The Queensland government has released a draft of a proposed new discrimination law for public comment. The proposed Anti-Discrimination Bill 2024 will make some radical changes to Queensland law, and of interest here is that it will seriously impact religious freedom in that State. One of the ways that religious freedom is protected in Australia is through the inclusion in discrimination laws of “balancing clauses” (provisions that balance the right not to be discriminated against, with the important right of religious freedom). But the new Bill will dramatically narrow those clauses.

I am pleased to present a guest blog post commenting on some religious freedom impacts of the draft Bill, from Dr Alex Deagon, an Associate Professor in the School of Law at QUT, and an internationally recognised researcher in religious freedom.

Summary

The proposed changes to the Queensland Anti-Discrimination Act seek to narrow further the already narrow religious exceptions. These changes are the most restrictive regime for regulating religious bodies in Australia and will significantly undermine the ability of religious organisations to employ persons in accordance with their faith, contrary to both international law and constitutional law. In particular, the ‘reasonable and proportionate’ standard is inappropriate because Article 18 of the ICCPR requires any restrictions on religious freedom to be ‘necessary’, not merely reasonable. The standard also requires a secular court to impose a theological definition of what is reasonable conduct on the basis of religion, which is a disturbing intrusion of the state into the church. Imposing a ‘genuine occupational requirement’ standard and reasonableness inquiry are not necessary restrictions on religious freedom and ignore the fact that for many religious organisations, they are trying to create a faith culture. This necessitates employment of persons who fit in that culture by believing and acting consistently with the requirements of the faith, not merely by having technical proficiency in the role. The proposed exceptions should be expanded by removing the genuine occupational requirement and reasonableness standards, and reframed by providing positive associational rights for religious organisations to select or preference persons for potential employment in accordance with the beliefs and practices of the organisation. Since the proposed changes are extremely narrow, they are inconsistent with the rights provided to religious organisations under the Commonwealth Sex Discrimination Act, and consequently they are likely to be invalid under s 109 of the Constitution.

Reasonable and Proportionate in the Circumstances

Clause 29 provides that one of the cumulative set of conditions for permissible discrimination is whether discrimination is ‘reasonable and proportionate in the circumstances’. This is an inappropriate standard in the context of religious freedom for two reasons. First, Article 18(3) International Covenant on Civil and Political Rights (ICCPR) requires a ‘necessity’ standard to restrict the right to religious freedom, which is a higher standard than ‘reasonable’.

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. Article 18 of the ICCPR reflects this:

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.

Note in particular 18(4), which obliges states to have respect for the liberty of parents to educate their children in conformity with religious convictions without limitation. One significant method of achieving this obligation is facilitating the ability of faith-based schools to educate in accordance with their faith-based ethos as parents may wish to choose this. Religious liberty in principle, and with particular regard to associated actions such as the freedom to manifest religion in groups and publicly through creating educational organisations, is subject only to legal limitation which is necessary (not merely “reasonable”) to protect public safety, order, health, morals or fundamental rights and freedoms of others.  This is a high threshold which requires substantive proof before any legal limitation is appropriate.

The fundamental question is why religious schools should be permitted to discriminate. Or, to rephrase the question in a less pejorative way, why should religious schools have a positive right to select and regulate the school community, including staff and students? The answer is because it allows the school to maintain a distinctive religious ethos. As mentioned earlier, Article 18(4) of the ICCPR obliges nations to have respect for the liberty of parents to educate their children in conformity with religious convictions. One significant method of achieving this obligation is facilitating the ability of faith-based schools to educate in accordance with their faith-based ethos as parents may wish to choose this. Framed as a legal right to select, allowing faith-based schools to select staff designed to consistently uphold this ethos is an essential aspect of maintaining the ability to educate in accordance with an ethos. Australia is fulfilling its international obligations by enabling faith-based schools to choose staff in accordance with their religious convictions.

In Queensland, this high standard would not be reflected in requiring organisations to demonstrate that allegedly discriminatory conduct is reasonable and proportionate. Instead, the burden should be on the state of Queensland to demonstrate that any limitation on religious freedom is necessary. Unfortunately, it ought to be noted that this neglect of international human rights standards with respect to religious freedom is also present in the Qld Human Rights Act, which has the lower ‘reasonableness’ (see s 13) standard in contravention of 18(3) ICCPR, as well as ignoring 18(4) completely.

The second reason the reasonableness standard is inappropriate is because it requires a court to assess whether allegedly discriminatory conduct on the basis of religion is reasonable, which is in effect asking a secular court to impose a theological finding. This is a significant intrusion of the state into the church. An exemption or right which places the decision in the hands of a secular tribunal to decide whether an occupational requirement is ‘genuine’, or a discriminatory action is ‘reasonable’, runs significant risk of imposing a secular perspective on a theological question, which would severely undermine the religious freedom of groups. (See this paper from Neil Foster commenting on this issue.) Determining these issues are questions of fact in any given situation and courts should accept the testimony of the religious groups on this rather than being empowered to act as a secular arbiter of a theological dispute, which would damage religious freedom by imposing the views of the secular state on a religious community.

Genuine Occupational Requirements

Clause 29 further provides that discrimination is only permitted where participation in the observance and practice of the religion is a genuine occupational requirement, and the person cannot satisfy this requirement due to their religious belief or activity (in conjunction with the aforementioned requirement that discrimination be reasonable and proportionate in the circumstances). 

The ‘genuine occupational requirement’ standard is too narrow to allow religious organisations to employ someone consistent with their faith. It perpetuates the ‘only a principal and chaplain need to be religious’ stereotype and ignores the fact that, for example, religious schools are trying to create a culture of faith. A culture of faith requires a critical mass of staff who share the beliefs and practices which undergird the school. Furthermore, the explicit prohibition of discrimination on the basis of other attributes, such as sexuality attributes, ignores the fact that there are animating religious beliefs and practices around sex which can render persons inappropriate for employment in a religious context. As already suggested, as drafted these requirements are cumulative: a successful defense must establish that there is a genuine occupational requirement that can’t be met due to religious belief or activity AND the discrimination is reasonable and proportionate, making the argument for an impugned religious body even more onerous. It is also disturbing that the consultation guide refers to the maligned ALRC Consultation paper recommendations as broadly consistent to support the changes, when that paper prompted a strong reaction from religious organisations which led the Prime Minister and the Education Minister to distance themselves from that framework.

The broad definition of religious freedom under international law means the actions associated with the principle of religious liberty extend not just to belief and worship, but also to teaching, propagation, identifying conditions of membership and standards of conduct, and appointing officers, leaders and employees. Such practices are all protected, even if the organisations are formed for broader social, commercial or educational purposes. These insights provide a persuasive basis for allowing religious schools the autonomy to choose employees and students who uphold their doctrines in belief and conduct. A religious school may want to preserve their distinctive identity as religious in order to be a community which approaches questions of education from that particular religious perspective. Indeed, they may see the practice of education itself as a religious injunction which is to be performed in accordance with their religious convictions. So it is not enough for only the headmaster and religious studies teacher to uphold Christianity, for example. The entire community is designed to cultivate a consistent ethos. Maintaining this religious identity allows the school to present a unique perspective in a democracy, and legally compelling them to accept employees or students with views or conduct inconsistent with that perspective undermines their religious identity and, consequently, their democratic position as equal and valued citizens. Facilitating this action affirms the unique, equal and valued position of religious people and communities as citizens.

Hence religious communities have the right to determine their own structure, membership, policy, objectives and so on.

‘Selection of leaders is one of the very core aspects of religious association autonomy… religious bodies have the right to reject candidates for ministry or discipline or expel an existing pastoral minister even if the grounds for doing so appear to liberals (and others) to be archaic, illiberal or bigoted. The grounds for selection and dismissal are matters within the province of the religious community, and it alone, to decide’.

Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (Oxford University Press, 2011 2^nd ed) 395.

Any state remedies would be invasive and destructive to religious freedom and, indeed, the separation of church and state and democracy itself; state-determined appointment or dismissal of religious leaders, and/or penalties for non-compliance, are hallmarks of authoritarian and religiously repressive regimes.

To further illustrate this point, it would be absurd for anti-discrimination law to compel the Queensland Labor Party to hire anyone and everyone regardless of their beliefs and practices. These changes applied to the context of political parties would mean any position within the party or staffing could be held by a person with technical proficiency regardless of whether their beliefs and practices align with the party. If we do not enforce such an obligation on political parties, it is distinctly unequal and unfair to impose it on religious associations, and demonstrates an anti-religious bias. So Parkinson argues that implementing genuine occupational requirements grounded in secular understandings of religion would ‘greatly reduce the freedom of religious organisations to have staffing policies consistent with their identity and ethos’ (Patrick Parkinson, ‘The Future of Religious Freedom’ (2019) 93(9) Australian Law Journal 699, 702.) Many schools see their religious ethos as central to the educational mission of the school and believe this requires staff to believe and act consistently with that ethos.

This includes both staff who are involved in leadership and direct teaching (such as the principal and teaching staff), and staff who are involved in administration and maintenance (such as receptionists and groundskeepers). The mathematics teacher can be a religious mentoring and guidance position which acknowledges the beauty and precision in the understanding of God’s creation, and the groundsman can be a religious mentoring and guidance position in the cultivation and care of God’s creation, just as much as the religious studies teacher is a mentor and guide in understanding religion. It might be objected that schools should only be empowered to select or preference the former kind of ‘core’ staff, but there is no simple line between core and non-core staff when it is possible that all staff will be interacting with students and having conversations about religious matters. It is entirely possible that students may strike up a conversation with a receptionist or a groundskeeper, and if in the course of that conversation the student discovers the staff member believes or acts inconsistently with the school ethos, this could significantly undermine the consistent propagation of the school ethos. This does not mean it will always be possible for schools to hire such a staff member. The exigencies of the education industry and the particular circumstances of the school may mean it is necessary for the school to temporarily hire a person who does not fit the school ethos. This does not mean adherence to the ethos is not a genuine occupational requirement to work at the school on a permanent basis. That is why a right to preference staff in accordance with an ethos is just as important as a right to select – this recognises the realities of needing to provide a specialised service while not undermining the religious ethos which is the foundation and framework for providing that service. As such, rather than exemptions, including for genuine occupational requirements only, the law should be expressed as a positive associational right allowing schools to select and preference staff, which would also be consistent with international law.

Other Clauses

Clauses 61-62 appear to provide some flexibility for roles and acts of religious bodies but requires the same problematic ‘reasonableness’ standard. However, there is a much more significant problem. Clauses 61 and 62 specifically exclude work and education. This has the effect that Clause 29 applies to the employment of clergy. This results in the absurd and frankly repugnant position that a religious organisation is able to select, train and appoint a minister, but a religious organisation must adhere to the Clause 29 requirements in the paid employment of that minister. For example, a religious organisation would not be able to refuse to employ a minister, or terminate the employment of a minister, if they acted inconsistently with the doctrine of that religion through engaging in an extramarital affair or a gender transition. As noted above, this egregious state interference in the autonomy of religious organisations to select leaders is contrary to international law and a hallmark of authoritarian and religiously repressive regimes.

Clause 29- Possibly Invalid under Section 109 of the Constitution

Section 109 of the Constitution provides that if there is an inconsistency between a State law and a Commonwealth law, the State law will be invalid to the extent of the inconsistency. One of the ways that inconsistency can exist is a direct inconsistency where a state law detracts from or impairs a right granted under a Commonwealth law, or otherwise undermines a Commonwealth law. This is clearly the case in this situation. Sections 37 and 38 of the Commonwealth Sex Discrimination Act permit discrimination by religious organisations on the basis of sexuality attributes which is in good faith and in accordance with the doctrines of the religion. Proposed Clause 29 of the Queensland Anti-Discrimination Actspecifically excludes this ability and, as explained, imposes a much narrower regime on religious organisations which will significantly curtail their ability to select and preference staff in accordance with their religious doctrine compared to what is allowed under the Commonwealth law. The Queensland law therefore detracts from and impairs a right granted under Commonwealth law, undermining the operation of the Commonwealth law. Consequently, there is a strong argument that Clause 29 would be inconsistent with the Commonwealth SDA and therefore invalid under s 109 of the Constitution, as Neil Foster has argued in much more detail with similar legislation in other states. (See Neil Foster, Religious Freedom, Section 109 of the Constitution, and Anti-discrimination Laws (2022) 1 Australian Journal of Law and Religion 36.)

Conclusion

The proposed changes to the Queensland Anti-Discrimination Act are contrary to international law and likely constitutionally invalid. Instead, the anti-discrimination exemptions should be reframed as positive associational rights. What religious schools really need is a 

…freedom to conduct their educational functions through a curriculum and in a manner which is consistent with their religious ethos, delivered by and within a community of like-minded others. Their wish is to make suitable appointments based on the alignment of fundamental beliefs and practices… Substitution of legislation to similar effect, in place of the existing schools exemptions, could remove some of the impassioned hostility from current debate, in particular by enabling them to require employees to act in a manner that demonstrates loyalty to their religious ethos, rather than misplaced sexuality-focused exceptions and exemptions.

Nicholas Aroney and Paul Taylor, ‘The Politics of Freedom of Religion in Australia: Can International Human Rights Standards point the way forward?’ (2020) 47(1) University of Western Australia Law Review 42, 61-62.

Positive associational rights would enable schools to select and preference staff consistent with their religious and institutional ethos, and to enforce generally applicable procedures and rules with regard to student advocacy, conduct, dress and so forth. An example might be inserting a provision to provide employment rights to organisations established for a particular religious purpose or social cause, which would legally affirm the freedom of religious communities to choose or prefer members who adhere to the ethos of the organisation in their beliefs and conduct.