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Religious Freedom or the Freedom to Discriminate ?

Originally this draft legislation dealing with religious freedom was proposed by the coalition government to comfort religious sensibilities which may have felt threatened when the nation went to a Clayton’s ‘referendum’ to change the Marriage Act to permit same-sex marriage – the federal marriage act having been changed by the Howard government in 2004 to prohibit same-sex marriage – go figure!

In fact, it wasn’t a referendum or even a plebiscite as the senate had rejected those mechanisms, insisting that if an act of the federal parliament (the Marriage Act) was to be changed then it was the duty of the federal parliament to follow conventional democratic procedures to effect that change: common sense from the senate!

Ultimately it became a non-binding voluntary postal survey and it passed with 61.6% of the eligible voters approving marriage equality.

Having gone through that ordeal it was considered by some in the coalition that religious freedoms were being eroded and to appease these folk a religious freedoms act was placed on the coalition wish-list. The only thing that changed as the draft legislation was promulgated was that it became a religious discrimination bill rather than a religious freedoms bill.

The Morrison government have made it an article of their faith to get this legislation through before they announce an election and prorogue the parliament. That means that this legislation must get through in the scheduled eight sitting days of the House of Representatives between February and April (after which we will be in caretaker mode leading up the election, probably in May).

Among the contentious provisions of the Bill are :

Section 7

(2) Subject to subsection (6), a religious body does not discriminate
against a person under this Act by engaging, in good faith, in
conduct that a person of the same religion as the religious body
could reasonably consider to be in accordance with the doctrines,
tenets, beliefs or teachings of that religion.

and

(4) Subject to subsection (6), a religious body does not discriminate
against a person under this Act by engaging, in good faith, in
conduct to avoid injury to the religious susceptibilities of adherents
of the same religion as the religious body.

These are the provisions which, despite the wording of the section, allow for a religious body to discriminate both subjectively and objectively: this is not religious freedom it is blatant religious discrimination.

Interestingly, the Sex Discrimination Act 1984 (Cth) already has a wide exemption for religious educational institutions under section 38.

Educational institutions established for religious purposes

38 (1) Nothing in paragraph 14(1)(a) or (b) or 14(2)(c) renders it unlawful for a person to discriminate against another person on the ground of the other person’s sex, sexual orientation, gender identity, marital or relationship status or pregnancy in connection with employment as a member of the staff of an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, if the first‑mentioned person so discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed.

This type of exemption appears in several pieces of legislation and generally gives religious bodies the freedom to discriminate in their employment practices even though many of these bodies, whilst posturing as private institutions, are substantial recipients of public funding.

Even the Fair Work Act 2009 (Cth) gives religious institutions an exemption.

51 Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

(2) However, subsection (1) does not apply to action that is:

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

The point being, that there are already many overlapping exemptions granted to religious bodies to allow them to discriminate in any number of ways: do they or we really need any more?

To work through this hotch-potch of existing legislation and bring some clarity and common sense to the whole issue of religious discrimination, the Australian Law Reform Commission was asked to report on the Framework of Religious Exemptions in Anti-discrimination Legislation.

The only problem is that the ALRC are not reporting back to government until twelve months after the Religious Discrimination legislation is passed: cart before the horse?

So, the question has to be asked: why is it so critical for this legislation to be enacted by our parliament in the dying days of this term of government when clearly it hasn’t had sufficient thought or consideration and when we haven’t even had the opportunity of seeing what the Australian Law Reform Commission have to say on the subject. Could it be that the Morrison government who have an appalling track record on legislative integrity want at least one run on their scoreboard before they whisk us away to an election?

Clearly, they don’t consider a federal integrity commission to be such a priority!

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2 comments

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  1. RosemaryJ36

    In 1957, having just graduated from IC, London with an Honours Maths Degree, and – with a drastic shortage of qualified maths and science teachers in the UK- being eligible to go straight into teaching without a Graduate Diploma of Education, I was offered a position at 3 Grammar schools.
    I chose the most convenient to my home, at the then end of the Piccadilly Line at Hounslow West, which was the Convent of the Sacred Heart High School, Hammersmith.
    England is a Christian country and, following Clement Attlee’s coming to power after WWII, all state funded schools were covered by the same rules as regarded courses taught and teachers engaged, irrespective of whatever charter, religious or otherwise, might apply to their foundation.
    As a non-Catholic, I did not have a ‘home room’, instead being expected to supervise the playground while half the students ate lunch, provided by government funds.
    As a pianist, I played the hymn at assembly every morning – my choice – and I was not expected to attend mass or any other religious activities.
    The Mother Superior was Principal – a lovely woman who interviewed me – as with the other ‘beginners’, on my progress each week, while my Maths Senior supervised my teaching timetable.
    My first year in teaching was challenging but enjoyable, and at the end of the school year in July, along with 2 other staff (we were all female) I left to get married and move to another school close to my new home.
    I have never understood Australia’s problems with private schools. Particularly with religious ones.
    If they are receiving government funding, then they should follow the government’s rules. If they want to choose their own rules, then they should pay for themselves.
    The hold over power in Australia, exhibited by – in particular – the Catholic church, is totally inappropriate in a country with a secular government.
    Our Constitution bars the government from promoting or prohibiting any religion

    “Section 116 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.”

    and it is long overdue that we should challenge the obeisance it pays.
    Along with that, of course, is the bias to Christian faiths.
    We do need to respect people’s right to have beliefs, but we also need to control whether they are then breaching our Anti Discrimination laws.
    We are NOT a Christian country.
    Religion is a personal and private matter.
    Providing education is the duty of governments, and they alone can control it if they are expected to pay for it.

    We also badly need a government which is itself better educated in how to run a country!

  2. Fred

    Terence: The govt hasn’t justified the need for this legislation. Where is the extensive body of complaints that shows that people with “non-aligned” beliefs and values have caused damage to religious organisations? Seems one should set up a religion if one has the need to discriminate.

    RosemaryJ36: The AEC should administer a test that candidates must pass which encompasses: 1) Rudimentary IQ, 2) Australian history, 3) The Constitution, 4) Australia’s legal framework (Federal vs state vs local) and 5) Ethics (these may need to be developed and codified as “pork-barrelling” and donations by secret/blind trusts are not illegal but arguably should be).

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