Australia’s Religious Discrimination Bill: Hard cases make bad law

5th Nov 2020

In 2019, Commonwealth Attorney-General Christian Porter released a draft Religious Discrimination Bill aimed at eliminating discrimination against people on the grounds of their religious belief or activity within their public life.

The religious reform package includes the following three bills: Religious Discrimination Bill 2019, Religious Discrimination (Consequential Amendments) Bill 2019, and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.

Following the release of the draft Bill, Mr Porter reiterated that it aimed to be a shield against discrimination, rather than a sword, adding that: ‘The laws will protect people from being discriminated against but will not give them a licence to discriminate against other people, or engage in harassing or vilifying speech.’[1]

Triggering a range of responses on social media, the proposed changes to the law received a mixed reaction from the Australian public, and it’s evident that not everyone will be satisfied with the final version of the legislation.

Repercussions for the workplace

With much of the legal language centred around employment, the initial draft of the Religious Discrimination Bill sparked extensive discussion on the impact that it will have in the workplace.

For instance, businesses with a revenue of at least $50 million a year will need to provide proof that any restrictions imposed on employees based on their religious expression are necessary to prevent financial hardship to the business. This does not apply to government employees.

It would also mean that in a dispute such as the recent Israel Folau case, Rugby Australia would need to prove that their social media policy was necessary to protect their brand, and would need to justify their reasons for sacking Mr Folau, who was in breach of the policy.

Clause 42: Statements of belief do not constitute discrimination

At the core of the debate is clause 42 of the Religious Discrimination Bill. This clause arose from the Israel Folau case, although the scene had been set by the gay marriage debate. This clause protects statements of religious belief – for example, saying ‘gays will go to hell’ – which might otherwise fall foul of federal, state and territory anti-discrimination laws.

An unusual aspect of clause 42 is that it enables provocation rather than providing a defence. It allows a person to state offensive beliefs based on their religion about another person’s gender, age, race, disability or sexual orientation.

The protections given by clause 42 are only overridden if a statement of religious belief is malicious, likely to ‘harass, threaten, seriously intimidate or vilify’, or could reasonably lead to a ‘serious offence’.

Defining ‘religion’

One significant problem with any new legislation that will cause social change is that no one knows exactly how far it will extend until it’s tested in the courts.

There are several legal problems in this Bill, with further clarification needed on some items. For instance, what constitutes an honestly held religious belief? Does it include Satanists? Pagans? Witches? Atheism is said to be the absence of religion, but is the belief that there is no supernatural supreme being in itself a religion?

One particular matter that needs consideration is that the Bill contains no definition of ‘religion’. While other pieces of legislation addressing this subject do not define ‘religion’ either, the drafting of clause 42 will place this into sharper focus.

The drafters of the Bill do not seem to have heeded longstanding judicial authority underscoring the difficulty of defining what is meant by ‘religion’.

In the 1943 ‘Jehovah’s Witnesses Case’, High Court John Latham CJ said, ‘It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world.’[2]

Enabling discrimination?

Apart from causing offence (although it has been judicially said ‘there is no right not to be offended’), there are potentially serious impacts of allowing hostile comments or actions that are based on a religious belief.

Should a doctor or hospital, citing religious belief, be able to refuse to give medical treatment? Should a school be able to sack a teacher or expel a student if they are found to be gay?

One legal quandary will be identifying the line between vilification, which is still prohibited under the bill, and merely offending someone, however badly. Yet, the real problems may arise when someone is denied medical treatment or education by someone claiming the authority of genuine religious belief.

Opponents of the Bill argue that it will encourage discrimination and cause immense damage to people who are already the targets of bigotry and racism. All a person will need to say to justify their racist, homophobic, sexist or abusive comment is that it is part of their religion and they genuinely believe it.

The Law Council argues that the Bill provides a defence for potentially harmful and humiliating statements made in public, in the workplace or on the sports field. It also allows religious bodies to discriminate by preferencing fellow believers for work or access to facilities.

The Australian Christian Alliance has argued that five million Australians voted no to same-sex marriage as their religion held it to be sinful, and they should be able to declare what their scriptures say without retribution.

Making a general rule based on an extraordinary situation

There is a legal saying that ‘hard cases make bad law’, meaning that it is bad practice to make a rule of general application based on a highly unusual set of facts.

The Israel Folau case, the stimulus for the Religious Discrimination Bill, was based on an extraordinary set of facts: Folau was the most famous rugby player in Australia; the Pacific Islander community is generally very religious; his religion was an extreme, niche, Christian sect; and there were huge amounts of money at stake.

Had even one of these factors been absent, we might not be talking about clause 42 at all.

This is an edited version of an article first published at Stacks Law.

Emily Wittig is a lawyer at Stacks Collins Thompson in Hornsby with over two years’ post-admission experience. She has a particular focus on employment law, having spent over two years prior to her admission working in employment relations, in both federal and state jurisdictions. She previously worked as a Fair Work inspector for the Fair Work Ombudsman, and as an employment relations adviser for the Motor Traders Association of NSW. Emily volunteers as a solicitor at a community legal centre and enjoys helping people who have been taken for granted by their employer.

Geoff Baldwin is a lawyer in the employment law team at Stacks Champion. He has worked at senior management levels in the public and tertiary education sectors, as an independent consultant providing management advice, and in the legal profession. His experience includes industrial relations litigation, property and leasing, commercial and administrative law advice, and workplace law. Originally trained as a scientist before being admitted to legal practice in 1977, Geoff has appeared in a range of employment tribunals and has instructed in matters before the Supreme Court. He is an experienced investigator in fields such as workers compensation, corrupt conduct and misconduct.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Discrimination LGBTI