The Government’s legislative agenda

The Government will be introducing three pieces of legislation in the near future.  One is a Religious Discrimination Bill. The second is a Religious Discrimination (Consequential Amendments Bill) which will amend other Commonwealth legislation that is necessary to be consistent with the Religious Discrimination Bill. The third is a Human Rights Legislation Amendment (Freedom of Religion) Bill. This Bill will not provide for any major changes to the law concerning freedom of religion. However, it will make a few significant amendments to the existing law, and importantly, will establish the position of Freedom of Religion Commissioner in the Australian Human Rights Commission.

All of this legislation is welcome; but it is important to recognise that these are relatively modest and uncontroversial steps to better protect religious freedom. Some big issues have been left until after a report of the Australian Law Reform Commission due in April 2020, and will need to be addressed later next year. Other big issues are not currently on the Government’s agenda at all, such as better protection for freedom of speech on matters of faith, and freedom of conscience. The issue of how schools deal with children and young people who express uncertainty about their gender identity is also now emerging as a problem that may need to be addressed legislatively, although it is not an issue only for faith-based schools.

In the long-term, if these big issues are not addressed, the situation for people of faith will continue to deteriorate.

The issues around religious freedom are very important to the future of the country. Will we continue to be a successful multicultural society in which faith is respected or an aggressively secular one in which faith is, at best, tolerated?

Background to the legislation

The current proposals for legislation arose out of the Religious Freedom Review chaired by former Attorney-General, Phillip Ruddock which reported in May 2018. The Panel was overwhelmed by submissions – over 15,500 in just 2 months. It was given many positive proposals for how to better protect religious freedom; but in the end its recommendations were relatively disappointing. It recommended tinkering with the law here and there, but largely this involved making changes at the margins. Some recommendations involved repealing provisions in the law that were intended to protect the rights of religious communities, although none of those recommendations were troubling.

The Ruddock Panel did make an attempt to address the difficult issue of whether faith-based schools should continue to be allowed to discriminate against students or staff on the basis of sexual conduct or gender identity. The current law exempts religious educational institutions from laws that would otherwise prohibit discrimination on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy. The Ruddock Panel recommended changes to the law that would limit these “rights to discriminate”, but the media presented their proposals in the opposite way, as if the Ruddock Panel had recommended increasing religious freedom to permit discrimination against same-sex attracted students. In the end, neither the Government nor the Opposition supported the Ruddock proposals on this issue; but nor could they agree on alternatives. Consequently, the issue was referred to the Australian Law Reform Commission to report next year.

The consequence of this is that in its response to the Ruddock recommendations in December 2018, the Government agreed to move forward only on the uncontroversial ones, which involve relatively minor reforms. The package of legislation currently being drafted gives effect to these policy commitments. These will be explained further below.

However, the Government response did add one element that the Ruddock Panel had not recommended. This is the appointment of a religious freedom commissioner, which had been proposed by Freedom for Faith.

Understanding the Government’s first legislative agenda

The first package of reforms will give effect to the Government’s election commitments to give effect to the uncontroversial proposals made by Ruddock and to establish the office of Religious Freedom Commissioner.

1.     A Religious Discrimination Act

The Ruddock Panel recommended there be a federal religious discrimination Act. Currently, under federal law, it is unlawful to discriminate against someone on the basis of race, age, disability, gender, sexual orientation, marital or relationship status and gender identity. Under the federal Fair Work Act, it is also unlawful for an employer to dismiss a person because of their religion, as well as a range of other grounds such as political opinion or social origin, subject to various exceptions.

In all states and territories except NSW and South Australia, it is unlawful to discriminate against someone on the basis of their religion, again subject to exceptions. So having a federal Religious Discrimination Act, while welcome, is not a major reform. It provides a remedy for discrimination that people in NSW and South Australia would not otherwise have, unless they were dismissed from employment because of their faith. Israel Folau, who lives in NSW, will bring his case under the federal Fair Work Act for unlawful dismissal.

The legislation will also protect people from discrimination on the basis of their non-belief, although of course it will be necessary to ensure that faith-based organisations can still employ people because of their religious commitment. If that were not so, the absurd situation might arise where a local church could not advertise for a Christian administrative assistant. It will also be necessary to ensure that faith-based organisations, such as Christian schools or schools associated with other faiths, can at least prefer to employ staff who are committed to that faith. In the Catholic school system, for example, there is typically a preference to employ people committed to Catholic faith where possible, so that the school has a critical mass of staff who ensure the maintenance of its Catholic identity and ethos. Many other Christian schools have a similar preferential staffing policy for committed Christian staff, formally or informally.

It is possible that the federal Religious Discrimination Act will do nothing more than give rights to people to complain about discrimination on the basis of their faith or absence of faith which they already have in most states and territories. While a Religious Discrimination Act will do little more than fill a gap in federal law, allowing for a nationally consistent approach, it may break new ground if it protects religious organisations from discrimination as well. This is an important issue, for while only individuals can have a gender, a disability, a sexual orientation or a marital status, organisations have religious identities. Faith is communal, as well as individual. Protection from religious discrimination needs to apply to organisations as well. For example, if a conference centre or hotel meeting room facilities are made available to any organisation on a commercial basis, it ought to be unlawful to refuse a booking by a religious organisation.

If the Religious Discrimination Act had been passed before Israel Folau’s conflict with Rugby Australia, would it have made a difference? Folau already has a remedy under federal law for unlawful dismissal on the basis of his religious beliefs if the court finds in his favour. However, the federal Fair Work Act only prohibits termination of employment on the basis of religion. If Rugby Australia had merely suspended Folau for two years or subjected him to other forms of adverse treatment because of his religious belief,  he would have had no remedy under the Fair Work Act. He would have a remedy under the proposed Religious Discrimination Act.

The broader issue arising from the case is whether employers should have the right to censor or control the expression of beliefs, political opinions or moral views twenty-four hours per day and seven days of the week, including on social media. Could Rugby Australia lawfully have sacked Folau for expressing his beliefs in a Sunday morning sermon at his local church? This is not a matter which is being addressed in these initial reforms proposed by the Government.

2.     Legislation on charities

The Government will legislate to make it clear that a charity which supports a traditional view of marriage will not lose its charitable status. This is important because precisely this occurred in New Zealand to an organisation called Family First NZ, following the enactment of legislation permitting same-sex marriage.

3.     Legislation on faith-based schools and same-sex marriage

The Marriage Act is not clear on whether a faith-based school could be required to make available its facilities, or to provide goods or services, for a same-sex marriage ceremony or a reception. Amendments to the Marriage Act will clarify that just as religious bodies are not required to make their facilities available if they have an objection to so doing, nor will faith-based schools be required to do so.

4.     Amendments to federal anti-discrimination legislation

The Human Rights Legislation Amendment (Freedom of Religion) Bill will amend other anti-discrimination laws, including the Sex Discrimination Act, to make clear that in interpreting the legislation, a court must give equal weight to all human rights, not just the right to be protected from discrimination on the grounds provided for in the legislation. This is important, because otherwise there may be a tendency for courts to read exemptions in the Act for religious organisations quite narrowly.

5.     A Freedom of Religion Commissioner

This is an important new initiative. Currently, the Australian Human Rights Commission has a number of commissioners responsible for engaging with the public to reduce discrimination or to promote certain human rights. Examples are the Sex Discrimination Commissioner and the Aboriginal and Torres Strait Islander Social Justice Commissioner. There is a Human Rights Commissioner who is responsible for addressing all other human rights issues that are not the province of any of the other commissioners. His responsibilities are listed on the AHRC website as leading the Commission’s work on detention and implementing the Optional Protocol to the Convention Against Torture (OPCAT); refugees and migration; human rights issues affecting LGBTI people; counter-terrorism and national security; technology and human rights; freedom of expression; and freedom of religion.

This is a diverse list of responsibilities, and freedom of religion comes right at the end of the list.

Freedom for Faith recommended that a dedicated religious freedom commissioner be appointed, given the increasing number of issues that are arising and the importance, for Australia’s future, of having a successful multicultural society in which religious belief is respected.  The Government has accepted this recommendation. One of the functions of the Commissioner will be to conduct an inquiry into freedom of religion, to collect and analyse information on the experience of freedom of religion in Australia at the community level, the experience of freedom of religion impacting on other human rights and the extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society.

6.     Summary of reforms

All of these changes to the law, and the appointment of a Freedom of Religion Commissioner, are welcome; but they only address a small proportion of the religious freedom issues now confronting Australia. Some of the more difficult issues have been referred to the Australian Law Reform Commission. These include how to balance the rights of faith-based organisations with other rights.

The ALRC Inquiry and the Government’s second legislative agenda

It is likely that the Government will need to return to issues concerning religious freedom next year. This is because it has already made promises to amend the Sex Discrimination Act 1984 concerning provisions that exempt faith-based educational institutions from the obligation not to discriminate against students on the basis of sexual orientation, gender identity, relationship status or pregnancy. There is also the issue of exemptions concerning staffing of such schools and faith-based tertiary institutions.

The Australian Law Reform Commission’s terms of reference in this area are wide-ranging. It has been asked to recommend what reforms should be made to relevant anti-discrimination laws, the Fair Work Act 2009 (Cth) and any other Australian law 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.” Its work is directly relevant to the issue of how to amend the Sex Discrimination Act 1984 to fulfil the Government’s promise. It has also been asked to look at legal impediments to the expression of a traditional view about marriage. It will report in April 2020.

Freedom for Faith has argued that the rights of faith-based organisations to maintain their religious identity and ethos and to maintain religiously-based standards on issues of sexual morality and family life are better achieved through positive statements in the law rather than negative statements such as exemptions which allow for discrimination against people – whether on the basis of sexual orientation or other attributes.

For this reason, Freedom for Faith, along with religious leaders from a wide-range of faith groups, have been urging the Government consistently to address this issue by enshrining in national law a right of faith-based organisations to employ staff, or prefer staff, who hold to the religious beliefs of the organisation just as an environmental organisation is likely to want staff who believe in its mission and purpose. This is the best way to support the religious freedom of faith-based organisations in the long-term future.

This will change the discourse from a “right to discriminate” to a “right to select” in terms of staffing policies.

These are now matters for the Australian Law Reform Commission. The Government has yet to commit to any particular reform agenda in this area beyond wanting to remove the right to discriminate against students while allowing faith-based schools and tertiary institutions to teach with a faith perspective on issues such as marriage, and to retain their religious ethos.

Protection of the rights of faith-based organisations to employ or prefer staff who are committed to the faith is the number one religious freedom issue facing Australia in the long-term. That right has long been taken for granted, but is under attack from people who would like to limit such rights of faith-based organisations to retain their religious identity and ethos. Without legislative reform to support this right, it may gradually be whittled away, probably by state and territory anti-discrimination laws.

Other issues

1.     Freedom of speech about religious matters

Freedom of speech on religious matters is an increasingly pressing issue. Usually, these problems arise when people say unpopular things and do so in a way that many of us would think unwise or lacking in grace. That is, the right to freedom of speech tends to be tested by the utterances of people with whom we may well disagree. Whatever we may think about the Israel Folau case, the important question of principle is whether he should have been expelled from the Australian rugby team, and effectively banned for life from his sport, for expressing a view on social media that was a paraphrase of a Bible passage. It is not merely an issue of contractual interpretation, as many claim. There is a general principle that the terms of a private contract cannot override laws designed to prevent discrimination.

The Archbishop Porteous case shows that the protection of freedom of speech in Australia is in a precarious state. Archbishop Porteous was summoned before a Tasmanian anti-discrimination body for distributing a booklet put out by the Australian Catholic Bishops Conference defending its traditional view of marriage. The Australian Catholic Bishops Conference was required to answer the complaint along with Archbishop Porteous.

It ought to be entirely uncontroversial that Catholic Bishops should be allowed to explain Catholic doctrine without fearing legal repercussions. These are foundational freedoms in any democratic society. The complaint was eventually dropped, but the problem is that such laws can be weapons of ‘lawfare’. Such laws, making it unlawful to offend people, are now used as a weapon against others on the basis only that the claimant has been offended, or believes that others would be offended, by some public comment. The defendant is typically put to a lot of effort and expense in responding to such complaints, even if they are eventually discontinued. This may have a chilling effect on freedom of speech.

The issue of presenting a traditional view of marriage has been referred to the Australian Law Reform Commission, but the Porteous case is symptomatic of a wider problem.  Freedom for Faith has urged the Government to pass a Religious Freedom Act to give effect to its international obligations to protect religious freedom in Australia. The effect of such legislation would be to place certain boundaries around the application of state and territory laws to the extent that they impermissibly encroach upon that freedom. It would be up to a court, interpreting and applying the state law, to determine whether its application so interfered with fundamental freedoms in any given situation that to the extent of the inconsistency with federal law it should be regarded as invalid, or alternatively, read down to avoid inconsistency. This would address issues such as the Porteous case, making the state law invalid to the extent that it violated the human right to religious freedom of the Archbishop or others in a similar position.

In this way, federal legislation to protect freedoms could provide a balancing effect to state and territory laws, without improperly interfering with the legislative competence of the states and territories or overriding state or territory laws. A federal Religious Freedom Act would also affect the interpretation of other Commonwealth laws, which courts would be required to interpret taking account of the rights protected in such legislation.

2.     Freedom of conscience

There are very few protections for freedom of conscience anywhere in Australian law.  The most common are in relation to providing abortion services. However, in certain states, even this right is attenuated by provisions that require medical practitioners who have a conscientious objection to abortion to refer women to a practitioner known not to have such an objection.

The case of Dr Mark Hobart in Victoria is illustrative of the need for better protection of freedom of conscience. Dr Hobart, a GP, was requested by a couple to refer them to an abortion practitioner. The woman was 19 weeks’ pregnant at the time. The reason for the request was that during a routine ultrasound, they had discovered that the baby was a girl. As Dr Hobart understood it, the requested abortion was purely for sex selection purposes. He refused to refer, despite his legal obligation to do so. The couple found another practitioner (information being widely available on the internet and elsewhere), and the abortion was carried out one week later. Nonetheless, they made a complaint against Dr Hobart. The Medical Board of Victoria conducted an investigation into his refusal to refer, resulting in a formal caution after an investigation lasting 8 months.

3.     Children and adolescents uncertain of their gender identity

Research consistently shows that most children who experience gender confusion and who are supported by expert clinicians will be able to resolve those problems by the time of, or with the onset of, puberty. Some will not, and a very small number will elect to have gender transition surgery in adulthood to bring their external physical features more into line with their subjective sense of gender identity. Typically, these people have experienced gender dysphoria from quite early in childhood and it has persisted consistently throughout childhood and into adult life.

In the past, gender identity issues of this kind in adults were rare. However, the number of children and young people now identifying, or being identified by a parent, as “transgender” is increasing at an extraordinary rate, giving rise to concerns about proper diagnosis and treatment. One issue is whether at least some children and young people are being swept up in the apparent glamour of a new social movement, coaxed on by “progressive” advocates who support their new-found identity as a matter of “human rights”. These issues are best dealt with in schools pastorally, with the benefit of expert medical advice; but the law currently makes no distinction between the adult who has made a clear and well-considered decision to adopt a different gender identity to his or her natal sex, and the confused teenager who might embrace a new identity and demand to be treated as a gender other than his or her own when he or she has no prior history of gender identity issues.

This is not just a religious issue, but faith-based schools are less subject to control by state education departments than state schools and will want to address these problems without the fear of being sued for “discrimination”. Currently they may be able to do so, depending on what state or territory they are in, but they will lose that right in federal law if the Government removes the current exemption for faith-based schools which allows them to “discriminate” on the basis of gender identity. Put simply, faith-based schools may be sued for not allowing a child or teenager to adopt a female name and identity if enrolled in the school as a male (or vice-versa), even if there is not a clinical diagnosis of gender dysphoria.

Conclusion

The range of religious freedom issues now confronting people of faith in Australia is considerable. The first package of government legislative reforms is welcome, but it is limited. It addresses just a few uncontroversial issues, and it seems most unlikely that there will be any objection to them. It is typically the “progressive” side of politics that is most keen on expanding anti-discrimination laws, so a Religious Discrimination Act could well have been introduced by a Labor government.

The big issues are more difficult. We need to urge parliamentarians on all sides of politics to address them in a constructive way that unites the nation in the shared goal of having a healthy multicultural and multifaith society in which people are at liberty to live out their values and beliefs in different ways, subject to the necessary constraints of any civilised society.

Prof. Patrick Parkinson AM

Chair, Freedom for Faith

July 2019