Civil Law

By Olivia Huntington


The Religious Discrimination Bill – protecting discrimination or facilitating it?

The Commonwealth Government has now released three highly anticipated draft bills, in response to the findings of its Expert Panel into Religious Freedom in its report of December 2018. This panel was called to examine whether freedom of religion is adequately protected by Australian law, off the back of the marriage equality debate which subsumed most of 2017.


In a nutshell – the Panel considered the existing Commonwealth, State and Territory anti-discrimination legislation, did not afford quite enough protection for a person’s religious belief or activity. There is a pretty patchy framework of federal and state laws that provide protection against discrimination based on religious belief, and whilst there is no specific religious anti-discrimination law, the reality is even in the current framework, it would, in reality, be pretty difficult to get away with religious discrimination (assuming, of course, if it were prosecuted). In the same breath, it seems the Panel accepted that – they found Australia enjoys a high degree of religious freedom with the protections already in place. This contradiction begs the question – is this legislation really necessary?


Under the Australian Constitution, and internationally under the International Covenant on Civil and Political Rights, freedom of religious belief or activity is considered a basic human right (as is one’s choice not to have a religious belief). The idea is everyone is entitled to hold their own religious beliefs without fear of, or exposure to, discrimination. However, of concern for many in that context, is that this proposed legislation creates a platform for individuals who hold strong religious beliefs to express their controversial (and in some circumstances discriminatory) opinion, without consequence.


The most noteworthy of the three bills, the Religious Discrimination Bill (“the Bill”), will make it unlawful to discriminate on the ground of religious belief or activity, in key areas of public life. The Bill provides that treating a person less favourably because of their religious belief or activity is unlawful, and will capture both direct – and indirect – discrimination. To complain about discrimination, the legislation allows an applicant to lodge a complaint with the Australian Human Rights Commission, and if that remains unresolved, to make an application to the Federal Court or the Federal Circuit Court for damages. This is in line with current Discrimination Acts, such as the Racial Discrimination Act 1975.


On the anti-Bill side of the ledger, there are the groups like LGBTIQ+ advocates, who say the legislation will introduce special entitlements for people of faith, and water down anti-discrimination protections for others. For example, the provision making it unlawful for an employer to discriminate against an employee on the ground of the employee’s religious belief or activity, in the terms and conditions of employment or by dismissing the employee[1], will make it difficult for employers to foster a safe and inclusive environment for people of said group.


Further protection is accorded to a statement or belief made in good faith, which will not be found to be discrimination, unless the statement is malicious, or is likely to harass, vilify or incite hatred or violence against another person or group.[2] This provision is, apparently, necessary to ensure that people have the ability to simply express their genuine religious belief in good faith.[3] 

The concerns about that, for persons who regularly find themselves the subject of discrimination, are not unfounded.


On the other side of the ledger, there are those who say the Bill does not go far enough, and there should be general protections for religious believers, and a ‘positive right’ to religious freedom.


Looking at the complete picture, the proposed legislation, in its current form (and noting its apparent goals), seems fairly unnecessary, in the context of protections which already exist. Whilst they are patchy – they have proven adequate to date. Perhaps they could be tidied up and unified – but a complete overhaul in the terms suggested seems unnecessary at best, and dangerous at worst. The Bill seems to have been drafted off the back of high-profile discrimination cases, and has potential to open the flood gates for individuals and grounds to unleash their views without consequence, and for people to feel unsafe in the workplace as a result. Legislation with that kind of potential needs to be re-evaluated, and considered seriously – it should not be a knee-jerk reaction. If religious discrimination legislation is really necessary, it is important to focus on the protection of religious minorities who do suffer at the hands of discrimination, and not simply give more powerful religious groups more ammo.

[1] Religious Discrimination Bill 2019, s 13(2)(a)(c).

[2] Religious Discrimination Bill 2019, s 41.

[3] Explanatory notes – Religious Discrimination Bill 2019.