Following a pattern that is becoming all too familiar in states and territories around Australia, the ACT has recently passed a bill that erodes religious freedom rights for people of faith through its amendments to the Discrimination Act 1991 (Discrimination Amendment Bill 2022).

However, despite some disappointing clauses in the bill, the news could have been worse, and the end result should provide some encouragement for people of faith in the ACT to continue to engage in consultation processes on changes to the law.

There is no doubt that the bill erodes existing protections for religious people and organisations in the ACT and could interfere with fundamental rights of freedom of religion, speech, association, privacy, and the family. Nevertheless, this final version of the bill is an improvement on the original version proposed in the Exposure Draft in June 2022. Modest but important concessions were made as a result of consultation with stakeholders, with a majority of submissions in relation to the Exposure Draft of the bill made by people of faith.

The second “Listening Report” published in November 2022 acknowledged submissions from various religious bodies, particularly around the potential interference with “inherently private church matters that represent the heart of religious freedom”. This was a significant acknowledgment of the complexity of religious doctrine and the inappropriateness of secular courts and tribunals adjudicating on matters of theology.

In particular, the Listening Report acknowledged the following feedback from religious bodies and people of faith which:

• “considered that the arrangement of religious observances were inherently private church matters that represent the heart of religious freedom.
• suggested that the reforms did not strike the appropriate balance between the right to religious freedom and the right to equality and non-discrimination.
• highlighted that the interpretation of religious doctrine is complex and there can be a wide variety of views within each church.
• submitted that the inclusion of a ‘reasonable, proportionate and justifiable’ test may result in the secular bodies adjudicating on matters of theology which are outside their competence and expertise.
• noted that a clear definition of ‘functions of a private nature’ is needed.
• suggested that reforms may force religious bodies to use their property in ways which conflict with their religious conscience”.

While not all of this feedback was implemented in the final bill, recommendations made by the Human Rights Law Alliance (HRLA) in its submission to the inquiry, as well as those made by other religious advocates in the ACT, resulted in some of the most threatening aspects of the bill being softened.

Importantly, the ability of churches to positively select clergy based on the church’s ethos and practices is better protected by the final version of the bill than originally proposed. The tests for whether positive selection is permissible in the employment of Christian staff, or in the provision of services or facilities, are also slightly easier for Christian organisations than they would have been under the original version.

Unfortunately, the bill still erodes religious freedom for Christian schools in relation to employment and selection of staff and admission of students. Nonetheless, this is significantly less than what was proposed in the original version.

One aspect that was not improved is the confusion of language. The Bill replaces references to “the opposite sex” with “a different sex”, implying that sex not a binary category but a broad spectrum. It also removes references to “woman” or “man” in relation to pregnancy and childbirth, instead using “person” in a context in which sex distinctions are fundamental. These changes could raise issues around the recognition of sex-based rights.

Despite these concerns, a comparison between the original and final versions of the bill reveals modest but important improvements that were made following the government’s consultation process, demonstrating the value and importance of people of faith engaging in consultation about changes to the law.

As threats to religious freedom rights in Australia continue to increase and intensify, the  need for Christian organisations like HRLA to push back becomes even more critical. And the more people of faith become involved, the more difference we can make.