Christian think tank warns of flaws in Australian religious discrimination bill

Canberra, Australia, Oct 1, 2019 / 18:01 pm

Freedom for Faith, a Christian legal think tank, expressed concerns last week over unintended consequences of the Australian government's religious discrimination bill, urging that it be re-drafted before it is passed.

"Freedom for Faith welcomes the considerable efforts that the Government has made to consult on the drafting of this Bill. Many features of it are very good, including general provisions for protection of people of faith from discrimination in Commonwealth law; but Freedom for Faith also has significant concerns about certain provisions which have consequences that are probably unintended," the group said in its Sept. 25 submission in consultation on the bill.

The most prominent concerns of the think tank, which says it "exists to see religious freedom protected and promoted in Australia", relate to staffing policies in faith-based institutions; use of property inconsistent with a religious purpose or religious beliefs; and enrolment of students in faith-based educational institutions.

The religious discrimination bill is intended make it unlawful to discriminate against people on the ground of their religious belief or activity; establish a religious freedom commissioner at the Australian Human Rights Commission; and amend existing laws regarding religious freedom, including marriage and charities law, and objects clauses in anti-discrimination law.

The coalition government wants to make religious belief and activity a protected class, like race or sex. It also hopes to ensure that groups rejecting same-sex marriage are not stripped of their charitable status.

In its current version, the bill would not protect religious statements that are "malicious, would harass, vilify or incite hatred or violence against a person or group or which advocate for the commission of a serious criminal offence".

Freedom for Faith maintains that as it is written, the bill could "suggest a very limited scope for religious organisations to retain their ethos and identity, and conversely an expansive scope for suppression of free speech. It is difficult to reconcile these Notes, at various points, with government policy as expressed by the Prime Minister and Attorney-General."

Freedom for Faith said that "the overwhelming concern of faith-based organisations across the country with whom we have spoken is about the effect of the Bill on their religious mission, with particular reference to their staffing policies."

Prime minister Scott Morrison has promised the bill will not take religious freedom backward, but the think tank stated that "the difficulty is that this Bill does, in relation to staffing of faith-based organisations … If the issues are not resolved, this may lead us to conclude that the Bill is better not being enacted. That said, we have every confidence that the Attorney-General will be able to sort the drafting problems out."

Freedom for Faith said it is important that faith-based groups be able to appoint adherents of their religion, as their programs are part of their mission and ministry.

"This Bill, in its present form, will make it very difficult indeed for faith-based organisations to preserve their identity and ethos, although the Explanatory Notes to s.10 say that it is the Government's intention to support the rights of faith-based organisations to retain their culture and ethos in their staffing policies," the legal group wrote.

It warned that the bill supports "the view that only faith-based organisations with a policy of requiring all staff and volunteers to be adherents to the faith will be protected," while many such organizations in fact only prefer that that staff be adherents, or that there be a "critical mass" of adherents so as to preserve its character as a religious ministry.

"Even if a Catholic school or other charity did have a policy of only employing Catholic staff, it would only be lawful if this could reasonably be regarded as in accordance with the doctrines, tenets, beliefs and teachings of Catholicism," the think tank warned, as an example.

"That may be a difficult test to satisfy in the eyes of a court," it continued. "The court may find it hard to see how the Catholic school's preference in terms of employment may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion. The school, however, may take the view that it is a necessary implication of their doctrines that they want to maintain a Catholic ethos by having a 'critical mass' of believing staff. Whether or not this policy does flow from religious doctrines – it is really about the purpose of having a Catholic school – it would be best if the legislation made it clear that such a policy was not unlawful."

Another problem in the bill identified by Freedom for Faith is that its definition of a "religious body" excludes hospitals, aged care providers, publishing houses, and youth campsites run by religious groups.

As written, the bill would "prevent Christian publishers and Christian youth campsites advertising for Christian staff. This would be a bizarre and profoundly damaging outcome of laws ostensibly designed to bolster religious freedom," the legal group noted.

Freedom for Faith urged that the bill "make a positive statement … that it is lawful for a religious body, a faith-based educational institution or a charity established for religious purposes, to appoint, or prefer to appoint, staff who practise the religion with which the organisation is associated."

It said this is preferable to the bill creating exemptions so as "to get away from the language of having a 'right to discriminate'"; because "there is a lot of opposition from the left of politics to any exemptions under anti-discrimination laws," and there would be campaigns for repeal; and because, since the government has asked the Australian Law Reform Commission to report on how to balance competing claims of religious freedom rights and LGBT rights, "it does not make much sense to create new exemptions in legislation at the same time as two organisations that report to the Attorney are busily working to reduce or eliminate them."

The second main objection of Freedom for Faith is that the bill could make some religious groups "act contrary to their beliefs if they were never permitted to rely on good faith religious objections to the use of their premises." For example, a Catholic hospital could be made to provide euthanasia on its premises.

Thirdly, the legal think tank said the bill's current form "may not allow schools to preference students of a particular faith. So for example, Catholic schools may not be allowed to give preference for admission" to the Catholic children.

Freedom for Faith suggested a number of other, minor improvements to the bill, and provided a suggested draft for a new section on employment.

Similarly, the Anglican Diocese of Sydney, which has reportedly worked closely in the past with the local Catholic diocese, has said the religious discrimination bill is so flawed that it cannot be supported in its current form.

Some conservative members of parliament have asked instead for a religious freedom bill. Senator Concetta Fierravanti-Wells, of the Liberal Party, voiced concerns July 9 that the bill does not go far enough, saying it "would be defensive in nature and limited to protecting against acts and practices by others which are discriminatory on the grounds of religion."

She said that "quiet Australians now expect the Coalition to legislate to protect their religious freedom."

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Australia has seen debate over religious freedom in recent years with respect to the seal of the confessional, hiring decisions, and same-sex marriage.

Archbishop Anthony Fisher of Sydney noted last year that "we cannot take the freedom to hold and practice our beliefs for granted, even here in Australia," and that "powerful interests now seek to marginalize religious believers and beliefs, especially Christian ones, and exclude them from public life. They would end funding to faith-based schools, hospitals and welfare agencies, strip us of charitable status and protections."