Federal Religious Discrimination Bill flawed

Few would argue that protecting the civil rights of individuals is not an essential part of a well-functioning liberal democracy. While Australia’s constitution covers such protections as the right to vote and trial by jury, most have been enacted in law through Federal Parliament to be embedded in a range of discrimination laws covering such things as age, sex, race and disability.

With each state and territory having its own set of discrimination laws and enforcement agencies, it is a complex area that attempts to enshrine the right of citizens to live free from discrimination. The principles are something of which we can be proud.

The latest instalment of this framework, the Religious Discrimination Bill, was introduced to the lower house by Prime Minister Scott Morrison on Thursday, having been extensively redrafted. The Age supports protecting the religious from discrimination on the grounds of their faith – it has been one area of discrimination law that has been missing. Nobody should be refused employment because of their faith, or refused service because they wear a religious symbol. But the balancing of rights in this area is fraught and the revised bill appears to have flaws that would allow discrimination against others, especially LGBTQ people, in a way that the vast majority of Australians would find abhorrent in 2021.

After being put in the hands of new Attorney-General Michaelia Cash, the proposed laws were watered down somewhat to remove the clause that would have stopped employers acting against workers who make statements of faith that offend others, an issue that arose when Rugby Australia terminated its contract with Israel Folau after he said homosexuals would go to hell. Statements of faith are protected, as long they are made in good faith, are not malicious and do not vilify or harass. This is an attempt to balance freedom of speech with an employer’s right to set workplace standards that encourage inclusion and respect for all people.

It also includes a new provision to protect the right of religious schools to positively discriminate in their employment practices, with an apparent intention to override state laws, including those being pursued by the Victorian government. The institution must have a publicly available policy in relation to conduct in the context of employment.

The federal bill contrasts with proposed laws in Victoria which, if passed, would see religious schools in the state prohibited from sacking or refusing to employ teachers because of their sexuality or gender identity. Only when a particular religious belief is an inherent requirement of the role, such as a chaplain, would a religious school be able to discriminate.

That is a reasonable position in an era when discrimination against LGBTQ people is as unacceptable as discrimination against someone on the basis of race or gender. It is not yet clear whether the federal law will override Victoria’s law, but the state government has vowed to fight it if it does.

Mr Morrison has promised to prevent schools suspending students on the grounds of their sexuality, but the government has asked for an expert review of the law’s impact that will take until early 2023, fuelling frustration about the failure to deliver on a pledge he made in 2018.

Moderate Liberals including Dave Sharma, Katie Allen, Bridget Archer, Andrew Bragg, Warren Entsch, Fiona Martin and Trent Zimmerman have said that the protection for LGBTQ students should be addressed quickly rather than left to the review, with Mr Sharma saying that while he supports the need for legislation, “we must also move quickly to address the potential risks faced by gay students and teachers at faith-based institutions”.

He is right. Religious schools in Australia receive substantial taxpayer funding. No teacher or student should face the sack or expulsion due to their sexuality. It’s about time the law made that crystal clear.

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