Most submissions in response to the consultation draft of the bill agree that discrimination on the basis of religious belief—or its absence—should be prohibited. In this respect, the bill simply gives effect to article 18 of the United Nations Declaration on Human Rights, that everyone should have a right “to manifest … religion or belief in teaching, practice, worship and observance.” Moreover, in Australia, the national Constitution was written in the 1890s with a view to preventing religious interference in the making of laws. While Parliament still opens each day with the Lord’s Prayer, there arguably is a need for legislative protections against religious discrimination.
Several submissions, however, indicate significant opposition to the bill as it stands because its religious protections would facilitate other forms of discrimination. This includes, for the first time in modern Australia, the introduction of religious exemptions in discrimination legislation covering race and disability, paralleling those in sex discrimination legislation. Furthermore, the bill does not go far enough for some religious groups, who argue it would open them up to what the Catholic Church has described as “lawfare” in relation to employment practices at faith-based schools or agencies. The Sydney Anglican submission, for its part, dramatically argues that, as it is presently drafted, the bill would force the church to make its campsites available for hire for satanic black masses.
All the same, the debate surrounding the bill has largely overlooked two aspects of religious liberty. The first is religious harassment. This is a concept found in other discrimination laws, such as measures to define and prosecute sexual harassment. What will happen when conflicting religious beliefs and behaviors come into contact, including not only religious speech but religious dress, sounds, or rituals? How can the rights of people of no religion be protected? What are the limits of accommodation and respect?
The second regards the nature of power. We can glimpse this point in a unique provision of the bill: companies with a turnover greater than $50,000,000 would be prohibited from preventing its employees from expressing religious views that discriminate against others unless it can prove that such expression would lead to serious financial harm for the company. Discrimination which may lead to the harm of others is acceptable, in other words, unless it is going to cost a business a great deal of money. In modern Australia, money equals power; the widow and her mite would appear to have no protections whatsoever.
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