Lawyers' group hesitant about Australia's religious discrimination bill

Canberra, Australia, Sep 4, 2019 / 13:01 pm

The president of the Law Council of Australia signalled dissatisfaction with the government's religious discrimination bill Wednesday. Among his concerns are its ability to bolster conscience protections for medical professionals who object to participating in abortion.

Arthur Moses, head of the association of law societies and bar associations in Australia, addressed the bill in a Sept. 4 address to the National Press Club in Canberra.

According to Guardian Australia, much of his criticism focused on the suggestion the bill could protect expressions of racial discrimination.

The religious discrimination bill would make it unlawful to discriminate against people on the ground of their religious belief or activity; establish a religious freedom commissioner at the Australian Human Rights Commission; and amend existing laws regarding religious freedom, including marriage and charities law, and objects clauses in anti-discrimination law.

It would protect religious speech under commonwealth, state, and territory law.

The coalition government wants to make religious belief and activity a protected class, like race or sex. It also hopes to ensure that groups rejecting same-sex marriage are not stripped of their charitable status.

In its current version, the bill would not protect religious statements that are "malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence".

The draft bill was released last week for public consultation by attorney-general Christian Porter.

Moses, in his prepared remarks to the National Press Club, said the Law Council welcomed the bill's release "not because we necessarily agree with the government's approach or with every provision. But because this provides an opportunity for a discussion that is long overdue about what type of nation we want to be."

"An inclusive, tolerant and harmonious nation? A nation where people are vilified because of their sexuality in the name of religion? We need to get the balance right to ensure that there are no unintended consequences," he stated, adding that "reasonable minds may differ about how we balance competing rights."

He urged that "as a starting point, we need to have a clear definition of what we understand freedom and liberty to mean."

Guardian Australia reported that Moses said the bill "doesn't carry the same type of protection as section 18C of the Racial Discrimination Act".

Section 18C of the Racial Discrimination Act 1975 makes unlawful offensive behaviour done publicly because of race, colour or national or ethnic origin if the act "is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people."

Moses said that "the concept of offend and insult in section 18C is not to be found in this legislation – so the test is much more difficult to establish in relation to provisions of the religious freedom bill than what is currently contained in the Racial Discrimination Act."

He maintained that "this is an area where we have said you need to be very careful because some comments that are made do have an impact on the most vulnerable members of our community."

Moses also said the religious discrimination bill would allow employers to prohibit religious speech if they would suffer "unjustifiable financial hardship".

He called this "an interesting concept … there is a mirage of freedom of speech but it's confined by the employer's bottom line. I think that's silly, with all due respect."

Australia's coalition government is led by the Liberal Party, which is joined by the National Party. The opposition Australian Labor Party is expected to back the bill.

LGBT advocates are opposed to the bill, as it could override some provisions of Tasmanian law.

Some conservative members of parliament have asked instead for a religious freedom bill.

Senator Concetta Fierravanti-Wells, of the Liberal Party, voiced concerns July 9 that the bill does not go far enough, saying it "would be defensive in nature and limited to protecting against acts and practices by others which are discriminatory on the grounds of religion."

She said that "quiet Australians now expect the Coalition to legislate to protect their religious freedom."

The religious discrimination bill is being introduced to implement a commitment made in the 2019 federal election.

A review of religious freedom in Australia was finished in May 2018, making 20 recommendations; among these was a Religious Discrimination Bill.

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The government has asked the Australian Law Reform Commission to report on how to balance competing claims of religious freedom rights and LGBT rights.

Australia has seen debate over religious freedom in recent years with respect to the seal of the confessional, hiring decisions, and same-sex marriage.

When same-sex marriage was legalized in Australia in 2017, efforts to include amendments that would protect religious freedom failed during parliamentary debate.

Archbishop Anthony Fisher of Sydney noted last year that "we cannot take the freedom to hold and practice our beliefs for granted, even here in Australia," and that "powerful interests now seek to marginalize religious believers and beliefs, especially Christian ones, and exclude them from public life. They would end funding to faith-based schools, hospitals and welfare agencies, strip us of charitable status and protections."