Seems no-one is really happy with Australian Prime Minister Scott Morrison's religious freedom bills

Armed with what appeared to be a sense of personal righteousness, in August 2019 Australian Prime Minister, Liberal MP for Cook and self-proclaimed man willing to "burn" for Australia, Scott John Morrison, released a draft Religious Discrimination Bill 2019 along with the Religious Discrimination (Consequential Amendments) Bill 2019 and Human Rights Legislation Amendment (Freedom of Religion) Bill 2019.

Not everyone is happy with the contents of these bills.

For the institutional religions the bills do not go far enough. While for legal academics, industry bodies and human rights agencies these bills go too far. 

This is a selection of views publicly expressed.......

The Sydney Morning Herald, 4 October 2019: 

Australia's Catholic Church says the federal government's draft religious discrimination laws are "problematic" and require major changes to avoid unwanted "lawfare" and ensure religious bodies keep their ability to hire and fire at will. 

The demands from the country's largest church increase the pressure on Attorney-General Christian Porter to go back to the drawing board on a process that started with 2017's religious freedom review by Philip Ruddock. 

In particular, the Catholic Church wants special rights for religious schools to extend to religious hospitals and aged-care facilities, as well as an explicit override of state anti-discrimination laws. 

And despite the special rules for schools, the peak Catholic school body complained the draft law still "does not provide our schools with the flexibility they require" to ensure staff and students adhere to the tenets of their faith. 

The head of the National Catholic Education Commission (NCEC), former Labor senator Jacinta Collins, said Australia's 1750 Catholic schools must retain their legal right to hire and fire - and accept students - based on how well a person fit into "the ethos" of the school. That included whether someone was baptised as Catholic, or whether they had undermined the tenets of the faith by publicly entering a same-sex relationship or marriage. 

In a 27-page submission to the government on behalf of the Australian Catholic Bishops Conference, the Archbishop of Melbourne Peter Comensoli said the laws "require some significant amendment" to properly assist people of faith. 

He stressed religious hospitals and aged-care facilities "must" be included as religious bodies and enjoy the same hiring and firing rights as religious schools, with the Catholic Church the largest non-government provider of healthcare services in Australia. 

The Age, 4 October 2019: 

Religious believers could be free to publicly shame rape survivors under the federal government’s proposed “religious freedom” laws, Victoria’s Equal Opportunity and Human Rights Commissioner has warned. 

Commissioner Kristen Hilton also noted an unmarried woman would be powerless to seek redress if a doctor told her she was “sinful and dirty” for requesting contraception on the basis of a religious conviction. 

The commissioner has warned federal Attorney-General Christian Porter that his proposed new laws, which the government says are designed to protect the rights of people of faith to express their religious views, risks trampling on the human rights of other Australians…… 

Ms Hilton writes in her submission that the religious freedom laws might allow a worker in a health service to go on social media in their own time and denigrate the homosexuality of sexual abuse survivors. 

Another concern for the commissioner is the potential under the proposed laws that a private business or religious group could demand the right to provide sexual health education in government schools and tell children that homosexuality is an illness and that the use of contraceptives is a sin. 

A clause in the draft bill stating that expressions of belief should be protected from anti-discrimination laws could have the effect, Ms Hilton wrote, of "emboldening some people to characterise survivors of sexual assault or rape as being blame-worthy for not being sufficiently modest or chaste."….. 

“But religious expression needs to be balanced against other rights, such as the right to be free from discrimination,” the Commissioner wrote. 

“This bill does not get the balance right. 

“By privileging religious expression, the rights of other people are diminished."  

The Guardian, 4 October 2019: 

Legal academics and the Diversity Council have warned that the Coalition’s proposed religious discrimination bill is unworkable for employers and will thwart policies designed to create safe and inclusive workplaces. 

In a joint submission, the academics warn the bill’s proposed ban on workplace policies regulating religious speech would leave employers in the invidious position of having a duty under occupational health and safety laws to create safe workplaces, but being restrained in their ability to prevent bullying. 

The Australian Chamber of Commerce and Industry has warned the bill does not properly define religion, meaning that Indigenous spirituality could be excluded by the common law definition while “esoteric or emerging religions” are protected. 

The draft bill would prevent employers from having codes of conduct that ban religious speech in the workplace or on social media, on the grounds that such a ban would indirectly discriminate on the grounds of religion. The provision exempts large employers only if they can show they would suffer “unjustifiable financial hardship” without the rule. 

The academics’ submission – coordinated by Liam Elphick and Alice Taylor and signed by Professors Beth Gaze, Simon Rice and Margaret Thornton – noted the effect of the section is that religious speech “would have greater protection from employer intervention than any other statement or expression”. 

For example, an employer with a code of conduct banning employees from publicly engaging in controversial political debates would not be able to impose the rule on a religious employee who wanted to oppose marriage equality. A gay employee, however, would be restricted from publicly supporting it. 

“There are also workability issues in how an employer can factually prove that a conduct rule is ‘necessary’ to avoid unjustifiable financial hardship, considering the very high standard required to prove necessity,” the academics said. 

The academics warned the clause exempting religious speech from federal, state and territory discrimination protections would create an “unworkable situation for businesses in regard to employment”. 

“Work health and safety laws impose a positive duty on employers to prevent bullying, and discrimination laws require businesses to provide their services free from discrimination, yet [the exemption] would authorise bullying and discrimination,” they wrote. 

The Australian, 1 October 2019: 

The Anglican Church says the Morrison government’s draft religious discrimination bill contains problems “so serious” it cannot support it in its current form, warning that some groups like Anglicare and Anglican Youthworks may not be protected. 

In its submission to the government, the Anglican Church Diocese of Sydney outlined seven issues to be addressed and called on Attorney-General Christian Porter to expedite the Australian Law Reform Commission’s inquiry into laws that impact on religious freedoms. 

Under clause 10, religious bodies “may act in accordance with their faith” and do not discriminate against a person if their conduct may reasonably be regarded as in accordance with their doctrines, tenets, beliefs or teachings. A religious body that “engages solely or primarily in commercial activities” is excluded. 

Bishop Stead said the explanatory memorandum made it clear religious hospitals and religious aged-care providers would not be considered religious bodies. 

Anglican Youthworks, which charges fees to run “Christian Outdoor Education” programs, could also be disqualified because it engaged in commercial activity.While commending the bill, Bishop Stead said the clause might have a perverse effect. 

The Guardian, 30 September 2019: 

Key provisions of the religious discrimination bill may be unconstitutional because they allow medical practitioners to refuse treatment, and privilege statements of religious belief, an academic has warned. 

Luke Beck, a constitutional and religious freedom expert at Monash University, warned the Coalition’s exposure draft bill may be incompatible with international law and therefore not supported by the external affairs power in the constitution. 

The submission echoes concerns from the Australian Human Rights Commission and Public Interest Advocacy Centre that the bill will licence discriminatory statements about race, sexual orientation and disability on the grounds of religion, and that it privileges religion over other rights. 

What is the religious discrimination bill and what will it do? Read more The bill has been criticised for overriding state and federal discrimination law, including section 18C of the Racial Discrimination Act, which prohibits speech that offends, insults or humiliates people based on race. 

Beck argued the bill provided a “bigger sword” to religious people’s statements of belief than those of non-religious people. Statements of belief can be made “on any topic whatsoever” provided they “may reasonably be regarded” as in accordance with a person’s religious beliefs. 

By contrast, statements of non-belief must deal only with the topic of religion and “arise directly” from the fact the person does not hold a religious belief, the associate professor said.  

Freedom For Faith, undated submission:

The overwhelming concern of faith-based organisations across the country with whom we have spoken is about the effect of the Bill on their religious mission, with particular reference to their staffing policies, but also in relation to other issues. 

Staffing policies in faith-based institutions 

At a meeting in Sydney with a range of faith leaders a few weeks ago, the Prime Minister promised that the law would not take faith groups backwards in terms of protection of religious freedom. The difficulty is that this Bill does, in relation to staffing of faith-based organisations. The issues are existential ones for many faith-based organisations. If the issues are not resolved, this may lead us to conclude that the Bill is better not being enacted. That said, we have every confidence that the Attorney-General will be able to sort the drafting problems out. 

Currently, at least in some States, it is lawful for faith-based organisations to appoint, or prefer to appoint, adherents of the faith without breaching anti-discrimination laws. So for example, a Catholic school may prefer practising Catholic staff, or at least practising members of other Christian denominations. A Jewish school may prefer Jewish staff, and so on. This is no different to a political party which may choose or prefer staff who support the policies of the party, or an environmental group that wants staff who will believe in its mission. Organisations that exist for a particular purpose or are associated, for example, with a particular ethnic group, need to be able to have staffing policies that reflect their purpose and identity. 

This is not a right to discriminate. It is a right to select. And it is just plain common sense. A Church’s childcare centre is not like the Commonwealth Bank or a shop selling bedroom furniture. The childcare centre is part of the mission and ministry of the Church. If it could not insist on employing Christian staff, or at least having a critical mass of Christian staff, it would cease to be a Christian ministry. 

Many faith-based organisations have a strong preference for staff who are practising adherents to the faith, in order to maintain their religious identity and culture. However, larger organisations typically do not make it an inherent requirement of working there, because they need the flexibility to meet their staffing needs without drawing from too narrow a pool......


Neither of these examples cover situations where there is merely a preference to employ practising Catholics or practising Christians more generally. Furthermore, even if a Catholic school or other charity did have a policy of only employing Catholic staff, it would only be lawful if this could reasonably be regarded as in accordance with the doctrines, tenets, beliefs and teachings of Catholicism. That may be a difficult test to satisfy in the eyes of a court. The court may find it hard to see how the Catholic school’s preference in terms of employment may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion. The school, however, may take the view that it is a necessary implication of their doctrines that they want to maintain a Catholic ethos by having a “critical mass” of believing staff. Whether or not this policy does flow from religious doctrines – it is really about the purpose of having a Catholic school – it would be best if the legislation made it clear that such a policy was not unlawful.

Christian Schools Australia, undated:

In conjunction with the release of this package of Bills the Government narrowed the Term of Reference of the referral to the Australian Law Reform Commission (ALRC) of the other aspect of the response to the Religious Freedom Review of interest to Christian schools and deferred the timetable for this review. 

While the substance of the ALRC review remains the same it will now do so in the light of the proposed legislation circulated last week. Rather than releasing a Discussion Paper next week it will now release a discussion paper “in early 2020” with the reporting deadline to Government pushed back from April 2020 to 12 December 2020. Although claimed to “reduce confusion for stakeholders” the amended timeline will require the Religious Discrimination Bill and associated legislation to be finalised BEFORE the discussion paper on proposed amendment to the existing amendments are released. 

CSA is concerned that this will not allow appropriate consultation on the complete package of reforms affecting Christian and other faith-based schools. 

We have raised this with the Attorney-General’s office and will continue to advocate for a more coordinated response to both aspects of the whole package.

Australian Human Rights Commission, 27 September 2019: 

However, the Commission is concerned that, in other respects, the Bill would provide protection to religious belief or activity at the expense of other rights. The Bill also includes a number of unique provisions that have no counterpart in other anti-discrimination laws and appear to be designed to address high-profile individual cases. As a matter of principle, the Commission considers that this is not good legislative practice. As a matter of substance, the Commission considers that this may lead to unintended and undesirable consequences. 

The Commission’s main concerns regarding the Bill are as follows. 

First, the scope of the Bill is overly broad in defining who may be a victim of religious discrimination and, arguably, too narrow in defining who may be found to have engaged in religious discrimination. 

Unlike all other Commonwealth discrimination laws, which focus on the rights of natural persons (that is, humans) to be free from discrimination, the Bill provides that claims of religious discrimination may be made by corporations including religious institutions, religious schools, religious charities and religious businesses. This is a significant departure from domestic and international human rights laws which protect only the rights of natural persons. 

At the same time, the Bill provides that ‘religious bodies’—including religious schools, religious charities and other religious bodies—are entirely exempt from engaging in religious discrimination if the discrimination is in good faith and in accordance with their religious doctrines, tenets, beliefs or teachings. This is a wide exemption that undercuts protections against religious discrimination, particularly in the areas of employment and the provision of goods and services, and requires further close examination. 

Secondly, the Bill provides that ‘statements of belief’ that would otherwise contravene Commonwealth, State or Territory anti-discrimination laws are exempt from the operation of those laws. Discriminatory statements of belief, of the kind described in clause 41 of the Bill, whether they amount to racial discrimination, sex discrimination or discrimination on any other ground prohibited by law, will no longer be unlawful. The Commission considers that this overriding of all other Australian discrimination laws is not warranted, sets a concerning precedent, and is inconsistent with the stated objects of the Bill, which recognise the indivisibility and universality of human rights. Instead, this provision seeks to favour one right over all others. 

Thirdly, the Commission is concerned about two deeming provisions that affect the assessment of whether codes of conduct imposed by large employers on their employees, and rules dealing with conscientious objections by medical practitioners, will be considered to be reasonable. Unlike all other Commonwealth discrimination laws, the Bill prejudges the assessment of reasonableness by deeming some specific kinds of conduct not to be reasonable. This means that, in those cases, not all of the potentially relevant circumstances will be taken into account. 

Fourthly, those deeming provisions also have an impact on the ability of employers to decide who they employ. The Bill provides that employers may not decide that compliance with a code of conduct that extends to conduct outside work hours, or with rules dealing with conscientious objection, are an inherent requirement of employment, if they would be unreasonable under clause 8. This means, for example, that the narrow deeming provisions about what is reasonable for organisations with an annual revenue of more than $50 million also has an impact on the decisions by those employers about the conditions they may set with respect to employment. 

These four issues, and a range of others relating to all three Religious Freedom Bills, are dealt with in more detail in the body of the Commission’s submission. In revising the Bill, attention needs to be paid not only to its text, but also to the eventual Explanatory Memorandum. At several points the current Notes provide examples and explanations that suggest a very limited scope for religious organisations to retain their ethos and identity, and conversely an expansive scope for suppression of free speech. It is difficult to reconcile these Notes, at various points, with government policy as expressed by the Prime Minister and Attorney-General.