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.

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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.

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’?

 

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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?

 

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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.

 

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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.

 

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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.

 

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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?

 

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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.