Throughout the course of the inquiry numerous stakeholders expressed their support for protection from discrimination on the basis of religious belief and activity.
A range of submitters and witnesses supported the bills, with evidence to the committee detailing the anticipated positive impact of the bills on the lived experience of those holding religious belief, while also identifying specific provisions of the bills which, if enacted, would provide effective protection from religious discrimination. Other submitters and witnesses supported the principle of protecting religious belief and practice from discrimination but voiced concerns about the bills as a mechanism to achieve that protection.
This chapter outlines evidence received in support of the bills, both in general terms and with reference to specific provisions of the bills.
Commonwealth anti-discrimination law
The Attorney-General’s Department (AGD) detailed existing Commonwealth anti-discrimination law, under which it is unlawful to discriminate on the basis on several protected attributes including age, disability, sex, race, intersex status, gender identity and sexual orientation ‘in certain areas of public life, including education and employment’. Current anti-discrimination laws include the:
Age Discrimination Act 2004;
Disability Discrimination Act 1992;
Racial Discrimination Act 1975; and
Sex Discrimination Act 1984.
State and territory anti-discrimination law
Anti-discrimination law exists in all Australian jurisdictions in order to implement rights to non-discrimination and equality, and to prohibit adverse action being taken against individuals on the basis of particular attributes. The AGD explained that the list of protected attributes varies between jurisdictions, but in New South Wales and South Australia discrimination on the grounds of religious belief or activity is not currently unlawful. The AGD noted that:
…the Religious Discrimination Bill will provide individuals with an avenue for recourse for discrimination based on religious belief or activity that is not otherwise available in those jurisdictions.
Support for protection from religious discrimination
The legislative package considered by the committee would allow persons and religious bodies to generally act in accordance with their faith, and for this conduct not to amount to discrimination—provided the conduct has been engaged in in good faith and a person of the same religion could reasonably consider the conduct to be in accordance with the doctrines, tenets, beliefs or teachings of that religion.
The following sections discuss support for this principle, in the context of the case for legislative reform and the need for the bills in particular.
The case for reform
It was put to the committee that legislative reform is required due to a marked increase in religious discrimination in Australia.
For example, the Australian Catholic Bishops Conference (ACBC) drew attention to studies and reports commissioned in the last decade, ‘that reveal that religious discrimination is a problem in Australia, especially for minority faiths’. The ACBC said:
These studies reveal that up to one in four Australian children have been on the receiving end of discrimination on the basis of their religion.
Christian Schools Australia and Adventist Schools Australia (CSA & ASA) pointed to 2021 research, which indicated that 29 per cent of Australians have experienced religious discrimination, equating to half of the 60 per cent of Australians who identify as people of faith.
The Executive Council of Australian Jewry (ECAJ) also observed that members of the Australian Jewish community were facing unofficial antisemitism, which was becoming increasingly serious and with ‘worrying signs that it is creeping into mainstream institutions and society’. By way of example, ECAJ explained that:
There were 447 recorded antisemitic incidents in Australia during the year ending 30 September 2021, according to the annual Report on Antisemitism in Australia, a report which has been published by our organisation each year for more than 30 years. The incidents were logged by the ECAJ, Jewish community roof bodies in each State, and other Jewish community groups and included physical assaults, abuse and harassment, vandalism, graffiti, hate and threats communicated directly by email, letters, telephone calls, posters, stickers and leaflets. In the previous 12‑month period, these same bodies logged a total of 331 incidents. Accordingly, there was an increase of 35% in the overall number of reported antisemitic incidents compared to the previous year.
The Presbyterian Church of Victoria (PCV) explained that the need to strengthen religious freedom laws has arisen due to an increase in discriminatory amendments in state laws, which ‘remove these ordinary rights from religious people and groups’.
Similarly, the Institute for Civil Society argued that:
Discrimination against people of faith is real and growing in Australia but there are no legal protections against it in federal, NSW or South Australian anti-discrimination law. This is a gap in antidiscrimination law we would not accept for any other minority.
Sex, sexual orientation, gender identity, age, race, and disability all have their own discrimination acts in Commonwealth Law. Religion does not.
The Australian Muslim Advocacy Network (AMAN) requested that the bills provide a ‘shield against vilification for people who are targeted because of their religious beliefs or activity’. The AMAN provided examples of serious anti-Muslim sentiment being publicly expressed, and drew attention to the Australian Human Rights Commission (AHRC) findings of 2021, in its ‘Sharing the stories of Australian Muslims’ report, that:
79% of Australian Muslims surveyed were afraid for their community following the Christchurch attack; almost 80% has experienced unfavourable treatment on the basis of religion, race and ethnicity; and 23% felt unable to speak up when they or someone they knew experienced unfavourable treatment.
Professor Nicholas Aroney, Professor of Constitutional Law at the University of Queensland and member of the Expert Panel on Religious Freedom that conducted the Religious Freedom Review, submitted that:
my engagement with issues of religious freedom and religious discrimination as a member of the Expert Panel has convinced me that enactment of the Religious Discrimination Bill 2021 is a pressing necessity.
Professor Aroney pointed to the research of Professor Jonathan Fox of Bar-Ilan University in Tel Aviv, which he argued:
demonstrates that secularised Western democracies such as France, Germany, and Switzerland engage in more government-based religious discrimination than many countries of Asia, Africa, and Latin America. Professor Fox singles out Australia as a clear example of the recent rise of socially-based discrimination, especially against Jews and Muslims. Jews, in particular, have been the victims of literally hundreds of instances of vandalism, harassment and threats of violence reported each year.
The need for the bills
It was observed by many in support of the legislative package that while there is discrimination legislation in place to protect other personal attributes, such as gender, race, sexuality and disability, no such law exists for the legitimate expression of religion and associated beliefs and practices. Many also pointed to the recommendations of the Religious Freedom Review of 2018, as making the case for legislative change.
The committee received strong support for the bills from religious bodies of various denominations, from people of faith, and other stakeholders, including support for the bills as an overall package, and for specific clauses (which are discussed later in this chapter).
Freedom of religious expression
The PM Glynn Institute at the Australian Catholic University spoke to the need for the freedom of expression of religion, and the role of religious belief in people’s everyday lives, saying:
…religious belief is a considered and deeply-held conviction which powerfully informs the way religious believers live, the actions they take, and the shape of communities. It is not just another form of subjective or personal opinion significant only for the individual who holds it. Religious freedom arises from the universal human search for the truth about our nature, the world we live in, and how we should live.
Similarly, the Australian Association of Christian Schools (AACS) asserted that the protection and promotion of religious freedom is ‘essential in an open and free society which values human rights’. The AACS continued:
Respect for religious freedom is fundamental to a democratic and pluralistic society and is intrinsically linked to several other fundamental liberties including freedom of speech, association, and conscience, making the freedom of religious expression a barometer for the health of the wider civil society.
The PCV submitted that the Christian faith—as practiced in prayers, thoughts, words and deeds—is practiced both in public and in private, and argued that for ‘Australia to succeed and prosper as a truly multicultural society, freedom to hold and practice religion must be protected in law’.
Similarly, Australian Christian Churches (ACC) argued that while the focus of the bills is on discrimination, the proposed legislation would also in a ‘very modest and limited way’ protect freedoms to make statements of belief and would reduce the harassment and intimidation of people of religious faith ‘who express, in a moderate and reasonable way, statements of belief long held by all the world’s great religions’.
The Presbyterian Church of Australia (PCA) spoke to the role of the bills in supporting individual expressions of spirituality in the public sphere:
Religion cannot be constrained to private expressions of belief; all religious conviction leads to some form of public expression…Christianity is not simply a private matter that can be left at the door of the home, or of the church, but a view of the world that shapes public life. Every Christian — whether a cobbler, baker, or politician—should see their life and work informed by their faith. The ability to exercise religious convictions in the broad scope of public life is, then, necessary for religious freedom.
The National Catholic Education Commission (NCEC) said that the legislative package ‘must be enacted with bipartisan support to ensure freedom of religion is supported universally and equally in this nation’. The NCEC observed:
The right to freedom of association has been an enshrined part of Australian industrial relations and fair work policy and practice over many decades. It protects the rights of all people to voluntarily associate on common values and goals – it’s these protections that underpin trade unionism. Religious rights need the same protections.
Options for legal recourse
The Australian Christian Lobby (ACL) considered the bills necessary, as they address a ‘longstanding gap in Federal Discrimination law and provide much-needed protections to all Australians of all or no religious beliefs within public life’.
The Australian National Imams Council (ANIC) expressed support for the bills, and reflected that currently, if Australian Muslims are discriminated against because of their religious identity, there was ‘little to no legal recourse’. ANIC considered this a ‘fundamental deficiency in the federal discrimination legislative regime’. ANIC argued, therefore, that the new legislation would offer a ‘critical opportunity to address an urgent and pressing concern held by Australian Muslims and persons of other faiths’ and supported the bills’ provisions which allow for civil (rather than criminal) remedies for religious communities at risk of discrimination.
The Australia/Israel Jewish Affairs Council (AIJAC) stated that while the Australian Jewish community is small in comparison to a number of other faith communities, it has specific needs in terms of education, aged health and disability care, as well religious and cultural needs. AIJAC explained that the community’s specific needs were, on the whole, currently met by community‑based institutions and these tasks could not be easily substituted by services offered by secular (or other faith-based) bodies.
Dr Alex Deagon also supported the bills, given that religious belief and activity is the ‘only attribute that does not attract comprehensive, separate protection under Commonwealth discrimination legislation’. Further, Dr Deagon noted that the protections offered by the bills is ‘necessary to address increasing hostility to religion’ and to fulfil Australia’s international obligations.
Dr Denis Dragovic took issue with the broad arguments being made against the bills and suggested that the debate about the legislation had been ‘poorly served by specious statements, hypothetical examples not grounded in reality, and a misunderstanding of religion’. Dr Dragovic argued that legislated discrimination in favour of say, race or sex, was in an effort to help such groups thrive, but to:
…selectively exclude religious believers despite international human rights law explicitly providing for it, is itself an explicitly discriminatory act against believers.
Most sections of this Bill seek to prevent discrimination bar a few that support a religious body to establish a religious community so that they can thrive. This should not be controversial and should be treated no differently to the purposes of similar sections in other antidiscrimination legislation.
The fear of many who have voiced concern over this bill, that somehow this Bill will unleash a torrent of disrespectful conversations is not only plainly wrong, as it hasn’t to date, but is counter to what history has taught us about how to best manage tolerance in a liberal democracy.
A similar point was raised by the Institute for Civil Society, which said it was important to have a clear understanding of what the bills do, because:
…a few activists, whose views have been given considerable attention in parts of the mainstream media, have created a misleading impression that the legislation has much greater impact than it does. It is, in reality, a Bill which, if enacted, will lead only to modest advances in terms of prohibition of discrimination. These improvements are nonetheless welcome.
There was considerable focus during the inquiry on the provisions of the Religious Discrimination Bill 2021 (religious discrimination bill) allowing religious educational institutions to preference, in good faith, the employment of persons who hold or engage in a particular religious belief or activity. Religious education institutions and other stakeholders offered strong support for these provisions.
The AGD explained that the bills seek to ensure that religious schools can continue to make employment choices that ‘maintain the religious ethos of the school’, enabling parents of faith to ‘confidently make choices for the education of their children’.
The AACS argued that the freedom for Christian schools to employ Christian staff, and people in step with a school community’s religious beliefs and values, ‘goes to the very heart of why our schools exist’. The AACS continued that:
It is essential to the school’s operation that it can make a deliberate determination that all staff members are willing to adhere to the beliefs and values of the Christian faith, both as a matter of personal belief and as evidenced by their conduct.
CSA & ASA also spoke to the role of personal faith for teachers and other staff in Christian schools, and opined that faith communities, including Christian schools, ‘must be able to take action that separates individuals from that community where their actions undermine the school, or reflect a repudiation of what the school believes in and stands for’. Mr Mark Spencer, Director of Public Policy at the CSA, explained that the need for staff of the same religious beliefs extended beyond just the teaching of religious subjects. He stated:
There's the old adage about it takes a whole village to raise a child. We believe it takes a whole school to educate a child, and that includes all staff. It's not just the transmission of academic knowledge and subject content. As any teacher or educator will tell you, it's about the relationships. It's about the informal content of the classroom—so dynamics within the classroom—the culture of the school and the ethos of the school. They all go to transmitting and forming that holistic young person…
Hillside Christian College also rebutted the argument that non-Christians could teach those subjects and be involved in a school community without being of faith themselves. The College instead observed that:
Christian schools require a cohesive team that is able to deliver the strategic objectives of the organisation. However, in meeting religious objects and goals, it is not just a matter of Christian subjects being taught, it is the cultural environment that is vital to the learning environment. Learning also does not just consist of the classroom or lie solely with the teachers…For a Christian school, with cultural focus on a Christian environment and associated support system, the vital importance of every employee being aligned with the educational and religious objects and values of the organisation is paramount. The Christian life is not compartmentalised rather it is holistic.
The ACBC explained that ‘Catholic schools do not expel students or sack staff simply on the grounds of sexual orientation, gender identity or any other protected status’. The ACBC took issue with such assertions, saying that they:
…have gravely misrepresented and undermined the good work of Catholic schools and unnecessarily caused anxiety in the community. Where there is a discipline issue or a disagreement, principals or other senior members of staff will work to try to resolve the issue pastorally.
The NCEC argued that ‘parents and families of students and staff, who share the same religious beliefs, should have the right to gather and associate for the purposes of education, formation and worship in a sympathetic and supportive environment’. The NCEC concluded that, for Catholic schools, it is important to retain a ‘critical mass’ of Catholic students and staff in its schools—‘even as we welcome those from other religious backgrounds or none’—and this meant ‘preferencing the enrolment or employment of students or staff who are Catholic, or who are willing to support and share in the ethos and mission of the school’.
The NCEC offered several reasons as to why it supported the bills, stating that Catholic schools were not seeking to discriminate on the basis of an individual’s personal attributes, such as race or gender identity, and that the bills were not seeking to do this. The NCEC further remarked that the bills would not:
…give schools the right to discriminate against people based on their personal attributes, and Catholic schools are not seeking to do this.
The proposed legislation simply enables Catholic schools to preference the employment or enrolment of people of the Catholic faith, and those willing to support the ethos and mission of their schools. This is reasonable and fair in a free, pluralist society.
At all times, Catholic schools seek to engage on any issue that might arise regarding staff or the enrolment of students pastorally, with respect and care in recognising the dignity of each individual as a fundamental principle.
There is no solid evidence to show that the proposed legislation will lead to direct or indirect discrimination of people based on their personal attributes (e.g. sexual orientation).
Catholic Education Tasmania posited that the bills defend ‘the right of Catholic schools to reject all and any ideologies that oppose Catholic belief and practice’. Catholic Education Tasmania advised that it asserts the right:
…to refuse to teach non-Catholic ideological, political, social, or sexual beliefs or practices, or to implement them in any way (or to allow or support conduct that expresses such ideologies) in the school’s day-to-day dealings with all staff, parents, and students.
This right is intrinsic to the mission, function and purpose of Catholic education in Tasmania.
Dr Deagon suggested that allowing religious schools to ‘preference staff with belief and behaviour consistent with the ethos of the school’ was a ‘fundamental human right’. Similarly, Dr Renae Barker argued that religious schools must be able to make decisions about their operations ‘in ways that sets them apart from secular schools’, in order to ‘maintain their unique character’.
Dr Barker highlighted that the religious discrimination bill would specifically override state and territory law to:
…permit religious bodies that are an educational institution to ‘gives preference, in good faith, to persons who hold or engage in a particular religious belief or activity.’ I welcome to use of positive language and the concept of giving preference to co-religionists rather than discriminating against those of other faiths.
The Australian Christian Higher Education Alliance (ACHEA) commented on the role of religion in higher education. Mr Nick Jensen, Political Liaison with the ACHEA, said with regard to higher education:
…there are four fundamental requirements that we need in order to exist as faith based higher education providers: the freedom to teach our faith and doctrine; the freedom to employ all staff according to our religious culture and ethos; the freedom to require staff and students to uphold that culture and ethos; and the freedom to resolve ethical issues with reference to our doctrines and belief. Religious discrimination impacts our institutions directly. This legislation goes a long way to providing the necessary protections. ACHEA supports the bill…
Consequential amendments bill
Those in support of the religious discrimination bill were also in favour of the consequential amendments bill.
In particular, there was support for Schedule 2 of the consequential amendments bill, which, in relation to clause 11 of the religious discrimination bill and the new prohibition on discrimination on the basis of religious belief or activity, would define a prescribed state or territory law as including Victoria’s Equal Opportunity Act 2010 (Victorian Equal Opportunity Act). In other words, the bills, if passed, would ‘override’ the provisions of the Victorian Equal Opportunity Act, which was recently amended with regard to the application of religious exemptions in that state.
The NCEC spoke directly to the issue of the Victorian Equal Opportunity Act, which in its view were a ‘serious over-reach by the Victorian Government into the rightful freedoms of faith-based organisations in that state’. The NCEC said that this approach could result in:
…a ‘tiered’ system of religious rights across Australia narrowing the freedoms for faith-based schools in some jurisdictions.
The lack of harmonisation also opens the door to unnecessary lawfare against faith-based schools resulting in costly and lengthy litigation requiring Courts and Commissions to adjudicate increasing numbers of complaints.
The NCEC concluded that there is a push for Australia to ‘adopt a monoculture of thought under the banner of diversity’ which resulted in the Victorian Government’s ‘over‑reach’. NCEC expressed concern that the Victoria legislation could set a precedent for other jurisdictions, and in this context ‘strongly welcomes and supports’ the provision of the bills which address these concerns.
A similar point was made by the ACBC, which also voiced concerns about the ‘inherent requirement’ provisions of the Victorian laws. The ACBC argued that:
Across all sectors in Catholic organisational contexts, the introduction of an “inherent requirement” test is a serious intrusion into the expression of faith and an unnecessary instrument of power. It may lead to vexatious claims being adjudicated by a commissioner or the courts, neither of which have the competency to define religious matters for believers … The Victorian Government has been unable to identify a single problem in Catholic schools with which this legislation is meant to address.
Lutheran Education Australia argued that that Victorian legislation does not:
…fully consider the totality of the role of a teacher and student learning outcomes beyond content knowledge, the importance of holistic education of the individual child supported by all staff, and the role of the entire school community in establishing and upholding an ethos. This governmental and legislative overreach in Victoria places at risk the ability of Lutheran schools to function as authentically Lutheran schools consistently living out their ethos.
The AACS welcomed the Schedule 2 provisions, on the basis they would provide assurances to schools that they could:
…continue to employ staff who share the beliefs of the school across all positions, not just certain positions where religious belief or activity is judged to be an ‘inherent requirement’ of the job through a narrow set of criteria.
Specific provisions of the bills were highlighted as being necessary for ensuring protection from religious discrimination. Some of the key provisions discussed in evidence are detailed below.
Some submitters explained why the provisions of the bill need to be different to the provisions of existing anti-discrimination law. For example, the Anglican Church Diocese of Sydney said that a ‘plain vanilla’ bills package which replicated the provisions of existing Commonwealth law would ‘not allow religious institutions the freedom to maintain their religious ethos’. Right Reverend Dr Michael Stead, Bishop of South Sydney continued:
The bill addresses a longstanding gap in federal antidiscrimination law. This bill in particular does what a plain, vanilla bill does not do, which is to strike the right balance between the twin stated aims of the bill: on the one hand, to render it unlawful to discriminate on the basis of religious belief or activity whilst, on the other hand, at the same time, affording sufficient legislative protection for religious institutions to allow them the freedom to maintain their religious ethos.
Dr Deagon further explained why a specific religious discrimination legislative package was needed, saying that the ‘reason is that religion is unique’:
It's unique, firstly, because it entails external expression. Part of having a religion for many people is being able to externally express it through worship, prayer and publicly interacting with people in a public context and not hiding who you are as a religious person. It's also unique in the sense that being religious or having a religion or practising a religion entails practising or manifesting in community with others, and our international law recognises this through, for example, article 18 of the ICCPR. So part of being a religious organisation with a religious ethos means that some organisations may wish to develop that ethos through having staff who consistently adhere to the beliefs and the conduct standards of that organisation. Religious organisations with a particular religious ethos are obviously going to have a different view about what that ethos means compared to different religions or to secular organisations.
The Institute for Civil Society argued that the bills do ‘not give any new rights to religious bodies at all’ (excluding some rights in relation to religious educational institutions). The Institute continued that the proposed legislation:
… simply gives individual people rights to complain about discrimination. It doesn’t even give religious organisations a right to complain about discrimination (although there is a mechanism by which an individual might be able to complain on behalf of an affected group of people). What it does provide to religious bodies, necessarily, is a defence to unwarranted discrimination claims made under the legislation. Any law on religious discrimination has to define the scope and limits of the right to complain about being discriminated against. There have to be limits on that right, as with any other discrimination law.
Statements of belief
A ‘statement of belief’ is defined by the religious discrimination bill as a statement of a belief that a person genuinely considers to be in accordance with the doctrines, tenets, beliefs or teachings of that religion (including atheist and agnostic beliefs).
Clause 12 of the religious discrimination bill would provide that a statement of belief does not constitute discrimination, if it is not malicious, and if a reasonable person would not consider the statement to threaten, intimidate, harass or vilify a person or group.
The majority of faith communities and individuals of faith offered strong support for the statement of belief provisions.
Associate Professor Mark Fowler was supportive of ‘religious beliefs’ being considered in relation to a person’s genuine religious convictions, ‘thus avoiding judges having to act as theologians to interpret religious doctrines to determine if a belief “conforms” to an identified religious doctrine’. Associate Professor Fowler continued:
This is consistent with the settled position developed by the highest courts in Australia, England, Canada and the United States as a means to prevent judicial determination of doctrinal disputes…
The AIJAC argued that clause 12 would offer an appropriate balance between protecting the rights of individuals to express their faith freely or organisations to operate in accordance with the views of their membership, and the right of all individuals to live free from vilification and harassment. The AIJAC emphasised that this clause would also place responsibilities on people of faith and faith communities, saying:
…the other side of the coin is a responsibility for people of faith to avoid making statements that may disparage or disrespect those who don’t share those views. This is a moral obligation which should not require further legislation. Instead, strong leadership is required from community and political leaders alike to call out any public statements that do not show respect to other Australians.
The ECAJ was also supportive of clause 12 as currently drafted and considered it likely that the provision would only apply to a very narrow range of statements. ECAJ posited that clause 12 would:
…have an extremely limited application in terms of permitting statements that are at present prohibited by other laws. Perhaps its main effect will be to discourage the making of complaints about statements of religious belief which would in any event have only remote prospects of succeeding under the current law.
The express exclusion from protection of any statement that is malicious, or which a reasonable person would consider would threaten, intimidate, harass or vilify a person or group should, one hopes, negative any suggestion that the government is encouraging or sanctioning statements that disparage or are disrespectful of people on the basis of their faith, sexual orientation or identity, or any other personal attribute, even if the statements are allowed under the Bill and the current law.
Similarly, the PCA argued that ‘very few good faith statements of religious faith could be fairly construed as discriminatory’.
The AACS endorsed the definition of ‘statement of belief’, suggesting that it was a significant improvement on previous iterations of the bills, and would help to avoid ‘judges having to interpret questions of theology or religious doctrines to determine if statements of belief conform to religious doctrine, as consistent with common law precedents’.
Dr Deagon considered that the statement of belief provisions are suitably supported by the other provisions of the bills, and therefore unlikely to lead to ‘hurtful personal attacks on the basis of religion’. Dr Deagon continued:
…statements of belief must overcome significant hurdles to attract protection from the Bill: they must be made in good faith, and not be malicious, and not be reasonably considered to threaten, harass, intimidate or vilify, and must not urge the commission of a criminal offence. This combination of limitations means the kinds of hypotheticals posed by the detractors, if they exist, would not meet the standard to be protected. The protection of statements of belief is appropriately designed to promote the robust discourse which is the hallmark of a democratic and pluralist society.
The PCV supported the statement of belief provisions but was concerned about ‘vexatious litigation’. It suggested that it was not the place of the courts to determine the content of religious belief; rather, this could only be determined by a person who genuinely holds those beliefs, and decisions ‘about whether a statement of belief represents a religion must always be the responsibility of religious institutions, not government bodies’.
The AGD clarified that these provisions re intended to ensure that a person should not be subjected to a discrimination complaint under any Commonwealth, state or territory anti-discrimination law, ‘simply for expressing their genuine religious beliefs in good faith’. The AGD stated that discrimination law ‘generally requires some form of actual or proposed conduct to occur’, and was of the view that:
…a statement, in and of itself, is unlikely to constitute the basis for a claim of discrimination without some other behaviour that would be either less favourable treatment (for direct discrimination) or a requirement to comply with a condition, requirement or practice that would disadvantage the person and was not reasonable (for indirect discrimination).
The AGD considered that a court is likely to apply a ‘broad interpretation of the good faith requirement encompassing both subjective considerations…as well as objective considerations’. The department suggested that a court would need to do more than ‘merely accept a person’s claim that their statement satisfies the requirements of the definition’, and the courts would need to inquire into whether a person’s beliefs are sincerely held.
State and territory anti-discrimination law
Some submitters expressed support for the element of clause 12 which provides that a statement of belief does not constitute discrimination for the purposes of other state and federal anti‑discrimination legislation.
For example, the PCV said that across Australia there are now laws in place which:
…punish people for communicating their religious beliefs in public (Tasmania), for forming associations and organisations to serve religious ends (Victoria), and even for teaching and praying for our own children, in our own churches and homes (Victoria). These laws are both immoral and unjust.
Tasmanian anti-discrimination law
In particular, clause 12 of the religious discrimination bill was keenly endorsed by those in support of the bill, as it would provide that a statement of belief does not constitute discrimination for the purposes of section 17(1) of Tasmania’s Anti
‑Discrimination Act 1998 (Tasmanian Anti-Discrimination Act), which takes into consideration ‘offensive’ conduct against religious belief or activity, among other things.
Dr Deagon argued that the proposed overriding of the Tasmanian Anti-Discrimination Act is a positive move as that Act is an ‘outlier in Australian anti-discrimination law and stifles freedom of speech and the expression of religion in public life’.
Similarly, Professor Nicholas Aroney remarked that the Tasmanian Anti-Discrimination Act is ‘the broadest provision of its kinds in Australia’, that goes ‘considerably further in constraining freedom of expression’ than contemplated by the ICCPR. Professor Aroney therefore considered it appropriate for the Commonwealth to intervene to ensure there are no unjustified, legislated restrictions on the freedom of expression.
The Anglican Church Diocese of Sydney echoed these views, arguing that subsection 17(1) of the Tasmanian Anti-Discrimination Act:
…is an inappropriate restriction on the right protected by Article 18 of the ICCPR to manifest one’s religion in public, and the right to freedom of expression protected by Article 19. The Commonwealth override of this law is necessary to ensure that Australia upholds its obligations as a signatory to the ICCPR.
The Wilberforce Foundation suggested, given moderate statements of belief do not contravene section 17 of the Tasmanian Anti-Discrimination Act, the bills before the committee ameliorate ‘some of the burden that the Tasmanian Act imposes on religious expression’.
The AGD explained that Tasmania is the only jurisdiction where a provision exists to capture conduct in relation to protected attributes that a person may find ‘offensive’. The AGD continued that where a claim of discrimination or a claim for breach of subsection 17(1) of the Tasmanian Anti-Discrimination Act is made, a respondent could raise clause 12 of the religious discrimination bill as a defence (where the conditions for clause 12 are met).
Clause 11 of the religious discrimination bill stipulates that a religious educational institution does not contravene a state or territory law, if in employment matters it gives preference, in good faith, to persons who hold or engage in a particular religious belief or activity—if doing so is in accordance with a publicly available written policy that outlines the religious body’s position in relation to particular religious beliefs or activities.
The AGD explained that the purpose of clause 11 is to preserve existing state and territory exemptions. The Commonwealth government considered it would only be necessary to prescribe a state or territory law if:
…a jurisdiction enacted a law that removed or limited an existing religious exception that permits religious educational institutions to preference in employment. The criteria by which the power to prescribe a state or territory law would be exercised is clearly laid out in clause 11(3) of the Bill.
The department outlined the benefits of requiring a publicly available statement of beliefs:
The requirement to have a written, publicly available policy increases certainty and transparency and ensures that prospective or existing employees as well as the general public would be able to ascertain and understand the position of a religious body in relation to the particular matter dealt with in the relevant provision of the Bill (ie employment, partnerships, or accommodation facilities).
Any guidance issued by regulations would be intended to assist religious bodies to achieve this goal. Future guidance could also respond to particular issues identified by religious bodies in developing their publicly available policies. Noting that clause 11 operates to override certain State and Territory laws, the Government considered it important to have the requirements for publicly available policies set out on the face of the Bill.
Those in support of the bills were particularly reassured by these provisions.
The AACS, for example, said it was ‘very pleased’ to see clause 11 included, believing there ‘is no greater threat to an educational institution’s religious freedom right than the removal or narrowing of exceptions in state or territory based anti-discrimination laws in relation to the employment of staff’; doing so is a ‘direct assault on their freedom of religious belief, expression and association’. Mr Dylan Turner of the AACS reiterated this position:
Clause 11 is important because it overrides certain laws at the state and territory level that hinder the ability of our schools to operate under this proven and popular Christian school model.
The ACC suggested that in any jurisdiction with a prohibition on religious discrimination, there is a need for ‘provisions that address the employment rights of faith-based organisations’. The ACC continued that faith-based organisations should have the right to select staff who:
…are not only adherents of that faith but support the doctrines and practices of the religious faith to which the organisation is committed. This is no different from any other organisation that has a mission or purpose. For example, an environmental group can choose not to select as a member of staff someone who does not share the objectives or priorities of the organisation or who might actively seek to undermine it.
The Anglican Church Diocese of Sydney suggested that the override of state and territory legislation necessary when considered against the obligations under the ICCPR. The Church said that ‘under the ICCPR, the Commonwealth is held to account for the actions of its States and Territories for failing to protect human rights’. This then:
…provides a rationale for the limited override of inconsistent State or Territory legislation in clause 11, where that legislation undermines the rights protected in Article 18 [of the ICCPR]. By enacting clause 11, the Commonwealth Government is exercising its duty as a signatory to the ICCPR to establish a national minimum standard in relation to the freedom of religious educational institutions to maintain their religious ethos through employment.
The PM Glynn Institute at the Australian Catholic University spoke more broadly to the protection the bills would provide for religious bodies to act in accordance with their faith, and noted that:
…it is helpful that these provisions clarify that acting in accordance with religious beliefs is not in and of itself a form of discrimination. The assumption that religion is inherently discriminatory (and therefore unjust) undermines a proper respect and appreciation for the importance of religious freedom as a fundamental human right.
The Institute for Civil Society argued that the override provisions should go further, and be amended to ensure that:
…all religious bodies, not just educational institutions, are free to choose to preference in employment people with the same religious beliefs as the body. Further, the override in clause 11 should not depend on the making of regulations naming specific State and Territory anti-discrimination laws. Such regulations can be made and unmade and changed by different Ministers and governments. If the Parliament considers that, as a matter of principle, religious bodies (including churches, mosques, synagogues and temples) and schools should be free to choose to preference in employment people with the same religious beliefs as the religious body (just as political parties and MPs are free to preference people with the same political views in employment), then the Parliament should enact a simple statutory right for religious bodies to do so which will override inconsistent State and Territory laws to the extent of the inconsistency, without having arguments about whether there should be a regulation for each new State and Territory law.
The status of associations and institutions
Varying views were proffered about the provisions of the religious discrimination bill which provide for associations, institutions and corporations to be litigants in discrimination matters—a break from the approach in other discrimination law where proceedings can only be commenced by a natural person. However, those in support of the bill saw merit in this approach.
Dr Deagon, for instance, suggested that the provisions are reasonable and would give effect to legislation that better adheres Australia to its international human rights obligations. Dr Deagon stated:
…as a constitutional matter, there is no impediment to empowering religious corporations as litigants in a law protecting against religious discrimination, and indeed such is required as a means to give adequate effect to the protections afforded to individuals and groups against religious discrimination in international law.
Bishop Mark Edwards, representing the ACBC, considered the extension of rights to religious institutions to be a reasonable reflection of the rights to freedom of association. Bishop Edwards was of the view that:
In that sense an institution isn't something separate but it's a gathering of a whole lot of individuals. I get there's a balance to be achieved between competing rights, but it's also rights of individuals to get together, to form a group where the ethos, the belief, the curriculum, if you like, of who we are is able to be presented and passed on. It's so hard for our young people to experience that it's possible to be somebody who lives a relationship with God, who believes that God is present and active in our lives as a personal being. To be in a group of people who believe that is the gift that we want to offer our young people in our schools and in our workplaces.
The AACS argued that incorporated and unincorporated entities should have the ability to initiate discrimination complaints in their own right, and ‘not merely as an associate of an individual’. The AACS encouraged the inclusion of stronger provisions in the religious discrimination bill in this respect, to protect religious institutions from discrimination and therefore protect the rights of individuals associated with those institutions.
Religious Discrimination Commissioner
Previous iterations of the bills created the position of a Religious Freedom Commissioner, which—in the current version of the bills—is renamed as a Religious Discrimination Commissioner (RDC), within the AHRC. There was general support for the creation of the RDC role, as provided for in Part 6 of the religious discrimination bill.
The ACC said that the appointment of the RDC would be a positive step ‘towards promoting protection against religious discrimination and freedom of speech on religious matters’. Similarly, Professor Aroney suggested that in addition to addressing the problems of religious discrimination, the Commissioner’s role should include the promotion of religious freedom.
The PCV did observe, however, that while the power to make decisions about religious should rest with religious bodies, it hoped that the appointment of a Religious Discrimination Commissioner would ‘guide the AHRC toward developing deeper insight into the harms of religious discrimination’. Further, the Commissioner should ‘have significant understanding of religious communities, their idiosyncrasies, differences, similarities and also genuinely seek to champion religious rights’.
In a somewhat differing view, the Association of Heads of Independent Schools of Australia (AHISA) supported the creation of the RDC, but called for this office and the role of the Commissioner to be established as a matter of priority, and to this end, for its establishment be uncoupled from and independent of the religious discrimination bill. AHISA explained that it saw a broader role for the office of the Commissioner:
The office and role of the Religious Discrimination Commissioner have symbolic and practical significance regarding religious discrimination and religious freedom beyond any specific oversight of a religious discrimination act. Expanding the Commissioner’s role to promote understanding of and compliance with a future religious discrimination act could be executed through such an act and consequential amendments to the Australian Human Rights Commission Act.
The Institute for Civil Society made similar points. The Institute considered the appointment of the Commissioner a positive step, but urged that the person appointed to the role must be:
…a person of sufficient calibre, conviction and standing within faith communities is appointed. In a diverse, multicultural society, it is as important to promote acceptance of different religious beliefs as it is to promote racial harmony, for many ethnic minorities are also religious minorities. The Commissioner can also be a significant voice within the Australian Human Rights Commission, which has, in the recent past, had a very mixed record on supporting the internationally protected human rights of freedom of religion and conscience, and the related freedoms of speech and association for people of faith.