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Proposed religious discrimination law hurts others in the community

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Christian Porter, the Attorney-General, has been instrumental in the creation of this Bill (screenshot via YouTube).

The Religious Discrimination Bill 2019 (Cth) legislates freedom for people who want to make religious statements.

It doesn’t, however, define what these statements – which include religious activities and religious beliefs – are. Religious organisations can act in good faith, according to their religious faith, regardless of the circumstance or the outcome.

Australia is a legally secular country. This means that according to the law, Australia is effectively neutral in matters of religion, supporting neither religion nor irreligion. Government’s are not obliged to provide preferential treatment because of religion and all citizens must be treated equally. This is also the basis of egalitarianism, which has historically been an important value impacting Australian culture.

To provide some context, section 116 of the Constitution of Australia 1901 (Cth) in 1901, prohibits the Commonwealth Government from establishing a church or interfering with the freedom of religion in Australia. It also may contravene the United Nations Declaration of Human Rights (UDHR), a non-binding instrument to which Australia is a signatory.

In early September, Australia’s Attorney General, Christian Porter, released a draft of the Religious Discrimination Bill 2019 which offers specific protection for religious freedom in Australia. The Bill was drafted as a result of the 'Religious Freedom Review Report', released to the public by the Morrison Government in December 2018. There were 20 recommendations in the report, several of them recommending changes to legislation.

There are four main Commonwealth Federal Discrimination laws in Australia:

  • Racial Discrimination Act 1975;
  • Sexual Discrimination Act 1984;
  • Age Discrimination Act 2004; and
  • Disability Discrimination Act 1992.

It is the first two of these discrimination laws which the 'Religious Freedom Review Report' recommended be amended, to allow sexual discrimination to occur in schools for religious faith reasons and arguably racial discrimination to occur based on a person’s religious beliefs or activities. In the absence of changes to these laws, a Religious Discrimination Act was recommended.

The Morrison Government has chosen to introduce the Religious Discrimination Bill 2019. The Bill proposes to protect from ‘discrimination on the ground of religious belief or activity, and for related purposes’.

The Bill legislates freedom for religious people to express their beliefs and conduct religious activity and would be overseen by a new Religious Freedom Commissioner. The Australian Human Rights Commission would also have several responsibilities to uphold this.

The core objectives of the Bill listed are:

  • Eliminate discrimination of religious people;
  • Ensure the rule of law is applied, regardless of religious belief; and
  • Ensure people can make statements of religious belief.

The Bill aims to ensure religious people cannot be discriminated against and treated negatively because they choose to express their religious beliefs and conduct religious activities in accordance with their faith. It provides religious freedoms and protections which are broad. It specifies that religious activities can be done in good faith or be reasonable, regardless of anything else said in the Bill. This provision effectively legislates religious faith as law and would allow religious campaigns and a range of activities to be conducted by religious organisations.

There is a high degree of distrust for religious organisations now, due to events involving vulnerable people, particularly women and young children. There is also a distinct lack of gender equality within some religious organisations and very specific hierarchical structures where only men can occupy leadership positions.

It has been proven historically that men and women can have different definitions of what is considered reasonable. There have been relationships reported in Australia between some religious organisations and political parties. Coercive control, where men manipulate women to behave in preferred ways hasn't gone away. 

The Bill has the potential to offer significant protection and freedom to discriminate to religious people in Australia, who could say they were acting reasonably in accordance with their faith. It does not have any protections for vulnerable people, or specific limitations to respect the faith or beliefs of any other person or organisation, a requirement under the UDHR. 

The Bill could be used to disrupt a business established by a same-sex couple or a person who provides abortion-related healthcare. These services are different but no less important than services provided by religious people who have the welcome of the Church, in accordance with Australia’s egalitarian values.

Religion in Australia is predominantly Christian faith. The most recent ABS Census in 2016, recorded 52.1% of the Australian population to be Christian, 30.1% to be no religion, and the remaining 8.2% to be Islam, Buddhism, Hinduism, Sikhuism, Judaism and other as shown in Diagram 2 below. 

In his book The Four Loves, C.S. Lewis, a well-known Christian and English writer, writes about his philosophy for love from a Christian perspective, which is based in part on St John’s words “god is love” and also on the four Greek words for love: storge, philia, eros and agape:

  • Storge (or affection) includes empathy bonds and liking someone through the fondness of familiarity such as family;
  • Philia (or friendship) includes close relationships with friends through common interests and shared values;
  • Eros (or romance) includes intimate relationships with romantic partners through special physical and emotional bonds; and
  • Agape (charity) includes unconditional ‘god love’ which exits regardless of changing circumstances.

It is the fourth love that CS Lewis defines as a charitable form of love which Christians can aspire to as a virtue. He says that without this love, the other three loves can become distorted and bitter. For example, a friendship can withstand long periods of separation and romantic relationships can end well when charity is present.  

The Bill doesn’t mention charity or love of any kind. It doesn’t mention kindness or benevolence. It also doesn’t mention give help or assistance. Religious activities and beliefs are not defined anywhere in the Bill. Religious beliefs and religious activities can have any outcome if done in good faith or considered reasonable. There is no mention that beliefs and activities should be done in good faith and also have a charitable outcome. 

The definition of religious belief or activity, that merely refers to itself, is broad and confusing. It infers that to not hold a belief or not do a religious activity is making a religious statement. There is no distinction between political activity and religious activity, to comply with Australia’s secularity.

The current draft Bill would increase litigation, rather than reduce it. Legislation should encourage demonstration of behaviours consistent with Australian values and trust in the rule of law. It has been suggested that the Bill will be updated soon, this time with input from the Labor Opposition. The changes could provide more clarity, however, it is likely that successful passing of the Religious Freedom Act 2019 will weaken the existing discrimination and religious freedom legal frameworks.

Simone Anon is a management consultant, lecturer and writer. She specialises in strategy, finance, business and innovation. 

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