Discrimination is the New Black

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Words | Harrison Fraser

In 2018, much of Australia celebrated the legalisation of marriage equality following the survey in 2017 showing over 60% of Aussies were in favour of the change. While most LGBTQ+ Australians rejoiced for a hard-won victory, conservative groups within the government and interest groups, such as the Australian Christian Lobby, sought a consolation prize.

By the end of 2019, this prize began to take shape. Now under the leadership of the more conservative Scott Morrison, the government proposed a “package of legislation” that includes:

  • Religious Discrimination Bill 2019
  • Religious Discrimination (Consequential Amendments) Bill 2019
  • Human Rights Legislation Amendment (Freedom of Religious) Bill 2019

The original bills sought to implement some of the recommendations made by the Ruddock Review into the state of religious freedom in Australia. The law reform aims to provide a ‘shield’ for religious Australians by prohibiting discrimination on the basis of religious belief in areas of public life such as work, school, medical services, etc.

The definition of ‘religious belief’ includes those who hold and engage in a religious activity as well as those who do not. In other words, it protects those with and without faith. 

Where this bill goes further than other anti-discrimination laws is in regard to “indirect discrimination.” This has been dubbed the Israel Folau provision, where employers are not allowed to impose rules and guidelines around employee conduct if such rules restrict or prevent an employee from making a statement of belief any time they are not at work. This provision only applies to companies making more than $50 million per year.

The bill also allows conscientious objections by medical professionals, where if their employer requires them to perform certain procedures that conflict with their belief, this amounts to discrimination. It would allow doctors to object to performing abortion and assisted suicide procedures, as well as prescribing contraception and abortion medication. 

Although the government states that these new laws do not intend to override existing state and territory anti-discrimination laws, you guessed it, that’s exactly what it does. 

Tasmanian law prohibits people from offending, humiliating, intimidating, insulting or ridiculing others on the basis of things like sexual and gender identity, disability and sex. 

The new bill proposed by the government says that the Tasmanian law has only been broken when a statement of belief is malicious or is likely to harass, vilify or incite hatred or violence against a person or group of people. According to the new law, statements of belief do not count as discrimination as it appears in any law in Australia. 

This means that state and territory anti-discrimination laws around race, sex and disability do not apply when it comes to statements of belief. 

The original bill was published in August 2019 for interest groups, such as religious organisations, business and medical associations, as well as human rights and LGBTQ groups to respond. I will summarise the responses from these groups.

For the most part, business associations believed such a law would make life harder for companies, who are now unable to comprehensively develop rules and codes of conduct for employees. 

Health and medical groups said this would have a disproportional impact on marginalised communities, such as LGBTQ people, indigenous people and sex workers, who are most at risk for diseases. Where access to healthcare, particularly in rural areas, is already a problem, this law would make things worse for healthcare outcomes. 

Human rights and LGBTQ advocates condemn the bill for similar reasons to health and medical professionals. Such laws would have detrimental impacts for at risk groups in cases where timely access to medical services is vital. Many view these proposed laws as regressive when it comes to respecting the human rights of respect, recognition, equality and dignity for LGBTQ people. 

However, religious groups, except the Uniting Church, found that the bill didn’t go far enough. Yes, that’s right. Instead, they propose that the second draft of the bill extends protection to religious organisation’s commercial enterprises, such as hospitals, schools and retirement villages. Again, you’re hearing this correctly. 

Such commercial enterprises, from the perspective of religious groups, must be allowed to uphold their religious ethos. To do so, religious organisations should be able to discriminate during hiring based on religious beliefs. 

Interestingly, the Uniting Church responded to the first draft of the bill by stating that they do not support privileging statements of religious belief above others’ dignity and well-being. They go on to say that Christians are not persecuted in Australia and to cultivate a kind of victim status is dangerous. 

Following these responses, the Attorney General Christian Porter released a second draft in late 2019 that was labelled by some legal experts as a deeply flawed move. Porter listened to the response and appeared only to hear religious groups. Thus, the second draft enshrines the right for religious groups to actively discriminate in their commercial activities and keeps everything the same. 

Professor of Law at Sydney University, Simon Rice, suggests that the bill turns the entire legislative structure around anti-discrimination in Australia on its head. Rather than just protecting a person from discrimination, as all other laws do, the Religious Freedom Bill allows someone to actively discriminate on the basis of religious belief. 

This therefore moves from being a ‘shield’ to a ‘sword.’ The rationale here is that in facing consequences for saying whatever they want in regard to their belief system, regardless of whether it offends, humiliates, ridicules or intimidates someone, people are being discriminated against. This is the form of so-called ‘indirect’ discrimination that religious organisations appear to care about the most, as was the case for Israel Folau. 

Former justice of the High Court of Australia Michael Kirby argues that introducing such a law would lead to increased discrimination against all people, leading to legal battles in court over which belief system is superior, where an atheist is against a Christian. He says that it would leave our nation and our faith communities more divided than ever. 

To put into perspective what people would be able to say, here are some examples.

A single mother dropping her child off to daycare being told that she is sinful for denying her child a father. 

A teacher telling a student with a disability that their disability is a trial from God.

A waiter in a café promising a gay couple that they will pay for their sins. 

Under current laws, all of these would be examples of unlawful discrimination. I came across an intriguing article that flipped the scenarios on their head. Despite mainly being supported by Christian groups, this law protects all religions equally. Other scenarios were pondered.

An employer during a job interview telling a Christian that their beliefs are like a mental disorder. 

A Muslim butcher intimidating a Christian customer by telling them they are an infidel who will suffer punishment. 

An employer putting a sign above a Christian employee’s desk saying, “Christianity is nonsense.” 

Evidently, this bill is an ill-conceived and unworkable law. It has yet to go through Parliament and become a law and it remains to be seen if it ever will. The push to protect religious freedoms embodies the propagation of a false identity for Christians in particular. It is built on the problematic premise that increased recognition of LGBTQ rights comes at the cost of others. 

I believe that it is key to remember one thing that one of my professors once told me, one can mistake the loss of privilege for oppression.  

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