Originally this draft legislation dealing with religious freedom was proposed by the coalition government to comfort religious sensibilities which may have felt threatened when the nation went to a Clayton’s ‘referendum’ to change the Marriage Act to permit same-sex marriage – the federal marriage act having been changed by the Howard government in 2004 to prohibit same-sex marriage – go figure!

In fact, it wasn’t a referendum or even a plebiscite as the senate had rejected those mechanisms, insisting that if an act of the federal parliament (the Marriage Act) was to be changed then it was the duty of the federal parliament to follow conventional democratic procedures to effect that change: common sense from the senate!

Ultimately it became a non-binding voluntary postal survey and it passed with 61.6% of the eligible voters approving marriage equality.

Having gone through that ordeal it was considered by some in the coalition that religious freedoms were being eroded and to appease these folk a religious freedoms act was placed on the coalition wish-list. The only thing that changed as the draft legislation was promulgated was that it became a religious discrimination bill rather than a religious freedoms bill.

The Morrison government have made it an article of their faith to get this legislation through before they announce an election and prorogue the parliament. That means that this legislation must get through in the scheduled eight sitting days of the House of Representatives between February and April (after which we will be in caretaker mode leading up the election, probably in May). 

Among the contentious provisions of the Bill are:

Section 7

(2) Subject to subsection (6), a religious body does not discriminate
against a person under this Act by engaging, in good faith, in
conduct that a person of the same religion as the religious body
could reasonably consider to be in accordance with the doctrines,
tenets, beliefs or teachings of that religion.

and

(4) Subject to subsection (6), a religious body does not discriminate
against a person under this Act by engaging, in good faith, in
conduct to avoid injury to the religious susceptibilities of adherents
of the same religion as the religious body.

These are the provisions which, despite the wording of the section, allow for a religious body to discriminate both subjectively and objectively: this is not religious freedom it is blatant religious discrimination.

Interestingly, the Sex Discrimination Act 1984 (Cth) already has a wide exemption for religious educational institutions under section 38. 

Educational institutions established for religious purposes

38  (1)  Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This type of exemption appears in several pieces of legislation and generally gives religious bodies the freedom to discriminate in their employment practices even though many of these bodies, whilst posturing as private institutions, are substantial recipients of public funding.

Even the Fair Work Act 2009 (Cth) gives religious institutions an exemption.

 51 Discrimination

             (1)  An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 

(2)  However, subsection (1) does not apply to action that is:                    

(c)  if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i)  in good faith; and

(ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed.

The point being, that there are already many overlapping exemptions granted to religious bodies to allow them to discriminate in any number of ways: do they or we really need any more?

To work through this hotch-potch of existing legislation and bring some clarity and common sense to the whole issue of religious discrimination, the Australian Law Reform Commission was asked to report on the Framework of Religious Exemptions in Anti-discrimination Legislation. 

The only problem is that the ALRC are not reporting back to government until twelve months after the Religious Discrimination legislation is passed: cart before the horse?

So, the question has to be asked: why is it so critical for this legislation to be enacted by our parliament in the dying days of this term of government when clearly it hasn’t had sufficient thought or consideration and when we haven’t even had the opportunity of seeing what the Australian Law Reform Commission have to say on the subject. Could it be that the Morrison government who have an appalling track record on legislative integrity want at least one run on their scoreboard before they whisk us away to an election?

Clearly, they don’t consider a federal integrity commission to be such a priority!