Religious Discrimination Bill 2021 and related bills
The submission to the Parliamentary Joint Committee on Human Rights (PJCHR) and the Senate Legal and Constitutional Affairs Committee (the Committee) regarding their inquiries into the Religious Discrimination Bill 2021 (the Bill) and related bills (the Religious Discrimination (Consequential Amendments) Bill 2021 (Consequential Amendments Bill) and Human Rights Legislation Amendment Bill (Human Rights Bill) was prepared by the Law Council of Australia.
The Law Council continues to recognise that there are opportunities to consolidate and strengthen federal protection against discrimination on the basis of religion. It refers in this regard to the 2018 findings of the Expert Panel on Religious Freedom1 (Religious Freedom Review). While highlighting the absence of federal protections, the Religious Freedom Review also did not accept that religious freedom was in ‘imminent peril’. As such, a measured and moderate approach to law reform, which accords with established federal, state and territory antidiscrimination laws, would seem appropriate.
The Law Council considers that many aspects of the Bill are unobjectionable. It also recognises improvements made since the Bill’s second exposure draft. It welcomes the removal of the employer conduct rules concerning statements of belief, and health practitioner conduct rules concerning conscientious objections, which it considered to be unorthodox, complex and unnecessary departures from standard ‘reasonableness’ tests for indirect discrimination.
The Law Council is, however, concerned about certain aspects of the Bill. These include clause 12, which provides that statements of belief will not constitute unlawful discrimination under any Commonwealth, State or Territory antidiscrimination law. This provision provides that, contrary to international human rights law, manifestation of religious belief must be privileged over other human rights such as freedom from discrimination on the grounds of sex, sexual orientation, disability, race and age. It waters down long-standing and hard-fought protections, upsets the usual balance of federal laws operating concurrently with State and Territory laws, and provides a defence for potentially harmful and humiliating statements made in public arenas which would otherwise be unlawful discrimination. The provision also adds significant procedural complexities and costs to resolving discrimination matters at the State and Territory level. The Bill’s object in clause 3 regarding statements of belief should also be removed.
1 Religious Freedom Review: Report of the Expert Panel, 18 May 2018 (Religious Freedom Review).