The latest version of Australia’s long-promised Religious Discrimination Bill should be commended as a serious effort to protect individuals and organisations from discrimination on the grounds of religious belief or activity.

Australia has clear obligations under the International Covenant on Civil and Political Rights and other international legal instruments to protect religious liberty; enacting legislation to address religious discrimination will be an important step towards fulfilling this obligation.

The proposed legislation will also help Australia fulfill its commitment to multiculturalism. Prime Minister Scott Morrison affirmed this point when he introduced the Bill into Parliament claiming that to “so many Australians, religion is inseparable to their culture. They are one and the same. To deny protection from discrimination for their religious beliefs is to tear at the very fabric of multiculturalism in this country”.

Importantly, the Bill should also be praised for protecting the right to equality. This assertion will surprise many who oppose the Bill on the basis that it threatens equality rights and permits discrimination. Such criticisms fail to recognise that religion is explicitly included as a ground protected by the right to equality under international human rights instruments such as the International Covenant on Civil and Political Rights. A failure to adequately protect religious freedom violates Australia’s international legal obligations to protect equality as well as other important rights such as religious liberty.

The Bill is similar in structure to other anti-discrimination legislation and would prohibit religious discrimination in a range of areas including accommodation, education, employment, clubs and the provision of goods and services. This kind of protection is already provided in most jurisdictions. However, as only limited protection is provided against religious discrimination in New South Wales, South Australia or the Commonwealth the proposed legislation may have a particularly significant impact in these jurisdictions.

The Bill appropriately recognises that upholding religious liberty requires the protection not just of religious individuals but also the religious organisations created by religious adherents. Consequently, the Bill provides significant protection to religious schools and universities, hospitals, aged care facilities, clubs and accommodation providers.

Consistent with the understanding that religious discrimination legislation is necessary to protect equality rights, the Bill explicitly affirms that a range of actions typically undertaken by religious bodies are not acts of discrimination and therefore not unlawful.

An alternative approach commonly adopted in anti-discrimination legislation asserts that acts undertaken by religious bodies are discriminatory and would be unlawful but for an “exception” in the legislation. Such an approach suggests that religious organisations are unjustly discriminating but due to political lobbying were able to prevent the law from applying to them.

The approach taken in the Commonwealth bill is preferable as it recognises that many acts of religious organisations are not properly regarded as discrimination.

Critical flaws   

Despite the many positive elements of the Bill it does have some major limitations.

A critical flaw of the Bill is that the protections for the conscience rights of health professionals found in the previous draft of the Bill have been removed. These provisions protected a health practitioner who objected to a procedure that conflicted with their religious beliefs.

If it is not politically feasible to provide comprehensive protection for the conscience rights of health professionals then there should at least be protection in relation to procedures involving the ending of life such as euthanasia and abortion. Such protections can be justified on grounds beyond religious liberty such as the gravity of these procedures, the likelihood of health professionals resigning without these protections, and the similar protections already provided for conscientious objectors to military service.

Although the Bill provides a limited protection for statements of beliefs, specific protections for employees that existed in the previous version for statements made outside the course of employment have been removed. If enacted these provisions would have limited the ability of employers to take adverse action against an employee for statements made outside the work environment. Such protections would likely have assisted someone in the situation confronted by Israel Folau in relation to his social media posts.

Due to modern technology and the conduct of activists, statements made by an individual outside of the work environment can easily become a matter of national interest. When the statements made are controversial, many employers, due to external pressure or their own moral beliefs, will take adverse action against an employee.

Such an outcome will often be an unacceptable violation of an individual’s right to privacy, equality and religious liberty. If there is insufficient political support for the previous protections then an alternative approach should be adopted to ensure that adequate safeguards exist for statements individuals make outside the work environment.

A further major problem with the Bill is that the protections provided contain many limitations of uncertain operation that may substantially undermine the protections provided.

Many of the sections contain ambiguous provisions such as a “moderately expressed religious view”, a “person could reasonably consider the conduct to be in accordance with the … religion” and a “requirement is necessary to avoid injury to the religious susceptibilities of people” (emphasis added). Such terms will need to be interpreted by tribunals and courts in any legal dispute and may not be interpreted in a way that is supportive of religious liberty.

The provisions also provide significant power to the executive branch of government. Under the provisions, for example, religious educational institutions must comply with any policies they establish for how they will make employment decisions. The bill allows a government minister to include additional requirements that a school must adopt in its policies without specifying any limits on this ministerial power. Such a provision could allow a minister to undermine the protection by requiring a school to include in its policy a statement that they will not make adverse employment decisions on particular grounds even if the religious school considers those grounds significant due to its religious convictions.

Criticisms of attempts to provide effective protections to religious individuals and organisations by Coalition, Labor, Greens and other politicians provide strong grounds for scepticism that any uncertainties in how the bill will operate will be resolved in favour of religious liberty. Ambiguities and discretionary powers in the bill should be removed as far as possible to increase the likelihood that the enacted legislation will adequately protect religious liberty.

The Bill will also need to be closely examined to remove any anomalies in how it operates.

Clause 11 of the Bill, for example, allows a government minister to declare that particular State or Territory laws will not override protections provided to religious educational institutions regarding their employment decisions. However, there are Commonwealth laws (such as section 351 of the Fair Work Act 2009) that can legally prohibit adverse employment decisions on the basis of religion. If the aim of the provision is to protect the employment decisions of religious educational institutions it is difficult to understand why this protection should be provided in relation to State and Territory laws that undermine the protection but not to Commonwealth laws that may have the same effect.

The Bill is a genuine attempt to protect religious individuals and organisations from discrimination. However, in its current state it is inadequate and needs to be significantly amended to ensure that religious liberty is appropriately protected.

Greg Walsh is a lawyer and university lecturer who has taught at The University of Notre Dame Australia, the University of Western Sydney and the University of New South Wales. His previous legal roles...