Freedom to discriminate

Section 116 of the
Australian Constitution states:

“The Commonwealth shall not make any
law for establishing any religion, or for imposing any religious observance, or
for prohibiting the free exercise of any religion, and no religious test shall
be required as a qualification for any office or public trust under the
Commonwealth.”1

This guarantees
religious freedom in Australia, despite doubt arising as to the value of anything
guaranteed by the Constitution, given the government’s cavalier attitude to Section
44 of it2. So what is the Government on about with regard to what it
calls ‘religious freedom’ legislation?

The government instituted
a ‘religious freedom’ review by a panel chaired by former Howard minister
Philip Ruddock. This panel reported its findings to the government in the first
half of 20183. The panel came up with 20 recommendations (see
appendix 1).

These recommendations fall
into several groups. These are:

Making
sure all jurisdictions’ laws are compatible with Commonwealth law: Recommendations
1, 16, 20

This is a matter of making sure that the laws and exemptions to those
laws are consistent across all jurisdictions within Australia, as there are
numerous instances where such laws are incompatible with those suggested.

Limitations:
Recommendations 2, 3

This is to make sure that any changes to the legislation are consistent
with international law and international covenants, such as the Siracusa
Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights4.

Maintaining
the ability to indulge in hate-speech: Recommendations 4, 15.

Despite the government attempting to threaten charities advocating for
the poor or anyone else who is disadvantaged, a charity advocating against
same-sex marriage will not be disqualified. The way this is worded in Recommendation
4 is as advocacy for ‘traditional marriage’. This is simply code for advocating
discrimination against same-sex couples. It is hate speech in that it argues
that same-sex couples are not worthy of being able to marry. If any
heterosexual married couple had their marriage devalued by the fact that a
couple up the road was in a same-sex marriage, I haven’t met any. Indeed, one
could ask the same people if the fact that the Netherlands has had same-sex
marriage for 18 years has affected their marriage. If the answer differs for
either question, on should ask why. Is it solely a matter of distance? Neither
have affected my marriage in the slightest. Recommendation 15 suggests either
emending the Racial Discrimination Act or enacting a Religious Discrimination
Act, to prevent discrimination on the basis of a person’s ‘religious activity’,
which presumably would include something like Folau’s transgressions. Whether
such ‘religious activity’ can be prevented by including them in a person’s employment
remains to be seen, but I suspect is unlikely.

Maintaining
the ability to discriminate: Recommendations 5, 6, 7, 8, 9, 10, 11, 12.

As I have suggested elsewhere, this is mostly what ‘religious freedoms’
are about: the continued ability of the religious to discriminate5.
Unsurprisingly it is largely to do with sexuality, something that greatly
occupies the prurient minds of the religious. Recommendation 5 would allow discrimination
against employees or prospective employees of religious schools on the basis of
sexuality, gender or relationship status. Recommendation 6 would prevent
discrimination against current religious school employees, except in the case
of homosexuality. Recommendation 7 would allow discrimination against students
or prospective students on the basis of sexuality, gender or relationship
status. Recommendation 8 would prevent discrimination against current students
except in the case of homosexuality. Recommendation 9 would allow children to be
removed from class on religious or moral instruction, but this is followed by
an odd statement stating that the rights of the child need to be considered “including
to received information about sexual health, and their progressive capacity to
make decisions for themselves.” This indicates that that they aim to make it
difficult to withdraw the child, and suggests that the request may be denied.
Recommendation 10 states that marriage celebrants should be made aware of their
rights to refuse to officiate at same-sex ceremonies. Recommendation 11 states
that the beliefs of minor sects or cults should be accounted for.
Recommendation 12 states that religious schools can discriminate against
same-sex couples when considering whether to hire out their facilities.

Abolition
of blasphemy as an offence: Recommendations 13, 14

This is a surprisingly bright spot in these recommendations, but on the
surface, it is really not that important, as the last prosecution for blasphemy
was in 19196. However, to prevent the religious nutters in
government from using these to punish those who ridicule their bizarre beliefs,
it may be important to pre-empt any such possibility by getting rid of these
laws.

Propaganda
etc.: Recommendations 17, 18, 19

Recommendation 17 suggests collecting data on
the experience of religious freedom in Australia, including violence,
harassment, discrimination, etc. I expect that this would be something worth
doing before there was any thought about legislating more discrimination. It
will be funny to watch how things transpire in parliament, now Pauline Hanson
has realised that any religious freedom legislation will ‘protect’ Islam as
much as it will Christianity7. Recommendation 18 concerns ‘religious
engagement’ and public education about human rights and religion. Mentioning
human rights is rich coming from a government which seems unconcerned about
incarcerating asylum-seekers, including children, seemingly interminably,
keeping the unemployed below the poverty line, allowing pensioners to sink
below the poverty line, and allowing homelessness to increase on its watch such
that now 116,000 Australians are homeless8. Recommendation 19
suggests that the Human Rights Commission lead the protection of religious
freedom.

The government has
responded to the Ruddock Review and has stated that it accepts the central
conclusion of the review. It states that it accepts directly or in principle 15
of the 20 recommendations, but accepts the principles underpinning the
remaining 5 recommendations. Fourteen recommendations (2, 3, 4, 9-14, 16-20)
are to be implemented as soon as possible. Recommendation 15 is to be
implemented after seeking bipartisan support. Five recommendations (1, 5-8) will
require further consideration by the Australian Law Reform Commission (ALRC)3.

From this, it is clear
that in addition to making sure all the laws are compatible across
jurisdictions (Recommendations 16, 20), the government realises that it needs
to appear to toe the line with regard to human rights (Recommendations 2, 3).
It also is quite happy to allow the continuation of hate speech (Recommendation
4), and discrimination against same sex couples (Recommendations 10-12). It
will remove blasphemy as an offence (Recommendations 13, 14), and will indulge
in propaganda (i.e. public education) (Recommendations 17-19). Provisions
allowing discrimination against employees and students in religious schools
(Recommendations 5-8) are being reviewed by the ALRC. So, as can be seen from
the government reaction to the Ruddock Review, the most important thing for the
religious is to allow them to discriminate against same-sex couples and individual
homosexuals. This is just another rearguard action by the religious as their
bigotries are being eroded by the advancement of society.

Tasmania became the
last Australian state to decriminalise sex between consenting adult men in
private. This stemmed from an effort across the state with a public education campaign
which raised the support for reform from 33% in 1988 to 60% in 1997. This was
the highest level of support for homosexual law reform in any Australian State.
The law finally changed in 19979. In 1994, the Coalition Minister
for the 19th Century, Eric Abetz, argued against the
decriminalisation of homosexuality in Tasmania saying that it was the thin end
of the wedge. He also stated that the same sex marriage vote in 2017 was the
thin end, presumably, of the same wedge10. These statements are
true, in that they are the wedges which are leading us to a more equal, less
discriminatory society. This sad attempt at legislating the churches’ ability
to discriminate is just another hurdle to be overcome in the progress towards a
modern society. As Robert Heinlein said “Almost any sect, cult, or religion will legislate its creed into law if
it acquires the political power to do so.” Now, the Morrison government
believes it has that power, and it is replete with religious nutters. If we let them get away with this, it will
take us longer to get where we want to go, and we will only have ourselves to
blame.

Sources

Appendix 1: Ruddock
Review Recommendations

Those
jurisdictions that retain exceptions or exemptions in their anti-discrimination
laws for religious bodies with respect to race, disability, pregnancy or
intersex status should review them, having regard to community expectations.
Commonwealth,
State and Territory governments should have regard to the Siracusa Principles
on the Limitation and Derogation Provisions in the International Covenant on Civil
and Political Rights when drafting laws that would limit the right to freedom
of religion
Commonwealth,
State and Territory governments should consider the use of objects, purposes or
other interpretive clauses in anti-discrimination legislation to reflect the
equal status in international law of all human rights, including freedom of
religion.
The
Commonwealth should amend section 11 of the Charities Act 2013 to clarify that
advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying
purpose’.
The
Commonwealth should amend the Sex Discrimination Act 1984 to provide that
religious schools can discriminate in relation to the employment of staff, and
the engagement of contractors, on the basis of sexual orientation, gender
identity or relationship status provided that: (a) the discrimination is
founded on the precepts of the religion, (b) the school has a publicly
available policy outlining its position in relation to the matter and
explaining how the policy will be enforced and (c) the school provides a copy
of the policy in writing to employees and contractors and prospective employees
and contractors
Jurisdictions
should abolish any exceptions to anti-discrimination laws that provide for
discrimination by religious schools in employment on the basis of race,
disability, pregnancy or intersex status. Further, jurisdictions should ensure
that any exceptions for religious schools do not permit discrimination against
an existing employee solely on the basis that the employee has entered into a
marriage.
The
Commonwealth should amend the Sex Discrimination Act to provide that religious
schools may discriminate in relation to students on the basis of sexual orientation,
gender identity or relationship status provided that: (a) the discrimination is
founded on the precepts of the religion, (b) the school has a publicly
available policy outlining its position in relation to the matter, (c) the
school provides a copy of the policy in writing to prospective students and
their parents at the time of enrolment and to existing students and their
parents at any time the policy is updated and (d) the schools has regard to the
best interests of the primary consideration in its conduct.
Jurisdictions
should abolish and exceptions to anti-discrimination laws that provide for
discrimination by religious schools with respect to students on the basis of
race, disability, pregnancy or intersex status.
State and
Territory education departments should maintain clear policies as to when and
how a parent or guardian may request that a child be removed from a class that
contains instruction on religious or moral matters and ensure that these
policies are applied consistently. These policies should: (a) include a requirement
to provide sufficient, relevant information about such classes to enable
parents or guardians to consider whether their content may be inconsistent with
the parents’ or guardians’ religious beliefs, and (b) give due consideration to
the rights of the child, including to receive information about sexual health,
and their progressive capacity to make decisions for themselves.
The
Commonwealth Attorney-General should consider the guidance material on the
Attorney-General’s Department’s website relating to authorised celebrants to ensure
that it uses plain English to explain clearly and precisely the operation of
the Marriage Act 1961. The updated guidance should include (a) a clear
description of the religious protections available to different classes of
authorised celebrants, and (b) advice that the term ‘minister of religion’ is
used to cover authorised celebrants from religious bodies which would not
ordinarily use the term ‘minister’ including non-Christian religions.
The
Commonwealth Attorney-General should consider whether the Code of Practice set
out in Schedule 2 of the Marriage Regulations 2017 is appropriately adapted to
the needs of smaller and emerging religious bodies.
The
Commonwealth should progress legislative amendments to make it clear that
religious schools are not required to make available their facilities, or to
provide goods or services, for any marriage, provided that the refusal: (a) conforms
to the doctrines, tenets or beliefs of the religion of the body, or (b) is
necessary to avoid injury to the religious susceptibilities of adherents of
that religion.
Those
jurisdictions that have not abolished statutory or common law offences of
blasphemy should do so.
References
to blasphemy in the Shipping Regulations 1981, and in State and Territory
primary and secondary legislation, should be repealed or replaced with terms
applicable not only to religion.
The
Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious
Discrimination Act, to render it unlawful to discriminate on the basis of a
person’s ‘religious belief or activity’, including on the basis that a person
does not hold any religious belief. In doing so, consideration should be given
to providing for appropriate exceptions and exemptions, including for religious
bodies, religious schools and charities.
New South
Wales and South Australia should amend their anti-discrimination laws to render
it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’
including on the basis that a person does not hold any religious belief. In
doing so, consideration should be given to providing for the appropriate exceptions
and exemptions, including for religious bodies, religious schools and
charities.
The
Commonwealth should commission the collection and analysis of quantitative and
qualitative information on: (a) the experience of freedom of religion in Australia
at the community level including – (i) incidents of physical violence, linked
to a person’s faith, (ii) harassment, intimidation or verbal abuse directed at
those of faith, (iii) forms of discrimination based on religion and suffered by
those of faith, (iv) unreasonable restrictions on the ability of people to
express, manifest or change their faith, (v) restrictions on the ability of
people to educate their children in a manner consistent with their faith; (b)
the experience of freedom of religion impacting on other human rights, and (c)
the extent to which religious diversity (as distinct from cultural diversity)
is accepted and promoted in Australian society.
The
Commonwealth should support the development of a religious engagement and
public education program about human rights and religion in Australia, the
importance of the right to freedom of religion and belief, and the current
protections for religious freedom in Australia and international law. As a
first step, the Panel recommends that the Attorney-General should ask the
Parliamentary Joint Committee on Human Rights to inquire into an report on how
best to enhance engagement, education and awareness about these issues.
The
Australian Human Rights Commission should take a leading role in the protection
of freedom of religion, including through enhancing engagement, understanding
and dialogue. This should occur within the existing commissioner model and not
necessarily through the creation of a new position.
The Prime
Minister and the Commonwealth Attorney General should take leadership of the
issues identified in this report with respect to the Commonwealth, and work
with the States and Territories to ensure its implementation. While the Panel
hopes it would not be necessary, consideration should be given to further
Commonwealth legislative solutions if required.

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