Religious Discrimination Bill divides

Christian Porter's Religious Discrimination bill tries to keep everybody happy but in the process, he has angered many, frustrated a few and left the rest unimpressed.

There will be many groups opposed to this bill, particularly LGBTI groups, but also many freethought groups -- atheists, skeptics, agnostics, humanists, rationalists, secularists.

If the bill simply added 'religion' to the set of anti-discrimination grounds, that would be no bad thing. After all, the Australian government is obliged to operationalise international agreements such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), both of which make discrimination on the ground of religion unlawful.

However, the bill goes much further than simply adding religion as an anti-discrimination ground. It adds clauses that can be nothing but a sop to high-profile Christian leaders, annoyed by being taken to task by those who don't agree with their peculiarly idiosyncratic interpretation of doctrine.

1. The 'Porteous clause' and the 'Folau clause'

Clause 8(3) of the bill proposes that codes of conduct by employers may not prohibit statements of belief outside of work, unless the relevant employer can prove it would suffer financial hardship (the 'Folau clause'). This is just one example where the bill elevates statements of religious belief above any other statement of belief, thus providing positive religious privilege – a sword, not a shield – that is unavailable to other statements of, say, political or moral belief. Why, for example, should statements of religious belief made by an employee outside of work be protected but not statements about diggers on Anzac Day?

For religious people, a statement of belief that has protection can be on any topic provided it can be seen to arise out of a person's religious beliefs. For example, a statement that women are not suited to leadership positions would be protected; or a statement that gay people should refrain from having sex. By contrast, for non-religious people, a protected statement of belief can be only on a topic concerning religion and only if it can be seen to arise out of a person's lack of religious beliefs. Hence protection for the beliefs of religious people are broader than any protection afforded the beliefs of non-religious people.

Clause 41 (the 'Porteous clause') entirely excuses statements of belief from being considered discriminatory under any anti-discrimination laws. This sweeping provision will override other federal and state-based anti-discrimination laws. While the clause sets a standard that statements may not 'harass, vilify or incite hatred or violence', why should statements of religious belief be privileged above any other statements? If a person publicly recites from a sacred text and that text humiliates, or intimidates, or defames adherents of other religions or the non-religious, why should that person not be held to account for choosing to read that particular text?

These clauses exist because of particular events involving high profile Christians in positions of power and privilege.

In the case of Bishop Porteous, the system worked! A complaint was made about statements he made, but mediation worked and the complaint was withdrawn.

In the case of Folau, huge resources are being applied to employ the best possible legal advice and the system is working its way through to a conclusion. Folau is using existing religious discrimination protections found in the federal Fair Work Act to argue his case. The bill is an ill-conceived attempt to circumvent a possible outcome of the existing legal system.

Further, it's proposed to amend the Charities Act to positively protect expressions of support for a 'traditional view of marriage as only between a man and a woman', despite no legal decision that threatens a charity's status for saying so. This is pure overreaction, unnecessary in the circumstances.

Good law is not written out of bad cases.