Religious Discrimination Bill will create space for discrimination: UNSW

Religious Discrimination Bill will create space for discrimination: UNSW

06 December 2021 By Naomi Neilson
Religious Discrimination Bill

Legal academics are concerned that the current Religious Discrimination Bill draft will undermine existing protections for groups that are already vulnerable. In breaking down the bill by its provisions, experts from one university explained how the proposed legislation as it stands would only create more space for discrimination.

Despite being in its third draft, the Religious Discrimination Bill still has the potential to undermine protections for LGBTQIA+ people, women, people with disabilities, migrants and, “ironically”, people of no faith or of a different faith, according to the University of NSW (UNSW) and its experts. If enacted into law, the experts warned that it would override existing legislative protections for “historically disadvantaged groups”.

Public health ethics expert Dr Bridget Haire explained that the “Religious Discrimination Bill essentially creates a right to discriminate, disguised as the right to freedom of religion – which is an important right protected by most constitutions around the world”. International human rights law expert Professor Lucas Lixinski added it would “clearly constitute an infringement on the rights of minorities”.

Due to the “broad way” the bill was written, discriminatory practices held by some religions might be encouraged, UNSW added. For example, the bill said the law would provide that making a statement of belief “in good faith” will not be considered discriminatory under any Australian anti-discrimination law. This, however, begs the question of what exactly “good faith” is in the eyes of the discrimination law.

Advertisement
Advertisement

“Good faith is an incredibly open-ended and subjective standard,” Professor Lixinski said. He added that one way of making “good faith” objective is by measuring it against what may be “reasonable” or what an “average person” may do.

“But many judges tend to interpret ‘good faith’ as a window to gaze into the intentions of the specific person, and, because it is very hard to prove what the person felt or meant subjectively, the law ends up taking their word at face value.”

Professor Lixinski said that, put simply, “good faith” may create an excuse or legal loophole for people to say anything and, if caught, to say they “meant it well”. According to Dr Haire, it could also mean a genuine belief that a statement is in accordance with their religious views, which will also permit the offensive statement.

“Given some religious teachings, this could include statements that same-sex relationships are sinful, that single parents are sinful, that women should be relegated to the domestic sphere and obey their husbands, that certain illnesses or disabilities are a curse from god, and so on,” Dr Haire explained.

The Religious Discrimination Bill was promised by the Coalition in response to the marriage equality debate. Professor Lixinski said it was a classic move: “When a minority gains rights, the majority who perceives themselves to be threatened tries to find a way to claw back and put said minority ‘back in their place’.

SPONSORED CONTENT

“There is compelling evidence that there is a problem with insufficient protection of freedom of religion in this country, so the bill is not justified.” 

Given that there is no necessity to create specific religious discrimination practices, the UNSW experts suggested amending existing legislation instead.

“It is everyone’s responsibility to protect and encourage rights protections for all. I would suggest that a positive liberty approach to this is best – ensuring that workplaces cater for people’s genuine religious practices by having prayer rooms and ensuring that holy days can be appropriately observed,” Dr Haire said.

Religious Discrimination Bill will create space for discrimination: UNSW
Intro image
lawyersweekly logo