Freedom to discriminate

Section 116 of the Australian Constitution states:

“The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.”¹

This guarantees religious freedom in Australia, despite doubt arising as to the value of anything guaranteed by the Constitution, given the government’s cavalier attitude to Section 44 of it². So what is the Government on about with regard to what it calls ‘religious freedom’ legislation?

The government instituted a ‘religious freedom’ review by a panel chaired by former Howard minister Philip Ruddock. This panel reported its findings to the government in the first half of 2018³. The panel came up with 20 recommendations (see appendix 1).

These recommendations fall into several groups. These are:

1. Making sure all jurisdictions’ laws are compatible with Commonwealth law: Recommendations 1, 16, 20

This is a matter of making sure that the laws and exemptions to those laws are consistent across all jurisdictions within Australia, as there are numerous instances where such laws are incompatible with those suggested.

• Limitations: Recommendations 2, 3

This is to make sure that any changes to the legislation are consistent with international law and international covenants, such as the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights⁴.

• Maintaining the ability to indulge in hate-speech: Recommendations 4, 15.

Despite the government attempting to threaten charities advocating for the poor or anyone else who is disadvantaged, a charity advocating against same-sex marriage will not be disqualified. The way this is worded in Recommendation 4 is as advocacy for ‘traditional marriage’. This is simply code for advocating discrimination against same-sex couples. It is hate speech in that it argues that same-sex couples are not worthy of being able to marry. If any heterosexual married couple had their marriage devalued by the fact that a couple up the road was in a same-sex marriage, I haven’t met any. Indeed, one could ask the same people if the fact that the Netherlands has had same-sex marriage for 18 years has affected their marriage. If the answer differs for either question, on should ask why. Is it solely a matter of distance? Neither have affected my marriage in the slightest. Recommendation 15 suggests either emending the Racial Discrimination Act or enacting a Religious Discrimination Act, to prevent discrimination on the basis of a person’s ‘religious activity’, which presumably would include something like Folau’s transgressions. Whether such ‘religious activity’ can be prevented by including them in a person’s employment remains to be seen, but I suspect is unlikely.

• Maintaining the ability to discriminate: Recommendations 5, 6, 7, 8, 9, 10, 11, 12.

As I have suggested elsewhere, this is mostly what ‘religious freedoms’ are about: the continued ability of the religious to discriminate⁵. Unsurprisingly it is largely to do with sexuality, something that greatly occupies the prurient minds of the religious. Recommendation 5 would allow discrimination against employees or prospective employees of religious schools on the basis of sexuality, gender or relationship status. Recommendation 6 would prevent discrimination against current religious school employees, except in the case of homosexuality. Recommendation 7 would allow discrimination against students or prospective students on the basis of sexuality, gender or relationship status. Recommendation 8 would prevent discrimination against current students except in the case of homosexuality. Recommendation 9 would allow children to be removed from classes on religious or moral instruction, but this is followed by an odd statement stating that the rights of the child need to be considered “including to received information about sexual health, and their progressive capacity to make decisions for themselves.” This indicates that that they aim to make it difficult to withdraw the child, and suggests that the request may be denied. Recommendation 10 states that marriage celebrants should be made aware of their rights to refuse to officiate at same-sex ceremonies. Recommendation 11 states that the beliefs of minor sects or cults should be accounted for. Recommendation 12 states that religious schools can discriminate against same-sex couples when considering whether to hire out their facilities.

• Abolition of blasphemy as an offence: Recommendations 13, 14

This is a surprisingly bright spot in these recommendations, but on the surface, it is really not that important, as the last prosecution for blasphemy was in 1919⁶. However, to prevent the religious nutters in government from using these to punish those who ridicule their bizarre beliefs, it may be important to pre-empt any such possibility by getting rid of these laws.

• Propaganda etc.: Recommendations 17, 18, 19

Recommendation 17 suggests collecting data on the experience of religious freedom in Australia, including violence, harassment, discrimination, etc. I expect that this would be something worth doing before there was any thought about legislating more discrimination. It will be funny to watch how things transpire in parliament, now Pauline Hanson has realised that any religious freedom legislation will ‘protect’ Islam as much as it will Christianity⁷. Recommendation 18 concerns ‘religious engagement’ and public education about human rights and religion. Mentioning human rights is rich coming from a government which seems unconcerned about incarcerating asylum-seekers, including children, seemingly interminably, keeping the unemployed below the poverty line, allowing pensioners to sink below the poverty line, and allowing homelessness to increase on its watch such that now 116,000 Australians are homeless⁸. Recommendation 19 suggests that the Human Rights Commission lead the protection of religious freedom.

The government has responded to the Ruddock Review and has stated that it accepts the central conclusion of the review. It states that it accepts directly or in principle 15 of the 20 recommendations, but accepts the principles underpinning the remaining 5 recommendations. Fourteen recommendations (2, 3, 4, 9-14, 16-20) are to be implemented as soon as possible. Recommendation 15 is to be implemented after seeking bipartisan support. Five recommendations (1, 5-8) will require further consideration by the Australian Law Reform Commission (ALRC)³.

From this, it is clear that in addition to making sure all the laws are compatible across jurisdictions (Recommendations 16, 20), the government realises that it needs to appear to toe the line with regard to human rights (Recommendations 2, 3). It also is quite happy to allow the continuation of hate speech (Recommendation 4), and discrimination against same sex couples (Recommendations 10-12). It will remove blasphemy as an offence (Recommendations 13, 14), and will indulge in propaganda (i.e. public education) (Recommendations 17-19). Provisions allowing discrimination against employees and students in religious schools (Recommendations 5-8) are being reviewed by the ALRC. So, as can be seen from the government reaction to the Ruddock Review, the most important thing for the religious is to allow them to discriminate against same-sex couples and individual homosexuals. This is just another rearguard action by the religious as their bigotries are being eroded by the advancement of society.

Tasmania became the last Australian state to decriminalise sex between consenting adult men in private. This stemmed from an effort across the state with a public education campaign which raised the support for reform from 33% in 1988 to 60% in 1997. This was the highest level of support for homosexual law reform in any Australian State. The law finally changed in 1997⁹. In 1994, the Coalition Minister for the 19^th Century, Eric Abetz, argued against the decriminalisation of homosexuality in Tasmania saying that it was the thin end of the wedge. He also stated that the same sex marriage vote in 2017 was the thin end, presumably, of the same wedge¹⁰. These statements are true, in that they are the wedges which are leading us to a more equal, less discriminatory society. This sad attempt at legislating the churches’ ability to discriminate is just another hurdle to be overcome in the progress towards a modern society. As Robert Heinlein said “Almost any sect, cult, or religion will legislate its creed into law if it acquires the political power to do so.” Now, the Morrison government believes it has that power, and it is replete with religious nutters. If we let them get away with this, it will take us longer to get where we want to go, and we will only have ourselves to blame.

Sources

1. http://www.blotreport.com/society/protection-from-the-religious/
2. http://www.blotreport.com/australian-politics/citizenship-coverup-continues/
3. https://www.pmc.gov.au/domestic-policy/religious-freedom-review
4. https://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/SiracusaPrinciples.pdf
5. http://www.blotreport.com/society/religious-freedom-and-declining-power/
6. https://theconversation.com/blasphemy-is-still-a-crime-in-australia-and-it-shouldnt-be-78990
7. https://www.9news.com.au/national/religious-freedom-laws-pauline-hanson-fears-changes-will-encourage-radical-islam/29379f63-3030-44e1-bece-474a4f046250
8. http://www.blotreport.com/australian-politics/on-the-street/
9. https://www.utas.edu.au/library/companion_to_tasmanian_history/G/Gay%20Law%20Reform.htm
10. http://www.blotreport.com/australian-politics/eric-abetz-minister-for-the-19th-century/

Appendix 1: Ruddock Review Recommendations

1. Those jurisdictions that retain exceptions or exemptions in their anti-discrimination laws for religious bodies with respect to race, disability, pregnancy or intersex status should review them, having regard to community expectations.
2. Commonwealth, State and Territory governments should have regard to the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights when drafting laws that would limit the right to freedom of religion
3. Commonwealth, State and Territory governments should consider the use of objects, purposes or other interpretive clauses in anti-discrimination legislation to reflect the equal status in international law of all human rights, including freedom of religion.
4. The Commonwealth should amend section 11 of the Charities Act 2013 to clarify that advocacy of a ‘traditional’ view of marriage would not, of itself, amount to a ‘disqualifying purpose’.
5. The Commonwealth should amend the Sex Discrimination Act 1984 to provide that religious schools can discriminate in relation to the employment of staff, and the engagement of contractors, on the basis of sexual orientation, gender identity or relationship status provided that: (a) the discrimination is founded on the precepts of the religion, (b) the school has a publicly available policy outlining its position in relation to the matter and explaining how the policy will be enforced and (c) the school provides a copy of the policy in writing to employees and contractors and prospective employees and contractors
6. Jurisdictions should abolish any exceptions to anti-discrimination laws that provide for discrimination by religious schools in employment on the basis of race, disability, pregnancy or intersex status. Further, jurisdictions should ensure that any exceptions for religious schools do not permit discrimination against an existing employee solely on the basis that the employee has entered into a marriage.
7. The Commonwealth should amend the Sex Discrimination Act to provide that religious schools may discriminate in relation to students on the basis of sexual orientation, gender identity or relationship status provided that: (a) the discrimination is founded on the precepts of the religion, (b) the school has a publicly available policy outlining its position in relation to the matter, (c) the school provides a copy of the policy in writing to prospective students and their parents at the time of enrolment and to existing students and their parents at any time the policy is updated and (d) the schools has regard to the best interests of the primary consideration in its conduct.
8. Jurisdictions should abolish and exceptions to anti-discrimination laws that provide for discrimination by religious schools with respect to students on the basis of race, disability, pregnancy or intersex status.
9. State and Territory education departments should maintain clear policies as to when and how a parent or guardian may request that a child be removed from a class that contains instruction on religious or moral matters and ensure that these policies are applied consistently. These policies should: (a) include a requirement to provide sufficient, relevant information about such classes to enable parents or guardians to consider whether their content may be inconsistent with the parents’ or guardians’ religious beliefs, and (b) give due consideration to the rights of the child, including to receive information about sexual health, and their progressive capacity to make decisions for themselves.
10. The Commonwealth Attorney-General should consider the guidance material on the Attorney-General’s Department’s website relating to authorised celebrants to ensure that it uses plain English to explain clearly and precisely the operation of the Marriage Act 1961. The updated guidance should include (a) a clear description of the religious protections available to different classes of authorised celebrants, and (b) advice that the term ‘minister of religion’ is used to cover authorised celebrants from religious bodies which would not ordinarily use the term ‘minister’ including non-Christian religions.
11. The Commonwealth Attorney-General should consider whether the Code of Practice set out in Schedule 2 of the Marriage Regulations 2017 is appropriately adapted to the needs of smaller and emerging religious bodies.
12. The Commonwealth should progress legislative amendments to make it clear that religious schools are not required to make available their facilities, or to provide goods or services, for any marriage, provided that the refusal: (a) conforms to the doctrines, tenets or beliefs of the religion of the body, or (b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
13. Those jurisdictions that have not abolished statutory or common law offences of blasphemy should do so.
14. References to blasphemy in the Shipping Regulations 1981, and in State and Territory primary and secondary legislation, should be repealed or replaced with terms applicable not only to religion.
15. The Commonwealth should amend the Racial Discrimination Act 1975, or enact a Religious Discrimination Act, to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’, including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
16. New South Wales and South Australia should amend their anti-discrimination laws to render it unlawful to discriminate on the basis of a person’s ‘religious belief or activity’ including on the basis that a person does not hold any religious belief. In doing so, consideration should be given to providing for the appropriate exceptions and exemptions, including for religious bodies, religious schools and charities.
17. The Commonwealth should commission the collection and analysis of quantitative and qualitative information on: (a) the experience of freedom of religion in Australia at the community level including – (i) incidents of physical violence, linked to a person’s faith, (ii) harassment, intimidation or verbal abuse directed at those of faith, (iii) forms of discrimination based on religion and suffered by those of faith, (iv) unreasonable restrictions on the ability of people to express, manifest or change their faith, (v) restrictions on the ability of people to educate their children in a manner consistent with their faith; (b) the experience of freedom of religion impacting on other human rights, and (c) the extent to which religious diversity (as distinct from cultural diversity) is accepted and promoted in Australian society.
18. The Commonwealth should support the development of a religious engagement and public education program about human rights and religion in Australia, the importance of the right to freedom of religion and belief, and the current protections for religious freedom in Australia and international law. As a first step, the Panel recommends that the Attorney-General should ask the Parliamentary Joint Committee on Human Rights to inquire into an report on how best to enhance engagement, education and awareness about these issues.
19. The Australian Human Rights Commission should take a leading role in the protection of freedom of religion, including through enhancing engagement, understanding and dialogue. This should occur within the existing commissioner model and not necessarily through the creation of a new position.
20. The Prime Minister and the Commonwealth Attorney General should take leadership of the issues identified in this report with respect to the Commonwealth, and work with the States and Territories to ensure its implementation. While the Panel hopes it would not be necessary, consideration should be given to further Commonwealth legislative solutions if required.