Coalition’s religious discrimination bill: are protections for minorities being sacrificed for faith?
After almost two years of consultation the Coalition has released a new draft of its religious discrimination legislation.
While some of the hardest edges have been knocked off, Liberal moderates and equality advocates remain concerned it could water down protections for minority groups.
So what’s in and what’s out of this third draft of the legislation and do the changes mean it can be used as a shield against discrimination or a sword to discriminate against others?
What is the bill about?
The religious discrimination bill prohibits discrimination in certain areas of public life on the ground of religious belief or activity.
The bill prohibits both direct discrimination, treating another person less favourably based on religion, and indirect discrimination, where an apparently neutral condition has the effect of disadvantaging people because of their religion.
Why did anyone object to that? Earlier drafts of the bill protected religious expression and practice in a number of controversial areas such as allowing medical practitioners to object to procedures and limiting employers’ policies to regulate employees’ speech. What has changed?
The third draft, released by attorney general Michaelia Cash on Tuesday, removes several of the most contentious sections:
The so-called Folau clause preventing employers sanctioning employees for religious speech.
Sections allowing health providers to refuse treatment on the basis of “conscientious objection” to particular procedures.
What are the remaining protections for religious speech?
Although employers can set codes
of conduct regulating employees’ speech, the bill still prevents qualifying bodies, such as a professional association, setting rules that would have “the effect of restricting or preventing [a] person from making a statement of belief ”.
The bill also states that statements of religious belief do not constitute discrimination under state and territory anti-discrimination laws, including section 17 of the Tasmanian Anti-Discrimination Act, which prohibits speech that “offends, insults or humiliates” people based on other characteristics such as race, age, sex or disability.
Advocates have suggested this would allow religious people to say things like women should submit to their husbands, or disability is a trial imposed by God.
What about religious institutions such as schools?
Religious institutions are allowed to engage in conduct that “a person of the same religion … could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion” and “to avoid injury to the religious susceptibilities of adherents of the same religion”.
This could allow educational institutions to discriminate against gay teachers and students – but to do so they must first publish a publicly available policy about their practices, which was one of the recommendations of the Ruddock review.
Clause 11 of the new bill states that schools may “give preference, in good faith, to persons who hold or engage in a particular religious belief or activity” if they publish a public policy.
The attorney general may also use regulations to specify certain state or territory laws that can be overridden by this section of federal religious discrimination law, if he or she believes the law prevents the institution giving preference to members of their faith.
This means, if the bill passes, the federal government could override the Victorian government’s reforms seeking to narrow religious exemptions to prevent schools discriminating against staff on the basis of personal characteristics such as sexuality.
What about protecting gay students?
Before the Wentworth byelection in 2018, Scott Morrison committed to reform the law to prevent religious schools expelling gay students.
The reform never passed because Labor was concerned the government’s proposal still allowed schools to punish gay students in other ways; the matter was referred to the Australian Law Reform Commission for review.
After concerns expressed by Liberal moderates, Cash has reinforced that the government’s position is that no child should be suspended or expelled from school on the basis of their sexuality or gender identity.
But protections are not included in the religious discrimination bill – instead Cash has asked the ALRC to draft protections in a wider reform of discrimination laws to be considered 12 months after the bill passes.
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In the party room on Tuesday, Liberals including Dave Sharma and Andrew Bragg suggested the two issues should be considered together.
What happens now?
Scott Morrison will introduce the bill to the House of Representatives this week, where it is expected to pass next week before being referred to a Senate committee, most likely the legal and constitutional affairs committee.
Labor’s support is likely to be critical, as several crossbench senators have questioned the need for the bill or oppose it outright.
Anthony Albanese has said he “absolutely” supports religious freedom and would “always support faith communities” but protecting that right should not involve “taking away the freedom of others”.