Next week, the federal government is expected to introduce a long-awaited religious discrimination bill that will make it unlawful to discriminate against religious Australians. The largely unremarkable bill will extend protection to religious belief that other attributes such as sex, race and sexuality have enjoyed for many decades.
If enacted, it will extend protection to citizens of NSW and South Australia who right now legally can be refused service, fired from their work and rejected for jobs solely on the basis of their faith. Yet, before a draft bill has even been sighted, a pre-emptive and very noisy scaremongering campaign against the bill has commenced.
If anti-religious critics are to be believed, the religious discrimination bill is nothing less than a step back to the dark ages. This opposition reflects the growing antipathy towards religion in Australian society. In particular, Christians in Australia face increasing threats to employment, denial of public benefits, removal of qualifications, and discipline from academic institutions because of their faith.
The Human Rights Law Alliance acts for many people of faith throughout Australia facing hostility, including employees disciplined for expressing their beliefs on social media and a couple denied foster children because of their faith. Australiawatch.com.au contains a database of the growing cases of Australian religious discrimination, not to mention many other cases that cannot or do not reach the public.
Recent international research on religious discrimination by Professor Jonathan Fox of Bar-Ilan University documents the increased “socially based” discrimination against religious minorities in Western countries, with Australia singled out as a clear example.
This is perhaps unsurprising. According to a 2021 report by social policy research outfit McCrindle, a third of Australians would like to see all expression of religion banned from the public square. In the past year, both Prime Minister Scott Morrison and NSW Premier Dominic Perrottet have been publicly ridiculed for their deep personal Christian faith. Such unrestrained animosity would be unthinkable for any other attribute in a public figure.
A swathe of ostensibly compassion-driven legislation, but which limits the ability of religious people and groups to live in accordance with their views and values, has also been passed in various states and territories in recent years. In this context, where protection is needed, it is no wonder that the bill is being targeted aggressively by a noisy claque of anti-religious secularists.
Reports about the likely substance of the bill suggest it will be benign and restrained. The engine room of the proposed bill will look just like other discrimination laws. It will provide religious Australians with a shield against unfair treatment on the basis of their religion whether experienced directly or indirectly.
A religious person would need to satisfy a rigorous test to establish that their treatment was unfair and that the treatment was unreasonable before a claim will be successful. The core framework of the bill will be near-identical to existing discrimination laws. In fact, religious belief will be given less protection than the protections given to disability. In other words, the bill is unremarkable.
For religious freedom advocates, the bill is a first step. It plugs a glaring gap in existing discrimination law, and not much more. There are significant religious freedom issues that the bill simply doesn’t tackle, and which have been put in the too-hard basket. Concerns about protections for religious service providers that arose in 2017 at the time of the same-sex marriage debate are not addressed.
In fact, it seems that only the most basic of recommendations of the 2018 Expert Panel Report on Religious Freedom will be included. The bill ignores the panel’s recommendations that religious freedom protections should align with Australia’s international law commitments under the International Covenant on Civil and Political Rights and the Siracusa Principles.
The bill will be silent on flashpoint issues such as the protection of workers from employer overreach or the sensible accommodation of the conscience of religious health practitioners. Loud voices from the backbench have steered the government’s approach to the bill’s drafting which has kiboshed the inclusion in the bill of practical provisions to address real religious freedom issues.
In a case of the tail wagging the dog, critics of the bill have focused disproportionate attention on peripheral issues in the bill. The spotlight has been shone on standard balancing clauses to protect the ability of religious organisations to employ staff who conform to their religious values and ethos. This is not unusual and mirrors protections given political parties and other specific purpose organisations to ensure the whole team can get behind that organisation’s purpose.
The bill is also expected to protect moderate religious statements from legal attack by activists, such as was experienced by Archbishop Porteous under Tasmanian laws during the marriage debate of 2017. This is a sensible moderation of radical state laws that have allowed activists to weaponise Australian courts to attack religious (and non-religious) ideas that they disagree with.
Critics say the bill will permit discrimination against gay and lesbian Australians. This is alarmist. LGBTQI+ discrimination is governed by the Sex Discrimination Act, which will be untouched by this bill. In short, the religious discrimination bill is almost entirely a plain, vanilla extension of existing discrimination legislation.
It presents an opportunity to extend existing protections against unfair treatment to all religious Australians. But the knives are already out.
With a looming election, Australians of faith can expect that passage of the religious discrimination bill will be heavily politicised and polarised – to the detriment of people of faith already facing significant discrimination.
This is unfortunate, not just for religious Australians, but for all Australians who want to see a confident and robust pluralistic society where there is a high level of social cohesion amongst groups of widely differing beliefs and convictions.
John Steenhof is the principal lawyer at the Human Rights Law Alliance Limited.
This article was published in The Sydney Morning Herald on November 19, 2021.