How to draft a workable Religious Discrimination Bill
Luke Beck
06.04.2022
With the recent implosion of the Morrison Government’s Religious Discrimination Bill and both major parties continuing to promise to legislate in this space in future, it is timely to think about how to draft a workable Religious Discrimination Bill.
The Government’s Bill was controversial because it included provisions overriding existing anti-discrimination protections to enable a range of religiously-motivated conduct (such as refusing to hire gay people or making disparaging comments about disabled people in healthcare settings) that would otherwise be prohibited. This post considers some key issues of process and constitutional substance, and concludes with a proposal for a proper Australian Law Reform Commission inquiry into the issue.
Step 1: Proper consultation in policy development
The Department of Prime Minister and Cabinet’s Legislation Handbook says that a key first step in the process of drafting new legislation is consulting with relevant stakeholders as to the policy positions that will be reflected in the legislation. As Althaus, Bridgman and Davis point out in The Australian Policy Handbook: A Practical Guide to the Policy Making Process consultation helps build consensus and political support for a policy project (p 116).
Consultation works when policy makers listen widely. Despite public consultation processes over a number of years with three versions of the Religious Discrimination Bill under two Attorneys-General (see earlier exposure drafts of the Bill here and here), there was no broad consensus on, and insufficient political support for, the Bill finally introduced into Parliament.
Some of the Government’s own backbenchers were not prepared to vote for the Bill, and the Bill divided key religious groups. Religious groups supporting the Bill included the Australian Catholic Bishops’ Conference and the Sydney Anglican Diocese. Religious groups opposing the Bill included the Anglican Church’s Public Affairs Commission, the St Vincent de Paul Society, the Uniting Church, the Buddhist Council of NSW, and the Hindu Council. Unsurprisingly, LGBTQIA+ advocacy groups also opposed the Bill.
A Resolve Political Monitor poll undertaken for The Age and Sydney Morning Herald in late February 2022 showed that while 65% of respondents ‘supported a law that prevents discrimination/unequal treatment on the basis of someone’s faith’, 63% of respondents opposed such a law ‘if it resulted in allowing religious people or organisations to discriminate against others’.
To succeed, any future Religious Discrimination Bill needs to reflect a broad community consensus rather than simply the preferred policy position of particularly loud voices that have the ear of key politicians.
Step 2: Consider heads of federal legislative power
The federal Parliament can enact a law only if that law falls within one or more of the heads of federal legislative power set out in the Australian Constitution. Like other federal anti-discrimination laws, the Religious Discrimination Bill (see cl 64) sought to rely on the external affairs power in s 51(xxix).
The Bill would be (partly) implementing the guarantee of freedom of thought, conscience and religion set out in art 18 of the International Covenant on Civil and Political Rights and in related international instruments.
For a federal law to be valid under the external affairs power the law need not fully implement an international legal obligation. However, the law must not be inconsistent with the international legal obligation: see Industrial Relations Act Case (1996) 187 CLR 416. Such a law cannot be said to be implementing the international legal obligation.
This is where a Religious Discrimination Bill runs into potential constitutional obstacles. To the extent a Bill protects people from discrimination on the ground of religious adherence or non-adherence (these are the provisions referred to in some public commentary as “shields”) that would easily been seen as implementing art 18. These provisions were largely uncontroversial.
However, to the extent a Bill overrides existing protections against discrimination on other grounds (such as race, disability, sex, gender identity, and sexuality) there is a significant problem. These are the provisions referred to in some public commentary as “swords”. Depending on your point of view, these provisions permit harm to be inflicted on others or permit religious people to cut through existing laws (such as the Sex Discrimination Act 1984 (Cth) and state anti-discrimination statutes) to allow them to more fully manifest their beliefs.
Freedom of thought, conscience and religion is not interpreted as supporting interferences with the rights of others. As the United Nations Special Rapporteur on Freedom of Religion and Belief has explained in terms applicable beyond just women’s rights:
42. The Special Rapporteur would like to reiterate that freedom of religion or belief can never be used to justify violations of the rights of women and girls, and that it can no longer be taboo to demand that women’s rights take priority over intolerant beliefs used to justify … discrimination. It would be contrary to … freedom of religion or belief provisions to allow one set of rights (i.e. women’s rights) to be undermined on the basis of claims made in defence of the right to freedom of religion or belief.
There were provisions in each of the three recent versions of the Religious Discrimination Bill that would have expressly overridden existing anti-discrimination protections, which in the case of federal protections are themselves supported by the external affairs power as implementing international human rights obligations. While each such provision and its interaction with existing protections requires individual analysis, it is doubtful that those provisions would be supported by the external affairs power because those provisions are likely to be contrary to the international law obligations which the Bill as a whole purports to implement. The Victorian Labor Government expressly indicated its willingness to litigate the validity of such provisions, and the Tasmanian Liberal Government initimated as much in saying it did not want to see Tasmania’s anti-discrimination laws ‘weakened’.
Of course, the federal Parliament can rely on other heads of power to enact laws that are inconsistent with international human rights norms. For example, the corporations power in s 51(xx) would support those parts of a Bill regulating the conduct of trading and financial corporations, even if those provisions were inconsistent with international human rights norms. While the Government’s Bill included provisions (see Pt 8) asserting reliance on a range of other heads of power including the corporations power as alternative bases for the Bill’s operation, those would result in a patchwork with the Bill having a far more limited operation than originally planned.
Step 3: Consider limitations on federal legislative power
As well as ensuring the provisions of a future Religious Discrimination Bill are supported by one or more heads of federal legislative power, it is necessary to ensure that those provisions do not contravene any limitations on federal legislative power.
The principal limitation on federal legislative power that was implicated in public debate on the Religious Discrimination Bill was the intergovernmental immunities doctrine, which protects the core constitutional functions of the states from some kinds of interference by federal law.
The problem arose in respect of the controversial ‘statements of belief’ provision (see cl 12). This provision immunised certain kinds of religiously-motivated comments from legal consequences under federal, state and territory anti-discrimination laws. Instead of immunising the relevant conduct from the operation of state laws, the provision provided that a statement of belief ‘does not constitute discrimination’ under the identified state laws. That is, the statement of belief provision purported to control the substantive meaning of terms used in state laws.
While federal laws can have the effect of overriding the operation of state laws in some circumstances, federal laws cannot alter or amend state laws. As the High Court said in Western Australia v Commonwealth (1995) 183 CLR 373 at [106]: ‘Nor does the Parliament of the Commonwealth have power directly to control the content of a State law.’
This problematic drafting was a deliberate policy choice aimed at framing the relevant conduct as good rather than bad. Having conduct labelled discrimination (whether that conduct is prohibited or not) generally casts that conduct, and the person or entity engaging in it, in a disapproving light. As the Catholic Bishops’ Conference, for example, told the parliamentary inquiry that considered the Bill, the current ‘system of exemptions gives the wrong impression’. Certain religious groups did not simply want certain conduct to be permitted but also for that conduct to be reframed as being something other than discrimination.
(The same logic underlies the use of the language of ‘preferencing’ for the provisions in the Bill that would have allowed certain employers to refuse to hire gay and trans people, among others, in some circumstances. The conduct would be reframed as the positive preferencing of people rather than the current more disapproving discriminating against people.)
In drafting any future Religious Discrimination Bill, even if were decided to depart from the orthodox approach of drafting federal anti-discrimination statutes to avoid overriding state-based protections, it needs to be borne in mind that federal Parliament cannot rewrite state laws. Proper drafting is needed.
Step 4: Consider the constitutional implications
Even where a federal statutory provision is supported by a head of federal legislative power and does not contravene any limitations on federal legislative power, constitutional issues might nevertheless lead to unintended, and undesirable implications. The statement of belief provision again highlights the problem.
The Religious Discrimination Bill effectively set up ‘statements of belief’ as a federal, statutory defence to state anti-discrimination laws. This would mean that where such a defence was raised, federal judicial power would become involved, as it raises a matter ‘arising under any laws made by the Parliament’. Pursuant to an implication drawn from Chapter III of the Constitution in the case of Burns v Corbett (2018) 265 CLR 304, state tribunals would not have jurisdiction to decide such controversies.
Discrimination cases involving breaches of state anti-discrimination laws are usually dealt with by the state tribunal systems. State tribunal systems are designed to be less formal, quicker and less expensive than courts. A particularly important feature of the state tribunal systems is that ordinarily a party who loses a case is not subject to an adverse costs order. This allows ordinary people who are victims of discrimination to seek justice without having to risk their homes or financial livelihoods in the event they lose in proceedings before a court. By contrast, the losing party in a court case ordinarily faces an adverse costs order.
This seems a highly undesirable outcome, particularly for the person alleging they had been subjected to discrimination, who would be without an accessible forum for litigating their allegation. Any future law should be drafted with this constitutional implication – and its impracticalities – in mind.
Conclusion: a way forward?
An Australian Law Reform Commission (ALRC) inquiry into the framework of religious exemptions in anti-discrimination legislation is described on the ALRC website as being ‘on hold. This is because the terms of reference for the inquiry state that the inquiry can begin only once a Religious Discrimination Bill is enacted. Given that controversy about a Religious Discrimination Bill centres directly on issues of religious exemptions, such an inquiry should take place before any Bill is passed.
Building on the existing terms of reference for the paused inquiry, here are possible terms of reference for a slightly broader ALRC inquiry:
I, [name], Attorney-General of Australia, having regard to:
the rights and freedoms recognised in the international agreements to which Australia is a party, in particular:
the right to freedom of thought, conscience and religion;
the rights of equality and non-discrimination; and
the interdependence of human rights protections.
a gap in federal anti-discrimination laws respecting discrimination on the ground of religion or belief.
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to subsection 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of what reforms to federal laws are necessary or desirable in relation to the following matters:
Legislative changes to prohibit discrimination on the ground of religious belief or activity or lack of religious belief or activity.
Legislative changes to limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, without limiting in a manner inconsistent with international human rights norms the ability of religious institutions to conduct their affairs in a way consistent with their religious ethos.
Collaboration and consultation
In undertaking this reference, the ALRC should consult widely with all relevant stakeholders (including State and Territory governments, religious institutions, organisations representing people of no faith, and civil society groups) and the broader community.
The ALRC should produce consultation documents to ensure experts, stakeholders and the community have the opportunity to contribute to the review.
Scope of reference
In undertaking this reference, the ALRC should have particular regard to:
The need for proposals to be legally and constitutionally sound; and
The need for proposals to have broad community support.
Timeframe for reporting
The ALRC should provide its report to the Attorney-General by [date].
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This blog post draws on the author’s written submission to the parliamentary inquiries into the Religious Discrimination Bill.
Luke Beck is an Associate Professor of Constitutional Law at Monash University.
Suggested citation: Luke Beck, ‘How to draft a workable Religious Discrimination Bill’ on AUSPUBLAW (06 April 2022) <https://www.auspublaw.org/blog/2022/04/how-to-draft-a-workable-religious-discrimination-bill>.