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Here's how to fix your Religious Discrimination Bill

Attorney-General gets flooded with advice

Staffing for Christian schools is the top issue for a flood of submissions hitting the Attorney-General’s inbox, in response to the religious discrimination draft bill released last month.

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The call for submissions about how to improve the bill ends this week.

“… Legitimate differential treatment is not discrimination.” – Christian Schools Australia

Christian Schools Australia’s submission is typical of submissions by several key religious bodies.

CSA is pleased the Bill “does not use the outdated exemptions approach to ensure that religious bodies are not affected by the Bill. Instead the Bill provides that religious bodies do not discriminate on the basis of religious belief or activity by ‘engaging, in good faith, in conduct that may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings’ of their religion.”

“Removing this conduct from the definition of discrimination reflects the importance for religious bodies to be able to freely manifest their religious beliefs.

“It is also consistent with the principle that legitimate differential treatment is not discrimination.”

In common with other submissions, CSA is worried that the bill requires employment practices to be tied to religious doctrine – and Eternity is unaware of any statement of faith or creed that goes quite that far.

“A Christian school having a general policy of only employing staff who share its Christian faith would seem to be within the scope of what is intended to be protected as ‘reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings’,” CSA notes.

“The policy of only employing staff who share the faith may not, arguably, be strictly ‘in accordance’ [with] the relevant ‘doctrines, tenets, beliefs or teachings’, despite being an essential means of operating consistently with them.”

As reported earlier by Eternity, the submission from legal think-tank Freedom For Faith (FFF) raises this issue as a top priority. FFF also raised the allied concern that organisations which want to have a certain proportion of their staff holding to a particular faith would find it even more difficult to draw the link to “doctrines, tenets, beliefs or teachings”.

“The great majority of faith-based aged care homes, child care centres and hospitals serve all who come to them for services that they provide,” FFF argues. “But in order to maintain the religious and cultural ethos of an organisation, it is necessary that the faith-based service provider has a right to prefer staff who practise the faith with which the organisation is associated and by which it is motivated.”

The importance of the staffing issue is underscored by submissions from Sydney Anglicans, the Catholic bishops of Australia and Australian Independent Schools, who join FFF and CSA in featuring this issue strongly in their submissions.

The Executive Council of Australian Jewry raises a concern about the Bill specifying (in Section 10) that the conduct of a religious body will be protected if it “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion”. But as the Executive Council asks, if reasonableness is the standard of an ordinary person, “how would a reasonable member of the general Australian community have the knowledge and experience to assess whether a particular act is in accordance with Judaism?”

“It is insufficiently vague for any conduct to be capable of having a religious purpose.” – Equal Voices

Equal Voices, a group that advocates for LGBT inclusion in Christianity, raises a complaint that they were not consulted in the drafting of the bill.

Their submission focuses on Clause 10. Equal Voices regards it as providing an exemption to other anti-discrimination laws – and they want it amended “so that limitations to the rights and freedoms of others are based on principles of proportionality.”

Equal Voices is pushing in the opposite direction to the submissions mentioned above – it wants the protections of religious bodies limited to “activities [that] must have an essential and clearly identifiable religious character.”

“It is insufficiently vague for any conduct to be capable of having a religious purpose.”

If this suggestion was accepted, it would tighten the protections for religious organisations  covered by the bill.

The Uniting Church in Australia (UCA) submission says that Clause 41 – which says that a statement of belief does not constitute discrimination for the purposes of any anti discrimination law – “would expose women, LGBTIQ people, single parents, people in de-facto relationships, divorced people, people with disabilities and other groups, to a range of statements that would otherwise be considered discriminatory if not couched within a religious belief.”

As a significant employer in aged care, education, as well as churches, “The Uniting Church welcomes the exception that would allow it to employ people who are practicing Christians and members of the UCA to significant leadership roles across the Church.

The Clause 41 “free speech” issues in the bill attracts criticism from secular bodies such as the Public Interest Advocacy Centre as well as Equal Voices and the UCA.

The bill overrides the Tasmania Anti-Discrimination laws – which saw a complaint against Catholic Archbishop Julian Porteous after a pamphlet on the church’s teachings about marriage was distributed to school families.

The bill raises the bar for protection, from offence to harassment or vilification.

“Clause  41(1)(b) makes it clear that a “statement of belief” is not unlawful under the specific terms of s 17(1) of the Tasmanian Anti-Discrimination Act 1998, which penalises causing ‘offence’ on various grounds,” Professor Neil Foster of the University of Newcastle points out in a personal submission “This is a welcome provision protecting freedom of religious speech.”

Equal Voices also opposes this provision because they believe this would allow abuse.

On the other hand, FFF and other Christian submissions call for ‘vilify” to be defined in the bill, and CSA goes further and asks for it to be removed.

“The verb is not defined, and it really needs to be,” says Professor Neil Foster. “I would support its presence if it means “incite hatred or violence”. But since both of those concepts are contained in other parts of the paragraph that is probably not what it currently means. The word “vilify” might be thought by some to include any speech which indicates that sexual activity contrary to the Biblical standard (in the context of a marriage between a man and a woman) is wrong. In that case it may nullify the practical impact of the provision as a whole. Clarification is needed. “

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