Tanya Plibersek says a Muslim woman on a train in Sydney has no protection under the law if someone yells at her for wearing a hijab. Is that correct?

In response, Ms Plibersek noted that “in lots of parts of Australia, people of faith don’t have any protection at all”.

“Right now in Sydney, if you’re a Muslim woman sitting on a train and someone yells at you for wearing a hijab, you’ve got no protection under the law from that,” she said.

Is that correct? RMIT ABC Fact Check investigates.

The verdict

Ms Plibersek’s claim is overreach.

There are no religious vilification laws at either a state or federal level which would protect someone in NSW from vilification as described by Ms Plibersek, but experts told Fact Check other legislation could come into play.

For example, laws governing offensive language in public and behaviour on public transport could offer the woman some protection against the harassment described.

As one expert said, there was “nothing to stop the use of [offensive language laws] to address public Islamophobic comments”.

The context of the claim

Ms Plibersek’s claim was made in the hours following a decision by the government to indefinitely shelve its religious discrimination bill — a 2019 election promise.

According to the text of the proposed legislation, its objectives are to recognise the “freedom of all people to have or adopt a religion or belief of their choice” as well as the freedom to “manifest this religion or belief either individually or in community with others”.

Specifically, the bill aims to eliminate discrimination on the grounds of religious belief or practice and to ensure all people have the same rights to equality regardless of religious belief.

Controversially, the bill also contains a clause ensuring that people are free to make “statements of belief”, which as the Shadow Attorney-General, Mark Dreyfus, argued in parliament, would override any existing anti-discrimination laws.

“Lawyers can argue about the precise legal impact of this provision, but it is impossible to escape the fact that the provision is drafted in a way that suggests people of faith should be able to discriminate against other Australians on the basis of race, gender, sexual orientation, age and disability,” Mr Dreyfus said during debate about the bill in the lower house.

“This is what the provision says. It literally says that a statement of belief will not constitute discrimination under any of Australia’s existing anti-discrimination laws.”

It is this provision that the questioner on Q+A referenced when asking Ms Plibersek about her party’s support for the legislation.

“People of faith already have some of the strongest protections in this country,” the woman said.

“What this bill will do is allow discrimination in the name of faith, not only towards LGBTIQ+ folk, but also women, unmarried parents, people living with a disability, people from multicultural backgrounds, and people of other faiths.”

Ms Plibersek’s response to the questioner did not touch on the statements of belief clause, but rather focused on Labor’s support for a religious vilification amendment to the bill.

“We [Labor] do think that people of faith need to have protection from discrimination and vilification, just as every Australian deserves to be protected,” she said.

What happened with the bill?

In the early hours of February 10, the day Ms Plibersek appeared on Q+A, the religious discrimination bill passed through the House of Representatives with the support of the Coalition (minus Tasmanian Liberal MP Bridget Archer) and Labor.

Space to play or pause, M to mute, left and right arrows to seek, up and down arrows for volume.

WATCH

Duration: 2 minutes 43 seconds2m 43s

A crossbench amendment to the Sex Discrimination Act, designed to protect transgender students, also made it through the Lower House after five Liberal Party MPs crossed the floor to vote against the government.

Other amendments, including a Labor proposal to include a religious vilification clause in the religious discrimination legislation, as well as one addressing the statements of belief clause, failed to find support in the lower house.

Labor’s religious discrimination amendment would make it “unlawful for a person to engage in conduct, on the ground of religious belief or activity of another person” or group, that would be considered to “threaten, intimidate, harass or vilify” that person or group.

According to Mr Dreyfus, meanwhile, the statement of belief amendment would “ensure that no existing protection against discrimination” would be “impacted in any way” by the statement of belief clause.

Despite failing to pass these amendments in the House of Representatives, Labor reportedly planned to fight for them in the Senate, where the government does not hold a majority.

However, when the bill reached the Senate later on February 10, a motion to ensure it would be debated that day was voted down and the bill was automatically adjourned to the next sitting, the Clerk of the Senate, Richard Pye explained.

“As to what happens next, the bills are on the Senate’s Notice Paper,” Mr Pye said in an email.

“The government is given the power under the Senate standing orders to list bills in its preferred order, so it is a matter for the government whether and where to list the bills for debate.”

As previously mentioned, the government has indicated it does not plan to bring the bill on for debate before the impending federal election.

Anti-discrimination laws in NSW

Discrimination law in Australia exists at both a federal and state level, as Fact Check has detailed in a number of previous articles.

Simon Rice, a professor of law at the University of Sydney, told Fact Check that “neither any federal anti-discrimination law nor the NSW Anti-Discrimination Act prohibits religious vilification or religious discrimination”.