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The religious anti-discrimination legislation is being closely examined by interested groups. By Karen Middleton.

Divisions over the religious discrimination bills

A short video clip from a prime ministerial news conference is doing the rounds among some conservative religious groups.

Scott Morrison is being asked about the GoFundMe website’s decision to take down rugby player Israel Folau’s fundraising page. The page had been established to fund Folau’s legal challenge after Rugby Australia sacked him for expressing religious views on social media condemning homosexuality, in breach of his contract.

As Morrison wound up the June 24 Perth news conference, he was asked: “Do you support GoFundMe’s decision?”

The response was brief.

“I think that issue has had enough oxygen, thanks,” he said and walked away.

The prime minister’s unwillingness to offer Folau public support on that occasion upset some on the more conservative side of the religious freedom debate. At least as much as his earlier defence of Folau angered some on the more liberal side.

As those interested parties and others now pore over Attorney-General Christian Porter’s exposure draft of proposed religious anti-discrimination legislation, the debate about religious freedom is shaping up as difficult for both Morrison and Anthony Albanese.

It risks enhancing divisions in both major parties and across party lines. Those fault lines fall more between social progressives and conservatives than between people of faith and those without.

Some are pressing for the bill to offer greater protections for words and actions founded in a genuinely held religious belief. There is a push for amendment in the other direction too, amid concern it affords special discriminatory privileges to believers.

LGBTQIA advocates and others want to ensure it does not provide a special licence to harm vulnerable people on religious grounds. They argue it permits people of religious faith to tell gay people that their sexuality is against God, unnatural or an abomination.

Stating such things politely would not constitute harassment or vilification, despite being potentially insulting, offensive and humiliating – circumstances not covered by the federal bill.

“There is an enormously broad spectrum of views,” Porter told a Perth radio station on Thursday, describing consultative meetings he convened in Melbourne and Sydney this week.

“I would say, largely, it’s going pretty well. There’s a lot of very informed people who’ve read the bill very carefully who take great care and interest in these things. Some people want more. Some people want less.”

The proposed changes are contained in a suite of three bills Porter unveiled on Thursday last week.

Among the most contentious protections is the so-called Folau clause.

It insists businesses turning over more than $50 million, which restrict employees’ after-hours faith-based commentary or activity, would be discriminating, unless they could prove allowing it would cause financial hardship.

Some have queried the division between big and small business and the decision to use a financial test, rather than a question of reputational damage or harm to other staff.

Porter insists it’s fair – and that requiring proof probably favours the employee. “I don’t think that would be the simplest thing to do,” Porter said. “And I think by virtue of the difficulty in doing that, then greater protection is offered to people to express their religious beliefs.”

 

Australia currently has four anti-discrimination acts covering race, sex, disability and age.

At the National Press Club on Wednesday, Law Council of Australia president Arthur Moses, SC, raised concerns about the bill and said a single bill of rights would be better – something the government has rejected.

Among Labor MPs, views on the bills are mixed.

Frontbencher Tanya Plibersek, who represents the inner Sydney electorate that is home to the Mardi Gras, said she saw “real problems”, flagging concern about impacts on state anti-discrimination laws and the section responding to Folau.

“Businesses are already saying, ‘How is this going to work for us? We have to prove economic loss. What’s the process?’ ” she told ABC’s Insiders. “I think that there are obviously issues with this.”

Some colleagues whose constituencies are more socially conservative are praising the bill.

“Credit where credit is due,” Joel Fitzgibbon told The Saturday Paper. “It appears to me Porter has made a good attempt at both addressing concerns among people of faith while not necessarily undermining protections for others.” He called it “a pretty good starting point”.

Labor MP Michelle Rowland, whose electorate includes diverse faith communities, says her constituents thought it would go further.

“I think there were certain expectations of what this bill was going to be,” she says.

Within the government, many MPs are keeping their own counsel. Those with concerns about the bill will meet with Porter next week.

The most outspoken conservative Liberal on the issue, New South Wales senator Concetta Fierravanti-Wells, says the bills “fall far short of properly and fully addressing their requirements for religious freedom which meet international obligations”.

“I envisage religious leaders and stakeholders will now carefully examine the bills in the context of their various activities, determine their position and push for changes,” she told The Saturday Paper.

According to Bishop Michael Stead, chair of the Anglican Church’s religious freedom reference group, they are doing exactly that.

Stead is part of an informal coalition of faith leaders spanning the conservative end of the Christian, Islamic, Jewish and other faiths who have been meeting regularly to discuss religious freedom since before the bill was released.

“It is fair to say we would have broadly common concerns across the various faith traditions,” Stead told The Saturday Paper.

He says the group is pleased to see religious belief becoming “a protected attribute”. It wants amendments to clarify the role of religious-owned commercial bodies and charities and preferential hiring protections extended to aged-care homes and hospitals.

“If we can’t get that fixed, that is a major problem,” says Stead.

He says the group is concerned the government has not removed clauses from the Sex Discrimination Act, which currently allow religious organisations to discriminate against teachers and students on the basis of sexuality.

The institutions have not used those provisions and do not need them, says Stead, but while they continue to exist, they create “a narrative” of discrimination that is false.

Once the religious discrimination bill is passed, he believes they would create conflict between the two acts.

He says the group would also prefer the bill regulated “unreasonable” state laws. “If a state government decided to pass laws that impeded on religious freedom, there is no federal fallback,” says Stead.

But others fear the main bill could override existing state law, including on abortion – something Porter denies.

The legislation does seek to explicitly quash Tasmania’s anti-discrimination act, singled out because, unlike other states’ laws, it specifically outlaws behaviour that “offends, humiliates, intimidates, insults or ridicules”.

Anna Brown, chief executive officer of Equality Australia, says her organisation is “deeply concerned” about the bill’s impact. “The bill contains some incredibly complex drafting and the biggest problem with this is that people simply won’t know where they stand,” Brown told The Saturday Paper.

“LGBTIQ people will simply retreat back into the closet, because they don’t know if they will be able to safely access a service or turn up to school or work and not be subjected to harmful religious views or discrimination. This legislation loads the dice in favour of religious organisations and people above all other Australians.”

Scott Morrison has previously said he wants to avoid this issue becoming a political lightning rod that divides Australians. “It is deeply personal for people,” he told a Coalition party meeting earlier this year. “I want to work through it in a way that enhances unity, not for political purposes.”

But his decision to invite television cameras into his own church during the election campaign and to the Hillsong Christian convention where he spoke and prayed has opened a parallel debate about the role of faith in politics.

That re-emerged this week when Labor’s Home Affairs spokeswoman, Kristina Keneally, challenged the prime minister’s Christian values in relation to the planned deportation of a Tamil family whose refugee application was rejected.

Advocating for the family to stay, Keneally invoked Morrison’s faith and her own Catholicism.

“The prime minister himself put his faith on public display as part of the election campaign,” she told ABC Radio.

The intervention was not part of an authorised strategy. Some of her Labor colleagues remain uncomfortable with it.

Home Affairs Minister Peter Dutton described her comments as “cheap shots”.

Keneally told The Saturday Paper: “The right-wing commentariat doesn’t get to define what it means to be a Christian in the public square. Scott Morrison doesn’t get to define it and he doesn’t get to rely on it just when it suits him.”

Broadcaster Alan Jones backed Labor’s stance in favour of the Tamil family and appeared to endorse Keneally’s original observation.

“It’s one thing to boast we’re a Christian society,” he said. “Apparently it’s a lot harder to practise it.”

Resources Minister Matt Canavan suggested Keneally was grandstanding but also defended focusing on values in public debate. “I think there is a place for different ethical viewpoints to come into the public policy sphere more often,” he told Sky News on Wednesday. “I just think sometimes the bandying about [of] the word ‘Christian’ here is not particularly well thought through.”

Some are saying the same about sections about the religious freedoms bill. It certainly touches on sensitive issues.

It potentially places the courts in the position of adjudicating questions of religious doctrine on which there are strongly differing views across faiths and denominations, and even within them.

It may raise the ire of the far right, members of which are beginning to realise the protections offered will apply equally to Muslims and Christians.

Victorian Labor MP Peter Khalil, whose background is Egyptian and Orthodox Christian, supports protecting religious freedom but questions the wisdom of bringing forward the bill now.

“If you get the fundamentals of economic policy and national security right, you will then have a lot of capital on the social [issues],” Khalil says. “If you lead on the social stuff, you get problems – particularly in this volatile environment.”

Crossbenchers are planning a senate inquiry. Khalil hopes all parties will examine it calmly.

“Our responsibility as lawmakers, as a party, to assess the bill is really important because we have to get the balance right … It’s an easy path for some politicians to take to whip up anger on a particular issue. This issue is ripe for that.”

Morrison and Albanese are both trying to take the heat out of the public debate. Albanese backed Keneally’s right to make the point but did not want to dwell on it. Asked what he thought about it, Morrison told 3AW: “I turn the other cheek.”

This article was first published in the print edition of The Saturday Paper on Sep 7, 2019 as "Taking on faith". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.