Update on the Religious Discrimination Bill

We are continuing our work, together with many others fighting discrimination, to ensure the Religious Discrimination Bill (the Bill) does not undermine equality in Australia.

After amendments that better protect LGBTIQ+ students from discrimination in religious schools were made in the lower house, we do not expect further debate on the Bill before the next Federal election, which is likely to be held in May.

Our specialist Equality Law Program has closely followed the legislation closely since it was first proposed in 2019 and have provided submissions on the first, second and third drafts of the Bill.

Below is a snapshot of the legislation’s recent progress as well as our work to ensure it protects all people equally.

The third draft of the Bill

In November 2021, the third draft of the Bill and two pieces of associated legislation were introduced, attracting renewed criticism for their substantial departure from established anti-discrimination protections.

The Bill aims to protect people of faith and without faith from discrimination in certain areas of public life, including employment, education and receiving services. However, it also proposes to override some existing anti-discrimination protections, including on the grounds of race, religion, sex, marital status, disability, sexual orientation, gender identity or intersex status.

The third draft of the Bill was referred to the Joint Parliamentary Committee on Human Rights and the Senate Legal and Constitutional Affairs Committee in late 2021 for inquiries.

Victoria Legal Aid recognises the discrimination experienced by our clients based on their religious belief or activity, and support the inclusion of federal protection from discrimination. However, the Bill contains unprecedented provisions which will undermine existing state and federal protections from discrimination.

Additionally, the introduction of new, separate anti-discrimination laws with different coverage, legal tests, provisions and exemptions creates uncertainty and inconsistency.

We continue to recommend that federal anti-discrimination laws be consolidated and modernised into a single act to promote fairness, consistency and certainty for our clients.

Our submissions on the Bill

Based on our Equality Law Program’s expertise in Victorian and Federal discrimination law, Victoria Legal Aid (VLA) made submissions on the first exposure draft and second exposure draft of the Bill.

Responding to the evidence and advocacy of organisations and people with lived experience, significant provisions relating to conscientious objection in healthcare and restrictions on employers’ ability to enforce ‘conduct rules’ were removed from the third draft of the Bill.

Despite these improvements, several concerning provisions remained.

In a recent submission to the Federal Senate Legal and Constitutional Affairs Legislation Committee, we outlined several remaining concerns with the Bill.

• First, the Bill provides that ‘statements of belief’ do not constitute discrimination if made in ‘good faith’, and the person ‘genuinely considers’ it to be in accordance with their religion. In practice, this removes the availability of current discrimination protections when people have been subjected to otherwise discriminatory or harmful comments based on a statement of belief. Certain exceptions apply, however, these require high thresholds of harm which will be difficult for people who have experienced discrimination to prove. VLA expressed concern that LGBTQI+ people, religious minorities, and women will be vulnerable to hate speech based on religious views under these provisions.
• Second, the Bill introduces protections for religious bodies to discriminate based on religious belief or activity, in the context of employment, education, access to certain premises and certain service delivery. The Bill also allows faith-based hospitals, aged care facilities, accommodation providers and disability service providers to discriminate against people with different or no religious beliefs in employment. Usually, anti-discrimination laws provide protections for natural persons, not organisations or corporations. These unprecedented protections for religious organisation authorise harmful conduct which will undo current protections under discrimination law and have a significant impact on people’s health, wellbeing and social participation.
• Third, qualifying bodies that confer professional qualifications (for example, on doctors and lawyers), will be limited from imposing conduct rules that restrict or are likely to restrict the making of ‘statements of belief’ by its members outside of work. This reduces the ability of professional bodies to protect the public from the risk of harm and to promote inclusive and respectful workplace cultures.

Parliamentary committee reports

The Joint Parliamentary Committee on Human Rights and the Senate Legal and Constitutional Affairs Committee handed down their reports on 4 February 2022.

The committees each expressed technical reservations about aspects of the Bill. Those concerns included:

• Constitutional issues arising from clauses that override existing state and territory anti-discrimination laws.
• The definition of discrimination, and who bears the onus of proving it.
• Clarifying that employers can take reasonable management action, and this would not constitute religious discrimination.
• Clarifying the kinds of statements protected by the ‘statements of belief’ clause.

The reports also showed wide-ranging evidence of stakeholder concerns and opposition to the Bill.

Where to from here

On 10 February 2022, an amended version of the Bill and associated legislation passed the House of Representatives.

While the amendments to the draft Bill prevent religious schools discriminating against students on the basis of sexuality and gender identity, the Bill still contains provisions that override anti-discrimination protections and does not protect LGBTIQ+ teachers and staff from discrimination in religious schools.

The Bill was not introduced in the upper house and it is now unclear whether it will progress before the Federal election.

Leading LGBTIQ+ rights organisation Equality Australia has prepared a factsheet on the Bill. You can follow their Freedom from discrimination campaign.

We will continue to use the evidence and expertise from our specialist discrimination practice to inform and advocate for laws that protect against discrimination and promote equality.