Submission to Senate Legal and Constitutional Affairs Legislation Committee regarding the Religious Discrimination Bill 2021 (Cth)

I support the Religious Discrimination Bill Package (‘the Bill’) as it currently stands. I only comment on the following particularly controversial aspects of the Bill for the purpose of providing scholarly justifications of those aspects.
Religious belief and activity is the only attribute that does not attract comprehensive, separate protection under Commonwealth discrimination legislation. Such protection is necessary to address increasing hostility to religion and to fulfil our international obligations.

Religious Schools and Discrimination

Sections 7-11 of the Religious Discrimination Bill enable religious bodies, including religious educational institutions, to give preference to persons who adhere to the religious belief and activity of the body for employment purposes. This will override the recently passed amendments to the Victorian Equal Opportunity Act which prevent religious schools from preferencing staff in accordance with a religious ethos. However, it will not override state or Commonwealth discrimination laws relating to sex, sexual orientation or other protected attributes. It deals with religious discrimination only. The media has reported rumours of a deal to remove the Section 38 religious exemptions in the Sex Discrimination Act in exchange for passing the Bill. To the extent such rumours are accurate and within the scope of the Committee’s terms of reference, this would be misconceived. Previous parliamentary committees considered such a move and rejected it, recommending the issue be considered in depth by the Australian Law Reform Commission. This is still the best approach as religious discrimination and religious exemptions to sex discrimination are conceptually and legally separate.
Under the Bill, religion as a protected attribute includes religious belief and activity, which includes standards of behaviour, speech and conduct. So the Bill will have the effect of allowing religious schools to preference staff with belief and behaviour consistent with the ethos of the school, as indicated in the relevant sections. Such preferencing is a fundamental human right. It fulfills Article 18(4) of the International Covenant on Civil and Political Rights, which obliges states (without limitation) to facilitate parents educating their children in accordance with their own convictions. This entails the ability for religious schools to preference staff who adhere to the religious beliefs and activities of the school's religious ethos. As held by the European Court of Human Rights considering the issue under the European Convention of Human Rights, such preferencing is a necessary aspect of a pluralist democracy with diverse views.

Statements of Belief

Section 12 of the Bill protects statements of belief by stating that they are not discrimination, specifically overriding the Tasmanian Anti-Discrimination Act which provides that statements which cause ‘offence’ may be discriminatory. This is a positive move because the Tasmanian legislation is far too broad. It is an outlier in Australian anti-discrimination law and stifles freedom of speech and the expression of religion in public life. Detractors claim that this will license hurtful personal attacks on the basis of religion. This is extremely unlikely for three reasons. First, the hypotheticals posed as possible examples are fanciful. Second, in the event such hypotheticals do occur, they are not currently unlawful and the Bill will not affect this. Such statements can be dealt with through existing disciplinary or other legal processes. Finally, statements of belief must overcome significant hurdles to attract protection from the Bill: they must be made in good faith, and not be malicious, and not be reasonably considered to threaten, harass, intimidate or vilify, and must not urge the commission of a criminal offence. This combination of limitations means the kinds of hypotheticals posed by the detractors, if they exist, would not meet the standard to be protected. The protection of statements of belief is appropriately designed to promote the robust discourse which is the hallmark of a democratic and pluralist society.

Corporations as Discrimination Litigants

The Bill effectively empowers religious bodies, including associations and corporations, to be litigants in discrimination matters. The Australian Human Rights Commission has argued that the first exposure draft of the Bill was too broad in defining who may be a victim of religious discrimination, arguing that the ability of religious corporations such as religious institutions, schools, charities and businesses to make claims is a significant departure from international human rights law which protect only the rights of natural persons. However, there are two independent constitutional supports for protecting the ability of religious corporations to be litigants in the Bill. First, the Constitution supports the power to legislate to protect incorporated and unincorporated religious bodies against religious discrimination through the external affairs power. This gives effect to Article 18(1) of the International Covenant on Civil and Political Rights and other connected provisions and international law instruments, which protect individuals manifesting their beliefs in community with others (including through incorporated and unincorporated communities), and protect such communal entities against discrimination. In this respect international law jurisprudence clearly accepts religious associations as distinct persons at law which can sue and be sued in their own right. Second, the Commonwealth has the power to legislate with respect to constitutional corporations through the corporations power. Where a religious corporation is a constitutional corporation, and such a corporation is the object of statutory command or has rights and obligations conferred upon it, the Commonwealth has the ability to designate a religious corporation as a litigant. Therefore, as a constitutional matter, there is no impediment to empowering religious corporations as litigants in a law protecting against religious discrimination, and indeed such is required as a means to give adequate effect to the protections afforded to individuals and groups against religious discrimination in international law.