After a long wait, the Federal government has released the text of the Religious Discrimination Bill 2021 which is about to be introduced into the Parliament. There has been no general Federal law dealing with detrimental treatment of Australians on the basis of their religious faith and activities, and this is a welcome development, implementing a recommendation of the Ruddock Review which reported in 2018.
The government previously released two “Exposure Drafts” of the Bill (see some comments on those in previous posts, here, and here.) Having promised prior to the last election that he would advance this law, Prime Minister Morrison will now introduce it into the House of Representatives. If passed by the House, the Bill will then need to approved by the Senate, where it seems likely to be referred to (yet another) committee before being voted on there, probably sometime in the New Year.
In this post I will aim to provide an overview of the Bill, and also to indicate briefly where it differs from previous drafts.
As previously foreshadowed (see my analysis of the proposals when first announced here) the Victorian government has introduced a Bill into the Parliament of that State seriously limiting the religious freedom of religious bodies and individual Victorian citizens. The Equal Opportunity (Religious Exceptions) Amendment Bill 2021 (Vic) was introduced into the Legislative Assembly on October 27 and the second reading was moved on October 28. The Bill is a serious attack on the religious freedom of Victorians, especially to send their children to faith-based schools reflecting a religious world-view.
It is exciting to see the start of a new academic journal on law and religion in Australia: the Australian Journal of Law and Religion. The editorial team includes previous guest “Law and Religion Australia” blogger Dr Alex Deagon from QUT, and Dr Jeremy Patrick from USQ. From the website:
The Australian Journal of Law and Religion is the first peer-reviewed, scholarly journal in the antipodes to focus on the interactions of faith and the legal system. Every issue features articles, short essays, and book reviews from a diverse array of scholars from across the spectrum of religions and ideologies. It is published with the support of the Law, Religion, and Heritage Research Program Team of the University of Southern Queensland.
The first issue will not be published until 2022, but this looks like a terrific initiative to support scholarly examination of this important area.
The Victorian government has recently announced proposals to further limit important protections for religious freedom currently applicable to religious persons, bodies and schools in that State. The recent proposals have been put forward as dealing with the problem of religious schools sacking gay teachers, or expelling gay students: see this comment from The Age: “Religious schools in Victoria to lose the right to sack LGBTQ staff” (Sept 16, 2021). However, the details of the proposals hinted at in the recent “Fact Sheet” provided by the government go much further than this. In short, if the government pursues these proposals, they will
- remove the right of any religious schools to make staffing decisions based on whether or not the staff member agrees with fundamental moral values being taught by the school, by narrowing the grounds on which a staff member can be hired or fired to “religious belief” alone (and it seems from the way this is worded in the document, to mean that this will apply even to someone hired as a “religious studies” teacher!) This rule will also apply to any organisation “providing services funded by the Victorian Government”.
- impose on all schools and “religious bodies” (however that is defined) a rule that any staffing decision based on religious beliefs must be justified by demonstrating that the “inherent requirements” of the position require such a criterion; the implication being that a secular Victorian tribunal or court will have to determine whether such requirements are applicable by examining the religious beliefs of the body or school for themselves;
- remove completely the current right enjoyed by private Victorian citizens under s 84 of the Equal Opportunity Act 2010 not to be sued for discrimination where they can demonstrate that their action was “reasonably necessary… to comply with the doctrines, beliefs or principles of their religion”.
I described these as “further” limits on religious freedom because the Victorian Parliament has recently enacted provisions concerned “conversion practices” which will substantially interfere with the rights of religious persons to teach the doctrines of their faith. (These provisions are due to commence in February 2022). Victoria, despite being one of only a few jurisdictions in Australia to have enacted apparently broad protections for religious freedom in its Charter of Human Rights and Responsibilities Act 2006, s 14, continues to treat this right as one which can be downplayed and minimised.
While Sikh weddings will often feature the symbolic dagger known as the “kirpan”, that is not the connection I am writing about. In NSW at the moment both weddings in general, and kirpans worn by school students, have featured in debates about religious freedom. For weddings, those committed to religious beliefs are deeply concerned that all weddings are banned under COVID-19 provisions. In relation to the kirpan, I have written previously about a ban on these items applied to school students and the problems that raised for observant Sikh students. Both of these issues provide an example of what is called “indirect discrimination” on the basis of religion. The kirpan ban seems to have recently been sensibly modified to take into account concerns of the Sikh community. I argue here that the wedding ban should be approached in a similar way, and the deep-seated concerns of believers in NSW met by adjusting the current rules to allow the small number of people most directly involved to gather for weddings.
Can a Roman Catholic agency involved in placing foster children with carers, decline to place children with same-sex couples because of its religious commitment to the value of traditional marriage? The US Supreme Court recently handed down a significant religious freedom decision in Fulton v City of Philadelphia, Pennsylvania (593 US ____ (2021); No 19-123; 17 June 2021) which ruled 9-0 in favour of the Catholic agency. This is an important decision, although it did not quite go far enough in clarifying the interpretation of the US First Amendment. As decisions in the US often resonate in other parts of the world, I thought it would be helpful to set out the reasons of the court, and to briefly discuss another case which has already been decided based on its reasoning. (That case involves some Amish people and their plumbing arrangements!)
Following on from my recent post outlining COVID-19 restrictions that will impact NSW churches, the NSW Health Minister has now issued an exemption under the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (the “TMGR Order”), cl 25, dealing with singing in live-streamed services and in places of public worship outside Greater Sydney (where gathering for church in limited numbers and with face masks is still permitted). The Minister is to be commended for responding to concerns that have been raised by advice given by officials of his Department to some churches (for the content of the advice and some comment, see this article from 2 July from Eternity.) In my view, however, the advice given was wrong, and the exemption that has been issued today was unnecessary- the official TMGR Order already allowed the activities that were wrongly said to be prohibited by Health Department advice. I will try to unpack these things here.
There are a number of restrictions on church activities in NSW at the moment under rules introduced to manage the current outbreak of cases in Sydney. In this post I will try to briefly summarise what I think is the best interpretation of the rules. These rules are generally in place until midnight Friday 9 July. Keeping up with the various version of the Public Health Orders is not easy. The two main ones at the moment are the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 (No 282 of 2021) (“the TMGR Order”) and the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021 (No 279 of 2021) (“the Face Coverings Order”).
A Colorado District Court has handed down a decision imposing a penalty on a cake-maker for declining to provide a cake designed to celebrate a “gender transition”, in Scardina v Masterpiece Cakeshop Inc (Denver District Ct, Co; 19CV32214, 15 June 2021). If the name of the shop sounds familiar, it will be to those interested in “law and religion” issues in recent years. Jack Phillips and his Masterpiece Cakes business were previously sued, all the way to the US Supreme Court, because he had declined to make a cake designed to celebrate a same-sex wedding (for my comment on the Supreme Court decision, see “Colorado Wedding Cake Baker wins before US Supreme Court” (June 5, 2018). Sadly it seems that Mr Phillips will need to appeal this latest decision as well.
This question has been raised by a report that a Victorian council has required its employees to add a graphic to their email addresses featuring a “rainbow flag”. One employee is reported as saying:
the rainbow flag can look like moral support for identity politics or sexualities prohibited by many religions in this multicultural area
This is an important issue which will present challenges to employees of organisations which are determined to make political statements on various causes. To what extent can an employee in such an organisation decline to provide their own support for the stance taken by their employer, where the “core business” of the organisation is not involved? In this post I want to consider religious freedom protections that might apply in the reported circumstances.