What on earth is going on with religious discrimination in Australia?

Religious discrimination is back on the legislative menu in 2024. But do our elected representatives really understand what they're messing with here?

Anthony Albanese has threatened to shelve his government’s promised religious discrimination bill, Peter Dutton is accusing him of breaking another election commitment, and Dennis Shanahan is thundering in The Australian that this signals the outbreak of another culture war.

Exciting stuff, although you’d be excused for not having a clue what they’re all going on about. Religious freedom, discrimination, vilification, hate speech, anti-doxxing, all the buzz words are in the mix. What actually is happening?

First, a little background. Our story begins with the advent of marriage equality in 2017. Australia’s conservative churches were less than pleased. Their much-touted fears for Christian cake-bakers morphed into a much broader claim to victimhood: now, institutions and people of faith were at risk of being discriminated against by the ascendant forces of woke liberalism.

Thus the call began for legal protection against discrimination on the basis of religious faith, just like the existing protected attributes including gender, race, age and disability.

Largely, the occupants of Parliament have gone with the flow on that one, with almost no attention paid to how we’ve survived for so long without such a law and no actual evidence that religious discrimination is a thing that happens to any material extent.

It’s important to distinguish between vilification (hate speech and abuse) and discrimination. There has been a steady rise in racist abuse as the Overton Window of racism has widened in recent years, including antisemitism and Islamophobia. Whether people of those faiths are being subjected to discriminatory treatment at work or as customers — because of their religious faith, not their “race” (which is already illegal) — is a completely different question.

Unsurprisingly, Scott Morrison was a big fan of this sort of legislation, and tried to make it his signature reform as prime minister. He failed, presenting but then pulling his religious discrimination bill in 2022 without putting it to a vote, after five of his own party colleagues threatened to cross the floor and vote against it.

The issue was what he’d promised as a quid pro quo: amendments to the existing blanket exemptions given to religious organisations (including schools) from all of the other anti-discrimination laws. Specifically, the exemption that allows religious schools to sack teachers or expel students because of their sexual identity. For Morrison, extending this protection to trans kids was a bridge too far.

There were other problems, in particular a proposed new exemption for “statements of belief” that would allow people to make discriminatory statements on the basis of faith, even if such statements were directly hurtful (for example, telling an LGBTQIA+ person to their face that they’re an unnatural abomination with a one-way ticket to eternal purgatory).

Albanese picked up the mess, promising to bring back a religious discrimination bill, along with properly balanced protections for marginalised groups to find the proper dividing line between faith and harm.

He’s come a cropper too, predictably enough. The politics of it are contemptible, because both sides are being disingenuous. Nobody’s seen the bill yet, so Dutton has cause to say that he can’t take up Albanese’s demand for bipartisan support just yet. However, that Dutton will end up opposing whatever the government presents is not in doubt, regardless of its content.

For its part, the government is unnecessarily confusing matters by chucking its two new Gaza-driven obsessions — hate speech and anti-doxxing laws — into the same conversation, claiming it’s all one big package of reforms designed to make us safer. It’s not. These are distinct issues, appropriately considered with draft bill in hand and a cautious eye to unintended consequences.

At the bottom of this mess is an irreconcilable difference: between the necessary implication of religious “freedom”, being the freedom to discriminate against others when that’s what one’s faith dictates; and the right of everyone to live an equal existence free from discrimination on the basis of attributes they did not invent.

The old legal compromise was an uncomfortable one; the churches were allowed to discriminate, principally against LGBTQIA+ people and women, but against other groups as well, on the basis of faith. Their faith was not, however, elevated to the status of a protected human right.

One of the key reasons in principle for this was the problem of defining faith, given that it is in truth infinitely variable and necessarily includes its own absence.

That’s all been forgotten in the rush to do what the drafters of our constitution would have resisted: make faith a right. They did think about it; the constitution includes an explicit prohibition on laws that impinge freedom of religion, the point being that religious belief is a personal matter, such that its exercise should not be restrained but the state should stay away from giving legal protection to its proselytisation.

Legislating a prohibition on discrimination against people because of their religion is straightforward, but there is no case for it. 

Removing the exemptions religious organisations enjoy to discriminate against others is anything but simple, because nobody agrees on where the line should be drawn. That is amply demonstrated by the willingness of some church leaders to die on the hill of being allowed to continue demonising the most oppressed minority in the country: trans kids.

If religious faith/belief was only that — a personal code held to oneself — there’d be no problem. Its outward expression, by words or deed, would be unlawful if that causes discriminatory harm to others. However, to pretend that would deny the reality that, for most religious people, expression of their faith is inherent to its holding. For some, it’s essential.

So it’s a minefield. I suspect our elected representatives have given little serious thought to what they’re messing with here. Until we see the draft bills, we can’t guess whether their latest effort will make things better or even worse.

Should we be legislating against religious discrimination? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.