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The good and the bad of the religious discrimination bill: the Law Council’s verdict

Opinion piece by Law Council of Australia President, Tass Liveris, first published in the Sydney Morning Herald, 9 February 2022. 

There is no question that it should be unlawful to discriminate against a person because of their religious belief or activity. Much of the Religious Discrimination Bill currently under consideration by Parliament is worthy of our support. For example, its objects specifically refer to the indivisibility and universality of human rights and their equal status in international law.

It is right that we should not be discriminated against on the basis of our religion, or lack of religion, in relation to economic and social opportunities, access to goods, services and facilities, education and in many other areas. To the extent that the Bill provides this protection, it fills gaps in our existing federal anti-discrimination laws. However, other provisions in the Bill are at odds with human rights of equal status and may unfairly and disproportionately allow the limitation of those rights.

Clause 12 in the Bill, for example, currently proposes that certain ‘statements of belief’ will not constitute discrimination under any Commonwealth, State or Territory anti-discrimination law. This privileges manifestation of religious belief over other human rights such as freedom from discrimination on the grounds of sex, sexual orientation and gender identity, race, age – and religion itself.

It provides a defence for potentially harmful or humiliating statements in public arenas such as education or people’s place of employment which may otherwise amount to unlawful discrimination, so long as these statements are in good faith and reflect a person’s religious belief. The relevant safeguards in the Bill are inadequate.

According to the Australian Human Rights Commission, human rights “are based on principles of dignity, equality and mutual respect, which are shared across cultures, religions and philosophies. They are about being treated fairly, treating others fairly and having the ability to make genuine choices in our daily lives.”

Australia is a party to a number of international human rights treaties, and its obligations under this global human rights system must frame how our Parliamentarians evaluate the Religious Discrimination Bill 2021 as it comes before them this week.

International human rights law recognises that certain human rights are absolute and no limitation of them is permissible: freedom from torture and slavery are two examples, as is the right to freedom of thought, conscience and religion.

But when it comes to most other rights, these rights may be subject to limitation.

This is the case with the right to manifest one’s religious or other beliefs, as was recognised by the Expert Panel’s 2018 Religious Freedom Review report. Freedom of religion sits alongside and interacts with many other rights of equal status, including the right to equality and non-discrimination.

Of course, two rights may come into conflict, when one person’s claim to exercise one right would, if granted, potentially diminish or extinguish the enjoyment of a competing right by another person. In such a case a fair and reasonable balancing of the rights that permits each person to enjoy the core of each right and that respects underlying principles of equality, human dignity and personhood, is required.

As the Religious Freedom Report said: “Australia does not get to choose, for example, between protecting religious freedom and providing for equality before the law. It must do both under its international obligations.”

Therefore, the Law Council has submitted that Clause 12 should be removed. While it must be noted that two Parliamentary inquiries raised concerns about Clause 12 in reports released last week, their recommendations do not go far enough.

When it comes to the compromise being considered, to amend the Sex Discrimination Act 1984 (Cth), the Law Council continues to support the removal of religious exemptions which enable discrimination against students. It would welcome the introduction of amendments to achieve this objective. However, it cautions that such amendments, if introduced, should not be considered to cure existing defects in the Religious Discrimination Bill.

The Religious Discrimination Bill has commendable goals. There are definitely gaps in federal protections and for some groups in particular there is an acute need for such protection. However, it is essential to get the balance right going forward – each human right and every person’s human rights must be treated with fairness.

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