The Religious Discrimination Bill and legal practitioners

The second draft of the Religious Discrimination Bill continues to generate much debate. I am presenting a paper to the Newcastle Lawyers’ Christian Fellowship which gives an overview of the Bill, responds briefly to some of the recent criticisms, and explores some of the implications of the Bill for legal practitioners. The paper can be downloaded here:

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.

Churches, Same-sex ministries and the law

I am delivering a seminar paper on the topic “Churches, Same-sex ministries and the law: discrimination and religious freedom” on August 20. For those who are interested, there is a copy of the paper here:

Dominic Steele, the organiser for the day, has kindly made this video of the presentation available as well:

Public servant sacked for social media comments

The High Court of Australia today, in Comcare v Banerji [2019] HCA 23 (7 August 2019), upheld as “reasonable”, and not unconstitutional, the decision of the Department of Immigration and Citizenship to dismiss an employee who had made anonymous political comments about migration matters and government policies, contrary to various codes of conduct. The case provides interesting insights into the operation of the implied constitutional freedom of political communication. Many will see similarities with the dismissal of footballer Israel Folau for comments he shared about the Bible’s view of morality, but as we will see, while somewhat factually similar, the cases raise quite different issues.

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Further reflections on the Israel Folau affair

In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.

It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.

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