A brief update on the status of some proposed Victorian legislation I have previously mentioned as being a bad idea. It is good to see that all three bills have been defeated in the Victorian Parliament. Two of them would have interfered with the running of religious schools, as well as other religious organisations. The third would have created a range of problems in its interaction with Federal marriage law.
The Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 into its Parliament on 30 August 2016. It has passed the Legislative Assembly without amendment, and is presently before the Legislative Council. The Bill proposes the amendment of the Equal Opportunity Act 2010 (Vic) to make it more difficult for a religious body to claim that it is not “discriminating” when it declines to hire, or fires, someone whose behaviour or convictions is contrary to the ethos of the body. The amendments introduce an “inherent requirements” test which must be satisfied in order for such an action to be viewed as falling outside the prohibition in the legislation on detrimental treatment based on “religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity” (the “Victorian prohibited grounds”).
I have commented in a previous post as to why I think this is poor legislation from a policy perspective. In that previous post I briefly noted that an argument could be made that some of the amendments, at least, would be unconstitutional. Since that previous post I have looked into the area further and am fairly sure that this is the case. Here I want to develop the case a bit further.
On 30 August 2016 the Victorian Attorney-General introduced into the Victorian lower house the Equal Opportunity Amendment (Religious Exceptions) Bill 2016. The Bill proposes to “amend the Equal Opportunity Act 2010 to modify the religious exceptions in relation to the employment of a person by religious bodies and schools”. I would like to suggest that, if enacted, it will fundamentally impair the religious freedom of faith-based organisations. In fact, it might also be found to be constitutionally invalid and of no effect.
The recent decision of the NSW Court of Appeal in Hoxton Park Residents Action Group Inc v Liverpool City Council  NSWCA 157 (5 July 2016) is one of the most important court decisions on the scope of s 116 of the Commonwealth Constitution for some years. The Court held that the Federal Government does not breach the Constitution by “establishing” a religion when it provides funds through the State government to support the operation of a Muslim school. The Court also comments in passing on other important aspects of s 116 to do with “imposing a religious observance” and “prohibiting the free exercise of religion”. In this note I will aim to outline the broad features of the decision, though its full implications will have to be worked out in more detail as time goes on.
Recently a Greens MP in Victoria, Sue Pennicuik, has introduced a Bill into the Victorian Parliament to reduce the ability of religious schools to deal with potential admissions, or their current student body, on the basis of the school’s religious beliefs. The Equal Opportunity Amendment (Equality for Students) Bill 2016 had its second reading in the Legislative Council on 22 June 2016.
The legislation is arguably an impairment of the religious freedom of parents and the schools, and ought not to be passed.
Press reports today (e.g.”Qld govt to review religious education“, Courier-Mail, 7 June 2016) indicate that a school Principal in Queensland has written to parents at his school indicating that he is cancelling the usual Religious Instruction (RI) classes, on the basis that he has discovered the lessons involve “proselytising” (a term which he says refers to “soliciting a student… to change their religious affiliation”). The Queensland Government in response to the press reports has indicated that it will be reviewing materials used to ensure they comply with relevant rules.
Does this mean a radical change has recently taken place in a program which has been operating for many years allowing parents to send their children to RI (elsewhere sometimes called “Scripture” or “Special Religious Education”) classes for a short period each week? Actually, no. It seems that the Principal has misread the relevant provisions, and the Queensland Government really doesn’t need to react to the misleading interpretation.
Australia is in the midst of a Federal election campaign at the moment (thankfully, one which will end on July 2, unlike the one being endured by our friends in the United States, which seems to stretch on interminably!) But law and religion has now emerged as one of the election issues.
This time the question is not about same-sex marriage (SSM), although the various parties’ views on that topic are well-known (at the moment, the Australian Labour Party (ALP) has promised to introduce SSM within 100 days if elected, and the Liberal-National Party Coalition, currently in power, has promised to put the matter to a plebiscite after the election if they are returned.) But the latest question has been raised by a minority, but increasingly influential, Greens Party, which has included as part of its election platform a promise to remove “religious exemptions to federal anti-discrimination law“.
At the moment the Opposition ALP (which is fairly closely aligned to the left-wing Greens on many points) has not made a similar promise, but has noted that it will
review the carve-outs in Australia’s anti-discrimination laws, with [Opposition Leader] Bill Shorten leaving open the door to removing further exemptions for religious institutions.
The official ALP electoral platform contains the following promise (in Chapter 9, on p 139):
196. Labor believes that no faith, no religion, no set of beliefs should ever be used as an instrument of division or exclusion, and condemning anyone, discriminating against anyone, vilifying anyone is a violation of the values we all share, a violation which can never be justified by anyone’s faith or belief. Accordingly, Labor will review national anti-discrimination laws to ensure that exemptions do not place Australians in a position where they cannot access essential social services.
In this post I want to briefly review what “exemptions” are being mentioned here, and argue that watering down or removing this provisions (these “balancing clauses”) would be unnecessary to achieve the ALP’s stated aims, and in general a bad idea.
Balancing Clauses in Discrimination Law
Since the current issue has arisen in a Federal election, I will mainly focus on Federal law (although the issues and their resolution are similar in most States and Territories.) In fact, the primary “exemptions” that the Greens and the ALP are referring to are those contained in one Act, the Sex Discrimination Act 1984 (Cth) (SDA). (Interestingly, there are few if any religious balancing clauses in the other Federal discrimination legislation, prohibiting discrimination on the basis of race, disability, and age. These have not been areas where mainstream religions have usually sought exemptions.)
First, a question of terminology. What their opponents tend to call “exemptions” to discrimination law are, in my opinion, best described another way. To explain this I would like to quote some extracts from a paper I presented at a conference in Oxford in 2015:
[R]eligious freedom is recognised in the International Covenant on Civil and Political Rights (art 18):
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 [or her] choice, and freedom, either individually or in community with others and in public or private, to manifest his [or her] religion or belief in worship, observance, practice and teaching.
While it is clear that the “internal dimension” of religious freedom is absolutely protected, it is equally clear that the “external dimension” of the freedom, that is, the freedom to manifest one’s religion and act on one’s religious beliefs, may be subject to limitations in certain circumstances. A fundamental feature of “rights” of any sort, of course, is that, where they are given to more than one person, there is the potential for conflict. Any “freedom” given to a person to do something, will usually involve a “duty” on another person’s part to allow them to do it, even if it interferes with some other freedom or right of that person. Whether it is appropriate for one person’s right to be protected over and above another person’s right or interest requires a consideration of how competing rights and interests are to be appropriately balanced. The need for limitations in certain circumstances on the right to externally manifest one’s religious belief and the need for freedom of religious freedom rights to be balanced with the rights and interests of others is reflected in the ICCPR (art 18(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.
The nature of any human rights system, then, is that it must allow the appropriate “balancing” of rights which may occasionally come into conflict. But there is under international law no “hierarchy” of the fundamental rights protected in the ICCPR, all are equal, including both the right to free exercise of religion, and the right not to be unlawfully discriminated against. So it is not helpful to speak of provisions designed to balance these rights as “exemptions” or “exceptions”. As I go on to say in the paper I mentioned above:
Rather than seeing these “defences” as concessions “wrung out” of a reluctant legislature by some powerful lobby group, as they are sometimes painted in the press, it seems to be a better analysis to see the limits drawn around discrimination laws as an integral part of a structure designed to reflect the relevant human rights as a whole.
Balancing provisions in the SDA
What, then, are the “balancing provisions” contained in the SDA? There is a good summary of these in the report of the Australian Law Reform Commission on “Traditional Rights and Freedoms”. In Chapter 5 the Commission sums up the relevant provisions in the SDA as follows:
5.80 Commonwealth anti-discrimination laws contain exemptions for religious organisations and religious educational institutions. These exemptions apply where the discriminatory act or conduct conforms to the doctrines, tenets or beliefs of a religion, or is necessary to avoid injury to the religious sensitivities of adherents of that religion. For example, in the SDA, the exemptions include the following:
- s 23(3)(b), which allows discrimination in the provision of accommodation by religious bodies;
- s 37, which allows discrimination in the ordination or appointment of priests, ministers of religion or members of any religious order, the training or education of persons seeking ordination or appointment, the appointment of persons to perform religious duties or functions, and any other act or practice of a body established for religious purposes that ‘conforms to the doctrines, tenets or beliefs of that religion or is necessary to avoid injury to the religious susceptibilities of adherents of that religion’; and
- s 38, which allows discrimination by educational institutions established for religious purposes in relation to the employment of staff and the provision of education and training, provided that the discrimination is in ‘good faith in order to avoid injury to the religious susceptibilities of adherents of that religion’.
These balancing clauses will operate to delimit the area of unlawful discrimination under the SDA, so that behaviour which falls within those provisions will not be unlawful.
The purpose of the various provisions is not spelled out in the legislation, but seems to be as follows:
- The s 23(3)(b) provision for accommodation recognises the fact that certain religious bodies have a tradition of running single-sex colleges and residential institutions. They do so partly because they have a conviction, based on their religious beliefs, that sex between men and women outside the bond of marriage is wrong, and hence they provide single-sex accommodation to reduce the temptations to engage in wrongful sexual conduct.
- (It is worth noting in passing that since amendments in 2013, s 23(3A) provides that the exemption of religious organisations in para 23(3)(b) “does not apply to accommodation provided by a religious body in connection with the provision, by the body, of Commonwealth-funded aged care”. Hence a religious aged care institution cannot choose to offer single sex residential accommodation, nor can they choose to decline to accept a couple who are living together but not married, or a same sex couple. It is fairly clear that these changes represented an attempt to undermine the general balancing clause provisions by focussing on a purported problem which, to be frank, does not seem to have actually been causing any issues. Still, this “exemption to balancing” provision is now there.)
- The s 37 provision has mainly been seen as allowing the Roman Catholic Church, and those branches of other churches who read the Bible’s teaching on the point in this way, to decline to appoint women as priests or pastors over congregations. It would also have allowed a religious organisation to decline to appoint to a position of spiritual leadership an unmarried person in a “de facto” relationship (an action otherwise forbidden as “marital status” discrimination), again on the basis of the Bible’s prohibition of sex outside marriage. Since amendment of the SDA in 2013 to add “sexual orientation” and “gender identity” as protected grounds, it will allow a church to decline to appoint to such a position a person in a same sex sexual relationship (based on the Biblical teaching that homosexual activity is sinful), or someone who is of one biological identity but “identifies” as of another gender. (For a recent overview of why many Christians regard transgender identification as theologically problematic, see this piece by Russell Moore from the Ethics & Religious Liberty Commission of the US Southern Baptist Convention.)
- (Note again that s 37(2) now qualifies this balancing clause in relation to “acts or practices” where the “act or practice is connected with the provision, by the body, of Commonwealth-funded aged care”. Since most of the examples given in the debate on this issue revolved around the provision of accommodation in aged care institutions, it is hard to know whether s 37(2) adds anything above s 23(3A).)
- The s 38 provision specifically applies to religiously based private schools, and would allow such schools to decline to engage teachers or staff (either as employees or contractors) where doing so would cause injury to injury to “the religious susceptibilities of adherents of that religion or creed.” Putting aside the somewhat patronising reference to “susceptibilities”, which one may assume is intended to refer to religiously based conscientious objection, this would seem to allow a Roman Catholic school to decline to hire (or to fire) a teacher who was in a de facto relationship, a same sex relationship, or was actively pursuing a gender transition. Under s 38(3) the school would also be allowed to decline to accept an application for enrolment from a student in one of these situations. It would also, presumably, be entitled to insist that students conduct themselves in accordance with Roman Catholic moral standards in behaviour at the school.
Are these provisions justified?
Some will immediately say that the examples provided above show why these provisions should not be allowed to operate. Refusing to employ, or sacking, a teacher because of their private moral choices sounds discriminatory. So does allowing a church to decline to ordain women, or sexually active same sex attracted persons, or transgender persons.
But it seems to me that the provisions are justified on the basis of the strong religious freedom rights recognised in international law mentioned above. If we are concerned about “human rights”, we cannot pick and choose only the ones that make us feel comfortable. Indeed, it is the human rights that have become unpopular and applicable to minorities, which will require all the more careful protection.
Religious persons seek to live their whole lives, not just their time in religious meetings, in service to their God. Those who disagree with those religious views are not required to be a part of the religious community. But for those who are, expression of their commitment to their beliefs will involve decisions about moral issues and the way that they wish to model their religious beliefs to each other and, for schools, to their children.
As Paul Kelly has commented in The Australian (May 18, 2016)
The exemption from anti-discrimination law for religious institutions and schools allows them to retain their religious character. It is a cornerstone for religious freedom in this country.
The fact is that Christian schools, and other religious schools, are aiming to model the life of a whole community with shared religious beliefs (and hence moral values). That is why the commitment of the Maths teacher, or the gardener, or the receptionist, may be just as important as that of the religious studies teacher.
Indeed, the strong moral stance of religious schools is sometimes seen as a reason for those schools to be preferred as educational choices, even by those who don’t share their religious commitments. If we believe in true choice and diversity, then we should be supporting different communities reflecting their values in the way that they provide such things as education, or other social services.
Implications for the political platforms
From what I have said above, I clearly do not support the draconian demands of the Greens to remove all balancing clauses reflecting religious belief from sex discrimination legislation. Religious organisations ought to be able to choose who they appoint as leaders, and who will teach at schools they set up to pass on their religious world view to those who attend. As others have pointed out, the Greens should not be required to appoint someone who is a climate change sceptic as a research assistant or indeed a front desk receptionist. In this area they need to accept that religious beliefs can be just as strongly held, and passionately followed, as political beliefs.
The only area of plausibility that is lent to these claims is where the Government may have chosen to provide some essential social service to members of the public through a religious group, which may then decide to not make that available to a member of the public on the basis of a religious belief. But while this would present many problems, it has to be said that it seems to be a classic “straw man” argument. No homeless person has even been turned away from a religiously run shelter because they are homosexual. No transgender person caught in a natural disaster has ever been refused assistance by the Salvation Army on the basis of their “gender identity”. While religious organisations will naturally seek to employ staff that share the ethos of the group, they are not in the business of denying help to needy people.
For this reason, it seems that the ALP policy is already satisfied, and no change to the law is needed to meet their concerns about “essential social services” being provided.
Religious groups, motivated precisely by their deep commitment to transcendent values, regularly engage in service to the vulnerable members of the community. They establish schools to pass on their deeply held values and moral commitments to the next generation. They run hostels and accommodation designed to reflect the moral values of their members and supporters.
If our society makes it impossible for believers to undertake these activities, by demanding that they conform to the majority views on gender equality and the new sexual identity politics which requires “affirming” sexual choices that their religion says is wrong, then we run the risk of driving believers out of the public square altogether. In doing so we will be denying the fundamental human right of religious freedom, and also losing the value added to our community by believers who serve the needy.