New draft of Religious Discrimination Bill plugs holes

A definition of “vilify” is one of the key changes to the draft Religious Discrimination Bill announced by the federal Attorney-General Christian Porter. In the second exposure draft of the bill, the term “vilify” has now been defined to mean “incite hatred or violence”.

In common with many of the changes, this enhances the protection of religious activity in the bill.

In another key change, the bill will place all human rights on an equal footing. The objects clause in the bill “now expressly makes clear that all human rights have equal status under international law, consistent with the recommendation of the Religious Freedom Review,” according to the government’s summary of the changes.

The government has also stated that “equivalent provisions will be inserted into other Commonwealth anti-discrimination laws.”

Another key change sought by groups such as the legal think tank Freedom for Faith will change the test a court applies in determining whether somebody is acting in accordance with their faith.

Previously the bill provided that “some types of conduct were not discrimination if a person could reasonably consider it to be in accordance with the doctrines, tenets, beliefs and teachings of the relevant religion.”

There’s been a subtle but important change in that “the bill now makes clear that a court will now need to consider whether a person of the same religion as the religious body or person could reasonably consider the act to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.”

This new test takes the court out of deciding what those tenets or doctrines of a religion are.

A change to the employment provisions  – sought by Christian schools in particular – will give religious bodies the right to prefer to hire staff from their own faith. The first draft attempted to give schools and other religious bodies a right to hire staff according to their doctrinal basis, but it was drafted as  a blunt instrument that gave them the right to hire all their staff from a faith group. The new provision enables them to hire a proportion (which could range from all to only some).

There are a couple of changes that bear on a Folau-type situation. Occasions such meal breaks will now be included in times when religious expression may be controlled by an employer, which avoids a conflict with occupational health and safety and workers’ compensation law. This is done via a technical amendment that changes the definition of when an employer cannot restrict religious expression to “other than in the course of the employee’s employment”.

Another new clause says, “Qualifying bodies will not be able to impose rules (such as social media codes of conduct) that restrict people from making statements of belief in their personal capacity, unless they are an essential requirement of the relevant profession, trade or occupation.” Qualifying body means an organisation that gives someone the right to carry on a trade or a profession, such as a medical college.

The right of religious bodies to take faith into consideration when hiring has been expanded to include religious hospitals, aged care facilities and accommodation providers. Christian campsites are included in bodies that can take faith into account when deciding who to hire their facilities to.

Religious charities that primarily engage in commercial activities were not granted protection in the previous draft. The new version grants them protection:

“•  Religious charities that are registered as public benevolent institutions are ‘religious bodies’, regardless of their involvement in commercial activities.

“•  Other types of religious charities will also be religious bodies, unless they are solely or primarily engaged in commercial activities.”

The larger changes sought by progressives, such as changing to a bill of rights rather that a religious discrimination bill, have not been accepted. However, the health practitioner conscientious objection provisions have been narrowed to apply to to medicine, midwifery, nursing, pharmacy and psychology.

Here is Freedom For faith’s take on the bill:

Our phone lines have been running hot today, with many people wanting to get their head around the redrafted Religious Discrimination Bill. Churches and other faith groups will quite properly want to carefully study the bill before giving their response.

In the meantime, and to help that consideration, Dr Alex Deagon, Senior Lecturer in the Faculty of Law at the Queensland University of Technology has given Freedom for Faith his preliminary response. Alex is an expert in religious freedom law and has spoken at previous FFF events.

This is what he had to say: I welcome the second exposure draft and the clear effort by the Government to take into account the diverse responses to the first exposure draft. In particular, I commend the Government for listening to the concerns of religious stakeholders. Many of the concerns raised have been addressed, but some issues still remain. I will set these out below.

Positive Changes Section 11 (formerly Section 10) now extends to religious bodies including ‘public benevolent institutions’ (i.e. charities). Hence these charities can engage in staffing and other decisions to uphold a religious ethos, regardless of commercial activities. Other religious charities will also be religious bodies under the section, unless they are solely or primarily engaged in commercial activities. This will be measured by an activities test rather than an income test, so that even if a religious charity funds themselves primarily through commercial income, if the activity which produces that income is less than their charitable non-income activities, they are still entitled to the protection.

Section 11 now clearly allows religious bodies to give preference to persons that share their religion in staffing decisions. This was not clear under the first draft and gives flexibility to religious bodies who need it. The Bill now states (e.g. Section 11) that conduct which is designed to avoid injury to the religious susceptibilities of adherents of that faith is not discrimination. This accords with other legislation such as the exemptions in the Sex Discrimination Act, and decreases the chances that judges will impose their own views about whether conduct is discrimination – now they will need to have reference to the adherents of that faith.

Section 32 of the Bill now allows religious hospitals and aged care facilities to make staffing decisions to uphold their religious ethos. Though they cannot discriminate on the basis of religion in the provision of services, it is not discrimination if they make a decision to hire a faith adherent.

Section 33 of the Bill now allows religious camps and conference sites to make hiring decisions that reflect their religious ethos and history. Decisions not to hire out accommodation or facilities for religious reasons will not be discrimination. This is an important change which will prevent a Cobaw-type case from occurring again.

Section 32 of the Bill ensures that qualifying bodies will not be able to impose rules (such as social media codes of conduct) that restrict people from making statements of belief in their personal capacity, unless they are inherent or essential requirements of the occupation. This means people can freely express their religion on social media without the fear that a governing body could treat them detrimentally.

The definition of ‘vilify’ has now been defined to mean ‘incite hatred or violence’. This is an important change which clearly sets a high bar for discriminatory religious expression.

Objects clauses will now expressly state that all human rights have equal status at international law. This emphasises that there is no hierarchy of human rights and that, in the event of conflict, religious freedom should not necessarily give way to equality considerations.

The Bill clarifies (e.g. Section 11) that a court will now need to consider whether a person of the same religion could reasonably consider conduct to be in accordance with the doctrine of a religion in considering whether that conduct is discriminatory. This emphasises that it is not for the court to decide what religious doctrine requires or allows in terms of religious conduct, but rather it is for the religion and its adherents to determine. This change protects the autonomy of religious bodies from undue interference by the state.

Remaining Issues In Section 8 the Bill slightly narrows the conscientious objection provisions, stating that it only applies to professional health practitioners in medicine, midwifery, nursing, pharmacy and psychology, and that it only applies to refusal to provide particular procedures (such as abortion or euthanasia), and does not extend to refusal to provide health services to particular groups of people. This does not address deferral to weak state conscientious objection provisions, that conscience should only be imposed upon in exceptional circumstances, or allow conscientious objection from religious healthcare institutions. These should be addressed.

The second exposure draft has not altered the ‘Folau provision’. It still subjects the fundamental human right of religious expression to the whims of corporate and financial interests through the ‘unjustifiable financial hardship’ exception. It also has the effect of encouraging interested parties to apply financial pressure on relevant employers to impose on the rights of employees (e.g. QANTAS threatening to remove sponsorship if Rugby Australia did not fire Israel Folau). The exception should be removed.

Religious activity is still defined as ‘lawful’ religious activity. This is problematic because it could exclude protection for any religious activity any level of government declares to be unlawful (e.g. a local council by-law which prevents evangelism in a public space). A better limiting term would be ‘criminal’ religious activity. Though there is a wider scope for protecting religious bodies which engage in commercial activities, the fundamental point remains that a religious body engaging in commercial activities is no less a religious body deserving of protection. This applies not only to charities, hospitals and aged care facilities, but also to religious vendors which genuinely conduct themselves as ‘religious bodies’.

So overall, the second exposure draft is a significant improvement, but some issues still remain.