First I want to address the issue of the protection of religious bodies. Once legislators started to add to discrimination law protected attributes such as for sexual activity, which we have in Victoria and one other jurisdiction, sexual orientation, and gender identity, we were no longer dealing with attributes like age, sex, or race, where there would be a 99.9 per cent consensus that it was wrong to treat anyone differentially on the basis of those attributes in most circumstances.
Once we moved into law for sexual activity, sexual orientation and gender identity, we entered into an area of controversy because “lawful sexual activity” would include sex outside marriage and adultery. Some people think adultery is fine, but other people do not.
So, when these attributes were introduced into legislation, the pressure came on to think about the groups – mainly but not exclusively religious groups – that will not be happy with a law that says they cannot differentiate or treat people differently on the basis of lawful sexual activity, gender identity or sexual orientation.
Now, instead of taking a nuanced view of this, the architects of anti-discrimination law back in the 1980s just said, let’s describe what it is to discriminate as broadly as possible. We’ll put in a really broad definition of discrimination. So, any adverse conduct in employment in relation to a person or any adverse conduct in relation to a student limiting any benefit that a student might get; really broad.
And then they thought, oh, there is going to be a problem at religious schools, because religious schools might not treat everyone the same, if a person’s sexual conduct is contrary to the religion. So, we’d better have an exemption – I prefer to call it a “balancing provision” – for religious bodies and educational institutions.
The classic form of exemption is like the one in the Northern Territory Anti-discrimination Act, which permits religious educational institutions to discriminate in relation to who they employ as staff in schools. If the discrimination is on the grounds of religious belief or activity, or sexuality, and is in good faith to avoid offending the religious sensitivities of the people of the religion to which the school adheres, it has to be in accordance with the doctrines or tenets or beliefs of that religion.
So, if it is the case of a teacher who engages in serial affairs or serial adultery, for instance, you do not have to employ that person, even though that would be unlawful under an anti-discrimination act that prohibited discrimination on the grounds of sexual activity. When it came to sexual orientation, a similarly broad definition of discrimination was applied, with pretty broad exemptions.
Looking again at the Northern Territory. Late last year, the NT removed that exemption totally. So, now religious schools in the NT do not have the benefit of that exemption in the case of employment and they have to prove a genuine occupational requirement. That is, they have to prove that the staffing position in question, whatever it is, genuinely requires that the person the school is looking to hire personally holds the same religious belief and adheres to the same moral standards as the school.
Now, under this amended legislation, the school has to show why in practice it is applying filters about sexuality, sexual conduct and religion to staff. These rules about not discriminating also apply in relation to students and board members and so on.
In Victoria, last year, a new law came in, through the Victorian Equal Opportunity (Religious Exceptions) Amendment Act, that limits the freedom of religious schools to discriminate in employment decisions and regarding students. So, for example, in terms of employment, the Victorian law says religious schools, colleges and universities have to prove the following things:
That it is inherent to the staffing position that the person conform to the doctrines, principles or beliefs of the religion of the religious educational institution.
Before the religious educational institution can take any adverse action on this basis, it has to prove that the person cannot satisfy the inherent requirement because of the person’s religious belief or activity (Note that it is about the person’s belief, not about the person’s sexual conduct, whether the person has a lawful occupation as a sex worker. That is a lawful occupation in Victoria, and the ACT now. You cannot look at those things. You can only look at whether their religious belief or religious activity does not conform to that of the religious educational institution.)
You also have to be able to prove that whatever action the school or college or university took in respect to the staff member or the applicant for a job was reasonable and proportionate in the circumstances.
It is causing religious educational institutions considerable heartburn to work out how to deal with this, in terms of their staff, their hiring process, their ongoing performance review and performance management of staff; and also, in respect to students.
Which brings us to the federal Sex Discrimination Act and the federal Fair Work Act. These have some exemptions for religious bodies when they engage in discrimination or differential treatment for religious reasons.
The federal Sex Discrimination Act currently says that a religious educational institution can discriminate in employment in good faith in order to avoid injury to the religious susceptibilities of adherents to the religion or creed.
The Federal Government referred the matter to the Australian Law Reform Commission (ALRC), asking for recommendations on how to do two things:
How to remove those freedoms of religious schools to discriminate in employment decisions and regarding student conduct.
And how to allow religious schools to maintain a community of faith by selecting staff who have the same religion as the school.
The ALRC produced its consultation paper in early February. It is amazingly unbalanced, thin on international law, and its analysis is not a good starting point to come up with any sort of balanced solution to the dilemma.
Let me give you a quick flavour of what the ALRC is recommending. It has some pretty bizarre proposals. It proposes that the rights of religious schools to preference people of faith in the selection of staff should be limited only to teaching roles; not the nurse, not the administration staff, not the maintenance person. And only those teaching roles where the observance or practice of the religion is a genuine requirement of the role having regard to the nature and ethos of the institution. For example, the religious studies teacher or a chaplain.
Another proposal that the ALRC has come out with is to say that religious schools must employ teachers who may not share or support the religious beliefs of the school. That employment, though, can be terminated if the teacher actively undermines the religious ethos of the school.
Yet even religious education teachers cannot be required to teach beliefs concerning sexual orientation, gender, identity, marital or relationship status, or pregnancy, in accordance with the religion of the school, unless such teachers are given the freedom to discuss with students alternative views about other lifestyles, other relationships, other sexualities.
It is worth noting that such strictures do not apply to a political body.
‘Conversion Therapy’
The second issue which we might discuss in more detail relates to suppression practices laws. These laws are being passed around the country. They started in Queensland and the ACT and Victoria, Tasmania will have a bill this year. It’s not clear where Western Australia is going; it said it was going to pull back a bit.
These laws are usually badged as “conversion therapy” laws, but they run much more broadly than that. For example, in Victoria, suppression practice is defined as any practice or conduct that includes a conversation directed towards a person, regardless of the person’s consent: that they have asked for the conversation or asked for the counselling is utterly irrelevant.
Conduct has to be in relation to the person’s sexual orientation or gender identity and it has to be for the purpose of changing or suppressing that person’s sexual orientation or gender identity or inducing the person to change or suppress their sexual orientation or gender identity.
So, in any discussion – with a group of young people or old people doesn’t matter – where you say, this is our understanding of God’s will for your sexual identity or sexual orientation or your gender, you are at risk of being accused of inducing a person to change or to suppress their gender identity or sexual orientation.
The legislation is not fully explicit in saying that that practice can include religious practice, such as praying with someone, or exorcism or referring someone on to a counsellor or a psychiatrist or psychologist.
The legislation is so broad that it causes concerns about what can be said in sermons, in Bible studies, in discussions; when working with youth, youth pastors; and what teachers or a student welfare officer in a school can say.
We have already seen an example of the consequences in Tasmania. Under Section 17 of the state’s Anti-discrimination Act, a person must not engage in conduct that offends humiliates or intimidates, insults or ridicules another person on the basis of sexual orientation, gender identity, sexual activity in circumstances in which a reasonable person would have anticipated that the other person would be offended, humiliated, intimidated, etc.
A complaint was made under this provision against Archbishop of Hobart Julian Porteous when he approved the distribution of a publication produced by the Australian Catholic Bishops Conference, Don’t Mess with Marriage. The complaint was withdrawn subsequently.
Victoria, Queensland and Western Australia currently have recommendations to government to introduce laws like this, which are called, in shorthand, harms-based speech laws.
Interactivity of Laws
How might these three types of laws interact? Let’s say you are at a school and you are saying to someone, that this type of expression of sexuality, sexual relations, sexual activity is not in accordance with the beliefs or ethos of the school.
Someone might come by and say, well, you are inducing me to change or suppress my sexual orientation or gender identity. You can say, no, there was no inducing of anyone to suppress or change.
Then might come the accusation, you are discriminating against me on the basis of my lawful sexual activity, sex orientation or gender identity. Then the exemptions or balancing provisions under anti-discrimination law would come into play in your defence.
A third possible scenario is that someone might say, “I just heard in chapel or in religious studies class about the teachings of the religion on sexual orientation or on what is appropriate sexual practice or on gender identity, and that a reasonable person would have thought that that would offend or humiliate or insult me because of my sexual practices or sexual orientation or gender identity.”
Now, none of this is to say that anybody should be insensitive towards young people in particular or anybody in this regard. It is to say that the law is intruding in at least these three ways very substantially into the freedom that religious schools and colleges and religious bodies have to express, both in word and in conduct, appropriate conduct rules for members, for students, for staff, and to express the religious teachings of the organisation as they relate to sexual activity, sexual orientation and gender identity.
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Originally published at News Weekly. Photo by Sora Shimazaki.
