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THE federal government presented its long-awaited religious discrimination bill last Thursday. Will it be “good for the Jews”? To answer this question, we must address other important questions.
Why do we need this bill?
Refusing to serve someone in a store or to admit them to a bar or restaurant simply because of their religion is contrary to contemporary Australian values. Yet, at present, there is little or no legislative protection at the federal level against discrimination against a person on the basis of their identity and religious beliefs, and there are inconsistencies in how state and territory laws have addressed the issue, if at all.
This contrasts with the existence of federal legislation which protects all Australians from discrimination based on certain other attributes, namely race, gender, age and disability. As the 2018 Ruddock Religious Freedom Review concluded, protections against religious discrimination at the federal level are long overdue.
Will religious organizations continue to be free to give preference to people of their own faith?
In general, yes. It will not be discrimination for a religious organization, including a school or a charity, to operate in accordance with its religious ethics. This may include granting preference in employment, providing services, and granting charitable benefits to people who share that religion.
For example, a religious preschool or school may require all its staff or students to practice that religion, if the religion or religious sensibilities of its adherents make it necessary. However, a religious hospital, senior care facility, accommodation provider or disability service provider will not be free to give preference in employment, but not in service provision, to persons who share the religion of the institution.
Any preference for employment by a religious organization will need to be disclosed up front in a publicly available policy document.
Will there be additional protection for religious bodies in minority faith communities?
Yes. It will not discriminate for any religious organization, including a religious hospital, senior care facility, accommodation provider, or disability service provider, to provide specially tailored services or facilities to meet to the needs of a particular faith community. For example, a Jewish elderly care facility or hospital will not discriminate simply because it provides services to meet the specific dietary, cultural and religious needs of members of the Jewish community, including the provision of kosher foods, participation in events and Jewish community observance. Jewish holidays.
Will the concept of religion allow different denominations or currents of a religion?
Yes. This is recognized in the explanatory memorandum accompanying the bill.
Will clubs and voluntary organizations be free to restrict their membership to people who have or engage in a particular religious belief or activity?
Yes. However, it is not clear whether a club with open membership can nonetheless restrict membership on its board of directors to people who have or engage in a particular religious belief or activity.
Will this bill allow religious schools to exclude or expel students for being LGBTQI?
No. But this is already permitted under section 38 of the Gender Discrimination Act, which has been in force since 1984. This section and a related section (which allows religious schools not to hire LGBTQI teachers) need to be looked at by the Australian Law Reform Commission.
Will this bill allow public expressions of religious fanaticism that are currently illegal?
The types of religious statements potentially protected by the bill fall into a much narrower range than some commentators have suggested.
Section 12 (1) (a) provides that statements of religious belief will not constitute “discrimination” under current anti-discrimination laws in Australia. But if a statement of religious belief constitutes “defamation” under these laws, or involves malice, threats, intimidation or harassment, then that statement will not be protected by this bill. Such a statement will continue to be just as illegal as it is now.
Can a simple statement constitute discrimination as opposed to defamation? Australian courts have recognized that mere words can constitute discrimination in some cases, but none of these cases involved statements of religious belief.
In order to be protected under this section, a statement of religious belief should be flagrant enough to reach the level of discrimination, but not serious enough to involve malice, threats, intimidation or harassment. It would be a very narrow range of statements.
There is also a section 17 waiver of the Tasmanian Anti-Discrimination Act, which prohibits certain types of offensive and insulting statements. Section 17 only applies to Tasmania and is an outlier in relation to other state and territory laws.
Peter Wertheim is co-CEO of the Australian Jewish Community Executive Council and represented Australian Jewry in consultations with the federal government while drafting the bill.
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