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Wednesday, 15 May 2019 20:11

Religious Freedom and the Federal Election

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Religious Freedom and the Federal Election Pexels


Australia goes to the polls in a Federal election on May 18, 2019. It seems worthwhile to note, for those interested, some recent information about the views of the major political parties on religious freedom, and to report an important study of public opinion on the topic.

Major Party views on religious freedom

Freedom for Faith has just published a set of detailed responses from the Australian Labor Party and the Liberal/National Coalition on religious freedom issues, which deserves to be widely read. The whole report is available here, which includes links to the full answers received from each party. (Full disclosure- I am a Board member of Freedom for Faith.)

Sadly some of the answers provided are still obscure. Here, for example, from the Executive Summary, is how questions on religious schools are answered:

3. Does your Party affirm the right of faith-based educational institutions to teach students and to set codes of conduct for the students during school activities in accordance with the institution’s values and beliefs?

Labor indicated that students should be protected from discrimination on the basis of gender, sexuality and other attributes. On the other hand, it has no plans to change the law that allows educational institutions to impose reasonable conditions, requirements or practices in accordance with religious doctrines or beliefs.

The Coalition’s policy is to remove provisions that allow for discrimination against students. It supports the right of religious educational institutions to teach and maintain rules consistent with their faith.

4. Does your Party support the right of religious organisations, including faith-based schools, to employ staff who adhere to the beliefs of the religious organisation and/or commit to abide by a code of conduct required by the organisation as a condition of their employment?

The Coalition largely avoided the question and has referred the issues off to the Australian Law Reform Commission. It did not specifically endorse the right of faith-based organisations to select staff, or prefer to choose staff, who share the religious faith that motivates the organisation.

Labor did not respond to the first part of this question. Labor does support the right of schools to insist that their staff do not deliberately and wilfully behave contrary to the values of the school. Labor also believes teachers and other staff of religious schools should be protected from discrimination on the basis of gender, sexuality and other attributes covered by the Sex Discrimination Act.

A careful reading reveals a degree of ambiguity. Both parties apparently want to avoid being accused of “discrimination”, yet current law such as the Sex Discrimination Act 1984 (Cth) explicitly permits what it calls “discrimination” by religious bodies and faith-based schools, with the aim of protecting the religious freedom of schools. I have discussed these issues, and the controversy surrounding the leaking of the Ruddock Panel recommendations, in depth previously.

It seems that one difference between the parties is that the ALP remains committed to removing “exemptions” in discrimination laws (and so seems likely to remove those sections in the SDA explicitly allowing “discrimination”), but wants to say that schools will be able to set conditions and standards of behaviour which ought to be followed, so long as they are “reasonable” (for students) or do not “deliberately and wilfully behave contrary to the values of the school” (for staff).

On the other hand, as the Freedom for Faith commentary later says,

In its response to Freedom for Faith, the Coalition has been more explicit about the need to legislate in a way that reaffirms the right of schools to teach and maintain rules consistent with their faith.

Where the difference between the parties may lie, then, might be in their attitude to “direct” discrimination claims, and in the way they would implement a “reasonable” standard for conduct. These issues would be presented sharply, for example, where a religious school ran an end-of-year school ball and either a student or a staff member wanted to bring a same-sex partner. For the school to implement a policy that such would be contrary to a commitment to the Biblical value that intimate relationships are not appropriate between persons of the same sex, would probably amount to “direct” discrimination under the SDA.

If the ALP policy reflects the Bill that Senator Wong introduced into Parliament at the end of 2018 (and there is no indication that it does not), then this decision of the school would be unlawful. No “reasonableness” question could arise, as it would be a “direct” discrimination claim under s 21(2) SDA, where the only question would be: has the student suffered a “detriment” on the grounds of sexual orientation? If the ALP has repealed s 38 SDA there will be no defence. The Coalition response, while still ambiguous, at least expresses support for the right of a religious school to “maintain rules consistent with their faith”.

Recent ACT amendments removing religious freedom from religious schools

That the spectre of removal of s 38 SDA is not a mere phantom can be seen, not only from Senator Wong’s Bill from last year, but from amendments which have now come into force in the ACT. I noted these proposed amendments in a blog post last year: ACT bill removing religious freedom from religious schools introduced (Nov 1, 2018).

The ACT Discrimination Amendment Act 2018 commenced operation on 29 April 2019. In short, it repealed s 33 of the Discrimination Act 1991 which had exempted religious schools from the operation of provisions relating to sexual orientation (among other things.) It added a clause to s 32 which excluded the exemptions provided there for “religious bodies” from enjoyment by “educational institutions”.

In short, now no ACT faith-based school can now say “students should not bring same-sex partners to school dances”. They may also face litigation should they say: “All staff will be expected to provide a role model for students of Biblical sexual morality”. This is particularly so because the Territory has this unusual provision in its definition of employment discrimination:

(3)     To remove any doubt, an employer discriminates against an employee if the employer denies the employee access to a benefit associated with employment because the employee is in a same-sex relationship.

A refusal to promote a teacher at a Christian school who had entered into a same sex marriage would arguably be the denial of a benefit and be unlawful.

Of course the ACT government is not the Federal ALP front bench. But it seems reasonable to say that these recent legislative changes driven by the ALP ACT government reflect the sort of changes that may be on the agenda for a future Federal Labor government.

Public Opinion on religious freedom

The other study to note is a very interesting YouGov Galaxy opinion survey commissioned by the Institute for Civil Society. The survey reveals, among other fascinating facts, that:

75% of those surveyed agreed that freedom of thought, conscience and belief in public through speech, practice and teaching needed to be protected. Only 5% disagreed and 20% were undecided.

Support has risen from the 62% who agreed to a similar question in a Newspoll in August 2017.

These are all issues that those who are interested in religious freedom will be considering in making up their mind about who to support in Saturday’s election.

Neil Foster

Law Professor

Neil is an evangelical Christian, an Associate Professor in law, a father and a grandfather. He has qualifications in both law and theology and teaches “Law and Religion” as an elective to later year law students.

He blogs at Law and Religion Australia