The Federal Government’s recent release of the second draft religious discrimination bill falls far short of its objective to protect people of faith and without faith from discrimination.
As lawyer Talitha Maugueret writes, the draft bill fails to balance the right to religious freedom and the rights of others.
If passed, it will be a step backwards in hard-fought protections for women, single parents, people with a disability and other vulnerable groups in society, writes
Access to health care
The Bill introduces special rules that strengthen the ability for health professionals such as doctors, nurses, pharmacists and psychologists to refuse treatment to patients on religious grounds. For instance, a Catholic doctor could refuse to prescribe contraception because of their religious belief that ‘sexual activity outside of marriage is forbidden’ or refuse to prescribe hormone treatment for gender transition on the belief that ‘men and women are made in God’s image’.
The refusal must be on religious grounds so a health practitioner cannot simply refuse because of a specific person. For example, a Catholic doctor could refuse to prescribe contraception, but could not refuse to prescribe contraception only to a certain group, such as single women.
The Bill will make it harder for hospitals, health care clinics and pharmacies to require staff with a conscientious objection to refer patients elsewhere. Section 8(7) of the Bill provides that where State and Territory laws are silent on conscientious objection, employers and professional bodies can restrict or prevent a health professional from refusing treatment if it would cause an ‘unjustified adverse impact’ on the service or patient’s health, noting that the bill does not define the circumstances as to when an adverse impact to a patient’s health or service is justified.
The explanatory notes contemplate an example of women in a rural town, with only one doctor who conscientiously objects to prescribing contraception. In this scenario, the refusal to provide healthcare services may amount to an unjustifiable adverse impact on the women of the town seeking contraception who may be unable to access health care services elsewhere without significant travel and cost. However, it is unclear as to the threshold of how significant the travel or cost must be before a doctor is obliged to provide healthcare services.
The practical reality of the Bill will result in further barriers to healthcare access for women and other vulnerable groups in society. It could also result in a substantial hinderance to a patient’s ability to receive timely and unbiased access to healthcare information. It is also likely to cause unnecessary anxiety and fear for patients in not knowing whether a treatment will be denied or delayed resulting in travel and/or cost.
Right to make discriminatory statements
The Bill removes existing anti-discrimination protections for women and other vulnerable groups in society permitting individuals to make offensive or derogatory statements based on their religious beliefs. The only condition is that the statement must be a belief that the person actually holds and one that another member of that faith could reasonably consider to be in accordance with that religion, and the statement must be made in good faith. That is, statements cannot be malicious, threatening, hateful or harassing.
As most religions have stringent rules and teachings about the role of women, it is not difficult to predict that the Bill will disproportionately impact women.
For example, a woman may be told by her manager or a co-worker that she should submit to her husband, should not be out of the house without a male guardian or should not be employed outside of the home.
Other examples could include clients and barristers being able to say they prefer male solicitors to females based on religious beliefs.
Different levels of protection will be afforded for religious employees, depending on the size of their employer. The Bills makes it more difficult for private sector employers with revenues of $50 million plus to enforce standards preventing discriminatory statements based on religious beliefs in and outside of the workplace. The only exception is if they can prove it is necessary to avoid ‘unjustifiable financial hardship’. Disappointingly, the same protection will not be afforded to statements made by non-believers, public sector workers or people of faith working in smaller organisations outside of work.
Similarly, bodies conferring professional qualifications (i.e medicine, law) will also be unable to stop members from making discriminatory statements outside work unless they can prove their requirements are ‘essential’ to their profession, trade or occupation.
The Bill will also make it easier for religious hospitals, aged care facilities and retirement homes to discriminate in hiring staff or the delivery of services in order to preserve their ‘religious ethos’.
Where to from here?
The Federal Government will review submissions on the Bill which closed in late January 2020 and undertake a further round of consultations with community and religious groups before introducing it to Parliament.
While the Australian government should be commended for proposing to tackle religious anti-discrimination laws, it should be back to the drawing board for further revision to ensure the Religious Discrimination Act equally balances the rights of people of faith and people without faith from discrimination, as this could have a detrimental impact on women and would be a step backwards in equality in key areas of public life such as health sector, workplace and the provision of goods and services.