A bill in the ACT’s Legislative Assembly aims to slice away at inherent human freedoms in the guise of preventing discrimination.
In 2018, changes to the ACT’s Discrimination Act imposed harsh restrictions on the operations of religious schools and health services.
The changes allowed some exemptions for religious organisations, if an activity or practice conformed to “the doctrines, tenets or beliefs of that religion and is necessary to avoid injury to the religious susceptibilities of adherents of that religion” (§32).
However, these exemptions did not apply to employment and enrolment decisions in religious schools, or to employment in religious healthcare agencies. These had exemptions only when “religious conviction” was a requirement, narrowing the exemptions down to teaching religion or conducting religious services (§44).
There was a narrow allowance for enrolment and staffing decisions in schools on the grounds of religious belief, but only if the school’s “religious conviction[s]” were set out in a formal, public policy document (§46).
This is a very limited exemption, as a school could not require staff or students to comply with the moral code of its religion because a person’s “relationship status” is a protected attribute under the Act (§7.1.s). Hence, a staff member in a de facto relationship could not be disciplined or dismissed when their lifestyle contradicted the religious beliefs of the school.
Now in 2022, further changes to the Discrimination Act aim to impose even more draconian restrictions on all religious institutions. The amendment bill requires that religious organisations (other than those involved in ordination, training for ordination, and providing religious services) must demonstrate, not only that their activities and practices are in accordance with their religion’s “doctrines, tenets or beliefs”, but also that their actions are “reasonable, proportionate and justifiable in the circumstances” (a new §32).
Who decides what is “reasonable, proportionate and justifiable”? A state-appointed secular tribunal or court will decide. Effectively, a state agency will interpret and determine what are a church’s doctrines and beliefs and how their faith organisations are shaped.
To the contrary, Associate Professor Neil Foster, from Religion and Law Australia, argues that “respect for religious freedom means that religious bodies should be allowed to determine for themselves the content of what their faith requires”.
Seminaries and institutions training candidates for the ministry will not escape the proposed legislation. Whereas the current provisions fully exempt ordination, training for ordination and religious services from the Discrimination Act, the state will now require that these sacred religious functions conform “to the doctrines, tenets or beliefs of the body’s religion”.
Will providing communion be defined as a “service” covered by the [ACT legislation]?” – Patrick J. Byrne
As Neil Foster points out, there are deep divisions between biblical scholars and theologians over whether women can preach from the pulpit, perform religious ceremonies or be ordained to church ministry. Such divisions were apparent at the recent Catholic Church Plenary Council.
Under this bill, if a woman lodges a discrimination complaint for being refused a preaching role or ordination, then it can be a secular agency of the state, not legitimate church authorities, that may determine which biblical or theological school’s worldview should be upheld under ACT law.
Similarly, Foster argues, the narrowing of exemptions to “religious convictions” for religious organisations means that a church may legally refuse to hire its meeting rooms to groups of a different faith. However, denying the facility to an LGBT activist group promoting same-sex “marriage” could be deemed discrimination for refusing the provision of goods and services for those whose sexual orientation or gender identity are protected attributes.
The reach of this bill is not fully clear. Will providing communion be a “service” covered by the bill? If so, would refusing communion at mass to LGBT activists wearing rainbow sashes, as then Archbishop Pell did in 2002, lead to discrimination charges? Would refusing communion to a person living contrary to the church’s religious convictions (for example, being in a de facto relationship) constitute discrimination, given that relationship status is a protected attribute in the Discrimination Act?
Regardless, what may be grey areas in today’s legislation will become reasons to tighten the restrictions on religious freedoms in another round of amendments in a few years’ time.
It is possible that the ACT legislation, which already carries some of the harshest restrictions on religious freedom in the country, could be nullified by federal law, which takes precedence when states or territories remove protections granted in Commonwealth law. As the ACT Discrimination Act’s religious provisions are much narrower than in the federal Sex Discrimination Act 1984, the territory’s legislation could be challenged and invalidated.
People of faith need to be aware that, across the nation’s parliaments, they are facing a stream of legislative changes that are tightening restrictions on religious freedoms in anti-discrimination, vilification, birth-certificate and anti-conversion therapy laws.