Submission on Second Draft of Religious Discrimination Bill

As noted previously, the Commonwealth Government released a Second Exposure Draft of their proposed Religious Discrimination Bill in December 2019, inviting public comment by Friday 31st January 2020. I have now provided my submission on this draft, which is linked here for those who would like to consult it:

In short, I think this legisation is an important step in improving protection of religious freedom in Australia, and the second draft is an improvement on the first. But I recommend some clarification or change of approach in the following areas:

  • Defining Religious Belief – I recommend that the way that the courts should determine whether a claim to religious belief is justified should focus on sincerity rather than courts examining “reasonableness” ; I also think that the bar of “unlawfulness” determining what beliefs cannot be protected at all needs to be raised to mainly cover serious criminal offences;
  • Who is protected by the Bill? – I suggest that the Bill ought to protect religious groups as well as individuals; in this context I think that the limits on protection based on the concept of “commercial activity” need to be removed, though I agree that the kind of organisations protected need to be limited in other ways;
  • Who is bound by the Bill? – I agree that, as at present, both individuals and groups should be bound not to religiously discriminate; but I think the exemption given to government bodies from the provisions relating to religious free speech outside working hours should be rolled back;
  • The limits of protection – I argue that cases where religious freedom can be over-ridden should be limited to those where it is “necessary” in protection of important fundamental rights, as spelled out in the ICCPR art 18(3);
  • Protecting religious free speech – I argue that the good initiative protecting statements of religious belief in clause 42 should also be extended to “vilification” claims, so long as they do not contravene the limits set out in the clause itself and defined by the Commonwealth;
  • Conscientious objection by health practitioners  – I argue that the complicated provisions protecting conscientious objection to certain procedures by health practitioners need to be improved;
  • The Religious Freedom Commissioner – I support this new position but argue that the person concerned should be clearly shown to understand the issues facing religious citizens; 
  • A note on charities – I support the current provision ensuring that advocacy of traditional views on the nature of marriage not disqualify a body from being recognised as a charity, and suggest a further change to make this even clearer.

Opposing same-sex marriage is not "vilification"

The recent NSW decision of Passas v Comensoli [2019] NSWCATAP 298 (18 December 2019) provides an example of someone who has been penalised for “homosexual vilification” as a result of comments concerning same-sex marriage. However, it does provide clarification that merely to express disagreement with the introduction of same sex marriage does not amount to such vilification under NSW law.

Continue reading