The Federal Religious Discrimination Bill and Religious Bodies – Opponents are talking out of both sides of their mouths

At the 2019 election, the Coalition made a commitment to enact a Religious Discrimination Bill that would protect the religious freedom of all Australians. A key issue for the Bill is whether religious bodies (churches, schools, charities) will be protected from cancellation, hostile treatment, and exclusion because of their religious positions or whether they will be left out in the cold.

Opponents of the RDB are currently mounting a concerted campaign to deliver an emasculated piece of legislation that excludes religious groups. If successful, it will allow opponents of religion (whether in the public or private sector) to ban churches from venue hire, stop Christian charities from receiving funding and deny organisations participation in the public square because of their beliefs.

Why should organisations not have protection? Because apparently, they don’t have religious beliefs. In making this suggestion, RDB opponents are talking out of both sides of their mouths.

The RDB has a circuitous history. Religion has long had patchwork protection in Australia at Federal, State and Territory levels:

  • The same sex marriage postal ballot of 2017 exposed the fragility of protections for religious people who experienced harassment, employment loss and legal actions because of their religious views.
  • The Ruddock Religious Freedom Review in 2018 documented the poor protections of religious freedom in Australia and one of its recommendations was that a religious discrimination law be enacted.
  • Scott Morrison’s ‘miracle’ election win in May 2019 buoyed the hopes of many religious Australians that religious belief would finally be given the same legal protections that have long been held by attributes such as sex, race, disability, sexuality and gender identity.

Pre-Covid, Attorney General Christian Porter released two exposure drafts of a Religious Discrimination Bill in the summer of 2019 and 2020 respectively. After being shelved for a year and a half, new Attorney General Michaelia Cash has promised a third draft of the RDB and the government has suggested that the Bill could be introduced and passed before the next election in early 2022.

The key question is whether the RDB will provide meaningful and proportionate legal protection, or whether it will be a tepid and unworkable law with no real utility. A central concern is whether the RDB will protect religious bodies and their beliefs that are direct targets for anti-religious activists everywhere.

Article 18 of the International Covenant on Civil and Political Rights (which Australia is a signatory to) states that it is a fundamental human right for every person to have freedom of religion and to manifest that religion individually or in community. In public and in private.

This is a capacious human right and one of its unique properties is that it is recognised as both individual and communal. Everyday Australians exercise religion personally. They also form into groups and bodies – churches, schools, clubs, community service organisations – to manifest their beliefs in the public square.

This distinguishes religious freedom from many other human rights which do not have the same kind of communal aspect. Disability rights or age rights, for instance, are not held or exercised by groups in this way. Religious freedom is a unique case.

Everyone is familiar with the concept of organisations endorsing and practicing social and political beliefs. Whether it is Qantas imposing its support of same sex marriage on all its staff and stakeholders, or the Commonwealth Bank’s position on climate change. It is very clear that an organisation can adopt and hold beliefs, manifesting those beliefs in the public square.

Uniquely in Australia, it is Christian groups that are facing hostility and exclusion because of their beliefs. There is real discrimination and unfair treatment which an RDB must protect against. Two recent examples in WA include:

  • In late 2020, WA public body Lotterywest rejected an application by Margaret Court Community Outreach for money to buy a food van. The reason? Because the charity had orthodox Christian beliefs about sexuality and gender – even though this charity helps needy people (of all types without discrimination) and provides over 50 tonnes of food a week.
  • In July 2021, the WA Government cancelled venue hire arrangements with the Australian Christian Lobby because the religious beliefs of the organisation were out of step with the WA State Government.

Clearly, religious organisations have religious beliefs and face unfavourable treatment because of those beliefs.

Yet many opponents of religious freedom reject the idea of protections for religious bodies. Even the Australian Human Rights Commission has made submissions that, while religious freedom should be protected, religious groups should not be protected. Exclusion of churches, schools, hospitals and other groups because of their religion would be fair game.

Hostile submissions to the second exposure draft argue that human rights are only for individuals – only individuals should be protected under anti-discrimination legislation because only individuals can hold or express protected attributes.

This is talking out of both sides of the mouth.

Opponents of religious organisations like Margaret Court’s charity and the ACL treat those organisations as persons that can hold a religious belief when they cancel them, but then argue that these same organisations can’t be given protections under discrimination law because they’re not persons and can’t hold religious beliefs. This is the kind of logic that only makes sense to someone determined to be anti-religious. This is a double standard so thin that the animus towards religious belief is plainly obvious.

To be effective, the RDB must protect the religious rights of faith-based organisations because religious belief and activity is a unique attribute and fundamentally different to other attributes already protected under anti-discrimination legislation.

A significant part of faith for people from all kinds of religious persuasions is the coming together and forming of associations that are the communal expression of those individuals’ religious beliefs. Religious organisations are the communal expression of individual religious rights.

An RDB that does not protect the religious freedom of religious organisations is a weak and unworkable Bill that won’t address the hostility regularly faced by churches, mosques, synagogues, op-shops, hospitals, food-banks, homeless shelters, foster agencies and many other faith-based institutions that give so much to the Australian community.

If freedom of religion is going to be properly protected in Australia, religious organisations need to be protected by the Religious Discrimination Bill.