Will the new Religious Discrimination Bill be good for the Jews?

December 1st, 2021

The following article has been published in The Australian Jewish News by ECAJ co-CEO Peter Wertheim.

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