By Luke Beck
Federal Attorney-General Christian Porter on Monday published an article in this paper claiming his controversial religious discrimination bill is intended merely as a “shield”, and wrongly branding my criticisms of the bill as neither genuine nor constructive.
The Attorney-General’s barbs were prompted by an article published in this paper last week explaining how the religious discrimination bill would be bad for Christians – just as it is bad for gay people, women, ethnic minorities, people with disabilities and others.
That article explained how the bill allows people to make “statements of belief” that ridicule, humiliate and intimidate Christians at work and at the shops, and how the bill actually encourages businesses to refuse to hire Christians.
The article must have prompted conservatives inside and outside the coalition to ask Porter some tough questions about what exactly the religious discrimination bill does. This would have added to existing pressure. Only two weeks ago, conservative Coalition senator Concetta Fierravanti-Wells called for the bill to be scrapped because it is so flawed.
Porter says the bill would not allow people to say things that intimidate others. Porter’s claim is not true. The bill overrides every existing federal, state and territory anti-discrimination law to allow “statements of belief”, including statements of belief that intimidate other people – but not statements of belief that seriously intimidate other people.
Plain intimidation is allowed, serious intimidation is not. Nobody really knows what the difference between plain intimidation and serious intimidation is. It will take an expensive court case to find out. The hefty legal fees for that case are likely to be paid by some ordinary person who has suffered discrimination.
But even serious intimidation might end up being allowed. The Australian Christian Lobby is calling for the restriction on serious intimidation to be removed.
Let’s pause for a moment. Scott Morrison and Christian Porter have actually written a law that will allow people to intimidate others: to intimidate gays, women, people with disabilities, and Christians among others.
This and many other provisions in the bill have been strongly criticised by federal and state human rights commissions, legal experts, business groups, and religious groups. The common criticism is that bill gives people the right to discriminate against others and overrides existing human rights protections.
Significant parts of the religious discrimination bill are likely to be unconstitutional. The bill relies on the external affairs power, which gives Federal Parliament power to pass laws implementing Australia’s treaty obligations. Most of the nasty parts of the bill, like the right to intimidate, are inconsistent with international human rights law and therefore would not be supported by the external affairs power.
The 2018 religious freedom review chaired by former Howard government minister Philip Ruddock found that Australia does not have a problem with religious discrimination. That review was set up in order to appease conservatives in the coalition after marriage equality laws were passed.
The Fair Work Act already makes it unlawful to subject a worker to adverse action at work on account of their religion or to sack a worker because of their religion. That’s the law Israel Folau used to sue Rugby Australia.
And every state and territory, except NSW and South Australia who need to catch up, already has broad religious discrimination laws. Porter’s religious discrimination bill will override these existing religious discrimination protections.
Legal experts have suggested constructive ways forward that would give Australia a broad federal law protecting people against religious discrimination, but without taking away existing human rights protections.
I have suggested having a stock standard anti-discrimination law. Such a law would protect people against religious discrimination but wouldn’t override existing anti-discrimination and human rights protections, and wouldn’t allow people to intimidate others. The anti-discrimination law experts group has made a similar suggestion. So has Jesuit priest and lawyer Father Frank Brennan. So has the Australian human rights commission.
The Law Council of Australia has suggested consolidating all federal anti-discrimination laws into a single statute like those that exist at the state level. The new federal anti-discrimination law would then include religion as a protected attribute along with existing protected attributes like race, sex, disability and sexual orientation.
Porter has ignored these suggestions. The religious discrimination bill in its current form is a powerful “sword” for people of all faiths to inflict harms on other people. Porter should fix it or ditch it.
Luke Beck is an Associate at the Castan Centre for Human Rights, and an Associate Professor of constitutional law at Monash University. He is also the author of Religious Freedom and the Australian Constitution: Origins and Future (Routledge, 2018).
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