Last Thursday, Mr Porter unveiled the draft bill, which he said would extend “protections to provide protection for people against discrimination on the basis of their religion or religious belief, or lack thereof”.
"The bill would make it unlawful to discriminate on the basis of religious belief or activity in key areas of public life. The bill does not create a positive right to freedom of religion,” he espoused.
What the government is proposing is a shield, not a sword, Mr Porter said.
‘An entirely unnecessary law’
Marque Lawyers managing partner Michael Bradley called the proposed legislation “an entirely unnecessary law”, arguing that no one has yet established a clear case for its enactment.
“It will make life excessively complex and uncertain for employers, sporting organisations and basically everyone except religious bodies,” he posited.
“It establishes as a legal fact that the freedom of institutional religion is more important than the freedom of individual religion, since the former trumps the latter.
If nothing else, he said, it “will provide a lucrative new source of work for lawyers.”
Elsewhere, Mr Bradley tweeted that the bill “gives a bit of fresh hope to homophobic bakers”.
Failure to strike the right balance
The Human Rights Law Centre (HRLC) said the draft legislation “fails to strike a fair balance” between freedom of religion and the rights of others and that it features “unorthodox provisions” in what was intended to be a positive reform.
“Australia needs stronger protections from discrimination for people of faith, but the current bill introduces unjustified carve-outs for people to express discriminatory views and to override state and territory protections which ensure fair treatment, particularly for women accessing abortion services,” said HRLC executive director Hugh de Kretser.
The bill, he continued, would also “limit the ability of employers to enforce codes of conduct that promote diversity and non-discrimination and will override state and territory discrimination laws in some circumstances”.
“There is no justification for the federal government to override state and territory discrimination laws. This will limit discrimination protections for people and introduce unnecessary complexity,” said Mr de Kretser.
Reproductive health issues
HRLC senior lawyer Adrianne Walters criticised provisions that would make it unlawful in some states and territories for health services to enforce government and professional codes of conduct that require doctors with a conscientious objection to abortion to refer their patients to another health service.
“The bill will undermine women’s reproductive health. In some jurisdictions, like South Australia and Western Australia, it will allow doctors to abandon their patients. The bill unjustifiably prioritises a doctor’s personal religious beliefs over the right of women to access the health care they need,” she said.
“In NSW, the bill is likely to override a policy directive issued by NSW Health requiring doctors with a conscientious objection to take every reasonable step to help a woman access the health care she needs. The bill makes it even more important for the NSW abortion bill to have strong referral provisions. Without them, doctors who object will be able to obstruct vulnerable women by refusing to tell them where they can go to get the health care they need.”
What constitutes a religion?
Swaab partner Michael Byrnes observed that it is not clear exactly what constitutes a religion for the purposes of the bill.
“Given the nebulous nature of belief systems and faith, precisely what constitutes a ‘religion’ can be a vexed issue. It is not defined in the bill. As such, the High Court decision in Church of the New Faith v Commissioner of Payroll Tax (Victoria), which adopted a broad approach, will be instructive,” he mused.
“That might present a challenge for employers dealing with employees who assert their belief in an esoteric or emerging religion, the bona fides of which are yet to be established.”
Mr Bradley also noted the absence of such a definition, remaking that: “If I decide that my cavoodle is a deity and establish a new religion worshipping her, with a congregation of one, I’ll automatically have a whole bunch of new legal rights and nobody can say otherwise.”
Religious activity, Mr Byrnes added, is also left undefined.
“The bill also protects ‘religious activity’ – this could be something of a minefield to navigate. It is not defined in the bill. Even religious groups have their own disagreements (and sometimes more serious internecine disputes) as to whether a particular activity or practice is religious or cultural. Expert evidence may need to be called in some situations,” he explained.
‘An important step’ forward
The Law Council of Australia, on the other hand, welcomed the draft bill, saying it marked an important step in the debate about the importance and protection of human rights.
“Religious freedom is an important human right and should be protected, with freedom of expression,” LCA president Arthur Moses SC said.
“But there are other important rights that also need protecting, such as the right to live without fear of discrimination on the basis of other attributes. Striking the right balance between protecting these freedoms and other rights is of concern to the Law Council and the Australian community.
“Australia has a diverse and tolerant community. It is critical we continue to embrace what makes us such a great and peaceful society.”
Charter of Rights
Ultimately, however, the best way to protect human rights in Australia, LCA submitted, is through a “legislated, comprehensive Charter of Rights, which would allow competing interests to be balanced”.
Such a charter would not hand power to courts, it said in a statement, but it would instead enable a comprehensive assessment of various rights, leaving a final decision to parliament.
It addition, it said it wants a consolidation of federal anti-discrimination laws to preserve or strengthen existing protections and reduce regulatory burden on businesses.
“Surely now is the time for a mature and measured national debate about an Australian Charter of Rights, which would establish a coherent legal framework to express and protect our rights and freedoms,” Mr Moses said.
“The Law Council notes the government has taken a different view and understands the Attorney-General is seeking to place religious protections within the existing framework of anti-discrimination laws.
“However, the release of this bill is an opportunity to open the discussion about an Australian Charter of Rights and the Law Council looks forward to engaging in consultation and discussion with the government, parliament, stakeholders and community to ensure any bill put before parliament is appropriate and balanced.”
Jerome Doraisamy is a senior writer for Lawyers Weekly and Wellness Daily. He is also the author of The Wellness Doctrines book series, an admitted solicitor in NSW, an adjunct lecturer at The University of Western Australia and is a board director of Minds Count.