Flat White

ScoMo’s religious freedom plans may be worse than doing nothing

2 October 2019

5:00 AM

2 October 2019

5:00 AM

When a devout Christian teacher takes legal action against a private Christian school claiming unlawful discrimination, what does protection of religious freedom look like?

Rachel Colvin, a teacher and married mother of three, is a professing Christian. She has taken legal action against Ballarat Christian College, claiming that the College discriminated against her due to her political and religious beliefs, which include support for same-sex marriage.

The school’s enterprise agreement requires employees to “possess and maintain a firm personal belief consistent with the Statement of Faith of the college”. That Statement includes the belief that: “A marriage can only be between a male and a female, and upon this foundation alone should children be conceived and families formed”.

Clearly, Colvin’s beliefs conflict with those of the College. Whose religious freedom should prevail?

The Victorian Equal Opportunity Act 2010 makes any discrimination on the basis of political or religious belief or activity unlawful. But it also includes an exemption for religious schools that are “conducted in accordance with religious doctrines, beliefs or principles”. Does the exemption apply in Rachel Colvin’s case? This question will be determined by the Victorian Civil and Administrative Tribunal (VCAT) when the complaint is heard, possibly later this year.

Determining whether exceptions apply is fraught with difficulties. VCAT is required to determine matters that are essentially theological, such as the meaning of “religious doctrines, beliefs or principles”.

It is not altogether surprising that Australian anti-discrimination tribunals have an appalling record in applying state-based religious discrimination laws.

In the Catch the Fire case in the Victorian Court of Appeal, Justice Nettle determined that VCAT had erred in nineteen findings. In the OV & OW v Wesley Mission case, the NSW Supreme Court found that the NSW Anti-discrimination Tribunal had wrongly identified Wesley Mission’s “religion”, had wrongly determined the question of “doctrinal conformity” and was wrong about “religious susceptibilities”.

Correcting these errors through appeals to state Supreme Courts has proved to be hugely expensive. Respondents have incurred massive costs, up to $1 million, well beyond the reach of most people. The process has become the punishment, for the innocent as well as the guilty.

Do laws that ban discrimination on the grounds of religious belief or activity create more problems than they solve?

This question is brought into sharp focus with Attorney-General Christian Porter’s recent release of the Exposure Draft Religious Discrimination Bill 2019.

Until fairly recently, Australians have been free to hold beliefs, act on them, speak about them, assemble and associate with other like-minded people, and educate their children accordingly. These freedoms – of belief, expression, peaceful assembly and association – are fundamental in a democratic society. They are affirmed in Articles 18, 19, 21 and 22 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory.

For several decades, however, state and federal discrimination laws have been steadily eroding these fundamental freedoms. The proposed Religious Discrimination Bill threatens to further undermine these Australian liberties, by making religious beliefs and actions subject to expensive court procedures.

Religious freedom is an essential part of being human. Uniquely, humans have the capacity to order their lives by thought, belief and reason, rather than mere instinct. The freedom to exercise this capacity – religious freedom – needs to be recognised as intrinsic to being human and thus inalienable.

Human beings are inherently social. As Aristotle observed millennia ago, human beings are zoon koinonikon – social or communal animals. Religion is also essentially communal: the word “religion” comes from the Latin religare meaning “to bind”, from which we get the English words “ligature” and “ligament”. A religion is essentially a group of people bound by common beliefs, values and practices – in other words, a community.

Freedom of association is essential for religious communities to function. The freedom to associate with like-minded people – and the linked freedom not to associate with contrary-minded people – is also intrinsic and inalienable. The latter freedom, of non-association, implies the right of a community to discriminate against those who would undermine its core beliefs, values and practices.

The federal government’s proposed Religious Discrimination Bill fails to recognise religious belief and expression as intrinsic to being human and inalienable. Instead, it proposes to fetter religious belief and activity by legislating conditions that would be enforced by federal courts.

The primary focus of the Bill is hostile to religious freedom. By making religious discrimination unlawful, religious organisations could find their ethos at risk from atheists or others with different beliefs. For survival, they may need to rely on exemptions provided in the Bill – but these exemptions are restricted to limited circumstances and could be denied by court decisions. This is bondage, not freedom.

Australians have extraordinarily diverse religious and non-religious beliefs. These include the ancient religions of Zoroastrianism, Hinduism, Taoism and Buddhism; the Abrahamic religions of Judaism, Christianity and Islam; modern religions and sects such as Mormonism, Scientology and Wicca. Christian groups comprise 16 major denominations and many minor ones. In addition, there are non-religious belief systems including rationalism, atheism and humanism.

If this Bill became law, conciliators and courts could face the Herculean task of dealing with hundreds of belief systems. Theologians and philosophers have spent years seeking to clarify religious doctrines, but disagreements abound. It is inevitable that those faced with making legal determinations on these matters will make errors – as shown by the appalling record of Australian anti-discrimination tribunals on such issues.

The Bill is hostile to fundamental democratic freedoms. The ICCPR affirms the fundamental freedoms of thought, conscience and religion, and the liberty of parents to raise their own children (Article 18); freedom of expression (19); peaceful assembly (21) and association (22). The ICCPR allows these fundamental freedoms to be limited only by laws “necessary to protect national security, public safety, order, health, or morals or the fundamental rights and freedoms of others”. The draft Religious Discrimination Bill not only undermines these freedoms, but its exemptions apply only in circumstances far more stringent than those envisaged by the ICCPR.

The Bill may breach section 116 of the Australian Constitution: “The Commonwealth shall not make any law … for prohibiting the free exercise of any religion”. As the Bill states in clause 4, “This Act makes it unlawful to discriminate on the ground of religious belief or activity in a range of areas of public life.” However, a religious community may need to discriminate in order to survive. The Bill’s outlawing of such discrimination could amount to prohibition of free exercise of the religion.

The Bill covers both religious and non-religious belief. The definition of “religious belief or activity” is even-handed: it includes holding or not holding a religious belief and engaging or not engaging in religious activity.

However, the definition of “statement of religious belief” is not even-handed. A non-religious person needs only to show the belief “arises directly from the fact that the person does not hold a religious belief”. A religious person needs to show that the belief “may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of the religion”. A tribunal or court needs to identify “the religion”, clarify its “doctrines, tenets, beliefs or teachings”, and decide whether the person’s statement is “reasonably … in accordance with” those doctrines, etc. These multiple hoops imposed on a religious person, but not on a non-religious person, reveal the Bill’s bias against religious people.

The Bill reverses the burden of proof, otherwise known as the presumption of innocence, for complaints of indirect discrimination. Yet the presumption of innocence is the legal principle most widely known and valued by the Australian public. The effect is to allow a person to lodge a complaint of discrimination with minimal evidence and require the respondent to show the action was reasonable. Given the significant penalties that can be imposed for breaches discrimination laws, a reversal of the burden of proof cannot be justified.

The Bill is internally inconsistent. The first object of the proposed legislation is “to eliminate … discrimination against persons on the ground of religious belief or activity”. However, clause 11 allows discrimination “intended to meet a need or reduce a disadvantage”. In short, the Bill seeks both to eliminate and allow discrimination.

Legal professor Geoffrey Walker, in his book The Rule of Law, says that laws must have the characteristics of certainty, generality and equality. Certainty requires laws to be clear, so people know in advance how to conduct their lives legally. Generality is achieved by laws applying equally to all citizens. Equality avoids laws that benefit or injure particular individuals or groups. Because the Bill is vague, inconsistent and open to arbitrary enforcement, it fails to satisfy these criteria.

The Bill’s provision for a Freedom of Religion Commissioner is problematic. The powers of the Commission under this Bill would include granting exemptions, investigating complaints and promoting compliance with its provisions. The combined effect of these powers would shackle religious freedom to the dictates of the Commissioner – who could be a zealot for religious “political correctness”. It would be a far cry from recognising religious freedom as an intrinsic and inalienable human right.

In short, the draft bill. It could prove to be worse than doing nothing. If the federal government really wants to protect religious freedom, it shouldn’t start from here.

Dr David Phillips is a former research scientist and founder of FamilyVoice Australia.

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