You’re a woman in the workplace and a colleague says that women should be obedient or subservient to their husbands, that single mothers are sinners, or that abortion is murder.
You try to make a complaint to your state or territory anti-discrimination tribunal, or to the Human Rights Commission under the Sex Discrimination Act. But under newly passed legislation, you can’t anymore, as your colleague claims it was a “statement of belief” in line with his religious beliefs.
If you want to take it to court you’ll likely have to cough up lawyers fees. Your colleague, meanwhile, only needs one other person of his religion to agree that the statement is in line with the teachings of their religion. If your employer disciplines your colleague for his comments, your boss faces their own discrimination claim for reprimanding a person of faith based on their beliefs. Your no-costs legal option becomes a potential court case. Is it really worth it anymore?
This is the hypothetical scenario legal and women’s equality organisations are saying could play out if the government’s proposed religious discrimination bill passes.
Public Interest Advocacy Centre chief executive Jonathon Hunyor said the law currently states you can’t be treated less favourably than another person on the basis of your sex.
“If I, as a manager, was constantly interrupting women and putting them down, that would be something that would adversely affect them at work and would be something that someone could complain about and seek to stop. [But this legislation] says you can’t do this if it is a statement of belief, and that is a significant change,” Hunyor told BuzzFeed News. He added that in his view the proposed law encourages “statements that are maybe offensive or insulting or demeaning”.
So how does the bill decide whether the off comment your colleague just made is in line with their religion?
The statement must be made in good faith and is a belief that a person of the same religion could reasonably consider to be in accordance with the doctrines, tenets, beliefs or teachings of that religion. This has been dubbed the “phone a friend” clause as the person only needs a single other person to vouch that the belief is part of their shared religion.
“It isn’t even that you look for it in the Bible or look for it in the Quran, but you [only] have to find one other person,” Hunyor said. “Look at the radicalisation of religious views in the [United] States and you can see where this can go.”
Hunyor said most people don’t complain about discrimination when it happens so “the normative value of the law” — what people think is or isn’t permitted — is really important. “Most people don’t understand existing law generally so what we think it says is really important and it sets a standard for behaviour,” he said. “If we say religious views are judged by a different standard, that sends a terrible message.”
According to attorney-general Christian Porter, the hypothetical scenario will not happen. He said “it might surprise some of the bill’s more heated critics” to learn the bill does not permit behaviour that one would ordinarily expect to be the subject of a complaint in an Australian workplace.
“It does not change employers’ power to make reasonable rules that apply at work,” Porter told BuzzFeed News. “It does not permit bullying or harassment.
“It does not permit women or minorities to be targeted in the workplace, or indeed limit employers’ ability to run appropriate, sensitive, compassionate workplaces as we’d all expect.”
The bill gives effect to a “very simple rule”, he said: “You don’t discriminate by explaining what you believe, if you do so in an ordinary, civil and respectful way.”
This should be not surprising in a multicultural, multi-faith country, he added. Porter also said that the bill would prevent the legal system being used to “stifle religious expression”.
“We don’t want the UK experience, where a person can be barred from their profession and dragged through three and a half years of litigation on the basis of anonymous complaints.”
But multiple legal advocates disagree with Porter.
University of Sydney law professor Simon Rice said said the religious discrimination bill could immediately “cut off” one legal remedy to sexist discrimination in the workplace.
“Let’s say a woman is in the workplace, working alongside other people but her foreman is saying to her ‘dykes will go to hell’ or ‘single mothers deserve this’ or ‘women are subservient’,” he said.
“At that point — leaving aside that there might be other remedies in the workplace — if she wants to make a discrimination claim through the state anti-discrimination board under her local state act or at the Human Rights Commision under the Sex Discrimination Act both of those bodies would have to say straight away, ‘If you are complaining about this religiously based statement, I have to tell you our laws don’t apply so we can’t take it any further and you’re wasting your time’.”
Religious leaders had dismissed some of the hypothetical consequences of the legislation, but Rice said: “If you have legislation that enables conduct then you have to look at the conduct it enables.”
An odd aspect of the bill, Rice noted, was that for religious-based statements it overrides anti-discrimination laws but not the Fair Work Act.
“So even if anti-discrimination laws don’t apply, those statements may still be unlawful as ‘adverse action under the Fair Work Act’ when they happen in employment,” he said.
Rice noted having protection against religious discrimination at an individual level was “perhaps a necessary thing” particularly for women who are often “much more visibly of faith” when they wear veils, crucifixes or habits.
Monash University associate professor of constitutional law Luke Beck said Clause 42 of the legislation worked to ensure that statements of belief that would be deemed discriminatory today, would not be if the bill passed. The practical effect of this was that if a woman believed a statement of belief was discriminatory, she had little legal recourse.
“She could make a complaint but it would be chucked out,” Beck told BuzzFeed News. “She could complain to HR but if [the employer] takes disciplinary action against a person for making a statement of belief, that disciplinary action might be discrimination [on the basis of religion].”
The so-called “phone a friend” clause complicates this further.
“What is a religious group? What is the boundary between Baptists and Anglicans?” Beck asked. “This is going to be a lawyers’ picnic.”
The woman who feels discriminated against and the colleague who made the comment would spend “enormous amounts of money in lawyers fees” resolving this under the legislation as the claim would move out of existing state-based discrimination tribunals and into an expensive court process. This “undermined access to justice”, he said.
“These individuals aren’t Israel Folau and Rugby Australia who have millions of dollars, which means no-one will ever complain,” he said. “If someone said something shit to you at work are you really going to risk losing your house over that?”
A statement isn’t protected simply because the speaker believes it. Under the legislation, it must be made in good faith, cannot be malicious and must not harass, vilify, threaten, or seriously intimidate.
Most lawyers interviewed for this story wondered why it wasn’t enough if the statement was simply intimidating. As Melbourne University professor Beth Gaze said: “Why does the adjective ‘seriously’ need to be there?” Porter did not respond to this question from BuzzFeed News.
Gaze had issues with the legislation but was sceptical statements of belief that aren’t malicious or intimidating would count as discrimination in the first place.
“If you had a discrimination claim against me then I have got a defence if it is a statement of belief, but a statement that women should be subordinate to men is unlikely to meet the standards for discrimination anyway,” she told BuzzFeed News. “It is really important with discrimination law to bear in mind even though there are a lot of statements people disagree with, they’re not necessarily discrimination.”
Gaze said there was nothing in the bill that required statements of belief to be expressed in an “ordinary, civil and respectful way”.
The second issue with the hypothetical about the woman, Gaze said, is that existing workplace codes of conduct will still apply. She said the proposed law makes it discriminatory for big businesses (those with an annual revenue above $50 million) to prevent an employee from expressing their religious views unless the employer can show the rule is necessary to prevent “unjustifiable financial hardship”.
“A statement of belief is never discrimination [under the bill] but it might be a breach of your employer’s conduct rules, as in the Israel Folau case,” she said. “There was a homosexual vilification claim brought against him but the employer didn’t terminate him because of that, [they terminated him] because he breached the conduct rule.”
That is why many employers are opposed to the legislation, she said: “They want to have the power to get rid of an Israel Folau and this bill would prevent them from doing so.”
Equality Australia legal director Ghassan Kassisieh said the bill “explicitly” takes away the rights of individuals to safe and inclusive workplaces, schools and services by overriding existing federal, state and territory anti-discrimination laws.
“[Under the proposed law] the victim will lose the backing of the law when, for example… a shop assistant experiencing domestic violence is told by her boss, the shop owner, that marriage means ‘until death do us part’,” Kassisieh told BuzzFeed News.
“Discrimination laws protect workers, students and customers when the people in charge have failed to do so.
“Saying that an employer or service provider can still discipline their workforce for inappropriate conduct is meaningless when the employer or service provider is the one acting inappropriately.”
State-based anti-discrimination processes currently offer a cheaper “one-stop-shop” for resolving complaints involving religious statements, but people would now need to go to court to test whether a statement is religious and whether it is “seriously” intimidating.
The Women’s Electoral Lobby submission to the legislation argues vehemently for the deletion of Clause 42 entirely and lists sexist passages from religious texts to make its case.
Dr Mary O’Sullivan of the lobby said the draft legislation “discriminates against women” and potentially provides cover for discriminatory behaviour in health and medical situations already addressed in current anti-discrimination legislation and professional codes of conduct.
O’Sullivan told BuzzFeed News a psychologist could introduce statements of religious belief into their consultations “when patients are both trusting, possibly traumatised and potentially sensitive to suggestion”.
“Examples might include beliefs relating to the sanctity of marriage when counselling a woman troubled by a relationship separation, or counselling on the need to constrain so-called provocative sexual activity in the case of a client who has sought help following sexual assault,” she said.