So, in Part 1 of this series I discussed the religious dimensions of the Israel Folau case, and in Part 2 I provided a summary of how international human rights treaties frame religious and other freedoms. Now, onto the current Australian legislation. The Commonwealth Attorney-General, Christian Porter, released the government's draft Religious Discrimination Bill at the end of August 2019, with a consultation period of a little over a month (ending October 2).
The drive to legislate for religious freedom gained pace during the process of legalising same sex marriage, and is a kind of compensation to conservative religious people for losing that battle. In the wake of that process the government established a Religious Freedom Review led by former Attorney-General Phillip Ruddock. This review found that there is no particular immediate threat to religious freedom in Australia.
The Panel also heard that, as a whole, Australians generally enjoy religious freedom. Most stakeholders of faith acknowledged that, by and large, they have been free to observe their religious beliefs. Those from faiths that face persecution overseas were particularly vocal in acknowledging the relative safety that Australia affords people of different faiths. These perspectives highlighted that religious freedom is precious and that it needs to be actively preserved.
However, it did find that there was fear in some quarters about potential future discrimination, and it found that current laws on religious freedom and religious discrimination are complex and inconsistent across States and territories. It's recommendations about future legislation were somewhat ambiguous.
Recommendation 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.
Recommendation 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.
In other words, they concluded there is not a serious problem in Australia over religious freedom but there are some small problems which could be fixed. In the end, the Coalition decided that despite the reluctance of the review panel, it would address these problems by enacting a new Religious Discrimination Act, the draft of which has been recently released.
There is a lot to like in this Act. It takes up many of the aspects of religious freedom expressed in the international covenants. For instance, religion is defined broadly to include any belief, including atheism or agnosticism, and to protect the practice and expression of these beliefs in general. The practice of religion can include a wide range of things, including participating in religious activity, wearing religious dress or symbols, engaging in or refraining from various activities for religious reasons, and expressing religious views (including evangelism/proselytisation).
Discrimination is defined as including both direct discrimination (like refusing to hire a well-qualified person for a job simply because of their religion) and indirect discrimination where conditions of employment or participation in something unreasonably disadvantage people of a particular faith (for instance, a uniform which requires women to leave their heads uncovered discriminates against women of faiths which require that they be covered). In such cases, an employer would need to show that the condition was a necessary part of the job - for instance, that certain clothing standards were necessary to protect workplace health and safety, or that the job positively required work on holy days or times because of the inherent requirements of the task.
It then addresses the place of discrimination by religious organisations. Such discrimination is protected in certain circumstances. Religious organisations - including religious schools and charities - are able to positively discriminate in favour of people who adhere to their published statements of belief and conduct and to exclude those who choose not to do so.
This is all good stuff and it is good to see it clarified in a single piece of legislation. However, other aspects of the law are less clear and more controversial, and these have seen it criticised from both sides of the divide. For instance, no-one questions that ministers of religion or chaplains should be required to be of particular faiths, but what of teachers in religious schools? The act appears to include schools as religious institutions at which religious requirements can be enforced on both staff and students - hence both openly gay teachers and students could be excluded on religious grounds. This is despite religious schools publicly stating that they have no wish to do so - but I suppose they can still choose.
On the other hand, Christian bakers are not protected since purely commercial activities are excluded by the Act, although it is not entirely clear what this category does and does not cover. Is a religious-run aged care service a commercial activity, or a charitable one? And while charities are able to discriminate in employment they are not able to discriminate in the distribution of benefits - you can require the person who gives out food parcels to be a practicing Christian/Muslim/Buddhist, but not the person who receives them.
The Act also specifically addresses the question of employee conduct requirements which extend beyond the workplace like the one that tripped up Israel Folau. However, Folau and his supporters will not necessarily be comforted by the provision. It only applies to businesses with turnover of more than $50m, and businesses are required to demonstrate a commercial reason for the restriction of people's behaviour in their own time. So if Israel Folau's expression of his views on homosexuality, however strongly and sincerely held, puts Rugby Australia's sponsorships or revenue at risk it is within its rights to prevent him from expressing them.
These uncertainties, and others like them, point to the weakness of the government's approach to legislating on religious freedom, and to the shallowness of some of the debate on the issue.
The thing is, the threats to religious freedom in Australia are small and, in the main, not in the areas that have prompted this Act. The strongest challenge to religious freedom in our community at the moment is that presented by the far Right in relation to Islam, with its proposals to ban mosque construction, install surveillance devices in mosques and 'ban the burqa'. These calls have not penetrated far into our political mainstream in the main, but it is interesting that the short-lived ban on face-covering garments in the parliamentary precinct in 2014, while it drew a strong backlash, did not prompt calls for religious freedom legislation. It was only when conservative Christians felt threatened themselves that they began to agitate for law reform.
Where the tensions come is not in any challenges to the right to religious belief or observance in themselves. They are to be found in the boundaries between religious freedom and the other freedoms recognised in human rights law - especially, in our current context, freedom from sexual discrimination. It also comes at the boundaries between religions. These boundary issues are inherently difficult to navigate, and this legislation does nothing to make this navigation easier.
One example is that of religiously-inspired speech. This Act would protect the rights of people to express their beliefs (whether religious or anti-religious) both in private and in public. 'However,' the explanatory notes to the Bill explain, 'this provision does not protect 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.'
This would clearly exclude, for instance, an Islamic State recruiter urging Muslims to kill infidels, or an anti-gay extremist suggesting violent disruption of the Sydney Mardi Gras. But how, for instance, does it apply to the Delaney/Porteous case I discussed in Part 2 of this series? When the Catholic Church says that 'messing with marriage is messing with children' is this vilification? Martine Delaney says it is, Archbishop Porteous says it isn't. How is such a difference in perception to be resolved, and what does this mean for our conduct?
How does it apply to Israel Folau's assertion that homosexuals are bound for hell? Is this a malicious statement? Israel doesn't intend it to be, but others read it that way. Whose perception should prevail? When Christian and atheist preachers assert that Islam is inherently violent, is this a legitimate critique of religion, or an incitement to hatred? Those who express this view point to passages in the Q'uran that support their assessment. Islamic preachers point out that this is not the view generally held in Islam, and that such preaching fuels public harassment of Muslims. How is freedom of expression to be squared with the risk to the safety of ordinary Australians?
It is these uncertainties that mainly sit behind the criticisms of the draft bill, and the reason that advocates on different sides of the fence have made remarkably similar-sounding criticisms. Human rights advocates have argued, for instance, that it provides too much protection for religious speech, overriding provisions in State legislation which can be seen to have broader application like those in Tasmania's act which prevent speech which 'offends, insults or humiliates'. They are concerned that the weakening of these protections place vulnerable people at risk, including LGBTIQ people and people with disabilities, and that they privilege religious speech over speech by non-religious people.
On the other hand, conservative religious groups are concerned that it does not provide strong enough protections for religious freedom. For instance, the Sydney Anglican Diocese and Freedom for Faith have argued that the exclusion of commercial activities from the right to discriminate could mean that Christian-run youth organisations or aged care services could not preferentially hire Christian staff and could even be forced to host Satanist events. (I kid you not, they actually said that.) They are also concerned that the term 'vilify' is unclear and could unfairly restrict religious speech, and that the 'Israel Folau clause' could encourage sponsors to act more precipitately in withdrawing sponsorships.
It might be tempting to argue that if the government is being criticised from both the left and the right, it may have arrived at a reasonable and moderate solution. It could also just be that the bill is vague so it could possibly have a number of outcomes depending on how courts end up interpreting it. There is probably some truth in both these suggestions, but I don't think they get to the heart of the problem.
The international human rights treaties which form the basis of more detailed national laws deal with human rights as a package. They list a set of rights which are seen to be universal and which exist alongside one another. All these rights must be respected, and each of them can be exercised freely. But there are logical limits to these rights, because they end at the point where they interfere with someone else's rights. Because we all live in communities and have responsibilities to one another, we need to exercise our own rights in a way that respects and supports the rights of others, including those who are different to us.
The best way to protect these rights in our communities is to legislate for them as a package, in a way that mirrors and amplifies the treaties they come from. Rights can be listed and codified, their limits delineated, and processes put in place to deal with situations where such rights may be breached or where they come into conflict. This then sets a framework in which tensions between rights can be negotiated. The best designed laws emphasise quick, low-cost mediation processes, with more formal litigation and court or tribunal hearings as a last resort.
Various pieces of State legislation attempt to do this in Australia, including Queensland's newly-enacted Human Rights Act and Tasmania's longer-standing Anti-Discrimination Act. However, this approach to legislation has its problems. A piece of State legislation can only operate within a particular State, and can only cover the sphere of responsibilities of State government. States can't bind the Commonwealth or its agencies. The various State laws are different - for instance while the Queensland act includes religious freedom, the Tasmanian one does not mention it, so conduct that would prevented in one State would be OK in another.
These problems could perhaps be solved by a uniform national law, agreed to by States and Commonwealth. However, various attempts to legislate a comprehensive human rights act at Commonwealth level have failed, most recently Tasmanian Independent MP Andrew Wilkie's 2017 Human Rights Bill. As a result, at national level we have a patchwork of individual Acts - Racial Discrimination, Disability Discrimination, Sex Discrimination, and now Religious Discrimination if this is passed. These acts are fine in themselves but fall well short of the sort of comprehensive human rights protections the international treaties point towards. They also make clashes of rights murkier and harder to resolve.
The Religious Discrimination Act adds to this problem rather than solving it. By codifying a set of rights (most of which were already implied in other laws or common law) it sets up another stand-alone piece of legislation which, as time passes, will need to be tested against rival laws. Religious rights will compete with sexual rights, disability rights, and so forth. Whose rights will win? It remains to be seen. This Act does not, and cannot, tell us.
I conclude this series with Part 4, which suggests a different way for Christians to approach this question, one that I feel is more consistent with the teaching of Jesus and the apostles.
The Panel also heard that, as a whole, Australians generally enjoy religious freedom. Most stakeholders of faith acknowledged that, by and large, they have been free to observe their religious beliefs. Those from faiths that face persecution overseas were particularly vocal in acknowledging the relative safety that Australia affords people of different faiths. These perspectives highlighted that religious freedom is precious and that it needs to be actively preserved.
However, it did find that there was fear in some quarters about potential future discrimination, and it found that current laws on religious freedom and religious discrimination are complex and inconsistent across States and territories. It's recommendations about future legislation were somewhat ambiguous.
Recommendation 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.
Recommendation 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.
In other words, they concluded there is not a serious problem in Australia over religious freedom but there are some small problems which could be fixed. In the end, the Coalition decided that despite the reluctance of the review panel, it would address these problems by enacting a new Religious Discrimination Act, the draft of which has been recently released.
There is a lot to like in this Act. It takes up many of the aspects of religious freedom expressed in the international covenants. For instance, religion is defined broadly to include any belief, including atheism or agnosticism, and to protect the practice and expression of these beliefs in general. The practice of religion can include a wide range of things, including participating in religious activity, wearing religious dress or symbols, engaging in or refraining from various activities for religious reasons, and expressing religious views (including evangelism/proselytisation).
It then addresses the place of discrimination by religious organisations. Such discrimination is protected in certain circumstances. Religious organisations - including religious schools and charities - are able to positively discriminate in favour of people who adhere to their published statements of belief and conduct and to exclude those who choose not to do so.
This is all good stuff and it is good to see it clarified in a single piece of legislation. However, other aspects of the law are less clear and more controversial, and these have seen it criticised from both sides of the divide. For instance, no-one questions that ministers of religion or chaplains should be required to be of particular faiths, but what of teachers in religious schools? The act appears to include schools as religious institutions at which religious requirements can be enforced on both staff and students - hence both openly gay teachers and students could be excluded on religious grounds. This is despite religious schools publicly stating that they have no wish to do so - but I suppose they can still choose.
On the other hand, Christian bakers are not protected since purely commercial activities are excluded by the Act, although it is not entirely clear what this category does and does not cover. Is a religious-run aged care service a commercial activity, or a charitable one? And while charities are able to discriminate in employment they are not able to discriminate in the distribution of benefits - you can require the person who gives out food parcels to be a practicing Christian/Muslim/Buddhist, but not the person who receives them.
The Act also specifically addresses the question of employee conduct requirements which extend beyond the workplace like the one that tripped up Israel Folau. However, Folau and his supporters will not necessarily be comforted by the provision. It only applies to businesses with turnover of more than $50m, and businesses are required to demonstrate a commercial reason for the restriction of people's behaviour in their own time. So if Israel Folau's expression of his views on homosexuality, however strongly and sincerely held, puts Rugby Australia's sponsorships or revenue at risk it is within its rights to prevent him from expressing them.
These uncertainties, and others like them, point to the weakness of the government's approach to legislating on religious freedom, and to the shallowness of some of the debate on the issue.
The thing is, the threats to religious freedom in Australia are small and, in the main, not in the areas that have prompted this Act. The strongest challenge to religious freedom in our community at the moment is that presented by the far Right in relation to Islam, with its proposals to ban mosque construction, install surveillance devices in mosques and 'ban the burqa'. These calls have not penetrated far into our political mainstream in the main, but it is interesting that the short-lived ban on face-covering garments in the parliamentary precinct in 2014, while it drew a strong backlash, did not prompt calls for religious freedom legislation. It was only when conservative Christians felt threatened themselves that they began to agitate for law reform.
Where the tensions come is not in any challenges to the right to religious belief or observance in themselves. They are to be found in the boundaries between religious freedom and the other freedoms recognised in human rights law - especially, in our current context, freedom from sexual discrimination. It also comes at the boundaries between religions. These boundary issues are inherently difficult to navigate, and this legislation does nothing to make this navigation easier.
One example is that of religiously-inspired speech. This Act would protect the rights of people to express their beliefs (whether religious or anti-religious) both in private and in public. 'However,' the explanatory notes to the Bill explain, 'this provision does not protect 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.'
This would clearly exclude, for instance, an Islamic State recruiter urging Muslims to kill infidels, or an anti-gay extremist suggesting violent disruption of the Sydney Mardi Gras. But how, for instance, does it apply to the Delaney/Porteous case I discussed in Part 2 of this series? When the Catholic Church says that 'messing with marriage is messing with children' is this vilification? Martine Delaney says it is, Archbishop Porteous says it isn't. How is such a difference in perception to be resolved, and what does this mean for our conduct?
How does it apply to Israel Folau's assertion that homosexuals are bound for hell? Is this a malicious statement? Israel doesn't intend it to be, but others read it that way. Whose perception should prevail? When Christian and atheist preachers assert that Islam is inherently violent, is this a legitimate critique of religion, or an incitement to hatred? Those who express this view point to passages in the Q'uran that support their assessment. Islamic preachers point out that this is not the view generally held in Islam, and that such preaching fuels public harassment of Muslims. How is freedom of expression to be squared with the risk to the safety of ordinary Australians?
It is these uncertainties that mainly sit behind the criticisms of the draft bill, and the reason that advocates on different sides of the fence have made remarkably similar-sounding criticisms. Human rights advocates have argued, for instance, that it provides too much protection for religious speech, overriding provisions in State legislation which can be seen to have broader application like those in Tasmania's act which prevent speech which 'offends, insults or humiliates'. They are concerned that the weakening of these protections place vulnerable people at risk, including LGBTIQ people and people with disabilities, and that they privilege religious speech over speech by non-religious people.
On the other hand, conservative religious groups are concerned that it does not provide strong enough protections for religious freedom. For instance, the Sydney Anglican Diocese and Freedom for Faith have argued that the exclusion of commercial activities from the right to discriminate could mean that Christian-run youth organisations or aged care services could not preferentially hire Christian staff and could even be forced to host Satanist events. (I kid you not, they actually said that.) They are also concerned that the term 'vilify' is unclear and could unfairly restrict religious speech, and that the 'Israel Folau clause' could encourage sponsors to act more precipitately in withdrawing sponsorships.It might be tempting to argue that if the government is being criticised from both the left and the right, it may have arrived at a reasonable and moderate solution. It could also just be that the bill is vague so it could possibly have a number of outcomes depending on how courts end up interpreting it. There is probably some truth in both these suggestions, but I don't think they get to the heart of the problem.
The international human rights treaties which form the basis of more detailed national laws deal with human rights as a package. They list a set of rights which are seen to be universal and which exist alongside one another. All these rights must be respected, and each of them can be exercised freely. But there are logical limits to these rights, because they end at the point where they interfere with someone else's rights. Because we all live in communities and have responsibilities to one another, we need to exercise our own rights in a way that respects and supports the rights of others, including those who are different to us.
The best way to protect these rights in our communities is to legislate for them as a package, in a way that mirrors and amplifies the treaties they come from. Rights can be listed and codified, their limits delineated, and processes put in place to deal with situations where such rights may be breached or where they come into conflict. This then sets a framework in which tensions between rights can be negotiated. The best designed laws emphasise quick, low-cost mediation processes, with more formal litigation and court or tribunal hearings as a last resort.
Various pieces of State legislation attempt to do this in Australia, including Queensland's newly-enacted Human Rights Act and Tasmania's longer-standing Anti-Discrimination Act. However, this approach to legislation has its problems. A piece of State legislation can only operate within a particular State, and can only cover the sphere of responsibilities of State government. States can't bind the Commonwealth or its agencies. The various State laws are different - for instance while the Queensland act includes religious freedom, the Tasmanian one does not mention it, so conduct that would prevented in one State would be OK in another.
These problems could perhaps be solved by a uniform national law, agreed to by States and Commonwealth. However, various attempts to legislate a comprehensive human rights act at Commonwealth level have failed, most recently Tasmanian Independent MP Andrew Wilkie's 2017 Human Rights Bill. As a result, at national level we have a patchwork of individual Acts - Racial Discrimination, Disability Discrimination, Sex Discrimination, and now Religious Discrimination if this is passed. These acts are fine in themselves but fall well short of the sort of comprehensive human rights protections the international treaties point towards. They also make clashes of rights murkier and harder to resolve.
The Religious Discrimination Act adds to this problem rather than solving it. By codifying a set of rights (most of which were already implied in other laws or common law) it sets up another stand-alone piece of legislation which, as time passes, will need to be tested against rival laws. Religious rights will compete with sexual rights, disability rights, and so forth. Whose rights will win? It remains to be seen. This Act does not, and cannot, tell us.
I conclude this series with Part 4, which suggests a different way for Christians to approach this question, one that I feel is more consistent with the teaching of Jesus and the apostles.
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