It’s been almost two years to the day since then- Prime Minister Malcolm Turnbull promised that there would be religious freedom protections contained in any bill that would legalise same-sex marriage in this country. At the time, he said that he believed in religious freedom even more strongly than he believed in same-sex marriage.
Two years, two inquiries, an election and a Pentecostal Prime Minister later, Australians of faith are still waiting for some action from its government in the form of protection for religious freedom.
So, to say that last Thursday’s announcement of a Religious Discrimination Bill from Attorney-General Christian Porter was highly anticipated by people of faith was an understatement.
While the Bill might have been closer to what we need had there have been meaningful consultation of faith groups (there wasn’t), it is a welcome first start in recognising the rights of people of faith in this country.
The Bill is largely in the form of other federal anti-discrimination laws, such as the Racial Discrimination Act and the Sex Discrimination Act.
It prohibits discrimination against a person on the basis of religious belief or activity (or lack of religious belief or activity) in areas such as employment, accreditation, education, access to premises, provision of goods, services, facilities and accommodation.
The Bill, if passed, would particularly close a significant gap in New South Wales and South Australia because, unlike most other states, it is currently not unlawful for a person to be discriminated against on the basis of religious belief in NSW or SA.
The Attorney-General described it as a shield, not a sword, and this is an apt description of this Bill.
The Bill also aims to deal directly with cases like the Archbishop of Hobart Julian Porteous and the Israel Folau case.
In terms of Archbishop Porteous, the Bill contains a clause designed to specifically address his case. It specifies that making a statement of religious belief is not discrimination, and deliberately overrides the Tasmanian anti-discrimination law that caused the problem for the Archbishop.
However, this protection does not cover statements deemed to be harassment or vilification, so there is still a risk that a person can (and will) argue that a statement of belief is vilification, and the Archbishop and everyone else will be left at the mercy of a tribunal again.
The problem hasn’t been solved, the goal posts have just shifted ever so slightly. And, it’s not even clear that the “fix” will end up in the eventual legislation, given that Labor’s Tanya Plibersek has indicated that her party would find it difficult to support anything that involved federal law overriding state law.
In terms of Israel Folau, the Bill allows government entities and private companies to place restrictions on what an employee says about their faith both inside the workplace and outside of work hours, but requires large companies, those with an annual turnover of $50 million or more, to show that a restriction on a person making a statement about their beliefs outside work hours is “necessary to avoid unjustifiable financial hardship to the employer.”
This provision has been described as balancing religious freedom rights with a large company needing to protect its brand.
But what religious freedom rights does it protect? The only Australians of faith who get any protection under this provision are those who work for major corporations, and even then, they are only protected if the company is unable to show a potential risk to sales, advertising or sponsorship revenue because of their expression of faith.
For everyone else, the Bill confirms that your employer has a right to restrict what you say about your beliefs at all times, not just while you’re at work.
Ironically, companies are being offered the ability to control what religious employees say and do outside of work to protect their brand while at the same time, an Australian Law Reform Commission (ALRC) inquiry is – at the government’s request – looking at removing the rights of Catholic schools to insist that their staff don’t publicly oppose the faith in word or activity. I guess some “brands” are more equal than others.
Unfortunately, the ALRC report has been pushed out until December 2020, so that this Bill – which is expected to pass before the end of 2019 – and the ALRC’s recommendations are going to be treated as two separate issues. Or worse, it is possible that the limited protections contained in this Bill will be used as a trade-off for a removal of the existing religious freedom protections that the subject of the ALRC inquiry.
We need to keep vigilant. I know it’s hard. We are all a little wearied from the abortion debate, but this religious freedom fight is another one in which we are going to have to be involved. It’s a marathon and a sprint, dear friends.