The Morrison Government’s Religious Discrimination Bill is a serious threat to the rights of women, LGBT people, people with disability, people of minority faiths and many other Australians.
However, because anti-discrimination law is already highly technical, and the proposed Bill is both incredibly complex, and contains a range of provisions that are completely unprecedented, it can be difficult to understand exactly what is at stake.
The following, then, is my attempt to explain the major problems contained in the Religious Discrimination Bill in 1000 words or less:
The ‘statement of belief’ provision protects offensive, humiliating, insulting and ridiculing comments against women, LGBT people, people with disability, people of minority faiths and others on the basis of who they are.
It does this by taking away existing protections against discrimination under all Commonwealth, state and territory anti-discrimination laws, including targeting the best practice provisions of Tasmania’s Anti-Discrimination Act.
As long as they are motivated by religious belief, people will be empowered to make demeaning and derogatory comments in all areas of public life: in workplaces, schools and universities, hospitals, aged care, public transport, cafes, restaurants and shops. Everywhere.
And because the definition of statement of belief depends only on the subjective interpretation of the person making them, it protects fringe or radical views, including religiously-motivated anti-Semitism, Islamophobia and even racism.
By overriding all other anti-discrimination laws, the ‘statement of belief’ provision also denies access to justice to victims of discrimination.
This is because it effectively introduces a Commonwealth ‘defence’ to state laws, meaning state tribunals – which hear the majority of anti-discrimination cases – will be unable to resolve complaints where this issue is raised.
These cases will instead need to be heard by state supreme courts, or federal courts, at massively-increased costs to complainants.
The groups most likely to experience religiously-motivated discrimination – women, LGBT people, people with disability and people of minority faiths – will lose the most.
The ‘statement of belief’ provision also grants extraordinary powers to the Commonwealth Attorney-General to take away existing rights in other areas, by ‘prescribing’ additional laws that will be undermined.
Laws that are at risk include:
- ‘Safe access zone’ protections covering pregnant people seeking lawful terminations
- Bans on sexual orientation and gender identity conversion practices, and even
- Section 18C of the Racial Discrimination Act, which prohibits racial vilification.
The ‘religious exceptions’ in the proposed Bill are just as dangerous.
While many anti-discrimination laws contain ‘religious exceptions’, the special privileges allowing religious organisations to discriminate under the Religious Discrimination Bill are far broader than any other Commonwealth, state or territory anti-discrimination law.
This is both because it adopts a much more lenient test than other laws to determine when this discrimination is permitted (only requiring that one other person of the same religion could reasonably consider the discrimination to be justified).
And because it applies to a much wider range of organisations than other laws, covering charities, hospitals, aged care facilities, accommodation providers, disability service providers, camps and conference sites and even religious organisations undertaking some commercial activities.
Unlike the Sex Discrimination Act and similar laws, the Bill does not require these bodies to have been ‘established for religious purposes’, imposing the much easier test of ‘conducted in accordance with’ religious beliefs.
The people who stand to lose most from these exceptions are Muslim, Jewish, Buddhist, Hindu, agnostic and atheist workers denied jobs, promotions and training they are qualified for simply because of their religious beliefs (or lack thereof).
These exceptions also apply to ‘religious educational institutions’, covering everything from child-care and early learning centres, through to schools, colleges and universities.
However, unlike best practice provisions in Tasmania, Queensland, the ACT and NT which limit these exceptions to enrolment only, the proposed Bill permits discrimination against students on the basis of religious belief throughout their education.
In this way, the Religious Discrimination Bill allows discrimination against children and young people, denying them their religious freedom to question, explore and develop their own faith as they learn and grow, without fear of punishment.
The same provisions could also be used by religious schools to discriminate against LGBT kids, not on the basis of their sexual orientation or gender identity itself, but on whether they affirm statements like ‘homosexuality is intrinsically disordered’ or ‘God created man and woman, therefore being transgender is sinful’. The outcome would nevertheless be the same: LGBT kids being mistreated because of who they are.
This means that, even if the Morrison Government finally implements its promise to amend the Sex Discrimination Act to protect LGBT students, religious schools could still discriminate against them via alternative means.
The Bill also allows discrimination against teachers and other employees of religious educational institutions, meaning they can be hired and fired on the basis of their faith, not their skills.
In addition, it grants extraordinary powers to the Commonwealth Attorney-General, allowing them to take away existing rights from teachers under state and territory anti-discrimination laws.
This includes recently-passed laws in Victoria which only permit discrimination where it is an inherent requirement of the role, and ‘reasonable and proportionate in the circumstances’, as well as similar laws in operation in Queensland for two decades, and in Tasmania and the ACT.
As with students, these provisions could also provide an alternative means to permit discrimination against LGBT workers ‘under the guise of religious views’. LGBT teachers and other staff are potentially at risk in Victoria, Queensland, Tasmania and the ACT.
Finally, the Bill includes a range of other significant problems:
- Removing the ability of qualifying bodies to take appropriate action about harmful ‘statements of belief’ made by professionals outside the workplace (for example, protecting repeated homophobic and transphobic comments by a doctor in a small town, even where this makes it unsafe for LGBT people to access essential healthcare)
- Providing an unprecedented ability for religious organisations to make discrimination complaints in their own right, including allowing faith bodies to take legal action to prevent Commonwealth, state and territory governments from requiring organisations that receive public funding not to discriminate against LGBT people
- Preventing local governments from passing by-laws to address harmful anti-LGBT ‘street preachers’
- Introducing a totally unnecessary amendment to the Charities Act to ‘protect’ charities advocating a ‘traditional view of marriage’ (and those charities only), and
- Expanding ‘religious exceptions’ in the Marriage Act to allow religious educational institutions to deny the use of their facilities for LGBTI-inclusive weddings, even where these facilities are offered to the public on a commercial basis.
Overall, the Religious Discrimination Bill promotes rather than prohibits discrimination. It must be blocked.
The above summary does not even cover all of the many problems created by the Religious Discrimination Bill. If you would like to know more of the technical details, I encourage you to read the public submissions made by:
- the Public Interest Advocacy Centre, here;
- the Australian Discrimination Law Experts Group, here
to the two Parliamentary committees (Joint Committee on Human Rights, and Senate Committee on Legal and Constitutional Affairs) which have been holding inquiries into this legislation over summer.
Both Committees are due to table their final reports to Parliament on Friday 4 February, meaning the Religious Discrimination Bill could be debated, and passed, in the sitting weeks beginning on Tuesday 8 February.
There is, however, still time to stop this extraordinary and extreme, radical and unprecedented – and downright dangerous – law, but only if you make your opposition to it known right now.
There are a number of actions you can take, today:
- Tell Labor MPs and Senators to vote against the Religious Discrimination Bill using this simple Just.Equal Australia webform and tell moderate Liberal MPs and Senators to do the same, using this simple webform too
- Use this Equality Australia webform to write to your local MP, from any political party, urging them to oppose the Religious Discrimination Bill
- Contact the following list of moderate and/or lesbian and gay Liberal MPs and Senators, expressing your serious concerns about the Bill and asking them to cross the floor to protect the rights of all Australians (using their contact details from Parliament House):
- Angie Bell (Member for Moncrieff)
- Dave Sharma (Wentworth)
- Katie Allen (Higgins)
- Fiona Martin (Reid)
- Trevor Evans (Brisbane)
- Tim Wilson (Goldstein)
- Trent Zimmerman (North Sydney)
- Warren Entsch (Leichhardt)
- Bridget Archer (Bass)
- Andrew Bragg (Senator for New South Wales)
- Richard Colbeck (Senator for Tasmania), and
- Dean Smith (Senator for Western Australia).
Together, we can ensure the Religious Discrimination Bill is rejected, for the benefit of women, LGBT people, people with disability, people of minority faiths and many, many other Australians whose rights would be at risk if this divisive law was allowed to pass.
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[NB This article is written in a personal capacity and does not represent the views of employers, past or present.]