Announcing the Religious Discrimination Act at Sydney’s Great Synagogue on Thursday, Attorney-General Christian Porter was at pains to stress the bill “does not create a positive right to freedom of religion”. He sees no contradiction, it seems, in the fact it will create a new freedom of religion commissioner.
It is likely this act will have many consequences unintended by those who pushed for its creation. Reactive legislation so often does. And there is no doubt this bill exists almost solely as a counter to the legalisation of same-sex marriage in Australia – a balancing of the scales, of sorts, an offering to those who fear the advancement of LGBTQIA rights will threaten their freedom.
In time, how the freedom for religion to discriminate will interact with other protections will emerge. In practice, the legislation draws form from the powerful anti-discrimination legislation already established in Australia: the racial, sex, disability and age discrimination acts. Broad protections are offered to all faith traditions – established and emerging – and to those who choose to not practise any religion.
But where the Sex Discrimination Act states clearly that individuals cannot be discriminated against on the basis of their sex, gender identity or sexual orientation, this new bill says simply that if a religious organisation discriminates – acting in accordance with faith – it is not discrimination.
Most keenly, this will affect the lives of LGBTQIA Australians, that much is already clear.
The bill’s explanatory memoranda are littered with references to marriage as a union between a man and woman. And the media was quick to note it will shield those such as Israel Folau, individuals fired from large companies for expressing their religious beliefs about LGBTQIA people.
That is to say nothing of the bill’s internal instability – the reality that religions often discriminate against one another. If a nurse who adheres to the Islamic faith is asked to remove her hijab by the Catholic-run aged-care home that employs her, whose freedom will be the priority?
Rather than tinkering at the edges of freedom, a wise government would instead choose to pursue a charter of rights – a comprehensive law that enshrines human rights. Australia is the only democratic country in the world without one.
But perhaps this bill was never about bringing the rights of religious adherents in line with others who face discrimination. As Lyle Shelton, a prominent member of the “No” campaign during the same-sex marriage debate, tweeted soon after the draft legislation was revealed: “Most Christians are not looking to have their religion added to the anti-discrimination law regime so they can’t be insulted, offended or ridiculed. They just want to be free to live out their beliefs about marriage and gender without being sued.”
This article was first published in the print edition of The Saturday Paper on Aug 31, 2019 as "Inhuman shield". Subscribe here.