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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Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and former President of Liberty Victoria.

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