Religious Discrimination Law Edge Closer Amidst Mounting Tensions Over ‘Folau Clause’

A man is seen praying outside St. Mary's Cathedral in Sydney, Australia, on Oct. 23, 2020. Lisa Maree Williams/Getty Images

The Morrison government is expected to bring its religious discrimination laws to parliament as early as next week, sparking a heated debate about whether the bill should ban indirect discrimination and prevent employers from framing policies to bar employees from expressing religious views.

The much-delayed bill, which is yet to be released, sought to fulfil Morrison’s promise to religious and faith-based groups during the 2019 Federal elections, two years after Australia voted for the bill to allow same-sex marriage.

A spokesperson for Attorney-General Michaelia Cash, who took over the bill’s progress from Christian Porter since March, said the government has conducted two rounds of public consultation on draft legislation and met face-to-face with over 90 stakeholders in a series of roundtables.

“The bill will ensure that individuals cannot be discriminated against on the basis of their religious belief or activities. The fundamental proposition is well accepted by stakeholders,” he said.

“The religious discrimination bill will not affect the operation of existing religious exemptions under anti-discrimination law, such as the Sex Discrimination Act 1984.”

Division Over the ‘Folau Clause’

However, parliamentarians are split over the inclusion of a “Folau clause” that would give legal protection to individuals or organisations expressing a statement of belief.

The clause was named after Australian professional rugby league footballer Israel Folau, who was denied employment in 2019 over an Instagram post saying, “drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists, idolaters” would go to hell.

Under the clause, companies with a turnover of more than $50m are required to prove an employee’s religious statement would cause financial harm before taking action.

While the clause was applauded by conservatives who believed it would pose a larger challenge for medium to big employers in removing staff based on their religious beliefs, it has received pushbacks from some moderate Liberal MPs and business groups.

Israel Folau arrives ahead of his conciliation meeting with Rugby Australia at Fair Work Commission in Sydney, Australia, on June 28, 2019. Mark Metcalfe/Getty Images

Dave Sharma, the member for Wentworth, said the religious discrimination bill should not extend beyond the existing boundaries to protect against other types of discrimination.

“It cannot be used to undermine existing rights, particularly among the LGBQTI community. It really should be a shield and not a sword,” he said.

The argument was echoed by LGBTIQ+ groups like Equality Australia, which claimed legislation which “protect religious people from discrimination will be used to hand a licence to discriminate against LGBTIQ+ people, women, people with disability, and others.”

Push for Religious Freedom in the Age of Secularism

However, an expert on religion stated that particular examples of discrimination, such as individual LGBTIQ+ teachers who are dismissed from religious schools, should not be used to overturn the “entire project” of protecting religious freedom.

Denis Dragovic, Honorary Senior Fellow in the School of Social and Political Sciences at the University of Melbourne, said that while discriminatory treatment is not “a preferable outcome of any law,” “discrimination is all around us.”

“The Sex Discrimination Act 1984 specifically allows men to be refused employment in female clothing stores. In addition, the Racial Discrimination Act 1975 allows charities to discriminate between those whom they assist on the basis of “race, colour or national or ethnic origin.”

Judges are required to retire at a certain age. State laws allow women-only gyms and men-only clubs,” he wrote in an op-ed for the ABC.

“The reason these laws are accepted is that because legislators have considered the wider interests of society together with the rights and interests of the discriminated, and decided that on balance the discrimination is tolerable considering the benefits that accrue to society.”

Dragovic noted that reviving the bill is not just an attempt to appease conservatives, but “a necessary response to a political environment that is increasingly hostile to religious views and religious rights,” despite the positive influence of religion has on Australian society, such as minimising drug addiction, reducing crimes, or producing better educational outcomes.

Meanwhile, Australian Christian Lobby manager director Martyn Iles said there is a sense of disappointment among faith leaders as “the bill is not as good as it should be and that there are a lot of flaws in the bill.”

“At the same time, a sense of reluctant support because they can see that the bill does make a couple of key offerings which will make a difference in this country,” he said, reported The Age.

The Religious Discrimination Act was introduced as secularism continues to dominate public discourse.

This year, before Queensland’s parliamentary debate has even begun, Deputy Premier Steven Miles said health care professionals and religious hospitals unwilling to facilitate voluntary assisted dying are not allowed to opt-out.

In late 2020, Victoria passed a bill to stop “harmful practices” that seek to change or suppress an individual’s sexual orientation or gender identity, raising concerns among religious communities that it could bar parents or religious leaders from offering supports to those seeking it while remaining true to their faith.

South Australia last year also loosened its abortion laws, which allow late-term abortions if two medical practitioners deem it “medically appropriate.”