On 10 December, Scott Morrison and the attorney general, Christian Porter, released the second draft religious discrimination bill.
The new bill is designed to respond to a revolt from conservative religious organisations that forced the Coalition to miss its self-imposed deadline to introduce the bill to parliament by year’s end.
What is the original bill about?
The religious discrimination bill prohibits discrimination in certain areas of public life on the ground of religious belief or activity.
The bill prohibits both direct discrimination, treating another person less favourably based on religion, and indirect discrimination, where an apparently neutral condition has the effect of disadvantaging people based on religion.
What’s changed?
The second draft bill includes provisions allowing religious hospitals, aged care facilities and accommodation providers such as retirement homes to discriminate against staff on the basis of religion in order to preserve the “religious ethos” of that institution.
It will ensure that the exemption that applies to religious bodies extends to “public benevolent institutions”, allowing them to discriminate on the grounds of religion also.
The new bill creates a new right for religious camps and conference centres to discriminate – including against their prospective customers – provided they publish a policy explaining their ethos and rules.
Religious institutions would be protected from discrimination claims when they take actions “to avoid injury to the religious susceptibilities of adherence of their faith”.
The bill also contains a protection for “associates of religious individuals” to protect people from discrimination based on the religion of their friends or relatives, such as discrimination against a woman because she married a Muslim man.
The Coalition has proposed adding an objects clause to all federal discrimination laws that “all human rights have equal status under international law”, a change that LGBTI advocates have warned is designed to undermine the right to non-discrimination.
A requirement that a religious practice must comply with Australian laws to be protected will now only apply to commonwealth, state and territory laws – not council laws.
How will religious speech of employees be regulated?
By banning indirect discrimination, the original bill sought to prevent employers setting policies such as social media codes of conduct that stop employees’ expressing their religious views.
Dubbed the Israel Folau clause, the provision set a particularly high bar for large businesses with a turnover of more than $50m, which would have to show that they would suffer “unjustifiable financial hardship” without the rule to escape the ban.
The second bill narrows the provision slightly, so that employers are prohibited from setting a rule that indirectly discriminates on religion only where the rule is “other than in the course of the employee’s employment”.
Porter said the change was meant to prohibit rules regulating what employees said in their “spare time” but allow employers to continue to regulate activities connected to work, such as office Christmas parties.
The new bill will also impose a further restriction on qualifying bodies – such as those that admit doctors and lawyers to practise – stipulating they cannot impose rules such as social media codes of conduct restricting statements of belief unless they are an “essential requirement” of the profession.
Can medical practitioners refuse to treat me?
The original bill said that – unless it is against the law to refuse treatment – health practitioners are allowed to “conscientiously object to providing a health service” and no professional rules can override that right.
The new bill specifies that this does not give a right to medical practitioners to discriminate against individuals based on gender or other characteristics.
Nevertheless, doctors, pharmacists and other limited categories of medical practitioners could refuse to perform certain procedures or dispense certain drugs – such as abortion or the morning after pill – provided they refused to do so for all patients.
The new bill narrows the range of medical practitioners who can object to procedures to nurses, midwives, doctors, psychologists and pharmacists, removing dentists, occupational therapists, optometrists, physiotherapists and podiatrists.
Does the bill water down existing protections in discrimination law?
Yes. The bill declares that a statement of religious belief does not constitute discrimination under commonwealth, state or territory anti-discrimination law and does not contravene subsection 17(1) of the Tasmanian Anti-Discrimination Act 1998.
That law bans speech that “offends, insults or humiliates” people based on a range of grounds including gender, race, age, sexual orientation, disability and relationship status.
To the extent of inconsistency the federal law applies, so the new bill would provide greater protection to speech like: that gay people are going to hell, that disabled people are possessed, that pregnant unmarried women are sinners.
The Law Council has also noted that the religious discrimination bill “doesn’t carry the same type of protection as section 18C of the Racial Discrimination Act” – which prohibits language that “offends, insults, or humiliates” a person based on race.
However, the religious discrimination bill does not protect statements that are “malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence”.
The new bill makes a few changes to this basic architecture by defining “vilify” as meaning to “to incite hatred or violence” and evening out the standards for religious and non-religious speech.
Under the new bill, non-religious people are protected when they express a view that “a person who does not hold a religious belief could reasonably consider to relate to the fact of not holding a religious belief”.
Has the new bill addressed stakeholders’ concerns?
While religious organisations have welcomed the changes, here is a non-exhaustive list of other concerns raised in consultation that were not addressed:
