Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Department of Health

Submitted online

Monday 29 June 2020

 

To whom it may concern

Submission re Aged Care Worker Regulation Scheme – Consultation Paper

Thank you for the opportunity to provide a submission on this important topic. In this submission, I will respond to the information presented in the Consultation Paper, while highlighting a fundamental issue that is not addressed in its 56 pages.

Specifically, in discussing existing screening of aged care workers, as well as options for increased screening and/or registration, the Consultation Paper fails to mention a de facto form of screening which already takes place – the lawful exclusion of lesbian, gay, bisexual and transgender (LGBT) employees by some government-funded aged care services operated by religious organisations.

This discrimination is permitted because of the religious exceptions included in the Sex Discrimination Act 1984 (Cth).

While sub-section 37(2)(a) provides that government-funded aged care services operated by religious organisations are not able to discriminate against lesbian, gay, bisexual and transgender people accessing their services, sub-section 37(2)(b) allows those same organisations to fire, or refuse to hire, LGBT employees simply because of who they are.

Such workplace discrimination is unacceptable in principle. But it is also unacceptable in the context of issues confronting the aged care sector, as articulated in the Consultation Paper.

For example, one of the three problems highlighted on pages 7 and 8, under the heading ‘What are the limitations of the existing approach?’ is the following:

Concern that some critical workers (such as personal care workers) may not have adequate qualifications or skills, English proficiency and/or access to continuous professional development (CPD) to support the delivery of safe and high-quality consumer-centred care

-As noted above, PCWs comprise approximately 70 per cent of the aged care workforce. Over the coming years, there will be an increasing demand for PCWs with industry estimates suggesting that an additional 980,000 workers will need to be recruited to perform roles such as those of PCWs.

In a system with concerns about workforce skills, and a looming shortage of personal care workers (as identified in the quote above), it makes absolutely zero sense to allow a significant proportion of aged care services to legally discriminate against employees on the basis of their sexual orientation and/or gender identity.

This discrimination has a range of negative consequences, both for the individual aged care service, as well as for the system as a whole.

For individual services, by limiting the pool of applicants to cisgender, heterosexual people, it is inevitable that in some circumstances better qualified applicants will be rejected because of personal attributes that have no connection to their ability to perform the role.

In other words, where services only hire the best cisgender, heterosexual person for the job, rather than the best person full stop, the overall quality of care provided will be adversely affected, to the detriment of people accessing that service.

However, the systemic outcomes of such discrimination are even worse.

LGBT people considering a career in aged care may decide against entering the industry entirely if they are aware that a substantial proportion of aged care services can refuse to hire them solely on the basis of their sexual orientation and/or gender identity.

Further, LGBT people who are already in the industry and experience discrimination because of who they are may be more likely to exit the industry prematurely rather than risk being confronted by additional mistreatment.

In this way, the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees both limits the number of people considering working in aged care in the first place, and accelerates current employees leaving – at the exact same time the Consultation Paper suggests there is a growing demand for more aged care workers.

Sub-section 37(2)(b) of the Sex Discrimination Act 1984 is therefore a structural barrier to an expanded, and better-qualified, aged care workforce, and one that must be removed as a matter of priority.

This view is reinforced by examining the ‘Objectives of an aged care worker screening or registration scheme’, as outlined on pages 13 and 14 of the Consultation Paper.

All six of these objectives are compromised by the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees.

  1. Improve the quality and safety of aged care and enhance protections for consumers

As seen in the above discussion, allowing individual aged care services to hire the best cisgender, heterosexual person for the job, rather than the best person overall irrespective of their sexual orientation and/or gender identity, inevitably means that centre is not able to provide the best possible care to consumers.

This problem is amplified for LGBT employees who are currently employed in government-funded aged care services operated by religious organisations and who must constantly worry about the potential of being discriminated against by current, or future, service operators. Every extra second employees spend hiding who they are for fear of mistreatment is one less second they are able to devote to providing the best possible care to consumers.

  1. Avoid unnecessary barriers to workforce entry and facilitate the attraction and retention of aged care workers

Allowing discrimination against current and potential employees simply because they are lesbian, gay, bisexual and transgender seems to be the definition of unnecessary.

  1. Promote consumer-directed care

This is an often-overlooked problem created by the current inconsistent approach adopted in sub-section 37(2) of the Sex Discrimination Act: while LGBT people accessing government-funded aged care services operated by religious organisations have the right to be out, employees of the same services do not.

The absence of ‘out’ LGBT employees – and the (understandable) reluctance of LGBT workers to disclose their sexual orientation and/or gender identity in the workplace, even to LGBT residents – actually heightens the isolation LGBT residents may feel, at a time when they are already facing increased loneliness.

  1. Avoid duplicative regulatory requirements for providers and workers operating across sectors

It is inconsistent to determine that an employee is capable to provide aged care services in one government-funded facility, but not another, simply because of their sexual orientation and/or gender identity. The role is essentially the same. The qualifications for performing it should be, too.

  1. Protect the rights of workers

This is perhaps the most obvious of the objectives – a person’s sexual orientation and/or gender identity is irrelevant to their ability to perform the role of an aged care worker. It is unnecessary, and above all unjustified, discrimination to allow these workers to be fired, or refused to be hired, just because of who they are.

  1. Minimise the cost to workers, providers, consumers and governments

Encouraging more people to train to be aged care workers, but then allowing them to be discriminated against because they are lesbian, gay, bisexual and transgender, is inherently wasteful.

It is a waste of the individual’s time, and in many cases, money (both spending to obtain the necessary qualifications, and lost income because of discrimination). It is wasteful for governments, who subsidise their training and must train even more people to replace those who may be lost to the industry because of discrimination. And it is wasteful for consumers, who miss out on the best possible care because of an irrelevant attribute.

Based on all of these arguments, and while I acknowledge the Consultation Paper’s arguments in favour of enhanced screening and/or registration requirements for aged care workers, I submit that the first step to improve the quality of the aged care workforce should be to remove an existing, unnecessary and harmful de facto screening process.

That is to remove the ability of government-funded aged care services operated by religious organisations to discriminate against employees and potential employees on the basis of their sexual orientation and/or gender identity.

This would obviously have a positive outcome for LGBT aged care workers, including making their retention in the overall industry more likely.

Above all, it would improve the quality of aged care provided in Australia – and that would meet the objectives of any aged care worker regulation scheme.

Recommendation: That sub-section 37(2) of the Sex Discrimination Act 1984 (Cth) be amended to remove the ability of government-funded aged care services operated by religious organisations to discriminate against LGBT employees and potential employees.

Thank you in advance for considering this submission. Please do not hesitate to contact me at the details provided if you require additional information.

Sincerely

Alastair Lawrie

Richard Colbeck

Minister for Aged Care and Senior Australians, Senator the Hon Richard Colbeck

Discrimination Under the Cover of Corona

Coronavirus. SARS-CoV-2. COVID-19. Whatever you call it, it has been the biggest single story of this century (so far). Challenging health systems, governments, economies and communities – its dominance of the news cycle has overshadowed all other issues.

Of course, that does not mean those other challenges have gone away – especially climate change. Indeed, many existing problems have been exacerbated by, or exacerbated the negative impact of, coronavirus, including wealth inequality. Discrimination has sadly also been turbo-charged by the virus, with many disturbing examples of anti-Chinese and anti-Asian racism reported during the past few months.

But, as an LGBTI advocate, it is another type of mistreatment I want to focus on here: discrimination on the basis of sexual orientation and/or gender identity. While less prominent to date in comparison to racism, I am concerned about a potential outbreak of anti-LGBT discrimination under the cover of corona, in at least three ways:

  1. Discrimination in employment

Even with the Government’s temporary JobKeeper program, Australia’s unemployment numbers are expected to at least double between March and June 2020. We could see more than 1,000,000 people permanently lose their jobs in this period alone (not to mention many more who will have their hours, or pay – or often both – reduced).

While in many workplaces, the entire staff will be terminated, elsewhere employers will keep on some employees while dismissing others. With this process happening across so many businesses, small and large, and across so many sectors, simultaneously, it is inevitable some will (ab)use this opportunity to sack people for illegitimate reasons, including bosses firing LGBT workers simply because of who they are.

Even where homophobia, biphobia and transphobia are not ‘explicit’ in this way, some employers may take irrelevant factors into consideration in making their decisions – such as whether the employee has a partner, whether that partner is also employed, and whether they have children to support. Such discrimination, on the basis of marital or relationship status, or family responsibilities, is likely to disproportionately harm LGBT employees.[i]

For a variety of reasons, we will likely never know the full extent of anti-LGBT discrimination in employment during this crisis – although it should be noted the Sydney Morning Herald is already reporting that:

‘The number of workers raising issues with unfair dismissals has surged because of the coronavirus shutdown, with 65 per cent more employees bringing cases to the national industrial tribunal last month [April] than the same time last year.’ 

  1. Discrimination in service delivery

One serious problem highlighted by the coronavirus crisis has been the ‘hollowing out’ of governments, at all levels, and corresponding outsourcing of what should be public services to the private sector.

In particular, a disturbingly high proportion of essential social services in Australia are now delivered by religious organisations, despite usually using public monies. This includes housing and emergency accommodation, community support, food and even healthcare.

At a time when many Australians will be accessing these services for the first time, lesbian, gay, bisexual and transgender people will have the additional worry of whether such faith bodies will refuse to serve them, or treat them differently to cisgender heterosexual people in the same circumstances.

This is not to suggest that all or even most of these religious organisations will engage in homophobic, biphobic or transphobic discrimination – but some of these services inevitably will, to the detriment of LGBT Australians when they are at their most vulnerable.

  1. Anti-LGBT vilification

The third potential outbreak which concerns me is anti-LGBT vilification. That is, attacks on lesbian, gay, bisexual and transgender individuals – and the LGBT community more broadly – claiming that we are somehow responsible for promulgating the coronavirus, or deserving of infection because of our supposed ‘sinful lifestyles’.

This is not a hypothetical fear, either. At the start of April, Melbourne Jewish radio station J-AIR broadcast the following homophobic and transphobic comments from a Rabbi Kessin:

‘And basically he’s [god’s] 98% finished, that’s how close we are to redemption. Therefore god wants to do is bring the redemption. However, there are certain problems that must be addressed by god in order for the redemption to actually happen. And what we begin to see is that the pandemic is an exact designer drug, if you want to use that expression, that will remove these problems.

Ah, in other words, the plague itself is a vehicle, is an instrument, to accelerate the messianic process by removing these major problems. What are they? You see. So therefore what we see is the following.

The first major problem is that man has corrupted his nature. There is a tremendous amount of, ah, what’s called immorality in the world today. It’s widespread. There’s, in Hebrew it’s called “prichus”. We want, we could say it’s also in the form of homosexuality, and gays and so on and so forth, where all of a sudden the gender differentiation is, is tremendously blurred. So that is an incredible corruption of man’s nature.’

There are, obviously, strong echoes of the homophobic vilification endured by the gay and HIV-positive community as part of the HIV/AIDS epidemic. And we learnt from that experience that more bigots will emerge in the months ahead claiming that coronavirus is ‘divine punishment’ of the LGBT community for having the temerity to exist.

These three risks – anti-LGBT discrimination in employment, and service delivery, and anti-LGBT vilification – demonstrate the importance of robust anti-discrimination and vilification protections. Unfortunately, they also reveal serious weaknesses in Australia’s existing anti-discrimination and vilification framework, in at least four ways:

  1. Onus on complainants

Australia’s anti-discrimination laws are primarily complaint-based, which means responsibility falls on the victims of discrimination to pursue justice against their discriminator(s).

This is a problem at the best of times. That includes because of the usual significant power imbalances involved: between employee and employer; member and group; individual accessing services and service delivery organisation; customer and business; and more.

The burden of making a discrimination complaint should also not be underestimated, including the cost in both time and resources (such as obtaining legal advice, which can be costly), as well as the impact on mental health through stress. It is no surprise that many people who experience discrimination ultimately choose not to lodge a complaint.

And of course the coronavirus crisis means now is far from the best of times. Power imbalances are exacerbated, financial and other stresses already heightened. Even where LGBT Australians experience unequivocal discrimination, the problems of a complaint-based system mean they may not exercise their legal rights but instead focus on more immediate concerns (like where they are going to live, and how they will pay for food, electricity and other essentials).

Now more than ever our anti-discrimination laws should be improved by making it easier for organisations, such as trade unions, to make representative complaints on behalf of vulnerable individuals, as well as strengthening the powers of bodies like the Australian Human Rights Commission and its state and territory equivalents to investigate instances of discrimination even in the absence of individual complainants.

  1. Difficult to prove

Even where a victim of discrimination does choose to lodge a formal complaint, it can sometimes be difficult to prove, at least to the required legal standard.

This will not come as a surprise to most LGBT Australians – or indeed to members of other minority groups in the community. Almost all of us will have experienced multiple instances of mistreatment, where you know without a doubt that your sexual orientation, or gender identity, or sex, or race, or disability, or combination of these, is the motivation – while also knowing it would difficult to establish without an explicit admission by the perpetrator.

The coronavirus crisis, and the associated economic crisis, will only worsen this problem, with employers able to say they abandoned usual procedures because of the scale and speed of the challenge they were facing (and the potential they are given the benefit of the doubt in many circumstances, too). This doesn’t mean there was no discrimination – but it could make already high barriers even harder to overcome for the victims.

  1. Religious exceptions

Regular readers of this blog would be well aware of this major flaw in Australians LGBT anti-discrimination laws. Specifically, under the Commonwealth Sex Discrimination Act 1984, and Fair Work Act 2009 (Cth), and the anti-discrimination laws of most state and territories (other than Tasmania’s best practice Anti-Discrimination Act 1998), it is entirely lawful for religious organisations to discriminate against employees, and people accessing services, on the basis of sexual orientation and gender identity.[ii]

This means that it is legal for a faith-based homeless service in Sydney to deny shelter to someone because they are lesbian, or for a religious-run welfare service in Melbourne to reject a client because they are trans. It also means these organisations can refuse to hire, or even fire, employees because of their sexual orientation or gender identity – which is especially concerning when these bodies may be given more public funding to address the challenges of the next 12 to 18 months, making them one of the few places actually hiring.

In order for lesbian, gay, bisexual and transgender Australians to enjoy the same employment opportunities, and receive the same level of support, as everyone else, religious exceptions to anti-discrimination laws must be repealed.

  1. Gaps in vilification protections

The fourth serious weakness in our current legislative framework is the fact that only a minority of jurisdictions protect LGBT people against vilification. The biggest gap is obviously at Commonwealth level, where there remains no sexual orientation or gender identity equivalent of section 18C of the Racial Discrimination Act 1975.

But there is also no anti-LGBT vilification coverage in Victoria[iii] (meaning the earlier comments on a Melbourne Jewish radio station were likely lawful), or in Western Australia, South Australia or the Northern Territory.

Even where vilification protections exist, their coverage is sometimes incomplete. For example, civil prohibitions on vilification in the NSW Anti-Discrimination Act 1977 only protect lesbians and gay men, and binary transgender people.[iv] Bisexuals, non-binary and intersex people need not apply (or complain).

**********

These four problems, with Australia’s LGBTI anti-discrimination and anti-vilification laws, are obviously major. But they do not mean all such legal claims will be unsuccessful – merely that people should be aware of the potential pitfalls along the complaints journey that awaits them.

I should also be clear that this isn’t legal advice, either – after all, I am not currently a practising lawyer. However, if you are lesbian, gay, bisexual, transgender or intersex and do experience discrimination or vilification, and are considering your options, there are places where you can seek advice. These include:

The Inner-City Legal Centre in Sydney

The LGBTIQ Legal Service in Melbourne

The LGBTI Legal Service in Brisbane

The HIV/AIDS Legal Centre in Sydney

Or you could contact the local Community Legal Centre in your area. A searchable map is located on the Community Legal Centres Australia website.

Alternatively, you could try the Legal Aid services in your respective state or territory.

The above organisations may assist you in determining whether you wish to make a complaint – and where. They may also be able to provide you with legal representation if you do complain.

Nevertheless, it is not compulsory to obtain advice, or be represented, in order to make an anti-discrimination, or anti-vilification, claim. You could instead decide to go directly to the relevant human rights body. These include:

The Australian Human Rights Commission for discrimination complaints, including employment discrimination [remembering that there are no LGBTI vilification protections under Commonwealth law]

The Fair Work Commission if the complaint relates to employment discrimination only [noting that only lesbian, gay and bisexual people can apply – because the Fair Work Act 2009 (Cth) does not cover gender identity or intersex status/sex characteristics][v]

Anti-Discrimination NSW

The Victorian Equal Opportunity and Human Rights Commission

The Queensland Human Rights Commission

The WA Equal Opportunity Commission

The SA Equal Opportunity Commission

Equal Opportunity Tasmania

The ACT Human Rights Commission

The NT Anti-Discrimination Commission

A lot has been written in recent months about the coronavirus ‘not discriminating’. That SARS-CoV-2 is the ‘great leveller’. That in response to COVID-19 we are now all supposedly playing on the same team (namely ‘Team Australia’).

Of course, that simplistic slogan simply isn’t true. Just like life before the ‘rona, the rich will have fewer adverse outcomes than the poor. Aboriginal and Torres Strait Islander people will continue to experience extremely high rates of disadvantage.

Racial minorities, especially Chinese-Australians and other people from Asian backgrounds, will endure even greater levels of racism than before the pandemic. Prime Minister Scott Morrison is fond of telling Australians to ‘get out from under the doona’. He needs to also pay attention to the increased racist abuse which has sadly – but entirely predictably – emerged from under the covers.

As we have seen, lesbian, gay, bisexual and transgender Australians, as another vulnerable group, are at risk, too – of increased discrimination in employment, in service delivery, and through vilification.

If that happens to you, there may be legal remedies available, including under Commonwealth, state and territory discrimination laws, or the Fair Work Act. As discussed earlier, there may also be good reasons why you ultimately choose not to make a complaint under any of these processes.

But one reason homophobic, biphobic and transphobic bigots shouldn’t be allowed to get away with anti-LGBT discrimination or vilification is that you simply weren’t aware of the options available.

Christian Porter

Commonwealth Attorney-General should spend more time fixing problems with our existing anti-discrimination laws, and less time trying to introduce a Religious Discrimination Bill that would only exacerbate them.

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

Footnotes:

[i] Acknowledging of course that traditionally, and unfortunately still today, the most likely targets of discrimination on the basis marital or relationship status, or family responsibilities, are women.

[ii] For more on this subject, see A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iii] Although there is currently a Victoria Parliament inquiry considering expansion of the Racial and Religious Tolerance Act 2001 (Vic) to cover sexual orientation, gender identity and intersex status. See my submission to that inquiry here.

[iv] Although the criminal offence of publicly threatening or inciting violence, added to the Crimes Act 1900 (NSW) in 2018, does cover all of sexual orientation, gender identity and intersex status. For more on the problems of LGBTI anti-discrimination law in NSW, see What’s Wrong With the NSW Anti-Discrimination Act 1977?

[v] For more, see Unfairness in the Fair Work Act.

Coronavirus and the Religious Discrimination Bill

2020 is still less than ten weeks old. A lot has already happened in that time.

Obviously, the year started with the climate change-driven bushfires that devastated large swathes of South-Eastern Australia.

Around the same time, the first reports were emerging about a respiratory illness, caused by a novel coronavirus and which is now called COVID-19, wreaking havoc in Wuhan, China.

On a personal level, both at work and outside, most of my time has been spent trying to stop the Morrison Government’s proposed Religious Discrimination Bill, which will inflict its own serious harm on the Australian community.

At first glance, there may not appear to be much to connect these three developments. But dig a little deeper and there is a clear interaction between the Religious Discrimination Bill and the first two crises, at least in terms of how Australia responds to them.

For example, in relation to the bushfires in January, Prime Minister Scott Morrison encouraged Australians to give freely to charities, and then specifically named three: the Salvation Army, the Red Cross and St Vincent de Paul.

While the Red Cross is secular in ethos, the ‘Salvos’ and St Vincent de Paul are faith-based charities, which means that under clause 11 of the Religious Discrimination Bill they would legally be able to:

  • discriminate in terms of who they provide assistance to, including by ‘preferencing’ people who are Christian and consequently neglecting people who are Jewish, Muslim, Buddhist, Hindu, atheist or agnostic, and
  • discriminate in terms of who they employ, including by not hiring the most qualified person for the job, but instead the most religious.

To date, St Vincent de Paul has largely rejected these new special privileges, but as far as I understand, the Salvation Army has not (at least not Australia-wide). I wonder how many people would give so generously in the future if they were aware their money is funding religious discrimination and not emergency relief?

Nevertheless, it is the second major crisis – the coronavirus – and the Religious Discrimination Bill that I want to primarily focus on today.

Once again, despite superficially seeming unrelated, the Government’s proposed legislation could have a major influence on how our country responds to this grave threat. Indeed, I would argue that COVID-19 provides (at least) five reasons why the Religious Discrimination Bill must be abandoned.

  1. The Religious Discrimination Bill allows hospitals to hire the most religious, not the most qualified

In the coming months, we are going to be relying on our health care system more than ever before. From GPs to pharmacists, health information lines to hospitals – both public and religious. All parts of the system must be high quality – and that means all must hire the best-qualified person for each and every position.

Unfortunately, the Religious Discrimination Bill subverts that entirely reasonable expectation. Under clauses 32(8) and (10), religious hospitals would be permitted to discriminate in employment on the ground of religious belief.

That means a religious hospital would be legally able to hire a doctor, or nurse, or pharmacist, or other essential employee, because of their religious beliefs and instead of a better-qualified alternative candidate.

Surely that must have an impact on the standard of care that patients will receive. Imagine the worry if one of your loved ones is taken to the emergency department of a faith-based hospital and you can’t be certain whether the health practitioner is there because of what they believe, not what they can do.

The fact that religious hospitals receive public funding to deliver these services makes this proposal even more sickening.

If the Australian Government wants us to have confidence in all parts of the health system as it responds to coronavirus, then it must abandon legislation that inevitably damages that confidence.

  1. The Religious Discrimination Bill allows aged care facilities to hire the most religious, not the most qualified

Another area that has an important role in dealing with COVID-19 is our aged care sector. This is because the death rates from coronavirus are much higher among people aged over 70, and especially 80, and where they have existing medical conditions – exactly the demographic profile of aged care facilities.

Because of these particular vulnerabilities, we will be relying on our aged care workers to limit the spread of infection and keep our elderly as safe as possible – as well as to respond appropriately where transmission does occur.

Unfortunately, the same provisions of the Religious Discrimination Bill named above – clauses 32(8) and (10) – also allow religious aged-care services to discriminate in employment of the ground of religious belief.

Once again, that means aged care services operated by faith-based organisations will be permitted to hire someone because of their religious beliefs rather than their qualifications. Once again, the services will be able to discriminate in this way even where they are government-funded.[i]

As someone with a grandmother who turned 99 last Wednesday, and who is in a nursing home, I would hate to think she is being cared for by someone who is there because of their views and not their vocational skills.

Older Australians must be looked after by the people most likely to keep them safe, irrespective of their religious beliefs. This is especially important during the coronavirus pandemic. The Religious Discrimination Bill directly contradicts this principle, and is another reason why it must be abandoned.

  1. The Religious Discrimination Bill will already make it more difficult for women, LGBTI people and other vulnerable groups to access essential health care. Coronavirus will exacerbate this problem

Of course, while COVID-19 will likely receive the lion’s share of health care system resources in the weeks and months ahead, people will continue to get sick in other ways, and to rely on health practitioners to keep them well.

Unfortunately, as has been highlighted previously,[ii] clauses 8(6) and (7) of the Religious Discrimination Bill would make it easier for doctors, nurses, pharmacists, psychologists and midwives to refuse to participate in particular health services.

As Attorney-General Christian Porter has himself conceded, these provisions would allow doctors and pharmacists to:

  • refuse to provide reproductive health services, even where this has a disproportionate impact on women
  • refuse to provide access to hormone therapy, including puberty blockers, even where this has a disproportionate impact on trans and gender diverse people, and
  • refuse to provide PEP and/or PrEP, even where this disproportionately exposes gay and bisexual men to the risk of HIV transmission.

Where patients are denied this essential health care, they are supposed to find another health practitioner who is willing and able to do so (although the refusing practitioner likely does not have any obligation to make a referral).

As has been pointed out, this may be practically difficult, both for time-critical services (such as PEP, or the ‘morning after’ pill), as well as for people in regional, rural and remote parts of Australia.

Well, the impact of the novel coronavirus could make this situation much worse. For example, say you are a trans youth living in a regional centre, and rely on a certain doctor and/or pharmacist to provide access to puberty blockers.

And then that doctor or pharmacist is required to self-isolate for a minimum of two weeks because of potential exposure to COVID-19. Note that this is already happening in Sydney and Melbourne, with individual health practitioners ordered to stay away from work at extremely short notice.

What exactly is the trans young person meant to do in these circumstances, especially where other doctors and pharmacists in town have the ‘right’ to turn them away?

With the impending massive strain of coronavirus on our health care system, all effort should be made to ensure it operates effectively and efficiently for all people who need health care – all types of health care. The Religious Discrimination instead erects barriers to some of the most vulnerable members of our community. It must be abandoned.

  1. The Religious Discrimination Bill will divide Australia at a time it needs unity

It is only early days in terms of the impact of COVID-19 on Australia, with the total number of people diagnosed remaining at fewer than 100 (at the time of writing).

However, the impact on our social cohesion is already quite large. This includes countless reported incidents of racism directed at Chinese-Australians, and Asian-Australians more generally.

And of course just this week we witnessed the run on the nation’s toilet paper supply – with panic buying leading to physical altercations in a number of supermarkets around the country.

As the situation worsens, and more and more people are infected, this pandemic will likely test the ties that bind us together, often in unexpected ways.

This is exactly the wrong time for our Government to introduce legislation that divides the community into ever-smaller groups of ‘us’ and ‘them’.

It is the wrong time to allow schools, and universities, and charities, and accommodation providers, and hospitals, and aged care services, and conference venues, and camp sites, to discriminate on the ground of religious belief in terms of who they offer services to, and/or employ.

It is the wrong time for our Government to pursue a Bill that encourages religious individuals to make degrading and demeaning ‘statements of belief’ against women, LGBTI people, people with disability, single parents, people in de facto relationships, divorced people and even people from minority faiths, in all areas of public life.[iii]

While I haven’t seen many examples yet, I’m sure there will soon be a deluge of extremists seeking to exploit coronavirus, blaming it on women exercising reproductive choice, gay men having sex, LGBTI people getting married – all with the possible tick of approval from the Religious Discrimination Bill.

If the Government wants to lead on COVID-19, and bring the community together to deal with a common threat, it must abandon legislation that makes nearly everybody an enemy of somebody else.

  1. The Religious Discrimination Bill is a distraction for a Government that should be focused on more important things

The fifth and final reason why the Government must abandon the Religious Discrimination Bill is arguably the most important – and that is because it is an unnecessary distraction from much more important issues that warrant their urgent attention.

Like responding to the immediate health challenges presented by coronavirus, particularly as the illness begins its inevitable spread across the community.

And dealing with the significant economic fallout, with Australia now facing our first economic recession in almost three decades.

There is an entire generation of people (including myself and my partner) who have grown up not knowing what a recession looks like, but it seems we are soon to find out. And it won’t be pretty.

Surely the Government should be focused on taking action to stop the economy grinding to a halt, and preventing rising unemployment in education, tourism, retail, construction and pretty much every other industry in the country.

Oh, and then there’s the equally urgent need to make structural changes to reduce our carbon emissions, to minimise the chances of the other disaster that heralded the start of 2020 (the bushfires) from happening again.

Instead, the Morrison Government is wasting its time on proposed legislation that almost nobody actually wants, except religious fundamentalists who demand it so they can use it as a weapon against non-believers.

In pushing forward with the Religious Discrimination Bill, the Government is wasting our time, too – because we must continue to expend our time, energy and resources to stop this abhorrent and appalling legislation.

If it sounds like I’m sick and tired, that’s only because I am. Sick and tired of having to defend my community against the constant attacks against it, from a Government that can’t find the time to protect LGBT students in religious schools against discrimination, but has miraculously created the time to progress two exposure drafts (and counting) of this law.

And if it sounds like I’m anxious about coronavirus, well I am that too. If we’re being honest, most of us are right now. That anxiety might turn out to be unfounded. Or it could be an entirely rational response to what confronts us. It could even be we aren’t worried enough.

We don’t really know – only the weeks and months ahead will truly tell.

Here’s what we do know. As of this morning, a third Australian has tragically died from COVID-19, out of more than 3,500 deaths – and 105,000 cases – worldwide. Each of those numbers will continue to grow.

But there’s one death that would not be mourned – if the Morrison Government finally did the right thing and abandoned its Religious Discrimination Bill. That would be a mercy killing, and it would be met with relief from most members of the Australian community.

 

Coronavirus

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

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

Footnotes:

[i] I should highlight here that government-funded aged care facilities operated by religious bodies are already entitled to discriminate in employment in relation to sexual orientation and gender identity, under section 37 of the Sex Discrimination Act 1984 (Cth). As I have argued previously this provision already jeopardises the standard of care provided to people accessing aged care services and it must be removed. See Submission to Royal Commission into Aged Care.

[ii] See The ‘Bad Faith’ Religious Discrimination Bill Must be Blocked.

[iii] Under clause 42 of the Bill, which effectively exempts ‘statements of belief’ from all Commonwealth, state and territory anti-discrimination laws, unless they meet the high bar of being malicious, harassing, threatening, seriously intimidating, vilifying (meaning inciting hatred or violence) or promoting the commission of a serious criminal offence.

Don’t Rain on Our Parade

It’s reached that point in late February where, every day at 4:20pm, I visit the Bureau of Meteorology website to check the forecast for Saturday night’s Sydney Gay & Lesbian Mardi Gras Parade.

 

But, irrespective of whether the BoM says it will rain, hail, (smoke) or shine, there’s a much larger cloud hanging over Australia’s LGBTI community: the Morrison Government’s proposed Religious Discrimination Bill.

 

This legislation has the potential to adversely affect nearly every aspect of our existence.

 

From health-care, where it will allow doctors and pharmacists to deny hormone therapy, including puberty blockers, to trans and gender diverse people. And to refuse to provide access to PEP, and PrEP, exposing gay and bisexual men to greater risk of HIV transmission.

 

To the workplace, where employers and colleagues will be able to make comments that offend, humiliate, intimidate, insult or ridicule us, as long as those statements are based on religious belief.

 

A manager could tell a staff member that gay sex is sinful, and same-sex relationships are intrinsically disordered.

 

An interviewer may inform a trans applicant that gender is binary, and therefore their gender identity is not real.

 

A colleague could respond to a lesbian co-worker showing pictures of her family in the lunch-room that she has deliberately denied her children of a father, and will be condemned by god for her ‘lifestyle’ choices.

 

These are all entirely plausible scenarios. And all would be legally permitted under the Religious Discrimination Bill, because statements of belief are effectively exempt from all Commonwealth, state and territory anti-discrimination laws.

 

Indeed, statements of belief would be protected across all areas of public life, not just employment.

 

If this legislation passes, international tourists visiting Sydney this time next year could be subjected to degrading and demeaning comments anywhere and everywhere, at the airport, in the taxi or uber, on buses, trains and ferries, at the hotel or B&B, at tourist attractions, in cafes and restaurants, at shops and on the streets.

 

That sounds more like hate-song than ‘matesong’.

 

Except, once the party is over tourists will be able to leave these homophobic, biphobic, transphobic and intersexphobic comments behind, while LGBTI Australians will be stuck with them, like unshakeable glitter, invading every nook and cranny for years to come.

 

As a certain bank tried to remind us last week – and was then itself reminded by the community – ‘words do hurt’. It is unacceptable that our own Government is so focussed on ensuring we are all exposed to more hurtful words in our lives.

 

The Bill also further entrenches the special privileges granted to religious schools and other faith-based organisations to discriminate against teachers, other employees, students and, in some cases, people accessing their services, on the grounds of religious belief or lack of belief. Even where these services are being delivered using public funding.

 

It doesn’t explicitly grant new powers to religious schools to discriminate against LGBT teachers and students. But then it doesn’t need to, either – because those powers already exist under the Sex Discrimination Act and, despite promising to protect LGBT students before the end of 2018, the Morrison Government has so far failed to shield some of the most vulnerable members of our community.

 

The theme for this year’s Mardi Gras is ‘What Matters’. In pushing ahead with the Religious Discrimination Bill, despite criticism from LGBTI organisations and a wide range of other civil society bodies, while failing to protect students in religious schools, it is clear the right to be a bigot matters much more to them than the safety of LGBT kids.

 

Perhaps the most frustrating part of the current debate is that, from an LGBTI advocate’s perspective, it is a purely reactive one – defending existing rights under what are already-flawed anti-discrimination laws, rather than trying to make those laws better (for example, including bisexual, non-binary and intersex people in NSW’s out-dated Anti-Discrimination Act).

 

It takes attention away from other urgent law and policy reform, too.

 

We shouldn’t forget that this Saturday’s march takes place in a state where trans people still need to have surgery – which is both expensive, and for some people, unwanted – before being able to update their identity documentation.

 

And in a country where children born with variations in sex characteristics continue to suffer massive human rights violations, including coercive, intrusive and irreversible surgery and other medical treatments.

 

The Religious Discrimination Bill will take LGBTI rights in Australia backwards, when there is still so much progress left to be made, on these and many other issues.

 

It’s time the Morrison Government abandoned this legislative attack on our community, and instead worked with us to achieve positive change – maybe then we can finally celebrate under clear skies.

 

Mardi Gras flag

 

For more on this subject, see The Religious Discrimination Bill: What you should know.

 

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

A Potential Warning to LGBTI Tourists to Australia

Today is one of my favourite days of the LGBTI calendar: Sydney Gay & Lesbian Mardi Gras Fair Day. Tens of thousands of people will gather in Victoria Park in a beautiful celebration of our community.

 

That includes visitors from interstate and from overseas, especially from the Asia-Pacific region, whose numbers will swell over the next fortnight in the lead-up to the Mardi Gras Parade and Party, to be held on Saturday 29 February.

 

It creates a real buzz around the city. I can only imagine how much louder Sydney will hum in 2023 as we host World Pride, the first city in the Southern Hemisphere to do so.

 

However, there is a looming threat to LGBTI tourism to Australia, one that has the potential to dampen our celebrations more than even literal rain on our parade: the Government’s proposed Religious Discrimination Bill.

 

If passed, this legislation could have a negative impact on nearly every aspect of the visitor experience. So much so, it is easy to envisage the following warnings being handed out to lesbian, gay, bisexual, transgender and intersex tourists to Australia in the future:

 

  1. Don’t get sick

 

Not only because our health care system can be expensive for people who are not citizens or permanent residents. But also because the Religious Discrimination Act allows doctors, pharmacists and some other health practitioners to refuse to provide health services, even where this has a disproportionate impact on vulnerable groups. For example, doctors and pharmacists can:

  • refuse to provide hormone treatments, even where this adversely affects trans and gender diverse people[i]
  • refuse to provide PEP/PrEP, even where this has a detrimental impact on gay and bisexual men (and others at increased risk of HIV transmission), and
  • refuse to provide reproductive health services (such as the morning after pill), irrespective of the effect on people with uteruses.

 

If possible, make sure you bring all of your medications with you, and be careful not to lose them during your stay.

 

  1. Be prepared to ‘shop around’ for doctors, pharmacists and other health practitioners

 

If you do get sick, or lose your medication, while in Australia, you should be prepared for the possibility any individual doctor or pharmacist may refuse to provide a specific health service or treatment. You may need to see several of each in order to obtain access to the medications you need. Unfortunately, it is also likely you will be charged for appointments even where the health practitioner refuses to provide a service.

 

Importantly, whether a doctor or pharmacist will refuse to provide a specific health service or treatment may not be apparent before you see them. Individual doctors or pharmacists at public hospitals are also entitled to refuse service: if this happens, try asking for a new practitioner until you receive treatment.

 

  1. Be prepared for doctors, pharmacists and other health practitioners to express abhorrent views about you, to you

 

Even if a doctor, pharmacist or other health practitioner provides you with the health service or treatment that you need, they are also free to express offensive, humiliating, ‘moderately’ intimidating, insulting or ridiculing views about your sexual orientation, gender identity or sex characteristics while doing so. For example, they may be able to:

  • tell trans and gender diverse people that gender is binary and that their gender identity is an abomination[ii]
  • tell lesbian, gay and bisexual people that same-sex relationships are intrinsically disordered and sinful, and
  • tell intersex people that sex should be male or female and that their sex characteristics are a mistake that must be corrected.

 

Doctors, pharmacists and other health practitioners will be able to express these abhorrent views to you as long as they are based on their religious beliefs.

 

  1. Be prepared for people to express abhorrent views about you, to you, in all areas of public life

 

In fact, people will be to express such views about you, to you, in all areas of public life: on the plane or boat you arrive on; at the airport; in taxis, ubers, buses, ferries, trains and other forms of transport; at hotels, motels and B&Bs; at galleries, museums and other tourist attractions; at cafes and restaurants; at shops. Everywhere you go while you are in Australia.

 

That’s because the Religious Discrimination Act exempts ‘statements of belief’ from constituting discrimination under all other Commonwealth, state and territory anti-discrimination laws, as long as those statements are based on that person’s religious beliefs and fall short of harassment, threats, serious intimidation or incitement to hatred or violence.

 

  1. If you are subjected to abhorrent views and wish to make a complaint, try to find out whether the person expressing them is religious

 

Because abhorrent views are protected where they are based on religious beliefs, you may be able to complain about homophobic, biphobic, transphobic and intersexphobic comments that are not motivated by religion.[iii] Therefore, if you wish to make a complaint about such mistreatment, you will first need to work out whether the person making the statement is religious.

 

In practice, it may be difficult to determine whether someone is religious and/or whether their anti-LGBTI prejudice is based on their religious beliefs. It may also be physically unsafe to do so. In these circumstances, it may be wiser not to make a complaint and instead try to avoid the person(s) expressing such views (if possible).[iv]

 

  1. If you need emergency food or shelter during your stay, consider pretending to be Christian

 

In Australia, the Government outsources a wide range of health, education and other community services to religious organisations. This includes some homelessness shelters, as well as food vans and other welfare services.

 

Under the Religious Discrimination Act, religious charities are able to discriminate on the basis of religious belief in terms of who they provide these services to, even where they are providing them with public funding.

 

Given the vast majority of faith-based charities in Australia are Christian, if you experience financial difficulties during your stay and need emergency food or shelter, you should consider pretending to be Christian. You may even need to pretend to be from the specific Christian denomination providing that service (eg Catholic or Anglican).

 

**********

 

The above warnings might sound absurd, but if the Government’s Religious Discrimination Bill becomes law in its current form, then they will be all too real.

 

And we will have a responsibility to provide these warnings to all LGBTI tourists to Australia, not just during Mardi Gras and World Pride, Midsumma, Feast and other pride festivals around the country, but all year round, each and every year.

 

Of course, it won’t just be tourists who will be adversely affected by this legislation either. In fact, all of the warnings I have included will also apply to LGBTI Australians.

 

Doctors, pharmacists and other health practitioners will be able to refuse to provide specific health services and treatments to us, and we won’t necessarily know before we make an appointment.

 

Everyone in public life (including health practitioners, as well as people providing education, accommodation, transportation, food and other goods and services) will be able to express abhorrent views about us, and to us, as long as those views are religiously-motivated.

 

And if we fall on hard times, our religion (or lack of religion) may determine whether we are able to access some publicly-funded essential services.

 

The only glimmer of hope is that this post is a potential warning, rather than an actual one. It is only a Religious Discrimination Bill at this stage, not an Act. This disturbing vision of the future can still be prevented from becoming a reality – but only if we take action now.

 

Please speak up in the coming days and weeks. If you see a federal politician at Fair Day, or at the Mardi Gras Parade, ask them whether they will vote against a Religious Discrimination Bill that takes rights away from the LGBTI community. If they post about it on twitter, facebook or other socials, ask them the same thing.

 

You should also write to:

  • 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)

because they will help determine whether this legislation becomes a waking nightmare, or just a temporary bad dream.

 

PFLAG Australia has made this process easy, using the website Equality, Not Discrimination. Equality Australia has a similar helpful platform, here. Make your voice heard, because this legislation will affect LGBTI tourists, and LGBTI Australians, alike.

 

Rainbow Bridge

 

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

 

Footnotes:

[i] Attorney-General Christian Porter confirmed that trans and gender diverse patients could be denied treatment on the day he released the Second Exposure Draft Religious Discrimination Bill:

“Mr Porter used the example of 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’.”

‘Rules for doctors, pharmacists tightened in new religious discrimination bill’, 10 December 2019, Sydney Morning Herald.

[ii] The explanatory notes to the Second Exposure Draft Religious Discrimination Bill confirm this. At para 549, on page 66:

‘For example, a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith. However, a refusal by that doctor to provide medical services to a transgender person because of their religious belief that gender was binary would not constitute a statement of belief as the refusal to provide services constitutes an action beyond simply stating a belief, and therefore may constitute discrimination on the basis of gender identity.’

[iii] This also depends on the jurisdiction the tourist finds themselves in. Anti-LGBTI vilification is not prohibited under Commonwealth law, or in Victoria, Western Australia, South Australia or the Northern Territory. Anti-LGBTI vilification is prohibited in both Tasmania and the ACT, anti-LGBT vilification is prohibited in Queensland, while NSW has different coverage for inciting or threatening violence (LGBTI), or civil vilification (only lesbian, gay and binary transgender). For more see: A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[iv] Indeed, this seems to be the Government’s intention – to discourage people who experience discriminatory conduct from bringing complaints.

The ‘Bad Faith’ Religious Discrimination Bill Must Be Blocked

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 [2019], 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:

  • Doctors
  • Midwives
  • Nurses
  • Pharmacists, and
  • Psychologists

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.

 

Take Action

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:

 

  1. 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.

 

  1. 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.

 

  1. 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.

 

Christian Porter

Attorney-General Christian Porter, author of the ‘Bad Faith’ Religious Discrimination Bill.

 

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

 

Footnotes:

[i] Attorney-General Media Conference, 13 December 2018.

[ii]Christian Porter says religious freedom bill won’t erode state LGBT protections’ 12 July 2019.

[iii] Section 17(1) Anti-Discrimination Act 1998 (Tas).

[iv] The complete Religious Freedom Bills – Second Exposure Drafts (which includes the updated Religious Discrimination Bill) can be found here.

[v] See The Growing List of Problems with the Religious Discrimination Bill.

[vi] Clause 42(2) provides that statements of belief will not be protected if it is:

  • malicious
  • 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.’

[vii] See The Internal Contradiction of the Morrison Government’s Religious Discrimination Bill.

[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.

The Internal Contradiction of the Morrison Government’s Religious Discrimination Bill

On Saturday 30 November, Prime Minister Scott Morrison revealed that his Government would not meet its commitment to introduce the Religious Discrimination Bill into Parliament before the end of the year.

 

Instead, he announced they would be releasing ‘a revised and further exposure draft of the RDA Bill to reflect the Government’s response to the consultation to date and provide further opportunity for engagement.’ [i]

 

On an optimistic reading, this means there is more opportunity for the Government to listen to all of the criticisms of this legislation, from women, LGBTI people, legal organisations and the Australian Human Rights Commission, that the Religious Discrimination Bill requires substantial amendment because it authorises discrimination against large sections of the Australian community.

 

Unfortunately, based on all evidence to date, we have more reason to be pessimistic, and instead fear that the Government will only listen to religious fundamentalists demanding even more special privileges to discriminate.

 

The only change to the Bill which Attorney-General Christian Porter highlighted at the National Press Club on 20 November[ii] was an amendment to ensure that ‘religious hospitals and aged-care providers will be given protections equivalent to those given to other religious bodies, in relation to employment of staff’ (in other words, allowing them to discriminate).

 

There have been no indications of positive changes to the Bill, to reduce its adverse impact on women, LGBTI people, single parents, divorced people, people in de facto relationships, people with disability and others. Nor was there any reason to be hopeful in the Prime Minister’s media release confirming the delay.

 

However, what I really want to highlight here is the inconsistency of two of Morrison’s statements in that release.

 

Specifically, he criticises Labor for ‘a lack of genuine commitment … to the principle that Australians who hold sincere religious beliefs in this country deserve the same legal protections that are rightly provided in other areas such as gender and race.’

 

But then later the Prime Minister also says ‘Our Government will continue to proceed on the basis of good faith with a view to having a balanced and common sense Bill that protects the important religious freedoms that Australians can sadly no longer take for granted.’

 

Except these two concepts – a Religious Discrimination Bill, and religious freedom laws – are very, very different things.

 

Had Morrison actually delivered the former, legislation that simply protects people of faith, and no faith, against discrimination on the same basis as gender, race and other attributes, then not only would Labor have likely welcomed it, but so too would the majority of Australians, including LGBTI people. After all, we know what discrimination is like, and don’t want other people to experience it.

 

Instead, his Government has produced a ‘Religious Discrimination Bill’ in name, but a religious freedom law in substance. The most problematic elements of the Exposure Draft – re statements of belief, large employer codes of conduct, conscientious objections by health practitioners and the general ‘religious exception’ in clause 10[iii] – all purport to protect ‘religious freedom’ rather than the right to non-discrimination.

 

Obviously, a lot has been written about the serious flaws of these provisions (including by the author), and particularly about the discrimination they permit against other groups.

 

Perhaps one consequence that hasn’t received as much attention is that they actually make this legislation not just inconsistent in its objectives, but internally contradictory as well.

 

That’s because these same provisions also allow discrimination against people on the basis of their religious beliefs, or lack of belief – making it a Religious Discrimination Bill that perversely encourages religious discrimination.

 

For example, the protections for ‘statements of belief’ in clause 41 – which effectively render them exempt from all Commonwealth, state and territory discrimination laws – don’t just apply to comments that discriminate against women, LGBTI people, single parents, divorced people, people in de facto relationships and people with disability.

 

Clause 41 also protects statements of belief that discriminate on the basis of religion. This includes, for example, saying the followers of other religions are ‘unclean heathens destined for eternal damnation’. Just like sexist, homophobic, transphobic and ableist statements, these derogatory comments will be protected irrespective of where they occur, including in the workplace, in education, in health, and in the provision of goods and services.

 

In the same way, clauses 8(3) and (4) won’t just protect a certain footballer telling gay and trans people they are going to hell – it will protect any religious employee who, outside ordinary work hours, tells people from other religions they’re going to hell, too.

 

The conscientious objection provisions, in clauses 8(5) and (6), are an even bigger threat. As well as allowing health practitioners, from GPs and pharmacists through to optometrists, physiotherapists and even podiatrists, to refuse to serve women, or LGBTI people, they could potentially be (ab)used by a health practitioner to refuse to serve Jewish people, or Muslims, or people from other minority faiths.

 

But the biggest threat of all – especially to minority religions – is found in clause 10. It allows religious schools and universities, charities and ‘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)’,[iv] to discriminate on the basis of religious belief.

 

This clause therefore permits discrimination against teachers and students, as well as the employees of – and even people accessing – charities and community services. And, as we have already seen, Attorney-General Porter plans to expand this clause even further to allow religious hospitals and aged care services to discriminate in relation to employment (at the very least).

 

Technically, clause 10 protects all religious organisations equally – they will each be able to discriminate in terms of who they employ (or refuse to employ), and provide services to (and who they exclude).

 

Practically, this clause will primarily benefit the largest religious organisations – including the Catholic and Sydney Anglican[v] churches and related education, health and community services organisations – at the expense of everyone else.

 

With the massive outsourcing of public services to these bodies over the past two to three decades, they now receive billions and billions of dollars each and every year, and will be explicitly permitted to use that public funding to discriminate.

 

Not just in relation to lesbian, gay, bisexual and transgender people (which is sadly already allowed under the Sex Discrimination Act 1984 (Cth), and which the Morrison Government steadfastly refuses to change), but also in relation to religious belief, or lack of belief.

 

That means a professor being denied a job because they are Jewish.

 

A doctor refused employment at a hospital because they are Muslim.

 

A school student expelled because they are atheist.

 

A homeless person missing out a bed in a shelter because they are Hindu.

 

A charity worker rejected for promotion because they are Buddhist.

 

An aged care employee losing shifts because they are agnostic.

 

All these scenarios could be legal under the Religious Discrimination Bill, as long as it was a religious organisation doing the discriminating. And they would be using taxpayers’ money – your money, my money, our money – to do so.

 

This outcome – entrenching the power and privilege of the major churches, namely the Catholics and Sydney Anglicans, over and above the rest of us – is the inevitable consequence of the internal contradiction of this legislation.

 

The Morrison Government has chosen to undermine what could and should have been a standard Religious Discrimination Bill – one that would have prohibited most, if not all, of the scenarios described above – with provisions that instead promote ‘religious freedom’.

 

With their decision to release a second Exposure Draft for public consultation, the Government now has the opportunity to make a better, and more informed, choice, and to prepare legislation that reduces religious discrimination rather than increasing it.

 

Unfortunately, I can’t seem to suspend my disbelief that they will choose the right option. Based on everything leading to this point, I have no faith the Government’s ‘revised and further exposure draft’ Bill will be any less of a threat to women, LGBTI people, single parents, divorced people, people in de facto relationships and people with disability.

 

But we must not forget it is also a threat to minority religions, to Jewish people, Muslims, Hindus, Buddhists, atheists and agnostic people alike. They too will be subjected to discriminatory statements of belief, and potentially denied access to health care, just because of who they are. And they will be refused employment, and discriminated against in education, health, aged care and community services, all by ‘mainstream’ religious organisations using public monies to do so.

 

Hopefully, they – as well as the many decent Catholic and Anglican people of good faith who oppose new special rights to discriminate – will join us in demanding genuine religious anti-discrimination laws, to replace Morrison’s badly botched Bill.

 

 

r0_220_5199_3374_w1200_h678_fmax

By choosing to include expansive ‘religious freedom’ provisions, Scott Morrison has undermined the ability of the Religious Discrimination Bill to actually prohibit religious discrimination.

 

Footnotes:

[i] Media Release, Prime Minister Scott Morrison, Government will Protect Religious Freedoms by Getting Law Right, 30 November 2019.

[ii] Transcript, Attorney-General Christian Porter, Address to National Press Club, 20 November 2019.

[iii] The Growing List of Problems with the Religious Discrimination Bill.

[iv] Clause 10(2)(c).

[v] Noting Anglicare Victoria have joined other religious bodies, including Vincent Care Victoria and Uniting Vic.Tas, in criticising the special rights to discriminate contained in the Bill. ‘Religious discrimination bill: Faith-based groups and equality advocates welcome delay’, Guardian Australia, 1 December 2019.

The Religious Discrimination Debate is a Test for the States and Territories

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.

 

Berejiklian Andrews RD Bill

NSW Premier Gladys Berejiklian at Sydney Gay & Lesbian Mardi Gras, and Victorian Premier Daniel Andrews at Midsumma. Will they stand up against the Religious Discrimination Bill which will make it easier to discriminate against LGBTI people in their respective states?

 

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

The Growing List of Problems with the Religious Discrimination Bill(s)

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:

  • Gender
  • Race
  • Age
  • Sexual orientation
  • Lawful sexual activity
  • Gender identity
  • Intersex variations of sex characteristics
  • Disability
  • Marital status
  • Relationship status
  • Pregnancy
  • Breastfeeding
  • 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
  • Medical radiation practice
  • Midwifery
  • Nursing
  • Occupational therapy
  • Optometry
  • Pharmacy
  • Physiotherapy
  • Podiatry, [and]
  • Psychology.’

 

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.

 

Opal Tower

The Religious Discrimination Bill(s) are the legislative equivalent of Opal Tower – but there’s still time to avert a new crisis, if the Government and Parliament are willing to listen.

 

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.

 

What to Expect, and What to Fear, from the Religious Discrimination Bill

Prime Minister Scott Morrison’s proposed Religious Discrimination Bill is overdue.

 

Conceived eight months ago, when the Bill was announced as part of the Government’s response to the Religious Freedom Review in December 2018 Attorney-General Christian Porter stated that “we are well-advanced on the drafting and… we would have [it] out early [this] year, so that people can see it”.[i]

 

Yet in late August 2019 this legislation remains nowhere to be seen – at least not in public, and definitely not by the LGBTI community (although given Morrison’s consultation with 21 religious leaders,[ii] of various faiths, in early August it is a safe bet they have been advised of its key features).

 

The longer the gestational period for the Religious Discrimination Bill is, and the more details that are kept hidden from the people who it could adversely affect – LGBTI Australians, women, single parents, de factos and divorced people – the greater the levels of collective anxiety about what it may contain.

 

So, what can we expect when Morrison and Porter are ‘expecting’?

 

**********

 

If we are to take the Attorney-General at his word, we have nothing to fear from this reform. From the time it was first announced, Porter has consistently stated that it would be relatively straight-forward:

 

The architecture for discrimination legislation in Australia is well-known, it’s not overly complicated. An attribute is defined – such as age or race or sex or disability or, in this case, the adherence to a religion or the right to not adhere to a religion – and then certain prohibitions are placed on people in terms of their treatment of other Australians based on that attribute. So you are protected from discrimination because of that attribute and then there are certain exemptions drafted as is appropriate. I don’t think that that would be a very contentious bill, necessarily, it follows a very standard architecture.[iii]

 

He has made similarly reassuring comments since the 18 May election:

 

“Porter said the government was doing ‘precisely what we said we would do’ at the election. He believed a ‘classical formulation of rights’ that protected people from the behaviour of other people through the architecture of anti-discrimination bills was superior to a religious freedom bill.”[iv]

 

And just today: “Mr Porter told The Australian that the final bill would deliver a religious discrimination act that ‘mirrors other anti-discrimination acts such as those already covering race, sex and aged discrimination’”.[v]

 

Based on these comments, the Morrison Government should shortly give birth[vi] to a Religious Discrimination Bill that, similar to something like the Age Discrimination Act 2004 (Cth), protects people against discrimination on the basis of religious belief, or lack of religious belief, and nothing else.

 

Such a narrow law would in fact be a welcome development, especially because it would protect religious minorities against discrimination – something that is long overdue in multicultural Australia.

 

But it would not be welcomed by everyone, especially not religious fundamentalists like the Australian Christian Lobby, and parts of the Catholic and Anglican Churches, who have been relentlessly campaigning for a more expansive Religious Freedom Bill, one that would provide people of faith with the ability to discriminate against others on the basis of their sexual orientation, gender identity, sex and relationship status (among other attributes).

 

And that’s why the delay in releasing the Bill is so concerning. Because preparing a genuine Religious Discrimination Bill is a relatively straight-forward task, and one that should have been completed months ago.

 

Whereas cooking up a Religious Freedom Bill is a much more complicated process, as more and more potential ‘nasties’ are added into the mix. Which is one possible reading of media reports from early July suggesting the legislation has ‘already had more than 50 drafts.’[vii]

 

So, if the Morrison Government is indeed preparing to introduce a Religious Freedom Bill, what exactly should LGBTI Australians be afraid of?

 

**********

 

My number one worry is that the legislation will undermine our existing framework of LGBTI anti-discrimination protections.

 

Now, I am the first to admit that these laws are deeply flawed[viii] (in most jurisdictions other than Tasmania anyway) and in need of significant reform, including to remove the overly-generous religious exceptions which allow religious organisations to discriminate against LGBTI people.

 

The problem is that the Religious Discrimination Bill could make things much, much worse.

 

For example, the Government could create a positive right for religious individuals and organisations to ‘manifest’ their religious belief, even where it has a negative impact on the rights of others, such as the right to be protected against discrimination.

 

They could explicitly provide that the Religious Discrimination Bill overrides the laws of state and territories that establish better protections for LGBTI people. Even if they don’t include a ‘cover the field’ type provision, depending on how they legislate any inconsistency between Commonwealth and State and Territory laws could invalidate the latter.

 

To take a specific example, the Religious Discrimination Bill could override the anti-discrimination laws in Queensland, Tasmania, the ACT and Northern Territory which currently protect LGBT students in religious schools against discrimination. And it could preclude other jurisdictions, like NSW and Victoria, from adopting the same approaches in the future.

 

Another way in which the Religious Discrimination Bill could undermine anti-discrimination protections for other groups, is through the inclusion of new ‘objectives clauses’ in all Commonwealth anti-discrimination laws, as recommended by the Religious Freedom Review.[ix]

 

Recommendation 3: Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.

 

The risk lies in how this recommendation is implemented. It is possible that the Government does what then-Attorney-General George Brandis tried to do during the marriage legislation debate in November 2017, and only incorporate Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR):

 

Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

 

Significantly, Brandis did so while excluding the equally-important Article 18(3):

 

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.[x]

 

If the Government adopts this approach, prioritising the objective of religious freedom over other human rights, we can be in no doubt the (misnamed) Human Rights Law Alliance will file as many legal ccomplaints at it takes to have courts reinterpret LGBTI anti-discrimination laws as narrowly as possible.

 

Just this week we also discovered that the Religious Discrimination Bill could provide anti-discrimination ‘protection’ not just to individuals, but also to religious organisations[xi] – something that is unprecedented in Commonwealth anti-discrimination law.

 

As Anna Brown from Equality Australia stated:

 

It would be extremely unorthodox for the religious discrimination bill to include provisions to protect organisations or religious institutions given the historical focus of discrimination law in protecting the rights and dignity of individuals.

 

Another risk from the Commonwealth creating positive rights for people to ‘manifest’ their religious belief is that it could undermine LGBTI anti-vilification laws in Queensland, Tasmania and the ACT.[xii]

 

Currently, none of those jurisdictions include ‘religious discussion’ as a defence to their vilification provisions (although the Hodgman Liberal Government in Tasmania tried to introduce this defence in the last term of parliament, but was defeated in their upper house).

 

The Religious Discrimination Bill could instead make it easier for people in those jurisdictions to vilify LGBTI people as long as they could say this vilification was motivated by their religious beliefs.

 

**********

 

The second major fear is that we could end up with a system where religious belief attracts more rights than other protected attributes, including sexual orientation, gender identity or intersex status/sex characteristics.

 

For example, there is a possibility (albeit small) that the Religious Discrimination Bill will create anti-vilification protections for religious belief.

 

Which, in principle, is perfectly reasonable – because nobody deserves to be vilified on the basis of who they are (although religious vilification laws would need to be carefully crafted so as not to create de facto blasphemy laws).

 

The problem arises because it would be only the second attribute to attract protection against vilification under Commonwealth law – the other being racial vilification prohibited under section 18C of the Racial Discrimination Act 1975.

 

None of sex, disability, age, sexual orientation, gender identity or intersex status attract equivalent protections. No matter how plaintively religious fundamentalists are performing their persecution at the moment (especially regarding the Folau case), it is impossible to argue that vilification against people because of their religious belief is any more common, or harmful, than homophobic, biphobic, transphobic or intersexphobic vilification.

 

There is another situation, however, where it is already certain that religious Australians will end up with greater human rights representation than LGBTI people – because the Morrison Government has committed to establish a ‘Religious Freedom Commissioner’ within the Australian Human Rights Commission.

 

In principle, a Religious Discrimination Commissioner (along the lines of the existing Race, Sex, Age and Disability Commissioners) makes sense – although its focus should be on removing discrimination against people on the basis of religion, not prosecuting the case for ever-greater ‘religious freedoms’.

 

In practice, though, even the Government’s own Religious Freedom Review, chaired by the hand-picked former Liberal Attorney-General Philip Ruddock, found that a stand-alone Religious Discrimination Commissioner was unnecessary:

 

Recommendation 19: The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position [emphasis added].

 

Appointing a Religious Freedom Commissioner would also create a stark contrast with LGBTI Australians, who, despite being protected against discrimination following the historic Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, still do not have a human rights commissioner of our own.[xiii]

 

Therefore, if either or both religious anti-vilification laws and a Religious Freedom Commissioner are introduced, LGBTI Australians will quite rightly be left wondering why some Australians are more equal than others.

 

**********

 

My third major worry concerns a litany of other new special rights that could be created for religious individuals and organisations, across a range of other laws.

 

We have already seen a preview of this, with the Government’s legislative agenda, published on the website of the Department of Prime Minister and Cabinet,[xiv] suggesting they will introduce not just a Religious Discrimination Bill, but also a Religious Discrimination (Consequential Amendments) Bill and a Human Rights Legislation Amendment (Freedom of Religion) Bill.

 

The latter two bills in particular will ‘amend existing Commonwealth legislation relating to freedom of religion, including amendments to marriage law, [and] charities law.’

 

The reference to marriage law may be linked to Recommendation 12 of the Religious Freedom Review, which stated:

 

The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal:

(a) conforms to the doctrines, tenets or beliefs of the religion of the body; or

(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.

 

This is wrong in practice – if a religious school is offering its facilities, goods or services to the public (usually to make a profit), there doesn’t seem to be any good reason why it should be able to reject couples simply on the basis of their sexual orientation, gender identity or relationship status.

 

But it is even worse in principle. As a result of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, Australia already has one of the worst same-sex marriage laws in the world.[xv] That legislation allowed existing civil celebrants to register in order to be able to refuse to officiate at ceremonies for LGBTI couples based on nothing more than their personal prejudice.

 

The 2017 marriage amendments also explicitly incorporated religious exceptions into the Marriage Act 1961 (Cth) for the first time, granting religious organisations the ability to refuse to provide wedding-related services (even where those services were offered to the public on a commercial basis).

 

We should be aiming to purge these discriminatory provisions from the Marriage Act, not add to them with even more religious exceptions, this time to further entrench the legal privileges enjoyed by religious schools.

 

The amendment to charities law is likely to relate to implementation of the following recommendation of the Religious Freedom Review:

 

Recommendation 4: The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.

 

This is despite the fact that, during the 2017 marriage amendments, the Australian Charities and Not-for-profits Commission itself advised the Senate that such amendments were unnecessary.

 

Given same-sex marriage has now been legal for more than 18 months, there have also been no real-world examples of when this protection was actually required (if there had been, nobody would have been able to miss the squeals from the Australian Christian Lobby).

 

Even worse, the charities amendment could go further and protect other specific ‘religious beliefs’, including those proposed by then-Treasurer Morrison in his unsuccessful amendment to the Marriage Amendment (Definition and Religious Freedoms) Bill 2019,[xvi] such as:

 

‘the family structure of a man and a woman united in marriage with their children is a fundamental building block of human society, and this family structure has significant advantages for the nurture and raising of children…

‘the gender difference and complementarity of men and women is an inherent and fundamental feature of human society and is reflected in the gender difference and complementarity of a man and a woman united in marriage… [and]

‘the normative state of gender is binary and can, in the overwhelming majority of cases, be identified at birth.’

 

It goes without saying that these offensive provisions should be kept out of the Charities Act 2013, or from any Australian law for that matter.

 

There are a range of other possible amendments that would increase, rather than reduce, discrimination in Australian society.

 

This includes changes to the Fair Work Act 2009 to specifically provide that employment Codes of Conduct cannot restrict the expression of religious views in the workplace no matter how offensive they may be to their colleagues or clients.

 

It could also include allowing parents or guardians to withdraw their children from any school class they morally disagree with, along the lines of this provision from Liberal Senator James Paterson’s failed Marriage Amendment (Definition and Protection of Freedoms) Bill 2017:[xvii]

 

if a person genuinely believes that material taught by the educational institution in a class is not consistent with the relevant marriage belief or relevant belief held by the person, the person may request the principal of the educational institution to… release the student from attendance of that class and any subsequent class.

 

Obviously, with a definition that broad, we could see parents withdrawing their children from a wide range of classes, anything from health and physical education, to science (where evolution may be taught) or even history.

 

**********

 

There are too many other possible negative amendments to even try to mention here. The list is as long as the imagined persecution of religious fundamentalists is wide.

 

It should be acknowledged that some of these amendments are more likely to be introduced, and passed, than others. I would sincerely hope that the Government simply ignores the more extreme calls for new special rights to discriminate.

 

But this is hope rather than expectation because, despite committing to let us see their Religious Discrimination Bill early this year, lesbian, gay, bisexual, transgender and intersex Australians have yet to be formally consulted on its contents.

 

In this vacuum, it is only natural for all groups who stand to lose from the Religious Discrimination Bill – not just LGBTI people, but women, single parents, de factos and divorced people too – to be fearful about what it may contain.

 

The only way for the Morrison Government to assuage these fears is to ensure that it produces a Religious Discrimination Bill, along the lines of the Age Discrimination Act, rather than a Religious Freedom Bill. And then to ensure that its legislation meets community expectations by engaging in genuine consultation with all sections of society, including LGBTI Australians.

 

I guess we’ll find out which option they’ve chosen in the days and weeks ahead.

 

Christian Porter

What kind of Religious Discrimination Bill will Attorney-General Christian Porter deliver?

 

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

 

Footnotes:

[i] Comments by Attorney-General Christian Porter, 13 December 2018, transcript.

[ii] Scott Morrison meets with faith leaders on religious freedom bill but not LGBTQI advocates, Star Observer, 7 August 2019.

[iii] Comments by Attorney-General Christian Porter, 13 December 2018, transcript.

[iv] Religious discrimination bill will safeguard people of faith, says attorney-general, Guardian Australia, 8 July 2019.

[v] Catholics, Scott Morrison to clash on religious freedom, The Australian, 20 August 2019.

[vi] And I promise that’s the end of my tortured metaphor…

[vii] ‘A pox on both their houses’: Senator warns of voter backlash if religious freedoms not protected, Sydney Morning Herald, 6 July 2019.

[viii] See A Quick Guide to Australian LGBTI Anti-Discrimination Laws.

[ix] Religious Freedom Review: Final Report.

[x] Such as the right to be protected against discrimination, as found in Article 26 of the ICCPR:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

[xi] Coalition pressured to include protections for religious institutions in discrimination bill, Guardian Australia, 15 August 2019.

[xii] NSW is the only other jurisdiction that includes protections against LGT vilification, although it does allow religious discussion as a defence. See for example section 38S(2)(c) of the Anti-Discrimination Act 1977:

a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter [emphasis added].

[xiii] See Why we need a full-time LGBTI Commissioner at the Australian Human Rights Commission.

[xiv] See the Department of Prime Minister & Cabinet website.

[xv] See No, we don’t have genuine marriage equality yet.

[xvi] From Parliament House website.

[xvii] From Senator Paterson’s website.