Coalition’s proposal criticised for giving more weight to the beliefs of religious people

This article is more than 11 months old

This article is more than 11 months old

Key provisions of the religious discrimination bill may be unconstitutional because they allow medical practitioners to refuse treatment, and privilege statements of religious belief, an academic has warned.

Luke Beck, a constitutional and religious freedom expert at Monash University, warned the Coalition’s exposure draft bill may be incompatible with international law and therefore not supported by the external affairs power in the constitution.

The submission echoes concerns from the Australian Human Rights Commission and Public Interest Advocacy Centre that the bill will licence discriminatory statements about race, sexual orientation and disability on the grounds of religion, and that it privileges religion over other rights.

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The bill has been criticised for overriding state and federal discrimination law, including section 18C of the Racial Discrimination Act, which prohibits speech that offends, insults or humiliates people based on race.

Beck argued the bill provided a “bigger sword” to religious people’s statements of belief than those of non-religious people. Statements of belief can be made “on any topic whatsoever” provided they “may reasonably be regarded” as in accordance with a person’s religious beliefs.

By contrast, statements of non-belief must deal only with the topic of religion and “arise directly” from the fact the person does not hold a religious belief, the associate professor said.

Beck argued the different standard might breach the international law requiring “equal footing” to be given to freedom of thought, conscience and religion. Because the bill relies on the external affairs power for its validity there was “significant constitutional doubt” about the provisions, he said.

Beck and the Public Interest Advocacy Centre (Piac), in separate submissions, also criticised the bill’s attempt to give health practitioners a right to refuse to provide services if the refusal is motivated by the practitioner’s religious beliefs.

Piac noted the provision was not limited to procedures such as abortion and euthanasia, meaning it could “protect the outright refusal of services to people from certain groups” by “a long list of health professions, including occupational therapy, optometry, pharmacy and podiatry”.

The chief executive of Piac, Jonathon Hunyor, told Guardian Australia the bill “clearly and deliberately” privileged religion over other rights, particularly in the statement of belief provisions.

Beck and Piac argued the provision would allow people to denounce single mothers, trans people, people with a disability or of different faiths, provided they invoked God or described their targets as sinners.

Piac said the bill would fracture the existing regime which lets states set their own laws, which would constitute “a radical and unwarranted step”.

The AHRC submitted that “overriding … all other Australian discrimination laws is not warranted, sets a concerning precedent, and is inconsistent with the stated objects of the bill”. Rather than recognise the indivisibility and universality of human rights, the provision “seeks to favour one right over all others”.

Both Beck and the AHRC raised the spectre of discrimination complaints made under state law being forced into expensive litigation in federal courts because low-cost state tribunals lack jurisdiction to adjudicate on the clash of federal and state law.

The AHRC endorsed the elements of the bill that protect against discrimination on the grounds of religion where the law is equivalent to existing federal protections for race, sex, disability and age.

But it warned against “unique provisions that have no counterpart in other anti-discrimination laws and appear to be designed to address high-profile individual cases”.

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The bill bans employers from setting codes of conduct that indirectly discriminate on the grounds of religion, which attorney general Christian Porter has said will provide protection for people such as Israel Folau, who was sacked by Rugby Australia for social media posts claiming homosexuals will go to hell.

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Large employers – with a turnover of $50m or more – can escape the ban only if their code of conduct is both reasonable and necessary to avoid “unjustifiable financial hardship”.

The AHRC questioned the “implicit assumption” that financial considerations were the only legitimate reason to set a code of conduct, and why it would not be open to an employer to show it was “necessary to promote the values or ethos of the company or to prevent discrimination”.

Piac argued employers would be forced to “quantify a range of hypothetical circumstances that could have a financial impact on the business”.

“It is difficult, if not impossible, to see how this could be done,” it said.