It is ironic that a Bill that uses the phrase ‘in good faith’ multiple times (four times in the First Exposure Draft, and nine times in the Second) was itself developed through a process that was the polar opposite.
The Religious Discrimination Bill is the end product of the Religious Freedom Review, which was a gift to religious fundamentalists during parliamentary debate about marriage equality in 2017, and was payback against LGBTI Australians for having the temerity to demand equal rights under secular law.
When that review was finally released in December 2018, Attorney-General Christian Porter promised that the Government’s Religious Discrimination Bill would be similar to other anti-discrimination laws, and ‘follow a very standard architecture’.[i] Instead he has delivered incredibly complex legislation with several unique, special rights for religious individuals and organisations to discriminate against others (more on that below).
Mr Porter also stated in December 2018 that ‘we are well-advanced on the drafting of [the Bill] and which we would have out early next year , so that people can see it.’ Yet the Liberal-National Government did not reveal any details of the Bill until after the May 2019 federal election, leaving voters in the dark about a central plank of their platform (perhaps some voters may have voted differently had they known their human rights would later come under sustained attack).
In August, the Guardian Australia reported that:
Christian Porter has sought to allay concerns that a federal religious discrimination bill could water down protections for LGBT people in state legislation. The attorney general told Guardian Australia the bill “is not intended to displace state law…”’[ii]
But when the First Exposure Draft Bill was released on 29 August it did exactly that, with clause 41 directly over-riding Commonwealth, state and territory anti-discrimination legislation, and specifically over-riding Tasmania’s best practice protections against ‘conduct which offends, humiliates, intimidates, insults of ridicules’[iii] others, including women, LGBTI people and others.
At no point between December 2018 and August 2019 did the Morrison Government consult with anyone other than the religious organisations who would benefit from the Bill. There was no engagement with any of the people who stood to lose the most, from women, to LGBTI people, single parents, divorced people and people in de facto relationships, and people with disability.
Even when the Attorney-General released the Exposure Draft Religious Discrimination Bill for public comment – and received a deluge of criticism from representatives of those groups, as well as the vast majority of civil society organisations, and even the Australian Human Rights Commission, the independent body who would be responsible for overseeing any legislation once passed – Porter, and the Government, have chosen to ignore that feedback.
In fact, the only major substantive change to the Bill was something demanded by religious organisations – to expand its religious exceptions even further, allowing religious hospitals and aged care services to discriminate on the basis of religious belief in employment. Even when receiving taxpayers money to deliver public services.
It is completely unsurprising that, having undertaken a bad faith process to develop its legislation, the Government has produced what is essentially a ‘bad faith’ Religious Discrimination Bill. A Bill that prioritises and privileges the rights of religious individuals and organisations over and above everyone else.
This can be seen in how the Second Exposure Draft[iv] differs from the First in relation to its four major problems[v] – or, rather, in how there is nothing to separate the two Bills, meaning the Government has not addressed these flaws.
The Religious Discrimination Bill will still make it easier to make comments that ‘offend, humiliate, intimidate, insult or ridicule’ minorities
Clause 42 (which was previously clause 41) continues to exempt ‘statements of belief’ from discrimination complaints under all Commonwealth, state and territory anti-discrimination legislation, including the Fair Work Act 2009 (Cth) and Tasmania’s best practice Anti-Discrimination Act 1998.
Indeed, multiple changes to the Bill will actually ensure more discriminatory statements of belief are protected from legal consequences. This includes expanding the definition of statements of belief (so that they do not need to align with the mainstream views of any religion, but can be from the extreme fringes of faith), as well as providing that comments will be protected even where they are ‘moderately’ intimidating towards the victim.[vi]
Nor has the Government addressed the constitutional flaws of this provision. Because the Bill would introduce a Commonwealth defence to state laws, state tribunals would legally be unable to determine whether the defence was valid. So where a person makes a complaint of discrimination, and a respondent claims it was a ‘statement of belief’, it would need to be referred from the tribunal to a court to hear that particular issue, and then referred back to the tribunal to determine the remainder of the complaint – massively increasing the costs and time involved, with the likely outcome that many discrimination complaints will be withdrawn no matter how valid they are.
Overall, clause 42 will still encourage degrading and demeaning comments about women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability, and even people from minority faiths,[vii] in all areas of public life, from workplaces to schools and universities, health care, aged care and other community services, to cafes, restaurants and even shops.
The Religious Discrimination Bill will still make it easier for health practitioners to refuse to serve minorities
There have been some minor improvements to the ‘conscientious objection’ provisions in the Second Exposure Draft (previously clauses 8(5) and (6), now clauses 8(6) and (7) of the Bill). This includes narrowing the list of health practitioners who will be able to take advantage of these sections, as well as including a note that they are not intended to allow practitioners to refuse to provide a service to a category of people.
But, in practice, these changes are superficial rather than substantive. The list of practitioners who remain covered:
- Pharmacists, and
means the vast majority of interactions between patients and the health system are nevertheless potentially jeopardised via ‘conscientious objection’.
Meanwhile, the distinction between refusing to provide a service to a category of people (which would not be permitted) and refusing to provide a category of service to people (which would be) is so blurry as to be meaningless.
As Attorney-General Porter himself confirmed when releasing the Second Exposure Draft, it is designed to protect ‘a GP who did not want to “engage in hormone therapies” for a trans person. “That’s fine, but you have to exercise that in a consistent way, so you don’t engage in the procedure at all.”’[viii]
The net effect is that GPs and pharmacists will be empowered to:
- Refuse to provide reproductive health services, even where this disproportionately affects women
- Refuse to provide PEP and/or PrEP, even there this disproportionately affects gay, bisexual and other men who have sex with men, and
- Refuse to provide hormone therapy (including puberty blockers), even where this disproportionately affects trans and gender diverse people.
Overall, clauses 8(6) and (7) will still encourage practitioners to refuse to provide vital health care services to some of the most vulnerable members of the Australian community.
The Religious Discrimination Bill will still make it easier for religious bodies to discriminate against others
In fact, as hinted at earlier, the religious exceptions contained in the Second Exposure Draft will make it even easier for even more religious organisations to discriminate in even more circumstances.
Clause 11 (which was previously clause 10), provides an exception to all religious schools and universities, as well as ‘registered public benevolent institutions’ (even where providing commercial services to members of the public), as well as ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’.
This exception allows these bodies to discriminate on the ground of religion in both employment, and who they provide services to (or withhold services from).
The test for determining whether the organisation can (ab)use these special privileges is also much easier to satisfy in the Second Exposure Draft. In fact, there are now two alternative tests, and the organisation need only satisfy one:
- Clause 11(3) is already a lower standard than the existing religious exception in the Sex Discrimination Act 1984 (Cth), because the organisation can simply act, ‘in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion’ – unlike section 37(1)(d) of the SDA, these acts do not need to be ‘necessary’.
- Clause 11(1) sets an even lower standard again. It provides that a ‘religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that a person of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.’
This second test is entirely subjective. A religious body is only required to demonstrate that one other person considers their discrimination is in accordance with their faith. They don’t even have to agree with the discrimination itself! This hurdle is so easy to clear that it is almost impossible to imagine any scenario where a court or tribunal will disallow religious discrimination by these organisations.
Which is particularly devastating because the Second Exposure Draft also expands the types of organisations that can take advantage of these privileges.
Clauses 32(8) and (10) allow religious hospitals, aged care services and accommodation providers to discriminate in employment on the ground of religion. And clauses 33(2) and (4) permit religious camps and conference sites to discriminate in who they provide services to (even where these are facilities run on a commercial basis and otherwise open to the public).
As I have written previously, these religious exceptions will mean that:
- A professor can be denied a job because they are Jewish.
- A doctor can be refused employment at a hospital because they are Muslim.
- A school student can be expelled because they are atheist.
- A homeless person can miss out on a bed in a shelter because they are Hindu.
- A charity worker can be rejected for promotion because they are Buddhist.
- An aged care employee can lose shifts because they are agnostic.
Overall, clause 11 (and related clauses) will fundamentally divide Australia, by empowering religious organisations to discriminate both in employment, and in who they provide services to, on the grounds of religion. And they will be able to do so while using taxpayers’ money. Your money. My money, Our money.
The Religious Discrimination Bill will still make it more difficult for big business to promote diversity and inclusion
Clauses 8(3) and (5) (which were previously 8(3) and (4)) are the provisions which were created in response to the circumstances of a certain ex-footballer – by making it incredibly difficult for organisations with revenue of at least $50 million per annum to impose codes of conduct that prevent an employee from making discriminatory comments outside their ordinary hours of employment.
These clauses have been slightly improved in the Second Exposure Draft. By clarifying they only protect employees in conduct ‘other than in the course of the employee’s employment’, it actually applies to a reduced set of circumstances.
But Attorney-General Porter has also included a new clause 8(4), which makes things much worse again – by preventing qualifying bodies (like legal admission or medical registration bodies) from taking into account degrading or demeaning public comments which applicants may have made ‘unless compliance with the rule by the person is an essential requirement of the profession, trade or occupation’.
Previously, these bodies may have denied admission or registration on the basis that the applicant was not a ‘fit and proper person’ – instead, homophobes, biphobes and transphobes will be encouraged to discriminate with little or no professional consequences.
Any of these problems should be sufficient in and of itself for anyone interested in human rights for all Australians, and not just for some, to oppose the Bill. All of them together should be enough for Labor, the Greens and Senate Cross-Bench to vote against it – although only the Greens’ opposition is secure at this stage.
And that’s not even including some of the other ‘lesser’ problems in the package of ‘religious freedom’ laws the Government is seeking to pass, which are each significant in their own right:[ix]
- Creating a ‘Religious Freedom Commissioner’ within the Australian Human Rights Commission, to advance the ‘religious freedom’ agenda, even though such a position was not recommended by the Government’s own Ruddock Review, and while LGBTI Australians continue to be denied a Sexual Orientation, Gender Identity and Sex Characteristics Commissioner.
- Amending the Marriage Act 1961 (Cth) to reinforce the ability of religious educational institutions to reject same-sex weddings, even where they provide those services to the public on a commercial basis – and despite the fact such a ban was not previously required to reject divorced people remarrying (meaning this is essentially an anti-marriage equality provision),[x] and
- Amending the Charities Act 2013 (Cth) to ‘protect’ charities advocating against an inclusive definition of marriage, even though the Australian Charities and Not-for-profits Commission (ACNC) explicitly stated such a clause was not needed, and despite the fact no other type of advocacy (from Indigenous, to environmental or LGBTI) is protected in this way.
Unfortunately, there are even more problems in the Religious Discrimination Bill, and its two related Bills (the Religious Discrimination (Consequential Amendments) Bill, and the Human Rights Legislation Amendment (Freedom of Religion) Bill), although it would take too long to describe them all in detail here.
In short, these are deeply flawed Bills, developed through a bad faith process, that will have a terrible impact on women, LGBTI people, people with disability and others. If passed, they would lead to increased division between different communities, changing our country for the worse. They must be blocked.
Perhaps the most frustrating part of this debate is that a genuine Religious Discrimination Bill, one that protected people of faith and no faith against discrimination on the basis of who they are, would have been a welcome development.
If the Government had prepared the Religious Discrimination Bill in good faith, it would have been met with substantial community goodwill. Instead, they listened to religious fundamentalists, and have now released two slightly different versions of legislation containing the same fundamental flaw – it increases discrimination rather than reducing it.
Significantly, the victims of the Government’s Bill will not only be women, LGBTI people, single parents, people in de facto relationships, divorced people, and people with disability. People from minority faiths, atheists and agnostics all stand to lose under Attorney-General Porter’s, and Prime Minister Morrison’s, disingenuous and disastrous Second Exposure Draft ‘Religious Freedom’ Bills.
Anti-discrimination legislation should reduce discrimination, not increase it. It should unite us, rather than divide us. The Religious Discrimination Bill fails on those most fundamental criteria. It is a bad faith Bill, and the only possible good outcome from here would be for it to be rejected in its entirety.
One of my main objectives for the blog this year is to include practical information on as many posts as possible about actions readers can take. In this instance, there are at least three things you can do:
- Write a submission on the Second Exposure Draft Bills
The Second Exposure Draft ‘Religious Freedom’ Bills are open for public consultation until Friday 31 January 2020. Details of the Bills are here, and you can send written submissions via email to FoRConsultation@ag.gov.au
You don’t have to be a lawyer to make a submission, nor do you need to comment on all of the Bills’ many problems. Instead, you can simply describe your general concerns about the proposed legislation, as well as any specific fears about its impact on you and your community. Some suggested points include:
- All Australians deserve to be protected against discrimination.
- This includes people of faith, and no faith. But it must also include women, LGBTI people, single parents, people in de facto relationships, divorced people, people with disability and others.
- Unfortunately, the Second Exposure Draft Religious Freedom Bill will increase discrimination against many groups, including people from minority faiths, rather than reduce it.
- It will encourage people to make ‘statements of belief’ that degrade and demean others just because of who they are, in workplaces, schools and universities, health care, aged care and community services, cafes, restaurants, shops and other public places.
- It will encourage doctors, pharmacists and other health practitioners to refuse to provide vital health services to vulnerable Australians.
- It will encourage religious organisations to discriminate against people on the basis of their faith, in schools and universities, hospitals, aged care and other community services, even where they are delivering essential public services using public funding.
- The Government should scrap the current version of the Religious Discrimination Bill, and prepare a new Bill that reduces discrimination rather than increasing it.
- If the Government fails to do so, the Parliament must reject the Second Exposure Draft Religious Discrimination Bill, and associated ‘Religious Freedom’ Bills.
- Write to MPs and Senators expressing your concerns
While submissions about the Exposure Draft Bills are valuable, it is essential you also convey your concerns directly to your elected representatives.
It is especially important to write to the following:
- ALP MPs and Senators
- Greens MP and Senators
- Centre Alliance Senators (if you’re in South Australia)
- Senator Jacqui Lambie (if you’re in Tasmania), and
- Liberate moderate/gay and lesbian MPs (including Trent Zimmerman, Trevor Evans, Tim Wilson, Angie Bell, Warren Entsch, Senator Dean Smith).
PFLAG Australia has made this process easy, using the website Equality, Not Discrimination.
You can also access a range of materials from Equality Australia here, including a submission-writing toolkit.
- Attend a public rally against the Bills
For those who prefer their activism to be on the streets, there will also be a number of public rallies around the country in coming weeks, including:
Sydney: Saturday 8 February at 1pm, Sydney Town Hall
Melbourne: Sunday 9 February at 1pm, State Library of Victoria
Brisbane: Saturday 1 February at 5pm, King George Square, and
Perth: Saturday 8 February at 1pm, Forrest Chase
The bad faith Religious Discrimination Bill, and the two other proposed ‘Religious Freedom’ Bills, can be blocked, but only if we all take action together.
If you have 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. You can also follow me on twitter @alawriedejesus
[iii] Section 17(1) Anti-Discrimination Act 1998 (Tas).
[vi] Clause 42(2) provides that statements of belief will not be protected if it is:
- that would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons; or
- would be considered ‘counselling, promoting, encouraging or urging conduct that would constitute a serious offence.’
[viii] ‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, Sydney Morning Herald, 10 December 2019.
[ix] For more detail, see The Growing List of Problems with the Religious Discrimination Bill.
[x] Unfortunately, it would not be the only provision in the Marriage Act 1961 (Cth) which discriminated against same-sex couples, despite the postal survey result. For more see: No, We Don’t Have Marriage Equality Yet.