I am delivering a seminar paper on the topic “Churches, Same-sex ministries and the law: discrimination and religious freedom” on August 20. For those who are interested, there is a copy of the paper here:
The High Court of Australia today, in Comcare v Banerji  HCA 23 (7 August 2019), upheld as “reasonable”, and not unconstitutional, the decision of the Department of Immigration and Citizenship to dismiss an employee who had made anonymous political comments about migration matters and government policies, contrary to various codes of conduct. The case provides interesting insights into the operation of the implied constitutional freedom of political communication. Many will see similarities with the dismissal of footballer Israel Folau for comments he shared about the Bible’s view of morality, but as we will see, while somewhat factually similar, the cases raise quite different issues.
It is not uncommon to find popular assertions , in relation to the legal treatment of transgender persons, that the law requires that a person who asserts they are of a different gender to their biological sex, be allowed to use bathrooms set aside for their chosen gender, or that they have a “right” to be addressed by the pronoun corresponding to that gender. In this post I want to point out that it seems quite arguable that the law in most of Australia does not have this effect. (I will comment briefly on recent changes in Tasmania which may have, though even there, the question is debatable.)
I am presenting a paper today at the IVR2019 conference in Lucerne, Switzerland (a law and philosophy conference), entitled “Respecting the Dignity of Religious Organisations: When is it appropriate for Courts to decide Religious Doctrine?” For those who are interested, the paper can be downloaded here:
In a previous post I commented on the events surrounding celebrity rugby player Israel Folau’s posting on social media of a meme stating that various groups of sinners, including “homosexuals”, were destined for hell unless they repented and put their trust in Jesus Christ. He was immediately threatened with dismissal by his employer, Rugby Australia (“RA”), a threat subsequently implemented through an internal tribunal finding that he was guilty of a high level breach of the RA “code of conduct”.
It seems an appropriate point to comment on recent developments and to clarify what it seems Mr Folau’s legal options are.
For those who are interested in religious freedom issues, I am speaking this coming Wednesday evening (May 1) at Sydney Missionary and Bible College in Sydney, from 7-9, as part of their “Hot Topics” series. Details (and registration) available at “Talk 9” on this link.
(This is a guest blog post from Mark Fowler, Director, Fowler Charity Law Pty Ltd and an Adjunct Associate Professor at the University of Notre Dame Law School, Sydney.)
The Commonwealth Attorney-General has released a long-awaited referral to the Australian Law Reform Commission concerning the legal freedoms of religious schools and religious bodies. The referral gives effect to a commitment of the Morrison Government made in its December 2018 response to the Expert Panel on Religious Freedom (the Ruddock Review). This is the latest instalment in the debate over the proper protections to be afforded to religious freedom that first arose in the context of the legalisation of same-sex marriage. For ease of reference, the Ruddock Review and the Government Response are available here.
Main Points to Note
By way of analysis, there are a few headline points to note about the ALRC Referral:
- The referral requests recommendations on how to provide legal guarantees that will ensure that schools can continue to teach and act consistently with their ethos. This gives effect to the Government’s commitment that arose from the recent Senate debates on the Discrimination Free Schools Bill 2018, introduced by the Greens, and the Sex Discrimination Amendment (Removing Discrimination Against Students) Bill 2018, introduced by Labor Senator Penny Wong. In their dissenting Senate Inquiry report on the Wong Bill, Labor committed to removing the religious schools exemptions for both staff and students. Labor’s proposal is:
- In respect of students, all acts of ‘direct discrimination’ would be unlawful and schools would need then to argue that their actions are ‘indirect discrimination’ and are ‘reasonable’. In my view, this introduces high degrees of uncertainty for schools, parents and children.
- In respect of staff, to introduce a positive right for schools to exercise discretion over teachers (not wider staff), which would only be available where a teacher acts inconsistently with the school’s beliefs – that is, schools will not be able to require that teachers hold their beliefs. Many schools consider that their ability to employ persons who adhere to their belief system is critical to the modelling of authentic faith to the next generation.
Should Labor win the election, the ALRC’s recommendations will be a critical lodestar, either guiding future Labor reform efforts, or their proper assessment.
2. The referral concerns not only Commonwealth, but also State and Territory law, emphasising ‘the desirability of national consistency in religious exceptions in those laws’.
3. The referral extends not only to the religious freedom rights of religious schools but to all religious bodies. Given this wide-ranging scope, the ALRC recommendations hold out the prospect of wholesale reform to protections to religious freedom within State, Territory and Commonwealth law.
4. The referral makes expressly clear that the ALRC is to consider faith-based institutions, such as welfare providers, to be ‘bodies established for religious purposes’ for the purposes of the referral, aligning with the treatment of such bodies by the Ruddock Review. On the basis of past reviews, this is likely to invite deliberation on whether special conditions should apply to such faith-based institutions, particularly where they are in receipt of government funding, or make supplies to the general public.
5. Consistent with the Government response to the Ruddock Review, the referral also requests recommendations on amendments to State and Territory discrimination and vilification law to ensure that such laws do not prohibit the expression of a traditional view of marriage.
Specific Terms of the Referral
In specific terms, the referral requests that the ALRC consider ‘what reforms to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law should be made in order to:
- limit or remove altogether (if practicable) religious exemptions to prohibitions on discrimination, while also guaranteeing the right of religious institutions to conduct their affairs in a way consistent with their religious ethos; and
- remove any legal impediments to the expression of a view of marriage as it was defined in the Marriage Act 1961 (Cth) before it was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), whether such impediments are imposed by a provision analogous to section 18C of the Racial Discrimination Act 1975 (Cth) or otherwise.’
The referral can be seen as the culmination of long-running calls from religious bodies to replace the existing religious exemptions with a positive right to act (see, for example, my recent article for the ABC here). It can also be seen as a response to concerns raised during the marriage campaign concerning infringements on freedom of speech.
A full copy of the referral can be obtained here.
Religious Discrimination Act
Importantly, the referral states:
‘The ALRC should also have regard to religious exemptions in anti-discrimination laws and their interaction with ‘religious belief or activity’, including the expression of religious and moral views, insofar as they are a ground of discrimination (as proposed by the Religious Freedom Review, particularly in recommendations 15 and 16, and in accordance with Recommendation 2).’
The Ruddock Review’s Recommendation 15 contained a proposal to protect religious belief and activity through a CommonwealthReligious Discrimination Act (you can find my further piece for the ABC on this topic here). Recommendation 2 proposed that anti-discrimination law should be structured according to the principles set out in international law, as interpreted by the Siracusa Principles. For those who would like further detail on the relevant international law, a very helpful summary that had specific regard to religious schools, was provided by the Coalition Senators Dissenting Report to the Greens Bill, available here.
Any consideration of the interaction of such an Act with exemptions will likely require the ALRC to give consideration to the substantive content of protections within a Commonwealth protection of religious belief. In my view, this will be an important area for stakeholders to consider in their submissions.
Reporting Timeframe and Opportunity for Submissions
The ALRC must report by 10 April 2020, and is requested to consult with relevant stakeholders. Judging from conventional ALRC practice, it will be likely that the ALRC will seek submissions from the general public.
(By Neil Foster) It is also interesting to note that on the ALRC website, the following information appears:
Conduct of Inquiries
Both inquiries will be led by ALRC President, the Hon Justice S C Derrington… The ALRC will consult widely during the course of each Inquiry.
In accordance with the ALRC’s usual process, a Discussion Paper for each Inquiry will be released at an interim stage and interested stakeholders will be invited to make formal submissions in response to the Discussion Paper. These submissions will inform the final report provided to the Attorney-General of Australia.
The ALRC has opened the Terms of Reference for both Inquiries to public comment until 10 May 2019. Please refer to the Corporate Crime and Religious Freedoms inquiry pages on the ALRC website. The ALRC will use comments on the Terms of Reference to inform the scope of its review.
The ALRC will now undertake the process of setting up these two inquiries and will commence consultations with stakeholders in these areas in a few months’ time. (emphasis added)
It is, in my experience, slightly unusual to see an invitation to comment on the Terms of Reference of an inquiry. Presumably those interested may like to offer views on the interpretation of the wording and the intent of the reference. If so, it is worth noting that there is a very short timeframe for “terms of reference” comments, which expires on 10 May 2019. This, of course, is just a preliminary comment stage- further comments will no doubt be sought after a Discussion Paper is released.
Further information: since this post was first up, the ALRC has now announced more details about its timeline:
The ALRC is planning to release a Discussion Paper on 2 September 2019 which will set out proposed reforms and ask questions to assist the ALRC to prepare formal recommendations. Submissions on the Discussion Paper will be due by 15 October 2019.