Examining the second draft of religion bill
The second draft of the government’s religious discrimination bill, released last week, was intended to appease critics of the contentious legislation. But many experts still fear that if it passes parliament, Australians will have greater liberty to discriminate – a curious upshot for anti-discrimination legislation.
“This is an over-the-top reaction, making a mountain out of what, in my experience in Australia, has always been a molehill,” says Geoffrey Robertson, QC. “It should be unlawful to discriminate on the grounds of religion, as well as on race, sex, sexual orientation, age and so forth. But such prohibitions are best contained in a human rights act, not in this badly drafted 57-page law that applies only to religion, giving it an illegitimate preference.”
“This is George Brandis’s ‘right to be a bigot’ on steroids,” says Associate Professor Luke Beck of Monash University, a leading authority on freedom of religion. “It is disturbing and dangerous.”
Protections against religious discrimination should be uncontroversial. In submissions on the bill’s first draft, groups as diverse as the Institute of Public Affairs, Australian Human Rights Commission, Australian Christian Lobby and Executive Council of Australian Jewry (ECAJ) welcomed legislative protections in principle. But the government has taken a standard anti-discrimination law template, already applied in the context of race, sex, disability and age, and mutated it with several unprecedented additions. If the bill is enacted, religious rights will be elevated above other rights.
Most controversial within this bill are protections for religiously motivated statements and actions, even when these would otherwise amount to unlawful discrimination. This will empower a range of organisations – including charities, hospitals and aged-care bodies – to hire and fire based on religion. They also enable any individual to make statements of belief, free from the spectre of anti-discrimination laws. And they permit doctors, nurses, midwives, pharmacists and psychologists to decline to provide healthcare on religious grounds.
More specifically, if passed, the legislation would mean that a religious doctor could tell a transgender patient that gender is binary, a Catholic doctor could refuse to provide contraceptives and a Jewish school could insist that staff must be Jewish and act consistently with Judaism. These examples are not far-fetched – each is taken from the draft bill’s own explanatory notes.
Susan Ryan, AO, who was involved in the creation of several anti-discrimination laws and later served as age and disability discrimination commissioner, is damning about the new draft. “A ‘right to discriminate’ would undermine all Commonwealth anti-discrimination laws and create disruption and conflict throughout Australia’s multicultural, multi-faith society,” she says.
“There is no need for further anti-discrimination laws. Balancing conflicting rights is difficult but can be done – and is done satisfactorily under existing laws.”
If the government was genuinely interested in advancing equality in Australia, says Ryan, it would create a national bill of rights: “That would be the best way to develop further fair and practical ways of balancing rights.”
Even among religious organisations, the proposal has been divisive. A joint letter to Prime Minister Scott Morrison from a coalition including the ECAJ, Catholic Archdiocese of Sydney, Anglican Diocese of Sydney and Australian National Imams Council was disapproving of the first draft: “We take the view that it would be better to have no Religious Discrimination Act rather than a flawed one.”
The Forum on Australia’s Islamic Relations (FAIR) claims that the bill offers “zero-protections for Australian–Muslims where it actually counts”. In a submission, FAIR accused the government of “taking short-cuts to address a multifaceted and complex problem”.
Speaking to The Saturday Paper, FAIR executive director Kuranda Seyit expressed concern that the “right to be a bigot” clause would impact religious minorities. “This could potentially embolden far-right groups to ramp up their vitriol and continue their campaigns of hate,” he says.
Some stakeholders appear to have been placated by last week’s changes. “The second draft is a significant improvement over the first,” says Bishop Michael Stead, of the Anglican Diocese of Sydney. But others remain unpersuaded. “Recent amendments have made the bill worse overall,” observes Hugh de Kretser, executive director at the Human Rights Law Centre. “If the major flaws in the bill are not fixed, MPs should reject it.
“… The bill gives religious bodies a licence to discriminate,” he says.
The proposed law is likely to cause headaches for employers. One provision would make it unlawful for larger employers to implement codes of conduct that restrict an employee expressing statements of belief outside work hours. This has been dubbed the “Israel Folau clause” because the bill’s explanatory notes offer a familiar example of a Christian stating that “unrepentant sinners will go to hell”.
“If there is legislation that curbs the excessive control now waged by the private sector over the after-hours conduct of employees, it should be comprehensive, not simply focused on protecting religious belief or activity,” says Josh Bornstein, national head of employment law at Maurice Blackburn Lawyers.
“At a minimum, it should also protect political opinion and participation in public debate.”
For de Kretser, the existence of the Folau clause is striking. “Existing workplace law dealt with this issue in the Rugby Australia case,” he says. “The standard discrimination tests should have been used in the bill. Instead, a complex, badly drafted and unnecessary clause was inserted which undermines the ability of large employers to set standards that promote diversity and equality.”
Bornstein highlights a dissonance in the fact the Folau clause would not apply to government departments and agencies. Yet in recent years, the federal executive has cracked down on the out-of-hours speech of its employees; in August former public servant Michaela Banerji lost a High Court challenge after being sacked for anonymous political tweets.
At the state and territory level, there is also scope for significant impact upon existing anti-discrimination regimes. The “right to be a bigot” clause provides that statements of belief do not constitute discrimination, notwithstanding any federal or state law. “It is a shocking departure from the standard approach that allows for federal and state laws to operate side by side,” says Luke Beck.
This highly unorthodox clause risks undermining existing state schemes, by preventing anti-discrimination tribunals from hearing cases where the “right to be a bigot” defence is raised. State tribunals cannot consider issues of federal law, and thus such cases would need to be argued in federal courts – a significantly slower and more expensive route.
Tasmania’s anti-discrimination commissioner, Sarah Bolt, argued in a submission that the proposal “curtails State sovereignty, diminishes existing human rights protections, and will severely limit access to justice”. The Law Council of Australia, meanwhile, described this aspect of the bill as “unworkable”.
In 2017-18 there were almost 700 discrimination complaints heard in state tribunals, just 95 in federal courts. If the bill passes, many state-based disputes would have to be litigated in federal courts instead.
“This will become a lawyer’s picnic,” says Robertson. “It will be a boon to Scientologists and evangelical cranks, who will use it for courtroom crusades. Our judges really have better things to do than count the number of angels on a pinhead.”
Attorney-General Christian Porter rejected these claims in a statement to The Saturday Paper. “The bill does not undermine state anti-discrimination laws,” he says. “In fact, the bill explicitly does not override state laws, where they exist. Consultations on the draft bill are continuing and once introduced into parliament the bill will likely be the subject of a senate inquiry providing further opportunities for input on the bill.”
Beck believes other attorneys-general should be pushing back. “The silence of the state and territory attorneys-general is deafening,” he says. “They have said barely a word about the federal government’s plan to override protections that exist in their jurisdictions. Are we to take their silence as indicating that they do not support their own human rights and anti-discrimination laws?”
It is questionable whether the “right to be a bigot” clause would even be valid, says Beck, because Canberra only has power to make law on certain issues.
“The bill says that it is based on the external affairs power in the constitution,” he says. That allows parliament to enact laws implementing Australia’s international obligations, such as those found in treaties. But the power allows only laws that are consistent with those obligations. In Beck’s view, the “nasty bits” of the religious discrimination bill are contrary to Australia’s international obligations. He says he has already been contacted by several groups interested in funding a constitutional challenge.
The Attorney-General’s Department is now accepting submissions on the second draft until the end of January. The government’s desire to introduce the bill to parliament in early 2020 – it had initially been slated for late 2019 – means that many religious groups and other stakeholders will have to work through Christmas to provide their input. The irony has not been lost on some of them.
This article was first published in the print edition of The Saturday Paper on Dec 21, 2019 as "Bigot agency". Subscribe here.