The Religious Discrimination Bill(s), released by Attorney-General Christian Porter in late August, remind me a lot of the ongoing Sydney apartment crisis.
They are the inevitable consequence of a system that has been designed to serve the interests of one group over and above everyone else. Except instead of property developers, these new laws would benefit religious fundamentalists. While those left picking up the tab are women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities, and plenty of others.
And, just like a recently-built Sydney apartment, what might seem shiny and new on first inspection reveals a growing list of defects the closer one looks.
Here then is a look at the serious problems with the Religious Discrimination Bill(s) that we are already aware of (a list I’m sure will grow if we ever have the misfortune of ‘living’ under these shoddily-constructed laws):
The Religious Discrimination Bill will make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities
The worst provision of the Exposure Draft Religious Discrimination Bill is proposed section 41. This provides that ‘statements of belief’ are basically exempt from discrimination complaints under all Commonwealth, State and Territory anti-discrimination laws (including the Fair Work Act 2009).
As long as the person making such comments does so on the basis of their religion and they are made ‘in good faith’, they will be lawful unless the person on the receiving end can show they are malicious, or likely to harass, vilify, incite hatred or violence. In practice, that would be extremely difficult to prove.
This section is a radical departure from our current anti-discrimination framework, under which Commonwealth laws like the Sex Discrimination Act 1984, and State and Territory laws like the NSW Anti-Discrimination Act 1977, operate alongside each other, allowing victims to decide where to complain.
The provision also specifically overrides section 17(1) of Tasmania’s Anti-Discrimination Act 1998, which prohibits conduct that ‘offends, humiliates, intimidates, insults or ridicules’ people on the basis of a wide range of protected attributes, including:
- Sexual orientation
- Lawful sexual activity
- Gender identity
- Intersex variations of sex characteristics
- Marital status
- Relationship status
- Parental status, [and]
- Family responsibilities.
That’s a long list of groups who will find themselves the targets of derogatory comments having lost one of the few effective shields against them.
But that’s exactly what section 41 seems intended to achieve: to make it easier for religious fundamentalists to speak evil, and write evil, comments about different groups. With the obvious consequence that women, LGBTI people and others will be forced to see evil and hear evil comments about themselves.
This provision would build a fundamental imbalance into our existing anti-discrimination system, privileging the rights of one group within society at the expense of everyone else. It must not be allowed to pass.
The Religious Discrimination Bill will make it more difficult for big business to promote diversity and inclusion
Another serious problem of the Exposure Draft Religious Discrimination Bill are provisions which are based on the circumstances of a certain (ex-)footballer.
Proposed sub-sections 8(3) and 8(4) would make it much more difficult for major employers (organisations with revenue of at least $50 million per year) to introduce codes of conduct that prevent employees from making derogatory comments about minorities outside ordinary working hours where those comments are ‘statements of belief’.
The only way an employer will be able to enforce such restrictions is if they are able to demonstrate failure to do so would inflict ‘unjustifiable financial hardship’ on them. On a practical level, it will be extremely difficult to prove hypothetical yet significant future harm in order to justify imposing these rules in the here and now. Many big businesses will (quite understandably) simply avoid doing so.
It should also be noted that ‘unjustifiable financial hardship’ is the only criteria to permit these codes of conduct. They cannot be implemented on the basis of wanting to promote diversity and inclusion within the workplace (including to make other employees feel welcome), or to associate their ‘brand’ with values of diversity and inclusion more broadly – unless they can attach a sufficiently-large dollar value to it.
Once again the likely consequence of these provisions is to make it easier for religious fundamentalists to make offensive comments about women, LGBTI people, single parents, people in de facto relationships, divorced people and people with disabilities, among others. That seems to be the opposite outcome to what a well-constructed anti-discrimination law should achieve.
The Religious Discrimination Bill will make it easier for health practitioners to refuse to serve minorities
The next major defect of the Exposure Draft Religious Discrimination Bill is also found in proposed section 8 – this time sub-sections 8(5) and 8(6). These provisions make it easier for health practitioners to conscientiously object to providing health services.
If, upon reading this, you think these provisions must be referring to ‘controversial’ medical procedures such as abortion and euthanasia, you should be aware they actually cover a much, much wider range of health services.
This includes assisted reproductive technology, where health practitioners would presumably be empowered to ‘conscientiously object’ to providing access to single women, unmarried couples and LGBTI people.
But even that is just the tip of the iceberg in terms of services where it will be more difficult to impose ‘health practitioner conduct rules’ to treat all patients with dignity and respect. Indeed, the definition of ‘health service’ in section 5 ‘means a service provided in the practice of any of the following health professions:
- Aboriginal and Torres Strait Islander health practice
- Dental …
- Medical radiation practice
- Occupational therapy
- Podiatry, [and]
This full list makes it abundantly clear these provisions are not restricted to permitting health practitioners to refuse to perform certain acts, but instead will encourage them to refuse to serve certain classes of people (unless someone can explain what ‘controversial’ procedures are involved in dentistry, medical radiation practice, or optometry).
For example, it could allow a pharmacist to refuse to dispense hormone treatments to trans customers, while providing them to cisgender women. Indeed, this is something that the Human Rights Law Alliance (which is aligned to the Australian Christian Lobby) has been publicly advocating.
If you are now thinking that these provisions have the potential to substantively undermine Australia’s health care system, and in particular the right of all people to access essential health services without fear of discrimination on the basis of who they are, you would be right.
Both of these sets of unusual amendments to the ordinary ‘reasonableness’ test for indirect discrimination (sub-sections 8(3) and (4) re big business, and sub-sections 8(5) and (6) re health practitioners) must be rejected.
The Religious Discrimination Bill will make it easier for religious bodies to discriminate against others
The fourth and final serious problem in the Exposure Draft Religious Discrimination Bill is the broad ‘exception’ in proposed section 10 that would allow religious bodies, including religious schools and registered charities, to discriminate against others on the basis of religious belief, or lack of belief.
Given this provision effectively allows discrimination between religions, it would be tempting for women’s organisations, and groups representing LGBTI Australians, to give it less attention than those outlined above. But it would be ill-advised to ignore its potentially far-reaching consequences.
For example, the test to allow discrimination: ‘conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’, will be much easier to satisfy than the existing criteria in section 37 of the Sex Discrimination Act 1984: ‘an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’ [emphasis added].
If the test in section 10 of the Religious Discrimination Bill becomes law, it would set a negative precedent, with some in the Government then pushing for the same, lower standard to be included in the Sex Discrimination Act (potentially through the current Australian Law Reform Commission inquiry into religious exceptions).
The exception in section 10 also applies to an incredibly wide range of circumstances. For example, it would allow a religious school to expel a student in year 12 for expressing doubts about the school’s religion (something that is specifically excluded under equivalent laws in Queensland, Tasmania, the ACT and Northern Territory, which allow discrimination on the basis of religious belief at admission, but not once enrolled).
Finally, if section 10 becomes law it could set up a potential ‘time-bomb’ for future anti-discrimination reform. If and when we finally achieve repeal of the religious exceptions in the Sex Discrimination Act, this provision could allow religious schools to expel LGBT students who refuse to repent for their sexual orientation or gender identity (where the school attempts to claim they are not discriminating because they are LGBT, but instead on the basis of their religious beliefs about being LGBT).
For all of these reasons, proposed section 10 must be substantially narrowed in order to avoid creating a structural flaw not just in the Religious Discrimination Bill itself, but across anti-discrimination legislation more generally.
These four sets of provisions are dangerous, unprecedented, unwanted and unwarranted additions to Australia’s anti-discrimination regime (so much so they might be described as the four horsemen of our ‘religious freedom’ apocalypse).
They will disturb any sense of balance or proportion in our laws, by making it clear the right of religious fundamentalists to discriminate against others is more important than the rights of women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live their lives free from discrimination.
The Religious Discrimination Bill will ensure that religious belief is privileged in several key ways, in an almost unlimited range of everyday situations.
But they are not the only threats in the draft laws released by the Attorney-General a fortnight ago.
You may have noticed in this article’s title, and introduction, references to Religious Discrimination Bill(s). That’s because, along with the Exposure Draft Religious Discrimination Bill itself, Mr Porter also released the Religious Discrimination (Consequential Amendments) Bill 2019, and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.
While these two Bills have received far less attention than the Religious Discrimination Bill, they too contain provisions that could undermine the human rights of other Australians, including:
The Religious Discrimination (Consequential Amendments) Bill creates the unnecessary position of Religious Freedom Commissioner
The Government’s own Religious Freedom Review (aka the ‘Ruddock Review’) found it was not necessary to create the position of Religious Discrimination Commissioner within the Australian Human Rights Commission.
Despite this, the Consequential Amendments Bill would do exactly that. Further, it frames this position as a Religious Freedom Commissioner, in contrast to the Age, Disability, Race and Sex Commissioners who are all explicitly appointed as ‘Discrimination’ Commissioners.
Finally, adding insult to injury, the Government would be appointing a Religious Freedom Commissioner when LGBTI Australians still do not have our own Commissioner, more than six years since the introduction of protections on the basis of sexual orientation, gender identity and intersex status.
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily amends the objects clauses of anti-discrimination laws
This Bill would introduce the following words into the objects clauses of all other Commonwealth anti-discrimination laws:
‘In giving effect to the objects of this Act, regard is to be had to the indivisibility and universality of human rights, and the principle that every person is free and equal in dignity and rights.’
Which sounds innocuous enough, except that in the explanatory notes for the Bill the only other human right that is specifically mentioned by name is ‘the right to freedom of religion.’
These explanatory notes can and will be used by the judiciary in determining how these amended objects clauses affect the interpretation of the Racial, Sex, Disability and Age Discrimination Acts, potentially giving more weight to so-called religious freedom (at a time when we need to be reducing religious exceptionalism, not exacerbating it).
The Human Rights Legislation Amendment (Freedom of Religion) Bill unnecessarily ‘protects’ charities advocating discriminatory marriage
This Bill would also amend the Charities Act 2013 (Cth) to ensure that charities that advocate for only cisgender heterosexual marriage are not de-registered. Specifically, it would include the following in section 11:
‘To avoid doubt, the purpose of engaging in, or promoting, activities that support a view of marriage as a union of a man and woman to the exclusion of all others, voluntarily entered into for life, is not, of itself, a disqualifying purpose.’
Except, when the Marriage Act 1961 (Cth) was amended in 2017, the Charities and Not-for-profits Commission advised Parliament such an amendment was not needed. And, in the two years since then, there is exactly zero evidence of any charity being adversely affected.
Nor is there any justification for singling out this one discriminatory and exclusionary belief for special protection in our charities regulation.
The Human Rights Legislation Amendment (Freedom of Religion) Bill inserts more discriminatory religious exceptions into the Marriage Act
Speaking of the Marriage Act, this Bill would also insert even more religious exceptions into that law. Specifically, new section 47C would explicitly allow religious educational institutions to discriminate in the provision of facilities, goods and services for the purposes of the solemnisation of marriage.
This would permit schools to discriminate against LGBTI couples, divorced people re-marrying and people who had previously cohabitated – even where these facilities, goods and services are provided publicly on a commercial or for-profit basis.
As I have written previously, the amendments that were included in the Marriage Amendment (Definition and Religious Freedoms) Act 2017 already mean we do not currently enjoy genuine marriage equality in this country. We should be aiming to remove those religious exceptions, not entrench them.
I wrote at the beginning of this post that the Religious Discrimination Bill(s) share several similarities with the ongoing Sydney apartment crisis.
But there is also one key difference – while these plans have been drafted, they have not yet been ‘built’. Which means there is still time to avert this new crisis, for the Morrison Government, and Parliament more generally, to amend the Religious Discrimination Bill and its two accompanying laws, and thereby avoid their adverse impact on large numbers of everyday Australians.
However, if the Government and Parliament fail to listen and take action, and instead pass these Bills unamended, they will be condemning women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disabilities and others to live under the legislative equivalent of Opal Tower, or Mascot Towers.
We will always be fearful of the next crack to emerge: of the next time we are discriminated against simply because of who we are, entirely lawfully, because of somebody else’s religious beliefs. We will never get to feel at home.
To find out more about everyday situations in which religious beliefs will be privileged, check out this twitter thread. And if you’ve enjoyed reading this article, please consider subscribing to receive future posts, via the right-hand scroll bar on the desktop version of this blog or near the bottom of the page on mobile.
12 thoughts on “The Growing List of Problems with the Religious Discrimination Bill(s)”
Hello there – well, would you like to add to 17(1) that it is prohibited to offend, humiliate, intimidate, insult or ridicule people because of their religion?
And yes, there HAVE been incidents where charities have been in danger for advocating traditional marriage, but there have been NO incidents in Australia where a homosexual student has been expelled yet, and all religious schools have stated that’s not something they even want to do.
If they changed the name of the minister to the Religious Discrimination Minister, would that mean you’d be alright with it? I’m both a woman and disabled, by the way.
Thanks for your comment Miriam.
In terms of whether religious belief should be added to section 17(1) of the Tasmanian Anti-Discrimination Act, that is a matter for the Tasmanian Parliament. You may well find though that it is resisted by some of the major churches, given they reserve the right to speak out against religious minorities.
As for charities being in danger, that simply isn’t true. There is no charity that has been at any risk of being deregistered for supporting a discriminatory definition of marriage. If there had been, it would have been endlessly plastered over the front pages of the national right-wing broadsheet. It’s absence means it simply hasn’t happened.
In terms of discrimination against LGBT students by religious schools, it is sadly far too common. How do I know? It happened to me: https://alastairlawrie.net/2019/03/17/the-longest-five-years/
Finally, I think you mean Religious Discrimination Commissioner, and yes that would be an improvement, although a) the Ruddock Review said it wasn’t necessary and b) there is still no LGBTI Commissioner (which, given the disparate levels of anti-religious, and anti-LGBTI, discrimination in Australia, would seem to me to be a much more necessary appointment).
Thank you for responding, Alastair. To give my concerns context, I am an Anglican.
I think the problem here is not ill-will on your part, but just ignorance, which there is nothing wrong with. So, I’ll show you why we are concerned:
Now, this is in New Zealand, not Australia, but in Australia, in the review held before a decision was made if there should be a religious discrimination bill at all, this may be one reason why it was decided it was needed:
Point 1.176 “The panel also heard from stakeholders who argued that religious bodies should not receive any public funding and should not be eligible for government funded services – regardless of whether they discriminate or not
Point 1.180 “The panel was conscious that there is a qualitative difference between funding a faith-based organisation to deliver a service and funding a for-profit organisation. The panel noted the extraordinary contribution of volunteers in not-for-profit organisations to the public benefit. While this is true for not-for-profit organisations generally – faith-based and non faith-based – the panel noted that faith-based organisations have an extraordinary capacity to mobilise unpaid contributions and the Panel noted the commitment of many of the persons participating in those organisations for reasons of faith
Here, I’ll show you another way: if you walk into a library, or any public building, you may well see a rainbow flag asserting that this place affirms the LGBT+ community. I have no problem with that as a Christian, even though I disagree with your views. But, what would happen if a cross was put up in a library or other public building? Would that be accepted?
Or another way, I often hear on radio and TV and read everywhere the phrase about my believing in a “childish fantasy about a big sky-fairy that grants wishes” which you can say if you want to, that’s your view on the subject, even if it shows no understanding of the subject. But what if, in equal ignorance, someone was to say “Saying you are a woman when you are a man and insisting everyone agree with you is an adolescent throwing a tantrum to get what they want.”
Another real life happening, in Burwood Girl’s High School a drag queen was invited to talk to students as part of “Proud Schools” and students were asked to show their support for homosexual marriage by signing a “Tue Colours” mural in the playground. Students who didn’t say anything denigrating but for reasons of faith declined were bullied. That is not an isolated incident, either. Now, the fact is, I have experienced hatred just for being a Christian, I know Muslims who have, and Jews. You have your one story, and I’m very sorry to hear that you were bullied by these young men. How about this:
Anti-Semitic sentiment and violence is sadly a problem in Australia too, there are way more religions that just Christianity that are praying this bill will go through. Please, think about your arguments. Martin Luther was quite right – if something is sinful, that doesn’t mean it should be illegal, I don’t want to persecute you. It is possible to live in the same society without ripping out each other’s throats.
Thanks for your further comment Miriam. As you conceded, that is a New Zealand example. After 22 months of same-sex marriage in Australia there have been exactly zero examples of charities being de-registered because of their discriminatory views on marriage, so amendments to the Charities Act are entirely unnecessary.
And I absolutely agree that people shouldn’t be discriminated against because of their religion. Which is why, if the Govt removed sections 8(2)(d), 8(3)-(6) and 41, and significantly narrowed section 10, this Bill would at least be worth considering supporting.
Unfortunately, with those sections included, the Bill is *not* an anti-discrimination bill, but is instead a religious privilege bill, which is not concerned with putting religious Australians on the same footing as everyone else, but instead will arm religious Australians to discriminate against others, including LGBTI people. That is why we are standing up against it, not because we think religious people should not be protected.
Finally, thanks for reading my story, although I suspect you have missed the point. Yes, what the boys did was wrong. But it was the school that created that culture, by having rules against homosexuality (allowing them to expel me if I had come out), by ignoring the health needs of their LGBT students, by not intervening against homophobic comments, by not punishing homophobic violence – and then, above all, by having a pastor suggest that ‘confused’ kids killing themselves was not the worst thing that could happen. That is an unsafe environment for LGBT kids, and nobody who cares about kids should accept it.
Broadly speaking Christians are not a persecuted minority in Australia.
Flying an indigenous flag or a rainbow flag is a sign that a facility welcomes a traditionally marginalised group.
Given the proliferation of churches in Australia, along with the significant privileges churches have in Australian society, it’s a long stretch to compare hanging a cross with flying a rainbow flag.
Hello, you two 🙂
Alastair, I included 2 examples from Australia as well. You went to a Lutheran school, of course they held to Lutheran beliefs. Doesn’t excuse the reprehensible behavior of those two boys, but I went to high school as well, and awful as what you described is, it sounds pretty mild. The research done on bullying can be seen here https://www.unisa.edu.au/siteassets/episerver-6-files/global/eass/eds/184856-anti-bullying-report-final-3large.pdf I was punched in the diaphragm when another student asked me why I had been sitting alone during recess, and I just said I had been praying. That was pretty mild, too.
you’ll find the reasons for bullying cited on page 32.
Here, another example from Australia for you:
In comparison with your story, is this OK? ““If she raises her voice in concern about it she is brushed off by the teachers. She sits in classrooms when these things are discussed and the other students say: ‘It’s only the Christians that are against this. I hate Christians.’ And she is sitting there saying ‘I’m a Christian’.’’”
So, yes, they are happening in Australia. I was kicked out of a disability support group for mentioning a hymn that I found encouraging, “It Is Well With My Soul.” That’s all I said. I didn’t even say the word “God”. I went to another support group, the subject of religion came up, I didn’t bring it up. It got a bit nasty towards Christians, I said I was a Christian, and was told that the fact that Christians are killed and tortured in many countries is OK because “Christians have done it to other people in the past.” By one of the group leaders.
Hi Michael. The question was to show what attitudes are actually like – Christians are the most persecuted group in the world. Why would it be considered an offence for someone to put up a cross in solidarity with the believers currently being persecuted?
I do want the new bill to be as safe as possible for everyone. What you are talking about on your blog however, Alastair, is not a reasoned, moderate look at how we can live together.
With all due respect, no, you did not provide any Australian examples of charities that have been subject to de-regsitration or other sanction from the ACNC because of their views on marriage post-2017. There is absolutely no evidence for this provision.
As I have already indicated, I support the introduction of a well-drafted anti-discrimination law that protects people of faith, and no faith, against discrimination on the basis of who they are. That includes Christians, as well as Muslims, Jewish people, and atheists such as myself.
But sadly that is not what the Morrison Government is trying to introduce. It is trying to introduce a law which will allow people to faith to ridicule, insult and humiliate LGBTI people in everyday situations, and to conscientiously object to providing us with essential health care services. Surely you can understand why we would find that threatening.
Finally, given you are not really trying to engage with the substance of this argument however, I won’t be publishing any more of your comments on this thread. Enjoy your day.
Christians are far from persecuted in Australia. As I said, Christians enjoy significant privileges in Australian society, including some that no other group enjoys such as national public holidays to observe Christian holy days. There are many groups persecuted outside Australia and whilst you may be right in saying Christians are the largest religious group persecuted outside Australia, I dare say homosexual men are more persecuted in more countries by more governments and religious groups than any other group anywhere. All that said, I don’t think we need to hang crosses in libraries because when you open that can of worms you’ll find every religious group wanting their space on the wall and no public library will want that, particularly because in principle we have a separation of church and state in Australia.
Hi Alastair. You may have mistaken my comment as one from the other Miriam. 🙂 (I’m queer and atheist.)
If you’ve discarded it I can repost it, if you want.
Best wishes, and thanks for the great article.
Hmmm… looks like it must have got lost in cyberspace. The one a few moments ago went through fine. I’ll repost it…
Thank you Alastair, for writing this article.
It worries me that the Religious Discrimination Bill will be a license for the worst religious people to give free rein to their bigotry. It surprises me that so many religious moderates don’t see the problems this generates for marginalised people and for the religious moderates themselves.
Religious moderates, like Miriam above, are puzzled that people are afraid of the proposed laws because they are unlikely to use the new privileges to attack others, and perhaps that’s true, but we know unscrupulous religious people will use the laws to do bad things. History has proven, over and over again that the extremists will use any tools at hand to hurt others. Unfortunately such immorality never stays confined to the extremists because it spreads, as we’ve seen in every country that allows religion to sneak into politics.
The main reason we have a constitutional requirement to separate the government from religion is not to protect atheists, LGBT people, women, divorcees, and unmarried mothers from religious discrimination; it is to protect religious people from persecution by other religious people. I am constantly amazed at how many religious people don’t know this.
As recently as in my grandparents’ time Catholics and Protestants commonly beat each other to death here in Australia. The most vile antisemitism was common in just my parents’ day, and can still be encountered from time to time. Jehovah’s Witnesses and other minority Christian groups were utterly despised and attacked in the 1940s and 1950s.
Recently we have seen awful attacks upon Muslim people. Imagine that magnified many times, and then consider possible retaliations and the potential for this to spiral far out of control.
Understand how many decades of hard work it will take to undo all the bad behavior and distrust, and you begin to see how dangerous are laws that privilege religion.
The greatest threat to LGBT people and other minority and marginalised groups is religion, but the greatest threat to religious people has always been other religious people.
If we want a peaceful society we need to make sure the religious discrimination bill doesn’t make it into law. Or if it does, then we need to have it struck down as quickly as possible.
Thanks very much Miriam. It is great to highlight the benefits of a genuine religious discrimination bill not just for women, and LGBTI people, but also to religious minorities. That’s why we hope the Government fixes it’s legislation, because then everyone can benefit.
I like to emphasise the dangers to religious people because empathy only takes people so far. Religious people think that it will benefit them and dismiss the conscerns of marginalised people because there are only so many hours in the day to worry about things. But when I make it clear to religious moderates (most religious people) that the proposed laws could have a terrible impact on them they tend to listen a bit more carefully.
Thanks again Alastair.