The Parliamentary Joint Committee on Human Rights has recommended the religious discrimination bill (RDB) be passed with changes. Labor members added some extra comments and the Greens a dissenting report.

Actions by managers: The report recommends that the bill give more detail on what the management of an organisation can do in setting standards for employees. They suggest the government “consider including a legislative note in the Religious Discrimination Bill 2021 that states that reasonable management action conducted within a reasonable manner will not constitute unlawful discrimination.” They would like to see examples of reasonable management action in the bill’s explanatory memorandum.

Aged care: the committee wants clarification of the bill’s effects on in-home care services, particularly concerning aged care and disability services.

Public statements of doctrine: The bill requires a religious body (such as a school) to make a public statement of belief. It needs to explain how the religious body will enforce this position. The committee wants the Federal minister to be able to “determine any other requirements ancillary to this, which the policy must comply with.”

Statements of belief: The bill seeks to protect statements of belief – the committee recommends that the explanatory memorandum should “provide greater clarity about what sort of statements or actions may, or may not, be considered to not constitute discrimination.”

Rules of conduct for qualifying bodies: (for example, rules set by the Medical Board of Australia). The committee recommends consulting qualifying bodies to develop guidelines about their rules. They suggest making it clear that “it may be indirect discrimination for a qualifying body to impose a qualifying body conduct rule that restricts or prevents a person from expressing their religious beliefs unless the qualifying body can demonstrate the rule is reasonable.”

The Labor Statement 

Flaws in the process “This bill is important to Australians of faith and no faith alike. All fair-minded people in our pluralist democracy reject discrimination in all its forms. It is, therefore, disappointing that this bill has suffered in its design from the Government’s failure to work across the Parliament – and, indeed, across the Federation – to ensure it is fit for purpose and provides the legislative protection promised. Many of the concerns raised by stakeholders have arisen because some aspects of the proposed protections are not well thought through. This rushed process after so much inaction since 2018 is a failure of governance, and all Australians deserve better.”

Preference in employment “Labor members of the Committee support the right of a religious, educational institution to preference staff in employment to ensure that the institution is able to reasonably conduct itself in a way that is consistent with its religious ethos.”

However, “Labor members urge the Government to work across the Parliament – if not across the Federation – to address the serious concerns that have been raised about clause 11 and consider whether there are better approaches to addressing the legitimate concern that clause 11 is intended to address (i.e. the need to ensure that religious schools can reasonably conduct themselves in a way that is consistent with their religious ethos).”

Amendments: Labor urges the amendments suggested by the committee be passed. “There is consensus from many stakeholders, the Attorney-General’s Department, other members of this committee, and even the Prime Minister that the religious discrimination legislative package requires amendments before the parliament passes it. The Australian Labor Party has a long history of fighting to prevent discrimination against people of faith. The legislation that Prime Minister Morrison introduced should unite our nation, not divide. Labor members urge the Government to work with Labor and the State and Territory governments to resolve the outstanding issues identified in these Additional Comments and the majority report of this committee as a matter of urgency.”

The Greens

The Greens position is that these bills not be passed and that “the Australian Government develop a Charter of Rights, to protect religious belief amongst other protected attributes,” instead.

The changes to the Sex Discrimination Act should proceed first: the bills should not be passed “until the Sex Discrimination Act 1984 has been amended to provide protection for LGBTIQA+ students.”

The greens recommend that clause 12, which seeks to protect “statements of belief”, be removed in its entirety and prefer the Tasmania model for anti-discrimination law. “The evidence provided to the Committee indicates that the Tasmanian legislation provides an important benchmark in protecting human rights, and sets the standard for other jurisdictions around Australia.”

The Senate’s Legal and Constitutional Affairs Legislation Committee has recommended that the religious discrimination bill (RDB) be passed. But they recommend that the Senate consider Professor Anne Twomey’s concerns and drafting amendments proposed by Professor Nicholas Aroney.

As noted in an earlier Eternity report, Twomey, professor of Constitutional Law at the University of Sydney, argued in her submission to the committee that the bill is unconstitutional where it seeks to override state anti-discrimination laws. It led to a lot of questions to people appearing before the committee.

Nicolas Aroney, Professor of Constitutional law at the University of Queensland, one of the Christian lawyers appearing before the committee, agreed. He told senator Deborah O’Neill ‘Yes, I agree with Professor Twomey. In fact, she raises a question that I myself had raised in relation to the second draft bill. In my written submission to this committee, I proposed alternative wording that could be instituted or inserted to replace what exists in clauses 11 and 12 to place this question beyond doubt. I would encourage the committee to consider that drafting.”

The Committee’s View:

“Across the diverse views voiced during the course of this inquiry, there was broad support for measures to protect people from discrimination on the grounds of religious belief and activity. The lack of such protections is a significant gap in Australia’s anti-discrimination regime and its obligations under international law.