead of court hearings.

ABC News, 19 November 2019:

The Federal Government is immediately halting a key part of the controversial robodebt scheme to recover debts from welfare recipients and will freeze some existing debts, in what appears to be a major backdown in the operation of the scheme.

In an urgent email circulated to all Department of Human Services compliance staff today, seen by 7.30, the general manager of the debt appeal division wrote:

"The department has made the decision to require additional proof when using income averaging to identity over payments.

"This means the department will no longer raise a debt where the only information we are relying on is our own averaging of Australia Taxation Office income data."

The averaging process has long been one of the most controversial parts of the scheme.

Legal groups have said that it causes inaccuracies in the debt amounts, and wrongly shifts the burden of proof onto alleged debtors.

The email also sets out that the department would undertake a sweeping review of all debts where averaging was used.

"Customer compliance division will methodically work through previous debts identified as part of the online compliance program and respond to their requests for clarification," it said.

The department will also be writing to affected customers.

"For customers who are affected, the department will freeze debt recovery action as CCD identifies them and looks at each debt. The department will also write to affected customers to let them know," the email said.

7.30 has contacted the Minister for Government Services and the Department of Human Services for a response.

The Australian Minister for Government Services Stuart Robert was very careful in his wording of the change in approach to 'debt' collection as was wording on the Department of Human Services website.

It appears that little is altered with regard to robotdebt unless individual welfare recipients fall into the category of a) never having engaged with DHS/Centrelink after having received an initial notice informing them of an "income discrepancy"; b) also ignored any followup letters/emails
/texts/phone calls and c) whose alleged debt did not occur in a time period for which Centrelink still retains all documents concerning cash transfers made to the individual recipient.

It is only this category of welfare recipients who has never offered verbal or written information concerning the alleged debt, therefore they are the only persons who by Mr. Robert's reckoning may have had their alleged debt solely calculated by flawed data matching with the Australian Taxation Office.

The number of people who remain in this category after DHS/Centrelink's debt recovery program has been running for more than three years is not known - it could be as little as est. 6,500 or as many as est. 600,000 individuals.

Make no mistake, the Morrison Government will not easily abandon this lucrative stitch up of the poor and vulnerable.

In the 2018-19 financial year alone the total debt from income compliance activity was valued at $885.8 million and the value since the program began now totals $1.86 billion.

BACKGROUND

The Monthly, 19 November 2019:

Asher Wolf, one of the original grassroots campaigners against the robodebt program, says the government’s move is tactical. “Don’t trust DHS to act in good faith not to ramp up robodebt again. If you back off from challenging the government – for even a minute – on mendacious data-matching schemes, they’ll slide right back into old patterns of cruelty.”

Today’s move could even endanger the government’s projected return to surplus, which relies on some $2.1 billion in prospective debt recoveries under the robodebt program over the 2019–20 to 2021–22 period. “The Coalition’s AAA credit rating is balanced off raising preposterous, erroneous, illegal debts,” says Wolf. “I have no doubt the Coalition will come after the same people they always attempt to hurt: the poor and the vulnerable.”

Gordon Legal, website, 19 November 2019:

You may be aware that the so-called Robodebt issue has been widely reported in the media and has been the subject of both a Parliamentary Inquiry and a report from the Commonwealth Ombudsman. Unfortunately, the Commonwealth Government does not appear to accept that the Debt Notices, issued by Centrelink on its behalf are invalid and that it has an obligation to repay the money it has already collected under the Robodebt Scheme.

Unless the Commonwealth agrees to change its position then our current view is that people with a claim of the kind broadly described above should pursue their rights by commencing a Group or Class Action.

ABC News, 17 September 2019:

A class action will be launched against the Government over the so-called robodebt scandal, arguing the Government's automated debt system is unlawful.

Key points:

• Lawyers will argue the Government could not rely on the robodebt algorithm to collect money
• The action will seek both repayment of falsely claimed debts and compensation for affected people, lawyers say
• The Opposition says the robodebt billing practices are "verging on extortion"

Opposition government services spokesman Bill Shorten announced the action, which will be brought by Gordon Legal, and comes after sustained pressure on the Government over the system.

Peter Gordon, a senior partner at the law firm, said the collection of money based solely on a computer algorithm was unlawful.

"The Commonwealth has used a single, inadequate piece of data — the robodebt algorithm — and used it to seize money and penalise hundreds of thousands of people," he said

Read the full article here.

Victoria Legal Aid, 8 September 2019:

The Federal Court has been told that Centrelink has wiped the debt at the centre of a second test case against its robo-debt scheme. The case will go to a hearing in early December.

Our client, Deanna Amato has been told her robo-debt of $2754 had been wiped, after a recalculation process found the true overpayment to be just $1.48.

‘I'm happy that I don't have a big debt looming over me anymore, but on the other hand, I'm stunned that it was recalculated so easily after I took legal action’, said Deanna. 

‘Centrelink will make you jump through hoops to prove your innocence, but it turns out they were capable of finding out if my reporting was correct and that I didn't owe them anything like what the robo-debt claimed I owed. It makes me question the system even more’, she said.

The 33-year-old local government employee says Centrelink has refunded her over $1700, after they took her full tax return earlier this year. At the time, she had never spoken to anyone from Centrelink about the supposed debt.

‘It was scary when Centrelink took my tax return out of the blue. I had no idea what my rights were, or if Centrelink even had this kind of power over my money, so I turned to legal aid for advice.

‘Now that they have wiped the debts of both Victoria Legal Aid cases, it makes me wonder how many people have paid supposed debts that were completely inaccurate.  I hate to think of more people suffering because of incorrect calculations.

People may be handing over money they don't even owe, because they're too afraid, or don't have the means, to challenge them. That's why I think the system needs to change’ said Deanna.

Rowan McRae, Executive Director of Civil Justice Access and Equity at Victoria Legal Aid said our legal challenges to the scheme continued – ‘We cannot accept a system that is so clearly flawed and causing overwhelming hardship to the most disadvantaged people in our community.’

‘We are contacted every day by people who are feeling overwhelmed by this system that puts the onus on them to disprove debts. It is important that a court looks at the lawfulness of the process Centrelink relies on to decide that people owe them money’. said Rowan.

Deanna says she is keen to have the court look at the decisions that led to the debt being raised. ‘It turns out, when I was receiving Centrelink assistance, I reported my income, yet they still were able to raise a debt of almost $3000 and take my tax return. The fact that Centrelink wiped my robo-debt, does not change my feelings about this court case going ahead. The robo-debt process needs to be seriously examined,’ she said.

‘If I hadn't taken this legal action, I don't think Centrelink would have ever realised the problem with my so called ‘debt’, Deanna said.

Deanna Amato’s case will go to a hearing in December with our first client Madeleine Masterton’s to be scheduled for hearing after that case is determined. [my yellow highlighting]

With 6 people burnt to death to date during the current NSW 2019 fire season, one reputable Australian journalist pointed the finger squarely at who and what is to blame

TheGuardian, 16 November 2019:

The history of climate policy in Australia is a history of self-interest, posturing and shameful inaction. Photograph: Sam Mooy/Getty Images

In a dispiriting political week like the one we’ve just had, it helps to keep things simple. Let’s begin with the organising idea of the week, where various politicians asserted, both in measured ways and unhinged ways, that it was inappropriate to talk about climate change while bushfires ravaged the country.

Let’s be clear about what this line of argument is.

It’s self-serving crap.

It is entirely possible to have a sensible discussion about climate change and the risks it poses, including the risks of longer and more intense fire seasons, and still do all the things that need to be done to protect lives and property.

We have that bandwidth. In fact Australia demonstrated amply over the course of the past few days our collective capacity to walk and chew gum at the same time.

Despite all the finger waggling from politicians, or perhaps because of it, the climate conversation happened in tandem with heroic efforts by emergency services workers to save lives and contain the damage. In fact, the most compelling part of the conversation about bushfires being a symptom of climate change was led by emergency service workers: a coalition of former fire chiefs, who point blank refused various invitations from politicians to shut up.

Given there is no law that says bushfires preclude sensible, evidence-based policy conversations, it’s reasonable to ask why this particular prohibition was asserted.

The answer to that is simple. The Coalition does not want its record raked over at a time when Australians are deeply anxious, because it’s hard to control the narrative in those conditions. The government does not want people who are not particularly engaged in politics, and who make a point of not following Canberra’s periodically rancid policy debates (and climate is the most toxic of the lot), switching on to this issue at a time where they have a personal stake in the conversation.

While Scott Morrison has acknowledged there is a link between climate change and natural disasters, and in attitudinal terms that acknowledgement is a positive development, it’s not really in the prime minister’s interests for anyone to press very assertively on that pressure point, particularly not at a time when the prolonged drought (another symptom of climate change) is already making the Coalition’s supporters restive.

Morrison doesn’t invite the climate action interrogation, because the government’s record is abysmal, and I don’t invoke that word lightly. The Liberal and National parties have done everything within their collective power to frustrate climate action in Australia for more than a decade. The Coalition repealed the carbon price. They attempted to gut the renewable energy target. They imposed fig-leaf policies costing taxpayers billions that have failed to stop emissions rising every quarter.

Lest this wrecking, self-interested, destructive behaviour seem a quirk of history – a quaint vestige of the Abbott era curtailed by the sensible man in the Lodge – be reminded that the Liberals blasted Malcolm Turnbull out of the prime ministership only last August in part for the thought crime of trying to impose a policy mechanism that would have reduced emissions in the electricity sector.

Reflections on a catastrophic week of bushfires

Not content with that, the Coalition, Morrison and his ministers, also claimed during the May election that an emissions reduction target broadly consistent with climate science would be a wrecking ball in the Australian economy. Not content with that, Morrison and his ministers characterised a sensible policy by Labor to try and encourage the electrification of the car fleet to reduce emissions in transport as a “war on the weekend”.

What Australian voters needed after the election in May was a government of whatever stripe prepared to put the country on an orderly path towards decarbonisation.

But what the Coalition needed was different. It wanted to remain in power, and one of the principle means to power it deemed necessary proved to be convincing voters in the outer suburbs and regions that Bill Shorten was crazy and shifty about climate change and would confiscate your ute.

To put this point very starkly, there was a climate election in May, and the climate lost.

I hope it’s clear by now, as a consequence of this heart-warming romp through recent political history, that the arbitrary prohibition of the week – we can’t talk about climate because the country is burning – is about politics, and about self-interest, and not about anything else.

And rather than applying false balance and blaming everyone and declaring the whole business of politics and democracy a debacle, let’s also acknowledge that everyone has certainly stuffed up at one point or another, but one political movement more than any other bears the responsibility for Australia’s failure to get on with the necessary transition to low emissions.

That’s the Liberal and National parties.

Read the full article here.

The dead to date in the 2019 NSW bushfire season

77 year-old man & 68 year-old woman burnt inside their home on Deadman Creek Road in Coongbar, Upper Clarence Valley in October

53 year-old woman burnt in her home at Johns River, north of Taree in November

elderly man found in a burnt out car at Wytaliba, east of Glen Innes in November

68 year-old woman burnt on her property at Wytaliba in November

58 year-old man burnt at the southern end of the Kyuna Track at Willawarrin, 34km west of Kempsey in November

You might have found Juice Media's Honest Government Ad on the Cashless Debit Card humorous - the interview is deadly serious

EPISODE SUMMARY Welcome to Episode 5, in which we go into more depth on the topic of our latest Honest Government Ad: the Cashless Welfare Card - aka Class Warfare Card. We speak with two members of the Say No Seven group, which has been spearheading the fight against this bullshit.

Interview with Say No Seven group members starts at 5:09mins.

The Video

*

Morrison Government accidentally tells us more than it intended about its future plans for more dams?

Eighteen pages of 'talking points' compiled by the Prime Minister's Office were accidentally released to Australian journalists on Monday 14 October 2019.

These talking points predictably blame Labor in a look-over-there-not here manner, continue Scott Morrison's personal war on the poor and vulnerable and refuse to look climate change in the eye.

Interestingly for folks in the NSW Northern Rivers region, these points confirm federal government support for abandoning certain federal/state provisions contained in legislation covering water, environment and biodiversity when it comes to building new dams.

The document also lets the cat of the bag when it reveals a wider purpose behind building a Mole River dam in Tenterfield Shire.

Google Earth snapshot of a section of the Mole River, NSW

The current proposal according the PMO is for a 100,000 megalites dam (basically the size of Karangi Dam in Coffs Habour LGA) which Morrison & Co see as assisting not just Tenterfield Shire but also as potentially useful to southern Queensland (See P.4). Morrison expects this dam to be 'shovel ready' two years from now, in 2021.

Water NSW released an Upper Mole River Dam fact sheet at the same time those errant talking points escaped inot the wild. This has the proposed Mole River dam as between 100 and 200 gigalites (ie., between 100,000 to 200,000 megalitres) and costing est. $355 billion. However, Water NSW does not see this proposed dam being 'shovel ready' until 2024 with dam construction completed sometime between 2026 and 2028.

Morrison's 100,000 megalitre dam would be ample to supply the needs of a NSW shire whose total population is yet to reach 7,000 residents, but is perhaps not entirely adequate to cover the needs of local irrigators into a future which is rapidly heating up and drying out.

So why would this such dam be thought capable of supplying water to southern Queensland and where would the potential additional 100,000 come from?

Water NSW data shows that Mole River catchment annual rainfall was less than 600mm in 13 of the last 18 years and, as Professor Quentin Grafton, water economist, ANU and UNESCO Chair in Water Economics and Transboundary Water Governance tells us, at 600mm or less annual precipitation a dam will not fill.

Perhaps the Mole River dam is only meant as a water storage staging post as much of the water capacity is intended to travel elsewhere?

Perhaps Prime Minister Scott Morrison and Minister for Water Resources David Littleproud are paving the way for a raid on a headwater tributary, the Maryland River, or on the Upper Clarence River itself - in order to forever pipe bulk water to Littleproud's electorate of Maranoa in southern Queensland?

Two local governments in Littleproud's electorate are lobbying hard for permission to pipe Clarence River water to their areas and, after all the Mole River is approximately 79kms as the crow flies from the headwaters of the Clarence River as well as less than 57kms in a direct line from Stanthorpe in Maranoa.

Coalition talking points by Max Koslowski on Scribd

Seems no-one is really happy with Australian Prime Minister Scott Morrison's religious freedom bills

Armed with what appeared to be a sense of personal righteousness, in August 2019 Australian Prime Minister, Liberal MP for Cook and self-proclaimed man willing to "burn" for Australia, Scott John Morrison, released a draft Religious Discrimination Bill 2019 along with the Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.

Not everyone is happy with the contents of these bills.

For the institutional religions the bills do not go far enough. While for legal academics, industry bodies and human rights agencies these bills go too far. 

This is a selection of views publicly expressed.......

The Sydney Morning Herald, 4 October 2019: 

Australia's Catholic Church says the federal government's draft religious discrimination laws are "problematic" and require major changes to avoid unwanted "lawfare" and ensure religious bodies keep their ability to hire and fire at will. 

The demands from the country's largest church increase the pressure on Attorney-General Christian Porter to go back to the drawing board on a process that started with 2017's religious freedom review by Philip Ruddock. 

In particular, the Catholic Church wants special rights for religious schools to extend to religious hospitals and aged-care facilities, as well as an explicit override of state anti-discrimination laws. 

And despite the special rules for schools, the peak Catholic school body complained the draft law still "does not provide our schools with the flexibility they require" to ensure staff and students adhere to the tenets of their faith. 

The head of the National Catholic Education Commission (NCEC), former Labor senator Jacinta Collins, said Australia's 1750 Catholic schools must retain their legal right to hire and fire - and accept students - based on how well a person fit into "the ethos" of the school. That included whether someone was baptised as Catholic, or whether they had undermined the tenets of the faith by publicly entering a same-sex relationship or marriage. 

In a 27-page submission to the government on behalf of the Australian Catholic Bishops Conference, the Archbishop of Melbourne Peter Comensoli said the laws "require some significant amendment" to properly assist people of faith. 

He stressed religious hospitals and aged-care facilities "must" be included as religious bodies and enjoy the same hiring and firing rights as religious schools, with the Catholic Church the largest non-government provider of healthcare services in Australia. 

The Age, 4 October 2019: 

Religious believers could be free to publicly shame rape survivors under the federal government’s proposed “religious freedom” laws, Victoria’s Equal Opportunity and Human Rights Commissioner has warned. 

Commissioner Kristen Hilton also noted an unmarried woman would be powerless to seek redress if a doctor told her she was “sinful and dirty” for requesting contraception on the basis of a religious conviction. 

The commissioner has warned federal Attorney-General Christian Porter that his proposed new laws, which the government says are designed to protect the rights of people of faith to express their religious views, risks trampling on the human rights of other Australians…… 

Ms Hilton writes in her submission that the religious freedom laws might allow a worker in a health service to go on social media in their own time and denigrate the homosexuality of sexual abuse survivors. 

Another concern for the commissioner is the potential under the proposed laws that a private business or religious group could demand the right to provide sexual health education in government schools and tell children that homosexuality is an illness and that the use of contraceptives is a sin. 

A clause in the draft bill stating that expressions of belief should be protected from anti-discrimination laws could have the effect, Ms Hilton wrote, of "emboldening some people to characterise survivors of sexual assault or rape as being blame-worthy for not being sufficiently modest or chaste."….. 

“But religious expression needs to be balanced against other rights, such as the right to be free from discrimination,” the Commissioner wrote. 

“This bill does not get the balance right. 

“By privileging religious expression, the rights of other people are diminished."  

The Guardian, 4 October 2019: 

Legal academics and the Diversity Council have warned that the Coalition’s proposed religious discrimination bill is unworkable for employers and will thwart policies designed to create safe and inclusive workplaces. 

In a joint submission, the academics warn the bill’s proposed ban on workplace policies regulating religious speech would leave employers in the invidious position of having a duty under occupational health and safety laws to create safe workplaces, but being restrained in their ability to prevent bullying. 

The Australian Chamber of Commerce and Industry has warned the bill does not properly define religion, meaning that Indigenous spirituality could be excluded by the common law definition while “esoteric or emerging religions” are protected. 

The draft bill would prevent employers from having codes of conduct that ban religious speech in the workplace or on social media, on the grounds that such a ban would indirectly discriminate on the grounds of religion. The provision exempts large employers only if they can show they would suffer “unjustifiable financial hardship” without the rule. 

The academics’ submission – coordinated by Liam Elphick and Alice Taylor and signed by Professors Beth Gaze, Simon Rice and Margaret Thornton – noted the effect of the section is that religious speech “would have greater protection from employer intervention than any other statement or expression”. 

For example, an employer with a code of conduct banning employees from publicly engaging in controversial political debates would not be able to impose the rule on a religious employee who wanted to oppose marriage equality. A gay employee, however, would be restricted from publicly supporting it. 

“There are also workability issues in how an employer can factually prove that a conduct rule is ‘necessary’ to avoid unjustifiable financial hardship, considering the very high standard required to prove necessity,” the academics said. 

The academics warned the clause exempting religious speech from federal, state and territory discrimination protections would create an “unworkable situation for businesses in regard to employment”. 

“Work health and safety laws impose a positive duty on employers to prevent bullying, and discrimination laws require businesses to provide their services free from discrimination, yet [the exemption] would authorise bullying and discrimination,” they wrote. 

The Australian, 1 October 2019: 

The Anglican Church says the Morrison government’s draft religious discrimination bill contains problems “so serious” it cannot support it in its current form, warning that some groups like Anglicare and Anglican Youthworks may not be protected. 

In its submission to the government, the Anglican Church Diocese of Sydney outlined seven issues to be addressed and called on Attorney-General Christian Porter to expedite the Australian Law Reform Commission’s inquiry into laws that impact on religious freedoms. 

Under clause 10, religious bodies “may act in accordance with their faith” and do not discriminate against a person if their conduct may reasonably be regarded as in accordance with their doctrines, tenets, beliefs or teachings. A religious body that “engages solely or primarily in commercial activities” is excluded. 

Bishop Stead said the explanatory memorandum made it clear religious hospitals and religious aged-care providers would not be considered religious bodies. 

Anglican Youthworks, which charges fees to run “Christian Outdoor Education” programs, could also be disqualified because it engaged in commercial activity.While commending the bill, Bishop Stead said the clause might have a perverse effect. 

The Guardian, 30 September 2019: 

Key provisions of the religious discrimination bill may be unconstitutional because they allow medical practitioners to refuse treatment, and privilege statements of religious belief, an academic has warned. 

Luke Beck, a constitutional and religious freedom expert at Monash University, warned the Coalition’s exposure draft bill may be incompatible with international law and therefore not supported by the external affairs power in the constitution. 

The submission echoes concerns from the Australian Human Rights Commission and Public Interest Advocacy Centre that the bill will licence discriminatory statements about race, sexual orientation and disability on the grounds of religion, and that it privileges religion over other rights. 

What is the religious discrimination bill and what will it do? Read more The bill has been criticised for overriding state and federal discrimination law, including section 18C of the Racial Discrimination Act, which prohibits speech that offends, insults or humiliates people based on race. 

Beck argued the bill provided a “bigger sword” to religious people’s statements of belief than those of non-religious people. Statements of belief can be made “on any topic whatsoever” provided they “may reasonably be regarded” as in accordance with a person’s religious beliefs. 

By contrast, statements of non-belief must deal only with the topic of religion and “arise directly” from the fact the person does not hold a religious belief, the associate professor said.  

Freedom For Faith, undated submission:

The overwhelming concern of faith-based organisations across the country with whom we have spoken is about the effect of the Bill on their religious mission, with particular reference to their staffing policies, but also in relation to other issues. 

Staffing policies in faith-based institutions 

At a meeting in Sydney with a range of faith leaders a few weeks ago, the Prime Minister promised that the law would not take faith groups backwards in terms of protection of religious freedom. The difficulty is that this Bill does, in relation to staffing of faith-based organisations. The issues are existential ones for many faith-based organisations. If the issues are not resolved, this may lead us to conclude that the Bill is better not being enacted. That said, we have every confidence that the Attorney-General will be able to sort the drafting problems out. 

Currently, at least in some States, it is lawful for faith-based organisations to appoint, or prefer to appoint, adherents of the faith without breaching anti-discrimination laws. So for example, a Catholic school may prefer practising Catholic staff, or at least practising members of other Christian denominations. A Jewish school may prefer Jewish staff, and so on. This is no different to a political party which may choose or prefer staff who support the policies of the party, or an environmental group that wants staff who will believe in its mission. Organisations that exist for a particular purpose or are associated, for example, with a particular ethnic group, need to be able to have staffing policies that reflect their purpose and identity. 

This is not a right to discriminate. It is a right to select. And it is just plain common sense. A Church’s childcare centre is not like the Commonwealth Bank or a shop selling bedroom furniture. The childcare centre is part of the mission and ministry of the Church. If it could not insist on employing Christian staff, or at least having a critical mass of Christian staff, it would cease to be a Christian ministry. 

Many faith-based organisations have a strong preference for staff who are practising adherents to the faith, in order to maintain their religious identity and culture. However, larger organisations typically do not make it an inherent requirement of working there, because they need the flexibility to meet their staffing needs without drawing from too narrow a pool......


Neither of these examples cover situations where there is merely a preference to employ practising Catholics or practising Christians more generally. Furthermore, even if a Catholic school or other charity did have a policy of only employing Catholic staff, it would only be lawful if this could reasonably be regarded as in accordance with the doctrines, tenets, beliefs and teachings of Catholicism. That may be a difficult test to satisfy in the eyes of a court. The court may find it hard to see how the Catholic school’s preference in terms of employment may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion. The school, however, may take the view that it is a necessary implication of their doctrines that they want to maintain a Catholic ethos by having a “critical mass” of believing staff. Whether or not this policy does flow from religious doctrines – it is really about the purpose of having a Catholic school – it would be best if the legislation made it clear that such a policy was not unlawful.

Christian Schools Australia, undated:

In conjunction with the release of this package of Bills the Government narrowed the Term of Reference of the referral to the Australian Law Reform Commission (ALRC) of the other aspect of the response to the Religious Freedom Review of interest to Christian schools and deferred the timetable for this review. 

While the substance of the ALRC review remains the same it will now do so in the light of the proposed legislation circulated last week. Rather than releasing a Discussion Paper next week it will now release a discussion paper “in early 2020” with the reporting deadline to Government pushed back from April 2020 to 12 December 2020. Although claimed to “reduce confusion for stakeholders” the amended timeline will require the Religious Discrimination Bill and associated legislation to be finalised BEFORE the discussion paper on proposed amendment to the existing amendments are released. 

CSA is concerned that this will not allow appropriate consultation on the complete package of reforms affecting Christian and other faith-based schools. 

We have raised this with the Attorney-General’s office and will continue to advocate for a more coordinated response to both aspects of the whole package.

Australian Human Rights Commission, 27 September 2019: 

However, the Commission is concerned that, in other respects, the Bill would provide protection to religious belief or activity at the expense of other rights. The Bill also includes a number of unique provisions that have no counterpart in other anti-discrimination laws and appear to be designed to address high-profile individual cases. As a matter of principle, the Commission considers that this is not good legislative practice. As a matter of substance, the Commission considers that this may lead to unintended and undesirable consequences. 

The Commission’s main concerns regarding the Bill are as follows. 

First, the scope of the Bill is overly broad in defining who may be a victim of religious discrimination and, arguably, too narrow in defining who may be found to have engaged in religious discrimination. 

Unlike all other Commonwealth discrimination laws, which focus on the rights of natural persons (that is, humans) to be free from discrimination, the Bill provides that claims of religious discrimination may be made by corporations including religious institutions, religious schools, religious charities and religious businesses. This is a significant departure from domestic and international human rights laws which protect only the rights of natural persons. 

At the same time, the Bill provides that ‘religious bodies’—including religious schools, religious charities and other religious bodies—are entirely exempt from engaging in religious discrimination if the discrimination is in good faith and in accordance with their religious doctrines, tenets, beliefs or teachings. This is a wide exemption that undercuts protections against religious discrimination, particularly in the areas of employment and the provision of goods and services, and requires further close examination. 

Secondly, the Bill provides that ‘statements of belief’ that would otherwise contravene Commonwealth, State or Territory anti-discrimination laws are exempt from the operation of those laws. Discriminatory statements of belief, of the kind described in clause 41 of the Bill, whether they amount to racial discrimination, sex discrimination or discrimination on any other ground prohibited by law, will no longer be unlawful. The Commission considers that this overriding of all other Australian discrimination laws is not warranted, sets a concerning precedent, and is inconsistent with the stated objects of the Bill, which recognise the indivisibility and universality of human rights. Instead, this provision seeks to favour one right over all others. 

Thirdly, the Commission is concerned about two deeming provisions that affect the assessment of whether codes of conduct imposed by large employers on their employees, and rules dealing with conscientious objections by medical practitioners, will be considered to be reasonable. Unlike all other Commonwealth discrimination laws, the Bill prejudges the assessment of reasonableness by deeming some specific kinds of conduct not to be reasonable. This means that, in those cases, not all of the potentially relevant circumstances will be taken into account. 

Fourthly, those deeming provisions also have an impact on the ability of employers to decide who they employ. The Bill provides that employers may not decide that compliance with a code of conduct that extends to conduct outside work hours, or with rules dealing with conscientious objection, are an inherent requirement of employment, if they would be unreasonable under clause 8. This means, for example, that the narrow deeming provisions about what is reasonable for organisations with an annual revenue of more than $50 million also has an impact on the decisions by those employers about the conditions they may set with respect to employment. 

These four issues, and a range of others relating to all three Religious Freedom Bills, are dealt with in more detail in the body of the Commission’s submission. In revising the Bill, attention needs to be paid not only to its text, but also to the eventual Explanatory Memorandum. At several points the current Notes provide examples and explanations that suggest a very limited scope for religious organisations to retain their ethos and identity, and conversely an expansive scope for suppression of free speech. It is difficult to reconcile these Notes, at various points, with government policy as expressed by the Prime Minister and Attorney-General.