What do we want? Freedom. When do we want it? Now

PLUS: Christian leaders respond to front-line issues of religious practice

The young teacher was pregnant and unmarried so the Christian school sacked her. A church-based welfare agency put in a submission to a federal government inquiry suggesting that they should be able to keep LGBT people out of an aged care facility. And then there are the famous bakers who don’t want to create certain wedding cakes. A street preacher is taken before an anti-discrimination commissioner for summarising the Bible’s verses on LGBT people. A religious charity has been told that it can’t insist that its local leaders must belong to the denomination that founded it.

These are all real-world examples that form the background to Prime Minister Malcolm Turnbull setting up an expert panel to “examine whether Australian law adequately protects the human right to freedom of religion.” The terms of reference ask the panel to:

  • consider the intersections between the enjoyment of the freedom of religion and other human rights,
  • have regard to any previous or ongoing reviews or inquiries that it considers relevant, and
  • consult as widely as it considers necessary.

It is fair to say that “consult as widely as necessary” is exactly what a lot of Christian groups, ranging from conservative to liberal, are doing now. Eternity has spoken to a lot of them – and they are working through whether they are of a common mind. More rather than fewer submissions can be expected.

Religious freedom outcomes are messy, even unpredictable.

Here’s how our real-world examples worked out. The young unmarried teacher stayed sacked. The school in country Queensland used the vehicle of an industrial agreement to support a code of conduct. It was robust enough to make the sacking stick. Leaders from church-based schools that this writer discussed the case with, were horrified at how the school had handled things.

The welfare agency got a bloody nose just as Kevin Rudd replaced Julia Gillard when the Sex Discrimination Amendment Bill was passed. It banned faith-based providers from accessing their services based on their sexual orientation.

A gay cake case has made its way up to the US Supreme Court. Gay couple, David Mullins and Charlie Craig, backed by the American Civil Liberties Union are suing Jack Phillips of Masterpiece Cakeshop, who is supported by the Trump administration.

In Tasmania, Cornerstone Church member David Gee who is a street preacher and Campbell Markham (Gee’s pastor) are before the Tasmanian Anti-Discrimination Commissioner for David’s  preaching in a Hobart mall, and Campbell’s blogposts.

The Queensland branch of the St Vincent de Paul Society has been told by the State Anti-Discrimination Board that it is not a religious body, and so cannot require that local board presidents be Catholics.

If our real-world examples show anything, they show that religious freedom outcomes are messy, even unpredictable. This is despite Section 116 of our Constitution, which states that the Commonwealth may not make any law “prohibiting the free exercise of religion.”

But as George Williams, the Dean of Law at the University of NSW wrote in the Sydney Morning Herald, “Section 116 has proved to be a frail and ineffective shield. Despite several attempts, the High Court has never been convinced to use this section to strike down a law.”

Williams adds, “Australian law fares poorly when it comes to religious liberty. The International Covenant on Civil and Political Rights spells out the international consensus on the need for protection. This is reflected in the national laws and constitutions of every democracy except Australia.”

The desire for religious freedom to be a positive right … will form the heart of a number of submissions.

It would be really unfortunate if the International Convention is excluded from consideration just because it became part of the rancorous same-sex marriage debate in parliament. Senator Brandis attempted to incorporate the first part of Article 18 (see below) as an amendment during the debate.

But the Convention’s articles are well worth considering in the more considered debate about religious freedom that we are now having. Article 18 summarises religious freedom this way:

  1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
  2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
  3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
  4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.

The desire for religious freedom to be a positive right – not merely a list of exemptions to other existing anti-discrimination provisions –  will form the heart of a number of submissions to the Religious Freedom Panel.

George Williams and others such as the Greens (if either of them make submissions to the panel) will be arguing for a bill or charter of rights that will balance religious freedom against other freedoms. This is likely to save the religious freedom discussion from the grave risk of becoming a replay of the same-sex marriage debate. It is clear that supporters of same-sex marriage being legal can also be supporters of religious freedom.

There has been a big shift in Christian opinion.

Christians have a history in Australia of opposing a bill of rights. Patrick Parkinson, Sydney University professor of law, recorded a long list of opponents to the National Human Rights Consultation in 2009. This includes the Australian Christian Lobby, Presbyterian Church of Australia, Baptist Union, Sydney Anglicans, and strong reservations from the Association of Christian Schools. The Catholics reserved their opinion. The Uniting Church and the Society of Friends (Quakers) were the only groups to give unqualified support.

All the above groups are now likely to support enacting a right to religious freedom, within a list of rights or not. There has been a big shift in Christian opinion. The calculation Christians have to make is whether they will fare better under a group of rights (because just enacting one right seems unlikely) than the current situation where Christians appear to be losing freedoms (or fear they will).

But some groups will be nervous. Low-fee Christian schools have enjoyed a wide range of rights up till now. This includes our Queensland example of maintaining a code of conduct under industrial law. Some schools wish to insist that all employees are Christians. This means they go beyond the bounds of the current exemptions in anti-discrimination legislation which allow religious schools to employ only Christians using an “inherent requirements of the job” test. Some wish to insist that the gardener, catering and cleaning staff are Christians. Other schools will wish the right to employ only Christians where they wish to – where they see somewhat of an “inherent requirement.”

There are some religious freedom rights that the vast majority of Christians will want to support. Freely preaching from the Bible, currently under challenge in Tasmania, is one. The ability to form a religious society, which was abrogated in Queensland, is another.

There are others, such as the freedom to employ only Christians in a school, where even theologically conservative Christians have different views.

Freedom: The Schools question

The independent schools sector may be Australia’s largest employer that deliberately hires Christians as a matter of policy in Australia. They hire many more people than churches. For this reason, schools form the front line when talking about religious freedom.

Eternity asked “Should a Christian school be allowed to hire *only* staff who profess a Christian faith?”

Mark Spencer
Christian Schools Australia

Schools are more than classrooms; not just teachers are involved in education. It truly ‘takes a village to raise a child’ and everyone in the Christian school ‘village’ must model and share their faith. Everyone needs to understand the great story of hope and redemption we have in the gospel message and be able to share that hope with students and families in all the little daily interactions that occur.

The relationships in a Christian school, between teachers, other staff, students and parents are as important as the formal curriculum. All staff bear witness to Christ working in their lives.

Michael Kellahan
Freedom for Faith

Yes, faith-based schools should be free to discriminate like this. There is rational, appropriate discrimination as well as arbitrary, unjustified discrimination. A Christian school choosing to employ solely Christian staff isn’t irrational or bigoted. (Of course, many Christians schools will disagree with this hiring policy and they have every right to do so.)

Choosing who will teach children and model Christian virtues is key to maintaining the Christian ethos and identity and mission of the school. This is an appropriate application of the rights of freedom of religion and association. If this positive right were guaranteed by law, then the need for exemptions which permit discrimination against a person because he or she has a certain characteristic would be greatly diminished.

John Collier
Principal, St Andrew’s Cathedral school, Sydney

It is critical that schools which maintain an integrated approach to Christian Education be permitted to hire only Christian staff. An integrated approach to Christian Education requires all staff to be involved in the carriage of Christian faith as the school seeks to minister to students and parents. Accordingly, each subject area will attempt to skilfully and authentically protect world views related to syllabus and texts from a Christian standpoint. Only staff who are Christian can fully conceptualise and grapple with this difficult task. The alternative, employing staff who do not adhere to a Christian position, is that words and lifestyle may undermine the Christian message of the school, causing confusion among students. Moreover, the lifestyle and Christian pastoral care of non-teaching staff needs to provide clarity emanating from the Gospel.

Lyle Shelton
Australia Christian Lobby

It is vital that Christian schools remain free to positively discriminate in favour of staff who will uphold the Christian faith. It is vital that Muslim and Jewish schools also retain this freedom. The only real pressure point impacting this long-held freedom comes from leaders of the same-sex marriage movement such as Rodney Croome and Alex Greenwich. Both men and their wider political movement are relentlessly lobbying to have this freedom removed. This would deprive Christian schools of their missional distinctive and rob many parents of their wish for their children’s education to be conducted in the context of Christian community.

Angus McLeay

Religiously-based organisations have a vital role to play in the civic life of the community. They work in the context of community norms and standards enshrined by general law. Religious bodies are afforded additional legal space for the expression of religiously-based values and objects. Such space commonly takes the form of ‘religious exemptions’. These provide religious bodies the freedom to vary from community expectations in some areas of anti-discrimination law.

In circumstances where religious bodies feel it is necessary to do so, it is appropriate that they are explicit about how and why. In this way, religious groups will minimise unnecessary confusion or even possible friction with the community. Being explicit is especially important when bodies provide commercial and public services, and in the employment of staff.

Employment exemptions are especially controversial, partly because exemptions currently apply in a wholesale fashion, rather than being tailored by religious bodies to their specific needs. In contentious areas, where the rights of others are at stake, religious bodies that wish to rely on exemptions may avoid confusion by expressly linking their values to exemptions, as is commonly done by other community groups.

Angus McLeay is an Anglican minister based in Melbourne. He writes and speaks on human rights and discrimination.

David Hastie
Alphacrucis College, Sydney

As part of Australia’s richly diverse suite of educational options, Christian-affiliated schools offer an alternative vision and mission for education, built along a rich ancient, unifying narrative about the world and self. This has been hugely attractive to many Australian families, religious and non, with now 1.25 million enrolments in Christian-affiliated schools, the fifth highest percentage in the world. The right to exclusively hire staff who embrace and embody a unified vision lies at the core of cultural for any successful organisation. Given the huge size of the sector, protecting this as an industrial right in Christian schools in particular, now lies at the core of Australian religious freedoms in general. Objections to it, as far as I can see, have little to do with education, but much about systematically stamping out Christianity from Australian public life. I suggest a civil co-existence, guaranteed by law, might be more useful for everyone involved.

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