It’s a classic anti-discrimination bill
This bill follows the “architecture” of Australia’s other anti-discrimination acts.
1. It defines an “attribute” to protect “religious belief or activity.”
2. The bill defines discrimination that will be illegal. It includes direct discrimination – for example, refusing to serve Sikh people in a shop. It also includes indirect discrimination – for example, banning people wearing turbans from entering a building, which effectively would keep Sikhs out.
3. It defines “protected areas”: Education, employment and goods and services. In each of these areas, it will be illegal to discriminate on the basis of religion.
4. Exemptions: Religious institutions will be allowed to discriminate – for example, in deciding who they employ (see below).
Religious teaching is NOT discrimination
“A statement of belief does not … constitute discrimination for the purposes of any anti-discrimination law.” (Part 4 of the bill)
However, there a couple of important limitations. This protection does not apply to statements that are “malicious” or which “harass, vilify or incite hatred or violence against another person or group of persons.”
A religious body can act in accordance with its faith
“A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted.” (Clause 10)
Balancing religious discrimination and religious freedom
Taking access to buildings as an example, the bill bans a person discriminating on the ground of another “person’s religious belief or activity” … “by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use.” (Clause 19)
But religious institutions can still control who enters their premises, acting in accordance with the tenets of their faith – so a monastery can remain a monastery, for example.
The bill has the twin aims of protecting religious people against discrimination, while at the same time allowing religious institutions the freedom to maintain their identity. It is necessarily a delicate balancing act. As Professor Nicholas Aroney, Professor of Constitutional Law at The University of Queensland, pointed out at Freedom19 (the Freedom For Faith conference earlier this month), “Clause 10 is essential to the balance the bill strikes between religious freedom and religious discrimination.”
The Tasmanian override
Archbishop Julian Porteous was hauled before the Tasmanian Anti-Discrimination Commissioner for distributing a flyer to Catholic school families on traditional marriage. This bill would raise the bar for complaints above the low threshold of “offend” that the Tasmanian anti-discrimination legislation provides.
Israel Folau clause
The most disputed section in the bill concerns whether employers can control religious speech outside of work. Large employers (with more than $50 million in turnover) can justify restrictions to religious activity – such as a code of conduct banning social media comments – if they can show that it would involve unjustifiable financial hardship to the employer.
It is not clear whether religious activity outside of work by employees of smaller companies is protected.
Teachers and others
One of the surprises in this bill is that it tackles issues such as schools employing teachers and others, and student enrolment, which many had thought would be left to a delayed review by the Australian Law Reform Commission.
Schools fall within the bill’s definition of religious body and so are covered by clause 10, which protects “conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted.”
A school that nearly always or always employs Christian teachers would most likely find it easy to draw a link between the doctrines or tenets of their faith and that policy. It will be harder for schools draw a link with doctrine and tenets of their faith if they aim for, say, half their teachers to be Christians, or employ Christian only where possible and much less than 100 per cent.
The same may apply to enrolment policies.
It is unclear exactly what “vilify” means in this bill. Several Christian lawyers have called for a definition to be inserted in the bill. Where the bill talks of statements that “harass, vilify or incite hatred or violence” not being protected, the principles of legal interpretation would suggest that “harass”, “vilify” and “incite” have seperate meanings.
Medical conscientious objections
The bill has provisions designed to ensure health practitioners do not have to participate in an abortion or euthanasia. However, at present these do not override state laws, which in some states mandate that doctors with a conscientious objection to abortion have to refer patients to a doctor willing to carry out a termination. Michael Quinlan, dean of the school of law at the University of Notre Dame, Sydney, has called for this law to be strengthened.