The Religious Discrimination Bill is back, but ScoMo can’t just replicate what came before

ScoMo caused quite a stir by reintroducing the long troubled Religious Discrimination Bill back into Parliament. The bill, which has been watered down compared to previous iterations, looks to maintain the Liberal government’s pledge of protecting religious beliefs from discrimination by filling a perceived gap in federal anti-discrimination laws.

The bill is predictably ordinary. It effectively replicates other Commonwealth anti-discrimination legislation in relation to sex, race, age, and disability. But it is through this cut and paste approach that issues start to develop.  

Religious discrimination is unique. Current anti-discrimination legislation works to protect individuals from less favourable treatment based on who they are. Religious discrimination protections, however, attempt to protect individuals’ beliefs.  Those beliefs can and do clash with the protected attributes caught by our anti-discrimination laws such as gender and sexual preference, further complicating the matter. 

It is this unique character of religious discrimination that gives rise to difficult and complex issues, many of which under the current version of the bill will be left for employers and businesses to manage.

For example, indirect discrimination, which (like all anti-discrimination legislation) is prohibited under the proposed bill, concerns employers adopting policies or practices that may disadvantage an employee of a particular faith. An example would be an employer that requires employees to work late on a Friday, which may disadvantage workers of Jewish faith due to the Sabbath.

While this is a simple example, it becomes a dizzying exercise to work through the potential reach and implications of indirect discrimination protections across religious beliefs, which traverse concepts of ethics, morality, gender, and sexuality.

Religious beliefs, including the right to not hold a religious belief, do warrant some protection. But a more nuanced approach is needed.   

The bill also looks to protect “positive” discrimination by religious organisations where religious belief forms part of the inherent requirement of the job. For example, a religious aged-care provider will likely have grounds to only hire caregivers of a particular faith but may run into problems extending the same hiring practices to its cleaning staff.

Religious schools have much broader freedom to engage in “positive” discrimination. A school can engage in religious discrimination across its employment practices, irrespective of the inherent requirements of the position, provided the discriminatory conduct is in accordance with a written and publicly available policy that outlines the school’s religious beliefs and how they will be enforced.

Minority groups are, with good reason, concerned that the “positive” discrimination exemptions will lead to unreasonable and harmful discriminatory conduct, including the exclusion of various groups from accessing services, education, or employment opportunities.  

There is in inherent difficulty in balancing the rights and interests of various groups, particularly when seeking to accommodate belief systems. By simply replicating what came before, this bill does not strike that balance.

Any religious discrimination protection must adopt an approach that understands its uniqueness, including its relationship with other discrimination protections and complex challenges businesses and the community will face.