The Religious Discrimination Bill, released in late August by Attorney-General Christian Porter, would be the biggest reform to anti-discrimination law in Australia in at least 15 years, since the passage of the Age Discrimination Act 2004.
In fact, it is potentially the most radical change to our federal anti-discrimination system since, well, the beginnings of anti-discrimination law in this country.
That’s because it fundamentally undermines one of the key concepts of this framework: concurrent Commonwealth, and State/Territory, jurisdictions.
Since the passage of the Commonwealth Racial Discrimination Act 1975, NSW Anti-Discrimination Act 1977, and similar laws elsewhere, these laws have operated effectively alongside each other, without directly interfering with each other.
Where conduct was prohibited under laws at both levels, the victims of such discrimination were able to choose where to lodge their complaint. Successive Commonwealth Governments haven’t sought to cover the field, or explicitly override the provisions of State and Territory anti-discrimination laws.
But this is no longer the case. The Religious Discrimination Bill dramatically, and unprecedentedly, upsets Australia’s anti-discrimination applecart.
Section 41 provides that ‘statements of belief’ do not constitute discrimination for the purposes of any anti-discrimination law – including each of the Racial, Sex, Disability and Age Discrimination Acts at Commonwealth level, and all equivalent state and territory laws.
The Apple Isle has even more to lose than the others – with section 17(1) of their Anti-Discrimination Act 1998 singled out by name as being specifically overruled.
This is undoubtedly because it offers the most effective form of protection against conduct that ‘offends, humiliates, intimidates, insults or ridicules’ a wide range of groups, including LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability, among others.
But all State and Territory Governments should be alert and alarmed at this unwanted and unwarranted intrusion, not least because of the proposal that the Commonwealth Attorney-General be allowed to override even more laws by future regulation, without needing the approval of federal Parliament (and with Senate numbers making it extremely difficult for these regulations to be disallowed).
It is not just the principle of federalism that is offended by this hostile takeover. It is the fact the Religious Discrimination Bill makes it easier to offend the rights of vulnerable groups in each and every Australian jurisdiction that makes its contents so disturbing.
This makes the current religious discrimination debate a major test for State and Territory Governments around the country. Will they stand up to the Commonwealth Government’s decision to undermine their anti-discrimination laws?
More importantly, will they stand up for the communities in their respective states and territories – LGBTI people, women, single parents, people in de facto relationships, divorced people and people with disability – who stand to lose the most as a consequence of the Religious Discrimination Bill?
There is another, related challenge for State and Territory Governments from these developments. At the same time as the Attorney-General was releasing his exposure draft Bill, the reporting date for the Australian Law Reform Commission’s review of ‘religious exceptions’ was pushed back to December 2020.
This is the inquiry that was established earlier this year to examine whether provisions which allow religious schools to discriminate against LGBT students, and teachers, should be amended, or repealed entirely.
The delay means any legislation arising from this inquiry will likely not be passed until the second half of 2021 – and therefore won’t be in place until the 2022 school year at the earliest.
This is incredibly disappointing given Prime Minister Scott Morrison’s broken promise, in October 2018, that he would ensure LGBT students were protected before the end of last year. Effectively, this will now be delayed by more than three years.
The contrast with the Religious Discrimination Bill is also revealing. On one hand, the Morrison Government wants to pass a stand-alone Religious Discrimination Bill before the end of this year – a substantial, and radical, change to our federal anti-discrimination regime, with just one month of public consultation.
On the other, it refuses to make what are modest, straight-forward changes to protect LGBT students and teachers in religious schools for several years. It has decided to vacate that field, and consequently to vacate their responsibilities to vulnerable kids.
In the meantime, LGBT students and teachers will continue to be subject to abuse and mistreatment, simply on the basis of who they are, in schoolyards, classrooms and staff-rooms around the country.
And so it is now up to State and Territory Governments to show the leadership that the Commonwealth Government won’t. For NSW, Victoria, South Australia and Western Australia to pass urgent changes to protect LGBT students. And for all jurisdictions other than Tasmania and the ACT to cover LGBT teachers.
Because all kids deserve to grow and learn in a safe environment. And they don’t deserve to wait until 2022 to know what that feels like.
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