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‘Unprecedented, unjustified, inconsistent’

The controversial discrimination bill uniting the profession and threatening the legal system

There have been many versions, countless discussions and hundreds of submissions, but the Religious Discrimination Bill remains as controversial as ever. Overwhelmingly, the response from the legal profession has been mostly united: the bill and its more controversial provisions, should they be enacted, will throw the legal system, confidence in the administration of justice, and disciplinary matters into disarray.
   BY NAOMI NEILSON

At the beginning of all those discussions and submissions, legal professional bodies are unanimous in one big thing: freedoms and expression of religion are fundamental to human rights and should be protected by law. However, the way this is drafted in the Religious Discrimination Bill sees that protection go beyond its remit and instead seeks to lock into law the right to discriminate on the grounds of religious beliefs.


Across two days of hearings before the Senate standing committee on legal and constitutional affairs, professional bodies – legal and otherwise – repeated familiar requests for the bill to remove contentious provisions that will allow the discrimination of women, people with disabilities, people from culturally or linguistically diverse backgrounds, people that fall within the LGBTQIA+ community, and more.

In one submission, the Australian Lawyers Alliance (ALA) president Graham Droppert SC wrote that the bill would “weaken existing protections” for those people, who rely on other discrimination laws to protect them from offensive, insulting, humiliating or intimidating conduct both in and outside of the workplace. If the bill should move ahead, these kinds of comments – no matter how politely intended by someone with a religious belief – will seek to discriminate against that person.

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“The ALA is concerned that the government has not presented a strong, evidence-based rationale for the need for such discrimination legislation in respect of religious belief or activity,” Mr Droppert said. “ALA submits the bill is not premised on the basis of addressing an identified disadvantage that is faced by the possession of the relevant attribute in the same way that other discrimination laws are.”

Similarly, the Human Rights Law Centre (HRLC) has argued that the bill, despite its updated drafting, repeats many of its divisive patterns and “fails to strike the right balance between the freedom to manifest religion and the right of everyone to equal treatment and non-discrimination”. In short, it submitted there are “unprecedented, unjustified” provisions that are “inconsistent with international human rights laws”.


“The ALA is concerned that the government has not presented a strong, evidence-based rationale for the need for such discrimination legislation in respect of religious belief or activity”

While there are certainly circumstances in which discrimination can be acceptable from religious bodies – particularly when they are appointing or training religious leaders or, at the school level, hiring a religious lessons teacher – the bill goes far beyond this intention and could see many employees shown the door for reasons that would ordinarily be unlawful today. For people who face multiple forms of discrimination, such as racism and sexism, the bill is an “even greater threat”.

Of all the controversial clauses, clause 12 has arguably been getting the most attention and backlash, not least for the effect this will have on the courts system. The ALA submitted that the clause, which permits statements of belief to be made, would “effectively legislate bigotry” by enabling religious statements “to be used as a cloak for sexism, racism, homophobia and other prejudices”.

Concerningly, Australian Discrimination Law Experts Group (ADLEG) member and associate lecturer at Monash University’s faculty of law Liam Elphick explained that state and territory tribunals would be unable to hear some claims constitutionally when the statements of belief argument are made, leading to stress on the courts.

“It’s going to lead to significant costs, significant delays and it’s going to clog up the system,” Mr Elphick told the committee, adding that the clause will deny access to justice to “the very people we are trying to protect”. Under this clause, those people may face lengthy and very costly hearings to resolve a discrimination matter.

Often, the argument that the courts and legal bodies will eventually make sense of the bill has been brought up – specifically, that precedents will soon become clear, and definitions will eventually be made. Responding to that assumption, Mr Elphick said he “can’t see a situation in which this automatically resolves” and, given its complexity, “this could not be worked out by some tinkering in the courts”.

The Law Council of Australia (LCA) similarly made the same clarification, adding that it is concerned about the “timing of the complaints, the complexity of the matters and specifically we have identified the increased risks of costs”. Importantly, LCA chair of the equal opportunity committee Kate Eastman SC told the hearing that the bill would not be used by academics and lawyers but by the ordinary Australian.

“They are ordinary people who may be very unaware of the law and unaware, for example, as to what the best forum may be to prosecute their case. Those making a statement of belief may also be unaware of the law, the extent to which they may have a defence and also the consequences of raising a defence,” she explained.

“In that respect, for ordinary people, I don’t accept the proposition that the jurisdiction is diminished. In terms of resolving those issues, they are very complex issues involving questions of jurisdiction and the operation of the constitution, and they cannot be dealt with in a very simple way with this one piece of legislation.”

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The religious discrimination bill will achieve two things: further entrench the ability of churches to victimise people; and create absolute mayhem in workplaces. It will achieve nothing good and there is no existing problem it will solve. The definition of a bad law.
marquelawyers | @marquelawyers Nov 24

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To the journos describing the latest Religious Discrimination Bill as 'watered down': maybe check in with your local discrimination law expert before making such claims.
In many ways this version of the Bill is worse, and overrides existing protections to an even greater degree.
Liam Elphick | @LiamElphick_ Nov 24

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Feature 3

How the bill undermines the ‘fit and proper person’ test

In addition to flooding the justice system with costly and lengthy proceedings – and particularly so when statements of belief are raised as an argument – the bill will permit lawyers to make offending comments about a judge, a court decision or the profession as a whole without fear of consequence, according to several submissions. Despite the risk of harm this presents, professional bodies will be restricted from pursuing the disciplinary action that may normally take place.

Lawyers, who have specifically been mentioned in the bill, could use clause 15 to protect themselves from repercussions and will no longer be at risk of losing their professional qualification by reason of the expression of their religious beliefs in a personal capacity, no matter how much harm this does to confidence in the law.

Specifically, this clause intends to prevent bodies that qualify individuals in occupation, professions and trades – in this instance, legal services boards and other complaint committees – from applying the standards of qualification to discriminate against individuals on the grounds of their religious beliefs or activities.

In December, Mr Droppert told Lawyers Weekly that practitioners could use this legal loophole to make the offending comment, either intentional or not and, unless the comment is deemed to be “malicious, threatening, intimidating, harassing, vilifying or otherwise encouraging of a serious offence”, the lawyer will avoid repercussion.

“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 sanctions 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 set out.

In a submission to the committee, the Victorian Legal Services Board + Commissioner (VLSB+C) had the same concern. Chairman Fiona Bennett said they are particularly concerned about the implication when it is then “applied to the ethical landscape that must be navigated on a daily basis by lawyers”.

“Lawyers have paramount duties to the court, their client and the administration of justice. These duties extend beyond a lawyer’s personal views and beliefs, and adherence to them by all members of the legal profession is critical to ongoing public trust and confidence in our legal system and the rule of law,” Ms Bennett explained.

Further, VLSB+C said it is concerning that, should clause 15 be enacted, lawyers could argue that their individual rights to express personal religious beliefs should be protected, “even when those views undermine, or are at odds with, these paramount duties”. It could also, Ms Bennett added, protect them even when comments reflect on an individual’s status as a fit and proper person to hold a practising certificate.

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"While we've got to make sure we're doing the right thing by these kids, we acknowledge religious schools.. have a right to exercise their genuinely held religious beliefs, even if it might offend others in our community."
Amanda Stoker | @RNBreakfast Feb 4

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“Lawyers have paramount duties to the court, their client and the administration of justice. These duties extend beyond a lawyer’s personal views and beliefs, and adherence to them by all members of the legal profession is critical to ongoing public trust and confidence in our legal system and the rule of law”

The legal argument for the Religious Discrimination Bill

Appearing before the Senate committee, the not-for-profit legal group, Human Rights Law Alliance (HRLA) – which mainly acts for Christians – said it supports the bill almost in its entirety. Principal lawyer John Steenhof claimed it was a “real step forward” to affording discrimination protections for Christian people in the workplace, even if that meant there will be an “emotional” backlash from the affected parties.

To support their argument in favour of the bill, HRLA included several case studies in its submission, including one about prospective foster parents who were labelled “unsafe” due to their unwillingness to promote a sexual identity that conflicts with their Christian convictions. In another, a teacher was terminated after he made it clear that he would not “address gender confusion” with a transgender child.

When asked if he believes that teachers, like the one in his case study, should be permitted to misgender children despite the emotional toll this will take on them, Mr Steenhof said the Religious Discrimination Bill should strike the right balance between the “deep conscientious views of teachers and the rights of students”.

“In this situation, that balance was not struck well, because of an initial and immediate animosity towards the conscience of the teacher,” Mr Steenhof said, adding that there “was a way to resolve the matter which did not require the two conflicting rights to come up against each other” and affect the employment.

In the case study, HRLA stated that the teacher had attempted to resolve the issue by changing the roster “to avoid conflict”. If the bill includes a requirement for a discriminator to provide reasonable adjustments for a religious teacher, HRLA said it “may have aided in discussions about [the] school if the school was aware it had a legal obligation to provide reasonable adjustments”, and a solution could be found.

Targeting the “scaremongering” around the Religious Discrimination Bill, Mr Steenhof said the concerns are not warranted because, at their extreme, there are provisions of law that will “give protection in those situations”. There was no reference at the hearing to clause 12, which will override existing laws.

“This bill is a good start. It has a lot of flaws that I, as a practitioner, think could be fixed which could make it much better to effectively use. Even just as a signpost that religious belief and activity are recognised as an attribute that you cannot discriminate against, it is a real step forward,” Mr Steenhof said, adding that: “The opposition to the bill and crazy scaremongering … have shown the need for it.”

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