Jekyll and Hyde: the poor man’s Anti-Discrimination Bill

The deliverance of a morsel of humanity to the elderly is certainly cause for celebration; unfortunately, that's as far as it goes. Exemptions have been written into this document to enable religious providers of all other social services to continue to avoid compliance with impunity, and to do so even when they are in receipt of government funding.

Consider the following scenarios. A qualified schoolteacher can be denied employment or removed from existing employment simply because he is gay, despite the fact that neither religion nor sexuality has anything to do with the subject he teaches. A student enrolled in a religious school can be expelled for the same reason. An employment service, run by a religious organisation, can discriminate by refusing to itself employ individuals from certain groups. Catholic-run hospitals in Australia operate according to a code of 'ethics' approved by the Vatican. The results? In such hospitals, public or otherwise, emergency contraception cannot be supplied to victims of sexual assault, nor will the patient be referred to the Rape Crisis Centre where contraception can be administered. As medical ethicist Leslie Cannold has pointed out, a woman in a public hospital run by the Catholic healthcare system can be refused both an abortion and a referral to another provider, even when her health is at risk. This is not a hypothetical situation; in 2010 staffers at a Catholic-run American hospital were sacked for making the decision to provide an abortion to save a woman's life. Savita Halappanavar was not so lucky. In October 2012 the young Hindu dentist died of septicaemia at an Irish hospital which allegedly refused to perform a termination that could have saved her.

Despite these and many more real-world examples, our government intends to enshrine exemptions from the law into law, specifically for religious bodies and religious educational institutions. Religious organisations can continue to discriminate on the grounds of marital or relationship status, sexual orientation, gender identity, any other religion, pregnancy and, incredibly, 'potential pregnancy'. The fact that here and now in Australia, in the 21st century, our government has drafted up an anti-discrimination bill which neatly spells out exactly how religious organisations can discriminate, in most cases at the expense of the taxpayer, is almost Pythonesque.

The impact of these escape clauses is profound, especially when considered in the context of decades of government funding for church schools to the detriment of the public school system, the privatisation of major government services, and the preference for religious organisations as government-funded service providers. Meanwhile, Catholic hospitals, both public and private, account for 10 per cent of all hospital beds in Australia, including in rural areas where no other choice is available. It might be possible to excuse the situation with healthcare on historic grounds, were it not for the enthusiasm of the WA Health Department to embrace the concept of Catholic-run public hospitals. The new Midlands campus will open in 2015 under the operation of St John of God Health Care, despite their refusal to supply certain essential procedures for women.

We have established that the draft legislation deals religious bodies a magnanimous hand. Religious individuals are less fortunate: religious institutions are free to deny employment to individuals of any other faith, when every other employer must, quite rightly, treat religious candidates with fairness. Even more alarming, the draft fails to establish any protection at all for individuals of no faith. The document states that each 'protected attribute is taken to include . . . in relation to a particular person-characteristics that the person has because he or she has the attribute.' Since non-religious people lack that attribute, it is difficult to see how the document's wording will afford such protection. This is a departure from the Fair Work Act 2009 that describes behaviour that discriminates 'because of, or for reasons including' the protected attribute.

With over 22 per cent of the population reporting as having 'no religion' in the 2011 Census, wording that explicitly protects all Australians would have been far more appropriate.

Our government is addicted to the idea that 'religious freedom' is less about freedom of worship, and more to do with granting organisations licence to curtail the fundamental rights of others. Despite our increasingly secular society, churches still wield such power that they can induce the state to adopt this position and its warped logic. The draft legislation for anti-discrimination, so-called, is almost surreal in its juxtaposition of the protections of inherent human conditions with continued pandering to mediaeval institutions that seek to undermine those rights, while retaining their own. Over time, even the ability to question those institutions could be eroded, given the accelerating push for the restriction of free speech, the very driver of progressive thinking that translates into the fight for human rights.

The draft for the Human Rights and Anti-Discrimination Bill 2012 is evidence of yet another missed opportunity. Clearly, this is one very confused piece of legislation.