The government is having trouble finalising its proposed Religious Discrimination Bill because it’s bad law, according to experts.
The first version of the bill released last year received universal criticism from religious leaders, charities and LGBTIQ advocates.
The government subsequently made amendments, releasing a second exposure draft late last year.
However, the second version is also facing heavy criticism from a range of diverse groups.
- the Chamber of Commerce and Industry,
- the Australian Medical Association,
- LGBTIQ advocacy groups,
- and sports groups including the NRL, AFL, FFA and Rugby Australia.
The bill also received criticism from employer associations and unions.
Religious Discrimination Bill is bad law
Attorney-General Christian Porter dishonestly claimed the bill is aimed at protecting people on the grounds of religious belief and activity.
However, opponents say the bill will give people of faith more rights than other people in the community.
LGBTIQ advocates claim the bill is a licence for religious people to hate, ridicule and discriminate.
Emily Wittig and Geoff Baldwin from Stacks Law Firm looked into the legislation for a recent online article.
The following is a summary of their analysis.
Impact of religious freedom in the workplace
Under the proposed laws, workers will be allowed to express their religious views on social media in their own time without consequence.
They can do this even if it breaches their employer’s code of conduct or existing discrimination laws.
Businesses with a revenue of at least $50 million a year will need to provide proof any restrictions imposed on employees based on their religious expression are necessary to prevent financial hardship to the business.
In the case of Israel Folau, Rugby Australia will need to prove their social media policy is necessary to protect their brand.
Religious schools and healthcare professionals
Under the draft bill, religious schools or other faith bodies will be able to discriminate in recruitment, if they act in accordance with their beliefs or doctrines.
That means, they can hire or fire somebody based on their faith, or lack of faith, or sexuality or gender identity.
Additionally, healthcare providers will be able to conscientiously object to providing services such as abortion if it breaches their religious beliefs.
Bill allows discrimination through expression of religious beliefs
Wittig and Baldwin point to clause 42 of the Religious Discrimination Bill, which they say is at the core of the debate.
Clause 42 arose out of the Israel Folau case.
The clause protects statements of religious belief – such as saying “gays will go to hell” – which would otherwise breach anti-discrimination laws.
An unusual aspect of clause 42 is that it enables provocation rather than providing a defence.
It is a sword, as opposed to a shield, making a mockery of Christian Porter’s repeated disingenuous assurances.
It allows a person to state their offensive religious beliefs about another person’s gender, age, race, disability or sexuality.
Bill does not define religion
Wittig and Baldwin also point out a significant problem with the legislation.
It does not define “religion” – or who gets to decide what is a legitimate religious belief or opinion or activity.
For example, they ask if it includes Satanists Pagans or Witches?
Also, they question atheism – is the belief that there is no supernatural supreme being, in itself a religion?
What is the meaning of “religion”?
Wittig and Baldwin cite two cases which suggest defining the meaning of religion is a complex task.
Firstly, the so-called “Jehovah’s Witnesses Case” in 1943 .
High Court Chief Justice Sir John Latham said:
“It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world”.
Secondly, the Scientology case in 1983.
In that case, the High Court found that, despite differing profoundly from mainstream religions in many ways, Scientology was a religion.
Can a person be denied their right to social services based on religious belief?
It is a fine line between religious freedom and discrimination and vilification, according to Wittig and Baldwin.
They question if a doctor or hospital, citing religious belief, should be permitted to refuse to give medical treatment?
Should a school be able to sack a teacher or expel a student if they are found to be gay?
They suggest real problems may arise when someone is denied medical treatment or education by someone claiming religious belief.
Does the Religious Discrimination Bill enable discrimination?
Opponents of the bill argue it encourages discrimination and will cause immense damage to vulnerable people targeted by bigotry and racism.
All a person will need to be able to justify their racist, homophobic, sexist or abusive comments is that it is a genuinely-held religious belief.
In opposing the bill, the Law Council argues it provides a defence for harmful and humiliating statements made in public, in the workplace or on the sports field.
Furthermore, it also allows religious bodies to discriminate by preferencing fellow believers for work or access to facilities.
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