- by Anna Pha
- The Guardian
- Issue #1990
It has taken three years and two previously aborted bills for the latest incarnation of the Coalition’s highly controversial Religious Discrimination Bill to appear in the second to last Parliament sitting week of the year. In the process the bill’s original name has been changed from Religious Freedom Bill to Religious Discrimination Bill. The divisions within the Coalition and opposition from some crossbenchers that played a role in the previous ditching of the bill remain unresolved.
The bill was largely written by and for religious lobby groups. It gives religious-based organisations the freedom to discriminate against anyone who in their eyes does not conform to their outlook on life. This is regardless of whether the difference in outlook is of any relevance to their role.
Catholic-educated Attorney General Michaelia Cash has carriage of the bill, although evangelical Prime Minister Scott Morrison took it upon himself to introduce it to the House of Representatives.
The bill claims to make it unlawful to discriminate against a person on the ground of religious belief or activity in a range of areas of public life, including work, education, access to premises and the provision of goods, services, and accommodation. But its provisions read more like a bill to legalise discrimination on the basis of religious belief or activity in public life.
Equality Australia, an organisation supporting LGTQI+ people, points out that “the Bill that has been drafted threatens to undermine inclusive workplaces, schools and access to services like healthcare without judgement. Laws which should protect religious people from discrimination will be used to hand a licence to discriminate against LGBTIQ+ people, women, people with disability, and others.”
The thinking behind the bill is no different to that of former Attorney-General George Brandis who pronounced in Parliament that people have “a right to be bigots” when the Abbott government attempted to repeal section 18C of the Racial Discrimination Act. Section 18C makes it unlawful for someone to “publicly offend, insult, humiliate or intimidate” someone because of their race. In this instance it is because of a host of additional attributes.
“The proposed legislation will override existing discrimination protections by allowing religious hospitals, aged care facilities and accommodation providers to discriminate on the basis of race, gender, sexuality or disability, if it is based on genuine religious belief,” Andrew Christopoulos, Australian Lawyers’ Alliance National President said.
“The Bill effectively legislates bigotry, by enabling religious belief to be used as a cloak for sexism, racism, homophobia and other prejudices,” said Christopoulos. If the bill becomes law, it will override existing protections for people who rely on other discrimination laws to protect them from offensive, insulting, or intimidating conduct.
The bill legalises a “statement of a religious belief” held by someone if it is held “in good faith.” Such statements will be “protected speech”, and will not be deemed discrimination if they do not vilify or bully someone or incite criminal activity. So, telling a woman she must submit to her husband or telling a person with disability that their disability is a punishment from god would be acceptable as long as that belief was held “in good faith.”
If someone believes the bible’s description of homosexuality to be “an abomination” (Leviticus 20:13) it would not be considered discrimination to publicly describe a gay person in such terms. Nor would it be to publicly label a school student born out of holy matrimony as “illegitimate” – a label that appeared on birth certificates in Australia until 1976. “Bastard” was the term used in earlier times.
The influence of the church in modern Australia and other similar Christian-influenced nations has been significantly weakened in terms of socially accepted norms. Fundamentalist, Pentecostal Morrison’s Religious Discrimination Bill attempts to turn back the clock.
FREEDOM TO DISCRIMINATE
Despite Cash’s strong reassures that the government’s position is that no child should be suspended or expelled on the basis of their sexuality or gender identity, the bill does nothing to prevent this.
The bill states: “[…] a religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body.” To enable them to discriminate, they must publicly publish a policy stating their religious position. So all a school, nursing home, charity, or other church-based institution has to do is publicly declare the categories of people they discriminate against.
Morrison says: “The bill protects the fundamental right for religious schools to hire religious staff to maintain their religious ethos, in accordance with a publicly available policy.”
“This protection will be able to override state or territory laws which seek to interfere with that right” (Emphasis added). In other words, the bill overrides other laws that “interfere” with the right to discriminate on the basis of religious beliefs or what Morrison describes as “protected attributes.”
The Prime Minister also misleadingly claims that “nothing in this bill allows for any form of discrimination against a student on the basis of their sexuality or gender identity. You won’t find it, anything of that nature in this bill. Such discrimination has no place in our education system.”
True, there is nothing of that nature in the bill. After all it is already legal in most states to expel or suspend students on the basis of their sexuality or gender identity. The bill does not override that. It fails to make it illegal. Teachers can already be sacked for being gay, divorced, or belonging to a different religion or being an atheist.
STATE LEGISLATION OVERRIDDEN
The bill deliberately sets out to override state anti-discrimination legislation.
In Tasmania, under the Anti-Discrimination Act, it is illegal to discriminate on the basis of a number of characteristics, referred to as “attributes” in Morrison’s legislation. These attributes include race, disability, gender, gender identity, sexual orientation, relationship status, marital status, and religious belief or affiliation.
The Tasmanian legislation applies in such areas as employment, education, accommodation, and industrial agreements and awards.
The Religious Discrimination Bill seeks to override Tasmania’s legislation and make it legal for church institutions to discriminate on any of these criteria and others as long as it is a “statement of belief” made “in good faith.”
There is also a supplementary bill which specifically mentions legislation currently before the Victorian Parliament. The Andrews government’s bill seeks to prevent schools discriminating against students based on personal attributes. In relation to employment, schools would only be able to discriminate where “religious belief is an inherent requirement of the job.”
That means they would not be able to sack a cleaner, gardener, maths teacher, or chemistry teacher because they are gay, divorced, living in a de facto relationship, have a disability, etc.
“This will bring Victorian law into step with 21st century community expectations and the practices of many faith-based organisations that have diverse workforces and seek to treat people with dignity and respect,” chief executive of Equality Australia, Anna Brown, said.
“Overriding hard-fought protections in Victoria and other states would be an extraordinary act of overreach by the Morrison government.”
Women for centuries have been subjected to oppressive relationships based on religious beliefs backed by legislation based on those beliefs. Women were, and in some religious groups and societies, are still expected to submit to and obey their husbands.
The bill licences religious-based organisations to discriminate against unmarried mothers, divorced women, lesbians, and other women not conforming to a particular religious outlook. There is nothing in the bill to counter such discrimination.
What was known as the “Folau” clause has been watered down in this the third version of the bill, but not completely removed. The “Folau” clause prevented employers sanctioning workers for religious speech such as that used by Folau, who described god’s plan for homosexuals as “hell” unless they repented their sins and turned to God, attributing Corinthians 6.9-10.
The replacement clause protects a person who makes offensive, insulting, or hurtful comments provided they are based on a genuinely held religious belief and are made outside the work context.
The bill also weakens a provision in the second draft that did not permit conduct that is unlawful under the Sex Discrimination Act. It now states that conduct “may” still be discriminatory under the Sex Discrimination Act. This opens the door to all sorts of discriminatory practices and possible legal challenges when for example a pregnant, unmarried teacher is sacked, or student expelled for being gay. Such practices carried out in the name of religion can do untold harm to those affected.
POWER OF CHURCH
The various Christian, Jewish, and Muslim lobby groups exert incredible political influence over governments, not only through their political donations but in influencing voters in their areas of influence.
Their institutions have amassed enormous wealth thanks to generous government handouts and tax exemptions: they are treated as not-for-profit and so do not pay income tax or land tax on their considerable real estate assets.
Their lobbying for the right to discriminate is part of an ongoing struggle between the state and church over whose law is primary. This came to the fore during the Royal Commission Institutional Responses into Child Sexual Abuse. The Catholic Church still treats the “sacred seal of the confessional” – based on medieval Canon law – as above state law.
On the eve of a federal election both major parties are wary of offending religious lobby groups. At present Labor is sitting on the fence. It opposed the previous two versions of the bill.