Religious Discrimination Bill fundamentally flawed: ALHR

By Tony Zhang|18 February 2020

The second exposure draft of the Morrison government’s Religious Discrimination Bill is flawed, unworkable and at odds with Australia’s obligations under international human rights law, according to Australian Lawyers for Human Rights (ALHR).

The recent submissions to the second exposure draft of the Religious Discrimination Bill have caused a major response from the legal industry. 

Australian Lawyers for Human Rights (ALHR) said it supports a Religious Discrimination Act, which would provide protections against religious discrimination in areas of public life, but stopped short of voicing support of free and unregulated expressions of religion.

“Rather than increasing protection against discrimination in Australia, it would create an anti-human rights situation whereby all Australians can potentially be harmed by permissible discrimination on the basis of religious faith,” ALHR said in a statement. 

“The proposed measures are far-reaching, with immediate ramifications for employees, employers, health practitioners, and patients. The bill would most acutely and disproportionately impact children, women, people with disabilities, LGBTIQ+ people, single parents, de facto couples, divorced people, and people without any religious beliefs.”

ALHR does not believe that Australian society should tolerate every behaviour that is religiously motivated, just by reason of that motivation, and strongly believes that our laws should not protect behaviour that is discriminatory and is likely to most heavily impact already vulnerable groups.

It wasn’t just ALHR who had recently condemned the recent version of the proposed bill. 

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In a similar stance, a scathing submission, the ACT government said the laws would elevate religious freedom to a special position above all other human rights, essentially creating religious privilege.

“This draft legislation is giving a priority to religion, effectively elevating that over people’s rights for freedom of expression,” Chief Minister Andrew Barr said. 

And this is, I think, quite a problematic situation where it’s religious privilege, rather than freedom of religion.”

Attorney-General Christian Porter, however, hit back at this suggestion outright.

Equally, the bill says religious bodies do not engage in religious discrimination by acting in accordance with their faith, Mr Porter said. 

This is not religious privilege, it is common sense.

Although objects clauses will now expressly state that all human rights have equal status at international law, there is concern that the bill effectively elevates religious discrimination to a position of priority above other forms of discrimination and subjugates other fundamental rights. 

If the second exposure draft comes into effect, ALHR says it would also have significant impacts on the employment and workplace. 

“The bill would prevent employers and bodies that confer professional qualifications in sectors such as law or medicine, from imposing ‘reasonable’ conduct rules which promote non-discrimination against other groups, for example LGBTIQ+ Australians, people with disabilities and women,” ALHR said. 

“Likewise, businesses may no longer impose rules on their employees which eliminate discrimination in that workplace unless they can establish that compliance with the rule is ‘necessary to avoid unjustifiable financial hardship’ to their business.” 

Furthermore, health and safety would also be a concern, with Australia’s internationally recognised right to the highest attainable standard of health tested, with concern over accessible, safe and legal abortion services as well as to freely determine the number and spacing of their children. 

“This bill threatens to undermine these rights due to provisions that would allow doctors, nurses, midwives, psychologists and pharmacists to conscientiously object to providing types of healthcare such as contraception, IVF, abortion, HIV prevention medication, hormone treatment or stem cell-based treatments for degenerative diseases and cancer,” ALHR said. 

ALHR also doesn’t understand why there is a Freedom of Religion commissioner being proposed but there is still no LGBTI commissioner, which would leave LGBTI Australians as the only group protected by federal anti-discrimination legislation but without a dedicated commissioner at the Australian Human Rights Commission.

“Given the disproportionate impact that the RDB package is likely to have on LGBTIQ+ people this omission further compounds the likely impact of the subjugation of other rights to so-called ‘religious’ rights under the present bill,” ALHR said. 

ALHR said that Australia is the only Western liberal democracy without a federal Human Rights Act or Bill of Rights. 

Australia is also bound by the seven core international human rights conventions and has been elected to the UN Human Rights Council, so citizens and residents may face the test of their own changing rights compared to other countries if the bill is passed. 

“Australia’s international human rights treaty obligations should be enshrined in Commonwealth legislation,” ALHR said. 

“The human right to freedom of religion would best be protected by a Federal Human Rights Act that is consistent with these obligations.”

Religious Discrimination Bill fundamentally flawed: ALHR
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