“While, on the surface, the bill appears to deal with some significant issues, the devil is in the detail. Those details mean there is no robust protection for people such as Israel Folau or Archbishop of Hobart Julian Porteous,” ACL managing director Martyn Iles said.

“In addition, ACL is concerned that under Section 41, Julian Porteous-style cases may not be prevented. Whilst the relevant Tasmanian law prohibiting so-called offensive speech is overridden, someone can still pursue a discrimination case if they feel harassed or vilified by a statement of belief.”

In contrast to the ACL, the Freedom For Faith (FFF) think tank has responded with a warmer response to the bill.

“Freedom for Faith welcomes the exposure draft of the Religious Discrimination Bill and associated bills yesterday. They have many good features and deliver on the Morrison Government’s election commitments to legislate in these areas.

“The wide scope of the bills means we are still considering the details of the drafting. We will give more considered commentary on those details in due course. Nonetheless, it is appropriate at this stage to welcome the release of the exposure draft and express a commitment to keep engaging in the consultation process.

“We do not support the criticism that some have made about lack of consultation on the bill. Some consultation occurred in drafting it. The purpose of an exposure draft is to allow for wide community comment and input. It provides an opportunity for all interested parties to engage about their concerns and to help produce a better outcome.

“The draft Religious Discrimination Bill is a good and necessary first step in religious freedom reform. Beyond it, there will be important work to be done by the Australian Law Reform Commission on exemptions to the Sex Discrimination Act and other issues.

“The question of whether protections for religious freedom may be better afforded by expressing them in terms of positive statements rather than exemptions from anti-discrimination laws should remain an open one for that next stage of reform. At its heart, though, this legislation asks how it is the law can help people with different beliefs live together well. That is a cause worth committing ourselves to whatever our beliefs.”

In what appears to Eternity to be a nuanced response, Associate Professor Neil Foster, one of a group of senior lawyers associated with FFF, says “Overall, the bill seems to me to be a good and fair effort to improve religious freedom in Australia, and worthy of support. There are points where its operation requires further clarification. But hopefully the process of public discussion and feedback will lead to these improvements before it finally passes the Parliament.”

His Law and Religion Australia blog analyses the bill section by section here.

Christian schools will be reading section 10 closely. “A religious body does not discriminate against a person under this Act by engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion in relation to which the religious body is conducted.” Religious bodies include schools and charities (with some exceptions such as aged care).

Al these Christian groups are in a process of analysing what turned out to be a detailed piece of legislation, and will be responding with suggested changes and queries as the government opens up a consultation process.

Equality Australia, the renamed group that campaigned for same-sex marriage, has attacked the bill. “Laws must apply equally to everyone – this Act enshrines religious exceptionalism by giving new privileges to people of faith, while overriding existing protections from discrimination for others,” said Anna Brown, CEO of Equality Australia.

“These new, radical provisions go too far and hand a sword to people of faith to use their religious beliefs to attack others in our community.

“There appears to be a specific override of Tasmanian prohibitions on conduct which ‘offends, humiliates, intimidates, insults or ridicules’ other members of our community, including LGBTIQ+ people.”

The Tasmanian law, which the new bill overrides, allowed the making of a complaint against Archbishop Porteous for distributing a flyer defending traditional marriage to Catholic school students.

Eternity sat in the AG’s announcement at Sydney’s ornate great synagogue in a pew with the Grand Mufti of Australia and the Anglican Archbishop of Sydney. It seemed to be a very ecumenical event. It was, but judging from a mailout to attendees by the organisers (which provides a list) no one from the ACL or the Sydney Catholic Archdiocese was there. Eternity would like to be corrected on this point. Otherwise it appears the some credence needs to be given to reports of a boycott by people who are dissatisfied with the draft bill.

The ‘Folau Clause’ 

Here is Professor Foster’s analysis of this key section. Eternity has italicised the clauses of the bill.

“It is fairly clear that [clause] 8(3) is designed to respond to the issues raised by the recent events involving Israel Folau, who was sacked as a football player for comments he had made on the Bible’s view of homosexual activity (among other acts of “spiritual rebellion” or “sin”), on his personal social media pages.

“To put this in context, s 8 deals with ‘indirect discrimination’. It makes unlawful actions which may seem at first not to be based on religious belief or activity, but where the imposition of a ‘condition, requirement or practice’ will have a ‘disadvantaging’ effect on a believer over and above the effect it would have on others. One type of such condition would be, for example, a requirement that employees adhere to a ‘code of conduct’ that prohibited comment, even outside the workplace, on Biblical sexual morality, which would offend others.

“Such a condition may be imposed, however, if it is ‘reasonable’, under [clause] 8(1)(c). What [clauses] 8(3) and (4) attempt to do is to specify certain conditions under which such a condition would not be reasonable:

(3) For the purposes of paragraph (1)(c), an employer conduct rule that: 
(a) is imposed, or proposed to be imposed, by a relevant employer; and 
(b) would have the effect of restricting or preventing an employee of the employer from making a statement of belief at a time other than when the employee is performing work on behalf of the employer; 
is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer. 

(4) Subsection (3) does not apply in relation to a statement of belief: 
(a) that is malicious; or 
(b) that would, or is likely to, harass, vilify or incite hatred or violence against another person or group of persons; or
(c) that is covered by paragraph 27(1)(b). 

“The other important background to this provision is that the phrase ‘relevant employer’ is defined in [clause] 5 to be restricted to a private employer whose revenue for the current or previous financial year is at least $50 million.”

27(1)(b) deals with incitement to serious offences.

Foster’s response is “I am still not sure what to make of these provisions. On the one hand, they are a good faith attempt to deal with a situation which has concerned many Australia employees. But the ‘exemptions’ to the general rule that employees cannot be restrained in their off-duty speech are not entirely satisfactory. It seems odd to effectively allow an employer’s ‘sponsor’ to ‘buy’ the right to control employee’s speech by a threat to withdraw sponsorship (hence imposing ‘unjustifiable financial hardship’) if unpopular things are said.”

The ACL comments: “To suppress rugby players’ freedom of religious expression, Rugby Australia would merely have to say, as they did in Israel Folou’s case, that it was seeking to avoid ‘unjustifiable financial hardship’ for a sacking to be justified.

“In fact, we are in a crazy situation where section 8 of the bill permits Folau’s sacking. It allows medium and large corporations to discriminate against employees based on statements of belief if they claim there are significant financial implications, as Rugby Australia did.”

The “Israel Folau” clause is unusual compared to other anti-discrimination laws. QUT law academic Alex Deacon told the ABC “I can’t imagine a law being imposed where it would be permissible to discriminate on the basis of sexual orientation or race if that particular action was causing financial hardship.”

For most Christians, it would seem that their employer would not be able to claim ‘unjustifiable financial hardship’ for out-of-work-hours activity. Other religions may not fare so well; after the announcement, one church leader raised the possibility of a bank claiming that staff wearing a hijab caused customers to stay away.

Vilification

Another key issue in this section will be to define “vilify”. “The verb is not defined, and it really needs to be,” says Foster. “I would support its presence if it means ‘incite hatred or violence’. But since both of those concepts are contained in other parts of the paragraph, that is probably not what it means. The word ‘vilify’ might be thought by some to include any speech which indicates that sexual activity contrary to the Biblical standard (in the context of a marriage between a man and a woman) is wrong. In that case, it may nullify the practical impact of the provision as a whole. Certainly clarification is needed.”

A balancing act

A good example of the “balancing” the Attorney-General and the drafters of the bill are attempting is provided in an analysis by Judith Ireland in the Sydney Morning Herald and the Age. “The draft bill says ‘religious bodies’ are not discriminating against a person by engaging, in good faith, in conduct that would be regarded as in accordance with its doctrines or beliefs. For example, religious schools would have discretion to employ staff of a particular faith. Health practitioners would also be able to conscientiously object to providing a health service – such as abortion – on the basis of their religious belief.

“On the other hand, the bill would allow employers not to hire someone because they could not abide by workplace health and safety requirements due to their religious dress.”

The timeframe for submissions to the bill is tight. The consultation closes at 5pm AEST October 2, 2019.

Submissions should be sent to: FoRConsultation@ag.gov.au.

Submission Form – Religious Discrimination Bill 2019 Exposure Draft [PDF 344KB]