Submission on the Exposure Drafts for Religious Freedom and Associated Legislation

2 October 2019

The Hon Christian Porter MP
Attorney-General of Australia
Parliament House
Canberra ACT 2600

Via email [email protected]

Dear Attorney General,

Re: Exposure Drafts on Religious Freedom and Associated Legislation

As a Christian and a gay man, I wish to record my concerns around the proposed bills to enact anti-religious discrimination laws.

In the first instance, I do wish to record that I support the principle of religious discrimination laws, those that are intended to protect individuals who hold a religious belief.

However, while there are elements of a traditional non-discrimination bill in the proposed Acts, the bills go considerably further and consequently create a real and present danger not only to the LGBTIQ community but also to women, single parents and potentially people with disabilities.

It is important for the Attorney General to remember that religion has been used to:

• Justify slavery;
• Discriminate against women;
• Support discrimination against Aboriginal and Torres Strait Islander people; and
• Obtain legislation to positively discriminate against LGBTIQ people, as examples.

In preparing to make this submission, I have had the opportunity to read some early submissions that have been made public, and I support the principles outlined in those submissions, particularly:

• Australian Human Right Commission;
• Associate Luke Beck, Associate Professor, Monash University, Faculty of Law;
• Equal Voices; and
• Uniting Network.

Conceptually, the Acts intention are to provide a shield rather than a sword, but due to the unusual nature of the drafting of the bills, compared with more traditional discrimination law, there are significant and dangerous elements within them, very much more sword than a shield.

Rather than necessarily repeating what these organisations have said in their submissions, I will summarise my thoughts:

1. The proposed legislation is complicated with significant interaction with many other pieces of legislation, both Federally and State/Territories.  It appears that outside of the religious organisations, there was minimal consultation with other communities, including the LGBTIQ communities around the construct and drafting principles of these bills.  Approximately 5 weeks for people and organisations to digest and respond to the consultation is not reasonable.
   
   It is my opinion that there needs to be a real, significant and constructive consultation with all communities, particularly those that will be negatively impacted by this legislation, so that balance and proportionality around competing rights can be managed.
   
   
2. Unfortunately, that the Government is rushing the development and plans to implement what is effectively a “religious privileges” bill.  However it has not used this as an opportunity to either develop a universal bill of rights for all Australians or review all discrimination bills, and add a religious discrimination bill that are all consistent with their model of operation.
   
   Additionally, it seems illogical to present these bills, when the Government has requested the Australian Law Reform Commission to undertake a review and provide advice in relation to specific areas of religious privilege and discrimination rights.  These should all be considered concurrently to ensure an appropriate balance is reached.
   
   
3. The proposed amendment to the Marriage Act through the Human Rights Legislation Amendment (Freedom of Religious Bill) section is not required and should be removed.
   
   
4. The objectives of the Act need to be constrained to ensure that people who hold religious beliefs do not have a legislative benefit over those that do not hold any religious beliefs.  Further, the objectives should be modified to ensure that religious freedoms granted to an organization or person, do not enable those organisations or people to have a positive right to discriminate against other people.
   
   
5. The clauses on indirect discrimination are problematic and could lead to unintended negative consequences towards whole classes of Australian citizens, including but not limited to unmarried mothers, disabled people (where a religious group’s faith is that a disability is caused from sin), LGBTIQ people etc.  It is my opinion that clauses 8(3) and 8(4) should be deleted.  If the Government is not willing to delete those clauses, then a broader range of terminologies should be included as protections against religious abuse, using times in other discrimination laws such as that would, or is likely to, offend, insult, humiliate, harass, vilify or incite hatred or violence against another person or group of persons”
   
   As a business owner, there is a balance between people’s rights and that of the organisation’s values, it appears the draft Act dramatically sways that balance inappropriately.  Accordingly, Clause 31(6) should be deleted due to the significant potential for unintended consequences.
   
   
6. The health of LGBTIQ people is something that the Government has recognised, with the welcome commitment for additional funding for LGBTIQ mental health services.   It is worthwhile noting that the mental health of the community is currently at a worse position than through the Marriage Equality campaign, and I expect that this current legislative framework and the associated process is not assisting the community.
   
   The LGBTIQ community do have issues with many health providers already, who are either uninformed about health issues for the LGBTIQ community, or are hostile towards the community potentially breaching their health profession’s practice codes.
   
   The clauses concerning Health Professionals are dangerous and will lead to further access issues to effective health services by LGBTIQ people.
   
   Additionally, other people such as women, unmarried mothers, etc. could find themselves being rejected for services by health professionals based on this legislation.
   
   Concerningly, there is a risk, that this legislation could override the health professional bodies code of good health practice, negatively impacting the health regulatory framework in Australia.
   
   Accordingly, I recommend that Clauses 8(5) and (6) be removed from the bill.  If the government is unwilling to remove those, then I believe it is essential that there be additional requirements in the Act for the practitioners to notify patients when making bookings (as well as on any advertising, web pages etc. promoting their services) around any limitations that have in their practice due for religious requirements.  That practitioners must provide a reasonable referral to another practitioner (within reasonable distance for that particular patient and their circumstances).  They must provide all services (including those they object to on religious grounds) if necessary, to preserve the life of the person or to prevent any significant harm.  The related clause 31(7) should also be deleted.
   
   
7. Clause 10 should be removed as discrimination laws relate to a human being and not to a body corporate, and this is a unique and dangerous addition, outside the tradition of discrimination legislation.  For LGBTIQ people, this raises real and significant risks in relation to religious processes such as gay conversion therapy (in its many forms) that have real and damaging impacts on LGBTIQ people, and the lower end being long term significant mental health issues through to suicide.
   
   
8. Clause 18 created inconsistency in the way discrimination Acts operate in Australia and will permit ongoing discrimination of LGBTIQ students as an example.  Given the Prime Minister has also made a commitment to end discrimination against LGBTIQ students in non-government schools, this clause should be deleted.
   
   
9. Clause 27 is unclear of its intent and outcomes so requires considerably more consultation and review.
   
   
10. There is no justification for the Federal Government to override State and Territory Laws in the area of religious discrimination and as a principle clause 41 should be removed.  Importantly the arguments presented on why this clause is required, often referred to as the Porteous Clause is based on false and misleading information.  In any count, the construction of this clause means that States and Territories can readily bring this clause to nil-effect.
    
    
11. The Ruddock Inquiry did not identify any real religious discrimination in Australia, which make moot the underlying reason and urgency of this legislation.  When other areas of the community are suffering through lack of resources, it seems rather wasteful to create a new role in the Australian Human Rights Commission to support and area of discrimination where there is little to none.
    
    Therefore clauses 45 – 53 should be deleted.  I note however that the Prime Minister did make this as an election promise, so if the Government wishes to proceed with this role, it should also create an LGBTIQ+ Commissioner, which is a community that has been the recipient of long term and significant discrimination in Australia (and globally).  This would allow the AHRC to have informed Commissioners representing the competing rights of individuals.  I would so also wish to clearly state that the rights of a person due to their existence (ie being a woman, being disabled, being LGBTIQ), should always be superior to that of a belief or choice.
    
    
12. Australia has a history of separation of various arms of running the country fairly, and whilst there are times when a Minister ought to have some discretions, there are no demonstrated reasons why the Minister (Attorney General) should have the right to vary or revoke exemptions under this Act.  Accordingly, Clause 39 should be amended to remove that right.

In summary, the proposed legislation does not meet the objectives that you, as Attorney General stated, of it being a shield and not a sword.  It will expand on the already extraordinary legislative religious privilege that religious organisations have in Australia.  This drafting has moved from traditional discrimination legislation to a sword that will embolden religious communities against LGBTIQ people as has been their target for many years, but also women, unmarried people, people in de facto relationships, people of other faiths, cultures, ethnicities and disabilities.  In summary, this is hazardous legislation and will, without a doubt, reduce social cohesion within Australian.

Yours sincerely,