NAVA's submission: Religious Freedom Bills

Illustration by Emily Johnson.

The Attorney-General’s Department

FoRConsultation@ag.gov.au

Friday 24 January 2020

Re: Religious Freedom Bills – Second Exposure Drafts

NAVA welcomes the opportunity to contribute to this work.

The National Association for the Visual Arts leads advocacy, policy and action for an Australian contemporary arts sector that’s ambitious and fair. Through the Code of Practice for the Professional Australian Visual Arts, Media, Craft and Design Sector, we set national best practice standards for the contemporary arts industry. Our community of over 50,000 Members, subscribers, friends and followers consists of artists, artsworkers, arts organisations, and arts lovers including business and philanthropy.

We work hard to achieve recognition and respect for artists – for their practice, for their work and for their rights. We do this because the voice of the artist offers Australia a deep perspective on the past, a vital perspective on today, and a compelling perspective on the future. We believe that the contemporary arts offer rigorous, ethical and valuable approaches to rethinking our personal, social, environmental and political priorities. Artists who are valued and respected can sustain the ambitious, adventurous careers that create the Australian culture. This is our focus.

As the nation’s peak body for the contemporary arts sector, NAVA upholds human rights and freedoms of expression, and we also uphold respect for diverse cultures. Our Strategic Plan makes our values explicit: we value bold, rigorous thinking that translates into ethical action. We respect human rights and dignities and value cultural diversity. We love collaboration, experimentation and openness to change. We admire creative resilience over a sustained status quo, clear policy over convention, and timely action over frustration. We work together courageously.

At a time when cultural, racial and gender identity vilification is increasing, including attacks on artists, Australia needs robust laws that address the realities before us. Australia’s existing suite of anti-discrimination laws at state and federal level currently provide the protections needed to safeguard our cultural diversity, which has been celebrated internationally as one of the world’s most successful. However, the behaviour of some of our elected representatives, a small number of high-profile individuals, and a minority of the media, actively conflict with both the spirit and the letter of the law in these areas, amplifying discriminatory and hateful voices.

Stronger integrity measures to regulate the behaviour of politicians, as well as public interest journalism and social media platform providers, would help redress these dangers – however, that is not what is being proposed here.

NAVA does not support the introduction of the Religious Freedoms Bills. 

Not only do they offer no improvement on already legislated human rights and anti-discrimination protections, but worse, the proposed Bills erode currently legislated rights and protections. This is both unnecessary and unconscionable.

In presenting our response, NAVA endorses the submissions of the Australian Human Rights Commission, the Australian Council of Human Rights Authorities, the Human Rights Law Centre, the Public Interest Advocacy Centre, and the Diversity Council of Australia. Our shared concerns include:

• Existing anti-discrimination laws already determine whether or not religious statements of belief constitute discrimination on the basis of sexual orientation, gender or cultural identity;
• The proposed bills override state legislation and weaken other anti-discrimination laws, particularly in relation to amendments to the Age Discrimination Act 2004, Charities Act 2013, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and the Sex Discrimination Act 1984;
• Discriminatory “statements of belief” – whether they amount to racial discrimination, sex discrimination or discrimination on any other ground currently prohibited by law – will no longer be unlawful;
• By allowing education professionals to present “statements of belief” alongside statements of fact, the proposed bills undermine high-quality education, especially when matters of complexity are being discussed;
• By prioritising the rights of religious bodies over the rights and interests of children, the proposed bills allow schools to discriminate against lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) children;
• By allowing health professionals to conscientiously object to providing a lawful and medically appropriate health service, the proposed bills undermine access to health care (especially in outer-suburban, regional and remote areas), high-quality public health outcomes, and the health care professions themselves;
• The proposed bills undermine the ability of large employers to enforce codes of conduct designed to limit harmful speech by employees, making it more difficult for toxic workplace behaviours such as bullying to be redressed, as discriminatory statements made by employees of a religious background would be protected by law, but not when made by a non-religious employee;
• The definition of a “natural person” to include corporate entities radically alters the meaning of discrimination on the basis of “belief”, with unknown and unintended consequences that have not been investigated;
• Excessively broad exemptions from religious discrimination by religious bodies is proposed, effectively licensing religious bodies to express and condone religious speech that is discriminatory and harmful;
• The proposed bills do not achieve a fair balance between freedom of religion and the rights of other people.   

Should these changes be implemented, there would be an increase in racist, sexist, homophobic and culturally intolerant behaviours, increasingly polarising Australia’s diverse communities.

Additionally, these changes risk undermining Australians’ experience and enjoyment of arts and culture, as well as professional practice in the arts and the arts industry more broadly. By its nature, art is transgressive. It challenges our perceptions, inviting us to rearticulate our values and imagine new futures. Art invites us to ask new questions in new ways. The proposed bills introduce unwelcome risks to the arts, such as:

• Teachers in religious schools omitting the work of historic and/or contemporary LGBTIQ+ artists, or artists of other cultures and faiths, or artists with disability, from curriculum, or undermining education quality by expressing discriminatory and socially harmful “statements of belief” about LGBTIQ+ people, or people of other cultures or faiths, or people with disability;
• Religious schools refusing to employ artists who do not share their religious views;
• Religious organisations taking legal action against art galleries and other arts organisations for discrimination if work is being exhibited that conflicts with their interpretation of cultural mythologies;
• Religious activists interfering with the work of artists qualified in social work and/or community-engaged practice, causing social and psychological harm – in such instances, the status of Working With Children checks, and other formal certifications which qualify artists to work in sensitive contexts, would be uncertain in relation to the rights of the religious organisation;
• Artists refused employment at denominational schools, day care centres, community centres etc., because they are not of the same religion, undermining arts access and education, with particularly negative impacts in outer-suburban, regional and remote areas;
• Teachers telling school groups on excursions to galleries and other art spaces that the artist whose work they’re experiencing is “evil” or fated for “hell” because of the artists’ cultural or gender identity.

While these prospects may seem alarmist, they fall within permissible and legally protected conduct should the proposed bills be enacted as law. Arts education, the career prospects of artists, and the viability of the arts industry, would all be impacted negatively.

No work has been done to understand the arts and cultural implications of the proposed Religious Freedoms Bills. And so we risk instituting an Australia where so-called “good faith” “statements of belief” can be made in a workplace, in an art gallery, in a classroom, in a doctor’s rooms, or at a hospital emergency room that threaten people’s rights, professional reputations, creative careers, physical and mental health, and indeed their lives.

NAVA opposes the Religious Freedoms Bills and strongly encourages the Australian Government to consider effective and evidence-based approaches to redressing the increase in cultural, racial and gender identity vilification. Such measures could include:

• A federal integrity commission to strengthen standards of behaviour expected of politicians;
• News and social media regulation that strengthens the role of the Australian Press Council and any other relevant institutions;
• Exemplary cultural leadership from our elected parliamentarians.

Please do not hesitate to contact me for any further information I can provide.

Sincerely

Esther Anatolitis

Executive Director