AP

Peter Barnes has shared his view from the bleachers about the Religious Discrimination Bill, with a series of criticism and concerns.

I am no apologist for the Bill. It would have been better to have seen a Religious Freedom Bill which protected religious belief and behaviour for individuals and organisations. Among other things, that may have avoided the apparent arrangement of exempting religious organisations from prohibitions on religious discrimination. As Peter comments, it would have been preferable to have a bill that gave clear protections to conscientious objections.

Nevertheless, the Bill deserves support. Using the “anti-discrimination” approach is consistent with the way rights are protected in Australian legislation. Currently Federal and State laws protect people from discrimination on the basis of race, age, gender, sexuality, relationship status, disability, political views and activities; and most States and Territories include religious belief as a protected attribute. This Bill adds protections to Federal law for people of any religion and those who do not have a religious faith. The Bill is not a special protection for Christians, or even for religious believers. It will give some protection to everyone in the community from unfair treatment on the basis of their religious views and practices.

Peter comments that the process implies that Freedom of Religion is granted by the parliament, but the Apostles’ statements in Acts show it is a God-given right. This confuses categories. God’s law, including rights, can and often should be expressed in positive law. The rights to life and property need to be expressed as laws about murder, manslaughter and theft. Just so, a God given right to freedom of religion can be protected by laws against religious discrimination. The introduction of legislation says nothing about the source of such rights.

Moreover, the Apostles were not claiming “religious liberty”. They insisted that they (and by extension all Christians) must obey God, whatever religious or civil authorities require (Acts 4:19; 5:29). They did not argue for a right of religious freedom, and they faced great costs for obedience (Acts 7:54-8:3; 12:1-4). There is a logic that leads from the duty to obey God to the recognition of freedom of religion, but it is far from direct.

As with other anti-discrimination legislation in Australia, the Bill allows people to make complaints to the Human Rights Commission if they have been discriminated either because of their religious belief or activity or because they do not hold a religious belief. Peter is concerned that this will require large legal costs. However, complaints to the Human Rights Commission have no cost and do not require legal representation. One of the concerns about legislation which counts offensive speech as discrimination is that it opens the door to complaints at no expense for the complaints, but that the defence is expensive. 

One effect of anti-discrimination legislation is that it ptompts organisations, including employers, to review policies and practices to check that they are not likely to lead to a complaint. So, this bill may produce some better recognition of religious freedom without individuals mounting complaints. The complaint and conciliation system is far from ideal, but it not necessarily costly nor ineffective.

The Bill offers real, if limited, protections for employees. This is important, since religious believers do confront some difficult situations in the contemporary workplace. Earlier versions of the Bill had a clause which gave some extra protection to employees of large organisations who might be limited by their employer from expressing religious views outside of work. The employer would have had to show that a limitation was necessary to avoid “unjustifiable financial hardship”. This was the so-called ‘Israel Folau clause’, although it is unlikely that it would, in fact, have been relevant in a case like his. That clause is not in this version of the Bill. However, it still makes it unlawful for employers to discriminate against employees on the basis of their religious activities. If, for example, an employer who had no stake in religious views directed employees not to comment on religious issues on social media or not to be part of public outreach, an employee could complain about such restrictions on statements of belief. There is also protection given against imposition of an apparently “neutral” policy (for example, all employees must never comment on “social issues” such as abortion or euthanasia.) This protection is provided through a claim for “indirect discrimination”, where such a rule would have an undue impact on religious employees. The employee would have the opportunity to argue that these restrictions were unreasonable.

This Bill does offer protections for schools and other religious bodies to operate according to their ethos and to appoint staff who will support that. If the current exemptions in the Sex Discrimination Act are maintained, then this legislation should allow Christian schools (and other religious schools) to continue to operate as they do at present. Peter suggesting that the protections may be “illusory” ignores the fact that schools are currently operating under similar provisions in state legislation and the Sex Discrimination Act.

That brings us to the question of whether this legislation will override State legislation. This is a pressing issue because the Victorian government has brought in legislation which will limit the right of religious educational bodies to prefer staff who support the doctrine and ethos of the school. The Bill has an interesting mechanism to deal with such a situation. It allows the Attorney-General to override future State or Territory legislation inconsistent with protections for religious educational institutions. When the Attorney-General makes an overriding order, this can be stopped by a majority vote in the Senate. Yet, the Bill will have provisions to explicitly over-ride the recent Victorian legislation which will not be open to a Senate veto.

How well the Bill provides long term protection from the removal of rights from Christian schools will depend on the political process and will probably also be determined in the courts. More generally, however, Federal legislation will over-ride State legislation, although, again,  the outcome of that will depend on how details of legislation are interpreted by the courts.

Finally, Peter is concerned about the appointment of a Religious Discrimination Commissioner. It is worth remembering that with or without a Religious Discrimination Commissioner, complaints will be dealt with by the Human Rights Commission. The specific Commissioner has not special powers in dealing with complaints. Their presence may give some greater sensitivity to issues of religious belief and behaviour in a context which tends to be ‘secular’. I don’t think any religious leader who supports the Bill thinks that this is key to the protections of the Bill.

The Religious Discrimination Bill is not all it could be. There remain areas in which it could be improved. It does not promise full freedom of religion. It will not protect religious believers and organisations from some rough water in coming years. Yet, Australia will be better off with the Bill in legislation than without it.

– John McClean