In recent years, an important debate about religious discrimination and the intersections between religious beliefs and other rights has unfolded in Australia. In this post, we report on the debate surrounding the Religious Discrimination Bills and how GLaD program members have argued for reforms that would strike a better balance in protecting and respecting human rights.
The Religious Discrimination Bills are a suite of three Bills – the Religious Discrimination Bill 2022, the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Bill 2022 – which passed through the federal House of Representatives in the first half of 2022. The Bills prohibit discrimination on the basis of a person’s religious belief or activity in a range of areas of public life, provide that certain statements of belief do not constitute discrimination for the purposes of federal, state or territory anti-discrimination laws, and, following amendments by the House, prohibit religious educational institutions from discriminating against students or prospective students on the basis of their sexual orientation, gender identity, marital or relationship status or pregnancy. The latter removes existing laws in place since 1984 (and expanded in 2013) that allow discrimination by religious educational institutions.
A key issue with these Bills is how they balance competing rights. On the one hand, the Bills protect people from discrimination based on their religious beliefs or activity. On the other, the Bills enable discrimination based on religious belief or activity in a way that could affect the rights other people, including LGBTQ+ people, unmarried people, people living in de facto relationships, and pregnant people.
There are two committees that scrutinise legislation as it comes before parliament: the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills. Both undertake human rights scrutiny of Bills. The Parliamentary Joint Committee scrutinises compatibility with international human rights conventions and covenants, and the Senate Standing Committee with ‘personal rights and liberties.’ (The Senate Legal and Constitutional Affairs Legislation Committee also undertook an inquiry into the Bills.)
In our submission to the Parliamentary Joint Committee, we: argued that the Bills should be strengthened to only allow discrimination that is necessary to accord with a body’s religious beliefs and maintain their religious ethos; questioned whether allowing bodies to discriminate against potential employees in order to avoid injury to the religious feelings of adherents of their religion is a proportionate means of maintaining the religious ethos of the body; and raised issues with the overriding of state and territory laws, including new Victorian laws that stipulate that religious educational institutions may only discriminate based on religious belief if the belief is an inherent requirement of the role and to do so is reasonable and proportionate. We also argued that provisions allowing religious educational institutions to give preference based on religious belief are not proportionate to the objective of maintaining a religious ethos within an educational institution as they allow broad discrimination against teachers and staff who may play no role in the practice and teaching of religion in religious educational institutions.
Many proposed provisions would allow religious organisations to discriminate if it is in accordance with publicly available policies and, further, that the Minister may determine requirements for such policies. Both Committees raised concerns with this, with the Senate Standing Committee stating that ‘significant matters, such as the requirements for policies relevant to the application of discrimination law, should be included in the primary legislation.’ Whilst the former Attorney General initially ruled out making changes to accommodate these concerns about transparency, the then Government eventually backflipped and amended the Bills to set out what is required in a policy for organisations that wish to use certain anti-discrimination exemptions.
The Bills are currently before the Senate, but the new Labor Attorney-General has indicated that the Labor Government will be ‘drafting (a new piece of) legislation.’ The Attorney-General has said the new legislation will ‘protect teachers from discrimination at work, whilst maintaining the right of religious schools to preference people of their faith in the selection of staff.’ Whilst the commitment to protect teachers from discrimination is welcome, it is important that any discrimination based on religious belief is necessary and proportionate. Any new legislation will be subject to human rights scrutiny by the Parliamentary Joint Committee and Senate Standing Committee, so this provides another important opportunity for assessment of the human rights impacts of reforms around religious discrimination.