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Is the Religious Protection Bill Doomed?

At the moment the Religious Discrimination Bill is going nowhere. The Attorney General, Christian Porter, has come up with legislation that almost no one is happy with. Faith based groups believe that the draft legislation does not go far enough in protecting their rights and interests. On the other hand the Australian Industry Group (AIG) and the Australian Council of Trade Unions (ACTU) argue the law will permit workplace harassment and bullying and make industrial relations more difficult. The tension is between those who want complete protection of religious beliefs and those who insist tolerance should take priority over absolute rights. There is a third group that believes that the legislation will tie up the courts in endless litigation and is not worth the effort.

The draft bill goes a long way towards meeting the requirements of faith based groups. It allows people to make statements of religious belief that offend others provided these are made in good faith. This means that statements, like those of Israel Folau that adulterers, drunks and homosexuals will go to hell, are protected. It also protects doctors who tell transgender patients God intended there to be only two genders, childcare workers who criticize single mothers on religious grounds, and religious leaders like Muslim clerics who criticize women for working rather than staying at home.

Unless the state law prevents it, a health care worker can refuse to provide treatment, such as contraception, on conscientious religious grounds. Religious hospitals, aged care providers or accommodation providers such as retirement villages may discriminate against their staff on the basis of religion both in terms of hiring and to set codes of conduct requiring them to act in accordance with that faith at work. Faith based businesses can also discriminate with regard to the appointment of senior management.

Office workers are free to express their religious beliefs on social media. Religious schools, such as Jewish schools, have a right to insist that all their students are Jewish. Faith based schools also have the right to expel students or sack teachers who publicly disclose that they are agnostics.

It is obvious why minority groups such as LGBTQI organisations are implacably opposed to the legislation. At the moment most of the Labor Party and the Greens would vote against it. However, the 20 members of the so-called Otis group led by Senator Don Farrell and Joel Fitzgibbon are likely to support it so it would get through the House of Representatives.

The Senate is a different matter. There are Government senators, such as Dean Smith and James Patterson who would oppose the bill on principle. However these are offset by Labor senators who would vote for it. There are others who are worried about the litigation problem and see inherent difficulties in the legislation.

An example is the ‘expression of religious belief’’ exemption. A question will arise, for example about how you distinguish between homophobia or racism and religious belief. There is a test in that the statement shouldn’t be made with malice or in order to denigrate or vilify but there is still substantial scope for argument.

If a person wants to make a statement condemning a particular group on religious grounds they would probably be safe if they quoted the Bible or the Koran but not if they interpreted it. Minority groups will engage in ‘lawfare’ over issues such as this.

It is for this reason that Senator Rex Patrick said in August last year that the bill is likely to go nowhere. If there is a standoff over the legislation the cross-benchers and others in the upper house will not want to expend their scarce political capital on the bill. On the other hand the Attorney General, Christian Porter, will have a red hot go at getting it through both houses so the Coalition can keep the faith based vote that shifted to it at the last election happy.

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