President Arthur Moses says proposed law contains a ‘narrower’ protection for racial discrimination than exists under section 18C

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This article is more than 1 year old

The expression of religious beliefs that offend, insult or humiliate people based on their race could be effectively legalised by the Coalition’s religious discrimination bill, the Law Council of Australia has warned.

On Wednesday the Law Council president Arthur Moses noted that the bill, released last week by attorney general Christian Porter, contains a “narrower” protection for racial discrimination than exists under current commonwealth law in the notorious section 18C of the Racial Discrimination Act.

At the National Press Club, Moses warned against a “shifting sands” approach to protecting speech and labelled provisions intending to protect people in the position of rugby player Israel Folau a “mirage” because they can be overridden by commercial considerations.

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The religious discrimination bill protects expression of religious speech in good faith by stating that such speech does not constitute discrimination under commonwealth, state or territory anti-discrimination law.

The provision does not protect statements that are “malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence”.

Moses noted the bill “doesn’t carry the same type of protection as section 18C of the Racial Discrimination Act in relation to offensive behaviour”. Section 18C prohibits speech that “offends, insults or humiliates” a person based on their race.

“The exclusion provision – in terms of being able to say what you want based on religious belief – is narrower in relation to what will fall foul of the legislation and not be protected by the provisions of the Act,” he said.

“We are troubled by the shifting sands approach when it comes to religion, as opposed to race, and I don’t think the government has thought through consistency in this legislation because it’s a bad idea when you’re adopting a shifting sands approach.”

Moses noted the effect was that section 18C protections do not apply to religious beliefs unless they are likely to harass or vilify a person based on race.

“The concept of offend and insult in section 18C is not to be found in this legislation – so the test is much more difficult to establish in relation to provisions of the religious freedom bill than what is currently contained in the Racial Discrimination Act,” he said.

“This is an area where we have said you need to be very careful because some comments that are made do have an impact on the most vulnerable members of our community.”

In 2017 the Turnbull government attempted to replace the words “offend, insult or humiliate” in section 18C with the term “harass” – which would have eroded the current protections against hate speech substantially.

Labor, the Greens, the Nick Xenophon Team and the Tasmanian independent Jacquie Lambie combined to defeat the reform in the Senate.

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LGBTI advocates who oppose the religious freedom bill – particularly because it overrides similar “offend, insult and humiliate” provisions in Tasmanian law – have warned it would license offensive views about women, racial minorities and disabled people in the name of religion.

Moses noted the bill still allowed employers to adopt a conduct rule that indirectly discriminates based on religion and prohibits religious speech, if they would otherwise suffer “unjustifiable financial hardship”.

“That’s an interesting concept … there is a mirage of freedom of speech but it’s confined by the employer’s bottom line,” he said. “I think that’s silly, with all due respect.”

Moses noted its interpretation would depend on “who complains the most” and what evidence of hardship could be produced.

He said religious expression was not defined in the bill, accusing the government of “legislation done on the run” to deal with the case of Israel Folau, who was sacked by Rugby Australia for social media posts stating that he believes homosexuals, among others, are going to hell.

Moses also noted that the bill could also expressly protect medical practitioners who refused to perform abortions on the grounds of conscience.