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Lawyers ‘very concerned’ by existing provisions in Religious Discrimination Bill
The revamped Religious Discrimination Bill has come before Parliament but, given the protests against it, will be unlikely to pass into law anytime soon. For those in the legal profession, this is an opportunity to address inconsistencies with international human rights law and strike out some of the more controversial provisions.
Naomi Neilson
The controversial Religious Discrimination Bill may have had a strong start in federal government but has since dropped in priority on the House notice paper, indicating that it is unlikely that a final vote will be reached this week. In a tweet, Attorney-General Michaelia Cash placed the blame on Labor for “moving the goal posts”.
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The bill is now onto its third draft following major pushback from the political and legal professions and protests from the community that it would disadvantage women, LGBTQIA+ people, and people from non-religious backgrounds. Despite making some changes, the updated bill is still being met with significant concerns.
Australian Lawyers for Human Rights (ALHR) said this third version remains inconsistent with international human rights law and creates an extreme anti-human rights situation “where all Australians can potentially be harmed by permissible discrimination on the basis of religious faith”. Although the bill scaled back on the “Folau clause” and other similar provisions, ALHR said it still remains a concern.
In particular, ALHR is concerned the bill retains provisions to allow discrimination based on religious grounds, that it will build a fundamental imbalance into existing anti-discrimination legal systems by privileging one group over another, and that it would establish exemptions for “statements of belief” that override existing state and federal anti-discrimination protections on grounds such as race and disability.
“What the federal government is effectively proposing is a law that elevates religious discrimination to a position of priority above other forms of discrimination and subjugates other fundamental human rights. In contrast, international human rights law is clear: there is no hierarchy of rights,” ALHR president Kerry Weste said.
ALHR said that under the current terms, faith-based hospitals, aged care facilities, accommodation providers and disability service providers would be able to discriminate in “incredibly broad and unjustified ways” against people with different or no religious beliefs. For schools, charities and non-commercial bodies, this protection will extend beyond employment to permit discrimination in education.
“The bill would significantly inhibit employers and bodies that confer professional qualifications in sectors such as law or medicine from responding reasonably to members who make offensive, uninformed, insulting, demeaning or damaging statements based in religion outside of work contexts,” Ms Weste said.
ALHR is particularly concerned that the bill contains unprecedented provisions that will permit corporations to sue if they suffer detriment because of a close association with a person who holds a religious belief and that extend liability under the bill to anyone who is “knowingly concerned” in religious discrimination.
“Australian society should not tolerate behaviour that is religiously motivated, just by reason of that motivation, and our laws should not protect behaviour that is discriminatory, particularly where it is likely to most heavily impact already vulnerable groups,” Ms Weste commented.
“Neither our government nor our laws should cherry-pick only select human rights for protection. This does not reflect Australia’s international legal obligations to protect all human rights equally and fails to take account of the necessary interrelation between all human rights.”
