Faith no more

Faith no more Religious Freedom Bills give churches the freedom to discriminate

On 10 December 2019, the Attorney-General’s Department published a second exposure draft of the contentious Religious Freedom Bills. Originally released in September 2019, the first exposure draft was a package of three draft Bills, which the Government described collectively as the ‘Religious Freedom Bills’– the Religious Discrimination Bill 2019 (Cth), the Religious Discrimination (Consequential Amendments) Bill 2019 (Cth) and the Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 (Cth).

Dr Terri MacDonald, NTEU

From bad to worse Although the Government claimed that the Bills were a necessary defence of any potential threats to religious belief and practice, the first exposure drafts generated considerable criticism and disapproval, from both supporters and critics of the proposal to legislate religious freedom. After going back to the drawing board, the Government’s second exposure drafts were supposed to address the various criticisms which highlighted the flaws in the legislation. In reality, the second drafts either ignored or even exacerbated the many problems with the Bills, making it clear that the intended purpose was not to protect religious freedom, but to legislatively enshrine the right of religious individuals and institutions to discriminate on the basis of religious belief.

Affect on LGBTQI+ communities NTEU’s submissions to the various drafts of the legislation heavily criticised their impact on employment law and other forms of anti-discrimination laws (particularly in relation to LGBTQI+ communities and women). We also outlined our concerns that the scope of the proposed legislation was excessively broad, particularly in the extension of rights of religious freedoms beyond that of natural persons to corporations and other entities, and that the Bill’s allowance for the refusal of public services based on religious beliefs, including medical services, had human rights implications. In terms of higher education, our submissions also examined the implications of the proposed legislation on academic freedom. One particular issue of concern is the proposed right of ‘statement of belief’, which effectively allows an individual to make statements or comments that can insult, offend, ridicule, discriminate or even intimidate, for any reason, provided that there is a ‘religious motivation’ to do so. The benchmark to qualify as a ‘religious’ statement of belief only requires the individual to find one other person in their religion who agrees with their statement, and would over-ride all existing state, territory and federal anti-discrimination laws, including the various Acts that prohibit discrimination based on sex, race and age. Thus, in practice, this provision would allow an employer to state that they do not believe women are suited to positions of leadership, or would allow a doctor to tell a patient with a disability that their disability is a form of punishment by God, or allow a teacher to tell a young student who is dealing with their sexual identity that they are sinful and must repent. Extreme discrimination While this ‘statement of belief’ is of concern, when taken in tandem with other provisions, the true nature of extreme discrimination that these Bills would allow becomes evident. This is because the provisions that allow religious affiliated organisations, including commercial entities and charities, to discriminate against workers and individuals on the grounds of religious belief and practice doesn’t just go to who an organisation chooses to employ or terminate (which is in itself constitutes grounds to reject the Bills), but also to conditions such as promotions and career advancement, training opportunities and even wage increases. This arises both from the proposed legislation permitting employers to ‘give preference’ to workers based on religious grounds, which, combined with the ‘statement of belief’ could be used to discriminate, punish and intimidate workers who are not ‘given preference’, including those who would seek to exercise their industrial rights. Importantly, the legislation’s broad terms don’t define the nature of such ‘preferences’ and as such can cover any number of situations. Thus, to give examples, an employer may choose to privilege a male employee over a female co-worker by giving the male employee a promotion, on the basis of a ‘religious belief’ that men are intellectually superior, and give that explanation as a ‘statement of belief’. In another example, an employer could tell a LGBTQI+ worker that they will not be given a pay rise until they ‘repent’ for their sexual orientation.

Undermining academic freedom Another issue with the legislation is that it could allow a religious body to lodge an allegation of discrimination, against either an individual or another body, on the basis of religious belief or activity. Not only is this contrary to current anti-discrimination laws that are intended to

protect vulnerable communities, groups and individuals from discrimination, but it may also result in complaints made in a vexatious manner. Specifically, in the case of universities, such allegations could be used to undermine academic freedom and to target the work of individual researchers and academics (e.g. those working around medical advances in human reproduction and controls, or in sexual health, or in gender identity). Perversely, other discrimination provisions in the Bills may remove the right of some professional accrediting bodies to refuse professional recognition of teaching institutions that choose, on religious grounds, to not teach established and important components of courses (e.g. termination of pregnancy). This would include the health professions such as medicine, nursing, psychiatry and psychology, for which the accrediting bodies perform an important role in ensuring the quality and integrity of the Australian health system.

Fundamental flaws There are other numerous problems with the Bills, but all go to the same, fundamental flaw. While the Government claims that the Bills are intended to address gaps in protections against religious discrimination, the NTEU contends that they will instead have the exact opposite effect, by allowing more extreme and divisive acts of discrimination to be perpetuated, without recourse for the victims of discrimination.

Overall, the legislation – in both the original and revised forms – will worsen people’s right to equality, and health care, and promote greater discrimination, not only with vulnerable groups, but with other religious groups. These Bills must be rejected, in their entirety. ◆