A response to the Religious Discrimination Bill 2019—Exposure Draft
26 September 2019
Human Rights Unit, Integrity Law Branch, Integrity and Security Division
3-5 National Circuit
Barton ACT 2600
Dear Mr. Attorney-General,
Enclosed is a copy of our submission in response to the Religious Discrimination Bill 2019—Exposure Draft. This submission has sought to commend the praiseworthy intent behind the draft, but also highlight a significant number of shortcomings with the proposed legislation.
The Canberra Declaration is a community of people who have a vision for a better Australia where everyone is able to enjoy the prosperity, peace and freedom that comes from the revitalisation of the Judeo-Christian Values that formed the foundation of Australia. In this submission as with all of our advocacy work, we are concerned not just with religious freedom for Australian Christians, but the fundamental freedoms of all Australians.
Along with our over 80,000 signatories, we at the Canberra Declaration implore you to consider the improvements that must yet be made to ensure religious freedom in Australia—not only for Aussies of faith today, but for all Australians now and in the generations to come.
Thank you for taking the time to review our submission. Should the opportunity present itself, we’d be delighted to make a presentation to the Attorney-General as part of this process.
Kurt Mahlburg and Warwick Marsh
We welcome the Attorney-General’s provision of protection for Australians of faith. The need for such protections has never been more urgent. Australia’s Constitution affords religious protections to our citizens, as does a raft of international agreements to which Australia is a signee. For all of these reasons, we wish to commend the Attorney-General and his department for recognising the need and responding to it—and in doing so, for remaining true to the Coalition’s pre-election promises.
Having expressed all of this, we also wish to put on record our significant hesitations about the Religious Discrimination Bill Exposure Draft. There is a case to be made that even from the outset, the draft legislation was destined to fall short, given that there were notable flaws in the Ruddock Review process, which we address in the body of this submission.
We are of the view that even though a Religious Discrimination Act would create symmetry with other anti-discrimination legislation, the proposed bill in fact is far from adequate in protecting religious and non-religious Australians and preserving religious freedom in this country. It is our firm conviction that the only adequate solution to this is for legislation far stronger that protects religious freedom as a positive right.
Nevertheless, we acknowledge that the draft legislation before us is what we currently have to work with. So in a spirit of cooperation, we offer herein our feedback to the proposed bill. A summary of our concerns are as follows:
- The proposed legislation offers inadequate protections against competing state and federal legislation
- The definition of terms in the draft bill is troublesome—a number of terms remain undefined, in particular the word ‘vilify’
- Religious activity is too narrowly defined
- Religious organisations that offer commercial services, among their other endeavours, remain sorely unprotected
- The proposed bill will make courts responsible for interpreting religious doctrine, contravening the centuries-old principle of separation of church and state
- Israel Folau, who is arguably the highest-profile victim of religious discrimination in Australia, would remain unprotected by the draft bill
- Religious freedom in the workplace remains inadequately protected
- The legislation allows excessive scope for small businesses to restrict the religious freedom of their employees
- Though non-participation in same-sex weddings was one of the original driving concerns of the legislation’s drafting, the bill fails to adequately address it
- The interaction between competing rights remains unaddressed by the proposed bill
- Religious schools remain unprotected by the legislation
- The test of ‘reasonableness’ contained in the legislation is onerous for people of faith
As stated above, we believe that a Religious Freedom Act would far more adequately address all of these concerns, and simplify what has now become a very verbose and complex piece of draft legislation. Whatever improvements that are to be made to this or any other legislation protecting religious freedom, we commend the above list as a minimum set of recommendations on behalf of our 80,000 signatories.
Once again, we wish to thank the Attorney-General and his department for their consideration of our submission.
The Commendable Intent of the Proposed Legislation
First, it must be noted that the objectives of the proposed legislation are to be commended. We agree wholeheartedly with the propositions in clause 3i that Australia must seek:
- to eliminate, so far as is possible, discrimination against persons on the ground of religious belief or activity in a range of areas of public life
- to ensure, as far as practicable, that everyone has the same rights to equality before the law, regardless of religious belief or activity
- to ensure that people can, consistently with Australia’s obligations with respect to freedom of religion and freedom of expression, and subject to specified limits, make statements of belief
Additionally, we unreservedly agree that in framing this legislation, regard must be had to:
- the indivisibility and universality of human rights; and
- the principle that every person is free and equal in dignity and rights
Speaking of the importance of religious freedom, policy analyst Dr. Jennifer Oriel correctly observed that:
Religious freedom is the subject of private conscience and a public good that provides for civil society by limiting state authority over family, friendships and faith. It is essential to liberal democracy and the flourishing of liberty. In the Western context, religious freedom empowers citizens to live according to their innermost beliefs while respecting the basic rules that govern open society. Without it, we would be unfree.ii
The International Context for the Proposed Legislation
In responding to the proposed bill, we wish to affirm our unqualified support of the international documents that provide context for the draft legislation, and to which Australia are signees.
Article 18 of the Universal Declaration of Human Rights states that:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.iii
Article 18 of the International Covenant on Civil and Political Rights affirms that:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion, which would impair his freedom to have or to adopt a religion or belief of his choice.
Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.iv
The United Nations General Assembly also passed a resolution entitled Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Articles 2-4 are especially prescient in the current Australian context:
1. No one shall be subject to discrimination by any State, institution, group of persons, or person on the grounds of religion or belief.
2. For the purposes of the present Declaration, the expression “intolerance and discrimination based on religion or belief” means any distinction, exclusion, restriction or preference based on religion or belief and having as its purpose or as its effect nullification or impairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis.
Discrimination between human beings on the grounds of religion or belief constitutes an affront to human dignity and a disavowal of the principles of the Charter of the United Nations, and shall be condemned as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and enunciated in detail in the International Covenants on Human Rights, and as an obstacle to friendly and peaceful relations between nations.
1. All States shall take effective measures to prevent and eliminate discrimination on the grounds of religion or belief in the recognition, exercise and enjoyment of human rights and fundamental freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination, and to take all appropriate measures to combat intolerance on the grounds of religion or belief in this matter.v
Religious Protections Afforded in the Australian Constitution
Dr Augusto Zimmermann, Professor of Law at Sheridan College in Perth, Western Australia, makes the case that the Australian Constitution itself affords all Australians religious protections that are under threat by the Bill under discussion:
Among these rights deemed implied in the Constitution is a freedom of communication on political and public matters, which the court has found as a means of invalidating legislation on constitutional grounds. This freedom operates as a restriction on federal and state legislative powers, creating a corresponding immunity from legislative control.
The implied freedom should be considered in light of the Constitution’s explicit protection of religious people and organisations against unwanted intrusions of the Commonwealth Government. Indeed, the provision which is found in section 116 of the Constitution is aimed at establishing a substantive limitation on the powers of federal Parliament to legislate with respect to religion. The object of the section is therefore to preserve the free exercise of religion in all its forms and manifestations, be they political or not. Section 116 provides:
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.
In Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria) (1983), Chief Justice Mason and Justice Brennan stated the following about religious freedom:
Freedom of religion, the paradigm freedom of conscience, is of the essence of a free society. The chief function in the law of a definition of religion is to mark out an area within which a person subject to the law is free to believe and to act in accordance with his belief without legal restraint. Such a definition affects the scope and operation of s. 116 of the Constitution and identifies the subject matters which other laws are presumed not to intend to affect. Religion is thus a concept of fundamental importance to the law.
It cannot be overlooked that religion informs the views of many Australians about politics and government. Professor Adrienne Stone of Melbourne Law School explains that religious speech is in its nature quite often intertwined with ‘political opinions, perspectives, philosophies and practices’. According to Professor Nicholas Aroney of Queensland University, indeed, ‘religion, religious beliefs and religious practices (as well as irreligious beliefs) not infrequently inform, or are tied up with, political perspectives, philosophies and practices’.
If religious and political matters are so often intertwined, then one must conclude that any logical derivation to the limitation imposed on freedom of communication inspired by a religious perspective also amounts to a violation of the broader protection to freedom of political communication implied in the Australian Constitution. After all, as noted by the Rev Dr Robert Forsyth:
Religion is rarely simply a matter of private and personal issues alone. It involves communities and institutions, and thus the need to give shape to the distinctive identity of those communities and institutions.
In other words, since views about religion may so very well influence government policies through Australia’s constitutionally-prescribed system of representative and responsible government, section 116’s protection of the free exercise of religion should also encompass freely communicating about a religion’s perspective of government and/or political matters.vi
The Contribution of Christianity to Australia’s Religious Freedoms
There are groups agitating against protections for religious freedom, many of which seem to have a particular distaste for the Christian faith which has played such a vital role in the shaping of modern Australia. This is not only unwarranted—it is unwise, given the unique role that Christianity has played in affording them and all Australians the freedoms we so enjoy.
This is not to say that Christians or Christian belief is to be privileged in Australian society or law. But it is to acknowledge and honour the indispensable contributions of Christianity such that we shouldn’t, as a matter of course, be opposed to it. Indeed, without Judeo-Christian values, it is unlikely they or any of us would place the value on human rights that we do:
Subsequent to white settlement, the foundational moral, ethical and cultural influence within Australia has been Christianity. This has resulted in a substantial legacy for our nation in many areas and has shaped the moral and ethical underpinning of our society. Christian beliefs themselves promote tolerance and understanding towards other faiths and views and this has been reflected in the general level of tolerance and acceptance within our society. The great Australian tradition of ‘a fair go’ itself owes much to our Christian heritage.vii
Consider the words of Kevin Donnelly, a senior research fellow at the Australian Catholic University, about the significant ways in which Christianity has shaped this nation—and therefore, why religious faith is worthy of protection to secure a prosperous future for Australia:
While the figure is now about 62 per cent, at Federation about 90 per cent of the Australian population professed the Christian faith. Our parliaments begin with the Lord’s Prayer and the Constitution’s preamble includes the words “Almighty God”.
As shown by the national day of mourning in response to the tragedy involving the shooting down of Malaysia Airlines flight MH17 over Ukraine, with the loss of 28 Australians, it is still customary to turn to religion, especially Christianity, to help deal with loss, grief and pain.
As in Britain, Christian organisations in Australia such as the Salvation Army, the Brotherhood of St Laurence, the St Vincent de Paul Society and Caritas Australia work tirelessly to alleviate poverty and suffering, here and overseas.
Catholic schools enrol 20 per cent of students around Australia, saving taxpayers and governments millions of dollars, and if Christian hospitals and aged-care facilities did not exist, Australia’s health and welfare systems would collapse. Democratic concepts associated with the Westminster parliamentary system — such as one person, one vote; separation of powers; governments being formed in the people’s house; and free and open elections — evolved across hundreds of years and ensure our freedom and liberty.
Legal concepts such as innocent until proven guilty, the right to a free and timely trial, habeas corpus and the right to be judged by one’s peers are also distinctive. Such rights are denied in totalitarian regimes, leading to a situation, as noted by English judge Lord Denning, where “the rulers are not under God and the law. They are a law unto themselves. All law, all courts are simply part of the state machine. The freedom of the individual, as we know it, no longer exists.”
The reality is that millions across the world — in Africa, South America, the Middle East, Indochina and the former Soviet Union — are denied rights we take for granted. It is also true that extreme interpretations of Islam are hostile to democratic beliefs and values. As noted by US-based watchdog Freedom House, countries such as Saudi Arabia, Syria and Iran are oppressive regimes in which women, in particular, are denied basic rights.
The barbaric and evil acts committed by Islamic State in the name of religion, such as beheading 21 Christians, also provides a chilling example of what happens when individuals and groups turn their backs on civilised values.
In the same way that 22 Christian leaders are arguing that Judaeo-Christianity is central to British identity, there are Australian religious organisations arguing, in the context of last year’s review of the Australian national curriculum, of which I was co-chairman, that religion is central to our way of life.
The Catholic Education Commission of Victoria’s submission to the review states that Judaeo-Christian beliefs and values are “the foundations of our liberal democracy”. The Anglican Education Commission argues: “Our justice, government, education, health and general welfare systems are all established on the Judaeo-Christian foundation of this civilisation.”
Another submission received, with 1647 signatures, states that students in government and non-government schools should learn about Christianity “in a way that is fair and balanced”.
Those critical of Judaeo-Christianity often argue that Australia is a secular society as the Constitution states that the commonwealth “shall not make any law for establishing any religion, or for imposing any religious observance”. While true, such a statement does not mean that religion should be banished from the public square or ignored by the curriculum.
To attempt to do so not only misinterprets the Constitution, it also weakens and undermines the liberal, democratic institutions and values that ensure Australia, compared with many countries, is such a peaceful, prosperous and just society.viii
The Pressing Need for Religious Freedom to be Protected in Australia
Australians far and wide acknowledge the pressing need for religious freedom to be protected in Australian law. The Government acknowledged this need in their response to the Religious Freedom Review:
Freedom of religion is not subordinate or secondary to the other rights which it will necessarily be balanced with. Ultimately, in consideration of the best manner in which to frame, balance and protect co-existing rights, the Australian Government considers there is a requirement to ensure some enhanced standing protection for Australians’ right to freedom of religion, by giving it more weight in our community than it currently receives.
As the Religious Freedom Review noted, respecting diversity, including with respect to religious belief, is not only fundamental to recognising the inherent dignity of the individual, but also contributes to the democratic life of our community. The Religious Freedom Review further noted that there is no standalone law that gives comprehensive effect throughout Australia to the human right to freedom of religion.ix
The Government is not alone in this observation. Archbishop Anthony Fisher, the Catholic Archbishop of Sydney, has expressed significant concern at the present state of affairs in Australia:
We cannot take the freedom to hold and practice our beliefs for granted, even here in Australia… Powerful interests now seek to marginalise 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.x
Senator Concetta Fierravanti-Wells, Federal Senator for New South Wales, has voiced her disquiet about this issue, as highlighted by this year’s election:
I believe that the recent election has reinforced the need for more immediate legislative action. This is vitally important to not only address our concerns but afford protection against these constant incursions from Labor, the Greens and their acolytes.xi
John Steenhof, Managing Director of the Human Rights Law Alliance, joins the chorus of those calling for legislation to protect religious freedom:
The fundamental freedoms of Christians as individuals and as groups to speak, think, exercise conscience and associate in public and private are increasingly under threat as Australian society becomes more fragmented and moves away from its Christian roots, as the volumes of federal and state legislation expand at an exponential rate and as employment contracts morph into manifestos of groupthink.xii
A document released in conjunction with the Human Rights Law Alliance expressed similar concerns, and provided a list of recent cases in Australia that highlight the pressing need for the Government to act on religious freedom:xiii
In the recent Federal election, ordinary voters spoke and told Scott Morrison that religious freedom is an important issue. The sacking of Israel Folau for sharing his faith on social media has roused the public, both Christian and non-Christian. Churches need to know that Israel’s case is not an isolated incident. Religious freedom is under threat.
Christians throughout Australia are increasingly facing discrimination because of their religious beliefs and being dragged through tribunals and courts, disciplined by governing bodies, investigated by government departments, losing their jobs and being branded as intolerant and bigoted. Examples of cases throughout Australia in which the Human Rights Law Alliance has assisted include the following (no real names used):
Andrew is a Christian student at a large Australian university. Andrew was suspended from university for expressing a Biblical view of sexuality when asked by a classmate. This decision was only reversed through time consuming and stressful legal action.
Jared is a GP. An anonymous complaint was made to the medical board by someone who was not a patient. Jared’s crime was that he had posted orthodox Christian beliefs and scientific facts about sexuality and gender issues. Jared is currently fighting an investigation by the medical board and may lose his ability to practise medicine.
Chris and Mary are Christian parents who made an application to foster children between the ages of 0 -5 with a fostering agency. They were rejected as “unsafe” as foster parents because of their orthodox Christian views on sexuality and gender.
Dan is a teacher. Dan posted links to articles about homosexual marriage leading up to the marriage postal vote. Dan was reported to the Department of Education who subjected Dan to a long investigation which was only terminated when he obtained legal help.
Barry is a tertiary lecturer. Barry was disciplined for responding to blasphemy by asking students “Oh, do you know Jesus? Because I do”. Barry has been officially warned by his employer not to share his religious beliefs and has been threatened with discipline and termination. He is getting legal assistance to ensure his job is protected.
Clara is a mental health counsellor. She lost her teaching qualification when a progressive political activist reported her Christian views on sexuality and gender that had been shared on social media videos. Despite the fact that Clara has never had a complaint from anyone, she has been stripped of her livelihood.
The Inadequacy of a Religious Discrimination Bill
With all of this in view, we are of the strong conviction that a Religious Discrimination Bill, including the one proposed, falls gravely short of the protections needed to secure religious freedom for all Australians. We are far from being alone in this view.
Dr. Augusto Zimmermann, Professor at Sheridan College in Perth, Adjunct Professor of Law at the University of Notre Dame Australia, founder and President of the Western Australian Legal Theory Association, a Fellow at the International Academy for the Study of the Jurisprudence of the Family, and Editor-in-Chief of the Western Australian Jurist law journal, has stated:
Although it is broadly accepted that religious freedom is increasingly vulnerable in Australia, I nonetheless have serious doubts about the introduction of a religious discrimination law that further impinges on free speech being the solution.
A much better way to proceed would be to look at repealing the existing provisions in anti-discrimination laws that seriously impinge on free speech and freedom of association, in a way that strengthens the protection of religious freedom and, in fact, attempts to ensure that the widest scope of personal freedom is maintained when balancing conflicting human rights.xiv
Dr. Zimmermann also offers these strong cautions:
The Sex Discrimination Act is invariably used against men. The Racial Discrimination Act is invariably used against white people. We can therefore only guess against whom the Religious Discrimination Act will be used for.
Then the ‘exemptions’ for Christians would be removed by further legislation. And then the federal courts would follow precedent of the Racial Discrimination Act and find that statements against Christians do not constitute vilification because Christianity is arguably not a minority religion in Australia.
And then all that would be left is a law that protects a few minorities chosen by the identity-possessed political and intellectual elites to be the recipients of special legal privileges, but not the majority Christian population.
Rather than expanding the scope of unelected bodies and creating more discrimination laws, this government should enact legislation that would give effect to Australia’s international obligations to protect religious freedom and in the context of other fundamental rights of the individual, including free speech, freedom of association, freedom of conscience, and the right to peaceful assembly.
In this sense, handing over the definition of religion to the Human Rights Commission is a terrible idea that risks further undermining our individual rights and freedoms. Wanting to be seen to do something, this government is just about to hand over a vast array of powers to a controversial body of unelected lawyers that have an appalling record of disregard for freedom of speech.xv
Martyn Iles, a lawyer and Managing Director of the Australian Christian Lobby, has provided the following assessment of the proposed legislation in light of two recent high-profile cases in Australia:
While, on the surface, the bill appears to deal with some significant issues, the devil is in the detail. Those details mean there is no robust protection for people such as Israel Folau or Archbishop of Hobart Julian Porteous.xvi
Mark Sneddon, the Executive Director of the Institute for Civil Society, sees a need for more than just anti-discrimination legislation:
The government has not yet committed to introduce a Religious Freedom Act. The need for such an Act is demonstrated by the weak ‘purposive’ interpretation the High Court has given to the free exercise of religion clause in section 116 of the Australian Constitution, which as a result has very limited effect. The limitations of section 116 and the generally very poor state of legal religious freedom protection in Australian law was recently acknowledged by the Commonwealth Parliament Joint Standing Committee on Foreign Affairs Defence and Trade in its First Interim Report on its Inquiry into the status of the human right to freedom of religion or belief.xvii
An outspoken proponent of stronger religious freedom protections in Australia is Senator Concetta Fierravanti-Wells. Before the exposure draft was released, she said:
It is clear from my ongoing consultation and engagement with religious leaders that the bills are likely to fall far short of properly and fully addressing their requirement.xviii
After seeing the proposed legislation, Senator’s concerns were only confirmed:
The bill deals with discrimination on the basis of religious belief only in key areas of public life. It does not create a positive right to freedom of religion which is what religious leaders, experts and stakeholders have been calling for.xix
Indeed, so great are her concerns about the state of religious freedom in Australia that Senator Fierravanti-Wells stood before parliament to call for a petition for a Religious Freedom Act. Sections of her speech have been reproduced below. We wholeheartedly affirm her petition and her speech, and we implore the Attorney-General’s Department to take seriously her cause:
I am launching a petition calling for a religious freedom act which should not only contain a protection against religious discrimination for religious believers but also ensure: firstly, that everyone shall have the right to freedom of speech, thought, conscience and religion, including freedom to have or to adopt a religion or belief of one’s choice, and freedom, either individually or in community with others, and in public or private, to manifest one’s religion or belief in worship, observance, practice and teaching; secondly, that no-one shall be subjected to coercion which would impair his or her freedom to have or to adopt a religion or belief of his or her choice; thirdly, that freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others; fourthly, that parents or legal guardians may ensure the religious and moral education of their children in conformity with their own convictions; and, fifthly, that all arms of government must act consistently with the religious freedom act and all laws must be applied consistently with the principles contained therein.
Such a religious freedom act would ensure that Australia conforms to the international obligations which it signed up to and which implement article 18 of the International Covenant on Civil and Political Rights.
The Israel Folau matter has hardened my resolve on this issue. Whilst this situation relates to employment issues, the greatest story—with far-reaching ramifications—is about freedom of speech and freedom to express one’s beliefs. Indeed, I’m heartened to see the extensive financial support given to Israel Folau. It not only demonstrates the overwhelming support in the community for him but also shows that there are Australians who may not agree with his views but are prepared to support his fundamental right to express those views.
The results of the election had their antecedents in the same-sex marriage debate. During that debate I warned that religious freedom issues needed to be considered before we enacted same-sex marriage. My warning was prescient. Many Australians voted yes on the understanding that religious freedoms would be protected. Today we are seeing the ramifications of not having sorted out these issues at that time.
The Israel Folau issue has heightened already existing concerns about incursions on religious freedom. Ordinary people of faith are now, understandably, asking the question: if I quote the Bible, will it get me into trouble? This is now the discussion at the kitchen table for Australians who hold religious beliefs. We need to make sure that religious persecution of Israel Folau does not happen again.
Although religious freedom is a right enshrined under international law, there has been a continued push—especially by Labor, the Greens, and their acolytes—for laws to take away rights of Australia’s faith based communities. I continue to work with religious leaders and faith based communities and advocate strongly for standalone religious freedom protection legislation.
I believe that the recent election has reinforced not only the need for more immediate legislative action but also the need for a more amplified and comprehensive referral. Indeed, it remains open to the Attorney-General to augment the ALRC referral and request that it report this year and before a religious freedom act is tabled. It makes greater sense for the issue to be dealt with comprehensively, rather than in the current piecemeal approach. This is vitally important to afford long-term protection against these constant incursions. It is a new dawn on this issue.
A religious discrimination act is not sufficient. It would be defensive in nature and limited to protecting against acts and practices by others which are discriminatory on the grounds of religion. A religious discrimination act would fall well short of the expectations of the ‘quiet Australians’ who voted for us. We cannot let them down.
I conclude by thanking those many Australians who continue to support my push for a religious freedom act and who are supporting the petition. I quote one who recently wrote to me:
Understanding and tolerance are fostered in an environment where ideas can be shared. As one of the quiet Australians who voted for the Liberal government, this issue is much broader than who will go to hell or not.
This is about the ability for all sectors of the community to think independently; speak and share ideas—popular and unpopular; for the ability to listen to alternate views and be listened to; for an environment where all Australians can think, speak and listen to diverse views.
Does that mean we will always agree? No. But it does mean that we should always be able to have a mature conversation and public debate without silencing or punishing the other side. This, is what we’re at risk of losing as a nation. This, is what we need to fight for.
Today it is me as a Christian, tomorrow it could be you or those close to you. And this is why so many Australians are weighing in to support Israel Folau. This is not just about freedom of religion for a select group, but freedom of thought, conscience and belief for all Australians.
In conclusion, I urge you to go forth and ensure we collect as many signatures as possible, to keep the pressure on this Senate and this parliament to take decisive and long-term action to protect religious freedom once and for all.xx
Flaws in the Religious Freedom Review Process
It is unfortunate that the proposed legislation is a response to a review process that made fundamental errors. The Religious Freedom Review, chaired by the Hon. Philip Ruddock, was an important report that made excellent recommendations, but it didn’t go far enough.
This is at least in part because of its flawed methodology, as explained by Jeremy Patrick, Lecturer, University of Southern Queensland School of Law and Justice:
In what follows, I am going to argue a simple proposition: the Ruddock Report got it wrong. My argument consists of two main strands. The first is that, through a variety of rhetorical devices, the Report wrongfully excluded several good reasons for thinking that religious freedom needs protection in Australia. The second is that the Report shows a lack of foresight in that it views rights-protection as purely remedial in nature, rather than prophylactic.
The Panel’s refusal to count as “evidence” those submissions discussing the same handful of “high-profile examples in Australian law” continues the trend of exclusion. I do not know exactly what these high-profile examples are—the Report doesn’t discuss them, for some reason—but I can understand why individuals and stakeholders would reference them when they put pen to paper. The high-profile cases are the ones in which accurate information is available and can be easily shared to illustrate a larger point. If the Panel only wanted little-known personal anecdotes, it really should have asked for them.
This hints at yet another major problem with the Report’s evidence-based approach. No one knew about it. The call for submissions did not specify the types of information that would be useful to the Panel. Nor have past inquiries in this area insisted on such a rigid exclusion of anything that does not constitute a factual account of purely domestic non-high profile accounts of religious freedom infringement in Australia.
The core defect of the Ruddock Report is that it conceives of rights as purely remedial, when in fact they are also prophylactic. Rights are the safeguards built into a system “just in case.” They may lie fallow for decades, and will hopefully never be needed. Rights protection is the insurance we hope we never have to use, but we are glad it is there when something goes wrong. Maybe everything is fine in Australian society today and stronger protections for freedom of religion are not necessary right now—but rights are principles that reflect fundamental values meant to endure for generations. They say something meaningful about who we are, or at least, who we aspire to be. We do not have to wait until they are needed, and it is potentially too late, to put them into place. But due to its ignorance of history and disregard for world events, the Ruddock Report never makes reasonable inferences about what could happen in the future. The result is a lukewarm suggestion for further study and data collection.
The flaws in the Ruddock Report are substantial. First, the Panel took an “evidence-based” approach that ended up excluding the vast majority of submissions and consultation, and then it went a step further by concluding that its own inability to find this evidence justified its inaction in not recommending stronger protections for freedom of religion. But when it comes to infringements on religious freedom, the old line is true: absence of evidence is not evidence of absence. Second, the Report mistook the purpose of having robust protections of fundamental human rights like freedom of religion. Constitutional and statutory protections are not implemented only to deal with current problems; they are implemented to express the values that a society holds sacred and to help guarantee that, despite the shifting winds of politics, such rights will continue to be respected in the future. Rights are enduring principles meant to persist beyond the controversies of the present, and we know that they are necessary because of the controversies of the past.xxi
Feedback on the Religious Discrimination Bill 2019—Exposure Draft
For all of the above reasons, we are of the strong view that a Religious Freedom Act is the only adequate protection for religious freedom in Australia. Nevertheless, we would like to offer specific feedback on various clauses of the proposed legislation that must be addressed if it is to afford even basic protections to Australians of faith.
John Steenhof, Managing Director of the Human Rights Law Alliance, has expressed serious concerns about the proposed legislation on the whole:
Many Christians won’t be protected. The Bill will require significant amendment to provide real protection to Christians who are discriminated against because of their religious freedom.xxii
In short, there is a long way to go before this Bill will be in a form that provides meaningful protection for Christians.xxiii
Martyn Iles, Managing Director of the Australian Christian Lobby, is concerned that the legislation makes promises that it doesn’t deliver on:
The bill gives and it takes away. It has great headline statements that look good. And in the details, it completely undermines what it claims to do.xxiv
INADEQUATE PROTECTION AGAINST STATE LEGISLATION
Another of our reservations about the proposed bill is that it fails to protect individuals and groups from future legislation passed in states and territories. Bishop Michael Stead, the Anglican Archbishop of Sydney, has expressed this concern:If a state government decided to pass laws that impeded on religious freedom, there is no federal fallback.xxv
Mark Sneddon, Executive Director of the Institute for Civil Society, believes that missing from the proposed bill is:
Protection from government action (federal State and Territory and local) which limits religious freedom under some form of Religious Freedom Act or even an amped up Religious Discrimination Act which applies to all government services and programs. This should be a limitation on government power rather than a freestanding right.xxvi
Michael Quinlan, Dean of the School of Law, Sydney of The University of Notre Dame Australia, agrees. He is especially concerned about the issue of conscientious objection for medical practitioners:
There is a real reluctance in this bill to override state and territory laws. One particular concern is the right of conscientious objection in termination of pregnancy. In some states, the conscientious objection of medical personal has been overridden.xxvii
Neil Foster puts it in these terms:
The specific protections for health practitioners contained in cl 8(5) and (6) are a good idea in general, aiming to prevent those who govern the activities of such practitioners from imposing a “conduct rule” preventing them from conscientiously objecting to providing certain health services. But under s 8(5) if there is a State or Territory law which allows conscientious objection, that is to be applied. So it is not at all clear that this provision would assist someone in a jurisdiction with a too narrow (as opposed to “no”) law on the topic. Certainly, many would say that the Victorian law on abortion (which seems to require a formal “referral” of a patient seeking an abortion to someone who will carry it out), still leaves doctors who cannot, in conscience, assist in such an abortion morally complicit. And these provisions would not seem to help.xxviii
DEFINITION OF TERMS, ESPECIALLY THE WORD ‘VILIFY’
There are a number of terms in the draft legislation that remain undefined, and therefore expose Australians of faith to unfair treatment before the courts. Neil Foster, Associate Professor at the University of Newcastle Law School, makes these comments about the word ‘vilify’:
In particular, the other “exemption” under cl 8(4)(b) for speech that would “vilify” is decidedly unclear. The verb is not defined, and it really needs to be. I would support its presence if it means ‘incite hatred or violence’. But since both of those concepts are contained in other parts of the paragraph, that is probably not what it means.xxix
John Steenhof shares these concerns:
The Bill states that it will not protect statements of belief that “harass or vilify” a group of people. This is a very nebulous test. What constitutes harassment and vilification will be legally problematic and Courts will have liberty to set a low bar. As expressions of Christian belief on sexuality and gender issues are often seen as bigoted and hateful, it is possible that this exemption will largely strip this protection of any real effect for Christians.xxx
He has also specified that:
Many terms need more precise definition to give clarity and certainty. The use of words like “vilify” and “harass” without definition is a problem. It will hollow out many of the protections in the Bill once they get into the hands of tribunals and Courts.xxxi
Mark Sneddon has made similar observations:
Statements that are malicious, that would harass or vilify or incite hatred or violence against another person or group of persons are not protected. On the surface that is reasonable, but what does harass or vilify mean? X states a belief that Y will go to hell unless Y repents. Is that harassment or vilification? Those terms should be removed or defined as “inciting hatred, serious contempt or revulsion” like State laws do.xxxii
Martyn Iles makes the observation that the word ‘vilify’ isn’t found in any other legislation—it’s not defined in law, so it’s open to wide interpretation. He states:
These days, as we all know, people consider all sorts of things to be vilifying. All you need to do is disagree.xxxiii
‘Vilify’ is not the only problematic word in the draft legislation. The word ‘lawful’ also creates problems for people of faith, as John Steenhof highlights:
The Bill protects only “lawful” religious activity. Folau needs to show that his behaviour was a genuine activity arising from his Christian beliefs, but also that it is “lawful”. As speech and conduct are increasingly regulated by laws, regulations, by-laws and minor ordinances and as “hate speech” laws become more prevalent, the lawfulness of Folau’s quotation of the Bible might come under threat.xxxiv
RELIGIOUS ACTIVITY TOO NARROWLY DEFINED
Martyn Iles points out that the proposed bill only covers acts that are intrinsically religious, while neglecting the fact that people of faith are constantly engaging in activities that are not inherently religious in nature, but that are nevertheless informed by their faith. Referencing the well-known situation with Israel Folau, he rightly asks:
Is an Instagram post a religious activity?xxxv
Israel Folau didn’t lose his job for worshipping or assembling or doing other activities that are normally associated with religious belief and activity. Nevertheless, by posting on social media, he found himself out of a job.
RELIGIOUS ORGANISATIONS OFFERING COMMERCIAL SERVICES UNPROTECTED
Many religious groups in Australia also operate commercial enterprises as an expression of and an avenue for their religious endeavours. Under the proposed legislation, it is unclear whether or not they will be protected. Neil Foster puts it this way:
Protection for the religious freedom of religious bodies in cl 10 is a good idea, but I think more thought needs to be given to the exclusion of these protections from bodies that engage in “commercial activities”. Religious hospitals, for example, operate commercially but are designed to implement religious perspectives on the care of the ill and vulnerable. Why should they not also be able to operate in accordance with a religious ethos, and for example require that staff at least agree not to undermine that ethos in health-care decisions?xxxvi
Mark Sneddon has likewise said that it is:
Not clear that corporations will be protected from religious discrimination e.g. the incorporated Baptist church or charity or counselling centre or religious bakery or publishing company.xxxvii
He has pointed out that if such a group engages primarily in commercial activities, it loses its religious body status. This is the example he provides:
St Vincent’s and Salvos run op shops and job training workshops which sell goods as commercial activities but subsidised for charitable purposes – these should be religious bodies.xxxviii
COURTS MADE RESPONSIBLE FOR INTERPRETING RELIGIOUS DOCTRINE
One of the most concerning aspects of the proposed bill is that it unwittingly gives courts the responsibility of interpreting religious doctrine. This is a fundamental contravention of the separation of church and state. John Steenhof points out that:
The Bill puts Courts in the position where they will be arbiters of theology and will decide what religious beliefs are reasonable. Given the increasing religious illiteracy in Australian society, this is dangerous and may severely limit the protections that the Bill seeks to provide.xxxix
Mark Sneddon shares these concerns:
The definition of statement of belief provides that the statement must be reasonably regarded as being in accordance with the doctrines, tenets, beliefs or teachings of a religion. Who has to reasonably regard the statement that way? A judge or tribunal member. Do they take evidence on meaning of doctrine and weigh that against the person’s interpretation. Does a court say you have got your religion wrong so no protection for you? A test of the genuineness of the belief not its reasonable accord with doctrine would be better.xl
John Steenhof has expressed similar sentiments:
The Bill does not provide a definition of “religious activity” which means that this will be left to Courts who will become arbiters of theology and often taken very narrow approaches that strip the substance from protected religious convictions.xli
ISRAEL FOLAU WOULD REMAIN UNPROTECTED BY THE PROPOSED BILL
Arguably the highest-profile case involving religious freedom in Australia’s history is that of Israel Folau. Countless Australians, religious and otherwise, are expecting religious freedom protections that would prevent another such scenario. But the proposed legislation, though it has the Folau case in view, offers no such security. Martyn Iles summarises this concern:
The Act enables the Folau case—it doesn’t prevent it at all.xlii
Neil Foster, reflecting on the so-called ‘Folau clause’, is more specific in his assessment:
I am still not sure what to make of these provisions. On the one hand, they are a good faith attempt to deal with a situation which has concerned many Australian employees. But the ‘exemptions’ to the general rule that employees cannot be restrained in their off-duty speech are not entirely satisfactory. It seems odd to effectively allow an employer’s ‘sponsor’ to ‘buy’ the right to control employee’s speech by a threat to withdraw sponsorship (hence imposing ‘unjustifiable financial hardship’) if unpopular things are said.xliii
John Steenhof demonstrates that the clause intended to protect Folau is countered by the clause intended to protect Qantas:
The Bill provides a get out of jail card for large employers who can show that the discrimination was necessary to avoid unjustifiable financial hardship. Rugby Australia could be let off the hook by showing that sponsorships were at risk.xliv
RELIGIOUS FREEDOM IN THE WORKPLACE REMAINS INADEQUATELY PROTECTED
John Steenhof exposes a loophole that leaves Australians of faith unprotected in the workplace:
No express protections are given to religious freedom in the workplace. Because there is only express protection in the Bill for statements of belief outside the workplace, the Bill could be interpreted to allow employers to completely prohibit statements of faith inside the workplace.xlv
EXCESSIVE SCOPE FOR SMALL BUSINESSES TO RESTRICT EMPLOYEES’ FREEDOM
The clause impacting large companies seeks to resolve some issues but in doing so it creates others. Mark Sneddon asks:
Why are only companies with over $50m in revenue affected? Are the religious freedoms of employees of smaller companies and government agencies in their own time of less worth?xlvi
Neil Foster shares these concerns:
I think more work needs to be done on the “Israel Folau” clause, cl 8(3). I have commented already on my blog that this provision, which at first glance seems designed to provide protection for the free speech of employees outside the workplace, may have unintended consequences. Restricting its operation to large employers (with an annual turnover of $50 million) may inadvertently send the message that this type of speech-restriction is acceptable for smaller companies.xlvii
Likewise, Patrick Parkinson, Academic Dean and Head of School for the TC Beirne School of Law, asks:
Where does than leave the under-$50 million businesses? Do we really want employers having the right to control us 24/7, when they only pay us for 37 hours a week?xlviii
Neil Foster spots a similar problem in reflecting on the term “inherent requirement”:
There is an exemption to rules prohibiting religious discrimination in employment where making decisions related to religion is an “inherent requirement”… It will be important to define more closely what this means. One danger is that this becomes a back-door way of authorising religious discrimination, by a secular company specifying an “inherent requirement” that, for example, staff never talk about religious topics.xlix
NON-PARTICIPATION IN SAME-SEX WEDDINGS YET UNPROTECTED
The proposal for this legislation began in the context of the same-sex marriage that took place in 2017. In particular, people of faith were concerned that they would be discriminated against for deciding not to participate in same-sex weddings. This fear remains unaddressed by the proposed bill, as highlighted by Martyn Iles:
There’s nothing in this act at all that protects service providers if they want to conscientiously object to participating in same sex weddings. And in fact, this is where the whole debate began in the first place.l
John Steenhof expresses the same concern but states the problem more broadly:
The Bill does not protect service providers who feel compelled by conscience not to use their skills for the celebration of practices that are contrary to their deeply held religious beliefs. After the same sex marriage postal vote, this was a major concern for religious freedom that was raised and which has come to fruition locally and internationally. Conscientious objection protections in the Bill are tortuous and seem to have very narrow application to health practitioners only.li
Mark Sneddon likewise is uneasy that, missing from the proposed bill is:
Protection of people from being forced to act or speak contrary to conscience or religious belief.lii
INTERACTION BETWEEN COMPETING RIGHTS UNADDRESSED
In the Government’s response to the Religious Freedom Review, it was made clear that religious freedom is not subordinate to, but equal with, other rights. But ironically, the draft legislation fails to resolve the conflict between rights. John Steenhof captures this problem when he says:
The Bill does not address where competing rights interact and how to resolve conflict. There are key recommendations by the Ruddock Religious Freedom Review about the internationally recognised principles that should be included in legislation. This is missing altogether from this Bill.liii
RELIGIOUS SCHOOLS REMAIN UNPROTECTED
We have grave concerns that the legislation, as it currently stands, does not adequately protect religious schools. John Steenhof states the problem as such:
The Bill does not protect faith-based schools that are seeking to continue to operate in accordance with their religious convictions and traditional teachings.liv
Mark Sneddon considers the following two provisions missing from the draft bill:
- parental rights in relation to schooling
- the rules for allowing schools and religious bodies to manage their affairs in accordance with their faith under the Sex Discrimination Act and other discrimination lawslv
Patrick Parkinson, Academic Dean and Head of School for the TC Beirne School of Law, frames the problem for schools in terms of critical mass:
Critical to the survival of faith-based organisations is that they should be allowed to employ 100 per cent faith-based staff or a critical mass. This is necessary to maintain a faith-based ethos. If you lose a critical mass, you will become indistinguishable from the secular organisations, like the state school down the road. The problem is that while some organisations with 100 per cent faith-based staff can show a link to a doctrine of the faith, referencing a critical mass of faith-based staff does not (directly) arise from doctrine.lvi
TEST OF REASONABLENESS ONEROUS FOR PEOPLE OF FAITH
Martyn Iles rightly points out that the proposed bill allows employers to limit the speech of employees so long as those limits are considered “reasonable”—but that people of faith have been sacked for making others feel “unsafe” by their religious beliefs, and many would consider this reasonable.lvii
John Steenhof frames the same problem this way:
The Bill includes a four-step test for reasonableness that is complex, vague and uncertain. Similar tests internationally have been used by activist Tribunals and Courts to severely infringe on religious freedom. Christians who take claims will be required to mount complex arguments on each of the steps of reasonableness set out which will add to the time and cost of taking claims and which will discourage many Christians from accessing the protections of the Bill.lviii