Updated: Feb 9, 2021
Introduction
Following the 2017 Same-Sex Marriage Plebiscite, protecting religious freedoms has been high on the Coalition’s legislative agenda. Last year, the government introduced a package of legislation, dubbed the Religious Discrimination Bill, to address perceived discrimination against religious groups and individuals in Australia.
Does Australia need a Religious Discrimination Act?
Religious freedom is one of the few personal freedoms protected by the Constitution. While it lacks the strength of the United States’ First Amendment, Section 116 prevents the Commonwealth from establishing a national religion, requiring religious observance or prohibiting someone from openly practicing their belief.
In response to concerns that religious perspectives in the debate were stifled by state and territory anti-discrimination laws, the Turnbull Government established the Religious Freedom Review. Chaired by the Hon Phillip Ruddock, a former Howard minister, the review was asked to determine whether religious freedom could be better protected in Australia. Following public consultation, the Ruddock Review found that Australian federal law should explicitly protect religious freedom.
All states and territories in Australia have legislation which prohibits discrimination on the basis of religion except South Australia and New South Wales. In Victoria, freedom of religion is included in the Charter of Human Rights and Responsibilities. However, there is no comprehensive federal law protecting religious freedom, which may open residents of SA and NSW to religious discrimination.
What does the Religious Discrimination Bill do?
Attorney General Christian Porter has claimed that the Bill is consistent with other anti-discrimination laws in Australia, which provide protection from discrimination on the basis of age, gender, race and/or disability. Broadly, the Bill seeks to protect individuals from discrimination on the basis of religion in the following areas:
Work
School
Access to goods, services and facilities
Accommodation
Land
Sport
Clubs
The Bill also protects people who don’t hold any religious belief. This means that you can’t be fired, denied housing or membership of a sports team because you hold a particular religious belief, or because you don’t.
The government insists that the Bill is a ‘shield’ and not a ‘sword’ - it protects people from religious discrimination but does not give them the right to use their faith to discriminate against others. However, the Bill has been widely condemned by State and Territory Law Commissions and progressive advocacy groups for prioritising the rights and beliefs of religious individuals over others’ rights and political beliefs.
According to President of the Law Council of Australia Arthur Moses, the Bill “is a deeply flawed piece of legislation” which weakens the rights of all Australian citizens by legalising racial discrimination where it is a ‘statement of religious belief.’ As a result of a narrow interpretation of discrimination, the Bill could open floodgates of hate speech.
In response to the Israel Folau case, the Bill prevents companies with a revenue of over $50 million from restricting their employees’ from vilifying others outside work where it is a religious belief. The Victorian Equal Opportunity and Human Rights Commission argues that this gives employees license to make highly offensive remarks outside of work, and overrides anti-discrimination clauses in workplace contracts and codes of conduct. For example, a supervisor could post that ‘homosexuality is a sin’ on social media, their queer employee would not be able to seek a remedy through company human resources or the courts.
What has changed in the Second Draft of the Bill?
In response to widespread public criticism, the second draft attempts to alleviate concerns that healthcare providers can refuse service or treatment to certain individuals on the basis of religion. The first draft allowed healthcare professionals to “conscientiously object” to providing a service - such as gender affirming surgery or prescribing the abortion pill. In the new draft, healthcare workers may refuse to provide a particular service, but only on a blanket basis. For example, a general practitioner may refuse to prescribe the contraceptive pill entirely, but they cannot refuse to prescribe it to unmarried women based on the belief that premarital sex is a sin.
The second draft of the Bill gives religious institutions - such as religious hospitals, aged care facilities, non-profits and conference centres - the right to discriminate against existing and prospective staff to protect the “religious ethos” of the organisation. The organisation does not have to exist for a religious purpose, it only needs to be founded on the teachings of a particular faith. This means that a Christian hospital can fire a Muslim doctor, and not be subject to an anti-discrimination suit.
What's next?
Following public consultation and negotiations between the Coalition and the Labor Party, the Bill will be finalised and presented to a Parliament in the first parliamentary sitting fortnight, beginning February 4.
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