Debates over religious freedom can be a little confusing. Anti-discrimination laws exist at a federal, state and territory level and amendments to these laws seem to be before one parliament or another all the time.
While it’s hard to keep up with everything that is going on, it is also very important.
This past week, we know that the Northern Territory parliament passed amendments to its anti-discrimination laws that were so controversial that the Catholic Bishop of Darwin, Bishop Charles Gauci, warned that it could result in the closure of Catholic schools.
But why? What makes these laws so extreme that they would invite such a serious response? I’d like to explore this question by explaining just a few of the changes and how these will play out in practice.
The first changes to discuss are those related to religious schools. As has already been reported, the new laws remove exemptions for religious schools in relation to enrolment and employment matters.
The practical reality of these changes is that Catholic schools will no longer be able to preference Catholic students for enrolment, nor will they be able to preference Catholic teachers for employment, other than perhaps as the school principal or religious education coordinator. Catholic schools will not be able to insist that teachers abide by Catholic teaching in their public or private lives, and the new laws are clear that this includes matters of sexual orientation, gender identity and more.
So, if your child’s male year one teacher decides to return to school in term three as a woman, insisting that the children now call him “Miss,” there is nothing you or the school can do about it unless you can convince the Anti-Discrimination Commissioner that it would be “reasonable, justifiable and proportionate” to ask the teacher to find another job.
Too bad if you sent your kids to a Catholic school so you didn’t have to have a conversation with your six-year-old about transgender issues.
“The new law requires organisations to take ‘reasonable and proportionate’ steps to eliminate discrimination ‘to the greatest extent possible’.”
The same rules also apply to day care centres, vacation care and universities, as well as any other religious organisation, save for some narrow, remaining exemptions that deal with ordination, admission to the seminary or convent, or leadership of religious organisations.
The next change has to do with protected attributes, that is, the characteristics of people regarding which you are not allowed to discriminate.
We are used to the law prohibiting discrimination on the grounds of some of the more ‘traditional’ categories like age, sex, race, disability and religion, and even the newer ones like sexual orientation and gender identity.
The new Northern Territory law has added ‘sexual services’ to this list, which prohibits discrimination on the basis that someone is involved in sex work or pornography. The end result of this is that a Catholic school or other organisation cannot refuse employment to someone with a side job as a prostitute or a porn star. Because that would be discrimination.
It’s not only the relationship to individual employees or students that is affected by this change in law. There are changes that affect how religious organisations are run.
The new law requires organisations to take ‘reasonable and proportionate’ steps to eliminate discrimination ‘to the greatest extent possible’. It is not clear from the text of the new law or the explanatory documents what these positive steps might be, but I imagine that in the not-too-distant future, someone will be suggesting that Catholic schools introduce programs like Safe Schools and employees be given mandatory training from pro-LGBT organisations. The Anti-Discrimination Commissioner has the power to begin – of their own volition – an investigation into whether an organisation is taking such positive steps, to make a determination about whether or not the organisation is being compliant and then to publish a report into the same.
This is not the only change to the complaints system.
In addition to the current ability for individuals who have been discriminated against to make a complaint to the Anti-Discrimination Commissioner, the law has been changed to allow a person to make a complaint on behalf of others.
A person can make a complaint that an organisation is discriminating against a group of individuals. They can make a complaint without identifying who or how many people have been discriminated against, without the consent of anyone who they claim has been subject to discrimination and with their own identity kept secret.
The law says that the Anti-Discrimination Commissioner can run the investigation in whatever way they deem appropriate (that is, no rules) and has the power to order documents to be handed over.
Here’s one example of how this could look in practice.
An anonymous complainant might suggest that the Catholic Church systemically discriminates against people who are divorced by teaching that marital vows should not be broken. That person would not need to name any divorced person who believed they had been discriminated against to initiate the case.
The Anti-Discrimination Commissioner could require all marriage preparation documents and homilies from across the Diocese of Darwin to be retained and handed over to assist in the investigation, and any priest who did not turn over his homilies so this anonymous witch hunt could proceed would face a fine of up to $16,200 and six months in prison.
This isn’t some fantasy world or some (officially) communist regime; it is the law just passed in the Northern Territory. Let’s pray for Bishop Charles Gauci in the battles he will no doubt face.