Religious Discrimination Bill fundamentally flawed – Australia needs a Human Rights Act for everyone
The second exposure draft of the Morrison Government’s Religious Discrimination Bill is flawed, unworkable and at odds with Australia’s obligations under international human rights law. The Bill should be withdrawn in its entirety.
Rather than increasing protection against discrimination in Australia, it would create an anti-human rights situation whereby all Australians can potentially be harmed by permissible discrimination on the basis of religious faith. The proposed measures are far reaching, with immediate ramifications for employees, employers, health practitioners, and patients. The Bill would most acutely and disproportionately impact children, women, people with disabilities, LGBTIQ+ people, single parents, de facto couples, divorced people, and people without any religious beliefs. It will:
- privilege religiously-based discrimination over the rights of others to be free from discrimination;
- build a fundamental imbalance into our existing anti-discrimination legal system by privileging the rights of one group within society at the expense of everyone else;
- create Commonwealth exemptions in favour of so-called ‘religious’ statements which will override concurrent and more protective State anti-discrimination legislation, setting an undesirable precedent; and
- undermine, inter alia, Section 18C of the Racial Discrimination Act.
This is a Bill that fails to adhere to well established international legal principles regarding the indivisibility, interdependence and proportionality of human rights. It would establish exemptions for ‘statements of belief’ that override existing federal, state and territory discrimination laws on grounds such as race, sex, disability and sexual orientation. In so doing, this Bill effectively elevates religious discrimination to a position of priority above other forms of discrimination and subjugates other fundamental rights. In contrast, international human rights law is clear: there is no hierarchy of rights. The rights contained in Article 18 of ICCPR which establish the right to freedom of thought, conscience and religion, are not superior to other human rights.
The Bill would prevent employers and bodies that confer professional qualifications in sectors such as law or medicine, from imposing ‘reasonable’ conduct rules which promote non-discrimination against other groups, for example LGBTIQ+ Australians, people with disabilities and women. Likewise, businesses may no longer impose rules on their employees which eliminate discrimination in that workplace unless they can establish that compliance with the rule is “necessary to avoid unjustifiable financial hardship” to their business.
Australian legislation and judicial decisions should adhere to international human rights standards and human rights laws can only achieve their objectives if they are applied completely to all human rights. That is not what would occur under the RDB legislative package. Our laws should not be singling out only select human rights for protection. This does not reflect Australia’s international legal obligations to protect all human rights equally and fails to take account of the necessary interrelation between all human rights.
Australians have an internationally recognised right to the highest attainable standard of health, to accessible, safe and legal abortion services as well as to freely determine the number and spacing of their children. This Bill threatens to undermine these rights due to provisions that would allow doctors, nurses, midwives, psychologists and pharmacists to conscientiously object to providing types of healthcare such as contraception, IVF, abortion, HIV prevention medication, hormone treatment or stem-cell based treatments for degenerative diseases and cancer. Notably, ‘conscientious objection’ would be permissible not only in respect of services provided directly by the medical professional, but also in respect of the health services they participate in. This means practitioners with a conscientious objection could refuse to refer a patient on to another person who can treat them. This aspect of the Bill threatens to undermine access to healthcare in Australia because it applies to the vast majority of professionals in Australia who are responsible for the delivery of most essential healthcare.
A Freedom of Religion Commissioner is still proposed but there is still no LGBTI Commissioner, which would leave LGBTI Australians as the only group protected by federal anti-discrimination legislation but without a dedicated Commissioner at the Australian Human Rights Commission. Given the disproportionate impact that the RDB package is likely to have on LGBTIQ+ people this omission further compounds the likely impact of the subjugation of other rights to so-called ‘religious’ rights under the present Bill.
While the core international human rights treaties support human rights laws which provide protections against religious discrimination in areas of public, there is no absolute right to manifest or act upon one’s religious belief externally so as to impact upon others. Religious freedom does not mean freedom to visit harm upon others in the name of one’s own religion.
The RDB legislative package should not be passed.
Australia is the only Western liberal democracy without a federal Human Rights Act or Bill of Rights. Australia is bound by the seven core international human rights conventions and has been elected to the UN Human Rights Council, yet our citizens and residents continue to live without the human rights protections enjoyed by others in comparable countries across the Western world.
Australia’s international human rights treaty obligations should be enshrined in Commonwealth legislation. The human right to freedom of religion would best be protected by a Federal Human Rights Act that is consistent with these obligations.
Read ALHR’s submission on the second exposure draft of the Religious Discrimination Bill here
Read ALHR’s Submission on the first exposure draft of the Religious Discrimination Bill here
Read ALHR’s submission to the 2018 Expert Panel on Religious Freedom’s Religious Freedom Review here
Read ALHR’s submission to the 2018 Senate Legal and Constitutional Affairs References Committee’s inquiry into Discrimination by faith-based educational institutions here
Contact: Matt Mitchell, ALHR media manager 0431 980 365.