Religious discrimination bill so flawed it cannot be supported, Anglicans say

The flaws in the Coalition’s religious discrimination bill are “so serious” it cannot be supported in its current form, the Sydney Anglican diocese has warned.

Bishop Michael Stead has warned the bill would force Anglican youth camps to host Satanist masses at its campsites and has the “perverse effect” of encouraging companies such as Qantas to threaten to withdraw sponsorship to justify restrictions on religious speech in cases like Rugby Australia’s sacking of Israel Folau.

In a separate submission, the Freedom for Faith group has claimed the bill fails a commitment by the prime minister, Scott Morrison, “that the law would not take faith groups backwards in terms of protection of religious freedom”.

Both groups have called for the bill to go further in protecting religious organisations, raising the prospect of internal division in the Coalition over attorney general Christian Porter’s draft bill.

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The Anglican church diocese of Sydney submission warned that although the bill said religious bodies did not discriminate by conduct that could reasonably be regarded as in accordance with their faith, the exemption did not apply to bodies engaging “solely or primarily in commercial activities”.

That meant bodies such as Anglicare Sydney, which runs retirement villages and aged care services, and Anglican Youthworks, which provides Christian outdoor education, would not attract the exemption, Stead warned.

Stead argued the commercial activities test was “highly arbitrary” and there were “no good arguments” for treating specialist religious bodies which collect fees while pursuing a religious purpose differently from those that offer all their services through one body.

The flaw had “very significant implications”, making it unlawful for Anglican Youthworks to recruit only Christians as outdoor educators, to reject an application for the First Church of Satan to hold a black mass at one of its campsites, or for a Christian residential university college to give any preference to Christian students.

Stead noted the Israel Folau clause which bans employers from setting codes of conduct that indirectly discriminate on the grounds of religion and exempts large employers only if they can show they would suffer “unjustifiable financial hardship”, describing the intention as “commendable”.

“However, the current form of this clause may have the perverse effect of encouraging the restriction of religious freedom by third party sponsors (eg Qantas in relation to Rugby Australia) or social media boycotts (eg of Coopers Brewer) to create financial hardship, which would enable conduct that would otherwise be unlawful discrimination,” he said.

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Stead proposed defining unjustifiable financial hardship and making it unlawful to incite religious discrimination by making “threats of financial detriment”.

Freedom for Faith said that much of the bill was “very good including general provisions for protection of people of faith from discrimination in commonwealth law” but also warned of “unintended consequences”.

It warned that exemptions in the bill did not “cover situations where there is merely a preference to employ practising Catholics or practising Christians more generally”.

“Furthermore, even if a Catholic school or other charity did have a policy of only employing Catholic staff, it would only be lawful if this could reasonably be regarded as in accordance with the doctrines, tenets, beliefs and teachings of Catholicism,” it said.

It agreed with the Sydney Anglican submission that there would be a “bizarre and profoundly damaging outcome” if Christian publishers and youth camps were unable to advertise for Christian staff as a result of the bill.

Stead’s submission noted that although the bill exempted statements of religious belief from anti-discrimination law, the protection did not apply to statements that “vilify” others, warning the term is unclear.

“The argument that orthodox statements of religious belief ‘cause harm’ to certain groups is well-rehearsed, and if it is accepted that such statements amount to vilification, then the purposes of [the clause] will have been subverted,” it said.

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Stead also raised the prospect that secular companies could define staff refraining from discussing religion at work as an “inherent requirement” of the job, allowing them to discriminate against religious people in hiring.

He took aim at Porter’s decision to delay the Australian Law Reform Commission inquiry into the related issues of religious institutions’ exemptions to discrimination law, calling on him to expedite the process to ensure they can “reasonably conduct their affairs in a way consistent with their religious ethos”.

Before the 2019 election Morrison promised to prevent religious schools expelling students for being gay but deferred the issue after an impasse with Labor over how to legislate the change.

Human rights and LGBT equality groups have lined up to criticise the bill, particularly provisions which allow medical practitioners to refuse treatment on religious grounds and exempt statements of belief from state and federal anti-discrimination laws.