By Dr Luke Beck
The Religious Discrimination Bill plays word games to address hurt feelings rather than provide sensible protections against religious discrimination. In doing so, the bill exposes the culture war within Australia’s biggest religious groups, and runs into constitutional problems.
After the marriage equality vote in 2017, then PM Malcolm Turnbull offered conservatives a religious freedom inquiry as a consolation prize. The inquiry found that Australia doesn’t have a religious freedom problem, but that a federal law banning discrimination on the ground of religion should be added to existing federal anti-discrimination laws.
Conservative religious leaders have hurt feelings
This proposal didn’t really address the concerns of conservative religious leaders. Conservative religious leaders have seen their cultural influence and social status wane in recent decades, having regularly been on the losing side of emotional political debates.
So the Religious Discrimination Bill, now in its third version, tries to do two things at once. It tries to implement anti-discrimination protections while also trying to appease hurt feelings with additional provisions that would allow more discrimination.
Changing the meaning of words to appease hurt feelings
Take the overriding of existing federal, state and territory anti-discrimination laws to allow discriminatory ‘statements of belief’. The bill immunises religiously-motivated comments such as a boss telling a worker “women should not be in leadership roles”, or a doctor telling a patient “disability is a punishment for sin” from legal consequences.
Rather than simply overriding state laws, the bill tries to change the definitions used in state laws. The Catholic Bishops’ Conference told the parliamentary inquiry looking into the bill that the current “system of exemptions gives the wrong impression”.
There’s a constitutional problem here. While the federal Parliament can sometimes override the operation of state laws, it cannot rewrite them. As the High Court has said: “Nor does the Parliament of the Commonwealth have power directly to control the content of a state law.”
Appeasing hurt feelings is also the goal of the so-called ‘preferencing’ provisions. These provisions say that religious bodies such as religious schools are immune from state and territory anti-discrimination laws when they ‘give preference to’ people of the same religion in employment decisions.
The Anglican Diocese of Sydney complains that allowing discriminatory employment policies by way of ‘exemptions’, as is the case currently in some states, is bad “because it characterises religious bodies as ‘discriminators’.” They say the language of preferencing is a “virtue” that “flips the paradigm”.
The preferencing provisions are very broad, and would allow discrimination/preferencing against gay people and others. The Sydney Anglicans told the inquiry that only “celibate gay Christians” would be acceptable staff members. Having gay sex means that you do not adhere to the Sydney Anglican religious ‘ethos’, and would not be a suitable teacher.
There’s a constitutional problem here, too. The bill relies on the ‘external affairs power’, which allows Parliament to pass laws implementing treaty obligations, such as the International Covenant on Civil and Political Rights’ religious freedom provision.
Australia’s biggest churches are internally divided
Conservative religious leaders don’t always represent the views of their members. There’s a culture war raging within the Catholic and Anglican churches – by far Australia’s biggest churches.
While Catholic leaders oppose abortion rights, a majority of ordinary Catholics support abortion rights. And while some Christian leaders were at the forefront of opposing marriage equality, a majority of ordinary Christians support marriage equality.
Conservatives and moderates within the Catholic and Anglican churches are also facing off over the Religious Discrimination Bill. The debate about the bill is a chance for each side to assert its dominance over the other.
While the conservative Sydney Anglicans support the bill, the Anglican Church’s Public Affairs Commission says it “cannot support [the bill] in its current form”:
“We believe the RDB still gives too much unnecessary scope and encouragement for harmful discriminatory behaviour in the name of religion in a manner that unfairly overrides other equally important human rights to be free from discrimination,” the Commission wrote.
Catholics are also divided. While Catholic bishops officially support the bill, Catholic welfare agencies oppose the bill.
With serious constitutional defects and no consensus even among religious groups, it’s hard to see how the current Religious Discrimination Bill can proceed. It’s a recipe for ongoing community division, more discrimination, and years of expensive court cases.
Dr Luke Beck, is Associate Professor, at the Faculty of Law Monash University.