The first iteration of Scott Morrison’s religious “freedom” law was met with a less than enthusiastic response from the constituency for which it had been invented: the churches.

While the business community had begun scratching its collective head about how it would be allowed to deal with the future Folaus and whether Friday night drinks would have to be cancelled forever, the churches were incandescent.

They believed they had been promised an absolute, unqualified entrenchment of their freedom. You know, the one already explicitly present in every existing piece of federal and state anti-discrimination legislation. The freedom, the right, to discriminate at their pleasure.

The government’s first attempt wasn’t good enough. The churches’ freedoms hadn’t been clearly enough spelled out. So, draft number two has now come out, with extra red meat for the faithful.

The changes mostly revolve around the critical question (for the churches) of how far their freedom to discriminate will extend. This addresses a problem that only exists, ironically, because of the creation of the religious freedom bill. Under the existing law, religious organisations have blanket exemption from anti-discrimination laws.

The problem is that enacting a prohibition on discrimination against the freedom of individuals to express their religious beliefs (or non-beliefs) by words and actions, directly conflicts with the freedom of religious bodies to discriminate on exactly that basis.

Anyway, the government has come down again, and even harder, on the side of institutional religion, to make it crystal clear that the churches’ rights trump our personal rights in all fields, including in relation to religious faith.

Religious, um, business

The right for churches to hire and fire explicitly for religious affiliation has been extended now to religious hospitals, aged care facilities and accommodation providers (such as church camp sites), as well as religious charities even in their operations that are solely and fully commercial.

All of these entities will be able to give preference to employees on the basis of their religion, and will have complete exemption from the law prohibiting religious discrimination in relation to all their activities. So, yes, St Perdita’s Hospital can refuse to hire a Muslim nurse because she’s a Muslim, prohibit her from wearing a hijab at work, and sack her if she refuses.

The only hurdle it has to meet is that these rules exist “to avoid injury to the religious susceptibilities of adherents” of its religion. So, if you’re worried that your Christian patients in your Christian hospital might find a hijab-wearing nurse a bit confronting, no problem. She’s out.

Can the Catholic camping ground or conference centre give booking preference to Catholic groups and individuals? Yes it can.

What about the Christian baker?

He’s still out in the cold. The freedom to discriminate has not been extended to businesses of faith, as opposed to businesses in which faith holds an equity stake. Refusal to bake for gay weddings remains unlawful, unless the baker takes the cloth. Then, totally doable.

LGBTQI kids?

It’s still legal for religious schools to discriminate against LGBTIQ staff and students. Cool cool.

Conscientious objection

This is the other big change. There was a lot of confusion about whether the earlier draft would allow doctors and other health providers to refuse treatment to individuals on the basis of their own religious beliefs

The amended version seeks to clarify that this category of freedom to discriminate will relate only to the procedure, not the patient. A doctor can refuse to perform abortions altogether, but can’t refuse to treat pregnant women as a class.

That’s great but, as has been pointed out, if the only pharmacist in Gunnedah has a personal religious thing about contraception, then tough luck for the locals. His or her religious susceptibilities take precedence over the community’s access to a basic health facility. Of course, if the local pathologist is a Jehovah’s Witness, that’s a whole other thing again.

Why are we doing this to ourselves?

In fairness, we’re not. The general population did not want this unnecessary exercise in self-defeating law-making. The religious freedom review did not identify a need for it. Only two groups in the country have any interest in this law at all: religious organisations and the Christian wing of the Liberal Party.

They’re doing it to us. Our personal religious freedom to believe or not believe whatever we like is fully protected already by the constitution, balanced sensibly against the right of others (including employers) to not have to be subjected to our expressions of those beliefs when they interfere with peaceful and respectful co-existence. Where that line is uncertain (it wasn’t in Folau’s case, but whatever), the courts are already equipped to find it.

This bill was and now is even more obviously about one thing only: extending and embedding the power of the churches to do whatever the hell they like to whoever the hell they hate, immune from legal consequence, while continuing to happily take the benefits of their exemption from having to pay tax and the subsidies their businesses receive from the rest of us who do.

It’s a fit-up.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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