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.

 

 

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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 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.

The Right to Learn

The right to education is one of the most fundamental of all human rights.

 

This is both because education has incredible intrinsic value, and because of the significant consequences it can have on an individual’s life outcomes, from employment to health, housing and justice, as well as the ability to fully participate in society.

 

The community also has a collective interest in ensuring that all of its members are able to access the right to learn. Why then does Australia allow ongoing inequality in the enjoyment of this important right?

 

I could be talking here about the gross disparity in educational outcomes for Indigenous Australians compared to their non-Indigenous counterparts (with the latest Closing the Gap report showing that Governments are not on track to meet commitments for school attendance, and literacy and numeracy).

 

I could also be talking about the completely disproportionate levels of funding provided by the Commonwealth to private schools over public schools, with ACARA estimating that the Commonwealth Government allocated $8,053 for every private school student compared to just $2,645 per public school student in 2016-17. (Apparently some students are worth more than others.)

 

Instead, for the purposes of this article, I will focus on the fact that cisgender heterosexual students are better able to exercise their right to learn than lesbian, gay, bisexual and transgender (LGBT) students.

 

This is because cisgender heterosexual students in Australia are free to enjoy the right to education without fear of discrimination simply on the basis of these attributes. Unfortunately, the same is not true for far too many LGBT students around the country.

 

That is because the anti-discrimination laws of several Australian jurisdictions allow religious schools to lawfully discriminate against students on the basis of their sexual orientation and gender identity. This includes:

 

The Commonwealth Sex Discrimination Act 1984

 

The NSW Anti-Discrimination Act 1977 (which in fact allows all private schools and colleges to discriminate on the basis of homosexuality, and transgender, even where the school is not religious)

 

The Victorian Equal Opportunity Act 2010

 

The Western Australian Equality Opportunity Act 1984, and

 

The South Australian Equal Opportunity Act 1984 (although for South Australia the legal situation is not entirely certain).

 

On the other hand, LGBT students are legally protected against discrimination at religious schools in Queensland, Tasmania, the ACT and the Northern Territory [for a complete summary of the situation nationally see: Back to School, Back to Discrimination for LGBT Students and Teachers].

 

However, we should not allow this conversation to be dominated by dry legal analysis, when it is the discrimination these laws permit that we should highlight.

 

For example, these were just some of the responses to my 2017 survey looking at The State of Homophobia, Biphobia and Transphobia in Australia:

 

“I was given detention and threatened with suspension for revealing I was attracted to girls at a Christian high school. I was forced to endure hands-on prayer to rid me of the homosexual demons.”

 

“I was at a Christian private school in north Sydney, we had lessons in religion that focused on why being gay is wrong and how you can change.”

 

“My friend goes to a Catholic school and is bisexual. Her music teacher gives her shit about being bisexual and says that she is sinning and she will be going to hell.”

 

I also know from bitter personal experience just how toxic these environments can be, having (barely) survived five years at a religious boarding school in Queensland in the early 1990s.

 

As these accounts demonstrate, the discrimination LGBT students endure at the hands of religious schools concerns far more than simply admission, or expulsion – instead, it is more insidious, and effects every moment of every school day.

 

The fact this prejudice is legally allowed in several Australian jurisdictions is almost unbelievable – and totally unacceptable.

 

Students should be focused on studying for their exams, not studying how to conceal their sexual orientation or gender identity.

 

Students should be worrying about whether the person they ask to take to the formal says yes, not worrying that they will be suspended because their date is the same gender they are.

 

Students should be doing what most teenagers do – complaining about their school uniform – not fearing punishment for wearing the uniform that matches their gender identity.

 

Students should be learning what they need to stay safe in their health and physical education, and sex-ed, classes, not being made to feel invisible and forced to pick up bits and pieces from far less reliable sources.

 

Students who experience homophobic, biphobic or transphobic bullying should be able to have confidence that their school will be on their side, not wondering whether they will be the ones disciplined instead simply because they are LGBT.

 

Students should be thinking about what they would like to do after they finish their education, not contemplating whether they will even survive it.

 

Above all, students should be given the gift of curiosity about the world around them, not taught that the world hates them because of who they are.

 

These are just some of the ways in which lesbian, gay, bisexual and transgender students are currently denied the same right to learn that their cisgender heterosexual equivalents enjoy.

 

It is a situation that has been created by the actions of politicians – and has been allowed to persist because of their inaction.

 

That includes Prime Minister Scott Morrison’s broken promise, made in October last year, to protect LGBT students in religious schools against discrimination by amending the Sex Discrimination Act before the end of 2018.

 

Instead, we now have an Australian Law Reform Commission inquiry into religious exceptions that won’t report until April 2020, and a re-elected Liberal-National Government that likely won’t do anything until the second half of next year (at the earliest).

 

This is simply not good enough. We must remind them of that fact every single day until they act – because LGBT students will be discriminated against every single day until they do.

 

We must also pressure the state governments of NSW, Victoria, Western Australia and South Australia to fix their own broken laws. There is no possible excuse any of them could proffer that would justify allowing this mistreatment to continue.

 

Because reading is fundamental, as is writing, arithmetic, and all of the other essential skills that are imparted by teachers today. And all students deserve access to them, irrespective of who they are.

 

Education is a human right that must be provided to everyone equally, without discrimination on the basis of sexual orientation or gender identity. That currently isn’t the case in Australia. It’s something we must change for the sake of LGBT students now, and for the generations yet to come.

 

The right to learn

All students have an equal right to education, including LGBT students.

What ever happened to protecting LGBT students against discrimination? An explainer.

In the last 18 months, anti-discrimination law reform has been the subject of considerable public attention.

 

Following the Ruddock Religious Freedom Review, and including multiple Senate inquiries, hopes had been raised that lesbian, gay, bisexual and transgender (LGBT) students might finally be protected against discrimination by religious schools under Commonwealth law.

 

So far, those hopes have been dashed. Despite promising to do so, the Morrison Liberal-National Government failed to pass any changes to the Sex Discrimination Act 1984 (Cth) to repeal or limit the exceptions that allow religious schools to discriminate against LGBT kids prior to the election being called.

 

In this article, I will attempt to explain how we got here (including where things stand now), who is to blame and what will likely happen from here.

 

How did we get here?

 

In November 2017, then-Prime Minister Malcolm Turnbull referred the issue of whether Commonwealth law adequately protects religious freedom to a panel headed by former Liberal Attorney-General Philip Ruddock.

 

This was to appease conservatives within his Government who were seeking to amend Senator Dean Smith’s flawed Marriage Amendment (Definition and Religious Freedoms) Bill 2017 to include even more religious exceptions than it already did.

 

The Ruddock Review investigated a wide range of issues, including religious exceptions to LGBTI anti-discrimination laws, before handing its report to Turnbull in May 2018 – which the Liberal-National Government then sat on.

 

In October 2018, the Sydney Morning Herald published the leaked recommendations of the Review, focusing on proposals to clarify the existing right of religious schools to discriminate against, and expel, LGBT students.

 

This prompted significant public outcry, including from many parents who had no idea that religious schools, funded by enormous amounts of taxpayers’ money, could lawfully mistreat vulnerable kids in such an abhorrent and appalling way.

 

New Prime Minister Scott Morrison responded by saying his Government would amend the Sex Discrimination Act to prohibit discrimination against LGBT students before the end of the year (2018). It is probably also useful to remember he did this in the context of the lead-up to the Wentworth by-election, which the Government feared losing to a backlash from moderate voters (narrator: they did).

 

The Greens introduced their own Bill to the Senate – the Discrimination Free Schools Bill 2018 – that sought to protect both LGBT students and teachers in religious schools. That was then the catalyst for the first Senate inquiry, looking at ‘Legislative exemptions that allow faith-based educational institutions to discriminate against students, teachers and staff’.

 

That Committee reported in late November, recommending that “the Australian Government amend section 37 and remove subsection 38(3) of the Sex Discrimination Act 1984, and amend any other relevant legislative provisions, to prohibit discrimination against students on the grounds of the protected attributes in the Act” [Recommendation 3].

 

This report was immediately followed by Labor introducing their own Bill, the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018. As the name suggests, its sole focus was on removing discrimination against students, in line with what Morrison had promised in October.

 

However, instead of passing it as he had committed, the Senate referred this Bill off to a second inquiry over the summer break – meaning LGBT students would not be protected for the start of the 2019 school year.

 

In the meantime, the Government finally released the Ruddock Religious Freedom Review in full, in December 2018 (after sitting on it for almost seven months).

 

Morrison and Attorney-General Christian Porter simultaneously provided the Government’s response, in which they abandoned the earlier, explicit promise to protect LGBT students at religious schools, instead committing to send the entire issue of religious exceptions in Commonwealth, state and territory anti-discrimination laws to the Australian Law Reform Commission (ALRC) for yet another review.

 

It was therefore unsurprising when, in February 2019, the Government-dominated Senate Committee inquiring into Labor’s Bill recommended that not only should Labor’s Bill not be passed, but that “the bill, circulated amendments and all relevant matters be referred to the Australian Law Reform Commission for full and proper consideration.”

 

Given the Liberal-National Government’s ongoing opposition to legislation addressing this issue, that meant no amendments to the Sex Discrimination Act 1984 were passed in February or March.

 

Instead, on Wednesday 10 April 2019 – less than 24 hours before the election was called – Attorney-General Porter announced he had referred the issue of religious exceptions to the ALRC for an inquiry lasting 12 months, not reporting back until 10 April 2020.

 

Where do things stand now?

 

Despite the flurry of activity on this issue over the past 18 months, and the past six months in particular, the legal situation now is unchanged:

 

Under the Sex Discrimination Act 1984 (Cth), religious schools are legally permitted to discriminate against, and expel, lesbian, gay, bisexual and transgender students on the basis of who they are.

 

They are also free to fire, and refuse to hire, LGBT teachers and other staff, despite the significant amount of taxpayers’ money used to pay their salaries.

 

This is obviously incredibly disappointing, especially given the supposed bipartisan commitments to address this issue made late last year. Which prompts the equally-obvious question:

 

Who is to blame?

 

While responsibility for major #auspol policy failures like this can usually be shared around, the blame for the lack of action in this particular area lies squarely at the feet of the Morrison Liberal-National Government.

 

The have failed to progress anti-discrimination law reform in four key ways:

 

  1. The Morrison Liberal-National Government refused to introduce its own Bill to protect LGBT students

 

Despite Prime Minister Morrison’s October 2018 commitment to introduce and pass amendments to the Sex Discrimination Act to protect LGBT students before the end of the year, his Government never actually introduced its own Bill to make these changes. Which, you’d have to admit, makes it extremely difficult to actually pass anything.

 

Indeed, if the Liberal-National Government was ‘fair dinkum’ about fulfilling its promise, it would have at least tried to move its own legislation on this issue. With a Prime Minister who is quite fond of saying ‘if you have a go, you get a go’, his Government didn’t bother to have a go at changing this law – meaning LGBT students don’t get a go at learning in a discrimination-free environment.

 

  1. The Morrison Liberal-National Government sought to introduce new powers to discriminate

 

As noted above, the Labor Opposition and Greens both introduced their own Bills to protect LGBT students, and LGBT students and teachers, respectively. The Labor Bill in particular was subject to Senate debate in late 2018, before being referred to the second Committee inquiry.

 

During this debate, the Liberal-National Government introduced amendments that would ensure that, even if religious schools lost their specific exception in section 38(3) of the Sex Discrimination Act, they would continue to be able to discriminate under the general religious exception in section 37(1)(d) [Government amendment KQ147].

 

They also sought to expand the reasonableness test for indirect discrimination to include consideration of whether any “condition, requirement or practice is imposed, or proposed to be imposed, in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed” [Government amendments KQ148, 150 and 151]. This would have effectively expanded rather than restricted the range of groups who could be discriminated against because of religious beliefs to include intersex students as well (among others).

 

Finally, the Government wanted to allow religious schools to discriminate against LGBTI students if it was part of teaching activity (broadly defined to capture “any kind of instruction of a student by a person employed or otherwise engaged by an educational institution”) as long as it was done “in good faith in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” [Government amendment KQ149].

 

If any or all of the Morrison Government’s amendments had been passed, it would have meant religious schools could have continued to discriminate against LGBT students – it just would have been done under different sections of the Act.

 

  1. The Morrison Liberal-National Government tried to limit changes to preventing expulsion only

 

Another way in which the Government undermined anti-discrimination law reform was by narrowing its scope to preventing religious schools from expelling or refusing to enrol LGBT students, while continuing to allow them to discriminate against, and mistreat, vulnerable kids in other ways.

 

This approach formed part of Prime Minister Morrison’s early rhetoric following the leaking of the Ruddock Review Recommendations in October 2018, as he focused on expulsion: “I don’t think if someone’s at a school they should be kicked out because they have a different sexuality to what might be believed to be the appropriate thing by a particular religious group” [emphasis added].

 

While subsequent debate seemed to broaden to cover all forms of discrimination against LGBT students, in February 2019 Government Senators once again tried to limit the reforms to preventing expulsion only, with The Australian reporting Government members of the Senate Committee sought a deal with the Opposition on this issue (‘ALP stops bid to protect gay kids’, The Australian, 19 February 2019).

 

Thankfully, the Opposition rejected this narrow approach. This is important because there are many different ways in which religious schools can discriminate against LGBT kids, without necessarily expelling them, and they are all harmful (see, for example, my own story here: The longest five years’ ).

 

Only removing the power to expel, while allowing schools to mistreat students in myriad other ways, would have been completely inadequate and inappropriate.

 

  1. The Morrison Liberal-National Government has done everything in its power to delay reform

 

There is absolutely no reason why the Commonwealth Government, and Parliament, could not have passed reforms to the Sex Discrimination Act, protecting LGBT students, before the end of 2018.

 

How can I say that so confidently? Because the ACT Government did exactly that, passing it owns reforms – based on the best practice Tasmanian Anti-Discrimination Act 1998 – between the leaking of the Ruddock Review Recommendations in October and the end of the year. These reforms, which protect both LGBT students and teachers, will commence by 6 June 2019 at the latest.

 

Instead, at Commonwealth level, we have had Labor and Greens Bills, and two Senate inquiries, but no Government legislation and no change to the law.

 

Even worse, we now have a reference to the ALRC that won’t report on the issue until 10 April 2020, meaning any Bill arising from it will likely not be debated until the second half of next year. Consequently, any reforms to protect LGBT students wouldn’t take effect until the start of 2021 – at the earliest.

 

Christian Porter

Attorney-General Christian Porter

 

It is clear, from these four arguments, that the Morrison Liberal-National Government is responsible for the fact LGBT students are still not protected against discrimination as we start the federal election campaign.

 

What people may not be aware of is that they are also responsible for two major threats to LGBT anti-discrimination laws in the near future.

 

The first is the ALRC inquiry itself. Its terms of reference includes the following:

 

consideration of what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australia law should be made in order to:

  • limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
  • remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.

 

Now, some people might see the first dot point, and specifically the reference to limiting or removing religious exemptions, as encouraging. And it could be – except that this is also what religious fundamentalist organisations, such as the Australian Christian Lobby, also want (for example, the ACL’s own submission to the Ruddock Review stated that ‘State and Commonwealth Anti-Discrimination laws establish an unhelpful and incomplete framework of religious exemptions which inadequately balance the right of religious freedom against the right to non-discrimination’ before recommending ‘that existing exemptions in anti-discrimination law re reframed as ‘general limitations clauses’).

 

The remainder of that clause – ‘while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos’ – is where the danger lies. Namely, religious exceptions may simply be replaced by the introduction of positively-framed rights to discriminate against LGBT people.

 

The second dot point is just as problematic. Despite the fact there is limited, or no, evidence that people expressing discriminatory views of marriage are suffering real-world adverse consequences, the ALRC is supposed to give significant attention to ‘protecting’ them.

 

This includes undermining the best practice LGBTI anti-vilification laws found in the Tasmanian Anti-Discrimination Act 1998 (which are equivalent to section 18C of the Racial Discrimination Act, and the primary reason why the RDA has been raised in this context) [For a comparison of LGBTI anti-discrimination and anti-vilification laws, click here].

 

The second threat comes from another part of the Morrison Liberal-National Government’s response to the Ruddock Religious Freedom Review: its commitment to introduce a Religious Discrimination Bill.

 

Once again, this should be a positive development. Most people interested in human rights, including myself, support the inclusion of religious belief or lack of belief as a protected attribute in anti-discrimination law in jurisdictions where it is not currently protected (specifically, the Commonwealth, New South Wales and South Australia). This will help ensure religious minorities are protected against discrimination in education, employment and service delivery.

 

On the other hand, a Religious Discrimination Bill could become a vehicle to include positively-framed rights for religious individuals and organisations to discriminate against others, becoming a stealth ‘Religious Freedom Bill’, in the same way that some Liberal-National MPs and Senators tried to turn a same-sex marriage bill into anti-LGBTI equality legislation.

 

The truth is we will not know which option, good or bad, the Government is pursuing until we see the text of the Bill itself. Which is why Attorney-General Porter’s announcement that the Religious Discrimination Bill would not be released until after the election is so worrying (‘Religious freedom bill fails to meet election deadline’, The Australian, 10 April 2019).

 

Despite saying in December at the release of the Ruddock Religious Freedom Review that “the Religious Discrimination Bill, which we are well-advanced on the drafting of and which we would have out early next year, so that people can see it”, LGBTI Australians will now be kept in the dark on a key new law that could have a significant impact on our rights (although it is probably safe to assume major religious organisations have been consulted on its drafting).

 

Not only has the Morrison Liberal-National Government stopped laws to protect LGBT students against discrimination from passing during the 45th Parliament, they have already started two processes (the ALRC Inquiry, and the Religious Discrimination Bill) that could see LGBT rights go backwards in the 46th.

 

What about the other parties?

 

The Labor Party has largely been supportive of LGBTI rights throughout this (sometimes convoluted, but consistently frustrating) process.

 

As discussed earlier, they introduced the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018 that does just what it says on the box. They have been very clear they will protect LGBT students in religious schools against discrimination if they are elected next month.

 

However, the ALP has been somewhat less clear in terms of their plans for teachers. While committing to remove the exceptions that allow religious schools to fire, and refuse to hire, LGBT teachers and other staff, they have also made vague comments about introducing amendments to ensure religious schools can continue to impose their ‘ethos and values’. Bill Shorten and the Labor Party need to outline exactly what they intend to do on this issue, before the election.

 

[Update 11 May 2019: While Labor have reiterated their intention to protect LGBT teachers and other staff, they have still not clarified the scope of any amendments to protect the ‘ethos and values’ of the school. More concerningly, they have indicated they will wait for the ALRC to conduct its inquiry into religious exceptions before protecting LGBT students or teachers. This is unacceptable – students deserve to be protected as quickly as possible, and there is a Bill ready and waiting to be reintroduced. It should be one of the first items of business of a new parliament.]

 

The Greens are obviously supportive of removing exceptions that allow discrimination against both LGBT students and teachers. They have also indicated that religious exceptions should be removed in other areas (including health and community services), as well as in the Fair Work Act 2009 (Cth).

 

In terms of the minor parties, the right-wing fringe groups (including Pauline Hanson’s One Nation, Cory Bernardi’s Australian Conservatives and the racist Senator who shall not be named) are exactly as homophobic and transphobic as you would expect, and don’t deserve our attention.

 

However, one minor party earns a special mention – although not for reasons they would appreciate. That is because the Centre Alliance (the renamed Nick Xenophon Team) supported some of the Government’s amendments that, in practice, would have permitted religious schools to discriminate against LGBT students. In fact, the position of the Centre Alliance is the reason that Labor’s Sex Discrimination Amendment (Removing Discrimination Against Students) Bill could not at least pass the Senate in late 2018.

 

What happens next?

 

The outcome of the federal election on Saturday 18 May will determine what happens next in terms of anti-discrimination law reform.

 

If the Morrison Government is returned, it is unclear whether LGBT students will be protected, and if so what that change would look like. Even if they remove the specific religious exceptions in the Sex Discrimination Act, it is highly likely they will simply replace them with new, positively-framed rights for religious organisations to discriminate against LGBT people, including in education.

 

Any reforms under a re-elected Liberal-National Government will also be delayed until at least the second half of 2020 (after the ALRC has completed its inquiry), meaning LGBT students in religious schools will be exposed to discrimination until at least 2021.

 

And, as discussed above, both the ALRC inquiry itself, and the imminent (although still secret) Religious Discrimination Bill, could see LGBTI rights actually go backwards under a 2nd term Morrison Government.

 

If the Labor Party is elected, on the other hand, it is highly likely that LGBT students will be protected against discrimination as a matter of priority. It is also probable that LGBT teachers and other staff will be protected in some form – although it will be up to LGBTI organisations to push them to make sure any such changes are as straight-forward as possible, and not undermined by ‘ethos and values’-style amendments (an increased Greens presence in the Senate would also assist in this respect).

 

Nevertheless, we must remember that the only thing in this area that is guaranteed to happen, every school day of this election campaign – and for months, and possibly years, afterwards – is that too many LGBT students will attend a school where they can be lawfully discriminated against.

 

And the primary reason is that Prime Minister Scott Morrison broke his promise, made just six months ago, to do something about it.

 

**********

 

Disclaimer: As with all posts, this article reflects my own views and not those of any employer, past or present.

 

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

 

Submission to Royal Commission into Aged Care

Royal Commission into Aged Care

GPO Box 1151

Adelaide SA 5001

ACRCenquiries@royalcommission.gov.au

 

Monday 25 February 2019

 

Dear Commissioner

 

Submission to Aged Care Royal Commission

 

Thank you for the opportunity to provide a submission to this important inquiry.

 

In this submission I will focus on one policy issue – the ability of religious aged care services to discriminate against lesbian, gay, bisexual and transgender (LGBT) employees – and its impact on people accessing those services, including LGBT individuals and couples.

 

As you are likely aware, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced anti-discrimination protections for lesbian, gay, bisexual, transgender and intersex (LGBTI) Australians under Commonwealth law for the first time.

 

This Act, like the majority of pre-existing state and territory laws, provided general exceptions to religious organisations allowing them to discriminate both in service delivery, and employment, including against LGBT people.

 

However, in an important step forward for equality, the new section 37(2)(a)[i] of the Sex Discrimination Act 1984 ‘carved out’ Commonwealth-funded aged care services so that religious organisations that receive public money cannot discriminate against LGBT people accessing those services.

 

This was a welcome recognition both of the importance of aged care services, and of the potential vulnerability of people who require these services, especially older LGBT people many of whom have been subject to a lifetime of homophobic, biphobic and transphobic discrimination.

 

Unfortunately, the same protection was not extended to LGBT employees and other staff in these services (see section 37(2)(b)[ii]).

 

This is wrong in principle for two main reasons.

 

First, whether a person is able to perform their duties as an aged care worker is unrelated to, and independent of, their sexual orientation and/or gender identity.

 

People should be hired, not hired or even fired, on the basis of how well they are able to provide care and support to the people accessing aged care services, not who they are attracted to or how they identify.

 

Second, it is completely unacceptable that taxpayers’ money should be spent subsidising such discrimination. The purpose of public funding of aged care services is to ensure older Australians have access to quality services which are able to meet their needs – it is not supposed to pay for religious organisations to impose their anti-LGBT views on the aged care workforce.

 

For both of these reasons, I believe the ‘carve-out’ in the Sex Discrimination Act 1984 which protects LGBT people accessing aged care services should be extended to cover LGBT employees too.

 

The special privilege allowing religious aged care services to discriminate in employment on the basis of sexual orientation and gender identity is wrong in practice as well, and it is here that this discrimination most clearly relates to the Royal Commission’s Terms of Reference.

 

This includes:

 

(a) the quality of aged care services provided to Australians, the extent to which those services meet the needs of the people accessing them, the extent of substandard care being provided, including mistreatment and all forms of abuse, the causes of any systemic failures, and any actions that should be taken in response;

(c) the future challenges and opportunities for delivering accessible, affordable and high quality aged care services in Australia, including:

i. in the context of changing demographics and preferences, in particular people’s desire to remain living at home as they age; and

ii. in remote, rural and regional Australia;

 (d) what the Australian Government, aged care industry, Australian families and the wider community can do to strengthen the system of aged care services to ensure that the services provided are of high quality and safe;

 

The first and most obvious way in which the ability of religious organisations to discriminate against LGBT employees impacts on the quality of aged care services is the reduction of potential talent in their aged care workforce.

 

This is an entirely logical, and foreseeable, outcome; by excluding some highly-qualified applicants,[iii] for reasons that have nothing whatsoever to do with their ability to perform the relevant role(s), the number of qualified applicants from which to choose is inevitably diminished.

 

This impact may be exacerbated in remote, rural and regional Australia, where the number of applicants for a position may be much smaller to begin with – any loss of highly-qualified applicants, simply because of their sexual orientation or gender identity, could have a severe impact on service standards.

 

And this impact will likely exist for as long as the general exception[iv] in the Sex Discrimination Act 1984 allows religious aged care services to discriminate in this way.

 

Because, even if a particular aged care facility doesn’t discriminate at a particular point in time, highly-qualified LGBT employees may nevertheless be discouraged from applying because of the possibility of being legally discriminated against in the future. In remote, rural and regional Australia, where there may be limited employment options, this could even result in qualified employees being lost to the aged care services industry entirely.

 

There is also a compelling argument that the stress of LGBT employees working in religious aged care services that may lawfully discriminate against them, where they may need to be constantly vigilant in self-censoring their words and actions lest they be ‘found out’, undermines the quality of service provided because it serves as a potential distraction from their day-to-day responsibilities.

 

People accessing aged care services have the right to expect the highest possible standard of care. That is not provided when an aged care service refuses to employ highly-qualified people simply because they are lesbian, gay, bisexual or transgender.

 

The second practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services is that it can contribute to an organisational culture of homophobia, biphobia and transphobia.

 

Once an organisation acts in a manner that suggests discriminating against employees on the basis of their sexual orientation or gender identity is acceptable, it is hard not to see this abuse spilling over into the treatment of LGBT people accessing these services.

 

LGBT individuals and couples in aged care facilities may directly witness the homophobic, biphobic and transphobic mistreatment of staff, and feel less safe in their surroundings as a result. Or they could be subject to direct or indirect anti-LGBT discrimination themselves.

 

There is already a significant power imbalance between people accessing these services and the service-providers themselves. As a result, even if the LGBT person accessing the service technically has a right not to be discriminated against under the Sex Discrimination Act 1984, they may feel uncomfortable in making a formal complaint because of a legitimate fear that the organisation will not be responsive to it.

 

LGBT people accessing these services are also denied natural allies because any LGBT employees at the facility may feel unable to advocate on their behalf because they are also afraid of retribution from the organisation itself (in this case, entirely legal).

 

Homophobic, biphobic and transphobic discrimination against LGBT employees inevitably has a detrimental impact on LGBT individuals and couples accessing aged care services.

 

The third and final practical reason why allowing religious aged care services to discriminate against LGBT employees impacts on the quality of aged care services, especially for LGBT people, is that it denies them an opportunity for human connection.

 

Residential aged care facilities, in particular, are the ‘homes’ of the people living in them, usually for the final years or decades of their lives. The provision of services is about much more than simply providing shelter, food and health care.

 

For LGBT individuals and couples, having one or more LGBT employees offers the opportunity to bond with them over potential interests, and to share stories with each other (including, I might add, the ability for younger LGBT employees to learn from the older LGBT residents).

 

However, this opportunity is lost if an LGBT employee is unable to discuss this aspect of their lives, for fear of being discriminated against. For the resident, the possibility of conversation is replaced by silence.

 

Discrimination against LGBT employees in aged care services can exacerbate the social isolation experienced by LGBT individuals and couples accessing those services.

 

In conclusion, there are principled reasons why religious aged care services should not be able to discriminate against LGBT employees. These employees should be judged on their ability to perform the role, not on the basis of their sexual orientation or gender identity. And taxpayers’ money should not be used to subsidise anti-LGBT discrimination.

 

There are also practical reasons why such discrimination should be prohibited, including that it impacts on the quality of aged care services provided, contributes to a culture of homophobia, biphobia and transphobia, and denies LGBT residents an opportunity for human connection.

 

Therefore, to improve the quality of aged care services, including although not only for LGBT residents, the special privilege allowing such discrimination should be repealed.

 

Recommendation: The Royal Commission into Aged Care should call for amendment to section 37(2) of the Sex Discrimination Act 1984 (Cth) to remove the ability of religious aged care services to discriminate against employees on the basis of their sexual orientation and gender identity.

 

Thank you in advance for taking this submission into consideration as part of the Royal Commission. If you would like further information, please do not hesitate to contact me at the details provided below.

 

Sincerely

Alastair Lawrie

 

download

Commonwealth Minister for Aged Care Ken Wyatt.

 

References:

[i] 37(2) provides that “Paragraph (1)(d) does not apply to an act or practice of a body established for religious purposes if:

(a) the act or practice is connected with the provision, by the body, of Commonwealth-funded aged care; and

(b) the act or practice is not connected with the employment of persons to provide that care.”

[ii] See footnote (i), above.

[iii] I am not suggesting that all LGBT applicants are highly-qualified, some will obviously not be (in the same way some cisgender heterosexual applicants will not), but excluding highly-qualified applicants of any background reduces both the number and the depth of qualified applicants to choose from.

[iv] Section 37(1)(d) provides that “Nothing in Division 1 or 2 affects… any other act or practice of a body established for religious purposes, being 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.”