Australia Needs a Restoration of Freedoms, Not a Religious Discrimination Act

Commentary Despite a commitment during the 2019 election campaign by the Morrison government to legislate for religious freedom, the Religious Discrimination Bill has just been shelved by the government. This occurred after Labor, and five Liberal MPs decided to vote for the repeal of all religious exemptions for faith-based educational institutions in relation to students. The prime minister then decided that too little parliamentary time remained to resolve these issues prior to the election, scheduled to be held in May 2022. The Morrison government argued that the Religious Discrimination Bill “would ensure Australians are protected from discrimination on the basis of religious belief or activity—just as they are protected from discrimination on the basis of age, sex, race and disability.” The Bill would thus fit into the familiar anti-discrimination architecture and not create a positive right to freedom of religion. If adopted, it would make it unlawful to discriminate on the basis of religious belief or activity in specified areas of public life. If enacted, the Bill would have given people affected by religious discrimination a right to complain to the federal Human Rights Commission as an alternative to the bodies established under state and territory law. The Commission would then evaluate the complaint and attempt to conciliate between the parties. Where a complaint could not be successfully conciliated, an individual would be able to apply to the Federal Court or Federal Circuit Court. The proposed law does not really change much. Except for New South Wales (NSW) and South Australia, discrimination based on religious belief is already prohibited. However, the government erroneously construed the debate as involving a right to discriminate on the grounds of religious beliefs. A statue representing Virgin Mary and Jesus is seen in the middle of an empty highway as part of the preventive measures against the ongoing coronavirus pandemic in Beirut, Lebanon, Monday, March 30, 2020. (AP Photo/Hussein Malla) The whole irony is that the present Bill not only protects people from discrimination based on their religious beliefs but also introduces new rights for non-believers, gay people, and transgender minorities. Prime Minister Scott Morrison’s watered-down version of the legislation means that some faith-based schools with their own religious ethos could face discrimination charges in the future. Still, the Bill failed because amendments have been proposed to the Sexual Discrimination Act that would remove, from faith-based schools, exemptions presently found in the Sex Discrimination Act. The removal of the exemptions would force these schools to accept students regardless of their gender identity or sexual orientation. These amendments were, according to law professor Patrick Parkinson, “targeted mainly at Christian schools and other faith-based organisations.” However, as he also explains, “they can also send a chilling message to religiously devout refugees and migrants from ethnic minorities, almost all of whom come from countries with conservative religious values.” Religious schools play a key role in promoting the “survival and continued development of the cultural, religious, and social identity of religious minorities.” They can assist minorities with the enjoyment of religious culture, acting as positive measures of protection and for allowing the participation of religious minorities in decisions that affect these communities. Accordingly, the creation by a minority group of their own school, based on their specific religious convictions, should be encouraged and supported. Such schools would naturally expect students to adhere to the school’s core principles and values. It is understood that the indispensable incidents to freedom of religion inevitably include the right to freedom of association. Freedom of association plays a vital role in promoting democratic pluralism and personal fulfilment by supporting cultural diversity and advancing the common good. Yet, as with any other organisation, including political parties and government bodies, the law must ensure that faith-based schools have the freedom to operate in a manner consistent with their core values and beliefs. Indeed, if the exemptions were to be removed from the Sex Discrimination Act, religious schools would not have any compelling reason to exist. Governments that support freedom of association for faith-based schools directly assist in the achievement of a more diverse and tolerant society. As noted by Kathleen Brady (pdf), “autonomous religious groups and other voluntary associations … play an essential role as spaces for retreat for the losers in democratic political processes, and by doing so, they help to maintain stability of majoritarian political systems.” The Bill represented another failed attempt by the Morrison government to allow religious organisations to maintain their identity and ethos w

Australia Needs a Restoration of Freedoms, Not a Religious Discrimination Act

Commentary

Despite a commitment during the 2019 election campaign by the Morrison government to legislate for religious freedom, the Religious Discrimination Bill has just been shelved by the government. This occurred after Labor, and five Liberal MPs decided to vote for the repeal of all religious exemptions for faith-based educational institutions in relation to students. The prime minister then decided that too little parliamentary time remained to resolve these issues prior to the election, scheduled to be held in May 2022.

The Morrison government argued that the Religious Discrimination Bill “would ensure Australians are protected from discrimination on the basis of religious belief or activity—just as they are protected from discrimination on the basis of age, sex, race and disability.”

The Bill would thus fit into the familiar anti-discrimination architecture and not create a positive right to freedom of religion. If adopted, it would make it unlawful to discriminate on the basis of religious belief or activity in specified areas of public life.

If enacted, the Bill would have given people affected by religious discrimination a right to complain to the federal Human Rights Commission as an alternative to the bodies established under state and territory law. The Commission would then evaluate the complaint and attempt to conciliate between the parties. Where a complaint could not be successfully conciliated, an individual would be able to apply to the Federal Court or Federal Circuit Court.

The proposed law does not really change much. Except for New South Wales (NSW) and South Australia, discrimination based on religious belief is already prohibited.

However, the government erroneously construed the debate as involving a right to discriminate on the grounds of religious beliefs.

Epoch Times Photo
A statue representing Virgin Mary and Jesus is seen in the middle of an empty highway as part of the preventive measures against the ongoing coronavirus pandemic in Beirut, Lebanon, Monday, March 30, 2020. (AP Photo/Hussein Malla)

The whole irony is that the present Bill not only protects people from discrimination based on their religious beliefs but also introduces new rights for non-believers, gay people, and transgender minorities.

Prime Minister Scott Morrison’s watered-down version of the legislation means that some faith-based schools with their own religious ethos could face discrimination charges in the future.

Still, the Bill failed because amendments have been proposed to the Sexual Discrimination Act that would remove, from faith-based schools, exemptions presently found in the Sex Discrimination Act. The removal of the exemptions would force these schools to accept students regardless of their gender identity or sexual orientation.

These amendments were, according to law professor Patrick Parkinson, “targeted mainly at Christian schools and other faith-based organisations.” However, as he also explains, “they can also send a chilling message to religiously devout refugees and migrants from ethnic minorities, almost all of whom come from countries with conservative religious values.”

Religious schools play a key role in promoting the “survival and continued development of the cultural, religious, and social identity of religious minorities.” They can assist minorities with the enjoyment of religious culture, acting as positive measures of protection and for allowing the participation of religious minorities in decisions that affect these communities.

Accordingly, the creation by a minority group of their own school, based on their specific religious convictions, should be encouraged and supported. Such schools would naturally expect students to adhere to the school’s core principles and values.

It is understood that the indispensable incidents to freedom of religion inevitably include the right to freedom of association. Freedom of association plays a vital role in promoting democratic pluralism and personal fulfilment by supporting cultural diversity and advancing the common good.

Yet, as with any other organisation, including political parties and government bodies, the law must ensure that faith-based schools have the freedom to operate in a manner consistent with their core values and beliefs.

Indeed, if the exemptions were to be removed from the Sex Discrimination Act, religious schools would not have any compelling reason to exist.

Governments that support freedom of association for faith-based schools directly assist in the achievement of a more diverse and tolerant society.

As noted by Kathleen Brady (pdf), “autonomous religious groups and other voluntary associations … play an essential role as spaces for retreat for the losers in democratic political processes, and by doing so, they help to maintain stability of majoritarian political systems.”

The Bill represented another failed attempt by the Morrison government to allow religious organisations to maintain their identity and ethos while prohibiting discrimination of religious people in public life.

Epoch Times Photo
Australia’s Prime Minister Scott Morrison speaks to the media to announce sanctions on top Russian officials following the invasion of eastern Ukraine during a press conference in Sydney, Australia, on Feb. 23, 2022. (Steven Saphore/AFP via Getty Images)

As a result, in nearly four years in office as the prime minister, Morrison has managed to achieve absolutely nothing in terms of protecting religious freedom. Instead, its failure may give ammunition to those who want to diminish religious freedom by removing the present exemptions from religious schools.

As mentioned above, under the proposed legislation, religious organisations would be “exempted” from discrimination laws. However, writing for The Epoch Times, legal academic Rocco Loiacono criticises the government for approaching this matter from the perspective of discrimination rather than that of fundamental freedom.

As he points out, “any reform should not use the language of discrimination, but put Australia in line with its international human rights obligations to protect religious freedom, most notably in Article 18 of the International Covenant on Civil and Political Rights (ICCPR), according to which everyone has the right to freedom of thought, conscience, and religion.

We wholeheartedly agree. In fact, the prime minister’s government should take the opportunity to move the debate away from the misguided idea of “discrimination” to a broader and less divisive discussion about the restoration of fundamental freedoms.

The Australian government should protect not only religious freedom but also freedom of speech, freedom of conscience, freedom of association, and the right to peaceful assembly. This may involve the enactment of a federal “Restoration of Freedoms Act,” which restores all these fundamental freedoms and does not suggest that religious freedom is an inferior or secondary right of the citizen.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Augusto Zimmermann is professor and head of law at Sheridan Institute of Higher Education in Perth. He is also president of the Western Australian (WA) Legal Theory Association and served as a member of WA's law reform commission from 2012 to 2017. Zimmermann is an adjunct professor of the University of Notre Dame Australia, and has co-authored several books including COVID-19 Restrictions & Mandatory Vaccination—A Rule-of-Law Perspective (Connor Court).


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Gabriël A. Moens AM is an emeritus professor of law at the University of Queensland, and served as pro vice-chancellor and dean at Murdoch University. In 2003, Moens was awarded the Australian Centenary Medal by the prime minister for services to education. He has taught extensively across Australia, Asia, Europe, and the United States. Moens has recently published two novels “A Twisted Choice” (Boolarong Press, 2020) and “The Coincidence” (Connor Court Publishing, 2021).