Religious Discrimination Act
(Image: Unsplash/Stefie Zawa)

A new draft law protecting people of faith from discrimination is expected to be put to Parliament as early as July 22, potentially forming the basis for Prime Minister Scott Morrison’s long-awaited Religious Discrimination Act. 

“Religious freedom is a core pillar of our society,” he announced on ABC’s 7:30 on Monday night. “I think there are many millions of Australians who would like to see that protected, and I intend to follow through on that commitment.”

Morrison was responding to questions about embattled rugby player Israel Folau’s high court case following Folau’s posting of homophobic content on social media, which saw his contract with Rugby Australia terminated. 

The Prime Minister reiterated promises first made last year to develop a federal religious discrimination act, claiming it “will provide more protections for people because of their religious faith and belief in the same way that people of whatever gender they have or sexuality or what nationality or ethnic background or the colour of their skin”.

Christianity is the dominant religion in Australia, representing 86% of religious Australians. One-third of Australians are not religious — 30% of the population indicated “no religion” on the 2016 census, an increase from the 22% in 2011. A 2016 Ipsos poll which asked the importance of separating “personal religious beliefs from the business of government” found that 57.5% responded that it was “very important” and 20.9% responded “somewhat important”. 

So is a religious discrimination act needed in Australia? 

Checks, balances and shortfalls

Religious discrimination laws in Australia are best described as a seesaw. There are so many acts, charters and laws around discrimination that while one law could protect against discrimination, another could be interpreted to permit it. There are no nationally consistent rules around religious discrimination. 

Imposing any religion and prohibiting the free exercise of religion is barred under section 116 of Australia’s Constitution which states “The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion…”.

Part of the problem is that, unlike every other Western nation, Australia does not have a nation-wide bill of rights to guarantee that citizens can never be deprived of the right to freedom of religion by government. 

The UK and US have a bill of rights dating back centuries; New Zealand’s and Canada’s go back decades. Australia is the glaring exception to the rule. Victoria, ACT and Queensland have each established a human rights act, ensuring judges interpret statutes in line with acts. All states except NSW and South Australia also have legal prohibitions against refusing service to people on the ground of religion.

Discrimination on the basis of religion alone is not unlawful under anti-discrimination law according to the Australian Human Rights Commission — unless you’re an employee. Workers are protected from discrimination under the Fair Work Act. Religious vilification is further prohibited in Victoria, Queensland and Tasmania. 

See? A rickety seesaw dependent on individual state cases. 

Federally, Australians are protected by the Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Sex Discrimination Act 1984. A religious discrimination act could soon be added to this list.

But protection against religious discrimination can already be enacted under racial discrimination laws, with people covered under “ethnic origin”. For example, in 2002 antisemitic leaflets accusing Australian Jews of a range of offences — including controlling the porn industry — were distributed throughout Tasmania. The Federal Court ruled in Jones v Scully that the Jewish group who had been defamed were protected under the Racial Discrimination Act, finding the act covered groups who have shared customs, beliefs, traditions and characteristics derived from their histories.

Internationally, Australia is also a signatory to the Universal Declaration of Human Rights, protecting the rights and freedoms of all people without any distinction — including religious. 

Historic religious discrimination 

In 1941, during the Second World War, the Australian government declared Jehovah’s Witnesses to be “prejudicial to the defence of the Commonwealth” and to the “efficient prosecution of the war” due to their differing belief system. Practising the religion was banned, with police occupying their Adelaide premises. 

In 2014, burqa and niqab wearers were banned from Australian parliament’s public galleries and made to sit behind a glass partition usually reserved for school children — a move slammed by then-race discrimination commissioner Tim Soutphommasane. Also in 2014, a Christian Brethren-owned camp was sued for not accepting a booking for a suicide prevention group for young gays, while in 2016 three pro-life campaigners were fined for protesting too close to an abortion clinic. 

There are scores of both anecdotal and legal examples of religious discrimination. With a religious discrimination act in place, each case would be tried under completely different rules. 

Following same-sex marriage legislation in 2017, a review into religious freedom was ordered by then-prime minister Malcolm Turnbull to “examine whether Australian law adequately protects the human right to freedom of religion”. The review sparked concerns gay students could be expelled from schools, calling for the Sex Discrimination Act 1984 to be amended to allow religious schools to discriminate against students on the basis of sexual orientation, gender identity or relationship status.

While Morrison committed to passing legislation to protect students following public outcry, there are fears religious discrimination laws could permit LGBTIQ discrimination under the guise of religious morals. 

Is it needed? 

In 2017, the United Nations Human Rights Committee called upon Australia to address the lack of federal laws governing religious discrimination. 

In the 1941 Jehovah’s Witness case, which was taken to the high court, Chief Justice John Latham ruled the police occupation of their religious headquarters was unlawful, invoking Section 116 of Australia’s Constitution. 

“A provision as s. 116 is not required for the protection of the religion of a majority. The religion of the majority of the people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities,” he said. 

Scott Morrison is a devout Pentecostal Christian. Is his push to develop the religious discrimination act coming from a desire to protect the minority religious and non-religions? 

While a Religious Discrimination Act will provide nationally consistent regulations and protect the persecuted from toppling off the seesaw of contradicting laws, it could also open doors to strengthen persecution against LGBTIQ minorities. 

It’s also important to note that in the case of Israel Folau, having beliefs criticised is not religious discrimination — it’s just backlash. 

Does Australia need a Religious Discrimination Act? Send your comments to [email protected]. Please include your full name. 

Peter Fray

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