Religious Discrimination Bill passes lower house along with SDA amendment

This morning Australia woke up to the news that at an all-night sitting which concluded around 5 am, the House of Representatives has passed the Religious Discrimination Bill 2022. (The link there will take you to official Parliamentary site for the Bill; as I write the updated version given a third reading has not been published but should be later in the day.) The government amendments which I noted in a previous post were apparently all accepted.

There was an amendment moved by the Opposition which came very close to being accepted, but which in the end did not pass. (It can be seen here in the Opposition amendments document.) It would have introduced a prohibition on “religious vilification”. I do not think Australia needs more such laws; in the time available now let me link a paper I produced a few years ago on the dangers of limiting free speech in this way.

However, the package of bills also includes the Human Rights Legislation Amendment Bill 2022, which saw an Opposition amendment accepted when 5 members of the government crossed the floor. The third reading text of that Bill, which will now go to the Senate with the other bills in the package, is available here. In effect, as had been foreshadowed, the Opposition amendment will repeal s 38(3) of the Sex Discrimination Act 1984 (Cth) (“SDS”). It will also amend s 37 of that Act to ensure that the general balancing clause in that Act cannot be used by religious schools to avoid the effect of the repeal of s 38(3).

Sub-section 38(3) is part of s 38 of the SDA, which allows educational institutions “conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed” to act in accordance with those beliefs even if such actions would otherwise amount to unlawful discrimination under the SDA. Sub-section (3) allows such actions “in connection with the provision of education or training”, despite the general prohibition on discrimination in those circumstances set out in s 21 of the Act.

The “presenting problem” was seen to be the possibility that a faith-based school would expel a student on the grounds of their sexual orientation or gender identity. Leave aside the fact that as far as I am aware no religious school in Australia has ever done this. What s 38(3) provides is a statement that a religious school can operate in teaching and caring for students in accordance with its faith commitments, which is the very reason for its existence! To simply repeal it is, in my view, a bad move.

To give an example: a student group wants to set up a “Pride” club supporting homosexual activity. This is contrary to the teachings of the religion. The school says the club cannot be advertised in the school newsletter or use school premises at lunchtime. Will the school be discriminating under s 21(2)(a) by  (a)  by “denying the student access, or limiting the student’s access, to any benefit provided by the [school]”? The answer is not clear. The decision is arguably not made “on the ground of” sexual orientation- the school can say it would deny such a request even if made by a group of heterosexual students. The school may be able to rely on the difference between decisions based on orientation, and decisions based on viewpoints about orientation, which lay behind the successful defence by Christian bakers in the UK who had declined to prepare a “Gay cake” (a decision recently affirmed in the European Court of Human Rights). But to do so it may require expensive and time-consuming litigation.

Other examples can be offered. A senior female prefect becomes pregnant, and is removed from the leadership group because her actions (while unmarried) contradict the school’s religious stance on sexual activity outside marriage. A male student identifies as female and demands to be allowed to use the girl’s change rooms, and is not allowed to. Many people in the community would object to these decisions taken by a school. But others, especially parents who have entrusted their children to these schools so that they can learn in an environment which support their own faith commitments, will support them. In a pluralistic society it seems clear that we should have room for religious communities to operate schools in accordance with their faith, especially when they are prepared to make financial sacrifices to pay for them.

These issues should not be resolved on the run by emotional appeals. The Australian Law Reform Commission is set up to conduct detailed inquiry into the matters, and should be allowed to move ahead with that inquiry to ensure that all relevant interests are heard and properly balanced.

Meanwhile, the package of Bills will now go to the Senate for further debate.

Government amendments to Religious Discrimination bills

Debate in the House of Representatives in the Federal Parliament resumed today on the package of bills dealing with religious discrimination. (For general background, see my initial post on the bills here, and recent update on committee reports, here.) The second reading debate continues on Wednesday, I think, but the government has now released two sets of amendments it will be making to the bills. The most controversial will be the amendment to s 38 of the Sex Discrimination Act 1984; the other amendments to the main Religious Discrimination Bill will mostly be uncontroversial and reflect the recommendations of the two Parliamentary committees which recently reported. While the need for the s 38 amendment will continue to be debated, in my view it is targeted at the specific problem previously identified, and will if read in that context not unduly interfere with the operations of religious schools.

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Parliamentary reports recommend passage of Religious Discrimination Bills

Two committees of the Australian Federal Parliament examining proposed legislation on religious discrimination handed down their reports on Friday 4 February, 2022. Both committees recommended that the Bills introduced in November 2021 be passed by the Parliament, with some minor amendments. The report of the Parliamentary Joint Committee on Human Rights (“PJCHR”) can be found here, and that of the Senate Legal and Constitutional Affairs Legislation Committee can be found here.

While each report mentions a number of objections to the legislative package, it is significant that these cross-party committees both end up by recommending the enactment of the laws in substantially their current form. In my view this is an encouraging sign, that may signal that the legislation might find sufficient support to pass the Parliament before an election is called this year.

(There were “additional comments” made by ALP members of both Committees, but they did not formally dissent from the majority recommendations. There was a formal dissent from the Greens Senator Janet Rice to both reports, joined in the Senate Committee by fellow Green Senator Lidia Thorpe. Liberal Senator Andrew Bragg provided “additional comments” to the Senate Committee report without formally dissenting.)

In this post I will briefly summarise the recommended amendments put forward by the committees, and some other issues that have been raised this week following events at Citipointe college which I discussed in a previous post.

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Religious school tells parents it will apply its religious beliefs

The above heading doesn’t sound very exciting, does it? Isn’t that what one would expect, that a school set up to educate students in a particular religious view would apply those beliefs in its practices? But the press in Australia sees it differently, apparently. “School rules: Brisbane college expects students to denounce homosexuality” is the way that the Sydney Morning Herald puts it (Jan 31). Citipointe Christian College has sent a letter to parents spelling out its views on a number of issues, letting them know that the College expects students and parents to be aware of these views if students are to be sent there. Here I will comment on whether the College is legally justified in so doing.

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Challenge to “Gay Marriage Cake” decision dismissed

Some years ago now the UK Supreme Court ruled that a Christian bakery company had not been guilty of sexual orientation discrimination when it declined to produce a cake for an activist designed to convey a political slogan in favour of same-sex marriage- see Lee v Ashers Baking Company Ltd [2018] UKSC 49 (10 Oct 2018) and my comment at the time. Now, after a long delay, an challenge to that decision by the customer, Mr Lee, has been finally dismissed by the European Court of Human Rights: see here where a copy of the judgment in Lee v United Kingdom (ECHR 4th section, Application no. 18860/19, 6 Jan 2022) can be downloaded. (A short summary is available on this page.)

(A preliminary comment on the nature of this challenge should be made. The details are spelled out clearly in an excellent comment on the decision by Prof Mark Hill QC, available here. This was not a formal “appeal”- the initial defendants, Ashers, were not parties to the case. Instead it was a claim by Mr Lee that the UK government should be held accountable for the decision of the UK Supreme Court not upholding his rights. Still, a finding against the UK would have cast into doubt the legal validity of the decision of the Supreme Court. This comment has been amended since first posted to take into account these matters.)

The grounds for refusing the challenge can be stated fairly shortly. Under the rules of the European Court of Human Rights, if that court is to hear an case based on a breach of the European Convention on Human Rights, the applicant must have raised specific convention rights in his or her claim at the local level. But unfortunately for Mr Lee, none of his claims explicitly raised Convention arguments; he had made his case entirely based on the domestic UK laws. As they said near the conclusion of their decision:

[77]…In a case such as the present, where the applicant is complaining that the domestic courts failed properly to balance his Convention rights against those of another private individual, who had expressly advanced his or her Convention rights throughout the domestic proceedings, it is axiomatic that the applicant’s Convention rights should also have been invoked expressly before the domestic courts…

This was the case even though the defendants in the case, the Ashers, had relied extensively on the Convention rights of freedom of religion and free speech. But the ECHR held that this did not overcome the problem that the applicant himself had not raised those issues.

The result is that the challenge has failed, although the ECHR has avoided making any clear comment on the substantive issues as to whether a business owner should be allowed to decline to make an artistic product which expresses a view which the owner fundamentally disagrees with. They do say at one point however:

[73]…What was principally at issue, therefore, was not the effect on the applicant’s private life or his freedom to hold or express his opinions or beliefs, but rather whether Ashers’ bakery was required to produce a cake expressing the applicant’s political support for gay marriage.

The decision of the UK Supreme Court in 2018 stands as good law, and in my view this is a good thing for free speech and religious freedom. It should perhaps be stressed that the cake concerned was not a wedding cake, it was simply a cake designed to celebrate and support a view on the political issue of recognition of same sex marriage. Lady Hale in the Supreme Court, as the ECHR noted here, pointed out that :

“ … People of all sexual orientations, gay, straight or bi-sexual, can and do support gay marriage. Support for gay marriage is not a proxy for any particular sexual orientation.”

Lady Hale, Ashers (2018) at [25], quoted by the ECHR in Lee v UK at [24].

The ECHR summed up the decision in this way:

36. In summarising the court’s position, Lady Hale noted that the defendants would have refused to supply this particular cake to anyone, whatever their personal characteristics. As such, there had been no discrimination on grounds of sexual orientation.

This remains as true today as when it was stated in 2018.

Clarifying “transgender hate speech”

An important appeal decision in November 2021, Rep v Clinch [2021] ACAT 106 (3 November 2021), provides significant clarification on what amounts to “transgender hate speech”, and what does not, under the law of Australian Capital Territory- and provides a helpful and persuasive set of reasons which may be influential in other jurisdictions. Is it unlawful to say that “a trans woman is a man”? Not according to the Appeal Tribunal in the Rep decision- see [117]. While none of the relevant parties seem to have referred to religious reasons for their comments, the question of what can be lawfully said in public contexts about issues raised by the “gender identity” debates has some importance for religious groups which take the view that religious texts teach that sex is determined at birth, not fluid, and not able to be changed.

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Submission to Parliamentary committee on the Religious Discrimination Bill

The submission of Freedom for Faith to the Parliamentary Joint Committee on Human Rights inquiry into the Religious Discrimination Bill is now available for download here. I prepared the submission with input from other board members. Submissions to this committee can be made at their website here, but only until 5 pm Tuesday 21 December. There is also a short survey that the Committee have released which it would be good for anyone concerned with religious freedom in Australia to fill in before that same deadline.

Expelling students from religious schools based on sexual orientation?

Current press reports suggest that the Federal Government is contemplating a change to the provisions of the Sex Discrimination Act 1984 which allow religious schools to operate in accordance with their religious commitments, in the area of decisions about students. This is being proposed to allay fears that the recently introduced Religious Discrimination Bill will impact on LGBT students. (See here for my overview of the Bill.) Just to be clear, I think this is a terrible idea- the Australian Law Reform Commission already has a reference on this issue and they should be allowed to complete their work by taking into account all the issues. But I make a few comments on the proposal anyway.

The provision in question is s 38(3) of the SDA, which allows religious schools to make decisions in relation to students in accordance with their religious commitments, and for that not to amount to “sexual orientation” discrimination. Actually religious schools very rarely rely on this provision to expel or discipline students- but there are cases where a religious school may lay down a “code of conduct” or the like which may be seen by some as discriminatory on this basis.

If s 38(3) of the SDA is to be amended so that religious schools may no longer make decisions based on “sexual orientation”, then there still needs to be an explicit protection allowing such schools to require students to conduct themselves in accordance with the religious ethos of the school. It is generally accepted that schools are entitled to set up “reasonable standards of dress, appearance and behaviour for students”. A provision to this effect is already contained, for example, in the Victorian Equal Opportunity Act 2010, s 42. This provision also requires the views of the local school community to be considered. The equivalent in the context of the SDA would be allowing the school to operate in accordance with its religious ethos.

The last time this came up, in 2018, I suggested a possible redraft of s 38(3) which would achieve this outcome: https://lawandreligionaustralia.blog/…/ruddock-report…/. Perhaps it could be called s 38A, and I suggest this is what it might look like:

Possible s 38A Nothing in s 21 renders it unlawful for an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, in connection with the provision of education or training, to set and enforce standards of dress, appearance and behaviour for students, so long as this is done in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This would make it clear that decision would not be made on the basis of internal self-identification as “gay”, but on the basis of actual behaviour. A school set up to teach and model the principles of Christianity may want to say, for example, that they do not want to act on student’s internal feelings or temptations, but they cannot support public advocacy and activity which is contrary to the teachings of the Bible.