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Splitting the Bill: How the feds could cut through division on religious freedom

Opinion

The Federal Government’s proposed approach to enshrining religious freedom in law has so far been divisive, but there is a way forward which should produce better policy, writes UniSA law lecturer Sarah Moulds.

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The Morrison Government’s draft Religious Freedoms Bill has attracted criticism from across the political spectrum and among business and community groups alike, despite Attorney-General Christian Porter’s best efforts to trouble-shoot the draft before its public release.

Those on the conservative right say it doesn’t go far enough when it comes to protecting the rights of religious Australians to express and act upon their religious views. Those on the progressive side of politics, and proponents of women’s rights and equality rights, highlight the corrosive impact some provisions could have on existing laws designed to protect against discrimination on the grounds of sex, gender, gender identity and sexual orientation.

At the same time, big business may bear the brunt of the practical problems associated with the implementation of certain provisions, including those relating to employer conduct rules and statements of beliefs.

If these criticisms capture the attention of enough parliamentarians, they have the potential to derail the Morrison Government’s ambitious timeframe for introducing and passing these reforms “before Christmas”. Cynics might suggest that this is all part of a broader plan to distract the electorate from other pressing concerns, such as the flailing economy. However, if the Attorney and the Prime Minister are truly serious about prosecuting the core policy intent behind the Bill – namely the protection and promotion of freedom of religious belief and activity – then there is another way. They could do what all good couples do and “split the Bill”.

They could advance the reforms in two stages, starting with the features of the draft Bill that attract the most support and are based on existing federal anti-discrimination laws, and simultaneously refer the other more novel features to the Australian Law Reform Commission (ALRC) or the Australian Human Rights Commission (AHRC) to consider as part of their respective current inquiries into broader aspects of Australian anti-discrimination laws. This would allow the Government to give immediate, practical protection for religious belief, and provide another forum for those criticisms described above to more fully explored.

Advancing the draft Bill in two stages also has a range of benefits for the end-users of anti-discrimination laws, and for those in charge of implementing the proposed changes. It would provide for the smooth introduction of a new protected attribute – “religious belief or activity” – into the federal anti-discrimination regime without modifying or disrupting the existing tests for direct and indirect discrimination.

This could be achieved by removing the “special test” of “unjustifiable financial hardship” that is currently contained in the draft Bill and that applies to employers with turnovers of more than $50 million, and leaving in place the general test of “reasonableness” that currently applies across the federal anti-discrimination regime. This would have the effect of immediately ensuring that employees are not subject to workplace requirements or conduct rules that have the effect of disadvantaging them on the basis of their religious belief (such as prohibiting all head coverings in the office, or requiring all employees to declare support for gay marriage), while the practical implications of the “unjustifiable financial hardship” test are being unpacked in a more detailed inquiry conducted by the AHRC or ALRC.

It would not preclude the development of a more nuanced “reasonableness” test, that has regard to the size and turnover of the particular employer, but it would avoid the hasty implementation of a test that no-one understands or is unworkable in practice. Considering this issue in the context of a broader inquiry would also allow experts, employers and employees to reflect on whether the test for indirect discrimination should be improved and simplified across the board, and not just in the context of the religious belief attribute.

In other words, referring this particular question to a broader inquiry could help reduce the compliance burden on big business, while at the same time clarifying employees’ rights. Protection against discrimination on the grounds of religious belief would not have to wait – it could be pursued in the standard form, while this particular add-on is considered.

A similar approach could be adopted when it comes to the provisions in the draft Bill that seek to limit or override the effect of other anti-discrimination laws currently in force at the federal and state level. These include the provisions relating to “statements of belief” and “health practitioner conduct rules”.

These provisions depart markedly from existing federal discrimination laws by reaching across into laws designed to promote the rights of other groups, including women, gender diverse and non-heterosexual Australians. They do this by effectively saying it is lawful (despite these other laws) for a person to say something discriminatory about women or gay people or those with disabilities, provided it accords with their religious belief, and provided it is not “malicious” or likely to “vilify or incite hatred or violence”.

These particular features of the draft Bill give rise to a range of complex legal questions and are not necessary to ensure people of faith are protected from discrimination at work. The test of indirect discrimination is already broad enough in scope to capture almost all of the examples of employees feeling pressured to comply with codes of conduct, requirements or directions that are against or opposed by their religion.

Removing these provisions from the draft Bill and referring them to the ALRC or AHRC would allow for a more careful consideration of the constitutional and other legal consequences of overriding existing laws in this way, and encourage the Government to clearly articulate why statements that the federal Parliament has previously seen fit to declare as “unlawful” should now be considered “lawful” under these reforms. It would also allow for the states and territories to reflect upon their anti-discrimination laws and consider what changes might be needed to help promote consistency across the country and to avoid messy and costly constitutional disputes in the future.

For those looking for a purely for a “tough on political correctness” response to the Israel Falou saga, this two-stage reform process may not be attractive. It smacks way too much of considered policy-making, rather than a knee-jerk response. But for those with a genuine interest in thinking about how freedom of religious belief should co-exist with other rights and interests, it seems like a sensible way to go. It’s so sensible that it may just appeal to moderate Liberal backbenchers, Opposition members and the crossbench, who each have their separate interests in handling these contested policy issues with care.

For this reason, critics of the Exposure Draft Bill would do well to consider recommending a two-stage reform process when drafting their submissions or commenting on the draft Bill. After all, the Government is unlikely to be able to find a clear middle ground among the range of diverse criticisms of their proposed law and splitting the Bill might be preferable to being stood up in this intractable debate.

Dr Sarah Moulds is a lecturer at the University of South Australia’s Law School. She has teaching and research interests in the area of public law, human rights, counter-terrorism and criminal law, administrative law and anti-discrimination law. She was previously a senior project officer at the South Australian Law Reform Institute.

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