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