The moment the Religious Discrimination Bill died there was no public outpouring of grief. This is not surprising. If you understood this proposed law only from the debate surrounding it rather than what was written in the legislation, you could be forgiven for thinking its main purpose was to allow religious schools to expel students because of their sexuality or gender.
Expelling kids for being gay, transgender or non-binary is something no one of good conscience wants to see, least of all people who run religious schools. It is antithetical to the notion that all children are created in the image and likeness of God. This was not the intention of the bill, nor what it would have done.
There was something else though, something important and fundamental, that we might have gained had the government found a way to deliver the law it promised four years ago. Melbourne’s Catholic Archbishop Peter Comensoli describes it in these terms: “A positive message that being a believer, holding to that belief and living by that belief is a valuable thing in our society.”
That this opportunity went begging, at a time when faith communities are feeling set upon by an increasingly secularist society, was “a little bit tragic”, the archbishop tells The Age and Sydney Morning Herald.
Peter Wells has worked in Christian education for a quarter of a century. For the past six years he has served as principal of the Chairo Christian School in Pakenham. Spread across five campuses in Melbourne’s south-east and Gippsland, the school is based on what it describes as an “uncompromising biblical foundation”. As Wells explains, religion is not a peripheral matter limited to a Monday morning chaplain service but central to the life and community of the school.
Queer kids are part of this community. The school’s statement of faith, which all prospective staff are expected to adhere to, makes clear that the school upholds a traditional view of marriage as a monogamous relationship between a man and a woman. Wells says it is offensive to suggest that his school would either discriminate against or expel a child whose sexuality or gender didn’t fit with this theological ideal.
Whilst we are quite rigorous in our selection of staff, we are an open enrolment school,” he says. “We have children from Christian homes and non-Christian homes and obviously, in a school population of our size, we have same sex-attracted kids and gender dysphoric kids. They are welcome. We want to walk with them, understand them and care for them in the same way we do for all of our students.”
This episode, as jaw-dropping as it was, had little to do with the Religious Discrimination Bill.
There are schools which take a different view. Citipointe Christian College, a Pentecostal school in the Brisbane suburb of Carindale, shocked Prime Minister Scott Morrison, who shares its faith, at the start of this school year when it distributed an enrolment contract stipulating that students must identify with their gender assigned at birth and reserving the school’s right to expel gay kids. The public backlash forced the school to withdraw the contract.
This episode, as jaw-dropping as it was, had little to do with the Religious Discrimination Bill. It raised a tangential concern about an exemption in federal sex discrimination law, in force for nearly a decade, which allows religious schools to decide which children they are prepared to educate on the basis of sexual orientation and gender identity. An expert panel commissioned by the federal government to conduct a review into religious freedom concluded that, while religious schools should have the right to preference students who uphold the religious convictions of their school, that right should be limited to protect the interests of the child and apply only to new enrolments, not existing students.
This is the issue which triggered a mutiny inside the Liberal Party and led to a series of amendments which ultimately prompted Prime Minister Scott Morrison to kill the bill. For faith-based educators, it was never the main game. What matters to them is the broader principles behind the religious discrimination legislation.
“Where the rubber really hits the road is our employment practises,” Wells says. “We have no interest in harming anyone with offensive statements or conduct. What we want to see established is our right to employ people who have a consistent worldview to ensure a consistent influence in the lives of children who are entrusted into our care. We want that to be seen as not only legal, but common sense.”
Freedom of religion is one of only a few rights expressly protected in the constitution. It is described by the High Court as the “paradigm freedom of conscience” and the “essence of a free society”. Australia, as a signatory to the International Covenant on Civil and Political Rights (ICCPR), is committed to preserving it. But as Australian Human Rights Commission president Rosalind Croucher noted in 2016, the common law provides little protection for it. Liberal MP Tim Wilson during his tenure as Human Rights Commissioner dubbed it the “forgotten freedom”.
Had the Religious Discrimination Bill found a way through the internal politics of the Liberal Party and a bitterly contested federal parliament, it would have added religion to sex, age, disability and race as attributes protected under Commonwealth law. State-based anti-discrimination laws cover religion in Victoria, Queensland, Tasmania and Western Australia but not in NSW and South Australia. For the first time, all people of faith would have been protected against discrimination in employment, education and provision of goods, services and access to government programs on the basis of religious belief and activity.
For faith-based schools, the proposed laws would have formally enshrined at a federal level their right, long exercised through carve-out provisions in anti-discrimination laws, to hire teachers and other staff who share their religious ethos. Religious school leaders believe this principle is under threat from a combination of secular law reform, most notably through recent changes to Victoria’s Equal Opportunity Act, and a campaign by gay and trans rights activists to challenge any rights and special privileges given to religious organisations.
Australia is not alone in wrestling with this. Ahmed Shaheed is the United Nations’ special rapporteur on freedom of religion. He warned four years ago, at the time Australia was embarking on its ill-fated legislative journey, that states which “intervene extensively, overzealously and aggressively in the manifestation of religion or belief” in an attempt to protect other rights such as gender equality or sexual orientation were at risk of breaching their commitment to the ICCPR.
Michael Stead, the Anglican bishop for South Sydney, wrote in a submission to a parliamentary inquiry into the Religious Discrimination Bill that Australia had a long-standing “live and let live” social compact which allowed people of all faiths to express their beliefs without fear of discrimination or persecution.
“This is now changing, and legal protections are necessary to protect people from religious discrimination,” he wrote, describing as an “extraordinary overreach” the Victorian government’s changes to its Equal Opportunity Act, which restrict religious schools’ right to preference employment to those circumstances where religion is an “inherent requirement” for the job.
The Victorian law, which came into force in December, galvanised the religious freedom movement. Victoria’s Attorney-General Jaclyn Symes said the previous exemptions for religious organisations were too broad and the change would “better protect LGBTIQ+ and other Victorians against discrimination”. Jacinta Collins, a former Labor senator who runs the National Catholic Education Commission, says the idea of a state government or a court assessing when faith matters and doesn’t matter in a religious school is a “significant incursion into church affairs by the state”.
“There is really no justification of it in a public policy sense,” she tells The Age and Herald. “If you have a pluralist school system where everyone has access to public education and families choose to provide a faith-based education for their children, that should be free to occur. Our biggest concern out of all this isn’t the treatment of kids, it’s arrangements which allow activists to try to compromise our capacity to provide faith-based education.”
For people of other faiths, the Religious Discrimination Bill promised protections of a different kind.
Executive Director of the Australia/Israel & Jewish Affairs Council Colin Rubenstein says Jewish people rely on community organisations to provide culturally compatible education, aged and disability care and these need to be managed by people who share their faith. Jewish communities are also experiencing a rise in what Rubenstein calls the “oldest hatred”, with the Executive Council of Australian Jewry’s annual report on anti-semitism in Australia last year recording a 35 per cent increase in incidents from the previous reporting period.
“To some extent, religion is under attack,” Rubenstein says. “Even though we have certainly had a record of religious freedom and tolerance in this country, the tide is moving in a problematic direction, and certainly for the Jewish community. There is a great concern about the resurgence of anti-semitism in recent times and the emergence of far-right extremism.”
One of the central concerns raised by critics of the bill was the “statement of belief” provision. This provision meant that a statement of religious belief, made in good faith according to the teachings of that religion, would not breach other existing anti-discrimination laws. This protection would not apply to any statement that was malicious or intended to threaten, intimidate, harass or vilify.
“Here’s something on the table, we want to take it, we want the benefit of it.” – Bilal Rauf, Australian National Imams Council
When Bilal Rauf, a spokesman for the Australian National Imams Council, appeared last month before a parliamentary committee, he was asked whether Muslim people were concerned that Islamophobia could be spread under the protection of this provision. His response was instructive.
“The greatest source of concern for us is as we saw with the manifesto by [Christchurch mass murder Brenton] Tarrant,” he said. “Statements coming from that angle and those perspectives, which are more real, which are actually occurring and which are widespread online.
“Here’s something on the table, we want to take it, we want the benefit of it. The minority faith communities, based on our interactions, want the benefit of it. If that goes off the table we are left again with nothing, as we started.″
Australian Association of Christian Schools executive officer Vanessa Cheng, whose organisation represents 120 schools across Australia, including the Chairo Christian School in Pakenham, lamented that once again religious freedom had been “kicked down the road”.
In late 2017, as Australians were being asked by postal survey whether the legal definition of marriage should be expanded to include same-sex couples, Father Frank Brennan was approached by then prime minister Malcolm Turnbull to consider an even thornier question; whether more needed to be done to protect religious freedom.
A Jesuit priest, law professor and human rights advocate who had publicly flagged he would be voting yes to gay marriage, Brennan was an obvious choice to help bring Australia’s piecemeal protections against religious discrimination into the post-survey era. Along with Croucher and former Federal Court judge Annabelle Bennett, he agreed to join the Religious Freedom Review chaired by long-serving Liberal MP Philip Ruddock.
Brennan says there was a clear need for the Commonwealth to introduce protections against religious discrimination. “What convinced us was that, if you look on paper at the coverage of discrimination law, this was the one notable deficiency at the federal level,” he says. “And in the public atmosphere, there seemed in the wake of the [postal survey] to be increasingly hostility and concern, particularly towards some Islamic groups and the more conservative evangelical Christian groups.” The panel also recommended changes to the Sex Discrimination Act to put tighter boundaries around the exemptions that existed for religious organisations.
The political problem was that, right from the start, the idea of what the proposed new law should do split the government. Where moderates supported “vanilla” religious discrimination legislation, conservatives wanted laws that codified a positive affirmation of religious freedom, something the expert panel had explicitly warned against. The risk inherent in such an approach was that religion might be seen to be protected at the expense of other rights.
The government sought to appease both sides of this divide. Some of Australia’s most established church groups and charitable organisations – the Uniting Church, parts of the Anglican Church, the St Vincent de Paul Society and the Sacred Heart Mission – believed they got the balance wrong. Uniting Church general secretary Colleen Geyer feared that proposed law would have a corrosive effect on society.
“We believe there are certain provisions in this bill that actually increase the likelihood of discrimination against people of minority faiths and also people from more vulnerable groups within society,” she told a parliamentary inquiry. “We believe it does this by privileging powerful religious voices at the expense of minority and vulnerable voices in society, which seems to be the exact opposite of its purpose, and by providing what we see as extraordinary and excessive religious exceptions.”
The review of existing anti-discrimination legislation, a separate but related process, was referred to the Australian Law Reform Commission. The ALRC was initially told to report by April 2020. Under the direction of then attorney-general Christian Porter this was pushed back to December 2020 and finally, to 12 months after the passage of the Religious Discrimination Act. Brennan says this was “absolutely perverse”.
“At Christmas 2018 we had them all sanctimoniously carrying on about ‘how dare kids be put at risk?’ and ‘this needs to be fixed immediately’. Nothing was done and here we are in 2022 and they still haven’t fixed it.”
Brennan became so disillusioned that he refused an invitation to make submissions to the most recent parliamentary inquiries, explaining that he had “lost all faith that the 46th Parliament will be able to resolve the deadlock on these issues”.
“Why in God’s name couldn’t there be a bipartisan approach with an open consultation process to get that set up?” he asks. “We were able to do it with racial discrimination and sex discrimination; why not with religious discrimination?”
The irony is there is bipartisan support to outlaw discrimination against religion. “I am certainly sad that this has been the outcome,” Comensoli said. “I think there is a collective sense of disappointment and bewilderment as to why this couldn’t be done.”
This article was first published in The Sydney Morning Herald and is republished here with permission.
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