The Religious Freedom Review Panel, chaired by the Hon Philip Ruddock, has invited submissions from all Australians on the protection of religious freedom in Australia. Submissions are being accepted until 14 February 2018. I attach a copy of my submission here: Submission on Religious Freedom Protection for RF Review Expert Panel (with permission of the Review Panel), and one of its attachments: Foster Attachment 1- Religious Freedom in Australia overview 2017. (There is a second attachment which I will release later, as it is a copy of a paper I am presenting at a conference in a couple of weeks.) Those who are interested in the area may find it helpful to see the sort of topics that I think ought to be addressed.
Can a Christian secondary school require that its teachers not openly advocate a sexual lifestyle that is contrary to the Bible’s teaching? Can an Orthodox Jewish preschool ask its teachers to live in accordance with Orthodox moral principles? Can a Protestant church refuse to hire someone to act on its behalf in political advocacy when that person does not share their religious beliefs?
These are all issues that have come up in recent months. Two of them are dealt with in decisions in connection with judicial proceedings, one in the UK and one from the European Court of Justice. One has been raised by media reports in Australia. In this post I want to flag these three cases briefly and to comment on the issues they raise for religious freedom, and how they should be resolved.
Australia is in the middle of a debate as to the extent to which religious freedom rights should be accommodated in legislation introducing “same sex marriage” (SSM). Those who object to this idea tell us that:
Christian conservatives – following the lead of their counterparts in the United States – seek to use freedom of religion to justify discrimination against members of the LGBTQI community. This agenda is now being pursued under the guise of the debate for a marriage equality bill. (“After the yes vote, let’s not remove one inequality and replace it with another”The Guardian online, 22 Nov 2017)
The word “discrimination” is a notoriously slippery one, and I would like to challenge the view that recognising religion freedom in changing marriage laws amounts to unjustified discrimination.
Outrage has erupted in the press and in Parliament over the Exposure Draft of a Bill designed to implement a possible “Yes” vote in the same-sex marriage survey. Senator James Paterson, a Liberal Party member who personally supports same sex marriage, has released a Draft Marriage Amendment (Definition and Protection of Freedoms) Bill 2017 designed to effect this change, but also to provide protection for the religious freedom of those whose faith will not allow them to approve it. But the Bill has been excoriated as “legalising homophobic discrimination” (Senator Hinch, in a question to the Attorney-General, Senate Hansard, 14 Nov 2017, p 21 of draft proceedings), and as a “licence to discriminate” (Senator Wong, as reported by the ABC.)
I think these are outrageous over-statements, and misrepresent the nature of the Bill. I don’t agree with every line of the Paterson Bill, but I think it is a perfectly reasonable attempt to provide an appropriate balance of the rights involved, and should be supported if Australians vote to change the law of marriage in this way.
The Northern Territory government has released a discussion paper called Modernisation of the Anti-Discrimination Act (Sept 2017). It invites comments by 3 December 2017. You can almost get the tone of the paper from the title! After all, who in this fast-changing age could oppose anything called “modernisation”? But there are a number of concerning recommendations and comments made from the law and religion perspective, and there are some real doubts whether the proposals properly reflect religious freedom principles.
My colleague Dr Alex Deagon from QUT has graciously provided a guest blog post in which he outlines his comments on two major concerns with the proposals to amend the Act. Those who are interested in the interaction of discrimination law and religious freedom should find them very helpful, and may wish to make their own comments in response to the discussion paper. There are other controversial proposals in the paper which may be the subject of future posts.
The debate over same sex marriage in Australia has been re-ignited by news that some members of the federal governing Liberal/National Party (LNP) coalition are proposing, contrary to their party’s policy, to introduce legislation in Federal Parliament this coming week to redefine marriage to extend it to same sex couples. In particular, press reports today indicate that a new Marriage Amendment (Definition and Religious Freedoms) Bill 2017 will be introduced, one feature of which is that it contains legislative protections for religious freedom, designed to encourage support of the legislation by believers. In my view the protections to be provided, if press reports about the proposal are accurate, are far too few and far too narrow, and the proposal cannot be seen as providing adequate protection for this fundamental human right.
I am presenting a paper on this topic at the Freedom for Faith “Freedom17” conference in Canberra on Wednesday June 14. The paper is available here: Protecting Religious Freedom in Australia Through Legislative Balancing Clauses. It aims to review all the relevant clauses in discrimination laws in Australia (Commonwealth, State and Territories) which balance religious freedom with the right not to be discriminated against. (If I have missed any, please feel free to let me know!) It also reviews the relevant balancing clauses which were proposed in the Exposure Draft Bill released by the Federal Government last year as an example of how same sex marriage might be recognised. Finally, it explores circumstances in which some of the State and Territory discrimination laws might be invalid, where they provide narrower religious freedom protection than the Commonwealth law does.