Religious Discrimination Bill and Related Legislation
Kindly accept this submission on behalf of the QCCL in relation to above bills.
1. GENERAL PRINCIPLES
1.1 Freedom of Worship
Religious worship is essential to most people's lives. This is true for non-believers as well as believers once we recognise that freedom of religious worship includes the freedom not to worship.
Once we accept that proposition the only generally acceptable basis for freedom of worship is equal freedom for everybody. Each person when considering their own claim to be able to worship freely, would reject a proposal that gave them less freedom to do so then another person.
1.2 Freedom of association.[1]
The whole point of liberal institutions is to leave people with a great deal of discretion in their conduct, and one of the ways in which they can exercise that discretion is voluntarily to follow the orders issued by bodies whose authority they acknowledge.
For this reason, freedom of association is a core liberal value and it protects the freedom of groups whose norms mandate among other things the unequal treatment of men and women. “The only condition on a group being able to impose norms on its members is that the sanctions backing the norms must be restricted to ones that are consistent with liberal principles. What this means is primarily that, while membership of the group can be made contingent upon submission to these unequal norms, those who leave or are expelled may not be subjected to gratuitous losses”[2]
For example, Jewish and Muslim divorce laws treat men and women differently. It is beyond the scope of a liberal State to be rewrite those rules so long as the only reason anybody is adhering to them is the wish to remain a member of the community. What a liberal State cannot do however is to give legal force to religious rules that contravene liberal principles of equal treatment.[3]
Individuals should be free to associate together anyway they like so long as they do not in doing so break laws designed to protect the rights and interests of those outside the group. There are two provisos. The first is that all the participants should be adults of sound mind. The second is that their taking part in the activities should come about because of their voluntary decision and they should be free to leave whenever they want to.[4]
The condition upon which Churches can legitimately tell members what to do is that those members are free to obey without being liable to any penalty except expulsion. In contrast a Church that would call on the State to punish heresy or disobedience would clearly be unacceptable. Equally unacceptable on liberal principles would be a Church whose members could inflict punishment on dissenters without legal sanction.
Once upon a time, the concept of freedom of association was used to found much greater claims. It was considered that the power to exclude people from membership of a club or association was like being able to choose your friends. Additionally, it was argued that, at least in a commercial context, you could obtain what you are looking for elsewhere. This is still the position of classical liberals.
However, the first point against that position is that some associations such as business clubs-controlled access to significant resources. In those cases freedom of association conflicts with the principle that people should not be put at a material disadvantage based on belonging to a certain gender or ethnic or racial group.
The second category is that some clubs do not exercise any discretion in the choice of members but impose a blanket exclusion of say Jews and women. Such clubs have a relatively weak claim-based on freedom of association. The demand that they should remove the blanket exclusion is well-founded based on equity
By way of contrast many clubs have some process of selection which allows otherwise eligible candidates to be rejected on purely personal grounds. Their claim to do so based on freedom of association is stronger. Being excluded from a club arbitrarily is a possibility that anybody must face and is inherent in the power of clubs to select their own members at all. But being excluded on the basis of race or sex effects the members of the excluded group differently from somebody excluded on a purely personal basis. Excluding a person on the basis of race or sex has a stigmatising effect on the whole group. It does not make any difference here whether the club controls a great resource or not. [5]
1.3. Equality of Opportunity
There is a further point to consider, which was expressed this way by the philosopher John Rawls:
Society on its part accepts the responsibility for maintaining certain basic liberties and opportunities and for providing a fair share of primary goods within this framework, leaving it to individuals and associations to form and to revise their aims and preferences accordingly. Thus, there is an understanding among members of a well-ordered society that as citizens they will press claims only for certain kinds of things and in ways allowed for by the principles of justice. Strong feelings and zealous aspirations for certain goals do not as such, give people a claim upon social resources or the design of public institutions.... Fairness to persons may be achieved by a well-ordered society even though all (admissible) conceptions of the good do not flourish equally and some hardly at all.[6]
Religious people are entitled to laws which remove practices that restrict the range of opportunities available to them. But they are not entitled to special accommodations for their preferences. The distinction is between limits on the range of opportunities open to people and limits on the choices they may make between the opportunities available to them which are a consequence of the interaction between laws of general application and their religious preferences.[7]
1.4 What practical rules can be derived from these arguments?
A Institutions that open their doors to the public to provide services-whether accommodation, catering or healthcare, should not be able to claim an exemption to rules furthering equality or public health. Any contrary rule would permit the institution to impose its faith on others resulting in harm to health and equality.
B Institutions that provide goods and services to the public differ from Churches synagogues mosques and other places of worship. In those places the rules of the faith are typically being imposed only on those who have chosen to accept or to at least explore the faith.
1.5 Employment
The next topic concerns claims of discrimination in employment brought against religious and religious affiliated institutions.
In the Church of Jesus Christ of Latter Day Saints vs Amos[8], Mr Amos had worked for 16 years as a janitor in a gymnasium open to the public that was owned by the Mormon Church. He was fired for not complying with the eligibility test for attendance at a Mormon temple. The American Supreme Court held that if the exemption for religious organisations from the discrimination statue did not extend to this "it would be an interference with the autonomy of religious organisations." The Court held that if there is no exemption the religious community’s process of self-definition would be determined at least in part by the Courts.
However as one commentator put it there is no sharper deviation from liberalism than coercing belief by conditioning vital secular benefits on declarations of faith. The janitor’s liberty, which includes the right not to believe, was clearly burdened by the Churches exemption from the law as was the religious liberty of any other non-Mormon potential employees.
Many voluntary associations do not have internal rules satisfying the demands that liberal principles make on political bodies. That of course does not just apply to Churches. Other kinds of organisations are often not run democratically and there is no objection to this if membership is voluntary. The consequence of this is that anti-discrimination laws must allow Churches to apply religious criteria to ordination at the least. For example, for a Court to intervene on the side of a woman who wishes to be ordained as a priest of the Catholic Church would be for the State to settle what is an entirely internal dispute in that Church.[9]
However, this principle does not extend to employment in ordinary capacities as was found in a Canadian case concerning a woman who alleged that she was discriminated against by a Christian social services organisation on the basis that she was a lesbian. The Court rejected the organisation's argument that a “religious ethos infuses the very work that support workers do and, therefore, the Christian ministry and how the work is carried out cannot be distinguished in any meaningful way. Instead, the Court concluded: “There is nothing about the performance of . . . helping residents to eat, wash and use the bathroom, and taking them on outings and to appointments that requires an adherence by the support workers to a lifestyle that precludes same sex relationships.”[10]
For this reason, exemptions from anti-discrimination law which allow religious schools to refuse to employ people on the basis of marital status and sexual orientation should be removed. Schools of course should be entitled to insist that those who teach religion should be believers. The starting point must be that you don’t need to be a believer to teach mathematics.
Having said that, those who run religious schools are entitled to prevent proselytizing by staff, against the views of the world they hold. This follows from the employee having accepted a position in a school that holds to and seeks to inculcate certain worldviews. Equally this does not mean that staff cannot be prevented from discussing the fact there are individuals and other religions within society that hold beliefs or principles different from those of the school’s operators. Religious schools should be entitled to discipline staff who actively campaign against the views and beliefs of the religion of the school in which they are teaching. In our view, section 25 (3) of the Queensland Anti-Discrimination Act deals appropriately with this topic
We turn now to apply these principles to the legislation.
2. Religious discrimination Bill 2021
It follows from what has been said, that we support a law which prohibits discrimination on the grounds of religion.
There is much debate as to whether such a law is necessary in Australia. In our view that is not to the point. The point is that religion like sexuality, like race is fundamental to who we are as human beings and the right to be treated equally regardless of your religion is entitled to protection just as much as the right to be treated equally regardless of your sexual orientation, gender or race.
In that regard, we note that the bill is very much a replication of provisions contained in existing anti-discrimination statutes at the Commonwealth level. As we support those provisions, we do not intend to make any comment upon them. Our remarks will be directed to those provisions which depart in some significant way from the standard anti-discrimination provisions.
2.1 Definition of “Religious body”
Under clause 5(1) ‘religious body’ means any of the following that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion:
(a) an educational institution (that is, a school, college, university or other
institution at which education or training is provided);
(b) a registered charity; or
(c) any other kind of body (other than a body that engages solely or primarily in
commercial activities).
This definition is far too broad. It should be amended to apply only to bodies “established for religious purposes”. As is clear from the discussion above the principles of freedom of association apply to bodies having a religious objective, not that are simply conducted in accordance with religious principles. That could extend to a whole range of inappropriate bodies, including the meditation business referred to in the ex-memo.
2.2 Clause 7
It follows from the above that clause 7 is not acceptable if the definition of “religious body” is not amended to make it clear that it only applies to bodies with religious purposes.
This clause is in the following terms
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.
Based on the principles set out above, this provision is acceptable when applied by church members to other consenting members of the faith and should be amended to narrow it to that scope.
In terms of freedom of association, the presence of clause 43 is also to be noted. There are identical provisions to this in all Commonwealth discrimination legislation except the Racial Discrimination Act. Clause 43 will allow religious bodies to discriminate in relation to the admission of members and the provision of benefits and services and to those who adhere to the faith and are members of the body[11]. This is again, appropriate as between members of the Association. But in our view different considerations apply once the body starts providing services to non-members on a commercial basis.
Clause 7 (4) allows a religious body to discriminate against a person to avoid injury to the religious susceptibilities of adherents of the same religion as the religious body. The question here is, to what extent should a religious body be able to discriminate against a nonbeliever to protect the susceptibilities of its believers. We agree firstly with those who say with this provision should be amended to require that the conduct is “necessary” to avoid the injury. This will import an objective requirement into the test. We would also submit that the section should be amended to require the body to establish that what it does is proportionate to the injury suffered by the religious person or persons.
We also note that the Queensland Act provides protection against offending religious sensibilities in the specific contexts of accommodation, religious sites, land owned by a religious body (sections 48, 80 and 90 respectively)
Clause 7(6) provides
(6) If a religious body that is an educational institution engages in conduct mentioned in subsection (2) or (4) in relation to the matters described in section 19 (about employment):
(a) the conduct must be in accordance with a publicly available policy; and
(b) if the Minister determines requirements under subsection (7)—the policy, including in relation to its availability, must comply with the requirements.
This allows an educational body to refuse to hire those who do not accept the faith of the school. In our view this is not acceptable. You do not have to have a particular religion to teach science or history. We accept that of course those who are to teach religious classes should hold the faith of the school and as leaders of the institution the school should be entitled to insist that the Principal and Deputy are adherents. But beyond that there is no justification for granting religious schools exemptions from general laws.
2.3 Clause 9
This clause allows religiously run hospitals, aged care facilities, accommodation and disability service providers to discriminate against non-believers in relation to employment. For the reasons set out above the provision is unacceptable.
2.4 Clause 10
This clause says:
A person does not discriminate against another person under this Act by engaging in conduct that:
(a) is reasonable in the circumstances; and
(b) is consistent with the purposes of this Act; and
(c) either
(i) is intended to meet a need arising out of a religious belief or activity of a person or group of persons; or
(ii) is intended to reduce a disadvantage experienced by a person or group of persons on the basis of the person’s or group’s religious beliefs or activities.
(2) This Section applies despite anything else in this Act.
This would appear to be an affirmative action provision. Subject to the observations of John Rawls quoted above, there is no objection to such provisions. However, the purpose of affirmative action provisions is to undo disadvantage suffered by groups which have been discriminated against. There is no reference in this section to the redress of disadvantage or the achievement of equality. On this basis, we oppose it recommending that it be replaced with a standard affirmative action provision from other Commonwealth antidiscrimination statutes.
2.5 Clause 11
This clause overrides state and territory laws prohibiting discrimination in employment by religious educational institutions. We object to this provision for the reasons enunciated above.
2.6 Clause 12
This proposed section provides that a statement of belief does not amount to discrimination, including under all relevant State and Territory Legislation.
The QCCL supports a broad free speech right. In the debate in relation to section 18C we took the view that it should not be unlawful to offend or insult a person. We supported an amendment to that section which would remove those words from it. This proposed law in broad terms reflects that position.
However, the problem with this provision is that it creates a free speech right which only applies in the context of religious statements. As we have stated, we support a broad free speech right. However, if that right is to be created, it needs to be created for all Australians and not just those expressing religious beliefs. This section has the potential to create a very privileged group within the community, a group which many see as already having significant privileges. On that basis, we oppose this proposed provision.
2.7 Clauses 15
This provision applies to professional and other bodies to prohibit them having rules that prevent persons who are members of them from making statements of belief. Again, we support a broad free speech right. But any such right must extend to all.
2.7 Clause 16
This provision extends the operation of the anti-discrimination provisions, to prohibit discrimination against a person on the basis that they have an association with a religious person. We have no objection to this provision.
2.8 Clause 37(2)
This clause provides that it will be lawful for a person to discriminate against another person on the basis of their religious belief or activity if they are performing a law enforcement, national security or intelligence function. In our view national security does not excuse profiling. In fact, it is our view that not using profiling is integral to the proper protection of national security and this provision should not be allowed.
2.9 Clause 39(1)
This proposed section makes it lawful to discriminate in choosing employees on the basis of religion to work in a domestic context. On balance, it seems to us that this is acceptable. It would be a liberty obliterating extension of their power for the state or society to determine how people choose their friends. By analogy, in a purely domestic context people are entitled to choose who lives in their own home.
2.10 Clause 39(2)
This is in many respects a standard provision in that it makes it lawful to discriminate against a person where that is necessary to fulfil the inherent requirements of a position.
On the basis that section 39 (2) is interpreted in the same way as the similar provision in the Christian Horizons case then it is an acceptable provision.
However, we would note that the Queensland Anti-Discrimination Act makes a very specific set of exemptions for those who perform religious functions in religious bodies in section 109. It is in these terms:
(1) The Act does not apply in relation to—
(a) the ordination or appointment of priests, ministers of religion or members of a religious order; or
(b) the training or education of people seeking ordination or appointment as priests, ministers of religion or members of a religious order; or
(c) the selection or appointment of people to perform functions in relation to, or otherwise participate in, any religious observance or practice; or
(d) unless section 90 (Accommodation with religious purposes) applies—an act by a body established for religious purposes if the act is—
(i) in accordance with the doctrine of the religion concerned; and
(ii) necessary to avoid offending the religious sensitivities of people of the religion.
(2) An exemption under subsection (1)(d) does not apply in the work or work-related area or in the education area.
On the principles contended for here this is entirely acceptable and should be adopted in this statute
2.11 Clauses 40 (2) – (5)
These provisions enable religious bodies[12] to discriminate in the provision of camp and conference facilities. We presume this provision is intended to apply to camps and conference facilities that are used for the purposes of religious retreats, which is a common practice in many religions. We can accept that there is a case, as there is in relation to churches, that such spaces are kept exclusively for the believers and would be believers. To that end the draft bill needs to be amended to make it clear that it is restricted to facilities dedicated to such spiritual purposes. Again, it is our position, that should the religious body make these facilities available on a commercial basis, they lose the right to avail themselves of this exception. We also make the comment, that it is not clear to us why this is not covered by clause 43.
3. Human Rights Legislation Amendment Bill 2021
The only clause of this Bill upon which we wish to comment is 47C which is set out below:
An educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage, if the refusal:
(a) conforms to the doctrines, tenets, beliefs or teachings of the religion of the educational institution; or
(b) is necessary to avoid injury to the religious susceptibilities of adherents of that religion.
Subsection (1) applies to facilities made available, and goods and services provided, whether for payment or not.
This section does not limit the grounds on which an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion may refuse to make a facility available, or to provide goods or services, for the purposes of the solemnisation of a marriage, or for purposes reasonably incidental to the solemnisation of a marriage.
To avoid doubt, a reference to an educational institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion has the same meaning in this section as it has in section 38 of the Sex Discrimination Act 1984.
Based on what we have said above, we object to this provision on the basis that it would permit discrimination in cases where the body is providing the facilities on a commercial basis.
We trust this is of assistance to you in your deliberations.
Yours Faithfully
Michael Cope
President
For and on behalf of the
Queensland Council for Civil Liberties
24 December 2021
[1] This discussion draws heavily on Brian Barry Culture and Equality Polity 2001
[2] ibid 127-8
[3] ibid pages127-8
[4] ibid page 148
[5] Brian Barry Justice as Impartiality Oxford University Press 1995 pages 15-18
[6] Fairness to Goodness (1975) 84 The Philosophical Review 536 at 553-554
[7] Barry Culture and Equality pages 34-37. The opinion of Scalia J of the United States Supreme Court in Employment Division v Smith 494 US 872 adopts a similar approach
[8] 483 U.S. 327 (1987)
[9] Barry Culture and Equality 166-7
[10] Ontario Human Rights Commission v. Christian Horizons [2010] ONSC 2105 at para 104 ("Christian Horizons")
[11] see for example Gardner v All Australia Netball Association Ltd [2003] FMCA 81 - netball association could not discriminate by excluding a pregnant player from its competition who was not an association member.
[12] We repeat our comments on the definition of religious body above.
[1] This discussion draws heavily on Brian Barry Culture and Equality Polity 2001
[2] ibid 127-8
[3] ibid pages127-8
[4] ibid page 148
[5] Brian Barry Justice as Impartiality Oxford University Press 1995 pages 15-18
[6] Fairness to Goodness (1975) 84 The Philosophical Review 536 at 553-554
[7] Barry Culture and Equality pages 34-37. The opinion of Scalia J of the United States Supreme Court in Employment Division v Smith 494 US 872 adopts a similar approach
[8] 483 U.S. 327 (1987)
[9] Barry Culture and Equality 166-7
[10] Ontario Human Rights Commission v. Christian Horizons [2010] ONSC 2105 at para 104 ("Christian Horizons")
[11] see for example Gardner v All Australia Netball Association Ltd [2003] FMCA 81 - netball association could not discriminate by excluding a pregnant player from its competition who was not an association member.
[12] We repeat our comments on the definition of religious body above.