The Australian Prime Minister Scott Morrison recently presented the Religious Discrimination Bill (the Bill) to the lower house of the Parliament, a divisive part of anti-discrimination legislation. The Bill, as well as the Religious Discrimination (Consequential Amendments) Bill 2021 and the Human Rights Legislation Amendment Bill 2021, aims to safeguard Australians from being discriminated against because of their religious beliefs or activities.

The Bill renders it illegal to prejudice against a person based on his religious beliefs or activities in a variety of spheres of life, including employment, education, access to premises, and the supply of products, services, and lodging.

Section 4 of the Bill reads as follows:

Discrimination is unlawful if it arises, for instance, owing to a religious belief or practice that the individual holds or participates in. It is also unlawful if it arises as a result of the person's affiliation with anybody who possesses or participates in a religious belief or practice, irrespective of whether or not they possess or participate in a religious belief or activity.

The Bill also empowers faith-based institutions, like religious schools, to recruit and enrol persons of particular faiths, as well as to promote and request specific beliefs. For example, the Bill states that it is not discriminatory for a religious primary school to compel all of its students and employees to follow certain religions if such a condition is necessary to prevent injury to the religious sensitivities of persons of that religion.

Additionally, under the Bill, it is not discriminatory for a religious hospital, a lodging provider, an aged care institution, or disabilities service providers to make employment judgements based on faith. Likewise, religious institutions will be given additional safeguards to ensure that they can serve their religion/faith in a certain way. Religious institutions must, however, guarantee that their actions are consistent with a “publicly available policy” that explicitly outlines how religious beliefs will be implemented.

Morrison also stated that the Bill will safeguard Australians who make “statements of belief” from discrimination laws, but only if such statements do not “threaten, harass, intimidate, or condemn a person or community”. The Bill asserts that religious statements are not discriminatory under state and territory-anti discrimination legislation, including section 17 of the Tasmanian Anti-Discrimination Act, which restricts speech that “offends, embarrasses, or insults” a person based on attributes like race, gender, age, and disability. Advocates contend that this could lead, for instance, to justify statements that women should surrender to their spouses or that infirmity is a trial inflicted by the Lord.

Clause 11 of the Bill specifies that religious entities or schools can offer priority “in good faith, to people who possess or participate in a specific religious belief or practice,” if they publish a public policy. The attorney general may utilise regulations to define certain state and territory legislation that can be overruled by this provision of federal religious discrimination law if he/she thinks that law forbids the institution from giving priority to people of its faith. This means that, if the Bill succeeds, the federal government would be able to overrule the Victorian government’s reforms aimed at limiting religious exceptions to prohibit schools from discriminating against staff based on personal attributes.

Section 7 (2) of the Bill continues, saying:

Underneath this Act, a religious entity does not prejudice against an individual by indulging, in good faith, inaction that an individual of a similar religion as the religious entity may reasonably regard to be consistent with the doctrines, principles, values, or precepts of that religion.

Regarding the LGBTQ+ community, the Bill allows schools to fire teachers who do not adhere to religious beliefs, particularly around matters of gender identity and homosexuality, while students might be compelled to learn in classes that diverse sexual orientations are condemned. Equality Australia chief executive Anna Brown stated “it is already lawful for religious schools to dismiss, suspend, or otherwise prejudice against LGBTQ+ students and faculty. The Religious Discrimination Bill would do nothing to improve this, rather strengthening the power of religious schools to recruit staff who accept or support them”.

In addition, the Bill has caused a schism in the Parliament, with certain moderate Liberal members calling for expeditious action to safeguard the LGBTQ+ teachers and students from discriminatory action. Schools can fire teachers and suspend students for being LGBTQ+ under the current Sex Discrimination Act. It has been more than three years since Mr Morrison promised in 2018 that he would pass legislation to eliminate the corresponding exception with regards to gay students, amid public outrage in the country over the suggestions of Philip Ruddock’s study into religious liberty.

The administration entrusted the Australian Law Reform Commission with studying the issue and stated that it would not act until 12 months following the enactment of the Religious Discrimination Bill. As a result, the Commission is expected to submit its results by 2023. Shadow Attorney-General Mark Dreyfus stated that Labor was willing to work with the administration on the Bill, but was worried that the government would push it through the House of Representatives in a matter of days without giving it enough time to consider its implications.

The Bill is scheduled to be voted on in the lower chamber of Parliament within the following weeks. However, it is far from certain that it will be enacted into law as the Australian Parliament is in its final two weeks of session for the year 2021. However, Morrison may call a general election before the process recommences in 2022 as the elections must be held by May 2022. The Bill is likely to go through a review process before being voted on in the Upper Chamber Senate in 2022-2023.

Mili Gupta is currently pursuing a LL.M in Constitutional and Administrative Law at Nirma University, India.

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