More State law changes likely to restrict religious freedom

A warning that changes to discrimination law in NSW and Queensland will restrict religious freedom was delivered by Associate Professor Neil Foster from Newcastle University at the Notre Dame University religious liberty conference last week.

“One of the themes of recent agitation in relation to discrimination laws is ‘let’s add extra stuff in, let’s add extra requirements, let’s add extra grounds on which to complain.'” Foster said. And, of course, there comes a point where when you add these things you impair other people’s rights.”

In his talk, Foster outlined changes in NSW and Queensland. Following the report of the Australian Law Reform Commission that recommended stripping away exemptions in the Sex Discrimination Act that affect Religious organisations’ ability to prefer staff from faith communities, Foster pointed out that a paper from the NSW Law Reform Commission reviewing that state’s Anti Discrimination Act is forthcoming. Foster also mentioned legislation introduced in Queensland.

Foster pointed to section 56 of the NSW Anti Discrimination Act as unlikely to survive changes. For example, it provides that the Act does not affect
•”the appointment of any other person in aNY capacity by a body established to propagate regions” and •”any other act or practice of a body established to propagate region that conforms to the doctrines of that religion or is necessary yo avoid injury to the religious susceptibilities of the adherents of that religion.”

In a paper distributed at the conference, Foster commented: “This is an important position which protects the rights of churches and other religious bodies to apply their faith communities in a range of decision-making. It was this provision, for example, which protected the right of the Wesley Mission in making decisions about appointing foster-carers, to prefer heterosexual couples and not to allocate these roles to same sex couples. But this is one provision that will no doubt be under challenge.”

Speaking at the conference, Foster added, “It seems pretty clear that in any review of the Act there will be pressure from a number of people to either remove or water down this section very substantially.”

Foster outlined a key concern about the trend in other States and territories to reduce religious freedom rights that allow religious bodies to employ those who share their ethos.

“One way they will try to do this is to add things that are called inherent requirements. Suppose, for example, sharing your faith is part of the job. Will a school use the mathematics teacher [to do this]?

“Do they have an inherent requirement [for people to do this as part of the job]? Now, obviously, with Christian organisations, some say no, we don’t have this as an inherent requirement, while others would say we have a whole ethos reflected in our school; therefore, everyone – from the gardener to the principal –should share our religious beliefs. And that’s a view that is possible for people to take at the moment that will be very difficult if you have to subject this decision to a secular tribunal to ask, ‘is this an inherent requirement?’

Another bill before the NSW parliament from independent ex-greens MP Alex Greenwich goes much further. Foster outlined some problems he saw in the massive bill.

1. “The Bill undermines the ability of religious schools and other institutions to maintain their faith-based character. It will give tribunals and courts the power to override the decisions of religious bodies if they are not ‘reasonable and proportionate.'”
   
2. “Previleging LGBTI people over other members of the community … the bill provides protection against discrimination on the basis of ‘sexuality’ but does not include ‘heterosexual’ as a protected category.”
   
3. “Privileging prostitution – sex worker as a an additional protected attribute.”
   
4. “The bill confuses and conflates sex and gender… [A]Proposed section permits any person 16 or over to register a change in their sex by statutory declaration…”
   
5. “The Bill makes amendments … that presume minors have the capacity to make life altering decisions for themselves without the guardian oversight of their family.”

Further detail is included in a Freedom for faith overview of the bill.

Foster pointed to papers about the Queensland law on the blog he runs, Law and Religion Australia

Associate Professor Mark Fowler, wrote that “The Bill’s exception for employment by religious institutions would enact the most restrictive regime in Australia.” He argues that it will restrict Schools hiring to a greater extent than Victorian law. For example a school could not refuse to hire a sex worker.

“Here the proposal is that religious bodies and schools may only discriminate on the grounds of religious belief or religious activity in relation to the selection and dismissal of workers if: 

• participation in the teaching, observance or practice of the religion concerned is a genuine occupational requirement of the work; and 

• the other person cannot satisfy the genuine occupational requirement because of the other person’s religious belief or religious activity; and

• the discrimination is reasonable and proportionate in the circumstances. 

“The Government clarifies that ‘discrimination on the basis of a protected attribute other than religious belief or religious activity will not be permitted under this exception.’ It, therefore, states that the proposal ‘narrow[s] the grounds on which a religious body can discriminate in the area of employment to religious belief and activity’.

“In this respect, the Queensland Government proposal differs from the Victorian law on which it is said to be based. The Victorian Government has clarified that a religious institution or school may discriminate on any ground, provided that the reason for the discrimination is the inconsistent religious belief of the prospective employee or employee in question. Victorian law does not ‘narrow the grounds on which a religious body can discriminate’. The proposed Queensland law is much more limited than the Victorian law because it permits the religious institution or school to only discriminate on the basis of the protected attribute of religious belief or activity where the person has an inconsistent belief or engages in an inconsistent religious activity. Under the Queensland proposal, an act of discrimination cannot relate to any of the other protected attributes, which include ‘gender identity’, ‘relationship status’, ‘sex’, ‘sex work activity’ and ‘sexual orientation’.”

Image Credit: American Life League / Flickr