My Daily Advertiser Op Ed column for today, 21 January 2020



Religious Freedom bill gives licence to discriminate

The second draft of the government’s religious discrimination bill was released just before Christmas.

This follows the Morrison government’s usual policy of ‘hiding’ issues likely to be unpopular or controversial at a time when our attention is elsewhere.

The plan to bury the issue of course also benefited from the unprecedented bushfires, which deservedly took all our attention. But as we seem, at the time of writing, to be reaching a point of slightly more favourable weather and the prospect of containment, now is the time to look at the draft bill and see if it is an improvement on the first draft.

The short answer is that it is no better than the Attorney-General’s first attempt.

The second draft was intended to appease critics of the contentious legislation. But many experts still fear that if it passes parliament, Australians will have greater liberty to discriminate. This is a curious outcome for anti-discrimination legislation.

Geoffrey Robertson, QC said “It should be unlawful to discriminate on the grounds of religion, as well as on race, sex, sexual orientation, age and so forth. Such prohibitions are best contained in a human rights act.”

“This is George Brandis’s ‘right to be a bigot’ on steroids,” says Associate Professor Luke Beck of Monash University, a leading authority on freedom of religion.

The problem is the government has taken a standard anti-discrimination law template, already applied in the context of race, sex, disability and age, and mutated it with several unprecedented additions. If the bill is enacted, religious rights will be elevated above other rights.

Most controversial within this bill are protections for religiously motivated statements and actions, even when these would otherwise amount to unlawful discrimination. This will enable a range of organisations, including charities, hospitals and aged-care bodies, to hire and fire based on religion. They also enable any individual to make statements of belief, free from the spectre of anti-discrimination laws. And they permit doctors, nurses, midwives, pharmacists and psychologists to decline to provide healthcare on religious grounds.

More specifically, if passed, the legislation would mean that a religious doctor could tell a transgender patient that gender is binary, a Catholic doctor could refuse to provide contraceptives and a Jewish school could insist that staff must be Jewish and act consistently with Judaism. These examples are not far-fetched, for each is taken from the draft bill’s own explanatory notes.

Susan Ryan, who was involved in the creation of several anti-discrimination laws, is damning about the new draft. “If the government was genuinely interested in advancing equality in Australia, it would create a national bill of rights” she said.

Nonetheless, it is true that some stakeholders appear to have been placated by the changes. “The second draft is a significant improvement over the first,” says Bishop Michael Stead, of the Anglican Diocese of Sydney.

But others remain unpersuaded. “Recent amendments have made the bill worse overall,” observes Hugh de Kretser, executive director at the Human Rights Law Centre. “If the major flaws in the bill are not fixed, MPs should reject it. “The bill gives religious bodies a licence to discriminate,” he says.

Speaking to The Saturday Paper, Forum on Australia’s Islamic Relations (FAIR) executive director Kuranda Seyit expressed concern that “The ‘right to be a bigot’ clause could potentially embolden far-right groups to ramp up their vitriol and continue their campaigns of hate.”

The proposed law is likely to cause headaches for employers. One provision would make it unlawful for larger employers to implement codes of conduct that restrict an employee expressing statements of belief outside work hours. This has been dubbed the ‘Israel Folau clause’ because the bill’s explanatory notes offer a familiar example of a Christian stating that “unrepentant sinners will go to hell”.

For Hugh de Kretser, the existence of the Folau clause is striking. “Existing workplace law dealt with this issue in the Rugby Australia case,” he says. “The standard discrimination tests should have been used in the bill.”

The Attorney-General’s Department is now accepting submissions on the second draft until the end of January, so there are only a few days to get them in.

I’m supporting Equity Australia’s campaign, as the bill as drafted would be a disaster for LGBTIQ communities.

Laws which should protect religious people from discrimination will be used to hand a licence to discriminate against LGBTIQ people, threatening our access to healthcare and undermining inclusive workplaces, schools and services.