A costly bill

The proposed Religious Discrimination Bill would enable independent schools to fire staff or turn away students who don’t align with their religious values and beliefs, writes IEU VicTas Branch Industrial Officer Jessica Mekhael.

Before the pandemic, ‘religious freedom’ was a hot topic on the Morrison Government’s political agenda. It’s creeping back, with key stakeholders pushing to enact the contentious Religious Discrimination Bill before the next election.

An overview of the Bill published on the Attorney-General’s website indicates that it is designed to prohibit discrimination “on the grounds of religious belief or activity in key areas of public life”.

The Bill resulted from the recommendations of the 2018 Religious Freedom Review, conducted by a former minister in the Howard Government, Philip Ruddock. The findings from the review remained dormant until the Israel Folau controversy catapulted the issue into the media spotlight. Folau’s Rugby Australia contract was terminated after the star player posted on social media that homosexuals, adulterers, atheists and other “sinners” would go to hell.

Following Folau’s social media post, public debate raged about the rights of religious individuals to express themselves and the rights of minorities, especially in the LGBTQI community, who could be vilified or degraded by such expressions.

The Bill proposes that religious bodies, including schools, can engage in conduct, in good faith, “that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of their religion or to avoid injury to the religious susceptibilities of adherents of the same religion”.

Right to act

Simply put, individuals such as Folau, as well as organisations and charities, would have the right to act on their religious beliefs, even if those acts were discriminatory under other laws.

Supporters of the Bill hold that existing anti-discrimination legislation will continue to protect those who are discriminated against based on ‘protected attributes’. Protected attributes include race, colour, sex, sexual orientation, age and religion.

Current anti-discrimination laws already provide religious bodies with the protections proposed through similarly worded exemptions in the current legislation.

The Bill will allow religious bodies including schools, charities and businesses a ‘positive right’ to discriminate under the guise of religious freedom, thereby reducing the rights of people already susceptible to discrimination.

It also allows such bodies to make claims of religious discrimination.

The Commission strongly supports “enforceable protections against religious discriminations for all people in Australia”.

But it says the exemption for religious entities “undercuts protections against religious discrimination” and the Bill “would provide protection to religious belief or activity at the expense of other rights”.

Under current legislation, religious bodies cannot actively discriminate based on their religious beliefs. They can only do so through applicable exemptions.

Hiring and firing

But the proposed Bill would ensure that religious bodies and individuals would be free from the operation of current Commonwealth, state and territory anti-discrimination laws.

It would directly affect staff and students in schools, which could hire and fire staff or turn away students who don’t align with their religious values and beliefs.

Religious schools would be able to dismiss gay teachers, unwed mothers, or refuse to enrol trans or gender-diverse students.

Unfortunately, this already happens.

The Age recently reported that Victorian teachers had been sacked by religious schools after coming out as gay, an action which is “perfectly legal under most state and federal laws, which give religious organisations and their schools exemptions from anti-discrimination legislation”.

The IEU VicTas Discrimination Survey reported that 48 percent of Victorian Catholic secondary education staff had witnessed or been subjected to discrimination in their workplace.

These employees need more, not less, protection.

The Commonwealth Sex Discrimination Act makes it unlawful to discriminate against a person based on sex, sexual orientation or gender identity, marital status or pregnancy, but the exemptions under that Act provide protection for religious educational institutions.

“Simply put, individuals such as Folau, as well as organisations and charities, would have the right to act on their religious beliefs, even if those acts were discriminatory under other laws

Lawful discrimination

It is not unlawful for schools established for religious purposes to discriminate against an employee in certain circumstances, or against a student, if the school discriminates in good faith to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Similar provisions exist under the Victorian Equal Opportunity Act, which provides an exemption to religious schools to discriminate based on gender identity or sexual orientation where the discrimination “conforms with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of people who follow the religion”.

In workplaces, the Fair Work Act 2009 also applies, and states that an employer must not discriminate by taking ‘adverse action’ such as dismissing an employee or not hiring a prospective employee because of attributes, including sex, sexual orientation or religion.

However, employers can get away with discrimination under the Fair Work Act if the action is not unlawful under local anti-discrimination law (for example, because of the exemptions); if it is taken because of the inherent requirements of the position concerned; or if the action is taken by an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed.

Even in Tasmania, which does not have a religious exemption in its discrimination laws that allows discrimination based on sexual orientation, sex or gender identity, if you are dismissed by a religious school because of sexual orientation, and you bring an action under the general protections of the Fair Work Act, you’re unlikely to succeed.

The school can say the discrimination was “taken in good faith and to avoid injury to the religious susceptibilities of adherents of that faith” as permitted by the Fair Work Act.

There is hope

A group of Liberal MPs have warned Attorney-General Michaelia Cash they oppose the bill as it stands.

Liberal MP Dave Sharma told the Nine Network, “The bill should be narrowly cast so it provides the same level of protection against discrimination based on religion that people have on race and gender. But it shouldn’t go any further than that.”

Liberal MP Warren Entsch said, “I haven’t spent 19 years of my political career removing discrimination from one section of our community to allow it to be reimposed under the auspices of this bill”.

Fear and uncertainty

In Victoria, Deb James, General Secretary of the IEU VicTas Branch, has written to the State Government urging it to remove religious exemptions contained in its Equal Opportunity Act.

“Faith-based schools have the resilience and capacity to operate in the absence of any religious exemptions. The current exemptions, however, act as a threat that could be used, and many of our members experience fear and uncertainty about being open about their identity,” James says.

If the federal Bill becomes law, discriminatory conduct will be considered ‘religious freedom’ if it falls within the scope of the Bill.

The Bill privileges religious belief over other human rights and gives new privileges to people of faith and religious body employers, while overriding existing protections from discrimination for LGBTIQ people and others who have fought so hard to attain equality in our society.

It would be a tragedy to see the rights of those most susceptible to discrimination eroded in a secular society that should value equality for all.