A growing chorus of conservative dissatisfaction with the federal government’s Religious Discrimination Bill has gained another voice in Independent MP Bob Katter, who is concerned the bill may unintentionally expose Christians to complaints of discrimination from Australians professing no religion.
Mr Katter disagrees with the bill’s definition of religious belief, which includes “not holding a religious belief” or “not engaging in, or refusing to engage in, religious activity”.
“The definition is not just contradictory,” Mr Katter said.
“My concern is that the consequence of this contradictory definition is that the legislation could be used against people of faith and especially small business owners.”
For instance, section 26 of the Bill seeks to make it unlawful to discriminate against a person attempting to purchase or access goods, services or facilities on the grounds of their religious belief – such as a Muslim woman being turned away from a café because she is wearing a veil.
Mr Katter is concerned that by defining religious belief as inclusive of “not holding a religious belief” the door may be opened to complaints by activists against religious businesses, such as a Christian baker who does not wish to provide services to someone who does not share their faith.
“The whole point of this legislation is that someone should not be able to come after me or punish me due to my religious belief,” Mr Katter said.
Neil Foster, Associate Professor of Law at the University of Newcastle and a board member of Christian legal think tank Freedom for Faith, agrees the bill could prompt such a complaint.
“Yes, it’s possible that a person could go into a business that they know is run by a Christian, and if a person refuses to serve them on the basis that they’re not of a particular religion or of no religion at all, they could make a claim of discrimination,” Associate Professor Foster said.
However, Dr Foster believes there are “very few cases where that could happen”, because a complainant would have to show they were discriminated against because of their lack of religion and not some other trait like gender or race.
Vexatious or spurious complaints by activists are also unlikely to succeed under the new legislation, because “the courts are not fools”, Dr Foster said.
Refusal of service to religious Australians is far more common and on balance he believes the bill is worth supporting even though “it may not be perfect”.
Omission of “Folau clause” a concern
Mr Katter, along with other conservative MPs, is also concerned that with the redaction of the so-called “Folau clause” from the bill the government has missed the point of the push to protect religious freedom.
The third draft of the bill offers far more rigorous protections to organisations than individuals.
“The whole intention of this bill is to protect against religious persecution; people who are being punished because of their religious belief,” Mr Katter said.
“There is no Folau clause in the bill, so I don’t know why the Morrison Government is introducing this legislation.”
Associate Professor Foster believes that individuals may be able to enjoy some protection under section 14 of the bill, by making a claim of “indirect discrimination”.
If an employee is sacked for religious speech—such as quoting scripture—outside of work because of a social media code of conduct or the like, their employer would be discriminating if it was held to be unreasonable.
“The whole point of this legislation is that someone should not be able to come after me or punish me due to my religious belief.”
Similarly, qualifying bodies will have to show under section 15 that provisions in their codes of conduct that could discriminate against religion are “essential requirements”.
“It’s less clear than what was previously called the Folau clause,” Associate Professor Foster said.
The Australian Catholic Bishops Conference representative on religious freedom, Melbourne Archbishop Peter Comensoli, has given qualified support for the bill.
“It had been our hope that the bill would go further in protecting religious freedom,” he said.
“However, we think that this more limited bill will still be an important recognition of the rights of people with a religious faith to express religious beliefs and engage in religious activities.”