On 22 November 2017, then Prime Minister & Liberal MP for Wentworth Malcolm Bligh Turnbull announced a review into religious freedom in Australia.
The review was in response to pushback by religious institutions & conservative persons of faith once it became clear that the nation would be considering separating gender from the definition of legal marriage1 and, the possibility that the Commonwealth Marriage Act 1961 would be amended to reflect this.
The Religious Freedom Review was conducted by an Expert Panel, chaired by former Liberal MP for Philip Ruddock, and was comprised of Emeritus Professor Rosalind Croucher AM, Dr Annabelle Bennett AC SC, Father Frank Brennan SJ AO and Professor Nicholas Aroney.
The Report of the Expert Panel was presented to the Prime Minister on 18 May 2018 – five months and nine days after the Marriage Act had indeed been changed to create marriage equality as a fact under law – and it made a total of twenty [20] recommendations.
In the following years there were three publicly released iterations of the proposed draft legislation. These are the versions currently before the Parliament:
Religious Discrimination Bill 2021 [Provisions];
Religious Discrimination(Consequential Amendments) Bill 2021 [Provisions]; and
Human Rights Legislation Amendment Bill 2021 [Provisions].
On 2 December 2021, the Senate referred all three bills to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 4 February 2022.
On 4 February 2022, this committee tabled its 164 page Report.
The Report states in part: The religious discrimination bill seeks to implement recommendations 3, 15 and 19 of the Religious Freedom Review, while the human rights legislation bill would implement recommendations 3, 4 and 12.2 It is silent on the remaining fifteen recommendations.
The entire report can be found at:
Starting at Page 95 and ending at Page 150 are the Committee View, Additional comments from Australian Labor Party senators, Dissenting report from the Australian Greens and Additional comments from Senator Andrew Bragg.
What this section of the Report clearly shows is that the only people who come close to being unreservedly happy with the wording and intent of these bills are to be found within the ranks of Scott Morrison’s faction in the Parliamentary Liberal Party. In the wider Parliamentary Liberal Party there is some concern but whether it gets fully realised is another matter.
Further amendments are expected to be put forward, given the very real concerns held by the general public that the rights of LGBTQ+ students, teachers and parents are not protected against discrimination by faith-based educational institutions, as well as other concerns relating to potentially discriminatory impacts of Statement of Belief provisions currently found in the draft Religious Discrimination Bill 2021 and the fact that the successful passage of this bill into law will require as yet unaddressed amendment of the Sex Discrimination Act 1984.
The three bills in question were always going to be used as an improvised explosive device buried deep within the House of Representatives carpeting, all set to explode during the first few weeks of the 2022 parliamentary calendar year in the hope of badly wounding the Labor Party over the course of the federal election campaign.
On Thursday 4 February Prime Minister Scott Morrison also clearly stated his intention to legislate amendment of the Sex Discrimination Act before the federal general election.
Given the limited number of sitting days in February and March in which to amend, it appears that Morrison may be reconciled to not passing the current version of the Religious Discrimination Bill if the House Of Representatives baulks during the coming weeks. However, it is likely his intention to perform a piece of political theater in which he attempts to bully, intimidate and threaten the parliament in order to be seen as striving to fulfill his longstanding 'religious freedom to discriminate' promises to his conservative Christian base before polling day.
NOTES
1. Australian Marriage Law Postal Survey, 2017
2. Recommendations incorporated into the religious discrimination bill and human rights legislation amendments bill:
Recommendation 3
Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.
Recommendation 4
The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.
Recommendation 12
The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal:
(a) conforms to the doctrines, tenets or beliefs of the religion of the body, or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Recommendation 15
The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
Recommendation 19
The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.
