By Ally King
'In contemporary society, it is fair to say that ‘discrimination’ now has an inherently negative connotation … A person who prefers to drink water over bleach is exercising discrimination, that is, discerning that water is better to drink than bleach. The real issue, especially when determining thresholds for legal liability, is when discrimination can be exercised.’
This is Australia’s new Human Rights Commissioner Lorrain Finlay, commencing 22 November 2021 for a five-year appointment. The context for this quote? Originally, a co-authored submission to the Inquiry into the status of the freedom of religion or belief … around the world, including in Australia by the Joint Standing Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee. These lines are quoted again in Ms Finlay’s co-authored submission to the Expert Panel into Religious Freedom in 2018, which those historically minded might remember, was ‘been widely seen as a way of appeasing conservatives in the Coalition who opposed same-sex marriage’.
To provide further insight, the incoming Commissioner’s own Human Rights Commission helpfully provides the following definitions:
'Discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. This is known as ‘direct discrimination’.
It is also discrimination when an unreasonable rule or policy applies to everyone but has the effect of disadvantaging some people because of a personal characteristic they share. This is known as ‘indirect discrimination’.
Discrimination can be against the law if it is based on a person’s:
· disability, or
· race, including colour, national or ethnic origin or immigrant status
· sex, pregnancy, marital or relationship status, family responsibilities or breastfeeding
· sexual orientation, gender identity or intersex status.
The comparison of the privileged group to the discriminated group as water to bleach could, with extreme application of the principle of charity, be overlooked as an extremely unfortunate metaphor. However, the submission to the Expert Panel goes on:
'In our view, there is presently an unjustifiable imbalance between religious freedoms and antidiscrimination laws, with the balance weighted in favour of the latter. All too often, religious freedom in Australia is treated as a ‘secondary’ right that is not given equal weight with other human rights, in particular equality rights'
Freedom of religion is such a well-trodden political debate in Australia that the casual observer could be forgiven for assuming that such freedom is under consistent, if not particularly visible, attack on all fronts. Helpfully, the Australian Law Reform Commission, another Government body, provides a snapshot of the state of religious freedoms in Australian in 2016,
'Australians enjoy the freedom to worship and observe religion, and the freedom not to be coerced into engaging in religious practices. There are very few, if any, provisions in Commonwealth laws that interfere with religious freedom in these ways. The main areas of tension arise where religious freedom intersects with anti-discrimination laws, which have the potential to limit the exercise of freedom of conscience outside liturgical and worship settings …'
The ALRC goes on to provide the following examples:
'Some religious organisations discriminate on these and other grounds, for example by only appointing male priests and ministers, by excommunicating people who have sexual relationships outside marriage, or employing only teachers who are religiously observant in their schools. In some cases, such conduct will be covered by exemptions to anti-discrimination laws, as discussed below.
In other cases, conduct considered as giving effect to religious beliefs may constitute unlawful discrimination. FamilyVoice Australia observed that some of the grounds on which discrimination is prohibited in the SDA, for example, ‘directly contradict moral values of the Christian faith and other faiths’.
Interestingly, it appears as though while the exercise of ostensibly ‘discriminatory’ practises in good faith (pun intended) and in line with religious practises were already at the time exempted from the anti-discrimination legislative regime, use of faith as a discriminatory tool in its own right were not. Ms Finlay’s call for a Religious Freedom Act, then appears somewhat redundant insofar as it pertains to the freedom to practise religious worship, and perhaps beyond the scope of the Panel insofar as it seeks to entrench new protections on religious rhetoric as a conceit for unlawful discrimination.
From this brief stroll through the Australian Parliament House website’s archives, we have learned that our incoming Human Rights Commissioner is not, perhaps, the Australian queer community. As a member of this community myself, I am not exactly thrilled about this eventuality. Moving forward, however, it appears there is more ground to cover in Ms Finlay’s adventures in the Australian anti-discrimination sphere.
Under s 18C of the Racial Discrimination Act 1975:
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
This clause seems, at first sight, to be a useful addition to Australian law. However, as young and green law students, we are once again saved by the expertise of Ms Finlay, who assures us in her co-authored book No Offence Intended: Why 18C is Wrong that
'Serious concerns have been raised about s 18C’s effect on freedom of expression.
… s 18C is too broad and too vague to be constitutional … s 18C’s breadth and complexity impermissibly infringes the freedom of communication about government and political matters implied from the Commonwealth Constitution.'
As Commonwealth Constitutional Law is a tricky subject that I must confess I crammed rather than studied consistently for, I was unaware that offending, insulting, humiliating and intimidating another person on the basis of race, colour or national or ethnic origin was essential to the machinations of political communication and am humbly reminded once again of the shortcomings that bar me from a career in politics.
These are the sort of hard-hitting observations that are, in the view of the Morrison-Joyce Government, needed in the newest iteration of Australia’s Human Rights Commissioner. Ms Finlay is engaged in topical human rights issues, as shown by her confident criticism of the calls for an Indigenous Voice to Parliament as ‘a form of political segregation’, overruling the Central Land Council’s voice in the matter. Finally, let it not be forgotten that soon-to-be Commissioner Finlay in 2018 derided affirmative consent laws on the basis that ‘they transform any sexual encounter into a potential legal minefield’.
Australians can rest easy knowing that their freedom of political speech is protected on all fronts by such a seasoned veteran. The only lingering question I – and perhaps others have – is that when the queer community, First Nations and POC Australians and women’s human rights are dis-included so eruditely, whose Human Rights Commissioner is she?
Attorney-General’s Department, ‘Freedom of Religion’ (Web page, viewed 13 September 2021) <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/freedom-religion>
Attorney-General Michaelia Cash, ‘Appointment of Human Rights Commissioner’ (Web page, viewed 13 September 2021) <https://www.attorneygeneral.gov.au/media/media-releases/appointment-human-rights-commissioner-5-september-2021>
Australian Human Rights Commission, ‘Discrimination’ (Web page, viewed 13 September 2021) <https://humanrights.gov.au/quick-guide/12030>
Australian Law Reform Commission, ‘Freedom of Religion’ (Web page, viewed 13 September 2021) <https://www.alrc.gov.au/?s=Freedom+of+religion&type=all>
The Guardian Australia, ‘Liberals front Institute of Public Affairs ad attacking Indigenous voice to parliament’ (Web page, viewed 13 September 2021) <https://www.theguardian.com/australia-news/2019/oct/31/liberals-front-institute-of-public-affairs-ad-attacking-indigenous-voice-to-parliament>
Joshua Forrester, Dr Augusto Zimmermann and Lorraine Finlay, Submission to the Parliamentary Joint Committee on Foreign Affairs, Defence and Trade Human Rights Sub-Committee (Submission 179) (June 2017)
Joshua Forrester, Dr Augusto Zimmermann and Lorraine Finlay, Submission to the Expert Panel on Religious Freedom
Joshua Forrester, Dr Augusto Zimmermann and Lorraine Finlay, ‘No Offence Intended: Why 18C is wrong’, Connorcourt Publishing (Web page, viewed 13 September 2021) <https://www.connorcourtpublishing.com.au/No-Offence-Intended-Why-18C-is-Wrong_p_152.html>
Racial Discrimination Act 1975
SBS News, ‘Who is Lorraine Finlay, Australia's new Human Rights Commissioner?’ (Web page, viewed 13 September 2021) <https://www.sbs.com.au/news/who-is-lorraine-finlay-australia-s-new-human-rights-commissioner/5c9452a7-2a4b-4199-b87b-52dbec57c929>