Do We Need a Religious Discrimination Act?

Whilst Australia has legislation prohibiting discrimination on the basis of sex, age, race and disability, it does not currently have anti-discrimination laws protecting religious freedom. In recent weeks, liberal MPs have been calling for a Religious Discrimination Act to be passed, following the same model as existing anti-discrimination legislation, which forbids discrimination in employment and other specified contexts.

The call has been met with debate as to whether such a legislative regime is necessary and concern about the potential for such an act to be misused and to become a smokescreen for other forms of discrimination.

History

In 2017, then-Prime Minister Malcolm Turnbull appointed former minister Phillip Ruddock to review Australia’s legal protections for religious freedom. The review was prompted by concerns among conservatives about the impacts of marriage equality. The report that was tabled last year made numerous recommendations in respect of various amendments that should be made to existing anti-discrimination laws. These included restricting or eliminating certain forms of discrimination.

However, the recommendations also advocated preserving the right to discriminate in some circumstances. For example, by limiting the circumstances in which schools can discriminate against students on the basis of sexual orientation or gender identity to situations where the discrimination is founded in precepts of the religion and the school has publicly available policies outlining its position.

Proposed religious discrimination laws

The proposed Religious Discrimination Act makes it unlawful to:

• treat a person less favourably because of the person’s religious belief or activity;
• unreasonably impose a condition, requirement or practice that disadvantages persons with a religious belief or activity.

The bill extends its protection to the areas of employment, education, good and services, access to premises and sports and clubs. It also sets out various exceptions to the prohibitions on religious discrimination and provides for the establishment of a Freedom of Religion Commissioner at the Australia Human Rights Commission.

Existing protections

Legislation in all states and territories except New South Wales and South Australia already prohibits discrimination on the basis of religious belief or practice. The federal Fair Work Act prohibits such discrimination in the context of employment.

As Australia does not have a bill of rights, there is no general prohibition on religious discrimination, either in the constitution or at the federal level in the absence of specific legislation.

Arguments for the bill

The government has presented the bill as an ‘orthodox’ piece of legislation that will sit alongside existing anti-discrimination acts. Supporters of the bill say it is necessary in order to protect religious people from discrimination on the basis of their religious beliefs or practices. They argue that religious beliefs should attract the same protections from the law as attributes such as race and sex.

Supporters of the bill have also cited ‘the forces of political correctness’ and their potential to marginalise religious views as a reason the bill is necessary. The public ‘disrespect’ shown to Israel Falou following his comments describing homosexuality as a sin has also been raised in support of the bill.

Arguments against the bill

Liberal Senator James Patterson, who has backed the proposed bill, last year tried to introduce legislation that would have allowed discrimination against same-sex couples in the name of religious freedom. The potential for the proposed legislation to become a smokescreen for discrimination against LGBTIQ people has been flagged as a real risk.

The legislation has also been opposed on the ground that it may make it harder for women seeking an abortion to obtain the procedure. Doctors relying on religious grounds for a conscientious objection may have stronger protections and may not be obliged to refer the woman to another practitioner who does not have a conscientious objection. It would therefore fall to the woman to actively seek out a medical practitioner who is willing to perform the procedure.

Religious leaders, such as Anglican priest Father Rod Bower in Gosford, have spoken out against the proposed changes, arguing that religious practices should not be placed on an equal footing with attributes such as race and sex that people have no control over. Bower said that while freedom of religion ought to be protected by law, there should not be an absolute freedom to manifest that religion where this has the potential to result in other forms of discrimination. He further argued that there is no reason to believe that freedom of religion is under threat in Australia.

Melbourne-based employment lawyer Alan McDonald says that the proposed religious discrimination laws will be difficult for employers to navigate and will give people with strong religious beliefs ‘a license to harass those who do not share those beliefs.’

The proposed legislation has also been criticised as having the potential to bring about counterproductive and unintended consequences.

If you require legal advice or representation in relation to a discrimination matter or any other legal matter, please contact Go To Court Lawyers.