In the Shadow of the Religious Discrimination Bill
This week, the government will likely put the Religious Discrimination Bill 2021 to the vote in the House of Representatives, and it will likely pass with the support of the Labor opposition. LGBTQIA+ Australians, as well as others who would be disadvantaged should it pass, have lived in the shadow of this bill for almost 5 years. After almost half a decade, it’s worth asking ourselves: How did we get here, and has any of it been worth it?
In 2017, the Turnbull Liberal government reluctantly legislated marriage equality for the people of Australia. Reluctantly might be too gentle a word for it; the government pulled every stop it possibly could to delay, deny, and disqualify same-sex couples the right to marry. When consistent research, external polling, or a general sense of decency weren’t enough to spur the government to action, one factor rose above all others; having to fight the issue at an election. To deny the Labor opposition an electoral platform on a widely popular and supported issue, the government set about creating a process that was as cumbersome as the outcome was inevitable. One postal survey later, the results of previous years of polling had been reified with the official stamp of the government, and two thirds of Australians supported marriage equality.
This left the Liberal government with a dilemma; the very process they had used to shut down the issue had become a tie on their hands, and they were obliged to pass legislation that had been viciously campaigned against from within. It was from this desperation that Prime Minister Malcom Turnbull called for the infamous ‘Ruddock Review’. The review was intended to placate religious groups as well as the hard right within his party, promising to ensure that religious freedom would be protected in Australia. The promise was not enough to stay the knives within the Liberal party, and Turnbull was subsequently replaced by the considerably more conservative Scott Morrison. Of course, such a review faced an insurmountable issue; the catalyst was never any genuine form of discrimination, so much as the inability to impose the will of a religion over the legislative framework of the nation. The review was released in December 2018, concluding that Australia did not possess the supposed religious freedom problems that spurred it, while also recommended federal protections against discrimination be introduced.
On the face of it, this is not an unreasonable recommendation. Federal anti-discrimination frameworks exist across a number of protected categories, while religion had remained more or less the purvue of the states to protect. A bill that followed the same general lines of other anti-discrimination legislation would’ve been relatively innocuous; discrimination on the basis of religion is an issue for some, particularly those from non-majority religious denominations. Had the review been borne of a genuine desire to tackle this issue, the bill described would’ve sufficed; unfortunately, Turnbull’s gambit ruled this out.
When the original draft of the bill was released in August 2019, it was closer to the innocuous version; it provided broad protections, with some deviation into protecting religious statements, and the somewhat contentious ‘Folau Clause’ intended to protect the speech of employees outside of work. Human rights groups were quick to criticise the deviations, while religious lobby groups were quick to critique the bill on not going far enough.
Later that year, a second version of the bill was released in December. This new draft significantly expanded the ability for religious organisations to discriminate in hiring practices; rather than just schools and faith-based organisations, the blanket exclusion was extended to charities, hospitals, and nursing homes. It also provided health practitioners — defined as loosely as possible — to conscientiously object from providing services or procedures against their faith. This objection was not limited to the religious hospitals above, but instead available to any health practitioner. This bill would have significantly limited the ability for LGBTQIA+ people and women to access consistent, safe, and non-judgemental healthcare, and was roundly criticised as such.
In an ironic twist, the existential threat of this bill to many was replaced by an existential threat to most; the bill fell into the background as early 2020 brought about the COVID-19 pandemic, wiping the legislative agenda clean as governments scurried to understand and address the impending threat. It would take until late 2021, when the pandemic had successfully lulled the country into a false sense of security, for the bill to re-emerge in a third iteration.
The third iteration, introduced to parliament by Scott Morrison himself, wound back some of the most egregious aspects of the second draft. The healthcare objections were removed, though in their place was a strengthened protection for “statements of belief”. Religious statements would be protected under the law — and above all other state and federal anti-discrimination legislation — as long as they did not threaten, harass, intimidate, or vilify a person or group. The question of what constitutes a religious belief remains to be clarified; the legislation defines it as a belief that the person genuinely considers to be in accordance with the doctrines, tenets, beliefs, or teachings of that religion. Such a definition creates a broad category of in-actionable hate speech, while the retained ‘Folau clause’ would prevent qualifying bodies or processional associations from setting standards of conduct that would preclude such statements.
As of 2022, LGBTQIA+ Australians have lived in the shadow of this bill for almost 5 years. Half a decade of deliberation on whether or not the legislation of human rights should be treated as quid-pro-quo arrangements by a government beholden to groups who seek to place themselves at the top of the hierarchy has brought us no closer to a clear answer, with some Liberal members of parliament withholding support for their own bill. The opposition has indicated that it will “not block” the legislation in the House of Representatives, a choice of language that demonstrates a full awareness of the damage such a bill can do while abdicating any responsibility for it. Of course, it is in this that we return full circle to the 2019 federal election. The Labor opposition refused to object to the bill then for fear of alienating a portion of voters who held no intention to vote for them anyway, and are refusing to denounce the bill now in the hopes that those very same voters will inexplicably vote for them in 2022.
The support is conditional on amendments to the bill, though such amendments are yet to be seen. Continuing a trend in this particular parliamentary term, ordinary Australians are left in the dark as deals are made behind the scenes; after all, it’s only the inconsequential impact of having to live with the fallout of using human rights as a political football that they’ll have to manage.
As politics lurches further right, it’s telling that small ‘L’ liberals have become indistinguishable from the opposition, and not because those same liberals have ceded any ground. A government without an agenda, up against an opposition too terrified to take a meaningful stand on anything for fear of being pinned down, leaves Australia wanting for genuine leadership. Regardless of who wins the upcoming Federal election, such an approach will leave vulnerable people behind. Is this really who we are?
As it turns out, Yes. It is.