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Next steps for religion laws

Staffing policies for faith-based institutions is the central concern about the draft Religious Discrimination Bill according to a new paper from Freedom for Faith (FFF), a Christian legal think tank advocating for religious freedom.

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While the draft bill aims at securing the right of faith-based organisations to preserve their identity and ethos, FFF believes there are practical problems in the way the Bill is drafted. In their submission to Attorney-General Christian Porter, FFF suggests the Bill makes it possible for organisations who want all staff to be adherents to a faith to be protected. But schools and charities that wish to simply have a preference for staff of faith will not be able to. This is because it would be easier for a faith-based organisations wanting all staff to be adherents to link that to “doctrine, tenets beliefs or teachings.” Simply wanting some staff to be Christian or Jewish (for example) is harder to link to a doctrine. Some Christian organisations believe that a “critical mass” of Christian staff, rather than only Christian staff, is essential to their ethos.

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. – Freedom For Faith submission

FFF compares faith-based bodies to groups like political parties that have a right to fit their staff to their purpose. “This is not a right to discriminate. It is a right to select. And it is just plain common sense. A Church’s child care centre is not like the Commonwealth Bank or a shop selling bedroom furniture.”

The definition of “religious body” excludes hospitals, aged care, publishing houses and youth campsites. Because any body that “engages solely or primarily in commercial activities” is excluded, this would mean that a Christian or Islamic bookshop could not select believers.

“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.”

To avoid conflicts between federal and state laws, FFF suggests a positive statement in the Religious Discrimination Act that a faith-based body (widely defined to include schools and charities) should be able to “appoint or prefer to appoint staff who practise the religion with which the organisation is associated.”

School enrolment policy should not have to be based on a “religious doctrine” – but be able to be based on a “religious purpose”. So a Catholic school should be able to preference Catholic students without having to demonstrate that its policy is based on a doctrine  – which could be hard to do.

In the draft Bill “religious activity” – which the bill is designed to protect – is restricted to “lawful” religious activity. “It is not beyond imagination that a State or Territory could pass a law that makes unlawful a religious activity which is widely accepted elsewhere in the country as an unremarkable expression of faith,” FFF says.

The consultation period for the Religious Discrimination Bill ends on Wednesday at 5pm.

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