Australian bishops: religious discrimination bill has merit, but flaws should be fixed

Canberra, Australia, Feb 14, 2020 / 18:01 pm

Australia's Catholic bishops have welcomed changes to a proposed religious discrimination bill to protect religious believers and institutions from discrimination and needless legal action, but they said more work is necessary for an Australia-wide law.

"The draft laws are an important way to help people of faith and the organizations they establish as communities of faith to manifest their religious belief in the service of others," Archbishop Peter Comensoli of Melbourne, chairman of the Australian Catholic Bishops Conference's Commission for Life, Family and Public Engagement, said in his Jan. 31 submission to the Australian government on behalf of the bishops' conference.

The bishops offered suggested changes but said they support the intent of the legislation because of their concern "to ensure that the rights of Catholics and other people who have a religious faith or none are not discriminated against because of their beliefs or activities."

Australia's ruling Liberal-National Coalition government wants to make religious belief and activity a protected class, like race or sex. It also wants to ensure that groups which reject same-sex marriage are not stripped of their charitable status. The bill's provisions also aim to stop employers from policing employees' expression of their religious views in their spare time.

The Catholic bishops of Australia had criticized the first version of the bill, saying it did not go far enough to protect religious freedom, a "crucial component of a free society." They said this freedom includes worship but also public expression of beliefs in charitable work, hospitals, social services, education, and engagement in public life.

They faulted the second draft, in part, because it gives weaker protections to religious employees of small business than to employees of large companies, and no protections whatever to government employees.

Allowing religious discrimination to avoid "unjustifiable financial hardship" to employers, they said, would render religious freedom not a universal human right but "something which depends on where a person works." The provision would allow boycotts, sponsorship withdrawals and similar pressure to create such financial hardships on employers that would then be used to justify discrimination against a religious employee.

Stronger federal protections are needed for healthcare workers and institutions with conscientious objections, the bishops said, especially in states or territories that do not recognize this "universal human right."

"Catholic healthcare agencies decline to provide some particular services because of their religious ethos, but where services are offered they serve all people equally," the bishops said, citing the record of Catholic institutions in the country.

More than 60% of Australians profess a religious faith and more than 20% are Catholic. The Catholic Church provides about 10% of the country's health care services and is the largest non-government grouping of hospitals and elder services and community care services. Its social services help more than 450,000 Australians annually, while 1,700 schools educate 760,000 students and two Catholic universities serve 46,000 students.

Australia's many organizations run by religious communities need assurance that they can continue to operate in accordance with their beliefs, the bishops said. The legislation has a complicated task to ensure it does not unintentionally curtail religious freedom, such as by requiring a religious organization to "employ a person who was opposed to its religious and ethical beliefs."

"Religious schools, health services and welfare agencies need to be able to hire staff who support their religious mission and to set employee conduct stand," said Australia's bishops. They said it is "alarming" that some political parties seek to amend legislation to ensure that proposed protections will have "little effect" in their state. They backed a universally applicable law.

The bishops faulted the current law's treatment of religious objections simply as exceptions or exemptions, which wrongly give the impression that "religious freedom rights are somehow subordinate to other concerns." They praised the proposed legislation for putting forward "a positive expression of the right to religious freedom."

Michael Stead, an assistant bishop in the Anglican Diocese of Sydney and chair of its religious freedom reference group, has also praised the bill but called for changes.

The Anglican Church sees the second draft as a "significant improvement." However, it suggested that the bill's definition of a religious body was "very clumsy" and should be defined as "a body which has the purpose of advancing religion" regardless of whether it is a charity. This would be a more satisfying way to determine which religious bodies may still prefer staff of the same religion.

At the same time, Stead said the definition is still limited to non-profit entities and would not protect commercial service providers such as Christians who bake cakes, the U.K. newspaper The Guardian reports.

The Australian Human Rights Commission, a government-funded but independent NGO, has said that while it supports the prohibition of religious discrimination, it objected that its provisions "provide protection to religious belief or activity at the expense of other rights." The bill is not an appropriate way to apply international human rights law and its provisions limit other human rights in a way that is "unnecessary and disproportionate or otherwise inconsistent with international law."

The commission backed religious protections in employment decisions only where it is an "inhterent requirement of the job," like a religious minister. Where religious bodies provide a public service with government funding it should be done "in a non-discriminatory way."

Ed Santow, the Australian Human Rights Commissioner, said the bill does not protect "the entire community equally." The exemptions are too broad and protect "the right to religion for some at the expense of religious equality of others," he objected.

Stead, the Anglican bishop, said there are precedents for many religious protections. He said criticisms of protections of religious speech put forward by the Australian Human Rights Commission and LGBT advocacy groups were "so extreme as to be laughable."

"The kind of 'right to be a bigot' cited in some submissions is not the reason why religious communities are asking for these protections," he said. "We want them to ensure religious people are not going to lose their job, be excluded from courses or professional bodies merely because of expressing religious beliefs."

Stead characterized the proposal as "a sensible balance between the right of freedom of religion with other rights."

The Australian Medical Association said the bill would allow some doctors to suffer employment discrimination on the basis of religious belief. Dr. Chris Moy, chair of the association's ethics and medical-legal committee, said current law allows doctors to conscientiously object, including to matters like contraception provision, but changes could allow them to "just walk away" from patients.

Ghassan Kassisieh, legal director of the LGBT group Equality Australia, characterized protections for religious organizations as a "blanket exemption" in elder care, hospitals and charity services. He objected that the bill would ban only statements which "seriously intimidate," while the current law bans "when degrading or humiliating things are said in the workplace, or in schools or during the provision of services."

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For Australian Attorney-General Christian Porter, the proposal would ensure that people "can't be the subject of a discrimination act complaint for the mere statement of religious belief." Employer conduct codes cannot constrain employees from making "non-malicious non-vilifying statements of religious belief in their spare time."

"People of religion would, I think, rightly consider saying what they believe is a necessary part of their religiosity," he said, according to The Guardian.

The proposed legislation follows controversy over the treatment of Israel Folau, a devout Christian and professional rugby star, who was fired by Rugby Australia in May 2019 after a post on Instagram. The post listed "drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolaters" above the statement "Hell awaits you."

Folau cited the right to freedom of religion and freedom of expression, saying he was expressing a Biblical idea. Upholding his religious beliefs, he said, "should not prevent my ability to work or play for my club or country."

Some religious group opposed protections.

"We don't discriminate and don't believe others should have the right to discriminate or, in fact, engage in any bigotry in the name of religion," said Bronwyn Pike, chief executive of the Uniting Church's Victoria and Tasmania community services group Uniting Vic.Tas.

Pike told SBS News the bill is "a stalking horse for people who want to promulgate homophobic and misogynist views in the name of religion."

There are strong signs that the opposition is unlikely to support the government's bill, The Guardian reports.

In November, opposition leader Anthony Albanese told the Labor caucus, "we support freedom of religion but we don't support increasing discrimination in other areas."

However, Porter has claimed there are a variety of views inside the Labor Party. He said suggested changes can't detract from the bill's central purpose "to protect Australians of religion from real world circumstances … which detract from their ability to be free from discrimination based on their religion."

In the United States, a strong push against religious freedom protections has drawn millions of dollars in grants to university programs, legal groups, and LGBT and pro-abortion rights groups. Catholic adoption agencies in some states have been shut down or barred from taxpayer funds because they cannot in good conscience place children with same-sex couples. Lawsuits and legal complaints have targeted professionals in the wedding industry whose religious beliefs bar them from serving same-sex ceremonies.

There have been few U.S. proposals to protect employees from hostile employment action based on their religious statements outside of work.