The Australian Government’s Religious Discrimination Bill: Implications and Controversies
For decades, Australia has debated the meaning of religious freedom in the context of a liberal, open society that forbids discrimination against others on the basis of personal faith. With the re-election of the coalition government under Prime Minister Scott Morrison, leader of the Liberal Party (the main right-of-center political party in Australia), Australian politics, media, and civil society now enters uncharted waters with the government’s plan to introduce, at the federal level, a Religious Discrimination Bill to parliament as part of its election platform. Now that a draft has been released, it is worth taking a look at how Australia got to this point.
While the public discourse has largely been dominated by the concerns of Christian and secular groups, it will have effects on fast-growing minor religions such as Buddhism, Hinduism, and Sikhism. The legal framework of anti-discrimination measures in Australia consists of state and federal laws that work in conjunction with legal precedents set within the appropriate jurisdiction. The federal government has a limited constitutional ability to alter state laws.
The origins of this bill began with the same-sex marriage plebiscite under the Turnbull government, which was the culmination of 13 years of political agitation that started with former prime minister John Howard’s amendment to the Marriage Act in 2004. Howard’s legislation also blocked gay adoption and the recognition of overseas same-sex marriages. This period included cases in the High Court, attempts at legislation, protests, and public debate that eventually forced the major parties to address the issue more seriously. The protracted nature of this issue created strong divisions within the Australian community as LGBTIQ+ people felt they were being discriminated against for who they were, and some people of faith felt increased scrutiny over their beliefs.
The plebiscite was first put forward by former conservative prime minister Tony Abbott and then adopted by Malcom Turnbull after he took over party leadership from Abbott. Shortly afterwards, the results of the plebiscite on 7 November 2017, which found that 61.6 per cent of Australians were in favour of the Religious Freedom Review, otherwise known as the Ruddock Report, were announced on 22 November. This was an attempt by the government to keep socially conservative and religious voters on side. Legislation legalizing same-sex marriage passed with overwhelming support in conscious vote, which saw only four members vote against, with 10 abstaining from voting.
The Religious Freedom Review was originally delivered to then prime minister Malcom Turnbull on 18 May 2018. The report seemed to be buried as the government battled poor polling numbers and focused its attention elsewhere. After Scott Morrison replaced Malcolm Turnbull as prime minister, the first few recommendations from the report were leaked in early October of that year, which raised concerns that this would be a springboard for conservative revenge. After the initial speculation the report was released on 13 December, with Scott Morrison making clear that he wished to pursue introducing legislation by early 2019.
The report itself makes 20 recommendations, with a particular focus on schools. Much of this applies to existing state and territory legislation, which varies in strength. Currently, some states allow for religious schools to discriminate against students and staff on the grounds of sexual orientation or gender identity provided that it is in accordance with their religious doctrine.
The principle here is that faith schools should be able to operate within the bounds of their faith. This operates in varying degrees as some only allow for exemptions in the case of staff or, in the case of Tasmania, no such exemptions are allowed. What the report does is recommend three constraints on these exemptions:
1. The school must have a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced.
2. The school must provide a copy of the policy in writing to all employees, prospective employees, students, prospective students, and the parents of all current and prospective students.
3. In relation to students, the school must have regard to the best interests of the child as the primary consideration in its conduct.
Similar exemptions for private individuals and businesses to refuse service on the basis of their religious beliefs were rejected. The report also advised that the Australian Human Rights Commission should take a leading role in protecting religious freedoms through various initiatives under the existing model. Other recommendations made by the report include the removal of all blasphemy offences, the amendment of the Racial Discrimination Act 1975 or enacting a Religious Discrimination Act to preclude individuals from discrimination on the basis of religious belief or activity, and general measures to bring the differing state legislations in line with each other.
Prior to the release of the draft bill, the government accepted fifteen of the twenty report recommendations. Not all of those recommendations are federal issues but require collaboration with state governments or pertain solely to specific state governments. It has opted for a separate Religious Discrimination Act instead of amending existing anti-discrimination legislation. Notably it plans to include the establishment of a Freedom of Religion Commissioner within the AHRC against the judgement of the report. (Australian Government)
The Attorney General, Christian Porter, has recently clarified that it “is not intended to displace state law nor will it import specific provisions of international law” amid speculation about the bill’s contents (The Guardian). Part of this speculation stems from the relation between state and federal discrimination laws which sit in legal parallel and whether the government will go beyond the recommendations and attempt to establish a hierarchy (Commonwealth Consolidated Acts). This however has proved not to be as Section 41 of the bill reduces the scope Section 17(1) of the Tasmanian Anti-Discrimination Act while also setting limits on the rest of Australia’s anti-discrimination law at both federal and state level. (The Conversation)
Until the bill is released it is only possible to speculate about its contents and the impact that will have on Australia’s civil society. Some faith based organizations, including the Federation of Australian Buddhist Councils, and legal experts question the necessity of a standalone Religious Discrimination Act (SBS). The FABC does not see the necessity for a standalone act, and are concerned by any move which would pit one set of rights against another, instead preferring the current practice of amending exemptions to existing legislation where it is needed (FABC). Others are worried about how this will affect state legislation or doubt that it will achieve its goal of streamlining existing legislation. LGBTIQ+ groups are weary of any changes in this area. It is possible to for the bill to get things right but for now we can only wait and see.
PM Targets Gays In Marriage Law (The Sydney Morning Herald)
Religious freedom review enshrines right of schools to turn away gay children and teachers (The Sydney Morning Herald)
SSM: Australia returns resounding Yes vote but debate over details has long way to go (ABC)
Same-sex marriage: This is everyone who didn't vote to support the bill (ABC)
Australian Government response to the Religious Freedom Review (Australian Government: Attorney-General’s Department)
Religious Freedom Review (Australian Government: Department of the Prime Minister and Cabinet)
MEDIA RELEASE 13 Dec 2018 Prime Minister, Attorney General (Australian Government: Department of the Prime Minister and Cabinet)
Ruddock report constrains, not expands, federal religious exemptions (The Conversation)
In long-awaited response to Ruddock review, the government pushes hard on religious freedom (The Conversation)
Scott Morrison is new Australian PM as Malcolm Turnbull ousted (BBC)
Christian Porter says religious freedom bill won't erode state LGBT protections (The Guardian)
Christian leaders speak out against proposed religious discrimination laws (SBS News)
Why Australia does not need a Religious Discrimination Act (Monash University)
Proposed Religious Discrimination Bill (Federation of Australian Buddhist Councils)
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