The Federal gov­ern­ment intro­duced its long-awaited Religious Dis­crim­in­a­tion Bill in the par­lia­ment last Thursday.

Will it be “good for the Jews”?  To answer that question we need to address other important questions.

Why do we need this Bill?

Refusing to serve someone in a shop or to admit them to a bar or res­taur­ant simply because of their religion is repugnant to con­tem­por­ary Aus­trali­an values. Yet at present there is little if any legis­lat­ive pro­tec­tion at the Federal level against dis­crim­in­a­tion directed at a person based on their religious identity and belief, and there are incon­sist­en­cies in the manner in which State and Territory laws have addressed the issue, if at all.

This is in contrast to the existence of Federal legis­la­tion which protects all Aus­trali­ans against dis­crim­in­a­tion based on certain other attrib­utes, namely race, sex, age and dis­ab­il­ity. As concluded by the Ruddock religious freedom review in 2018, pro­tec­tions against religious dis­crim­in­a­tion at a federal level are long overdue.

Will religious bodies continue to be free to give pref­er­ence to people of their own faith?

Generally, yes.  It will not be dis­crim­in­a­tion for a religious body, including a school or charity, to operate in accord­ance with its religious ethos.  This may include giving pref­er­ence in employ­ment, service delivery and conferral of char­it­able benefits to people who share that religion.

For example, a religious school or pre-school may require all of its staff or students to practise that religion, if the religion or the religious sus­cept­ib­il­it­ies of its adherents make this necessary.  However, a religious hospital, aged care facility, accom­mod­a­tion provider or dis­ab­il­ity service provider will only be free to give pref­er­ence in employ­ment, but not in service delivery, to people who share the institution’s religion.  Any pref­er­en­cing in employ­ment by a religious body will have to be disclosed upfront in a publicly available policy document.

Will there be any addi­tion­al pro­tec­tion for the religious bodies of minority faith com­munit­ies?

Yes.  It will not be dis­crim­in­a­tion for a religious body, including a religious hospital, aged care facility, accom­mod­a­tion provider or dis­ab­il­ity service provider, to provide services or facil­it­ies specially tailored to meet the needs of a par­tic­u­lar faith community.

For example, a Jewish res­id­en­tial aged care facility or hospital will not dis­crim­in­ate simply because it provides services to meet the specific dietary, cultural and religious needs of members of the Jewish community, including the supply of kosher food, par­ti­cip­a­tion in Jewish community events and observ­ance of Jewish festivals.

Will the concept of religion allow for different denom­in­a­tions or streams of a religion?
Yes.  This is acknow­ledged in the Explan­at­ory Memor­andum accom­pa­ny­ing the Bill.

Will clubs and voluntary bodies be free to restrict their mem­ber­ship to people who hold or engage in a par­tic­u­lar religious belief or activity?

Yes.  However, it is not clear whether a club whose mem­ber­ship is open to everybody may nev­er­the­less restrict mem­ber­ship of its governing board to people who hold or engage in a par­tic­u­lar religious belief or activity.

Will this Bill permit religious schools to exclude or expel students because they are LGBTQI?

No.   But this is already permitted under section 38 of the Sex Dis­crim­in­a­tion Act which has been in force since 1984.  That section, and a related section (which permits religious schools not to hire teachers who are LQBTQI), are due to be reviewed by the Aus­trali­an Law Reform Com­mis­sion.

Will this Bill permit public expres­sions of religious bigotry which are currently unlawful?

The sorts of religious state­ments that are likely to be protected by the Bill fall within a much narrower band than some com­ment­at­ors have suggested.

Section 12(1)(a) provides that state­ments of religious belief will not be “dis­crim­in­a­tion” under Australia’s current anti-dis­crim­in­a­tion laws.   But if a statement of religious belief would con­sti­tute “vili­fic­a­tion” under those laws, or involve malice, threats, intim­id­a­tion or har­ass­ment, then that statement will not be protected under this Bill. Such a statement will continue to be just as unlawful as it is currently.

Can a mere statement con­sti­tute dis­crim­in­a­tion, as distinct from vili­fic­a­tion?  Courts in Australia have recog­nised that mere words can amount to dis­crim­in­a­tion in some cases, but none of those case have involved state­ments of religious belief.

In order to be protected under this section, a statement of religious belief would have to be egregious enough to rise to the level of dis­crim­in­a­tion, but not serious enough to involve malice, threats, intim­id­a­tion or har­ass­ment. That would be a very narrow range of state­ments.

There is also an over-ride of section 17 of the Tasmanian Anti-Dis­crim­in­a­tion Act, which prohibits certain kinds of offensive and insulting state­ments.  Section 17 applies only in Tasmania, and is very much an outlier provision compared to other State and Territory laws.

Peter Wertheim is co-CEO of the Executive Council of Aus­trali­an Jewry and has rep­res­en­ted the Aus­trali­an Jewish community in con­sulta­tions with the Federal gov­ern­ment in the drafting of the Bill