Religious discrimination's difficult battleground outlined in conservative and progressive submissions
The contest of ideas embedded in the debate over the Morrison government’s Religious Discrimination Bill is laid bare in submissions to the federal parliament’s Joint Committee on Human Rights which is reviewing the Bill. Here we highlight some of the key submissions from both advocates for the bill and those opposing it. The parliament is uploading submissions by academics and key bodies here.
Dr Alex Deagon is a Senior Lecturer in the School of Law at the Queensland University of Technology, who specialises in religious freedom is a supporter of the Bill.
Deagon is a supporter of the bill and a Christian. He believes that the Bill should be passed as is, and the question of religious exemptions to the Sex Discrimination Act that give religious bodies the right to refuse employment to LGBTIQ persons be left until after the Australian Law Reform is able to report. This is the original plan of the Morrison government. In common with other submissions supporting the Bill, such as from the Australian Christian Lobby, Deagon believes that a rising tide of hostility to religion means the protection of religious freedom is needed more than ever.
He focuses on key controversial areas of the Bill. On the selective employment of teachers, Deagon argues that International law requires religious bodies to be able to select their staff on the basis of faith. “… the Bill will have the effect of allowing religious schools to preference staff with belief and behaviour consistent with the ethos of the school, as indicated in the relevant sections. Such preferencing is a fundamental human right. It fulfills Article 18(4) of the International Covenant on Civil and Political Rights (ICCPR), which obliges states (without limitation) to facilitate parents educating their children in accordance with their own convictions. This entails the ability for religious schools to preference staff who adhere to the religious beliefs and activities of the school’s religious ethos.”
Similarly, Deagon supports another controversial provision of the bill that protects “statements of faith’ from some state’s anti-discrimination laws arguing that the protection is unlikely to “license hurtful personal attacks on the basis of religion.” He points out that “statements of belief must overcome significant hurdles to attract protection from the Bill: they must be made in good faith, and not be malicious, and not be reasonably considered to threaten, harass, intimidate or vilify, and must not urge the commission of a criminal offence. This combination of limitations means the kinds of hypotheticals posed by the detractors, if they exist, would not meet the standard to be protected.”
Deagon points to an area of dispute about religious anti-discrimination law when he sets out a special requirement of religion “The principle of religious liberty is not merely limited to private, individual belief and action. It extends beyond private belief and acts of worship to public and associational contexts such as proselytization, social and business interactions, employment, cultural and charitable activities, education, and so on. For many religious people, these external manifestations of religion are just as central and important to them as private belief, prayer and worship.”
This is because religion is an activity that people engage in groups, setting up churches, synagogues, temples and mosques. And to train ministers or priests, theological colleges, yeshivot, Hindu seminaries and madrassas.
The submission by Freedom For Faith (FFF), a Christian legal think tank takes up this point. “One key feature of the protection of religious freedom under [article] 18 [of the ICCPR] is that it makes specific reference to such rights being exercised “either individually or in community with others”. The communal aspect of religious belief has traditionally been a defining mark of the area. For most religious people around the globe, religion is exercised not solely in private or individually, but in public and in fellowship with other believers. Any protection of religious freedom must take into account the need to protect religious groups as well as individual believers, and it is encouraging to see that this is what the Bill does.”
In the wake of the Tasmanian Anti-Discrimination Commissioner’s pursuit of Catholic Archbishop Porteous for distributing a pamphlet outlining Catholic doctrine FFF comments on the Bill’s overriding the Tasmanian law: “This is only necessary because the Tasmanian Parliament has chosen not to fix the problem in its own legislation, or rather, in the interpretation of its own legislation by anti-discrimination commissioners who have, for whatever reasons, allowed the processes of the Commission to be misused for the purposes of political activism. A narrower interpretation of the Tasmanian legislation could have been adopted which took at least some account of the right to moderate and non-vilifying speech.”
FFF notes the override is limited “Subsection (1) does not apply to a statement of belief: (a) that is malicious; or (b) that a reasonable person would consider would threaten, intimidate, harass or vilify a person or group…”
The Australian Christian Lobby (ACL) submission argues that the Bill needs to be strengthened. They argue for a broad definition of “religious activity” that includes:
- engaging in religious activity of worship, observance, practice or teaching; and
- conduct, refusal, omission, expression, and association carried out in accordance with, in connection with, based upon, constitutive of, supportive of or a corollary of a religious belief; and
- seeking, receiving and imparting religious beliefs either orally, in writing or in print, in the form of art or through any other media;
- and any activity or manifestation motivated by a religious belief, whether in public or in private, and whether individually or in community with others, but does not include any activity that would constitute a serious offence under Commonwealth or State Law.
ACL wants the Bill to include a revised “Folau clause” which would protect employees making comments in their own time.
The ACL’s support of the Bill is conditional on the government not bringing forward the removal of exemptions to the Sex Discrimination Act (SDA) that permit religious bodies to discriminate. “Various members of parliament have publicly reported that they have secured government agreement that the religious discrimination legislative package will amend the SDA to remove subsection 38(3) to remove protection for religious schools that balance protections of SOGI attributes and a school’s ability to teach and uphold their religious beliefs and maintain their religious ethos.
“The ACL cannot support a religious discrimination legislative package that includes last-minute changes to the SDA which have not been subject to proper review and consideration, and which would have the effect of dangerously curtailing the rights of all Australians under Article 18(1) of the ICCPR.”
The ACL represents a point of view that wants greater protection for people of faith than the current Bill provides, and that would require a coalition government to resist the concerns from their more moderate members.
The Equality Australia (EA) submission argues that the Religious Discrimination Bill should not be passed, that it gives people of faith more rights than other people, and removes rights from some other groups, LGBTIQA people in particular.
EA also argues existing exemptions in other anti-discrimination acts are too broad and already give too much room for religious bodies to discriminate. The Equality Australia submission has been endorsed by many groups such as Equal Voices which represents LGBTIQ persons who profess faith and their allies, and broader groups such as the Australian Council of Social Service (ACOSS)
In making their key points such as the “statements of faith” provision giving in EA’s view almost unlimited freedom to make comments that offend – and restricting the ability of people to offend others is a key aim of the EA submission – the submission uses real-life case studies to illustrate their argument.
These are powerful stories of people losing their jobs because of their sexuality or beliefs about human sexuality. the point EA is trying to make, but, they also show some of the complexity of the religious discrimination debate.
- Rachel Colvin was sacked by a Christian school in Victoria because as a person supporting same-sex marriage she could not sign a statement of faith. EA reports that she offered to teach in accordance with the school’s beliefs.
- Karen Pack was sacked by Morling College – a Baptist Theological college with campuses in Sydney and Perth. Pack has become engaged to a woman she subsequently married. The EA submission supports an anti-discrimination exemption for religious bodies to train their ministers, but would also want a college like Morling which has a traditional orthodox view on human sexuality to have Pack on staff.
- Steff Lenz was fired by Covenant School in Northern Sydney after she came out as a lesbian. She offered to teach the school’s conservative views on human sexuality but wanted to “note” more progressive Christian viewpoints.
These stories indicate the range of complexity in maintaining the culture of educational bodies and balancing the employment rights of LGBTIQA persons and their allies.
Should Colvin have to teach what she does not believe? Should Lenz actively teach another brand of Christianity in a conservative school? Many quite conservative Christian or church schools would welcome her on both counts while maintaining a majority viewpoint – but is there room for schools who don’t wish to have competing doctrine taught? Can Morling College have the freedom to each conservative doctrine and Pack must be on their staff?
EA proposes that faith bodies should have an exemption from anti-discrimination law to train and appoint ministers. But the example of Karen Pack could be seen as cutting across the proposed exemption. Morling College trains ministers – and Pack’s anti-discrimination employment rights and the ability of the college to teach their orthodox beliefs collide.
EA suggests that the issues of exemptions to the SDA should be referred to an expert committee if a version of the religious discrimination bill is passed.
While EA sees the three women losing their jobs as unjust, it supports another person losing his job. The case of Doctor Jereth Kok is given as an example of a professional body acting – in EA’s view appropriately – against a person for comments outside of work. Kok has been banned from working as a doctor while the Medical Board investigates whether to ban him for longer. One of the 30 pieces of online commentary was an article in Eternity. How drastic should punishments be for causing offence?
Luke Beck, Associate Professor of Constitutional Law at Monash University and an expert on religious freedom and separation of religion and government under the Australian Constitution addresses the Bill’s protection of statements of belief. “The practical effect of [the relevant] section … is to give people a positive right to ignore other laws in order to make ‘statements of belief’ that insult, offend, ridicule or humiliate other people that would otherwise amount to unlawful discrimination.” He gives examples including
- An employer tells a gay worker “being gay is a form of brokenness” or a poster displaying those words is displayed in a workplace.
- A school principal tells a school assembly “trans people choose to reject God’s nature” or a poster displaying those words is displayed in a classroom.
- A childcare provider tells a single mother “God will judge you harshly for taking away the child’s right to have a father” or a poster displaying those words is displayed in a childcare centre.
- An employer points to a Catholic worker’s desk with a small picture of the Virgin Mary and says “look at that Catholic superstitious nonsense” or a poster displaying those or similar words is displayed in a workplace.
Beck argues that the Bill’s provision removing protection from”statements of belief’ when they are “malicious” “may be almost entirely useless.”
The Bill is too complicated in Beck’s view with some provisions unworkable in practice and others unconstitutional or leading to ongoing conflict.
Christians should be restrained from public comment on some topics according to a submission by Renae Barker, a law lecturer from the University of WA. For conservatives to understand her reasoning, a thought experiment might help – consider abortion where a religiously-based viewpoint that life begins at conception will inform a pro-life stance. Barker’s position is that conservative religious teachings on human sexuality cause real harm to LGBTIQ persons. In that light, she advocates that that the clause that protects “statements of faith be removed from the bill. Removing this clause “At most it may require [people of faith] to remain silent about certain religious beliefs while operating in the public sphere. While its exclusion may cause some frustration to those who hold strong religious beliefs the need to protect other vulnerable groups, such as members of the LGBTI+ community, must be weighed against that frustration. I believe that the balance, in this case, is in favour of allowing anti-discrimination law to limit the manifestation of these beliefs in the form of Statements of Belief which are discriminatory.”
Barker says just as Public Health required restrictions on religious freedom, to be restricted, “it may be necessary to limit the manifestation of religious belief in order to protect, inter alia, the rights and freedoms of others.”
Submissions from the progressive side tend to want to wind back current freedoms given to religious individuals and bodies, while conservative submissions want to strengthen them leaving little middle ground.
Rather than bring forward changes to the Sex Discrimination Act (the removal of exemptions), AHISA (the Association of Heads of Independent Schools of Australia) which represents a range of schools including the long-established high fee schools, argues that we should delay the bill.
Under the heading “Creating an opportunity for respectful dialogue” AHISA, a peak council of independent schools suggests”that further time be taken to ensure that the Bill can be considered at the same time as any proposed amendments to the federal Sex Discrimination Act 1984. It is important to explore the concerns of those who believe the Bill if enacted, would allow religious educational institutions to discriminate against staff and students.
“A delay would also allow time for expert advice to be sought by the Government to allay concerns such as AHISA’s that the Bill if enacted, could lead to vexatious legal contest and the potential for religious freedoms to be defined by case law.”
Schools are the potential battleground. Can Australia find a middle ground that allows religious bodies to maintain their identity, and take into account the rights of the LGBTIQ population?