The second exposure draft of the Religious Dis­crim­in­a­tion Bill was released by the federal gov­ern­ment on 10 December 2019. To say that it has already met with mixed reviews would be an under­state­ment. Few proposed new laws have thrown into such sharp relief the deep clash of pri­or­it­ies between different groups in con­tem­por­ary Australia.

There has been a sig­ni­fic­ant and con­tinu­ing increase in the pro­por­tion of Aus­trali­ans who identify them­selves in the census as having “no religion.” At the same time, faith com­munit­ies in Australia, as in other Western countries, feel that the freedom of people of faith to profess and live out their beliefs is increas­ingly under challenge. Some of their worst fears seem to have been confirmed by the rhetoric of secular groups who demand — in the name of “equality” — that faith-based insti­tu­tions cease pref­er­en­cing adherents of their own faith in any aspect of their oper­a­tions or gov­ernance, and that people of faith be legally restrained from giving public expres­sion to their religious beliefs to the extent these are felt to be incom­pat­ible with the principle of human equality.

Reports in the media sug­gest­ing that Jewish insti­tu­tions want the law to give more power to religious bodies to pref­er­ence adherents of their own faith when providing services, and in their mem­ber­ship require­ments, are false. What we want is for the law to preserve their existing freedoms to do so. At his historic joint meeting with 21 faith community leaders in Sydney on 5 August 2019, Prime Minister Scott Morrison made a com­mit­ment that faith-based insti­tu­tions would be no worse off under the new law, and this com­mit­ment needs to be given clear effect in the new law’s detailed pro­vi­sions.

Like other numer­ic­ally small faith com­munit­ies, the Jewish community would be very much the poorer if it did not have its own insti­tu­tions to cater, not only to the needs of its community members for edu­ca­tion­al, hospital, aged care and accom­mod­a­tion services, but also to the religious and cultural needs of Jewish users of those services. Insti­tu­tions in the wider community usually do not, and cannot real­ist­ic­ally be expected to, accom­mod­ate these religious and cultural needs.

It would hardly be possible to speak in any mean­ing­ful sense of a Jewish community if we did not have the option of sending our children to Jewish day schools and pre-schools, or if our community members in need of hospital care did not have the option of attending a Jewish hospital, or if frail or elderly Jews did not have the option of residing in a Jewish aged care centre or retire­ment village.

These char­it­able Jewish insti­tu­tions were estab­lished many decades ago with sig­ni­fic­ant financial con­tri­bu­tions from the Jewish community. Although it is true that many faith-based insti­tu­tions receive some level of gov­ern­ment funding, this is at a far smaller cost than the gov­ern­ment would incur if it were forced to provide sub­sti­tute services, either by taking over these insti­tu­tions itself, or by over­bur­den­ing existing gov­ern­ment insti­tu­tions.

Serving the Jewish community first

In providing their services, most char­it­able Jewish insti­tu­tions have a stated policy of giving priority to meeting the needs of members of the Jewish community. Con­sequently, students at Jewish schools are mostly, and in some cases, exclus­ively, Jewish. Residents at Jewish aged care facil­it­ies are almost all Jewish. Residents at one Jewish retire­ment village are all Jewish. There is only one Jewish hospital in Australia. It welcomes patients of all back­grounds. At times, depending on the cir­cum­stances, it gives admission priority to Jewish patients and at other times to non-Jewish patients.

It is fatuous to suggest that these long-standing practices somehow dis­ad­vant­age people who are not Jewish. People who are not Jewish do not need to be provided with kosher food, Jewish prayer facil­it­ies and observ­ance of the Jewish Sabbath and festivals, in addition to the edu­ca­tion­al, hospital, aged care and accom­mod­a­tion services they require. There are many quality service-providers in the wider community which are more than capable of meeting their needs.

Improvements and deficiencies

The second draft of the Religious Dis­crim­in­a­tion Bill contains some important improve­ments to the first draft, and these are welcome. For example, the extent to which a religious body may give pref­er­ence to adherents of that religion is now more com­pre­hens­ively defined. A key problem which remains, however, is that while faith-based schools are included in the defin­i­tion of a “religious body,” faith-based hospitals, aged care facil­it­ies and accom­mod­a­tion providers are expressly excluded, and therefore do not receive the same pro­tec­tions.

A clause has now been inserted into the Bill which allows such insti­tu­tions to give pref­er­ence to employing people of their own faith. However, Jewish insti­tu­tions generally do not give pref­er­ence to employing Jews (unless the position involves per­form­ing religious duties), so this clause is of limited benefit to Jewish insti­tu­tions.

Another clause allows faith-based insti­tu­tions to meet a need arising out of a religious belief or activity, or to reduce a dis­ad­vant­age exper­i­enced by a person or group on the basis of their religious beliefs or activ­it­ies. But the benefit of the clause does not extend to cultural or lin­guist­ic needs of the person or group, or to the reduction of dis­ad­vant­ages they exper­i­ence which are not neces­sar­ily based on their religious beliefs or activ­it­ies — for example, the effects of antisemitism. Moreover, and regret­tably, the clause does not make it explicit that in meeting a relevant need or reducing a dis­ad­vant­age, a faith-based insti­tu­tion may give pref­er­ence to people of the same faith.

If faced with a claim that a non-Jewish person has suffered a dis­ad­vant­age because a Jewish patient or resident has been given pref­er­ence, a Jewish insti­tu­tion may have to satisfy a court that its long-standing pref­er­en­cing practices in service delivery, which are allowed under the existing law, will continue to be lawful under the proposed legis­la­tion. No faith-based insti­tu­tion would wish to be put into that position, and the result would be uncertain.

Membership and governing bodies

Another issue for faith-based hospitals, aged care facil­it­ies and accom­mod­a­tion providers is that many of them currently have con­sti­tu­tions which restrict their mem­ber­ship and that of their governing boards and com­mit­tees wholly or mainly to people of their own faith.

This is espe­cially important for numer­ic­ally small faith com­munit­ies like ours — and also, for example, the Greek Orthodox community. If these char­it­able Jewish service-providers would now be pro­hib­ited from restrict­ing their mem­ber­ship and that of their governing boards and com­mit­tees to Jewish people, they may even­tu­ally find them­selves with a non-Jewish majority of members or governors who would be free to vote to abandon the organisation’s Jewish ethos and religious practices.

The new Bill expressly allows faith-based clubs to restrict their mem­ber­ship to people of their own faith but, oddly, there is no equi­val­ent allowance for faith-based hospitals, aged care facil­it­ies and accom­mod­a­tion providers.

If faced with a claim that a non-Jewish person has suffered a dis­ad­vant­age because mem­ber­ship is restric­ted to Jews, these insti­tu­tions may have to satisfy a court that they fall within the defin­i­tion of a “club,” or that their mem­ber­ship restric­tions are not dis­crim­in­at­ory, or that these practices are not an area of public life affected by the Bill. It is far from self-evident that a court would resolve these questions in favour of the insti­tu­tion. Under the current law, there is no basis for bringing such a claim in the first place.

Nor is there any provision in the Bill that faith-based organ­isa­tions which do not fall within the defin­i­tion of a religious body may continue to require all or a majority of the members of their governing boards and com­mit­tees to be people of that faith.

If faced with a claim that a non-Jewish person has suffered a dis­ad­vant­age because of such a require­ment, a Jewish organ­isa­tion may have to satisfy a court that the require­ment is not dis­crim­in­at­ory, or that the restric­tion is not an area of public life affected by the Bill or, if the organ­isa­tion is a public bene­vol­ent insti­tu­tion, that being on a governing board or committee con­sti­tutes voluntary “employ­ment” in respect of which pref­er­en­cing is permitted.

Again, it is far from self-evident that a court would resolve these questions in favour of the organ­isa­tion, and under the current law, there is no basis for bringing such a claim in the first place.

The need for clarity

There are several other fun­da­ment­al issues raised by the Bill which are not addressed here. For example, what legal limits should there be on public expres­sions of religious belief inside and outside the work context?

In launching the first draft of the Bill, the federal Attorney General spoke of the desirab­il­ity of the judiciary being “guided by a set of legis­lat­ive guard­rails” in inter­pret­ing the Bill’s pro­vi­sions, so as to minimise the scope for law-fare and unin­ten­ded con­sequences. At the very least, we believe the Bill needs some extra “guard­rails” to make explicit that faith-based hospitals, aged care facil­it­ies and accom­mod­a­tion providers will be free to continue their long-standing practices of pref­er­en­cing people of their own faith in service delivery, mem­ber­ship and on their governing boards and com­mit­tees in order to give effect to and preserve their faith-based ethos.

Peter Wertheim AM is the co-CEO of the Executive Council of Aus­trali­an Jewry.