Religious Discrimination In Australia

Discrimination Acts are numerous federal laws prohibiting different types of discrimination against individuals, such as; the Racial Discrimination Act, the Age Discrimination Act, the Disability Discrimination Act, the Sex Discrimination Act (which covers sex, gender identity, marital status, sexuality and family responsibilities) (Beck, 2018). The idea put forth is to add a Religious Discrimination Act into this collection of laws. The basic function of these Acts is to prohibit discrimination on the basis of a protected attribute in a variety of contexts such as employment and the delivery of goods and services etc. A Religious Discrimination Act following the same rudimentary model would prohibit scenarios such as refusing to hire an individual because they are Catholic and sacking an individual because they’re an Atheist from being legal. It would also prohibit a café refusing to sell coffee to a customer because they are Islamic as well as a bakery refusing to make a cake for a customer because they’re a Christian.

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[image: C:UsersAHS StudentDocumentsbpsRELIGIONchart.JPG]Quoted from the Religious Freedom Review report written by; P. Ruddock (chair), Professor R. Croucher AM, Dr A. Bennett AO SC, F. Brennan SJ AO and Dr N. Aroney, “Ruddock review of Religious Freedom has recommended the creation of a Religious Discrimination Act as part of its 20 recommendations.” (Ruddock, 2017). Not everyone agrees with this recommendation and have argued that there is “no pressing need” for a Religious Discrimination Act and although Australians already enjoy a high level of religious freedom, this doesn’t mean individuals are not discriminated against on the basis of their religion. All states excluding South Australia and New South Wales, currently prohibit discrimination on the basis of an individual’s religion and the Fair Work Act also prevents religious discrimination at the workplace. However, Renae Barker, lecturer in law at the University of Western Australia, compels the idea of the implementation of a Religious Discrimination Act, as she believes that it is “necessary to introduce other important protections for Australia’s religiously diverse population.” (Barker, 2018)

Religious Discrimination in Australia

Besides Catholicism and Christianity which make up for the majority of Australia’s population, Australia is home to numerous other religious minorities, including Islamist’s (2.6% of the population), Hindu’s (1.9%), and Sikhs (0.5%) (Barker, 2018). A Religious Discrimination Act would benefit these religious minorities as well as the number of Australians who identify as having no religion (30.1%) which is always increasing. John Latham, Chief of Justice, explained in the Jehovah’s Witnesses Case of 1943; “…it should not be forgotten that such a provision as s. 116 [of the Constitution] is not required for the protection of the religion of a majority. The religion of the majority of people can look after itself. Section 116 is required to protect the religion (or absence of religion) of minorities, and, in particular, of unpopular minorities.” (AustLII, 1943) The quote is repeatedly hitting on the indication that a Religious Discrimination Act would primarily increase the protection and security for the religious minorities, as John Latham said; “The religion of the majority of people can look after itself.” This goes back to the old saying of “safety in numbers” which is a possible potential mentality as long as a Religious Discrimination Act is not voted into Australia. Religious discrimination is not a newly regarded problem, this issue has been the centre of discussion prior to the present day, quoting Article 18 written by the Human Rights and Equal Opportunity Commission from 1998 stating; “Despite the legal protections that apply in different jurisdictions, many Australians suffer discrimination on the basis of religious belief or non-belief, including members of both mainstream and non-mainstream religions and those of no religious persuasion.” (HREOC, 1998) The commission has received numerous submissions detailing the areas in which individuals undergo the experience of religious discrimination. For example, “Pagan groups found it difficult to hire facilities to conduct events, while Muslim, Buddhist and Sikh communities reported having problems with planning authorities. Some people said they kept their religions a secret at work for fear of being fired or denied promotions.” (Barker, 2018) reinstating that religious discrimination is prominent within the Australian Society.

Political Stances and Conflicting Opinions on Introducing a Religious Discrimination Act into the Australian Society

Dan Tehan, the minister of education, called in a recent speech to discuss a federal Religious Discrimination Act and says that a federal Religious Discrimination Act should override state laws to ensure limits on religious freedom are “no more restrictive then required” (Beck, 2018). In other words, Tehan wants to use federal law to introduce nationwide religious “exemptions” from all anti-discrimination laws. Religious “exemptions” allow religious groups, business owners and organisations like schools to discriminate against other individuals on the basis of protected attributes such as sex, sexuality, marital status or disability if the discrimination has a religious motivation. It is religious exemptions that allow religious schools to expel homo-sexual students as well as letting go of teachers who are involved in divorce or have extramarital affairs (Beck, 2018). Dan Tehan’s speech is attempting to open up this discussion to public debate. Tim Wilson, a former human rights commissioner, supports the claim for a national ban on religious discrimination. However, he warns that a federal Religious Discrimination Act could be a “smokescreen for LGBTI discrimination”. Whilst James Paterson, a senator for the Liberal Party of Australia says, religious liberty “doesn’t allow you to do anything that is otherwise unlawful”. Yet Paterson tried and was unsuccessful last year at introducing a law that would wind back anti-discrimination protections for LGBTI individuals in the name of religious liberty. The Paterson bill would have allowed businesses to refuse service to same-sex couples, as long as the business owner had genuine religious objections to same-sex marriage.

James Paterson, told ABC Radio he was not aware of any cases of religious discrimination in Australia, but it was “a risk that we want to guard against in the future”. Such an Act he argued, would function “as a reassurance” (Macdonald, 2019). The federal Fair Work Act already prohibits discrimination on the ground of religious belief or activity in employment contexts, as do laws in all states except New South Wales and South Australia. All states other than NSW and SA also have legal prohibitions against refusing service to individuals on the ground of religion. The best argument in favour of a federal Religious Discrimination Act is the benefit of having nationally consistent rules. However, this debate isn’t about individuals being discriminated against on the basis of their religious beliefs believes James Paterson, as he believes ”that doesn’t really happen”. In his opinions the debate is really about two other things. The first is religious exemptions from discrimination laws. More generally, the debate is about the public status and position of religious groups. Paterson says we need a Religious Discrimination Act because “people of faith feel like they are being crowded out of the public square” whilst Tehan states, we need a Religious Discrimination Act because “the forces of political correctness continually marginalise and dismiss contributions to debate informed by a reasonable religious belief”. Paterson’s second is that individual’s beliefs are changing and no longer automatically defer to traditional religious positions. Fewer individuals live their lives in accordance with these religious teachings. Some religious groups are struggling to adjust to and feel comfortable in their new, less influential place in the changed world. These two key points Paterson believes build a weak case behind believing that the intention of implementing a Religious Discrimination Act is not about preventing individuals from being discriminated against on the basis of their religious beliefs.

The Exceptions of the Religious Discrimination Bill

A Religious Discrimination Bill was put forth on Thursday the 29th of August, at the Great Synagogue in Sydney. Christian Porter, the Attorney-General for Australia, said on Thursday that the Religious Discrimination Bill provides “an extra protection to people subject to an employer role” (Karp, 2019). However, the bill fails to define protected religious “activities” within itself, the advisory notes confirm the bill has a broad meaning including religious observance, dress and expression of religious belief, especially where “adherents of that religious group are required, or encouraged, to evangelise” (Karp, 2019). In other words, the bill hits on prohibiting both direct discrimination; treating another individual less favourably based on religion, and indirect discrimination; where an apparently neutral condition has the effect of disadvantaging people based on religion, yet fails to define the exact protected religious “activity” within. The Religious Discrimination Bill also creates a religious freedom commissioner position, who will promote religious freedom.

The big exception to the Religious Discrimination Bill, is that religious individuals can discriminate on the grounds of religion where the individuals conduct is “in good faith, [and]may reasonably be regarded as being in accordance with the doctrines, tenets, beliefs or teachings of their religion” (Karp, 2019). However, the bill does not provide religious individuals with a broader defence or exemption from other commonwealth anti-discrimination legislation, such as is done in the Sex Discrimination Act. Due to this, religious schools can continue to refuse to hire an individual who does not adhere to that religion, although the bill doesn’t license this behaviour it doesn’t not license it either.

The Australian Law Reform Commission is currently inquiring on the subject issue of when religion can be used as a defence to other discrimination laws. The expression of religious belief that advises, promotes, encourages or urges conduct that would constitute a serious offence, is also not protected. As well as there is an exception for discrimination on the basis that a person is unable to carry out the inherent requirements of the work because of their religious belief or activity. There are also general exceptions for: “charities conferring benefits based on religion; conduct in direct compliance with commonwealth, state or territory legislation; law enforcement, national security or intelligence functions; and compliance with court and tribunal orders and determinations” (Karp, 2019).

The Human Rights Legislation Amendment (Freedom of Religion) Bill 2019 amends other federal discrimination laws to add new objectives: “the invisibility and university of human rights” and “the principle that every person is free and equal in dignity and rights” (Karp, 2019). This collection bill which the Coalition recommended would provide “equal status” to freedom of religion alongside the right to non-discrimination. This bill also indorses the Ruddock Review of Religious Freedom’s recommendations:

· Amending the Marriage Act to provide protections for religious educational institutions by clarifying that the religious educational institution may lawfully refuse to provide goods, services or facilities for the solemnisation of a marriage.

· Amending the Charities Act 2013 to clarify that the advocacy of traditional views of marriage by charitable institutions will not disqualify the charitable institution from being a charity. (Ruddock, 2017)

Conclusion

In conclusion, the intention of implementing a Religious Discrimination Act is beneficial in protecting individuals against “a risk that we want to guard against in the future” quoted by James Paterson (Macdonald, 2018), however, the execution and write up of the bill misses on key points such as; failing to define what religious “activities” are protected. A Religious Discrimination Act would be helpful and advantageous to the Australian society, required that the bill leaves nothing out or unexplained spawning grey areas within the Religious Discrimination Act. Religious discrimination towards individuals is present in Australia’s society, and not having measures in place to protect individuals from these unlawful acts of behaviour is simply not good enough, especially for Australia’s societal standards. A Religious Discrimination Act should be implemented into Australia’s collection of Acts under the circumstances that the Act covers and states everything necessary, beginning with defining what religious “activities” are protected under the Religious Discrimination Act.

References:

  1. Beck, L. 2018. Why Australia does not need a Religious Discrimination Act. [ONLINE] Retrieved from: https://theconversation.com/why-australia-does-not-need-a-religious-discrimination-act-99666 [Accessed 26 August 2019]
  2. Beck, L. 2018. Why Australia does not need a Religious Discrimination Act. [ONLINE] Retrieved from: https://www.monash.edu/law/news-and-events/news/articles/past/why-australia-does-not-need-a-religious-discrimination-act [Accessed 26 August 2019]
  3. Phillip Ruddock (chair), Professor R. Croucher AM, Dr A. Bennett AO SC, F. Brennan SJ AO and Dr N. Aroney, Ruddock P. & Croucher R. & Bennet A. & Brennan F. & Aroney N. 2017. Religious Freedom Review. [ONLINE] Retrieved from: https://www.pmc.gov.au/domestic-policy/religious-freedom-review [Accessed 27 August 2019]
  4. (HREOC) Human Rights and Equal Opportunity Commission. 1998. ARTICLE 18; Freedom of religion and belief. [ONLINE/PDF] Retrieved from: https://www.humanrights.gov.au/sites/default/files/content/pdf/human_rights/religion/article_18_religious_freedom.pdf [Accessed 28 August 2019]
  5. Barker, R. 2018. Why Australia needs a Religious Discrimination Act. [ONLINE] Retrieved from: http://theconversation.com/why-australia-needs-a-religious-discrimination-act-105132 [Accessed 26 August 2019]
  6. Macdonald, H. 2018. Call for ‘religious Discrimination act’ fuels religious freedoms debate. [ONLINE] Retrieved from: https://www.abc.net.au/radionational/programs/breakfast/religious-discrimination-act-fuel-religious-freedoms-debate/9957084 [Accessed 28 August 2019]
  7. Karp, P. 2019. What is the religious discrimination bill and what will it do? [ONLINE] Retrieved from: https://www.theguardian.com/australia-news/2019/aug/29/what-is-the-religious-discrimination-bill-and-what-will-it-do [Accessed 29 August 2019]
  8. (AustLII) Australian Legal Information Institute. 1943. High Court of Australia; Adelaide Company of Jehovah’s Witnesses Incorporated (Plaintiff) and The Commonwealth of Australia (Defendant) Transcript. [ONLINE/PDF] Retrieved from: http://www.austlii.edu.au/au/cases/cth/HCA/1943/12.pdf [Accessed 2 August 2019]
07 July 2022

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