It is no accident that Attorney General Christian Porter launched the exposure drafts of the Religious Discrimination Bill in the Great Synagogue in Sydney. Jews make up less than one percent of the Australian population, with only 91,025 people self-identifying as Jewish at the 2016 census.
The launch of the exposure draft in the place of worship of a minority faith is an important reminder that these laws are needed to protect those least able to protect themselves. As Chief Justice Latham explained in Adelaide Company of Jehovah’s Witnesses v Commonwealth, “[t]he religion of the majority of the people can look after itself.” Whereas laws such as those proposed in the Religious Discrimination Bill exposure draft are, as I’ve written previously, “required to protect the religion (or absence of religion) of minorities, and, in particular, unpopular minorities.”
In its report, the Ruddock Religious Freedom Review recommended the federal government amend the existing Racial Discrimination Act 1975 (Cth) or enact a new Religious Discrimination Act “to render it unlawful to discriminate on the basis of a person’s ‘religious beliefs or activity’.” The government has decided to take the second of these two options. The new law will add to the suite of existing federal anti-discrimination legislation including the Age Discrimination Act 2014 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), Fair Work Act 2009 (Cth) and Australian Human Rights Commission Act 1986 (Cth). Religion’s exclusion from this list of Federal anti-discrimination protections is an omission the remedy of which is long overdue.
It is unfortunate, however, that the Religious Discrimination Bill has been written in the wake of specific high-profile incidents that may be examples of religious discrimination. The risk is that in focusing on these specific incidents, we will not see the wood for the trees. Already commentary on the Bill has begun to focus on whether or not Israel Folau would have been permitted to put out his controversial Instagram post or whether the Catholic Archbishop of Hobart, Julian Porteous, would have been reported to the Tasmanian Anti-Discrimination Commission. Section 41 of the Bill is already being referred to as the “Porteous provision,” while clause 8(3) is clearly aimed at the Folau incident.
Section 41 of the Religious Discrimination Bill exposure draft provides that a “statement of belief” does not constitute discrimination. It goes so far as to specifically override section 17(1) of the Tasmanian Anti-discrimination Act 1998 (Tas), which prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of attributes such as disability, sex, sexual orientation and gender identity. This was the provision under which the complaint was made against Archbishop Porteous after he issued a pastoral letter setting out the Roman Catholic position on marriage.
Section 8(3) of the Bill refers specifically to “employer conduct rules.” It provides that for employers with a revenue of $50 million per year or more, such rules are indirect religious discrimination unless the employer can demonstrate the rule is “necessary to avoid unjustifiable financial hardship to the employer.” This is clearly aimed at conduct rules such as those imposed by Rugby Australia on its players.
While the focus thus far has been on specific clauses designed to “fix” specific problems, if the debate about the Religious Discrimination Bill exposure draft is to progress it must shift to the real issue — religious discrimination itself.
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Religious discrimination and persecution are lived realities for people around the world. On 22 August 2019 the United Nations marked, for the first time, the international day to commemorate the victims of acts of violence based on religion or belief. The plight of religious groups such as the Yazidis in Syria and Turkey, the Rohingya in Myanmar and the Uyghurs in China stand as a stark reminder of what can happen if religious discrimination is allowed to run unchecked. Religious persecution does not begin with genocide — it begins with discrimination and vilification.
While Australia is far from perfect, the average Australian does not need to fear arrest, assault or persecution because of their religious beliefs and practices. This is no excuse to exclude those of faith from the protection of religious discrimination laws. It is now, while we do not have rampant religious discrimination, that we must protect the most vulnerable. It is too late when we are already vilifying them. In passing a Religious Discrimination Act, the federal government can send a powerful message both to Australia’s minority faith communities and persecuted religious groups around the world: your human rights matter; in Australia, discrimination on the basis of religious belief and activity will not be tolerated.
The focus on cases such as Israel Folau and Archbishop Porteous places too much attention on the powerful. The focus instead should be on the vulnerable. Australia’s hands are far from clean in this regard.
In 2014, federal Parliament banned those wearing facial coverings from sitting in the public viewing areas. While the ban was short lived, it was a clear example of discrimination against Muslim women on the basis of their religious activity. With no federal Religious Discrimination Act, Muslim women who wear the niqab or burqa for spiritual reasons had no avenue to challenge the ban. Muslims make up just 2.6 percent of the Australian population. Muslim women who wear a facial covering are a tiny fraction of that number. They are a small, vulnerable minority — the very definition of the “unpopular minorities” identified by Chief Justice Latham.
In Arora v Melton Christian College, the Victoria Civil and Administrative Tribunal (VCAT) found in favour of a Sikh school boy who had been refused enrolment at Melton Christian College. The School’s uniform policy required that boys must have short hair and prohibited the wearing of a head covering. As a Sikh, the child at the centre of this case wanted to wear a patka, a small piece of cloth tied around the head to keep the wearer’s long hair neat and tidy. Sikhs believe that their hair should remain uncut as one of the “five requisites of the faith.” The discriminatory nature of the school’s policy is clear from its wording, which specifically prohibited the wearing of “head coverings related to a non-Christian faith.” While the VCAT found in favour of the student in this case, the very fact that the school felt it appropriate to discriminate in this way demonstrates just how far we have to go.
The Religious Discrimination Bill exposure draft is not perfect. There is much in it that should be improved, from both a religious and LGBTIQ+ perspective. But I would urge these two groups to stop trying to find ways to use discrimination laws as a sword to attack each other and instead find ways to collectively hold religious discrimination laws up as a shield to protect vulnerable minority religions. Disagreement over specific clauses, aimed at fixing discrete examples, which may or may not be religious discrimination, must not be allowed to derail the Religious Discrimination Bill. I am sorry Christian and LGBTIQ+ groups, this isn’t (just) about you. This is bigger than you.
Renae Barker is Senior Lecture at the University of Western Australia School of Law, Honorary Research Fellow at the Centre for Muslim States and Societies and Writing Fellow at Brigham Young University International Centre for Law and Religion Studies. She is the author of State and Religion: The Australian Story.