My Daily Advertiser column for 10 September 2019

by ray goodlass

Religious discrimination bill a ‘Trojan Horse for hate’.

Attorney General Christian Porter is now undertaking consultations on his new religious discrimination bill, after releasing a draft that outlined the provisions he says are designed “to protect people of faith” from “unfair” treatment.

Superficially perhaps fair enough, but there would have been a lot less concern if he had undertaken consultation before drafting the bill, for it has unleashed a storm of quite legitimate concern.

Religious groups though have been broadly if not unanimously supportive of the legislation.

Michael Kellahan of Christian legal thinktank Freedom for Faith said “It shouldn’t be contentious that we agree that there is such a thing as a need for protection of religious freedom.”

He also pointed out the possibility of discrimination being experienced by people of the Jewish and Muslim communities. Given the increasing outbreaks of Islamophobia and antisemitism that’s an important point.

The draft includes explicit protections for people to express their religious beliefs in a private capacity unless an employer can prove it is a “reasonable” limitation, in a move aimed at addressing the circumstances that saw high-profile rugby player Israel Folau sacked earlier this year.

The draft bill includes clauses relating to indirect discrimination, which is where “an apparently neutral condition has the effect of disadvantaging people of a particular religious belief or who engage in a particular religious activity”.

Porter said this would provide an “extra protection” for an employee faced with the same circumstances as Folau’s.

Protected religious activity is not defined in the bill but the explanatory note states that “expression of a religious belief” may be included.

Porter claimed the bill was “not intended to displace state law”, responding to concerns from LGBTIQ advocates warning It could undermine state protections against vilification.

Despite these assurances the bill explicitly overrides Tasmania’s Anti-Discrimination Act, which prohibits statements which “offend, insult or humiliate” based on protected grounds including gender, race, age, sexual orientation, disability and relationship status.

Provided a person is expressing a genuinely held religious belief in good faith, that Tasmanian provision will not apply, thus breaching Porter’s commitment, apparently  in a bid to pacify Coalition conservatives who demanded the law prevent a repeat of a case in which the Catholic archbishop of Hobart was sued over anti same-sex marriage leaflets.

Not surprisingly then LBTQI advocates, for example, have justifiably condemned the government’s proposed bill, saying the “radical” new laws would give people of religion superior rights that would allow them to discriminate.

The Greens have also criticised the government’s proposed bill, warning that it could be a “Trojan horse for hate”.

“The far-right of Morrison’s party are still trying to get their way, chipping away at the rights of LGBTIQ+ people and other minorities,” Greens senator Janet Rice said. “Any bill that comes to the parliament must ensure all Australians are treated equally”.

Equality Tasmania spokesman Rodney Croome said that Canberra was “directly interfering to weaken a Tasmanian human rights law that protects vulnerable people”.

“We call on Mr Porter to stick to the promise he made not to interfere with state law, and remove this section.”

However, religious beliefs will not be protected if their expression is malicious, would harass, vilify or incite hatred against a group or advocate for the commission of a serious criminal offence.

Crikey.com’s headline, aptly worded as “Flaw and order: the religious freedom bill is a godawful mess” pointed to an even broader concern about the bill, which is that it “draws the state further into the surveillance and shaping of everyday life, which ordinarily would terrify small-government conservatives. Not so this time, apparently”, as Guy Rundle noted.

We are definitely living in strange times when a party formed on a liberal world view becomes the agent of an overbearing state that is hell bent on interfering with individual conduct.

Of course, what we need much more than this unholy mess is something we are desperately in need of: an honest to goodness bill of rights, with a genuine free speech clause, something most Australians might not be aware we lack.

Of course, at this stage Mr Porter’s is only a draft bill, so we will wait to see if Liberal MPs can live up to the name of their party and vote against it.

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