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.