Religious Freedom Bill Australia

The Australian Government is due to vote on a religious freedom bill in the next few months. The second draft of the bill, if it becomes a law, will have huge effects on many areas of public life including access to medical services, schooling, employment, social media, aged care, hospitals and some commercial services.

The second draft

The second draft of the bill allows religious hospitals, aged care facilities and accommodation providers to discriminate against staff if the discrimination is in good faith, consistent and in accordance with their religious doctrines. Religious camps and conferences can discriminate on the basis of religious provided they publish a policy explaining their ethos and rules.

The exemption for religious bodies also extends to ‘public benevolent institutions.’

Religious speech of employees

The bill makes it discriminatory for a business with revenue above $50 million to create an employment requirement that would limit an employee's ability to express their religious views - unless the employer can show the condition is necessary to prevent "unjustifiable financial hardship" to their business.

The bill, also, allows a range of exemptions like, a person hiring a nanny may require that the nanny should be of the same religious belief or activity as the employer.

Innes Willox, head of the Australian Industry Group, said the proposed law would reduce employers' ability to manage inappropriate conduct or impose inclusion policies, and may "advance and protect extremist opinions or behaviour". The bill impairs employer’s efforts to implement diversity and inclusion policies by prohibiting offensive speech. The inclusion policy can be overridden by a ‘statement of belief’ and any action taken against the offender can be appealed to the Human Rights Commission as ‘religious discrimination’.

Medical Practitioners

The new original bill allowed health practitioners to “conscientiously object to providing a health service”, unless it is against the law to refuse treatment.

The new bill specifies that it does not give a right to medical practitioners to discriminate against individuals based on gender or other characteristics. Nevertheless, doctors, pharmacists and other limited categories of medical practitioners can refuse to perform certain procedures, like abortion, or dispense certain drugs, like morning-after pills as long as they refuse to do so for all patients.

Advocacy organisations have made the point that under the bill’s proposals, hospitals and healthcare providers could abrogate medical responsibility towards LGBTQIA+ patients and simply refuse them healthcare, citing naught but the will of a self-designed god.

The AMA submitted that sections of the bill “appear to override the well-developed framework of professional standards of the medical profession” and “create a new confusing element with the potential for serious unintended consequences”.

Attorney-General Christian Porter rejected the idea that the bill would allow health services to discriminate in the services they provide, labelling it "wrong and deceptive". He said that, "The bill makes very clear that, while religious hospitals and aged care facilities can maintain a faith-based ethos amongst their staff, they cannot turn away patients or deliver services differently based on religion,"

On the contrary, Mr Porter has previously used the example of a GP who did not want to "engage in hormone therapies" for a transgender person: "That's fine, but you have to exercise that in a consistent way, so you don't engage in the procedure at all."

Schools

Schools with religious affiliations can require that its staff and student be affiliated with the same religion and refuse to hire or admit them if they are not.

Accommodation, camps and conference sites

Religious camps and conference sites may discriminate against another person on the ground of religious belief.

Effect on Discrimination Law and Jurisdiction

The bill declares that a statement of religious belief does not constitute discrimination under commonwealth, state or territory anti-discrimination law and subsection 17(1) of the Tasmanian Anti-Discrimination Act 1998, which bans speech that offends, insults or humiliates people based on gender, age, sexual orientation, disability and relationship status.

The bill gives religious bodies standing to sue for discrimination and it prevents state tribunals from having jurisdiction to decide on matters concerning religious belief. The bill fails to define religion, due to which Indigenous spirituality can be excluded but esoteric or emerging religions will be protected.

The bill does not protect statements that are “malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence”.

The bill also protects non-religious people when they express a view that a non-religious person could reasonably believe.

Stakeholders concerns

Religious organisations have welcomed the changes made to the original bill.

Bishop Stead welcomed the bill and said the critics “mistakenly claim” the bill will increase discrimination when “something that is currently unlawful discrimination” – such as refusal to provide services or hire someone based on sexuality – “will remain unlawful discrimination”.

However, the Australian Council of Human Rights Authorities, Australian Human Rights Commission, Australian Chamber of Commerce and Industry and more have expressed concern.

The Australian Christian Lobby, which has more than 170,000 supporters, described the bill as containing “fundamental deficiencies which need to be addressed”.

Australian Human Rights Commission has expressed concern that the Bill provides protection to religious belief or activity at the expense of other rights. The bill defines victim of religious discrimination very broadly and defines who can be found guilty of religious discrimination too narrowly.

Unlike other discrimination laws, this bill does not focus on the rights of natural persons to be free from all discriminations as it provides a wide range of exemptions, making a significant departure from international human rights laws.

by Swarnim Agrahari

The Corporate Law Journal6 March 2020Comment