By Emily Wittig and Geoff Baldwin in Mondaq
In 2019, the Attorney-General, Christian Porter, released a draft Religious Discrimination Bill aimed at eliminating discrimination against people on the grounds of their religious belief or activity within their public life.
The religious reform package includes the following three bills; Religious Discrimination Bill 2019, Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.
Following the release of the draft bill, Mr Porter reiterated that the draft bill was aimed to be a shield against discrimination, rather than a sword, adding that: “The laws will protect people from being discriminated against but will not give them a licence to discriminate against other people, or engage in harassing or vilifying speech”.
Triggering a range of responses on Twitter, the proposed changes to the law received a mixed reaction from the Australian public, and it’s evident that not everyone will be satisfied with the final version of the legislation.
Repercussions of religious freedom reforms for the workplace
With much of the legal language centred around employment, the initial draft of the religious discrimination bill sparked extensive discussion on the impact that it will have in the workplace.
For instance, businesses with a revenue of at least $50 million a year will need to provide proof that any restrictions imposed on employees based on their religious expression are necessary to prevent financial hardship to the business. This does not apply to government employees.
It would also mean that in a dispute such as the recent Israel Folau case, Rugby Australia would need to prove that their social media policy was necessary to protect their brand, and justify their reasons for sacking Mr Folau, who was in breach of the policy.
Religious schools and healthcare professionals can act in accordance with religious beliefs
Under the draft bill, religious schools or other faith bodies will not be discriminating if they act in accordance with their beliefs or doctrines. Religious schools will also have the discretion to employ staff of a particular faith.
Also, healthcare providers will be able to conscientiously object to providing services such as abortion if it breaches their religious beliefs. The draft bill currently does not count hospitals or aged care homes as a “religious body”, even if they are run by a religious charity.
Public submissions on draft Religious Discrimination Bill
The public was invited to add comment about the proposed legislative reforms. The Attorney-General’s Department received over 6000 submissions, including campaign submissions, for the first draft bill released in August 2019.
Many submissions raised concern that the bill was drafted in a way that would allow freedom of religious beliefs and activities to trump other forms of discrimination, including sex and disability.
Federal government drafts second version of Religious Discrimination Bill
In response to public concern, the government has subsequently amended the first draft Religious Discrimination Bill and released a second exposure draft.
The second version and its associated amendments to other bills are facing heavy criticism from a range of diverse groups, such as the Chamber of Commerce and Industry, the Australian Medical Association, and sports groups including the NRL, AFL, FFA and Rugby Australia. The bill even prompted unions and employers’ associations to join forces in their opposition.
Amended bill allows discrimination through expression of religious beliefs
At the core of the debate is clause 42 of the Religious Discrimination Bill, which arose from the Israel Folau case, although the scene had been set by the gay marriage debate. This clause protects statements of religious belief – such as saying gays will go to hell – which might otherwise fall foul of federal, state and territory anti-discrimination laws.
An unusual aspect of clause 42 is that it enables provocation rather than providing a defence. It allows a person to state their offensive beliefs that are based on their religion about another person’s gender, age, race, disability or sexual orientation.
The protections given by clause 42 are only overridden if a statement of religious belief is malicious, likely to “harass, threaten, seriously intimidate or vilify”, or could reasonably lead to a “serious offence”.
The government has invited further submission on the second draft of the Religious Discrimination Bill, which will be taken into account before developing the legislative reforms.
Second draft of Religious Discrimination Bill does not define religion
One significant problem with any new legislation that will cause social change is that no one knows exactly how far it will extend until it’s tested in the courts.
There are several legal problems in this bill, with further clarification needed on some items. For instance, what constitutes an honestly held religious belief? Does it include Satanists? Pagans? Witches? Also, atheism is said to be the absence of religion, but is the belief that there is no supernatural supreme being, in itself a religion?
One particular matter that needs consideration is that the bill contains no definition of “religion”. While other pieces of legislation addressing this subject do not define “religion” either, the drafting of clause 42 will place this into sharper focus.