Religious freedom: Once again, bill misses the mark

Religious discrimination laws should be aimed at fostering harmony in the community.

The Morrison government has spent many months working and reworking its attempt to better protect religious belief. Its efforts are worthy because religious freedom receives inadequate protection and deserves to be recognised as one of the basic rights held by all Australians. Unfortunately, the way the government has gone about this task is seriously misguided.

The government’s initial bill was widely criticised and then shelved. The second draft was issued a few weeks before Christmas for a further period of public consultation that closed last Friday. It is clear from the submissions and public comments made by a wide section of the community, including business, civil society groups and religious organisations, that the government has again missed the mark. Its second bill is not fit to be passed by parliament.

Much of the government’s religious discrimination bill is sensible and unobjectionable. The law prohibits discrimination against a person because of their religious belief and practices. For example, it would be unlawful to deny a person a job or a promotion because they are a Buddhist. The protection also extends to education, access to premises, the provision of goods and services, accommodation, sport and clubs. The bill would protect religious belief from discrimination in a similar way to what is already in place for race, sex, age and disability.

If the government had stopped there, the bill could be enacted. Unfortunately, it has gone much further in seeking to provide an unprecedented and quite remarkable set of additional rights to religious organisations that are not provided to other members of the community. Two clauses cause particular concern.

Section 11 says that the anti-discrimination protections in the bill do not apply when a religious body engages in conduct in good faith in accordance with its doctrines, tenets, beliefs or teachings. This includes a right to discriminate against someone to “avoid injury to the religious susceptibilities of adherents” to the religion.

This clause reverses the primary object of the legislation. It permits one person to be discriminated against on account of their religious belief because such discrimination is in keeping with another person’s religion. For example, a Christian health facility could deny employment to a Jewish doctor, or a Muslim accommodation provider might deny services to non-Muslims.

These types of authorisations are dangerous and erode community cohesion. They are especially troubling given the widespread provision of goods and services across health, housing and aged care by religious bodies.

The law would permit many essential goods and services, including those supported by taxpayer dollars, to be made subject to religious tests and qualifications. There are sensible ways in which religions can operate in accordance with their beliefs, but this provision goes well beyond that.

The full extent of the licence to discriminate provided by section 11 is unclear. This is because other anti-discrimination laws would continue to operate, and the interaction between those and this new law is complex. The result will be grey areas when a person’s race, sex, age or disability is involved. This uncertainty will need to be resolved through legal advice and court cases.

The second problematic clause provides protection to religious speech over and above other forms of speech. Section 42 cuts a swath through federal and state discrimination laws in establishing that statements of belief based upon a person’s religion do not amount to discrimination. Such statements are protected so long as they are not malicious, do not encourage others to commit a serious crime and do not “harass, threaten, seriously intimidate or vilify” another person or group.

This section is ill-conceived. It is wrong as a matter of principle to use the law to prioritise one form of speech over another. In this case it would mean that religious speech receives special legal protection that is not accorded to speech by the press or other members of the community. One person could make a statement in accordance with their religious beliefs that another non-religious person could not. This is not appropriate in a democracy that prizes all forms of speech.

The provision is also troubling because it allows people to rely on their religious beliefs to make statements that humiliate or intimidate others in the workplace, in school, on public transport or in any setting. For example, a person could rely upon the clause to make anti-Semitic taunts on a bus, to abuse another child in the playground because their parents are same-sex married, or to ridicule and belittle a co-worker because they are divorced.

The government has it wrong again with this second attempt at a religious discrimination law. The law should be aimed at fostering harmony in the community based upon tolerance and respect for different beliefs. Instead, it threatens to sow division and to embolden people to attack others in personal and hurtful ways under the cloak of religion. A third attempt at protecting religious belief is needed.

George Williams is dean of law at the University of NSW.