Thread by @alawriedejesus

The details of the final #ReligiousDiscriminationBill were released a week ago today.

While there has been plenty of discussion about some of the major problems it will cause, I want to focus today on 4 issues which have received comparatively less focus. #auslaw #auspol 1/

1. It will protect at least some religiously-motivated racist comments.

This is because of how broadly the radical and unprecedented 'statement of belief' provisions have been drafted. 2/

Proposed section 12 overrides all other Cth, state & territory anti-discrimination laws.

Including specifically targeting section 17(1) of Tasmania's Anti-Discrimination Act, which prohibits comments that offend, humiliate, insult and ridicule, including on the basis of race. 3/

And in case that wasn't clear enough, section 12 also expressly provides that:

'A statement of belief, in and of itself, does not constitute discrimination for the purposes of... the Racial Discrimination Act 1975'. 4/

It is therefore undeniable that the Religious Discrimination Bill is designed to permit some comments that would otherwise be found to be in breach of the Racial Discrimination Act, as long as those comments were religiously-motivated. 5/

Mainstream religious organisations advocating for this legislation may argue that racism is not a central tenet of their beliefs, or those of any major faith body in Australia.

But that is irrelevant to determining whether the racist comment will receive protection. 6/

That is because the definition of statement of belief in proposed s 5 merely requires it to be made 'in good faith' & above all that it is:

'of a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.' 7/

This is entirely subjective.

There is no comparator to the actual tenets etc of the religion they claim to belong to.

The individual making the comments only has to demonstrate they alone genuinely believed it to be in accordance with their faith. 8/

It is easy to see how a White supremacist will claim that their racist views are a sincere reflection of their own interpretation of Christianity (and it will not matter how warped their views are, or that they are rejected by all the major Christian churches). 9/

The Racial Discrimination Act has never had religious exceptions (one of only two anti-discrimination laws in Australia* not to do so, in at least some form) because of a consensus view religious beliefs do not justify racism. 10/

After 46 years of the RDA, the Religious Discrimination Bill trashes this political consensus, and will effectively add de facto religious exceptions to the Racial Discrimination Act for the first time.

All to protect demeaning and derogatory comments against others. 11/

In 2014, George Brandis infamously declared that people have a 'right to be a bigot', as the Government tried to wind back the prohibition on racial vilification found in s 18C of the Racial Discrimination Act. 12/

Thankfully, those changes were successfully resisted by the community, & rejected by the Parliament.

The Religious Discrimination Bill is yet another attempt to elevate the 'right to be a bigot', including on the basis of race.

It too must be resisted & ultimately rejected. 13/

[*The other anti-discrimination law which doesn't have religious exceptions is the Disability Discrimination Act 1992.

It is also specifically overridden by proposed s 12 of the Religious Discrimination Bill, meaning religiously-motivated ableist comments are protected too.] 14/

2. The Religious Discrimination Bill takes away rights from teachers in religious schools to be protected against discrimination.

Not just in Victoria, but in Queensland and other jurisdictions too. 15/

Proposed section 11 introduces a new override of state & territory anti-discrimination laws, this time allowing the Cth Attorney-General to effectively cancel provisions which give stronger protections to teachers than those proposed under the Religious Discrimination Bill. 16/

In their place would be an extremely broad power for religious schools to 'give preference, in good faith, to persons who hold or engage in a particular religious belief or activity.' 17/

How broad?

Well, last Thursday Assistant Minister to the Attorney-General, Senator Amanda Stoker, conceded this could be used to provide an alternative legal avenue to discriminate against teachers and other staff who were LGBT. 18/
smh.com.au/politics/feder…

A possibility confirmed by AG Cash's office:

'In a statement, Cash’s office stressed any decision to “preference” heterosexual applicants over gay applicants would need to be done under the guise of religious views, not purely sexual orientation.“' 19/
news.com.au/lifestyle/new-…

Anyway, much of the debate so far has focused on the fact these provisions are intended to pre-emptively override the Equal Opportunity (Religious Exceptions) Amendment Bill 2021, which is currently before Vic Parliament. 20/

If passed, that Bill would only allow discrimination against teachers and other staff at religious schools where:
-'conformity with the doctrines etc is an inherent requirement of the position', and
-'the discrimination is reasonable and proportionate in the circumstances'. 21/

Clearly these are stronger protections than those under the Religious Discrimination Bill, and the Cth Govt will seek to cancel them.

Indeed, 'Contingent amendments' in the Religious Discrimination (Consequential Amendments) Bill expressly override the Vic changes if passed. 22/

However, there's another state law at even more risk, & that is the Qld Anti-Discrimination Act.

Section 25 is the relevant section for teachers and staff at religious schools, and it is also far narrower than the proposed exceptions under the Religious Discrimination Bill. 23/

This includes limits that any discrimination against teachers must be 'not unreasonable', taking into account 'whether the action taken or proposed to be taken by the employer is harsh or unjust or disproportionate to the person's actions'. 24/

And it also only applies where 'it is a genuine occupational requirement of the employer that the person, in the course of, or in connection with, the person's work, act in a way consistent with the employer's religious beliefs.' 25/

'Reasonable'.
'Proportionate'.
'Genuine occupational requirement.'

Sound familiar?

So, while Vic's prospective laws will be overridden if they are ultimately passed, Qld's *existing* protections for teachers could be overridden on day 1 of the Religious Discrimination Bill. 26/

Other existing protections also at risk include both Tasmania and the ACT, which adopt purposive tests (any discrimination against teachers must be 'to enable, or better enable' the school to be conducted in accordance with its faith, which is likely narrower than the RDB). 27/

That's not to mention the pre-emptive nature of the override, allowing future AGs to cancel other jurisdictions' laws which seek to improve protections against discrimination for teachers.

Thereby undermining inquiries like the WALRC review of the Equal Opportunity Act. 28/

3. The Religious Discrimination Bill will deny access to justice to vulnerable groups, including women, LGBTI people, people with disability and even people of minority faiths. 29/

This is another consequence of the radical and unprecedented statement of belief override of all other Cth, state and territory anti-discrimination laws. 30/

This is because the 'statement of belief' provision is effectively a new Cth legal defence to a state or territory law.

And state tribunals, which are where most discrimination claims are heard - because they are low-cost - constitutionally cannot decide on Cth legal issues. 31/

Instead, that particular issue would need to be heard and decided by a Federal Court, or State Supreme Court, at significant cost to both parties, but with a particular negative impact on vulnerable people with few financial resources. 32/

In practice, the statement of belief override will destroy one of the key features of our anti-discrimination framework - that is comparatively easy to access.

And it is women, LGBTI people, people with disability and people from minority faiths that will pay the price. 33/

This issue is much better explained by Simeon Beckett, in this Sydney Morning Herald opinion piece. 34/
smh.com.au/national/key-p…

⬆️ Oh, and check out the date on that - Simeon highlighted this key flaw way back in September 2019, within weeks of the first Exposure Draft Bill.

It has been raised consistently with Attorneys-General Porter and then Cash in the 2 years, and 2 drafts, since then. 35/

Instead, the Cth Government has chosen to completely ignore the procedural problems caused by their statement of belief override, and therefore to ignore its adverse affects on the access to justice of vulnerable groups in the Australian community. 36/

4. The Religious Discrimination Bill will allow discrimination against children and teenagers, on the ground of religious belief. 37/

And no, I am not talking about its effects, either direct or indirect, on LGBT kids (for a change).

That topic has been covered very well by @LiamElphick_ and Alice Taylor in @ConversationEDU already. 38/
theconversation.com/schools-can-st…

I'm talking about straight up and down discrimination against students on the basis of their religious belief, lack of belief, or failure to believe particular tenets of the schools belief. 39/

This is permitted because the Bill's extraordinarily broad religious exceptions in proposed s 7 apply to religious schools, and mean they are effectively exempt from the requirements in section 24 not to discriminate against people accessing their services (ie students). 40/

Unlike the situation re discrimination by religious schools against teachers (& by religious hospitals, aged care facilities, accommodation providers & disability services providers against employees), there is *no* requirement for religious schools to publish their policies. 41/

In practice, this would allow religious schools to:

-give detention to students who question a particular tenet of the school's faith
-suspend students for expressing disagreement with that tenet, and
-expel students who say they no longer believe in the school's faith. 42/

These examples may sound extreme - and thankfully most religious schools will not act in such a way - but some schools might, and they would be permitted to do so because the religious exceptions in proposed section 7 are drafted so generously. 43/

In particular, subsection 7(2) merely requires schools to engage 'in good faith, in conduct that *a person* of the same religion as the religious body could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.'
1 person. 44/

This approach falls far, far short of the best practice approach in Qld, Tas, ACT and NT, which allow discrimination by religious schools against students on the basis of religious belief at the point of enrolment, but not beyond. 45/

That is an appropriate accommodation of the ability of faith communities to form schools to teach their faith to their children, while respecting the human rights of children and teenagers to question and explore their faith, especially as they grow older, without punishment. 46/

It is hypocritical in the extreme that advocates for the Religious Discrimination Bill, who shout 'religious freedom' at the top of their lungs at every opportunity, don't seem as keen to extend the same religious freedom to children and teenagers. 47/

Anyway, thanks very much to everyone who has read this far.

And apologies for the length of the thread.

But the Religious Discrimination Bill really is the perfect example of where the 'devil is in the detail', and we need to understand exactly what is does, & doesn't, do. 48/