Despite the rhetoric around it, the Religious Discrimination Bill can be fixed with some logical additions and subtractions.
Many groups are opposed to Christian Porter’s bill, particularly LGBTI groups, but also many freethought groups — atheists, sceptics, agnostics, humanists, rationalists, secularists.
If the bill simply added ‘religion’ to the set of anti-discrimination grounds, that would be no bad thing. After all, the Australian government is obliged to operationalise international agreements such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), both of which make discrimination on the ground of religion unlawful.
However, the bill goes much further than simply adding religion as an anti-discrimination ground. It adds clauses that can be nothing but a sop to high-profile Christian leaders, annoyed by being taken to task by those who don’t agree with their peculiarly idiosyncratic interpretation of doctrine.
The Porteous and Folau clauses
Clause 8(3) of the bill proposes that codes of conduct by employers may not prohibit statements of belief outside of work, unless the employer can prove it would suffer financial hardship (the ‘Folau clause’).
This is just one example where the bill elevates statements of religious belief above any other statement of belief, thus providing positive religious privilege – a sword, not a shield – that is unavailable to other statements of, say, political or moral belief. Why, for example, should statements of religious belief made by an employee outside of work be protected but not statements about diggers on Anzac Day?
For religious people, a statement of belief that has protection can be on any topic provided it can be seen to arise out of a person’s religious beliefs. For example, a statement that women are not suited to leadership positions would be protected; or a statement that gay people should refrain from having sex.
By contrast, for non-religious people, a protected statement of belief can be only on a topic concerning religion and only if it can be seen to arise out of a person’s lack of religious beliefs. Hence protection for the beliefs of religious people are broader than any protection afforded the beliefs of non-religious people.
Clause 41 (the ‘Porteous clause’) entirely excuses statements of belief from being considered discriminatory under any anti-discrimination laws. This sweeping provision will override other federal and state-based anti-discrimination laws. While the clause sets a standard that statements may not ‘harass, vilify or incite hatred or violence’, why should statements of religious belief be privileged above any other statements?
If a person publicly recites from a sacred text and that text humiliates, or intimidates, or defames adherents of other religions or the non-religious, why should that person not be held to account for choosing to read that particular text?
In the case of Bishop Porteous, the system worked! A complaint was made about statements he made, but mediation worked and the complaint was withdrawn.
In the case of Folau, huge resources are being applied to employ the best possible legal advice and the system is working its way through to a conclusion. Folau is using existing religious discrimination protections found in the federal Fair Work Act to argue his case. The bill is an ill-conceived attempt to circumvent a possible outcome of the existing legal system.
Further, it’s proposed to amend the Charities Act to positively protect expressions of support for a ‘traditional view of marriage as only between a man and a woman’, despite no legal decision that threatens a charity’s status for saying so.
This is pure overreaction, unnecessary in the circumstances. These clauses are clearly written in response to heavy pressure by powerful religious lobbies and should be deleted.
They are a direct attack on freedom of speech, a form of ‘reverse blasphemy’ law that protects statements of religious belief over and above other statements of belief and protects actions by religious bodies beyond the actions of other bodies.
The bill places undue emphasis on religion, where international law (ICCPR and its associated General Comment 22) makes it clear that what is to be protected is not just religion but “thought, conscience, religion or belief”.
Clause 10 of the bill gives religious bodies practically free rein to do as they please, as long as their actions can ‘reasonably be regarded’ as being in accordance with the teachings of their faith. This is a much lower standard than in other anti-discrimination legislation, which require “conformity” with the beliefs of the religion, “necessary” to avoid injury to religious sensibilities.
Aggressive evangelising would be given legal protection under this clause. There is an increasing number of Australians calling for freedom from religion, not more “religious-freedom-as-religious-privilege”. There should be reasonable limits placed on the actions of religions in the public square or in public institutions.
The UK Public Order Act does this in its section 29J: Protection of Freedom of Expression where it says, “The protection of evangelising as lawful activity should be limited by law to protect public order.” There should be a similar provision in this bill.
Clauses 8(5) and (6) elevate religious beliefs above the duty of professionals to provide lawful health services. These clauses allow a health professional to claim conscientious objection even to providing information should a patient ask about abortion or voluntary assisted dying.
Further, ‘health practitioner’ is defined to include dentists, occupational therapists, physiotherapists, and podiatrists. It is difficult to contemplate a situation, other than one motivated by religious bigotry, where such professionals could reasonably exercise a right to conscientious objection.
There are some welcome aspects of the bill:
- The proposal to include in all federal anti-discrimination acts a positive recognition of the indivisibility and universality of all human rights, and the principle that every person is free and equal in dignity and rights.
- The inclusion of those who do not subscribe to religious belief (including atheists and agnostics) by defining “religious belief or activity” to include “not holding a religious belief”.
- The recognition in Clause 20 that citizens have a right to expect the provision of goods and services free from religious discrimination.
However, overall, the bill places undue emphasis on religion, where international law (ICCPR and its associated General Comment 22) makes it clear that what is to be protected is not just religion but “thought, conscience, religion or belief”.
The proposed Religious Freedom Commissioner should be renamed the Commissioner for Freedom of Thought, Conscience, Religion or Belief – or if that is a bit long, then the usual international protocol is to refer to Freedom of Religion or Belief (FORB).
Further, the bill fails to include a provision protecting the rights of people to change their religion or abandon their religion altogether, which are part of international law.
How to fix it:
- Extend the consultation period.
- Include a provision expressly abolishing the offences of blasphemy and blasphemous libel (similar to how the Commonwealth overrode State laws to abolish crimes relating to consensual same-sex sexual activity).
- As per General Comment 22 on Article 18 of the ICCPR, amend clause 3(2) of the bill (Objects of the Act) to include an additional principle that explicitly recognises the freedom to “replace one’s current religion or belief with another or to adopt atheistic views” and to outlaw any coercion that compels adherence to religious views or activities.
- To ensure ordinary citizens’ rights to quiet enjoyment of their surroundings, place a limit on expressions of religious belief that disturb public order. The UK Public Order Act s29J on includes the provision that “The protection of evangelising as a lawful religious activity should be limited by law to protect public order.”
- For the sake of transparency and as suggested in the Ruddock Report, institutions that provide services to the public like schools, universities and hospitals should be required to publish their policies on employment and service-provision as they relate to religious belief, so that prospective clients are fully informed before seeking to use their services.
- Similarly, individual health professionals who seek to take advantage of the blanket conscientious objection provisions should be required to make their views publicly known so that prospective clients are not misled about the scope of services such professionals will provide.
- Clarify the instances where small and medium-sized organisations may legitimately require employees to adhere to a code of conduct outside of work.
- Define the words “harass” and “vilify”.
- In clause 5(1) on Definitions, delete para (b) (iv) of the definition of ‘statements of belief’ to ensure statements of belief made by religious and non-religious people are treated equally.
- Delete clause 41 entirely. Clause 41 provides that statements of belief do not constitute discrimination, and overrides all other federal, state and territory anti-discrimination laws.
- To signal the intention that these provisions treat religious and non-religious citizens equal in dignity and rights, the Religious Freedom Commissioner role should be renamed the “Commissioner for Freedom of Religion or Belief’ (commonly known as FORB) or better, the ‘Commissioner for Freedom of Thought, Conscience, Religion or Belief’. It should be made clear that the role of the commissioner relates not only to religion but to all thought, conscience, religion or belief, which includes ensuring religious beliefs are not privileged over and above other systems of belief.