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Religious freedom bill may be worse than nothing

John McDonnell writes the Attorney-General's latest crack at Religious Freedom reform might backfire

The Attorney General, Michaela Cash (pictured) has announced that the Religious Freedom Bill will be introduced into parliament at the last parliamentary session this year, which starts on Monday. This week she circulated a draft of the bill to Coalition members. From the details that have been leaked to the media, it appears that the new bill may actually be worse than having no bill at all.

The government is obliged to introduce legislation to protect religious freedom because it promised to do so at the last election. However, the draft bill does not take the approach of protecting freedom as a right that prevails over anti-discrimination legislation, state and federal. Rather, the new legislation adopts the approach of treating religious freedom as being a workplace relations matter.

As a consequence, the ‘Israel Folau’ clause, which provided that a person could not be dismissed from a business enterprise with a turnover of more than $50 million, for expressing religious views unless that enterprise could demonstrate financial damage, has been deleted from the draft.

Instead, the new bill allows faith-based organisations to maintain a preference for hiring people of the designated religious faith. It also allows people of faith to express that faith at work but does not protect them from prosecution under state-based legislation.

By way of example, a doctor in a faith-based hospital in Queensland could refuse to engage in euthanasia on conscientious objection grounds, without a threat of dismissal, but they could still be prosecuted under state euthanasia laws for refusing to undertake a medical procedure.

Despite the fact that the draft bill has been watered down, gay rights advocates say the legislation still goes too far in exempting faith-based people from sanction for actions that are discriminatory or homophobic. Shadow attorney-general, Mark Dreyfus, says that Labor is prepared to work with the government on the legislation but they are yet to see the draft.

It is likely that the legislation will be sent to a senate committee to be examined when it hits the upper house, so it is unlikely to be passed before parliament is prorogued for the election.

Conservatives have problems with the legislation because they believe that it will limit religious freedom. Former Liberal senator Cory Bernardi expressed this view on Sky News:

“As soon as you seek to codify what freedoms are available to people of religion you then run the risk, I guess, of having them weaponised, used against them.
“You’re also limiting freedoms which I think in some respects, because they’re codified, may actually have an adverse effect.
“And that’s always been my concern with this.”

Peta Credlin echoed this view in an op-ed in ‘The Australian’ on Thursday. Credlin argues that the common law offers protections for religious freedom that would be diminished if the draft bill became law. She says that she prefers judges to be bound by precedent rather than to adopt creative interpretations of new legislated rights.

At the present time, the government would be unable to get its legislation through the Senate without the support of Labor. This is because Coalition senators, Gerard Rennick and Alex Antic, have declared they will vote against all government legislation unless the prime minister declares his opposition to mandatory vaccination.

This means the religious freedom bill may never become law.


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