The Senate Legal and Constitutional Affairs Committee has been conducting an inquiry into the Religious Discrimination Bill 2021 over summer.
As part of that inquiry, it held two days of public hearings, on Thursday 20 and Friday 21 January, with a range of witnesses from religious organisations, civil society, business, legal groups, the Australian Human Rights Commission and Attorney-General’s Department.
Here are five things we learned from those hearings, ahead of the Committee’s final report, which is due to be tabled this afternoon (Friday 4 February), prior to debate on the Bill resuming in the House of Representatives next Tuesday (8 February).
- Citipointe’s conduct is not an outlier – in fact, it’s exactly the point
By now, most people will be familiar with the situation at Citipointe Christian College in Brisbane, which this time last week, issued a new enrolment contract seeking to discriminate against LGBT students generally, and trans and gender diverse students in particular.
What is also important to note is the way in which they sought to justify this discrimination. Clause 26 of their contract in particular tries to dress it up as discrimination on the basis of religious belief about gender identity, rather than on the basis of gender identity itself:
‘The Parents acknowledge and accept that, should I/we not share the College’s commitment to fostering these fundamental doctrinal precepts, this will constitute a serious departure from the religious precepts upon which Citipointe Christian College is based and will afford Citipointe Christian College the right to exclude a student from the College who no longer adheres to the College’s doctrinal precepts including those as to biological sex, which constitute an important tenet of the College’s Christian religion (emphasis added).’
Now, it is highly likely that Citipointe’s actions would be unlawful under the Queensland Anti-Discrimination Act 1991, not just because that legislation does not allow religious schools to discriminate against students on the basis of gender identity, at all, but also because neither does it allow them to discriminate against students on the basis of religious belief beyond the point of initial enrolment.
Therefore, even if the school was successful in arguing this was indeed discrimination on the ground of religious belief about gender identity, it still couldn’t lawfully discriminate against existing trans and gender diverse kids.
Unfortunately, the same safeguard does not exist in the Religious Discrimination Bill, which allows religious schools to discriminate against students on the basis of religious belief not just at the point of enrolment, but throughout their education.
And this right will exist, even if Liberal moderates are successful in amending the Sex Discrimination Act 1984 (Cth) to remove specific exceptions allowing religious schools to discriminate under that law.
Which means, if the Religious Discrimination Bill is passed in its current form, religious schools will continue to discriminate against LGBT students, ‘under the guise of religious views’, rather than sexual orientation and gender identity.
But the outcome will still be the same: LGBT kids mistreated because of who they are.
Above all, the attempted actions by Citipointe on this issue are not an outlier – in fact, multiple religious organisations at the Senate hearings told us this is what they would do.
For example, there was this exchange involving Mr Mark Spencer, Director of Public Policy, Christian Schools Australia:
Senator Andrew Bragg (Liberal): Finally – I’m just conscious of time – on the issue of children in schools, I understand that there was some discussion earlier about the different clauses that may or may not be considered by this parliament. My question is really more on the principle here, which is: do you want to have a right in the law to expel gay kids?
Mr Spencer: Again, you’re making a sweeping statement there that needs a bit more nuance. For a start, you talk about gay kids. Are you talking about same-sex attracted kids who might be committed to living a biblical authentic life? Are you talking about young people who may be, by their behaviour, not meeting the conduct standards of the school? There are a whole range of difference scenarios in there that you need to be unpacking and considering. The short answer is: no, no child has been, and no child do we want to sack simply because they might be same-sex attracted.
Senator Bragg: So your answer is no?
Mr Spencer: The answer is: no child do we want to expel simply because they’re same-sex attracted (emphasis added).
Translation: Christian Schools Australia reserve the right to discriminate against, and even expel, any gay student who is not ‘committed to living a biblical authentic life’. Which means affirming statements like ‘homosexuality is intrinsically disordered’, and pledging to be celibate for life.
In other words (or my words in fact): If a gay kid hates themself enough, they can stay. But if they do not believe who they are is inherently wrong, they can be lawfully mistreated.
Or this exchange with Right Reverend Dr Micheal Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney:
Senator Bragg: I guess the question is: should you be allowed to discriminate against someone based on their sexual preference if they are teaching in accordance with the ethos of the school?
Bishop Stead: No – sorry, I may have misunderstood your question. None of the religious bodies are arguing for the right to discriminate on the basis of sexuality or gender. What we’re arguing for is the right to be able to discriminate on the basis of religious belief. If it happens that somebody’s religious belief also reflects their sexuality or their gender in a way which is inconsistent with the belief of the organisation-
Bishop Stead: Yes. The religious institutions are not seeking the right to discriminate on the basis of sexuality, gender or any of the other protected attributes-
Senator Deb O’Neill (ALP): Race, disability, age-
Bishop Stead: Thank you. They’re looking for the right to, in the wrong language, ‘discriminate on the basis of religion’. We would say ‘to preference on the basis of religion’ – to act in accordance with their religious belief. It’s only at the point at which somebody’s religious belief has changed to reflect their sexuality or gender that makes it inconsistent with the school that we’re into this area of intersectionality (emphasis added).
Again, they might say it’s discrimination on the basis of religious belief (or ‘preferencing’, to use their term), but it’s clear that in practice LGBT students and teachers will be the victims.
Or this exchange with Mrs Moira Deeming, Researcher, Church and Nation Committee, Presbyterian Church of Victoria:
Mrs Deeming: There are gay Christians and teachers – I am a teacher – who are Christians first and the way that they deal with whatever their sexuality feels like is expressed in a Christian manner. It’s about religious freedom and it’s about religious association. It’s not about finding out if someone is gay and cutting them out. It’s about working out: are you like minded with us? If you are like minded, join with us. Then there shouldn’t be an issue.
Senator Bragg: That wasn’t my question, but I know I am out of time. On notice, can you come back with exactly what your position is because, frankly, it’s a bit murky.
Mrs Deeming: Would you mind restating your question clearly just one more time?
Senator Bragg: The question is: do you want to be able to discriminate based on sexual orientation or preference in the hiring of your staff?
Mrs Deeming: That’s a corollary to preferencing based on religious belief. We’re not targeting anybody- (emphasis added)
All three witnesses appear to be saying: we reserve the right to discriminate against LGBT people, we’ll just call it discrimination on the basis of religious belief.
Which is exactly what Citipointe Christian College was trying to do with its contract. Fortunately, that was unlawful because of the much stronger anti-discrimination laws in Queensland.
But, discrimination protections for students and teachers under the Religious Discrimination Bill are much, much weaker, because of the excessive and extreme exceptions provided to religious organisations under this legislation, allowing them to lawfully discriminate.
As a result, there will be plenty more Citipointes around the country in future. And that’s not ‘murky’, it’s perfectly clear.
2. Workers from minority faiths are left unprotected by the Bill
The excessive and extreme religious exceptions contained in the Religious Discrimination Bill 2021 don’t just affect LGBT people.
In fact, one of the groups who stand to lose the most are workers from minority faiths. This is because large, usually-Christian, publicly-funded service delivery organisations – including hospitals, aged care facilities, accommodation providers and disability service providers – will be able to lawfully discriminate on the basis of religious belief in employment.
That means hiring (and firing), and providing (or denying) training, promotion, and other benefits, on the basis of faith rather than ability. Workers who are Muslim, Jewish, Hindu, Buddhist, agnostic and atheist can be treated less favourably than Christians, just because of who they are.
But don’t take my word for it. Here’s Mr Surinder Jain, National Vice President of the Hindu Council of Australia, explaining the Bill’s impact on his community:
‘We have a lot of Hindus who work in aged-care services and disability services, predominantly being run by religious organisations. We have doctors working in private hospitals. We have IT people. Their jobs would be questionable. There is another category of people who are new migrants, who come here and who are desperately looking for a job and they find a job in a religious organisation. There is unsaid pressure on them that they should adapt to the religion of the organisation that they are in. This way the religious freedom [Bill] would actually be taking away their freedom of ideology and religion in declaring their faith and practising their faith and in not being pressured into adopting another faith.’
In short, the Religious Discrimination Bill privileges larger faiths at the expense of smaller ones, and especially employees of the latter.
3. A ‘mask off’ moment revealed what the statement of belief provision is really about
Through much of the hearings, and especially during the appearance by the Attorney-General’s Department on the Friday afternoon, defenders of the Bill attempted to downplay the impact of the unprecedented statement of belief override of all other Commonwealth, state and territory anti-discrimination laws that protects religiously-motivated comments that offend, humiliate, insult and ridicule others.
They tried to make it seem like it was all very reasonable, rather than an extraordinary legal privilege to allow people to make demeaning and derogatory comments about women, LGBT people, people with disability and people of minority faiths in all areas of public life.
Well, not all of them – one witness on the Thursday afternoon let the ‘reasonable’ mask slip, confirming the statement of belief provision will provide a platform for transphobia: Mrs Moira Deeming, Researcher, Church and Nation Committee of the Presbyterian Church of Victoria.
I’ll reproduce the relevant part of the transcript below, but for context, remember that Greens Senator Janet Rice’s late wife was a trans woman:
Senator Janet Rice (Greens): We’re talking about, particularly, clauses 11 and 12 of this bill and, particularly, the statements of belief. The Australian Human Rights Commission say that statements of belief that will be legal under this legislation, which will override state and territory legislation, are currently considered discrimination, and they will no longer be considered discrimination.
Mrs Deeming: Multipartisan support – let’s get a controversial statement. ‘Trans women are men’. Would you consider that, in and of itself, a discriminatory statement that should never be uttered?
Senator Rice: If that were being stated in a workplace to a trans woman, absolutely.
Senator Rice: Do you believe that’s not discrimination?
Mrs Deeming: I just think it’s a statement of belief, and I don’t think it’s necessarily a religious belief.
Senator Rice: And, if it’s offensive to that trans woman, you that it’s acceptable?
Mrs Deeming: I think-
Senator Rice: It’s deeply offensive and potentially causing that trans woman to have severe mental health illness… to not be accepted in their gender identity.
Chair: Senator Rice, I’m just going to ask you to pause here.
Senator Louise Pratt (ALP): But, in the same workplace, someone won’t have the right to call the person who said that a bigot.
Chair: Senator Pratt, I’m just going to ask you to pause as well. Senator Rice has put a question to Mrs Deeming. Mrs Deeming, please answer the question. I don’t want any witness being interrupted, please.
Mrs Deeming: I pose that question because it’s obviously the most controversial one at the moment. It’s not specifically a religious view that biological sex cannot be altered. It’s not. There are many, many people – lesbians, in fact, and homosexual men and people from across the political spectrum, people in every single party here – that would agree with the statement that trans women are, by definition, male. They wouldn’t be making it on the basis of hate. What I’m interested her is finding out whether you’re going to try and take statements like that and class them as inherently harmful, where no offence was intended. It’s just a difference of belief. It’s a belief we don’t subscribe to.
Senator Rice: A difference of belief?… In that sort of instance, in a workplace, if that statement has been given to a young person who is attempting to affirm their gender, it leads to severe mental unwellness and severe impact on them – not being able to affirm their gender. It leads to suicidal ideation. It leads to potential suicide. That is the reality for trans and gender diverse people. So I put it to you that that is, in and of itself, a discriminatory and hateful statement if it is being made to those people.
Mrs Deeming: And I put it to you that it is psychologically abusive to coerce students and other people to say things that they do not believe, especially about the nature of biological-
There’s a lot to take in there obviously, but some things stand out:
- Deeming pro-actively chose to raise the statement ‘trans women are men’ – during an exchange with a Senator whose late wife was a trans woman
- She argued that it’s ‘just a statement of belief’, and therefore should be legally protected
- She did not agree with Rice’s comments about the harm caused by such statements to trans and gender diverse people
- Instead, Deeming claimed it is ‘psychologically abusive’ to require students and other people to effectively treat trans and gender diverse people with respect.
In this exchange, Deeming confirmed that the statement of belief provision is not about providing protection for people who simply state ‘marriage is between a man and a woman’ – it is instead really about allowing people to make deeply transphobic comments to others, even to fellow employees in the workplace who are simply trying to do their job.
4. ‘The limit does not exist’ to the religious freedom agenda
There was another development over the course of the hearings which reveals a helluva lot about the ever-growing demands of the ‘religious freedom’ movement – and how it will continue to strip away the rights of others, with little care for the consequences it creates.
This relates to proposals to redraft clause 12 of the Bill – which is the ‘statement of belief’ provision – ostensibly to ensure it is constitutional. These changes were put forward by Professor Nicholas Aroney, who had previously served as a member of the Ruddock Religious Freedom Review (which helped to create the mess we are now in).
Anyway, from Mr Aroney’s submission to the Committee:
‘To maintain this policy objective while addressing any doubts about the effectiveness of clause 12 under section 109 of the Constitution it would be sufficient to amend the clause so that it reads:
(1) A statement of belief, in and of itself, does not constitute discrimination for the purposes of this Act.
(2) Notwithstanding any of the following State of Territory laws, it is not unlawful to make a statement of belief, in and of itself:’
The redrafted amendment then lists all four of the Commonwealth anti-discrimination Acts (Racial, Sex, Disability and Age), and each of the primary state and territory anti-discrimination laws (such as the NSW Anti-Discrimination Act 1977).
Now, I am not a constitutional lawyer, so I can’t tell you whether it has made the provision more, or less, constitutional.
However, I am an expert on the Religious Discrimination Bill and I can tell you that with this drafting Mr Aroney has made sure the ‘statement of belief’ clause would explicitly override section 18C of the Racial Discrimination Act 1975 (Cth).
As well as all state and territory anti-vilification provisions found in their primary Acts (like the prohibitions on racial, homosexual, transgender and HIV/AIDS vilification in the NSW Anti-Discrimination Act 1977).
This is because his version of clause 12 overrides all parts of these laws (by using the general phrase ‘it is not unlawful’), whereas even the current version of the Religious Discrimination Bill applies to discrimination only (it uses the phrase ‘does not constitute discrimination’ instead).
I can’t speak for Mr Aroney, so I don’t know whether this drafting is deliberate – and he meant to ensure religiously-motivated comments that breach laws like s18C should be protected – or whether it is simply careless.
But even if it was the latter, I think it is symptomatic of the overall ‘religious freedom’ agenda – and that is it is only ever concerned with securing more, and more, and more, rights for religious fundamentalists, like the right to be a bigot towards women, LGBT people, people with disability and people of minority faiths.
And rarely, if ever, do religious freedom advocates bother to step back to consider what is being stripped away from other groups in society. Such as, in this instance, racial minorities.
My view is reinforced by the fact, on Thursday 20 January, multiple witnesses, from a variety of different religious organisations, were asked whether they supported Mr Aroney’s changes. Those that offered their support for his drafting include:
- Mr John Steenhof, Principal Lawyer, Human Rights Law Alliance
- Mr Mark Sneddon, Executive Director, Institute for Civil Society
- Professor Patrick Parkinson, Director, Freedom for Faith
- Right Reverend Dr Michael Stead, Bishop of South Sydney, Anglican Church Diocese of Sydney
- Reverend Christopher Duke, Convener, Church and Nation Committee, Presbyterian Church of Victoria
- Pastor Michael Worker, General Secretary and Director, Public Affairs and Religious Liberty, Seventh-day Adventist Church in Australia, and
- Pastor Mark Llewellyn Edwards, Australian Christian Churches.
Again, I have no idea if they each consciously support overriding s18C of the Racial Discrimination Act 1975 (Cth), and other state and territory anti-vilification laws. But they absolutely supported amendments that have this practical effect. And at the very least it seems nobody even stopped to think about who was going to lose out as a result.
That is the insatiable religious freedom agenda in action. And you had best believe that, even if the Religious Discrimination Bill is passed, it will not stop eating away at the rights of others to live their lives free from discrimination.
5. Government Senators still haven’t grasped the full dangers of the Religious Discrimination Bill
It is fair to describe the Religious Discrimination Bills as complex, particularly because it contains a number of unique provisions that do things no other Australian anti-discrimination law has ever done before (like clauses 11 and 12, which specifically override, and undermine, anti-discrimination protections in other jurisdictions).
Nevertheless, it was disheartening when, on the final afternoon of two Senate hearings – which followed another three days of hearings into the Bill by the Joint Committee on Human Rights – the Chair of the Committee (Senator Sarah Henderson), was involved in the following exchanges, demonstrating she still hadn’t fully understood one of the Bill’s main problems:
Chair: Do you have to believe that it’s part of the doctrines and tenets of that religion? There has got to be a factual basis for that. You can’t just subjectively believe that.
Mr Walter [from the Attorney-General’s Department]: It’s a test of whether the individual believes it or not…
Chair: Does it have to be genuinely held in relation to you’ve got to factually be able to demonstrate that what you hold as your genuine belief reflect the doctrines and tenets of that religion? Your so-called relationship with God can’t be separated from, or not connected with, the doctrines and tenets of that religion. In other words, you can’t just make something up.
Senator Rice: You can. If you genuinely believe that your religion says so, you can.
Chair: That’s what I’m seeking to clarify. There’s been a genuine concern that many have expressed during these two days of hearings.
Mr Walter: Yes. What it doesn’t do is it doesn’t apply an objective text of saying, for example, ‘I believe X’…
Chair: Just to give you an example, could someone who is pro-euthanasia and has made some comments in relation to that issue genuinely consider that such a position is in accordance with the doctrines and tenets of Catholicism, for instance? The concern is that when you start to rely on the individual’s-
Senator Rice: It’s how it’s drafted.
Chair: genuine belief, which might not be connected in any way with the doctrine or tenet of that particular religion, isn’t there an issue with an objective test not applying?
Mr Walter: In that particular example, in theory, yes. However, that person needs to establish that they genuinely believe that. You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways-
Chair: Surely that doesn’t make sense, because that’s not consistent with the Catholic doctrine. How can they genuinely believe that that’s part of a tenet of that faith when it clearly, on its face, does not accord with the doctrines or tenets of Catholicism? How could that-
Senator O’Neill (ALP): That’s before we get to the religions that are new and don’t have such a body of evidence.
Senator Rice: Exactly.
Chair: That’s what makes this very complicated. Is there not a difficulty because there’s not an objective text; it’s a subjective test?
At the very end, Senator Henderson was finally at least starting to ask the right question – because yes, there is a massive difficulty in that the definition of statement of belief is entirely subjective (with clause 5 of the Bill stating that only the person making the statement needs to ‘genuinely consider’ it to be in accordance with the religion).
That’s why this provision will protect an almost unlimited array of fringe beliefs – including white supremacist speech, as long as the person making it ‘genuinely considers’ it relates to their particularly-warped views of Christianity. It would not matter if every single church in Australia disagreed with them.
And the Attorney-General’s Department’s response – You’re going to be looking for a pattern of evidence that they’ve held that belief for a long time or they’ve expressed it in many ways – only makes things worse.
Apparently, if you can show you’ve made white supremacist comments, dressed up as religious belief, many times before, then it makes it more likely your comments will be protected from discrimination claims under Commonwealth, state and territory law.
The statement of belief provision is a mess. The whole Religious Discrimination Bill is a mess. And it must be rejected.
The above are just five of the issues which arose during the two days of hearings by the Senate Legal and Constitutional Affairs Committee into the Religious Discrimination Bill. There were many more I could have chosen to highlight here.
Despite this, based on media reports this morning, it seems likely that both Liberal and Labor Senators will recommend that the legislation be passed.
Which gives us just a matter of days to help stop this extreme, radical and unprecedented assault on the human rights of everyday Australians.
The best thing you can do at this point is to:
- Use this webform to tell Labor MPs and Senators to Kill the Bill and
- Use this webform to tell moderate Liberal MPs to do the same
And if you need any further convincing of why this legislation should be defeated, try this: Why the Religious Discrimination Bill must be rejected (in 1,000 words or less).
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