Australia’s Religious Discrimination Bill – hard cases make bad law
In 2019, the Attorney-General, Christian Porter, released a draft Religious Discrimination Bill aimed at eliminating discrimination against people on the grounds of their religious belief or activity within their public life.
The religious reform package includes the following three bills; Religious Discrimination Bill 2019, Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.
Following the release of the draft bill, Mr Porter reiterated that the draft bill was aimed to be a shield against discrimination, rather than a sword, adding that: “The laws will protect people from being discriminated against but will not give them a licence to discriminate against other people, or engage in harassing or vilifying speech”.
Triggering a range of responses on Twitter, the proposed changes to the law received a mixed reaction from the Australian public, and it’s evident that not everyone will be satisfied with the final version of the legislation.
Repercussions of religious freedom reforms for the workplace
With much of the legal language centred around employment, the initial draft of the religious discrimination bill sparked extensive discussion on the impact that it will have in the workplace.
For instance, businesses with a revenue of at least $50 million a year will need to provide proof that any restrictions imposed on employees based on their religious expression are necessary to prevent financial hardship to the business. This does not apply to government employees.
It would also mean that in a dispute such as the recent Israel Folau case, Rugby Australia would need to prove that their social media policy was necessary to protect their brand, and justify their reasons for sacking Mr Folau, who was in breach of the policy.
Religious schools and healthcare professionals can act in accordance with religious beliefs
Under the draft bill, religious schools or other faith bodies will not be discriminating if they act in accordance with their beliefs or doctrines. Religious schools will also have the discretion to employ staff of a particular faith.
Also, healthcare providers will be able to conscientiously object to providing services such as abortion if it breaches their religious beliefs. The draft bill currently does not count hospitals or aged care homes as a “religious body”, even if they are run by a religious charity.
Public submissions on draft Religious Discrimination Bill
The public was invited to add comment about the proposed legislative reforms. The Attorney-General’s Department received over 6000 submissions, including campaign submissions, for the first draft bill released in August 2019.
Many submissions raised concern that the bill was drafted in a way that would allow freedom of religious beliefs and activities to trump other forms of discrimination, including sex and disability.
Federal government drafts second version of Religious Discrimination Bill
In response to public concern, the government has subsequently amended the first draft Religious Discrimination Bill and released a second exposure draft.
The second version and its associated amendments to other bills are facing heavy criticism from a range of diverse groups, such as the Chamber of Commerce and Industry, the Australian Medical Association, and sports groups including the NRL, AFL, FFA and Rugby Australia. The bill even prompted unions and employers’ associations to join forces in their opposition.
Amended bill allows discrimination through expression of religious beliefs
At the core of the debate is clause 42 of the Religious Discrimination Bill, which arose from the Israel Folau case, although the scene had been set by the gay marriage debate. This clause protects statements of religious belief – such as saying gays will go to hell – which might otherwise fall foul of federal, state and territory anti-discrimination laws.
An unusual aspect of clause 42 is that it enables provocation rather than providing a defence. It allows a person to state their offensive beliefs that are based on their religion about another person’s gender, age, race, disability or sexual orientation.
The protections given by clause 42 are only overridden if a statement of religious belief is malicious, likely to “harass, threaten, seriously intimidate or vilify”, or could reasonably lead to a “serious offence”.
The government has invited further submission on the second draft of the Religious Discrimination Bill, which will be taken into account before developing the legislative reforms.
Second draft of Religious Discrimination Bill does not define religion
One significant problem with any new legislation that will cause social change is that no one knows exactly how far it will extend until it’s tested in the courts.
There are several legal problems in this bill, with further clarification needed on some items. For instance, what constitutes an honestly held religious belief? Does it include Satanists? Pagans? Witches? Also, atheism is said to be the absence of religion, but is the belief that there is no supernatural supreme being, in itself a religion?
One particular matter that needs consideration is that the bill contains no definition of “religion”. While other pieces of legislation addressing this subject do not define “religion” either, the drafting of clause 42 will place this into sharper focus.
Defining the meaning of “religion” is a complex task
The drafters of the bill do not seem to have heeded longstanding judicial authority underscoring the difficulty of defining what is meant by “religion”.
In 1943, in the so-called “Jehovah’s Witnesses Case”, High Court Chief Justice Sir John Latham said: “It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world”. (See Adelaide Company of Jehovah’s Witnesses Incorporated v Commonwealth (“Jehovah’s Witness case”)  HCA 12; (1943) 67 CLR 116.)
These sentiments were echoed in the 1983 case about Scientology, in which the High Court found that, despite differing profoundly from mainstream religions in many ways, Scientology was a religion. (See Church of the New Faith v Commissioner of Pay-Roll Tax (Vic) (“Scientology case”)  HCA 40; (1983) 154 CLR 120.)
Can a person be denied their right to social services based on religious belief?
Apart from causing offence (although it has been judicially said “there is no right not to be offended”), there are potentially serious impacts of allowing hostile comments or actions that are based on a religious belief.
Should a doctor or hospital, citing religious belief, be able to refuse to give medical treatment? Should a school be able to sack a teacher or expel a student if they are found to be gay?
One legal quandary will be identifying the line between vilification, which is still prohibited under the bill, and merely offending someone, however badly. Yet, the real problems may arise when someone is denied medical treatment or education by someone claiming the authority of genuine religious belief.
Does the Religious Discrimination Bill enable discrimination rather than protect people?
Opponents of the bill argue it will encourage discrimination and cause immense damage to people who are already the usual targets of bigotry and racism. All a person will need to say to justify their racist, homophobic, sexist or abusive comment is that it is part of their religion and they genuinely believe it.
The Law Council argues that the bill provides a defence for potentially harmful and humiliating statements made in public, in the workplace or on the sports field. It also allows religious bodies to discriminate by preferencing fellow believers for work or access to facilities.
The Australian Christian Alliance argued that five million Australians voted no to same-sex marriage as their religion held it to be sinful, and they should be able to declare what their scriptures say without retribution.
Making a general rule based on an extraordinary situation is unwise
There is a legal saying that ”hard cases make bad law”. The meaning – not obvious – is that it is bad policy to make a rule of general application based on a highly unusual set of facts.
The Israel Folau case, the stimulus for the Religious Discrimination Bill, was based on an extraordinary set of facts. Folau was the most famous rugby player in Australia and arguably, its most well-known footballer. The Pacific Islander community is generally very religious. Folau’s religion was an extreme, niche, Christian sect and there were huge amounts of money at stake.
Had even one of these factors been absent, we might not now be talking about clause 42 at all.