What does the bill do?
The religious discrimination bill prohibits discrimination in certain areas of public life on the ground of religious belief or activity.
While the bill does not define protected religious “activity”, the explanatory notes confirm it has a broad meaning including religious observance, dress and expression of religious belief, especially where “adherents of that religious group are required, or encouraged, to evangelise”.
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.
As expected, the bill also creates a religious freedom commissioner, who will promote religious freedom.
Good news for Israel Folau?
Indirect discrimination is only banned where the condition imposed “is not reasonable”, such as where it is disproportionate to the aim of a rule. The extent to which it would “limit the ability of an employee of the employer to have or engage in the employee’s religious belief or activity” is also a factor.
But where a large business – with a turnover of $50m or more – claims that an employment conduct rule that “would restrict or prevent an employee from making statements of belief in their private capacity, the business is required to prove that compliance with the condition is necessary to avoid unjustifiable financial hardship to the business”.
The attorney general, Christian Porter, said the bill provides “an extra protection to people subject to an employer rule” in circumstances such as Israel Folau’s.
To take the Folau example, Rugby Australia would have to show financial hardship, such as loss of sponsorship, to avoid a finding that it is discriminatory to impose a condition on Folau not to post on social media about sexuality and sin.
How this would work in practice is hard to say: the division of a person’s employment-related and private capacity is notoriously difficult, particularly in the social media age.
What does this do to state discrimination laws?
The bill protects expression of religious speech in good faith by stating that such speech 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 provision 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 could provide greater protection to speech like: that gay people are going to hell, that disabled people are possessed, that pregnant unmarried women are sinners.
However, this provision 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”.
Good news for Archbishop Porteous?
The explanatory notes claim the override of Tasmanian law was necessary “given its broad scope and demonstrated ability to affect freedom of religious expression”.
Coalition conservatives have cited the case of Archbishop Julian Porteous – who had a discrimination complaint against him for anti same-sex marriage leaflets arguing that “messing with marriage is messing with kids” – as evidence of the need to override state laws.
The bill essentially lifts the bar for a successful complaint from the offend, insult or humiliate threshold to requiring the expression of religious belief be malicious or that it would harass, vilify or incite hatred against a group.
Porter said that it “highly doubtful” that paraphrasing scripture even “clumsily” would constitute discriminatory hate speech.
Are there exceptions?
Yes! Lots!
The one big exception is that religious bodies can discriminate on the grounds of religion where their conduct is “in good faith, [and] may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of their religion”.
However, the bill does not provide religious bodies with a broader defence or exemption from other commonwealth anti-discrimination legislation, such as the Sex Discrimination Act. So religious schools could refuse to hire somebody who does not adhere to that religion, but the bill doesn’t licence sacking or refusing to hire a gay teacher.
The issue of when religion can be used as a defence to other discrimination laws is currently the subject of an inquiry by the Australian Law Reform Commission.
Expression of religious belief that counsels, promotes, encourages or urges conduct that would constitute a serious offence is also not protected.
There is an exception for discrimination on the basis that a person is unable to carry out the inherent requirements of the work because of their religious belief or activity.
There are also general exceptions for: charities conferring benefits based on religion; conduct in direct compliance with commonwealth, state or territory legislation; law enforcement, national security or intelligence functions; and compliance with court and tribunal orders and determinations.
What do the other two bills do?
The religious discrimination bill is one of three bills.
The second, the Religious Discrimination (Consequential Amendments) bill 2019 makes minor changes including to give the AHRC the power to inquire into and conciliate complaints of unlawful religious discrimination.
The third, the Human Rights Legislation Amendment (Freedom of Religion) bill 2019 amends other federal discrimination laws to add new objectives: “the indivisibility and universality of human rights” and “the principle that every person is free and equal in dignity and rights”.
This is the omnibus bill which the Coalition suggested would provide “equal status” to freedom of religion alongside the right to non-discrimination.
This bill also enacts Ruddock review recommendations:
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amending the Marriage Act to provide protections for religious educational institutions by clarifying that the religious educational institution may lawfully refuse to provide goods, services or facilities for the solemnisation of a marriage
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amending the Charities Act 2013 to clarify that the advocacy of traditional views of marriage by charitable institutions will not disqualify the charitable institution from being a charity.
