Religious Discrimination Bill still discriminates against many, despite removal of Folau clause

On Monday, while LGBTQI+ Australians, their families and friends commemorated the fourth anniversary of the majority Yes vote in the marriage equality postal survey, a group of government MPs met to discuss the latest version of the Religious Discrimination Bill, legislation that would roll back the rights of LGBTQI+ Australians.

But not just LGBTQI+ Australians. Women, people with disability, single parents, divorced people, people in de facto relationships and even people of minority faiths, too.

Commonwealth Attorney-General Michaelia Cash’s final version of the bill, which will affect all those groups – and more – is set to be introduced to Commonwealth Parliament next week.

Former Wallaby Israel Folau, whose $4 million contract was terminated by Rugby Australia over his controversial statements, including an Instagram post claiming hell awaited “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters”.Credit: Getty

According to media accounts, the government has axed a couple of the problems contained in the 2019 exposure draft bills. This includes provisions allowing health practitioners to “conscientiously object” to providing particular health services. Also gone, reportedly, is the so-called “Folau clause”, which had sought to make it impossible for large employers to prevent their employees from making derogatory and harmful comments about others, outside of work, where they are motivated by religious belief.

If these reports are true, they would indeed be welcome improvements to the final bill. At the same time, these changes fall far short of what we need to create a genuine Religious Discrimination Bill, one that protects people of faith against discrimination without undermining the rights of others.

That’s because the Folau clause is a much smaller problem than two bigger threats elsewhere in the bill, and in some ways is simply a distraction.

The first of those threats is the “statement of belief” clause, which would override all Commonwealth, state and territory anti-discrimination laws, including the Fair Work Act, to protect comments motivated by religious belief that “offend, humiliate, intimidate, insult or ridicule: others.

Unlike the Folau clause, this provision applies to all areas of public life: in the workplace, in schools and universities, in health care, on public transport, at cafes and restaurants, on the sporting field. Everywhere. Everyday Australians could be lawfully exposed to derogatory and harmful comments in all aspects of their everyday lives.

No other Commonwealth anti-discrimination law has ever sought to directly interfere in state and territory laws in this way. As Simeon Beckett has previously highlighted, it would also make state and territory anti-discrimination frameworks effectively unworkable by creating a Constitutional issue that tribunals could not resolve.

The second serious threat which remains in the Religious Discrimination Bill is its approach to religious exceptions, which is also unlike anything we have seen before in Australian anti-discrimination law.

For example, the category of organisations covered by these exceptions is broader than any other Australian anti-discrimination law, the test to access these exceptions is much easier to satisfy, and these bodies no longer need to have been “established for a religious purpose”.

The second exposure draft even allowed religious hospitals and aged care services to discriminate in employment on the basis of religious belief, and permitted religious schools to discriminate against students on the same grounds, meaning a Year 12 student could be disciplined simply for expressing their own religious views.

The Religious Discrimination Bill – or at least the versions the public has seen to date – does all of this while pre-empting the Australian Law Reform Commission review into religious exceptions generally, which was referred way back in April 2019.

Indeed, previous attorney-general Christian Porter changed the ALRC’s reporting timeline to be 12 months after passage of the Religious Discrimination Bill, and its terms of reference, to prevent it from recommending amendments to the bill.

Which seems to be completely the wrong way around – the government seeks to introduce the widest religious exceptions in any Australian anti-discrimination law, ever, before asking the ALRC to consider the same issue, while tying one hand behind its back.

Of course, most of us have yet to see the final version of the bill, so it’s possible the “statement of belief” and “religious exception” provisions have been narrowed, too. However, the reporting suggests otherwise.

If they haven’t – if the government is still pushing ahead with these extraordinary and unprecedented provisions – then it’s up to the Parliament to block this attempt to undermine the rights of everyday Australians.

Alastair Lawrie is the policy manager at the Public Interest Advocacy Centre