The Sydney Morning Herald,
1 September, 2019
Reproduced with permission
Xavier Symons*
It is no surprise that the Religious Discrimination Bill is being criticised as too strong by aggressive secularists and too weak by people of faith. Federal Attorney-General Christian Porter describes the bill as a "shield against discrimination", not a sword.
The fundamental point is that this is not a religious freedom bill. It is a religious discrimination bill with a narrow focus on a very specific set of issues.
It characterises religious belief as a "protected attribute" of individuals akin to age, sex or sexual
orientation. This is unlikely to satisfy many religious stakeholders who believe that religion is a
positive good, not just for individuals (like sexual orientation), but also for communities.
Specifically, the bill recognises a qualified individual right to freedom of religion and religious
expression and provides some protections for religious-affiliated institutions which wish to
maintain a faith-based ethos in their operational policies.
It protects Australians from religious discrimination in employment, accommodation, education
and sport. In particular it protects employees from unreasonable "employer conduct rules", to
prevent a repeat of Rugby Australia’s Twitter-spat-turned-legal-stoush with Israel Folau.
It protects healthcare practitioners who conscientiously object to procedures like abortion and
euthanasia, and it clarifies the right of charities and religious organisations to endorse a
traditional definition of marriage.
Paragraph 41 nullifies some of the harsher implications of Tasmania’s controversial Anti-
Discrimination Act 1998. In 2015 a complaint was made to the Tasmanian Human Rights
Commission against Hobart Archbishop Julian Porteous, after a booklet defending traditional
marriage was distributed in Catholic parishes and schools. Explanatory notes to the new bill
declare that "a statement of belief regarding a biblical view of marriage" would not contravene
Tasmania’s Anti-Discrimination Act, despite the act’s prohibition on conduct which offends,
humiliates, intimidates, insults or ridicules another person.
But people of faith can quite rightly object to this bill. Porter has constructed a patchwork,
jury-rigged, rickety scaffolding to placate religious critics without laying a firm foundation. He has
thrown them a handful of lollies without satisfying their hunger for an acknowledgement of the
vital role of religion in society.
They will object, and rightly so, that the conscientious objection clause is manifestly inadequate.
This section does not invalidate state and territory law on conscientious objection with respect to services such as abortion. Objecting doctors will still be required in some states to provide
women with a written referral for abortion should a referral be requested (despite the fact that
this is in the vast majority of cases unnecessary).
The bill also stops short of recognising the right of healthcare institutions to conscientiously
object to providing morally controversial healthcare services. It does not recognise, for example,
the right of a Catholic nursing home to refuse to allow voluntary assisted dying on the premises.
Clause 10 allows religious schools to hire staff on the basis of religious affiliation. It does not,
however, cover the controversial issue of whether a teacher could be dismissed after entering
into a same sex marriage. The Australian Law Reform Commission is currently conducting a review of the Sex Discrimination Act 1984 and it may recommend that Sections 37 and 38 of that Act -- which exempt religious organisations - be repealed. In that case, religious schools would be unable to protect their unique ethos.
Incredibly – that is, if Porter expected applause from religious leaders – the bill states that its
provisions for religious institutions do not apply to commercial entities such as a halal butcher or
a Christian-run cake shop. It would not protect, for instance, Jack Phillips, the Colorado baker who refused to decorate a cake for a gay marriage celebration, even though the US Supreme Court found in his favour last year in a 7-2 decision.
Porter says that the bill is a "shield" and says that "rights positively expressed are powerful
swords, but they are always dual-edged swords". Yet this "swords" and "shields" palaver is at best simplistic, and at worst, deceptive. Chivalric imagery makes religion sound like a knights and dragons affair rather than a deep and transcendental aspect of human experience.
Secular critics, for their part, will decry the "religious exceptionalism" of this bill. Religious freedom, however, is not about a group of entitled, God-bothering zealots insisting on their civic privilege. Christianity and other religious traditions aspire through public outreach to strengthen communities. They need protection to conduct their public work in an authentic manner. To ignore the communitarian dimension of religious faith – as this bill does – strikes at the heart of the personal identity of believers.
Xavier Symons is a Research Associate in the Institute for Ethics and Society at the University of Notre Dame Australia.