Existing protections for women lawyers under threat from new Religious Discrimination Bill

09 February 2020 By Jerome Doraisamy

If the updated Religious Discrimination Bill is passed in its current form, clients and barristers could be free to say they prefer male solicitors to females based on religious beliefs, according to Australian Women Lawyers.

In its submission responding to the second exposure draft of the Religious Discrimination Bill, Australian Women Lawyers espoused its concern that the proposed legislation would reduce existing protections, including against the discrimination against women.

AWL’s submission

It is particularly concerned, it wrote, that the draft bill, if enacted, would compromise access to healthcare for women and access to family violence support, which it considers to have the potential to affect people’s human rights and impact upon the services providers’ duty of care obligations.

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Moreover, AWL is concerned that the draft bill would lawfully permit discriminatory statements to be made about women on the basis of religious grounds.

“AWL is deeply concerned that the proposed legislation will override the current and [hard-fought protections] that women have under existing state and federal laws. AWL supports a more comprehensive, nationwide discussion about the promotion and protection of human rights; for instance, a human rights charter or other statutory vehicle that properly covers and better balances rights, so that people are free to practice their beliefs without extending that freedom of religious practice to include a freedom to discriminate against others,” it submitted.

“AWL considers that the likely negative impacts of this bill will be felt more keenly by those people whose intersectionality exposes them to discrimination on religious grounds – women, people of colour, the gender diverse or gender non-conforming, unmarried mothers and soon-to-be mothers.

“The more layers to a woman’s life, the more exposed she becomes. Rules against miscegenation were justified on religious grounds, as are prohibitions on abortion, same-sex relationships, and gender non-conformity. An individual's right to form their own views on the basis of another persons gender, sexuality, religion, or ethnicity is one thing, but the right to discriminate against that person on those grounds should not be protected.”

Why the bill would be a setback for women’s rights

Lawyers Weekly Discover

In conversation with Lawyers Weekly, AWL president Adrienne Morton (pictured) explained the potential discrimination women could face in the workplace by way of observing that, even just 40 years ago, women were disadvantaged in the public service based on their marital status, by way of being forced to resign upon getting married.

“Many religions have strict rules about the roles of women in the community. The logical extension of the proposed bill is the creation of a right to discriminate against a person in the workplace on the basis of a sincerely held religious belief that, for instance, women should not be out of the house without a male guardian or a profoundly held belief in the ‘headship’ of men and subordinate role of women,” she said.

“Under current laws if you have a view about the appropriateness of women’s participation in the workforce, women are protected from you sharing your delightful opinion or otherwise discriminating against them on the basis of that opinion.”

There are, Ms Morton continued, threats to protections granted under state-based legislation.

“In practice, this could mean that in the legal workplace clients and barristers could be free to say that they prefer male solicitors to female due to religious beliefs,” she posited.

Female judges are already interrupted at twice the rate of male judges – a state-sanctioned religious right to, for instance, espouse the rightness of male headship can only be to the detriment of women’s leadership in our society.

What can legal employers and individual lawyers do?

When asked how best firms, in-house teams and legal organisations can ensure women do not face undue discrimination in the workplace if the bill is indeed passed, Ms Morton said she is not entirely sure that they can.

“If the law will not protect women and other susceptible groups then setting cultural standards and norms that promote respect in the workplace is even more important than ever. We need to create workplaces that are better than the lopsided standards proposed by the government,” she said.

“Although practice directions and workplace policies that prohibit discrimination in the workplace may be subject to challenge under the proposed legislation – the value of establishing workplaces based on respect and equality is indisputable.”

As a result, Ms Morton continued, all lawyers have a role to play in marking out the line “between appropriate freedom of religion and needless hate speech and unjustified discriminatory behaviour”.

“The bill is vague on where one ends and the other begins. Don’t be afraid to stand up for yourself and others – letting it slide does no favours to individuals or the country as a whole,” she suggested.

“Michael Kirby exhorts lawyers to be joiners. The proposed law breaches human rights that have been hard-won – if the bill passes into law we are not obliged to let it do so without pointing out its deficiencies.”

It light of its myriad concerns, AWL said it does not support the bill in its current form.

Last week, Lawyers Weekly reported that Human Rights commissioner Ed Santow said the provisions of the second exposure draft are “too severe” and that the Australian Discrimination Law Experts Group is worried the bill, if passed in its current form, will prioritise religion over other protected attributes.

Existing protections for women lawyers under threat from new Religious Discrimination Bill
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