Briefing Paper: Government’s Plans for Freedom of Religion Legislation (July 2019)

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Briefing Paper July 2019

Written by Professor Patrick Parkinson – 11 July 2019

The Government’s Plans for Freedom of Religion Legislation (July 2019)

A briefing paper from Freedom for Faith

The purpose of this briefing paper is to explain to ministers of religion and other religious leaders what is currently happening in terms of new legislation on religious freedom, and what will need to happen further into this term of Government.

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.

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.

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.

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.

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.

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.

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.

Read more here:
https://freedomforfaith.org.au/library/briefing-paper-july-2019