Liam O’Brien, Assistant Secretary of the ACTU, argued that the Australian Coalition has had three years to introduce a conventional anti-discriminatory bill to protect people of faith from religious discrimination and therefore criticised the currently proposed bill for being “confusing” and “complex”.
He argued that frontline workers were already stressed during the Omicron crisis, and the bill’s introduction with the provisioning that a “statement of belief” should not be considered “discriminatory” during this time will only introduce more discrimination and distress as it potentially overrides other discrimination laws.
Currently, on the bill, statements of belief are not constituted as discrimination, giving people of faith a level of protection.
Statements of beliefs can be a religious belief held by a person in good faith and made according to the religion’s doctrines, beliefs, or teachings.
For someone who does not hold a religious belief, their statement of belief must be made in good faith and is something someone who has no religious faith can relate to.
However, this excludes statements that “would, or is likely to, harass, threaten, seriously intimidate or vilify another person or group of persons” and are therefore not protected under statements of good faith.
The ACTU argued that the exclusions were a “high bar,” saying that these statements could come in many forms, such as pamphlets or posters. Therefore the implications in the workforce could be unpredictable as compared to a conventional anti-discriminatory bill similar to other laws for sexual orientation, age and disability.
Lori-Anne Sharp, Federal Assistant Secretary and representative for Australian Nursing and Midwifery Federation (ANMF), concurred with O'Brien that the provisioning of “statement of beliefs” as not “discriminatory” could increase stress within the healthcare workforce.
“It is just going to add so much more distress, confusion and lack of confidence in the public and the clinicians,” she said to the joint committee.
Sharp argued that nurses and midwives must adhere to a code of conduct that stays with them “when the shift has ceased” and was concerned that statements of belief may disrupt the trust patients have with their clinicians.
She raised the example that clinicians or health care workers that are “anti-vaxxed based on any religious belief can have dire consequences” implying non-religious patients may be unable to trust religious clinicians on their judgement and that governing bodies may not be able to take disciplinary action due to the protection statements of beliefs offered.
The bill will “impact health service delivery and particularly undermine public health confidence,” Sharp said.
Sharp also raised the concern that the bill may allow the termination of employees from religious organisations based on the staff’s religious or non-religious beliefs. Currently, many carers of the union work in religious-based aged care, and Sharp said she was concerned that certain employees might be discriminated against due to their beliefs within the workplace and miss opportunities.
At present, the bill allows an override of state and territory discrimination laws only in the matter for schools to hire employees based on how they identify with the school’s teachings and ethos. Currently, all other religious organisations do not have this provision.
However, lawyer and executive director of the Institute for Civil Society, Mark Sneddon, argued that the bill coverage did not go far enough and said that only allowing religious schools the provision to “preference” was “too timid.” In addition, Sneddon argued that it was important for all religious organisations to have a preference in hiring.
Sneddon argued that having a preference was not “religious discrimination” and that it was the same as political parties preferring to hire people that identified with the philosophy of the party.
He also contested the unions’ argument that statements of belief would cause further discrimination and stress within the workforce, stating that the clause “has attracted a mass amount of misinformation and criticism.”
“It has been widely said that this provision protects statements of belief in all sorts of ways.”
However, he reasoned that the provision only protected statements of belief from discrimination and anti-discrimination laws and other provisioned laws in regards to discrimination.
Sneddon argued that those who were arguing against the clause had forgotten that employer sanctions, breach of employment contract, breach of employer’s code of conduct, breach of regulations by professional bodies would still apply.
He also argued that exclusions and the necessity for statements to be made “in good faith” serve as a second limitation.
“Some of the objections out there like; for a nurse to say to a patient with HIV that AIDS is a punishment from God, or a disability worker saying to a girl with a disability that disabilities are by the devil is just wrong.”
“Such statements are very unlikely to pass the gauntlet of being in good faith; not malicious, not harassing, not threatening, not intimidating, not vilifying,” he said.
He reasoned that even if the statement did not fall into any of the categories, it would only make it protected from a discrimination complaint but would not protect from a complaint to employers for a breach of code of conduct nor protected from a breach of contract, all of which applies in the workforce.
“The idea that these statements would be made without consequences or sanction by the people who make them is fanciful, and I would be delighted if the people who keep making those assertions would stop doing that,” he concluded.
