PIAC has serious concerns about the Exposure Draft Religious Discrimination Bill released by Attorney-General Christian Porter late last month.
While PIAC has long advocated for protecting people from discrimination on the grounds of religious belief, this Bill goes much further, undermining other existing human rights protections.
For example, section 41 provides that ‘statements of belief’ expressing religious views are effectively exempt from all other Commonwealth, state and territory anti-discrimination laws, including the Fair Work Act. While the section only applies to statements that made in good faith, not malicious, and not likely to harass, vilify or incite hatred or violence, it will protect people making statements that are offensive, humiliating, insulting or ridiculing that impact on the rights of others.
This intervention by the Commonwealth is significant, and arguably radical, in two ways. First, in overriding state and territory laws, it departs from Australia’s traditional anti-discrimination framework, which has relied on Commonwealth, and State/Territory, laws working alongside each other.
Second, it introduces an imbalance into anti-discrimination law, privileging the rights of people of faith above the rights of others, including women, LGBTI people, single parents, people in de facto relationship and divorced people, to live their lives free from discrimination.
PIAC is also concerned about section 8, which contains several unnecessary provisions that substantially alter the usual ‘reasonableness’ test for indirect discrimination.
This includes sections 8(3) and 8(4) which would make it much more difficult for large organisations to require employees to abide by codes of conduct outside of work hours. And it includes sections 8(5) and 8(6), which would make it much easier for health practitioners to discriminate in the provision of health care services on the basis of their personal beliefs.
PIAC is unconvinced the case has been made for these unusual and unprecedented provisions. It is unclear why the established test for ‘reasonableness’, which requires all of the circumstances of the case to be balanced, should not apply – in the same way it does under other Commonwealth anti-discrimination laws.
The provisions also introduce an additional degree of complexity into the law, making it harder for people to know what their rights are, and for organisations wanting to make sure they comply with the law.
PIAC also has reservations about the drafting of section 10, which allows religious bodies to discriminate against people of other faiths.
The test – ‘conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion’ – appears to be easier to satisfy than equivalent tests in other anti-discrimination laws (such as s 37(1)(d) of the Sex Discrimination Act: ‘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’). This needs further consideration to avoid unintended consequences.
Section 10 is also drafted so broadly it would allow religious schools to expel students who question their faith. This departs from the approach to this issue in anti-discrimination laws in Queensland, Tasmania, the ACT and Northern Territory, which only allow discrimination on the grounds of religion when students are admitted to the school.
PIAC will be raising these concerns through the current consultation process being undertaken by Attorney-General Porter, as well as conveying them directly to representatives from across the political spectrum.
We will be calling for the removal of those provisions that go further than what is necessary to provide protection against discrimination on the grounds of religious belief. This will avoid undermining the rights of others and help to ensure the balance is maintained in our system of human rights protection.
The Exposure Draft Religious Discrimination Bill can be found on the Attorney-General’s Department website. Submissions are due 2 October 2019.