The COVID-19 pandemic has indefinitely delayed the introduction of the Commonwealth Religious Discrimination Bill, which would have provided protection against religious discrimination in the workplace. With Federal reform on pause, One Nation MP Mark Latham has introduced a bill to the NSW Parliament, which will protect people of faith (and no faith) from discrimination. This Bill has been referred to a Joint Select Parliamentary Committee, with public submissions invited until August 21 (see below).
Mr Latham, who does not identify with any particular faith, has turned into an unlikely defender of religious freedom. Perhaps also surprisingly, it is a One Nation Bill championing the right of employees to wear religious dress and religious symbols at work (subject to reasonable limitations related to workplace requirements).
The Bill is welcome, because reform is long overdue. More than 20 years ago, the NSW Law Reform Commission recommended the inclusion of religion as a protected attribute in anti-discrimination legislation. As the Ruddock Religious Freedom Review noted in 2018, NSW is now one of only two states that does not protect employees from discrimination on the basis of religious belief. The Ruddock Review recommended NSW amend its laws to enhance the protection of the right to freedom of religion in Australia. The Latham Bill addresses this.
Why is protection necessary?
A report published by the Human Rights Law Alliance details 36 recent Australian cases of religious discrimination, including people who have lost jobs or qualifications because of their religious belief. Here are two examples from the report.
Madeline* is a Christian who was an entertainer for a children’s party business. During the lead-up to the 2017 same-sex marriage postal vote, Madeline posted on Facebook, “It’s ok to vote no”. Her employer sacked her in response to the post, alleging that she was homophobic and hurtful. The employer also publicised her dismissal on social media. During this time, Madeline suffered significant anxiety and stress. An inquiry by the Fair Work Ombudsman led nowhere and Madeline had no real recourse against her employer.
Marcus* is a support worker who helps troubled youth in the community. He is also a Christian and holds traditional views on sexuality and gender. As part of his role, Marcus was asked to sit a psychological suitability assessment, which he was deemed to have failed due to his traditional views on sexuality and gender. Marcus was fired from his position and suspended from working with youth at any residential facility for 12 months. Marcus now has a record lodged with the regulatory authority that will make it difficult for him to find employment in his field of work.
The Latham Bill seeks to provide real protections for people in these situations.
Clause 22N(4) of the Bill ensures an employer cannot take adverse action against an employee for a religious belief expressed outside of work – for example, on social media – provided it does not involve a direct criticism of the employer or cause them direct and material financial detriment. Latham’s version of what has become known as the “Israel Folau clause” is a significant improvement on the counterpart proposed in the Federal Religious Discrimination Bill because it applies to all employers, not just large corporations. This clause would provide a remedy for someone in Madeline’s situation.
Clause 22S of the Bill prevents a body that confers authorisation or qualifications for a profession to discriminate against a person on the ground of religious beliefs or religious activities. This clause would arguably help someone in Marcus’ situation.
The Latham Bill seeks to respond to current deficits in NSW anti-discrimination legislation. It extends the legislation’s framework by providing for all human rights to be treated equally, and follows recognised principles that any restrictions on human rights need to meet standards such as legality, evidence-based necessity and proportionality. The Bill balances the need for protection against religious discrimination with the need for “religious ethos organisations” to be able to operate in line with their religion.
The Sydney Diocese will be making a full submission to the Joint Select Committee with a detailed analysis of the Latham Bill. The committee is inviting individuals to submit comments about the Bill via an online questionnaire at https://www.surveymonkey.com/r/F8KFWXB. This closes on August 21. I encourage you to complete this short survey to indicate your support for these protections against religious discrimination.
* Identity anonymised
The Rt Rev Dr Michael Stead is the Bishop of South Sydney and chairman of the Diocese’s Religious Freedom Reference Group.
