Religious discrimination: Labor wants time to consult, ACL welcomes bill but wants Folau clause back

Labor want to slow things down, while the Australian Christian lobby declared its gratitude to Prime Minister Scott Morrison after he introduced the Religious Discrimination Bill in the House of Representatives today. The PM’s speech was reported by Eternity here .

“Labor understands that the Prime Minister would like to bring the bill on for debate in the House of Representatives this year – within days of the bill being introduced,” Labor’s Shadow Attorney-General Mark Dreyfus pointed out.

“Such an approach would effectively require Members of the House of Representatives to vote on this complex and important legislation before they have had an opportunity to consider the bill carefully or consult with their constituents, and before the bill has been reviewed by a parliamentary committee.”

Labor wants the three bills religious discrimination bills to go to a joint select committee of both houses of the parliament rather than the Morrison plan of passing it in the reps and then having a Senate committee review it in the new year. In the meantime the ALP plans to consult with religious bodies, LGBTIQ groups and legal and community groups. Labor has not set out a timetable, but may want it referred to a committee long enough that no decision has to be made before the election. The Morrison Government wants it considered by both houses of parliament before the poll.

We will advocate for the return of the ‘Folau’ clause, the purpose of which was to provide important and reasonable protections for religious individuals

“People of faith around our nation are grateful to the Prime Minister today for his leadership on behalf of the millions of religious Australians. Despite this latest version of the Religious Discrimination Bill being a significantly reduced document, it is a welcome first step and we commend the bill to all members for their suppor,” says Wendy Francis the National Director for Politics of the Australian Christian Lobby (ACL).

“This bill has been a work in progress since the last election, and ACL will continue to make the case for the statements of belief protection in the upcoming Senate Committee process. In particular we will advocate for the return of the ‘Folau’ clause, the purpose of which was to provide important and reasonable protections for religious individuals against over-reach by employers.”

The ACL has been meeting with Labor, hoping for a bi-partisan result. “We remain encouraged by meetings with senior ALP members who have affirmed their support for religious freedom, backed by their public platform recognising ‘the right of religious organisations to act in accordance with the doctrines, tenets, beliefs or teachings of their faith.”

Law and Religion Australia’s Neil Foster has a detailed analysis of the bills. He points out the Religious Discrimination Bill plugs a serious gap in the law and that “a matter of simple fairness we should have a general law on the topic, and the best thing would be to have a clear law that applies across the country.”

Foster explains why a religious discrimination law has to set out where religious bodies can discriminate.

“Every law forbidding unjust discrimination needs to deal with the fact that sometimes making distinctions is useful and right, where those distinctions are made on relevant grounds. Race discrimination law, for example, allows people of a specific race to be engaged as actors to play someone of that race. The same is true of religious discrimination laws, which need to be designed to account for the fact that, while religion is usually irrelevant in employing people in secular occupations, from baristas to barristers, sometimes religious conviction is relevant if the organisation concerned is a religious organisation.”

Staffing – of schools in particular – is the area where this sort of provision is most controversial. Foster points out that just as a political party can employ its supporters, or an environmental group greenies, a religious school will be given the right to preference hitring from a faith group. But “if faith-based schools are making employment decisions on this basis, they must do so in accordance with a ‘publicly available policy’. This means that those approaching schools for employment will be able to determine beforehand whether the school has a policy of preference for fellow believers, and so presumably avoid the embarrassment of being turned down on that basis if they don’t meet the requirement.”

There is a provision to override the bill before the Victorian parliament that would restrict the ability of religious schools to favour their faith group in hiring.

Foster makes a case that there has been an exxaherated reaction to the “free speech” provisions of the bill that protect Statements of Faith. “Section 12 of the RDB then provides that statements of religious belief do not amount to discrimination under the laws governing that topic around the country. This has been attacked in the press, but in itself it is not really clear that this provision changes very much- it is really very rare that mere speech alone would amount to “discrimination” under most laws. There is a separate type of unlawful behaviour involving speech which is prohibited in some, but not all, Australian discrimination laws, often under the label of “vilification”. But the two concepts are different, and s 12 does not explicitly over-ride “vilification” provisions, except in one significant case. The case is the extreme prohibition on speech that causes “offence” under s 17(1) of the Anti-Discrimination Act 4 1998 (Tas.) That law amounts to a severe limit on free speech which goes well beyond most other Australian laws on the topic, and was the basis of an action against a Roman Catholic archbishop for a document circulated to Roman Catholic schools describing the Roman Catholic view of marriage. Under s 12(1)(b) it will be explicitly over-ridden by the Bill. (See here for a paper covering “religious free speech” issues and noting the problems with the Tasmanian law.)”

This overriding of state laws – which in practical terms is about where to set the bar on anti discrimination law regarding speech, at offense (as in Tasmania) or vilification (as in the Religious Discrimination Bill) will be one of the aspects of the bill likely to be opposed. While the question of discrimination against gay students is not tackled by the bill, and the argument will be that it should be, the employment of teachers and other staff by religious bodies will also be the focus of contention.