On 25 November 2021, the government introduced the Religious Discrimination Bill 2021 into the House of Representatives. The Bill seeks to protect against discrimination on the basis of religious beliefs. It also amends existing anti-discrimination laws to provide more extensive exemptions in respect of religious institutions.
The Bill has caused extensive controversy, with many human rights advocates claiming the legislation, if passed, will make it lawful to discriminate based on sexual orientation, gender identity and other attributes, in situations where this is currently unlawful. The Bill also contains provisions overriding state and territory laws, meaning it has the potential to undermine the anti-discrimination protections that already exist at state and territory levels.
The government has defended the bill, saying it is necessary to protect religious freedoms.
Existing religious exemptions
Australia’s existing anti-discrimination laws contain various exemptions that apply to religious institutions. These include provisions in the Age Discrimination Act and the Sex Discrimination Act that allow religious bodies to discriminate where it is necessary to do so in order to carry out the practices or follow the beliefs of their religion. In practice, these exemptions mean (among other things) that a teacher may be fired or a student expelled from a religious school on the basis of their sexuality or gender identity.
These exemptions have received a lot of criticism in recent years, with many arguing that the exemptions should be removed and that religious institutions should no longer be allowed to discriminate.
What changes does the Religious Discrimination Bill make?
The Religious Discrimination Bill sets out the situations where discrimination on the basis of religious belief is unlawful. However, it also contains provisions declaring certain types of behaviour not to be discriminatory.
Part 2 of the Religious Discrimination Bill is entitled ‘Conduct that is not discrimination’ and states that a religious body is not to be taken to be discriminating by:
Engaging in conduct in good faith that is in accordance with the doctrines and teachings of the religion;
Engaging in conduct in good faith to avoid offending the religious sensibilities of adherents of the religion;
These provisions apply to religious bodies including religious schools, hospitals, aged care facilities, accommodation providers and disability service providers. These bodies may give priority in matters of employment and partnerships to persons who are of the same religion as them or who are seen as upholding the doctrines and teachings of their religion. The test on which this is to be determined is whether a person of the same religion as the body could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of the religion.
The only other proviso is that when making decisions under these provisions, the religious body must be doing so in accordance with a written policy that is publicly available and that outlines the religious body’s position in relation to certain beliefs and activities and explains how that position will be enforced. Essentially, religious bodies that intend to discriminate in the interests of their religion will have to make this intention clear to the public in writing.
Responses to the bill
Human rights and LGBTIQ groups have expressed concern that the Bill will allow religious bodies freedom to express bigoted views as well as permitting people to express harmful and derogatory views in workplaces, schools and health settings.
In 2018, Prime Minister Scott Morrison promised to pass laws prohibiting the dismissal of teachers and the expulsion of students from religious schools based on their sexuality. However, the Bill does nothing to achieve this. In fact, it permits more discrimination by religious bodies than is allowed under the existing laws.
The Independent Education Union has hit out at the Religious Discrimination Bill, saying it provides employers with new rights to discriminate and privileges the rights of religious bodies over the beliefs of individuals, even where those beliefs are irrelevant to their job.
The government’s response
In response to these criticisms, Scott Morrison said the Bill aimed to defend people’s statements of belief as long as they do not amount to vilification, intimidation or harassment. He said that students and teachers should not be expelled or fired from schools based on their sexuality.
Morrison also made the following statement:
“Many people from various religious traditions are concerned about the lack of religious protection against the prevalence of ‘cancel culture’ in Australian life.
“People should not be cancelled or persecuted or vilified because their beliefs are different from someone else’s.”
The Bill is expected to be voted on by the House of Representatives next week and introduced to the Senate in 2022.
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