1.      Introduction

Australia is a multi-cultural and multi-faith nation in which people from a great variety of religious backgrounds, and those who hold no faith at all, have found a home. With a very few exceptions Australians of all faiths are able to safely practise their religion here. As the Report of the Expert Panel into Religious Freedom (the Religious Freedom Review) documented, Australians whose faiths face persecution overseas appreciate the ‘relative safety that Australia affords people of different faiths’ (1.13). That Report recommended only small additions to Australia’s legislative protection of Australians’ religious freedoms.

Given this, the Second Exposure Draft of the Religious Discrimination Bill (2019) (the Bill) is disappointing. It goes far beyond the recommendations of the Religious Freedom Review. Although the Bill describes itself as one that addresses ‘Religious Discrimination’ it should more accurately be titled a ‘Religious Freedom Bill’. It gives rights to people of faith that are not held by other people. It allows people of faith to discriminate against those with whom they disagree. It attempts to give rights that can only be held by individuals to religious institutions. If this Bill is passed, it will create divisions within Australia that currently do not exist. The passing of this legislation may license further discrimination within Australia, rather than less.

2.      Protecting the Right to Religious Freedom

Some addition does need to be made to Australia’s legislative protection of human rights. Unlike comparable countries, Australia does not have a Bill of Rights or a Human Rights Act. Religion is not a prohibited ground of discrimination in any of the existing Commonwealth anti-discrimination acts.

While the Religious Freedom Review heard of few cases of discrimination on the basis of religion, they were told of hate speech directed at people of minority faiths (Religious Freedom Review 1.337), and acts of social hostility directed towards them, including the removal of religious head coverings, death threats, vandalism, and verbal abuse (Religious Freedom Review 1.369).  This agrees with what the Uniting Church in Australia has found; that Muslims in particular have been the victims of religious vilification and that local planning laws have been used to deny building applications from Muslim communities.[1]

The Religious Freedom Review found that the protections of the Racial Discrimination Act 1975 (Cth) have only been extended to religious groups with a common ‘ethnic origin’, for example Jewish and Sikh people, and do not cover discrimination against the members of other religions (Religious Freedom Review 1.380). This is a recognised gap in Australia’s anti-discrimination regime, and one noted by the United Nations’ Human Rights Committee (Religious Freedom Review 1.387).

The first object of the Religious Discrimination Bill is ‘to eliminate, so far as is possible, discrimination against persons on the ground of religious belief or activity in a range of areas of public life’ – s. 3(1)(a). This is a laudable and indeed necessary aim. But the Bill goes much further than this, and much further than the Religious Freedom Review recommended.

3.      Responding to the Report of the Expert Panel into Religious Freedom

The Explanatory Notes to the Bill say that it gives effect to Recommendations 3, 15 and 19 of the Religious Freedom Review. This is disingenuous. Despite the assertion of the Explanatory Notes, the Religious Discrimination Bill does not ‘give effect’ to the Religious Freedom Review.

Recommendation 3 of the Religious Freedom Review suggests that governments consider the use of interpretive clauses in legislation to reflect the equal status of all human rights, including freedom of religion. While section 3(2)(a) does refer to the ‘indivisibility and universality of human rights, and their equal status in international law,’ the rest of the Bill gives ‘religious freedom’ priority over, for example, the right of Australians not to be discriminated against on the basis of sexuality or gender identity.

Recommendation 15 of the Religious Freedom Review only suggests the creation of a Religious Discrimination Act, and the Religious Freedom Review deliberately did not advise the creation of a Religious Freedom Act (Religious Freedom Review 1.122). The Bill, despite its name, is very much one of religious freedom.

Recommendation 19 of the Religious Freedom Review is that the Australian Human Rights Commission should take a leading role in the protection of freedom of religion but that ‘this should occur within the existing commissioner model and not necessarily through the creation of a new position’. The Religious Freedom Review in fact deliberately advised against the appointment of a Freedom of Religion Commissioner, instead believing that ‘the Human Rights Commissioner already has the capacity to perform many of the functions suggested for a Religious Freedom Commissioner’ (Religious Freedom Review 1.415). Part 6 of the Religious Discrimination Bill is unnecessary.

Several of the recommendations of the Religious Freedom Review actually suggest the reduction of the rights of religious bodies to discriminate, and the limitation of their exemptions in anti-discrimination laws. Recommendations 1, 5, 6, 7 and 8 are all of this type. Rather than following these recommendations, the Bill gives religious bodies more rights to discriminate, expands the definition of religious bodies to include commercial enterprises, and gives particular rights to discriminate to religious hospitals, aged care facilities, and accommodation providers. While the notes to section 11 state that ‘this subsection does not permit conduct that is otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984‘, as long as exemptions for religious bodies (s. 37) and educational institutions established for religious purposes (s. 38) remain unamended within that Act there is very little conduct by ‘religious bodies’ that could be found to be unlawful.

4.      The proposed ‘Religious Right’ to discriminate against others.

Religious freedom is not an absolute right. It must be balanced with other human rights. This is clear in the International Covenant on Civil and Political Rights. Article 18 of the ICCPR describes the right to freedom of thought, conscience and religion, and section 3 of that article says:

Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

The Bill agrees, section 3(2) saying that regard is to be had to ‘the indivisibility and universality of human rights, and their equal status in international law; and the principle that every person is free and equal in dignity and rights’. But by giving an almost unfettered legislative right to religious freedom, without balancing that with other rights, the Bill divides the right of religious freedom from other rights, and will result in some Australians being less ‘free and equal in dignity’ than others.

The Objects clause says that among the aims of the proposed Act are that it ‘ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of religious belief or activity’ (s. 3(1)(b)) and that it ‘ensure that people can, consistently with Australia’s obligations with respect to freedom of religion and freedom of expression, and subject to specified limits, make statements of belief’ (s. 3(1)(c)). But there are almost no limits posed to the right of people of faith to make statements of belief that will harm others, and people of faith will have rights to make such statements that other people will not.

The only limits proposed to a person making a ‘statement of belief’ (which includes non-belief) are if that statement of belief is malicious (s. 8(5)(a)); if it would ‘harass, threaten, seriously intimidate or vilify another person or group of persons’ (s. 8(5)(b)); or if it would ‘counsel, promote, encourage or urge conduct that would constitute a serious offence’ (s. 8(5)(c)). This goes much further than the equivalent provision in the Racial Discrimination Act, where an act is unlawful if it is reasonably likely to ‘offend, insult, humiliate or intimidate’ (s. 18C(1)(a)). No explanation is given as to why a racist statement only needs to intimidate to be unlawful, while a statement of belief needs to ‘seriously intimidate’, or why a racist statement that offends or insults is unlawful, while a statement of religious belief needs to harass or threaten to be unlawful.

The statements of belief made by Australian people of faith that are most likely to offend, insult or humiliate others are about sexual orientation or gender identity. The Explanatory Notes gives an example: ‘a statement by a doctor to a transgender patient of their religious belief that God made men and women in his image and that gender is therefore binary may be a statement of belief, provided it is made in good faith’ (para. 549). Such a statement would be protected under the Religious Discrimination Act. Leaving aside the obvious point that an anti-discrimination act should not give people rights to make such discriminatory statements, even if that doctor is not then allowed to refuse to treat the transgender patient, the religious doctor has a right that a non-religious person does not. Their right to make such a statement cannot be excluded by an employer conduct rule or a health practitioner conduct rule (s. 8). They would not be able to be fired for making it. However, if a trans-exclusionary radical feminist made a similar statement, that people are born men and women and gender is binary, that statement would not be protected, since trans-exclusionary radical feminism is not a religious belief. The hypothetical religious doctor has a right that an Australian Maya Fortstater would not.[2]

5.      The ‘Israel Folau’ case

Certain sections of the Bill seem to have been written with the dispute between Israel Folau and Rugby Australia in mind, and demonstrate the maxim that hard cases make bad law. The Bill’s definition of ‘relevant employer’ is an employer that has revenue of $50 million or more (s. 5(1)). Such a ‘relevant employer’ cannot limit the statements of belief of its employees ‘unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer’ (s. 8(3)).

The reason given in the Explanatory Notes for limiting the additional requirements in s. 8(3) to ‘the largest businesses operating in Australia’ is that ‘very large businesses’ play a significant role in setting standards of workplace culture across the country. Limiting the ability of such ‘relevant employers’ to prevent employees from making any sort of ‘statement of belief’ will apparently ‘assist in building a corporate culture that supports religious diversity across the Australian community at large’ (para 144).

The Explanatory Notes do not explain why only a corporate culture that supports religious diversity is to be encouraged. Why is a corporate culture that supports the full equality of LGBTIQ Australians not considered a matter of equal importance? Nor do the Explanatory Notes given any reason for the relevant hardship to be limited to financial hardship, except to say that ‘other forms of hardship to the employer are not relevant for the purposes of this provision’ (para 140). The financial hardship must be ‘actual financial hardship, or clear evidence that any threatened financial hardship is likely to manifest, rather than the mere possibility of financial hardship or vague threats of financial hardship’ (para 142). A threatened consumer boycott, for example, would probably only provide a ‘mere possibility’ of financial hardship. Reputational damage that does not lead to measurable financial hardship is not even mentioned.

The importance of some limitation on the freedom to make statements of belief is recognised within the definition of ‘relevant employer’ by the exclusion of ‘the Commonwealth, a State or a Territory or a body established for a public purpose by or under a law of the Commonwealth, a State or a Territory’. The reason given for this exclusion is that ‘the proper functioning of representative government relies on an impartial, apolitical public service, and there is a legitimate need to impose codes of conduct on public sector employees to protect these unique qualities of public service’ (para 144). But there is no recognition that in modern Australia there could be a requirement for employees of a private company to demonstrate a commitment to equality.

The only explanation for these limits is that these clauses have been written to ensure that a company like Rugby Australia will not in the future be able to create a code of conduct that limits the right of a player like Israel Folau to make ‘statements of belief’ that offend or humiliate LGBTIQ people, unless Rugby Australia is able to point to ‘actual financial hardship’ caused by those statements. To create such complicated legislation in order to respond to one high profile case, a case that was eventually settled by mediation, makes for bad law.

6.      The extension of a right to religious freedom to religious and commercial bodies

The Religious Freedom Review makes it clear that the right to freedom of religion is a right for individuals, not for churches or religious bodies: ‘It is not a protection for religions. It is a protection, a human right, for the religious, the non-religious and those who subscribe to other systems of belief’ (Religious Freedom Review 1.1). While the Human Rights Committee’s General Comment 22, quoted in the Religious Freedom Review (1.46-8) gives a broad range of acts that might be included in a right to a manifestation of religion or belief, from building places of worship to establishing seminaries or religious schools, it does not suggest that those rights extend to companies engaged in commercial activities, hospitals, or aged-care facilities. The Bill goes much further than the requirements of international law by purporting to give religious rights to institutions.

The definition of ‘religious body’ in the Bill is more expansive than that in ss. 37-39 of the Sex Discrimination Act. For example, the exemptions in s. 37 of that Act only apply to the ordination or appointment of clergy; their education and training; the selection or appointment of people involved in religious observance or practice; and ‘any other act or practice of a body established for religious purposes, being an act or practice that conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’. In the Bill, a ‘religious body’ also includes ‘a registered public benevolent institution’ (s. 11(5)(b)) and ‘any other body that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion (other than a body that engages solely or primarily in commercial activities)’ (s. 11(5)(c)). This is a much broader definition than ‘a body established for religious purposes’. And even religiously-affiliated businesses which do not fall within the definition of a ‘religious body’ because they are ‘primarily or solely engaged in commercial activities’ are given some powers to discriminate according to Explanatory Note 441.

Religious hospitals and aged care facilities are giving explicit powers to discriminate against employees and potential employees on the basis of their religion, or if that discrimination is necessary to ‘avoid injury to the religious susceptibilities of adherents of the same religion as the first person’ (s. 32(8)-(12)). Such facilities will not, however, be allowed to discriminate against clients because they ‘provide essential public services to the general Australian community’, and as such ‘it is not appropriate for those bodies to discriminate on the basis of religious belief or activity generally, particularly in the provision of such services’ (Explanatory Note 453). But allowing such facilities to discriminate against the people they hire will have a chilling effect on their clients. An elderly LGBTIQ person is unlikely to feel comfortable in an aged care facility that discriminates against LGBTIQ staff.

Uniting AgeWell, the aged care arm of the Uniting Church in Australia, does not want to be able to discriminate. Its website quotes a 2015 La Trobe University study that found many older LGBTI people fear discrimination from aged care facilities, including ‘ignorance and stigma from professionals dealing with their care’. To allow aged care facilities to discriminate against LGBTIQ professionals will only increase the fear of such people. In contrast, Uniting AgeWell ‘celebrate[s] the contributions LGBTI staff, volunteers and clients have made to our communities over decades, and support[s] the right of LGBTI people to have equitable access to high quality, culturally appropriate aged care’.[3] The Uniting Church believes that when:

religious bodies are provided with what amounts to a ‘blanket exception’, there is no incentive for a religious body to ensure that it does not discriminate, and no incentive to promote equality and inclusion in areas of employment and representation.[4]

If all rights are equal, the Commonwealth government should be encouraging more hospitals and aged care providers to follow Uniting AgeWell’s example, rather than giving them further permission to discriminate.

The exceptions for religious camps and conference sites in ss. 33(2)–(5) look like a reaction to Christian Youth Camps v Cobaw Community Health Limited [2014] VSCA 75 (16 April 2014) and seem to be another example of a hard case making bad law. There is no reason why religious camps and conference sites, if run as commercial properties, should not receive the same treatment under the law as other commercial campsites.

7.      Inter-faith relationships and statements of belief

By giving people of faith the right to make any ‘statement of belief’ without that statement constituting discrimination (s. 42) this Bill has the potential to damage existing relationships between people of different faiths. The Explanatory Notes say that:

a statement made in good faith by a Christian of their religious belief that unrepentant sinners will go to hell may constitute a statement of belief. However, a statement made in good faith by that same person that all people of a particular race will go to hell may not constitute a statement of belief as it may not reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of Christianity. (para 540)

As a Christian I appreciate the confidence of the writers of this note, but sadly Christian history says otherwise. In 2009 the Uniting Church Assembly told the AHRC that:

The history of Christianity is scarred with examples of churches perpetrating violence, abuse and appalling discrimination against people and communities on the basis of race, gender, sexuality and religion, and claiming those actions to be in the name of God. Expressions of faith can become so degraded and perverse that the central tenets of authentic Christianity no longer have meaning in those contexts. The right to freedom of thought, conscience and religion, must always be bound together with the ‘due recognition and respect for the rights and freedoms of others and of meeting the just requirements of human dignity and the general welfare of a democratic society’ [quote from Dignity in Humanity].[5]

It is not too far-fetched to foresee Christian groups making statements of belief that Jews and Muslims should be discriminated against because they reject Christ, and giving evidence from the Bible and Christian history to support that assertion. To prima facie declare that a statement of belief cannot constitute discrimination unless it is malicious, likely to harass, threaten, seriously intimidate, or vilify, or is promoting a crime, will not add to inter-faith harmony.

8.      Conclusion

The Religious Discrimination Bill 2019 is a solution looking for a problem. As the Report of the Expert Panel into Religious Freedom found, religious freedom is not in imminent peril in Australia. Any additional protection needed by believers of minority faiths can be provided by amending the Racial Discrimination Act (recommendation 15). Nothing more is needed. Nor should it be wanted by any Christian.

The Uniting Church in Australia believes that Christians should recognise and respect the human rights of all people. ‘Human beings are made in the image of God, and as such are precious, capable of marvellous things, and entitled to dignity, compassion and respect.’[6] In 2006 the Assembly of the Uniting Church in Australia passed Dignity in Humanity: A Uniting Church Statement on Human Rights.[7] This Statement encourages ‘all members, groups, congregations and agencies of the Uniting Church to model respect for human rights in their daily lives and to advocate for policies consistent with human rights standards and against violations of human rights in all forms, both within Australia and internationally’ (s. 22), and ‘all councils of the Uniting Church to model respect for human rights in their work and mission, including working towards an end to manifestations of greed, corruption, violence, persecution and exclusion’ (s. 23). With this as the official position of the Church, the President of the Assembly, Deidre Palmer, has said:

On our initial reading of the second draft of these Bills, we remain concerned that religious rights to discriminate will effectively be privileged over other rights. We do not want to discriminate against people, nor do we want to subject already vulnerable people such as LGBTIQ Australians to further pain in this conversation.[8]

I agree with the Church.

Rev. Dr Avril Hannah-Jones
24 January 2020.

[1] Submission to the Australian Human Rights Commission Religious Freedom Roundtable (Oct 2015), pp. 8-9.

[2] ‘Maya Forstater: Woman loses tribunal over transgender tweets’, 19 December 2019, https://www.bbc.com/news/uk-50858919

[3] https://unitingagewell.org/about-us/lgbti

[4] Submission to the Australian Human Rights Commission Religious Freedom Roundtable (Oct 2015) p. 13.

[5] Quoted in Submission to the Australian Human Rights Commission Religious Freedom Roundtable (Oct 2015) p. 13.

[6] Submission to the Australian Human Rights Commission Religious Freedom Roundtable (Oct 2015) p.

[7] https://www.unitingjustice.org.au/human-rights/uca-statements/item/484-dignity-in-humanity-a-uniting-church-statement-on-human-rights

[8] https://assembly.uca.org.au/news/item/3108-peace-and-good-will-required