About the author:
I am a retired health professional. I have no affiliation with any
organisation, religious or secular.
My comments are those of a concerned citizen. I am unlikely
to be directly affected by any legislation to do with religion.
I strongly support the right of all people to practice
religion if that is their choice provided that in so doing they obey the law of
the land and respect the rights of others and respect the equal status of other
fundamental rights.
My concerns are about the nature of Australian society and
the quality of life of those of us who live here.
Inclusiveness and tolerance
There are several organisations which rate quality of life
in different countries. Most rate personal rights, tolerance and inclusion as
important determinants of quality of life.
I believe that the Religious Discrimination Bill 2019 is a
most unsatisfactory piece of legislation which will not ensure anybody’s
personal rights and is likely to diminish tolerance and inclusion in our
society.
Reasons for the bill
I have read both the first and second exposure drafts of the
bill, the explanatory notes, the Religious Freedom Review (“The Ruddock
review”) of 2018 and as much commentary as I can find online about the matter.
There appear to be underlying and precipitating factors
leading to the Bill.
Underlying factors
There appear to be two of these.
First, the Commonwealth and States have various laws
relating to a range of protected attributes but none specifically about
religious practice.
Second, Australia has been criticised by international
bodies for not legislating for all the rights in the International Covenant on
Civil and Political Rights (ICCPR) to which Australia is a party.
There is however reference to religious freedom in the
Australian Constitution.
Precipitating factors
There appears to have been a single precipitant followed by
a second provocative issue.
The precipitant was the same sex marriage postal survey of
2017 and subsequent introduction of the Marriage Amendment (Definition and
Religious Freedoms) Bill 2017 (“the same sex marriage bill”) into the federal
parliament.
I want to examine some issues around the passage of this
bill through the parliament as these have been re-visited by the subsequent
Religious Discrimination Bill.
I have found that when an enterprise has gone off the rails
the critical factor causing that derailment can usually be found quite early in
the voyage of that enterprise through life.
To continue the analogy, the Religious Discrimination Bill
is nowhere near the rails and I believe a significant precursor to the
derailment is to be found in the Marriage Amendment (Definition and Religious
Freedoms) Act.
The idea that the state should recognise marriage between
two people regardless of gender is a human rights issue. It has nothing to do
with religion.
So how did the words “Religious Freedoms” get into the title
of the Act ?
The religious (I use the word religious here as a descriptive
noun which is common practice in the Roman Catholic Church) argued that the
same sex marriage act constituted a restraint on freedom to practice their
religion as they wished.
In fact no person’s right to practice their religion changed
in the slightest degree when the same sex marriage act became law.
The new law was however a challenge to religious authority
and a challenge to the exclusionary and discriminatory practices of the religious,
in this case to do with sex, gender and the definition of marriage.
The religious sought and were granted special license
available to no other group to ignore the new law to the extent they could
refuse to marry a same sex couple and could even refuse to provide goods and
services for a wedding ceremony.
I understand that the proponents of the new law probably had
to offer up these exemptions in order to get the bill through the parliament.
An unfortunate consequence has been a re-appearance of demands
by the religious for similar exclusionary and discriminatory license in the Religious Discrimination Bill.
The second, provocative issue which appears to have
influenced the wording of the second exposure draft of the bill is the “Israel
Folau” case.
Mr Folau is a sporting identity who was under contract to
Rugby Australia (RA) until April 2019 when he was dismissed for breach of a
contract which contained a code of conduct which RA said he had failed to
follow.
The matter had nothing to do with religion.
RA would have been equally displeased had some other
unwelcome remarks been made from a non-religious position.
Neither in my view was there a substantive issue of freedom
of speech.
I regard the right to freedom of speech as fundamental in a
liberal democracy but freedoms come with responsibilities and respect for the
views of others.
Mr Folau’s pronouncements
showed a lack of responsibility and respect to his employer, his contract, his sporting code
and the millions of citizens he consigned to hell.
Despite the Israel Folau matter having nothing to do with
religion the actions of Rugby Australia were portrayed as some kind of
impediment to religious freedom.
In fact Mr Folau is entirely free to practice his religion
as can anybody in Australia.
Religious freedom is not the same thing as religious dogma, religious
entitlement or religious authority.
The religious should not be too surprised if their sense of
entitlement and authority is challenged.
Neither should they be surprised when thoughtful citizens
decide that religious entitlement and authority are not fundamental rights and
have no legitimate place in an act of parliament.
Summary of reasons for the bill
* The underlying factors, consisting mainly of
international pressure to codify all protected attributes in law appear to me
to be reason enough to proceed.
* The precipitating factors represent a problem for any
attempts to draft worthwhile legislation.
Neither the same sex marriage legislation nor the Folau case
were about religion or anybody’s religious freedom, although some people have attempted
(in my view disingenuously) to portray them as such.
All Australians have exactly the same right to practice
their religion (or elect not to) after these events as before them.
The real issue arising from these precipitants is that the
religious want license to engage in sectarian, exclusionary and discriminatory
practices.
There is a great deal of international evidence that
societies which engage in these practices provide a much lower quality of life
for all citizens than those which encourage acceptance, tolerance and
diversity.
Both the same sex marriage law and the actions of Rugby
Australia in the Folau case were about promoting and encouraging acceptance,
tolerance and diversity.
Objects of the Act
The good news is that the exposure draft does have a section
devoted to a statement about that which the Act is intended to achieve.
The bad news is that the statement itself is confusing,
ambiguous and internally inconsistent.
In Part 1, Section2, Clause 3 (2) The draft says “ In giving effect to the
objects of this act, regard is to be had to
(a) the indivisibility and universality of human rights,
and their equal status in international law”
But in Clause 3, (1) We have
“The objects of the Act are
(a) to eliminate, so far as is possible,
discrimination…………and
(b) to ensure as far as is practicable that everyone has the same rights to equality
before the law…………….
It seems to me there is a fundamental problem here.
If human rights are indivisible and universal and the right
to religious practice is one of them then it applies always to everybody and in
every circumstance.
There is no wiggle room here for any person or organisation
to decide that in some circumstance it is not practicable or even possible
for some rights to apply.
Who would make such a decision and on what basis ? Part 3 of the exposure draft attempts to
answer this question, unsuccessfully in my view because the basic premise is
not sustainable. I will discuss this below.
Either rights are indivisible and universal or they are not.
The exposure draft is trying to have an each way bet on this
which in my view is completely inconsistent with the whole idea of human
rights.
Beliefs
The exposure draft contains multiple references to beliefs, specifically religious beliefs.
I take the view that such references have no place in an act
of parliament.
The word belief can be defined as acceptance or
feeling of certainty that something
exists or is true particularly in the absence of evidence.
Such feelings are personal, private and beyond the reach of
any law.
Laws can only deal with behaviour.
The authors of the bill have misdirected themselves by
including reference to beliefs in the draft.
An organisation cannot have beliefs
As beliefs are based on feelings which are personal it
follows that an organisation cannot have beliefs.
An organisation can state its mission and purpose. It can
have policies, procedures, practices and codes of conduct for its staff and/or
members.
But not beliefs.
There are many references in the draft bill to doctrines,
tenets, beliefs and teachings of various organisations.
Doctrine can
be defined as a belief or set of beliefs taught by a church, political party or
other group.
Tenet can be
defined as a principle or belief especially of a religion or philosophy.
Thus belief, doctrine and tenet mean essentially the
same thing.
The staff and members of a group or organisation can
undertake the teaching of beliefs.
But only individual
people can hold beliefs. Several
such individuals may share beliefs.
But an organisation cannot hold beliefs.
Therefore all the many sections of the bill which refer to
the doctrines, tenets, beliefs and teachings of an organisation are without meaning.
They attempt to attach to organisations attributes which an
organisation cannot have.
Religious organisation, religious body
The exposure draft, Part 2, Section 12 (5) (a) asserts that
Religious body means:
(a) an educational institution that is conducted in accordance
with the doctrines, tenets, beliefs and teachings of a particular religion: or
(b) a registered public benevolent institution that is
conducted in accordance with the doctrines, tenets …etc…….or
(c) any other body that is conducted in accordance with
the doctrines…..etc
But does not include an institution that is a hospital or
aged care facility, or that solely or primarily provides accommodation.
But then Part 3,
Division 4 Exceptions and exemptions, Clause 32, (8) (a) says that it is not unlawful for a person to
discriminate against another person on the ground of the other person’s
religious belief or activity if the first person establishes, directs, controls
or administers a hospital or aged care facility in accordance with the
doctrines, tenets, beliefs or teachings of a particular religion.
So in a somewhat convoluted and confusing fashion we see
that the Bill does regard schools, hospitals and a range of other services and
facilities as “religious bodies” for the purposes of the Bill.
I take the view that this represents an entirely misleading
construction of the notion of a “religious body”.
It seems to me that the most obvious candidate for the title
“religious body” or “religious organisation” is one the primary mission of
which is the teaching of religious doctrine and organisation of religious
practice. This includes training, placing and funding religious officials such
as priests, nuns, mullahs and so forth plus providing places of worship such as
churches, mosques, temples and similar and arranging for religious ceremonies.
Some of these organisations have a large formal hierarchy.
For instance the Anglican Church in Australia has an elected Primate, provinces
and diocese, with staffing by bishops and other appointed religious personnel.
Some are much smaller and more local in reach. Some like
Islam traditionally have a flatter hierarchy.
But they all have the same basic purpose which is to
organise religious practice.
Somewhat to my amazement this type of organisation is not
mentioned in the exposure draft at all.
Schools, hospitals and charitable organisations are not
religious bodies
Let us look at schools. I am not talking about a bible
college or some other theological college (which I think we can agree is
a religious organisation) but a school which is licensed by a
State Education Authority to teach a prescribed syllabus of general education
leading to formal certification of completion.
It matters not whether the head organising body of the
school is a State entity, Catholic or Independent.
All schools which seek license to provide a comprehensive
education to students drawn from the general populace are required to meet a
range of standards with regard to teacher training, syllabus, facilities,
funding and many other issues.
The physics or mathematics or English taught in a Catholic school is the same as
that taught in any other school.
Some of my grandchildren attend State public school, some a
private school under the aegis of a religious organisation and some an
independent, non religious private school.
They each receive tuition on the same basic subjects.
Teaching methods are substantially the same in each and the majority content of
the syllabus is the same in each.
State, Catholic and Independent schools each receive very
substantial funding by taxpayers via State and Federal government programmes.
Now consider
hospitals. If I am to undergo surgery it matters not whether the hospital in
which this takes place is administered by a State Health Authority, a
private-for-profit corporation or an entity declaring religious or benevolent
non profit status.
Procedures for pre-admission assessment, admission, surgery,
anaesthetics, post operative care, nursing, physiotherapy, x-ray, pathology, catering,
cleaning and so forth are with only minor differences in detail the same
everywhere because they have to be in order to meet required clinical and
administrative standards and get the job done safely and effectively.
By way of example the Sydney Adventist Hospital which is
wholly owned by the Seventh Day Adventist Church states that its mission is
“Christianity in action”.
And that it has a
…”special purpose of carrying out
Christ’s mission of health and healing”…
I have been admitted to that hospital several times for
major and minor procedures.
I have also had surgical procedures at another private
hospital operated under the aegis of a religious organisation, public hospitals
and private-for-profit hospitals.
They each deliver the same standard of care with the same
types of procedures and the same clinical procedures and administrative practices.
The administrators of the Sydney Adventist Hospital might
imagine themselves to be engaged in some kind of special Christian enterprise
but the reality is that they are delivering standard clinical care just like
any other health service.
They are also affiliated with (through ownership by the SDA
church) a very large, multi-million
dollar per year commercial enterprise which engages in the manufacture and sale of foodstuffs in
supermarkets and other outlets.
Each of the three hospital types receives substantial
taxpayer funding directly or indirectly.
Neither the Australia nor
the New Zealand Sanitarium companies pay company tax on their profits, due to
their ownership by a religious organisation.
The authors of the draft bill have misdirected themselves in
proposing that some schools and hospitals are “religious bodies”. They are not.
Neither are most charitable organisations even those
operating under the aegis of a religious entity.
If a person goes to Vinnies or the Salvos to buy second hand goods that person is not
seeking or engaging in any kind of religious experience.
There are no grounds for believing that an organisation is
or will be benevolent and charitable simply because it operates under the aegis
of a religion.
The Royal Commission into institutional responses to child
sexual abuse has made it abundantly clear that the opposite is all too often
the case.
Religion is not like other protected attributes
We have anti-discrimination laws about ethnicity, gender,
age, illness, disability and other protected attributes. All these attributes are
visited upon us. We do not get to choose them.
Religious affiliation is a very different type of protected
attribute particularly in a liberal democracy like Australia where people can
and do choose of their own volition to join a religious group or not and to
change religious affiliation at will.
The authors of the draft bill have sought to make the format
of the bill similar to that of other anti-discrimination laws.
I think this is not a useful approach given that religion is
such a very different type of attribute.
Religious freedom vs religious discrimination
Given the importance of religious freedom I think this needs
to receive greater emphasis in any legislation.
Different rules for different situations, Why ?
The draft bill goes to great lengths to create different
categories of circumstance in which different rules about religious
discrimination shall apply.
Public sector organisations have different rules from
private entities and corporations.
Large commercial organisations have different rules from
small ones. This difference is defined in monetary terms.
The rules differ from one profession to the next.
A partnership of three individuals has different rules from
one with two members.
The list goes on and on.
The draft bill refers in Section 2.3 (2) (a) to …”the
indivisibility and universality of human rights and their equal status in
international law”….
If the right to practice religion is indivisible and
universal then all the different circumstantial rules described in great detail
in the draft bill are meaningless.
The right to religious affiliation and practice must apply
everywhere, always, without artificial rules which seek to modify that right in
different circumstances.
The exceptions
Section 4 of the draft bill describes exceptions and exemptions in great detail.
I take the view that if religious freedom is universal and indivisible then
no exceptions are required nor do they serve any religious, humanitarian, philosophical
or practical purpose.
The most egregious aspect of the draft bill is the
exceptions which apply (in my view improperly) to various organisations deemed
(incorrectly in my view) to be “religious bodies”.
The main effect of these exceptions is to give license to
some organisations to engage in restrictive industrial relations and human
resource practices which in my view amount to sectarian tribalism.
These exceptions have nothing whatsoever to do with
religious freedom.
They are about granting authority to certain
organisations under the aegis of a
religious organisation to engage in discriminatory practices not permitted to
any other organisations.
The religious leaders demanding this authority are engaged
in a cynical exercise of hypocrisy and the authors of the draft bill have
completely misdirected themselves and failed in their duty to the Australian
people by pandering to this hypocrisy.
An idea for an alternative draft bill
Part 1. Religious freedom
Individuals and groups are free to express religious views
and engage in religious practices provided that in so doing they do not break
the law or infringe upon the rights and freedoms of others.
Part 2. Religious discrimination
Individuals, groups and organisations shall not discriminate
against other individuals, groups or organisations on the basis of religion.
Part 3. Offences.
It is an offence for any person, group or organisation to
act so as to prevent any person or group from engaging in lawful religious
practice.
It is an offence for any person, group or organisation to
discriminate against any person, group or organisation on the basis of
religion.
Summary
The draft religious discrimination bill is unsatisfactory.
It does not contain provisions which could reasonably be expected to improve the right
to religious freedom for individuals or
groups.
It is drowning in details which obfuscate rather than
clarify.
It contains provisions which would have the effect of giving
license to sectarian discrimination contrary to the concept of human rights.
The bill cannot be improved by any species of amendment.
It should be withdrawn and public debate about religious
freedom and discrimination re-energised with the aim of reaching community
consensus about a workable legal framework for religious freedom.
Andrew Smallman
Sydney 18 May 2020
No comments:
Post a Comment