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The Aus­trali­an Gov­ern­ment is reported to be planning to introduce a Religious Dis­crim­in­a­tion Bill before the end of the year. The reports suggest that the Bill will prohibit dis­crim­in­a­tion on the basis of religious belief or affil­i­ation, but with carve-outs exempting faith-based organ­isa­tions to the extent necessary for them to continue to operate according to their religious precepts. That is, the Bill will say that you are not allowed to dis­crim­in­ate against another person on the basis of that person’s religious beliefs or affil­i­ation, but it will then provide a series of excep­tions where faith-based organ­isa­tions may exclude a person of another faith, or no faith, from mem­ber­ship or employ­ment or other aspects of their oper­a­tions.

This would be similar to the structure of all previous Federal and State laws which prohibit dis­crim­in­a­tion (eg on the basis of race, sex, dis­ab­il­ity or age) but then have excep­tions or exemp­tions for faith-based organ­isa­tions, among others. The excep­tions for faith-based bodies in our current anti-dis­crim­in­a­tion laws are the principal legal pro­tec­tions for religious freedoms that presently exist in Australia.

Religious freedom as a positive right rather than a narrow exception

In a political and cultural envir­on­ment in which religious freedoms have not been under serious challenge, this excep­tions-based model has until now provided adequate legal pro­tec­tion to religious freedoms in Australia.

However, there is evidence that the political and cultural envir­on­ment through­out the western world is changing, and the ambit of religious freedoms for faith-based organ­isa­tions is increas­ingly being ques­tioned, if not chal­lenged openly. This creates a com­pel­ling case for Aus­trali­an gov­ern­ments to adopt a different approach, one that affirms as a positive right, rather than a negative “exception to the rule”, the pro­pos­i­tion that faith-based organ­isa­tions are free to operate according to their religious prin­ciples and ethos.

Such an approach would also be more in keeping with Australia’s inter­na­tion­al oblig­a­tions.

Article 18 of the Universal Declar­a­tion of Human Rights and Article 18.1 of the Inter­na­tion­al Covenant on Civil and Political Rights, (ICCPR) each provide that everyone ‘has the right to freedom of thought, con­science and religion’. According to the ICCPR: “This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either indi­vidu­ally or in community with others and in public or private, to manifest his religion or belief in worship, observ­ance, practice and teaching”.

The fun­da­ment­al character of freedom of thought, con­science and religion is reflected in the fact that the ICCPR says that these freedoms must not be derogated from, even in times of public emergency.

Religious freedom currently receives some con­sti­tu­tion­al pro­tec­tion in Australia. Section 116 of the Aus­trali­an Con­sti­tu­tion prohibits the making of Com­mon­wealth laws for (i) estab­lish­ing any religion (ii) imposing any religious observ­ance (iii) pro­hib­it­ing the free exercise of any religion or (iv) requiring a religious test as a qual­i­fic­a­tion for any office or public trust under the Com­mon­wealth. The High Court has given s.116 a narrow inter­pret­a­tion. Section 116 does not expli­citly create a personal or indi­vidu­al right to religious freedom. The gov­ern­ment has not indicated that it is proposing to seek a change to this section, nor does any such change appear to be warranted.

Although religious freedom in Australia is not, and has not pre­vi­ously been, under serious threat, the enactment of a Religious Dis­crim­in­a­tion Act would provide the gov­ern­ment with a rare oppor­tun­ity to entrench religious freedom as a positive right, both to acknow­ledge its fun­da­ment­al import­ance, as recog­nised by inter­na­tion­al law, and to protect it against future encroach­ment.

Religious practices and anti-dis­crim­in­a­tion law

Faith groups generally recognise and respect the right of other faith groups to manifest their religious beliefs, each group according to its own ethos. They do not view legit­im­ate expres­sions of faith as “dis­crim­in­a­tion” against specific indi­vidu­als or groups who do not share that faith, and do not seek to have a “right to dis­crim­in­ate” against each other.

Religious practices which dis­crim­in­ate in favour of members of the same faith community, or in favour of a gender, may not fit the classic form of negative dis­crim­in­a­tion, which seeks to exclude and dis­ad­vant­age others out of prejudice. Nev­er­the­less, the objective effect of those practices will be to dis­crim­in­ate against everyone who is not a member of the favoured group, even if it is not directed against any one specific group or specific groups.

For example, in Orthodox Jewish tradition, rabbis, cantors and certain other personnel must be Jewish according to the rules of Halacha (Jewish religious law). Halacha also requires rabbis, cantors and certain other personnel to be (i) reli­giously observant and (ii) males. The foregoing require­ments are in addition to, and indeed pre­con­di­tions for obtaining, the applic­able formal education and training qual­i­fic­a­tions.

Further, Orthodox Judaism requires that certain other religious functions be performed only by persons who meet these specific require­ments. These functions include acting as a judge of a Beth Din (Jewish religious court), the sol­em­nisa­tion of religious marriages, the per­form­ance of a religious cir­cum­cision, the religious slaughter of animals and the burial of the dead. The Con­ser­vat­ive and Pro­gress­ive streams of Judaism also apply some of these rules, or apply them less strin­gently.

In Orthodox Jewish religious services, men and women pray sep­ar­ately. All of the cere­mo­ni­al and religious functions are performed by men, and only men are counted in determ­in­ing whether a minyan (quorum) is present, a pre­con­di­tion for a full, formal service. The foregoing is by no means an exhaust­ive account of orthodox Jewish religious require­ments that may be con­sidered ‘dis­crim­in­at­ory’.

Indir­ectly, if not directly, these practices dis­crim­in­ate on the basis of religious belief, gender and sexual ori­ent­a­tion. At present, this is allowed by the excep­tions contained in anti-dis­crim­in­a­tion legis­la­tion. However, we live in an age that increas­ingly affirms equality of rights as a moral imper­at­ive. Many would see these mere excep­tions as a slender thread upon which to hang a fun­da­ment­al right – in this case the right of Aus­trali­an Jews who are members of, or otherwise generally attend, a synagogue that follows one of the streams of Orthodox Judaism to practise their faith.

Faith-based schools

One aspect of freedom religion which is recog­nised expressly in article 18.4 of the ICCPR and also in article 5.2 of the UN Declar­a­tion on the Elim­in­a­tion of All Forms of Intol­er­ance and of Dis­crim­in­a­tion Based on Religion or Belief (1981) is the freedom of parents to ensure the religious and moral education of their children in con­form­ity with their own con­vic­tions. For our community, this includes the freedom to establish Jewish schools and for those schools to dis­crim­in­ate to some extent in their employ­ment and other practices in order to uphold their religious ethos.

Private Jewish schools in Australia generally do not require teachers and other employees to be of the Jewish faith unless the position involves religious instruc­tion or par­ti­cip­a­tion in Jewish religious observ­ances or practices. Jewish schools, including those which follow the Orthodox tradition, routinely employ teachers and in some cases prin­cipals who are not of the Jewish faith.

If the position involves par­ti­cip­a­tion in Jewish religious observ­ances or practices, there may be a religious require­ment according to Jewish Orthodox tradition that the employee be per­son­ally committed to par­tic­u­lar levels of observ­ance, or in some instances, be a male.

Similarly, Jewish schools do not seek to dis­crim­in­ate in employ­ment on the basis of actual or presumed sexual ori­ent­a­tion. However, they do require all employees to refrain from acting or speaking, otherwise than in private, in a way that they know or should know is contrary to the school’s religious ethos. It has generally been accepted that this is a reas­on­able require­ment for a religious school, as would be the taking of adverse action against an employee who breaches it, even though this may result in indirect dis­crim­in­a­tion.

In this respect, religious schools are no different to other employers. If, as a matter of religious belief or for other reasons of con­science you disagree with an organisation’s values, as publicly expressed in its mission statement, codes of practice and other documents, then you should not sign an employ­ment contract with it in the first place, espe­cially if the contract says clearly and expli­citly that you will not act or speak publicly in any way that is incon­sist­ent with those values.

The need not to act in a manner that con­tra­dicts a school’s religious ethos may also apply to some extent to the engage­ment of inde­pend­ent con­tract­ors by religious schools.

As regards students, the ethos of some Orthodox Jewish schools requires that the school will only enrol students who are Jewish according to Halacha. Altern­at­ively, even if a school has an open enrolment policy which is not restric­ted to students who are Jewish according to Halacha, the school might still give pref­er­en­tial treatment to Jewish students. For example, it may restrict the fee relief which is sub­sid­ised by phil­an­throp­ic sources within the Jewish community to students who are Jewish according to Halacha.

In some Orthodox Jewish schools certain lead­er­ship positions within the student body may only be available to students who are Jewish according to Halacha, and certain religious observ­ances and rituals and perhaps other aspects of the school’s program will only be available to such students.

In an Orthodox Jewish school, male and female students are treated dif­fer­ently in con­nec­tion with school activ­it­ies that relate to some Jewish religious observ­ances or practices. Recently in the UK, gov­ern­ment inspect­ors down­graded the King David High School in Manchester from the top to the bottom rating because the school, for religious reasons, segreg­ates some classes based on gender. The down­grad­ing was cri­ti­cised because UK law allows single-sex schools, yet a high-achieving school which has always had some separate classes for boys and girls has now been stig­mat­ised for allegedly engaging in unac­cept­able dis­crim­in­a­tion.

In Australia, con­sid­er­able public attention has been directed to how religious schools handle issues con­cern­ing a student’s sexual ori­ent­a­tion. The ECAJ is not aware of any Jewish school which has refused to enrol a student because of that student’s actual or presumed sexual ori­ent­a­tion, or which has expelled or taken other adverse action against a student because of that student’s actual or presumed sexual ori­ent­a­tion. When this issue was debated publicly in 2018, no Jewish school advocated retaining the exception in the Sex Dis­crim­in­a­tion Act that permits such dis­crim­in­a­tion.

However, it is also critical that faith-based schools continue to have the right to require students to conduct them­selves in a manner which is not incon­sist­ent with the school’s ethos, and to enforce that right.

Finally, whilst religious insti­tu­tions are, and should remain, free to pro­mul­gate tenets of their faith, including beliefs about marriage and sexuality, that freedom ought not to extend to vili­fic­a­tion of entire groups on the basis of race, colour, sex, sexual ori­ent­a­tion or other arbitrary factors. Dif­fer­ences in values and beliefs can be acknow­ledged and explained without com­prom­ising the imper­at­ive to respect at all times the dignity and humanity of those with whom such dif­fer­ences are held.

Indeed, the ECAJ’s position has been that education towards respect for people of different faiths and back­grounds in our Aus­trali­an community should be main­tained and strengthened at both religious and secular schools. The role of Special Religious Education (SRE) classes in public schools also needs to be safe-guarded.

Char­it­able and phil­an­throp­ic organ­isa­tions and voluntary asso­ci­ations

While some Jewish char­it­able and phil­an­throp­ic organ­isa­tions might also extend their work outside the Jewish community, they could not continue to exist without the capacity to pri­or­it­ise or give pref­er­ence to members of the Jewish community, who are their principal source of donated funds.

Similarly, Jewish voluntary asso­ci­ations such as sporting clubs, which are not of them­selves religious or cultural, provide the Jewish community with services that make a sub­stan­tial con­tri­bu­tion to the main­ten­ance of social cohesion and our cultural identity. These organ­isa­tions thus require the ability to give pref­er­ence to members of the Jewish community as members and office-holders, and in the services they provide.

Religious vili­fic­a­tion

Australia is generally a tolerant and peaceful country. Most people under­stand that migration has been indis­pens­able in bringing growth, prosper­ity and cultural vibrancy to our nation. Compared to many other parts of the world, Australia remains the land of the fair go and mutual respect.

On the other hand violence and intim­id­a­tion of people on account of their religious back­ground occur far too fre­quently, as do serious forms of abuse motivated by religious hatred, which threaten the sense of safety and security of the people at whom it is directed.

To some extent, the criminal law already prohibits such behaviour, but there have also been many reports of cases in which law enforce­ment author­it­ies have failed to respond adequately or at all. This could be because the relevant laws are not uniform across Australia, are not well under­stood and are often poorly framed. In addition, police are sometimes not properly trained to identify and act against crimes that are motivated by various forms of hatred. In sub­mis­sions to official inquiries and more generally, the ECAJ has called, and continues to call, for these defi­cien­cies to be remedied. In 2018, NSW intro­duced a new offence of inciting or threat­en­ing violence against people on account of their religion. The ECAJ supports the intro­duc­tion of such an offence in the Criminal Code (Com­mon­wealth), which would apply through­out Australia in place of the current sections 80.2A and 80.2B of the Code, which are con­vo­luted and in our view unwork­able.

However, some forms of behaviour involve vili­fic­a­tion of people on account of their religious beliefs or affil­i­ation, but stop short of inciting or threat­en­ing violence against them. It is therefore under­stand­able that some members of religious com­munit­ies who have been targeted with these forms of behaviour have called for the intro­duc­tion of a Federal religious vili­fic­a­tion law along the lines of Part IIA of the Racial Dis­crim­in­a­tion Act, which prohibits behaviour that is likely to “offend, insult, humiliate or intim­id­ate” others because of their “race, colour or national or ethnic origin “.

This legis­la­tion presently provides some pro­tec­tion to Jewish Aus­trali­ans against discourse that is directed against them as members of an ethnic community, but does not prohibit discourse that is limited to criticism of Jews’ religious beliefs or practices.

Those who favour intro­du­cing a Federal religious vili­fic­a­tion law similar to Part IIA of the Racial Dis­crim­in­a­tion Act argue that such a law would be con­sist­ent with Article 20(2) of the ICCPR which provides: “Any advocacy of national, racial or religious hatred that con­sti­tutes incite­ment to dis­crim­in­a­tion, hostility or violence shall be pro­hib­ited by law”.

They also point to existing State laws in Victoria, Tasmania, Queens­land and the ACT which prohibit acts that incite hatred toward, serious contempt for, or severe ridicule of people on account of their religion. The Victorian and Queens­land laws go further and make serious, wilful instances of such behaviour a criminal offence.

Society would undoubtedly be better off without public dis­par­age­ment of people on the basis of their con­vic­tions and practices as members of a recog­nised faith community. Does that justify making such conduct illegal?

Race and religion differ fun­da­ment­ally. It is not possible to change one’s ‘race’ or ethnic back­ground, but it is possible to change one’s beliefs, including one’s religious beliefs. Whilst many people are born into a religious community and may feel that they cannot easily leave it, in a free country like Australia, belief is ulti­mately a matter of choice. People may change their religion or disavow religion alto­geth­er, as increas­ing numbers have in fact been doing. According to the ABS:

“The growing per­cent­age of Australia’s pop­u­la­tion reporting no religion has been a trend for decades, and is accel­er­at­ing. Those reporting no religion increased notice­ably from 19 per cent in 2006 to 30 per cent in 2016. The largest change was between 2011 (22 per cent) and 2016, when an addi­tion­al 2.2 million people reported having no religion.”

In contrast, “race, colour or national or ethnic origin”, are not open to choice. Dis­par­aging people because of those traits neces­sar­ily sends a message that such people, by virtue of who they are, and regard­less of how they behave or what they believe, are not members of society in good standing. This cannot but vitiate the sense of belonging of members of the group and their sense of assurance and security as citizens. To disparage a person or group because of their “race, colour or national or ethnic origin” thus neces­sar­ily con­sti­tutes an assault upon their human dignity.

In contrast, merely con­front­ing people with ideas or opinions which criticise, or are incom­pat­ible with, their own belief systems might hurt their sens­ib­il­it­ies, but does not in any way impugn their human dignity. In a free society, ideas of any kind – religious, political, ideo­lo­gic­al or philo­soph­ic­al – are and should be capable of being debated and defended. Robust critiques of ideas of any kind, no matter how pas­sion­ately adhered to, do not con­sti­tute a form of social exclusion of those who adhere to them.

Pro­ponents of laws that prohibit religious vili­fic­a­tion have argued that they seek only to outlaw the dis­par­age­ment of people on account of their religion, not critiques of their religious beliefs. This dis­tinc­tion has a super­fi­cial appeal, but in practice is difficult to sustain. How is it possible to criticise, satirise or disparage a religion, or indeed any belief system, without by necessary implic­a­tion dis­par­aging those who adhere to it?

Any law that might operate to ban or chill dis­cus­sion of any religion (or ideology, philo­sophy or other belief system) would not only violate one of the fun­da­ment­al Enlight­en­ment prin­ciples upon which modern free societies are based but would also most probably provoke a reaction that would be anti­thet­ic­al to the religious tolerance which the pro­ponents of such a law hope to encourage. We left behind laws against blasphemy and sacrilege a long time ago, and few Aus­trali­ans would tolerate a return to them, or to anything of similar effect.

Con­clu­sion

To date, the religious freedom debate in Australia has generated much heat but little light. The calls for legis­lat­ive change on a plethora of issues present potential chal­lenges to basic freedoms which have until now largely been taken for granted. This is an area where law reform should proceed cau­tiously and only following wide­spread and mean­ing­ful community con­sulta­tions.

There is a strong case for pro­hib­it­ing religious dis­crim­in­a­tion and cla­ri­fy­ing and updating the law impacting on religious freedom in Australia in the manner we are sug­gest­ing, and for intro­du­cing more effective criminal laws and enforce­ment against intim­id­a­tion, har­ass­ment and severe abuse of people on account of their religion. Yet it also has to be acknow­ledged that there is wide scope for unin­ten­ded con­sequences in any sub­stan­tial changes in the law which might be intro­duced. It is not only faith com­munit­ies such as ours which will need to be vigilant. Ulti­mately, the free and demo­crat­ic nature of our society, and therefore the interests of all Aus­trali­ans, are affected.

Contact
Peter Wertheim AM | co-CEO
ph: 02 8353 8500 | m: 0408 160 904 | fax 02 9361 5888
e: [email protected] | www.ecaj.org.au