A religious discrimination bill — what could happen next?

By Jackson Graham

Friday November 26, 2021

Preach, brother, preach!
Preach, brother, preach! Scott Morrison yesterday in parliament. (AAP Image/Lukas Coch)

As the federal government introduces its religious discrimination law into parliament, a constitutional law expert says parts of it raise no controversy while others have far-reaching consequences. 

Prime minister Scott Morrison says the laws will “protect citizens in a tolerant, multicultural, liberal democracy” and the bill “balances freedom with responsibilities”. 

“Many people from various religious traditions are concerned about the lack of religious protection against the prevalence of ‘cancel culture’ in Australian life. It’s true, it’s there, it’s real,” Morrison told parliament.

“The citizens of liberal democracies should never be fearful about what they believe.”

Luke Beck, a constitutional law professor at Monash University, told The Mandarin that standard parts of the bill protecting people from religious discrimination were uncontroversial given there were already laws against discrimination for race, sex, marital status, sexuality, age and ability. 

“That’s fine; in fact that’s good,” Beck says. 

Which parts of the bill are controversial? 

The proposal goes beyond what Beck and other human rights and legal advocates believe a standard anti-discrimination law should be because key parts take precedence over other anti-discrimination laws. 

This includes a “statements of belief” provision — allowing someone to make a sincerely held religiously motivated statement that breaches other anti-discrimination laws such as the Sex Discrimination Act. 

“A boss would be able to say —  provided it was their sincere religious belief — something like; ‘women should not be in positions of leadership at work,’ providing it wasn’t mounting to be malicious or harassment,” Beck says. 

“The religious belief would take precedence, that’s the whole point of the ‘state of beliefs’ provision: to override the [other anti-discrimination laws].”

Another key controversial part of the bill is provisions for “preferencing”, allowing religious bodies, including schools, nursing homes and hospitals, to engage in religious discrimination in hiring and firing of staff. 

“At the moment, some states’ religious schools are only able to discriminate on the basis of religion when that is an inherent requirement of the position, such as a religious studies teacher,” Beck says. 

“But this bill says they are able to do that for all positions .. provided the religious body has a publicly available statement saying this is the ethos of the organisation.” 

What could the bill mean for the APS? 

Beck says the bill would not necessarily impact the Australian Public Service’s code of conduct or values, with federal public servants already having rules for hiring and firing. 

The bill includes a new religious discrimination commissioner, who would work among existing counterparts at the Human Rights Commission. 

Beck categorises this proposal as a neutral part of the bill. “On the one hand you might want to argue it’s unnecessary,” he says. “But it’s not necessarily harmful either.” 

He believes arguments from critics of the bill calling for an LGBTIQ+ commissioner are equally in this category. 

What could happen next? 

The bill will be debated and voted on in the House of Representatives but Morrison has indicated the bill will be referred to a senate inquiry. 

Beck said this “absolutely” needed to occur given the departure of standard anti-discrimination law practice, and given crossbenchers would likely play a role in any final upper house vote. 

“Given some of the crossbench senators have said they are not keen on this at all, it’s iffy whether this will even get to a vote, let alone pass before the next election,” Beck said. 

Labor is yet to reveal its position on the legislation, but Penny Wong has said it should not reduce protections for other Australians

The Victorian government this week did not rule out the possibility of a High Court challenge if the federal legislation overrode state anti-discrimination laws. 

“The federal government might not have the constitutional power to enact some of the parts of the bill that are controversial,” Beck said. 


The Trump administration’s final push to make it easier for employers to engage in religious discrimination

About the author
1 Comment
Newest Most Voted
Inline Feedbacks
View all comments
6 months ago

Another Morrison fib. Far from “cancelled” or oppressed, organised religion enjoys a gold-plated range of concessions and freebies supported by both sides of politics.

We heathens make “statements of belief” too. Fortunately, we have a wider range of topics than just women, LGBTQI, marriage, pregnancy, and dying.

The Mandarin Premium

Insights & analysis that matter to you

Subscribe for only $5 a week


Get Premium Today