SHOULD THERE BE A RELIGIOUS EXCEPTION FROM ANTI-DISCRIMINATION LAWS?

By Reynah Tang

By Reynah Tang. This article is part of our February 2013 focus on Religion and Human Rights.

Together with the Law Council of Australia, the Law Institute of Victoria strongly supports the consolidation of Commonwealth anti-discrimination laws. The enactment of the Human Rights and Anti-Discrimination Bill 2012 [Bill] should create a more consistent, efficient and effective regime for dealing with complaints of discrimination.

The government should be applauded for addressing the calls to remove the most contentious aspect of the Bill, the so-called “offends and insults” provision. Clause 19(2)(b) was apt to cause confusion and debate and its removal would be welcome. Similarly, we welcome the Senate Legal and Constitutional Affairs Legislation Committee [Senate Committee] majority recommendation to remove the provision.

Another controversial issue is whether there should be a blanket exemption from the laws for religious organisations. Clause 33 currently permits religious bodies and educational institutions to discriminate in their non-religious day-to-day activities against staff and volunteers on grounds of sexuality, marital status, sex and other attributes.

The balancing of freedom of religion with other important human rights, such as the right to equality and to be free from discrimination, requires thoughtful consideration by our law-makers.

Recently, the Senate Committee issued a majority report which recommended that the draft Bill be amended to reflect the position in the equivalent Tasmanian legislation, the Anti-Discrimination Act 1998 (Tas). The Committee describes the Tasmanian model for religious exceptions as being “much narrower” than those in the draft Bill, extending only to the protected grounds of “religious belief or affiliation” and “religious activity”.

The majority report quotes the evidence to the Senate committee of Ms Robin Banks, the Tasmanian Anti-Discrimination Commissioner, as stating that, “I think that what [the narrow exception] has meant in Tasmania is that religious bodies have perhaps turned their minds in different ways to how they ensure that their religious practice does respect the rights of others to the greatest extent possible without interfering with their doctrinal approach.’ [para 5.56].

The Senate Committee preferred the Tasmanian approach on the basis that “no organisation should enjoy a blanket exception from anti-discrimination law when they are involved in service delivery to the general community.”

The LIV’s view is that an “as of right” exception is difficult to justify in attempting the balance outlined above. It would therefore be preferable that exemptions be granted on a case by case basis, taking account of all the circumstances and providing a greater degree of accountability and transparency.

When my predecessor, Michael Holcroft, wrote a blog about the issue in November last year, it prompted responses from some members who suggested that the LIV not speak for the membership on such a sensitive topic.

One said he was “disappointed that the LIV has taken a partisan approach with respect to religious freedom, whilst representing such a broad and diverse community”.

Another said, “topics like this one necessarily involve disputed issues of both values and facts. I am confident that the membership is not united on the view you’ve expressed here … I think the LIV’s role should be to speak out for legal rights and freedoms which are under threat. In this case, perhaps that means the LIV should look into defending the right which those exempt cultural, social welfare and religious organisations presently have, to freedom of choice to meet their particular needs.”

In contrast, another member, “a regular representative of employees of religious schools” said he “powerfully agree[d] that the breadth of religious exemptions are anachronistic. The amendments to the Victorian E[qual] O[pportunity] Act, promptly repealed by the current state government, represented a small step towards a fair balance. We are left with state and federal legislation which both facilitate appalling acts of discrimination under the guise of protecting religious sensibilities.”

The LIV respects the opinions of all our members. The great diversity of our membership is part of its strength.

In the short term, the LIV wants to see the Bill enacted. Accordingly, the LIV proposes that consideration be given, at the time of the proposed three year review of the exceptions, to allow religious organisations to discriminate for religious reasons only on application to the Australian Human Rights Commission, on a case by case basis.

This will allow for further consideration of the inherent tensions involved, and for the divergent views to be aired. Given the interest in the topic that was excited by the November President’s blog, we hope that all our members will get actively involved in the debate.

The LIV urges federal parliament to pass the Human Rights and Anti-Discrimination Bill 2012. The aim, ultimately, is to have the highest standard of protection for all Australians so we can prevent discrimination in the first place rather than address wrongs. Once the consolidation of the existing regimes has been in place a while, we will be in a better position to judge the appropriateness or otherwise of the exceptions, including for religious organisations.

Reynah Tang is the President of the Law Institute of Victoria.

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