SPENCER ZIFCAK. The Religious Discrimination Bill

The Religious Discrimination Bill, introduced by the Attorney-General Christian Porter, has its flaws. Nevertheless, it walks a more or less acceptable line between arch proponents and critics of the recent campaign for greater religious freedoms. The Government has produced relatively moderate legislation that mirrors Commonwealth anti-discrimination legislation related to race and sex. In that sense it is familiar and justifiable. Whether it is necessary and appropriate is an entirely different question.

Australia does not lack for laws protecting religious belief. Section 116 of the Constitution provides that ‘The Commonwealth shall not make any law for prohibiting the free exercise of any religion’. The implied constitutional right of freedom of political communication will also protect religious speech when it is relevant to public or political affairs.

Every State and Territory has enacted anti-discrimination legislation. All protect against discrimination on the ground of religion. The Fair Work Act 2009 prohibits discrimination on the basis of religion together with other attributes.

Australia has ratified the International Covenant on Civil and Political Rights 1966. It contains a right to freedom of thought, conscience and religion and belief. Pursuant to the Covenant, Australia is obliged to protect that right.

So, why are we having this discussion? It arose from the same sex marriage debate prior to the plebiscite that provided the foundation for the recognition of same sex marriage in Australian law. Alert to the political implications of this development for faith based communities, the Government committed itself to strengthen religious freedom.

The Catholic Archbishop Denis Hart made the connection clear. Noting that millions of Australians opposed a change in the definition of marriage he urged parliamentarians to recognise their concerns by putting in place strong conscience and religious freedom protections.

These protections, he said, ‘must ensure that Australians can continue to express their views on marriage, that faith based schools can continue to teach the traditional understanding of marriage and that religious organisations can operate in a manner that is consistent with those values.’

Two other cases sparked related concern among leaders in the Christian church. One was the anti-discrimination case brought against Catholic Bishop Julian Porteous of Tasmania in the context of the same sex marriage debate. The complainant argued that the Bishop had discriminated against same sex individuals by widely distributing a booklet, ‘Don’t Mess with Marriage’, which argued the case against same sex marriage. The case was eventually withdrawn.

The second case has been the widely publicised one involving the Rugby international, Israel Folau. It is hard to take this matter seriously. Folau’s twitter outburst was nothing more than puerile prejudice. I would not grace it with the name of religious expression. Regrettably and irrationally, many religious organisations and individuals hopped onto the Folau bandwagon.

All this is a remarkably thin foundation on the basis of which to campaign for greater religious freedom particularly given the substantial protections which already exist in law.

Nevertheless, we now have the exposure draft of the Religious Discrimination Bill and it’s not too bad. It is by no means unreasonable to add specific legal protection against discrimination on the ground of religion to the Commonwealth’s four existing anti-discrimination Acts: the Race Discrimination Act, the Sex Discrimination Act, the Disability Discrimination Act and the Age Discrimination Act.

Like these Acts, the Religious Discrimination Bill makes it unlawful to discriminate on the ground of religious belief or activity in a range of areas of public life. These areas include employment, education, accommodation and the provision of goods and services. It is not unlawful to discriminate if a particular exemption or exception applies. Complaints concerning religious discrimination can be made to the Australian Human Rights Commission.

There are problems, however. The Bill contains a Porteous clause and Folau clause. As a general rule legislation should be enacted when it is regarded as being necessary, justifiable and generally applicable. Law derived from individual circumstance is not a good idea. Its application is likely to be arbitrary and unpredictable.

The Porteous case is addressed by the inclusion of a provision that cuts down the scope of Tasmania’s Anti-Discrimination Act. It provides that a statement of religious belief will not contravene s.17(1) of the Tasmanian Anti-Discrimination Act which provides that a person will discriminate if he or she offends, insults, humiliates or intimidates another person on specified grounds including sex, sexual orientation or gender identity. The Bishop is safe, but those belonging to these minorities are not.

The Folau case is dealt with by the inclusion of a provision that constrains an employer from adopting a rule of conduct that will have the effect of preventing an employee from making a statement of religious belief outside his or her work. The only exception to the provision is if an employee’s non-compliance with the rule is likely to cause the employer unjustifiable financial hardship.

However, the Folau law applies only to employers having an annual revenue of $50 million or more. Given this qualification it is likely to be of symbolic value only.

The Religious Discrimination Bill provides that a ‘statement of belief’ does not constitute discrimination for the purposes of any anti-discrimination law. A statement of belief is a statement that may reasonably be regarded is in accordance with a tenet, belief or teaching of a religion.

This provision will have the effect of overriding relevant, related terms of most if not all State based anti-discrimination laws. Its effects could be sweeping. It will likely allow adherents of recognised religions to humiliate, intimidate or defame other groups or individuals at will. That is unless such statements are malicious or likely to harass, vilify or incite hatred against others. Plainly, there is no shortage of religious faiths whose texts and commandments invite discriminatory and dogmatic interpretation

Similarly, the Bill provides that a religious body does not discriminate against a person by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the tenets, beliefs or teachings of its faith. A religious body is defined, inter alia, as educational institution or registered charity.

This throws open the prospect that religious schools will be able to discriminate in the employment of staff and the selection of students. That is likely to pose significant difficulties for actual and prospective employees and students on the grounds of their sex, sexual orientation and gender identity. Pursuant to this provision, for example, there does not appear to be anything to prevent a religious school of conservative religious orientation from requiring that a student leave the school once that student has come out as gay or transgender. The psychological damage to such a person would be huge.

This objectionable provision should be abandoned in favour of the non-discriminatory approach to such matters provided for in State human rights and equal opportunity legislation right across the nation.

Of course, the proposed religious freedom legislation could have been much worse had it extended beyond its non-discriminatory foundation to allow religious organisations and individuals to take pro-active legal action to advance or defend a wide diversity of asserted rights to religious liberty. The Government wisely took a step back from that particular precipice.

Spencer Zifcak is a former President of Liberty Victoria.

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7 Responses to SPENCER ZIFCAK. The Religious Discrimination Bill

  1. Charles Lowe says:

    I quote:

    “The Religious Discrimination Bill provides that a ‘statement of belief’ does not constitute discrimination for the purposes of any anti-discrimination law. A statement of belief is a statement that may reasonably be regarded is in accordance with a tenet, belief or teaching of a religion.

    This provision will have the effect of overriding relevant, related terms of most if not all State based anti-discrimination laws. Its effects could be sweeping. It will likely allow adherents of recognised religions to humiliate, intimidate or defame other groups or individuals at will. That is unless such statements are malicious or likely to harass, vilify or incite hatred against others. Plainly, there is no shortage of religious faiths whose texts and commandments invite discriminatory and dogmatic interpretation.”

    I can hardly wait for the High Court to decide what weight ought be given to “humiliate, intimidate or defame” as opposed to whether statements are “malicious or or are likely to harass, vilify or incite hatred”.

    How long must I keep rubbing my jurisprudentially motivated hands?

  2. Mark Fyfe says:

    Yes, this should be the main issue from this event. Let’s start the process of exploring this aspect of the relationship between employer (lots of power) and employee (not so much).

  3. Tony King says:

    “It is by no means unreasonable to add specific legal protection against discrimination on the ground of religion to the Commonwealth’s four existing anti-discrimination Acts”.

    Except that religious belief is a choice whereas the attributes covered by existing law (Race, Sex, Disability and Age) are not.

    Why should an individual’s choices when it comes to religion warrant the same protections as characteristics of the individual over which they have no control.

  4. Rosemary O'Grady says:

    … and we still intone The Lord’s Prayer at the start of each Parliamentary day. Que?

  5. Ken Oliver says:

    “Folau’s twitter outburst was nothing more than puerile prejudice. I would not grace it with the name of religious expression.”

    Gee, some of us think pretty well all religious expression is puerile prejudice. It really is noticeable how everyone wants protection of their own beliefs but not of speech that offends those beliefs. Like many others I found Folau’s tweet offensive – and they certainly reinforced my own prejudices as to the intellectual calibre of rugby league players – but I was horrified to see his employer sack him for them.

    Employers simply have too much power – employment law should be regulating employment contracts much more tightly – but of course that’s another issue.

  6. Bruce Wearne says:

    Thankyou Spencer. It is still the case, as I tried to point out in a late 2017 contribution https://johnmenadue.com/bruce-wearne-a-suggestion-to-the-ruddock-committee/ , that the young woman and her fiancé who wish to be married as wife-and-husband in a CIVIL ceremony have, since December 2017, confronted a regulated wedding ceremony in which they are required to passively submit to a Parliamentarily-endorsed lecture that, contrary to what they BELIEVE about marriage, and in particular if they believe marriage to be exclusively a husband-wife matter, they will be respected by the law of the land as merely “two persons.” Why should their rights to form a civil wedding ceremony according to THEIR BELIEFS be circumvented by a one-size fits all “monitum”? The question has been put to the members of the Religious Freedom Review panel with the only answer being (from the convenor of that panel) saying that my observation to him was “very thoughtful”. In fact it is not just an interesting possibility; it is an issue of freedom of belief which the RFR panel’s report completely overlooked.

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