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Religious Discrimination Bill could bring legal profession into disrepute

Under a provision in the controversial Religious Discrimination Bill, lawyers could be in a position to bring the profession into disrepute without disciplinary consequences, the Australian Lawyers Alliance national president told Lawyers Weekly.

user iconNaomi Neilson 08 December 2021 Big Law
Graham Droppert SC
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Should the Morrison government’s Religious Discrimination Bill become law, its controversial “statements of belief” provision may allow lawyers to make comments that could damage the reputation of the justice system without fear of consequence from professional legal bodies, the Australian Lawyers Alliance (ALA) found.

In conversation with Lawyers Weekly, ALA national president Graham Droppert SC explained that whether or not it is intentional, “the danger of this provision is that a lawyer, in a personal capacity, could express opinions about decisions or court processes” that could harm the way the public views the profession and the courts.

Once the offending comment is made, and given it falls under “statements of belief”, clause 15 will then prevent professional legal bodies from launching investigations or pursuing action against a lawyer on the grounds of a breach of the code of conduct.  

For example, Mr Droppert said that a senior legal practitioner could make a comment on social media that is “highly critical of a judge’s decision” or state the decision is “immoral or contrary to Christian teaching”. The lawyer could go further and suggest the judge’s decision reflects a lack of morality in the system, “and even criticise the judge’s own character, stating the judge will be subject to a higher judgement”.

“Such a comment on social media, even in a personal capacity, could be considered to undermine public confidence in the administration of justice and breach our professional conduct rules. However, any disciplinary sanction for such a breach could not be pursued if clause 15 becomes law, as the comments could be considered a statement of belief made in a personal capacity,” Mr Droppert said.

Unless the comments fall into the categories of “malicious, threatening, intimidating, harassing, vilifying or otherwise encouraging of a serious offence”, Mr Droppert said there would be nothing to stop lawyers from using the provision as a legal loophole should they choose to intentionally make controversial comments.

“There are limited exemptions in the proposed clause 15 in the bill and, unless it falls within those categories, there would be nothing to stop a lawyer, either with the intent or not, of potentially bringing the profession or the courts into disrepute,” Mr Droppert told Lawyers Weekly.

“There is a serious risk to maintaining public confidence in the profession and the courts when the major overriding mechanism to uphold those standards is undermined in the way that this legislation does.

Legal bodies, professionals and experts have long opposed the bill in all its drafts for its potential to discriminate against certain groups, including LGBTQIA+ people, women, and people of non-religious beliefs. Most recently, UNSW academics said that should the bill pass as it is, it would “ironically” create space for discrimination.

On what other options should be explored, Mr Droppert said there is already a well-established regime of anti-discrimination legislation across the state and territory jurisdictions that could instead be amended to include religion.

“If there was a concern that there was a group wishing to express religious opinions which were not appropriately protected, the better way would be to strengthen the state and territory provisions rather than to have an overriding federal piece of legislation that excludes state and territory jurisdictions,” Mr Droppert said.

Naomi Neilson

Naomi Neilson

Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly. 

You can email Naomi at: naomi.neilson@momentummedia.com.au

Comments (11)
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    You mean it isn’t already?
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    I did not know there was much morality or Christian virtue left in our legal system. Give me back Lord Halsbury, get rid of the clever little fellows and let’s have moral conmon law and equityback.
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    Exhibit "A" in the need to separate religious beliefs from, politics and the law. Absolutely catastrophic and contentious religion plays any part in overall decision making.
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      Really? Where do you think English common law comes from? Ever heard of marriage in the ecclesiastical Courts?
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      I agree.

      If an atheist says something on a topic it should be given careful consideration but if a person with publicly-articulated religious views says the same thing it should be ignored or deplored..
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    OOHHH - I am terrified that a lawyer might say a judge could suffer eternal wrath...
    That would definitely be the end of society's unblemished image of our justice system.
    What nonsense. This is just more - and patently weak - scare-mongering.
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    Further to my last comment which addressed section 12, section 15 only addresses conduct rules (not conduct) and it has the specific qualification of excluding from its protection a conduct rule which is an is an essential requirement of the profession. Improperly criticising the judiciary is surely an essential requirement of the profession.
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    Respectfully this is an incorrect proposition. The purport of the section is that statements of belief which are not malicious, and which do not threaten, vilify, intimidate or harass are not discrimination for the the purposes of the named Anti-discrimination statutes and do not offend section 17 of the Tasmanian Anti-Discrimination Act 1998. It does not say anything about Codes of Conduct for the profession..


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    Why is there so much scaremongering around this Bill? It's important that Australia should have national religious discrimination laws to abide by its United Nations obligations - some states like New South Wales currently have almost no religious discrimination protection at all and that isn't right.
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    Legal Professions are controlled by state law, this is a Cth law. Does s109 of Constitution apply? Doubtful.
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