By Mark Fowler
As published in The Weekend Australian Inquirer, August 31st 2019.


The long-awaited commonwealth religious discrimination bill has been released for public consultation. It offers significant protections to religious speech and practice. The legislation has the potential to offer a resounding statement that religious expression is an important part of Australia’s shared public life, recognising that all faiths and none are equal in the eyes of the law.

The act will define the boundaries in which the national conversation between traditional religious beliefs and changing social norms on sexuality and gender will unfold. As such, it will form a key foundation of the new compact being settled in our society. Assigned a task where many mere mortals would fear to tread, Attorney-General Christian Porter has offered a complex piece of legislation, commensurate to the manifold novel circumstances arising in public spaces and workplaces all over our country. Expectation has been running high, primarily because this legislation is the centrepiece recommendation of the Expert Panel on Religious Freedom, the body given the invidious task during the same-sex marriage debate of assessing concerns that religious freedom is under attack.

What are the key strengths of the government proposal? The legislation addresses the missing piece in Australia’s equality legislation, a lacuna in our anti-discrimination protections that recently garnered the UN Human Rights Committee’s reproach.

Exercising commonwealth power, the legislation invalidates the Tasmanian law under which the anti-discrimination commissioner accepted as prima facie valid a complaint against Archbishop of Hobart Julian Porteous for circulating an “offensive” pamphlet among parishes in which he outlined the traditional Catholic view of marriage.

In a significant departure from other discrimination law, the government has ditched the language of religious “exemptions” and instead proposed that a religious body acting in accordance with its doctrine is not discriminating. That is an important recognition, giving effect to a recom­mendation of the expert panel and addressing a structural weakness in Australian law. The “exemption” framework was always inconsistent with international law and the new bill sets the basis for replicating this structure elsewhere in federal law. The consideration of this now falls to the Australian Law Reform Commission.

In another significant move, the bill clearly recognises faith-based charities as religious bodies, displacing a long-running concern that arose when a Queensland tribunal ruled in 2008 that the St Vincent de Paul Society could not lawfully require its leadership to be Catholic.

These are solid foundations. However, there are many provisions in the bill that require serious further thought. It’s in the consultation process that the Canberra bubble of political staff and bureaucrats apprehend the lived experience of Australians and (on a best-case scenario) calibrate legislation accordingly.

It is also the opportunity for religious leaders to look beyond the princely view of their George and Albert street principalities and walk in the shoes of those Australians sitting in their pews on a Sunday morning, Australians striving in the remainder of their week to live their sacred convictions with authenticity in an increasingly hostile world.

The core notion around which the bill’s protections gravitate is the concept of “lawful religious activity”. However, concomitant to this is that whatever is “unlawful” under commonwealth, state or territory law is not protected. This hands to any state government, or local government, the ability to extinguish the protections of the act. For example, a rabidly secular council (not a hypothetical) could ban the use of council facilities for a body that holds a traditional view of marriage.

The government must clarify that a religious believer would find protection in the face of such laws.

The Tasmanian, ACT, Northern Territory and West Australian anti-discrimination acts do not impose this broad limitation. They all rely on the longstanding recognition that discrimination law is subject to limitations prescribed by criminal law.

Doubtless a boundary line must be observed. Female genital mutilation, underage marriage, ritual sacrifice and “religious” incitement to violence have no place in a free society.

However, considered further thought needs to be given to where the bill draws this line.

A similar issue arises from the qualifications that must be satisfied to gain protection for religious speech. Speech must be in “good faith”, “reasonably … in accordance with religious” doctrines, not “malicious … harass, vilify or incite hatred or violence against another person” or constitute incitement to a serious crime.

First, the precise content of the notion of “vilification” is hotly contested. What is a statement of traditional Christian doctrine to one can be a hate crime amounting to vilification to another. Further definition is required to provide certainty.

Second, the requirement that speech must be “reasonably … in accordance with” a relevant religious belief requires judges to determine questions of religious doctrine. As the English High Court has wisely said, we “would never be prepared to rule on questions of” doctrine and “must inevitably be wary of entering so self-evidently sensitive an area, straying across the well-recognised divide between church and state”. Rather than weighing doctrine, the proper question to be put is: is this an expression that is legitimately limited because of a countervailing right or interest?

Further, the act grants a standing right to a secular employer to fire an employee where they are unable to fulfil an “inherent requirement” of their role due to their religious belief. Apart from the Fair Work Act and the Northern Territory Anti-Discrimination Act, no other anti-discrimination law in Australia gives such a broad “inherent requirement” remit to secular employers. This clearly opens the prospect that employers antagonistic to religious belief will discriminate against employees on the basis of their religious belief.

The act deploys the same test to allow professional accreditation bodies to strip professionals, including doctors and psychiatrists, of their qualifications on the basis of their religious beliefs. Witness the University of Sheffield’s recent attempt to expel a Christian social work student and the Canadian Supreme Court’s approval last year of a state law society’s refusal to admit to practice graduates from a Christian university. In drafting these protections we cannot be oblivious to this international experience.

While the bill recognises faith-based charities as religious bodies, such bodies will be excluded where they engage “primarily in commercial activities”. Alongside the worthy efforts of their volunteers, it is a commercial reality that many charities charge nominal fees to keep the doors open. The Australian Competition & Consumer Commission regards these practices as “commercial activities”. Such considerations are an arbitrary basis on which to remove the freedom of believers to congregate together and act on the dictates of their faith that inspire benevolent endeavour.

Finally, the bill is silent on the proper balance, where the one set of circumstances gives rise to a claim under the new religious protections and a counterclaim under the Sex Discrimination Act. It appears that this difficult question has been left to the Australian Law Reform Commission. However, in this context, we cannot ignore the near-ubiquitous international experience that standard religious discrimination law does not protect a person compelled to engage in a form of conduct contrary to their religious conviction. This body of law will influence how Australian judges apply the new act. How the balance is struck on this point will be a core linchpin of the new societal compact enshrined by this legislation.

Mark Fowler is a practising lawyer and an adjunct associate professor at the University of Notre Dame school of law, Sydney.