Proposed Religious Discrimination Bill too severe

By Naomi Neilson|28 January 2020 , first published in the Lawyers Weekly

Edward Santow has been Human Rights Commissioner at the Australian Human Rights Commission since August 2016.

Ed leads the Commission’s work on technology and human rights; refugees and migration; human rights issues affecting LGBTI people; counter-terrorism and national security; freedom of expression; freedom of religion; and implementing the Optional Protocol to the Convention Against Torture (OPCAT).

Ed’s areas of expertise include human rights, public law and discrimination law. He is a Visiting Professorial Fellow at the University of New South Wales (UNSW), a member of the World Economic Forum’s Global Future Council on Human Rights and the Fourth Industrial Revolution, and serves on a number of boards and committees.

In 2009, Ed was presented with an Australian Leadership Award, and in 2017, he was recognised as a Young Global Leader by the World Economic Forum.

From 2010-2016, Ed was chief executive of the Public Interest Advocacy Centre, a leading non-profit organisation that promotes human rights through strategic litigation, policy development and education.

Ed was previously a Senior Lecturer at UNSW Law School, a research director at the Gilbert + Tobin Centre of Public Law and a solicitor in private practice.

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Certain provisions to the proposed Religious Discrimination Bill have been rejected as being too “severe” and unduly restrict the rights of entire communities of people, said the Australian Human Rights commissioner.

Speaking at a Public Interest Advocacy Centre (PIAC) forum hosted at Gilbert + Tobin, commissioner Edward Santow said that while welcoming the government intention to fill in gaps in the law that leave people of faith unprotected, several provisions will only serve to “taint the bill as a whole” and set anti-discrimination laws back further.

“The majority of the bill is an appropriate and conventional law to prohibit any religious discrimination. The majority of the bill is similar to existing laws, here and overseas, in dealing with discrimination of religion, race, age and sex,” Mr Santow said at the forum. “But we have serious concerns about other aspects of the bill.

“We need to consider whether the bill’s problems are so severe they taint the bill as a whole. For me, the short answer is yes. In my view, certain elements of the bill are so problematic that the bill should not proceed unless those problems are addressed.”

Mr Santow pointed to several provisions in the bill the Human Rights Commission has taken issue with, which he added were “unique, even radical”. He noted that there was nothing like these provisions in Australian, or international, law.

For one, under the provisions, corporations can claim they were discriminated against based on associations. Mr Santow said that by claiming this, it is inconsistent with laws both national and international, but would also be inconsistent with logic and common sense “to suggest a corporation’s feelings have been hurt”.

“It’s axiomatic that human rights are for humans,” Mr Santow said. “If you need to be persuaded on this, just remember human rights exist to protect quintessentially human qualities, especially human qualities. And yet, the bill would allow some corporations to claim that they suffered from religious discrimination.”

The bill also allows religious bodies – including schools, charities and providers – to be exempt from religious discrimination law. As such, they are permitted [to] be discriminatory if it is in “good faith and in accordance with religious doctrines”. For example, a teacher of faith at a religious childcare centre can discriminate against a single mother.

“It undercuts protections against religious discrimination, particularly in sections such as employment and the provisions of goods and services. In other words, a significant portion of the bill isn’t about prohibiting religious discrimination, it does something that is the exact opposite of that,” Mr Santow said, adding that the bill would give “license” to certain parties to engage in discriminatory conduct based on their beliefs.

Mr Santow added that parts of the bill, if it proceeds, will override all anti-discrimination laws because it would favour one group’s rights over another.

“We believe that the bill would be easy to fix. The problematic provisions with this bill seem to have been tacked onto a much more conventional bill. If you were to remove the problematic elements, you would be left with a typical anti-discrimination law,” he said.

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